Taxi and Limousine Comm'n V

Taxi Limousine Comm'n v. Westphalia

OATH Index No. 1414/08 (Feb. 6, 2008)

Respondent failed to appear for discretionary license revocation hearing. Petitioner credibly established that respondent assaulted and harassed a motorist, and drove in a reckless manner. License revocation and a $3,500 fine recommended.

______

NEW YORK CITY OFFICE OF

ADMINISTRATIVE TRIALS AND HEARINGS

In the Matter of

TAXI AND LIMOUSINE COMMISSION

Petitioner

- against -

HELIO WESTPHALIA

Respondent

______

REPORT AND RECOMMENDATION

KARA J. MILLER, Administrative Law Judge

This license revocation proceeding was referred by petitioner, the Taxi and Limousine Commission, pursuant to the New York City Administrative Code and the Taxicab Drivers Rules, title 35, chapter 2 of the Rules of the City of New York (RCNY). Respondent, Helio Westphalia, is charged with assaulting and harassing a motorist and driving his cab in a reckless manner on November 9, 2007, in violation of rules 2-60(b), 2-60(a) and 2-21(a), respectively, of the Taxicab Drivers Rules (ALJ Ex. 1, Pet. Ex. 1). 35 RCNY §§ 2-60(b), 2-60(a), 2-21(a).

A hearing on the charges was scheduled to be conducted before me on January 30, 2008. Respondent attempted to contact petitioner to arrange for an adjournment by leaving a message on Commission attorney Marc T. Hardekopf's voice mail. Respondent, however, failed to provide a telephone number for Mr. Hardekopf to return his call. As a result, Mr. Hardekopf notified respondent in writing that respondent must contact the assigned hearing judge to request an adjournment, which he opposed. He further informed respondent that he was still required to appear on the scheduled hearing date (Pet. Ex. 2). Respondent never contacted this tribunal to request an adjournment nor did he appear at the hearing.

-1-

Upon respondent's failure to appear, proper proof of service of the charges and the notice of hearing were submitted (Pet. Ex. 1). Such evidence established the jurisdictional prerequisite for finding respondent in default and the hearing proceeded in the form of an inquest. Petitioner presented the testimony of Michael Pachuta, the civilian complainant, and supporting documentation.

For the reasons provided below, I find petitioner established all of the charges. I recommend that respondent's taxicab drivers license be revoked and a $3,500 fine be imposed.

ANALYSIS

The charges arose from an incident that occurred on November 9, 2007, between 9:00 and 10:00 p.m., at the corner of Varick and West Houston Streets in Manhattan. Mr. Pachuta was driving his van southbound on Varick Street when respondent, who had been driving next to Mr. Pachuta on his left side, swerved into his lane, hitting his left fender. The momentum of the collision pushed Mr. Pachuta's van into the right lane, where he collided with a third vehicle driven by Teddy Panoutsopoulos.

Mr. Pachuta, tried to get respondent to pull over, but respondent ignored him. Instead, respondent attempted to maneuver his taxicab around a car that was blocking him. Mr. Pachuta pulled his van up in front of the taxi, parking it horizontal to street traffic, to prevent respondent from driving away. He then exited the van and stood directly in front of the taxi while he told respondent to get out of the cab. Respondent refused to exit the vehicle and started shouting "fuck you" while he gave Mr. Pachuta "the finger" with both hands. Respondent repeatedly bumped Mr. Pachuta with his taxicab to make him move out of the way.

Mr. Pachuta did not retreat and instead called 911 to report the accident. As Mr. Pachuta was looking up to read the street signs to report their exact location, respondent got out of his cab, approached Mr. Pachuta and punched him in the right side of his face. Mr. Pachuta was taken completely by surprise. He was so engrossed with reporting the accident that he was unaware that respondent had even exited his taxi. The impact of the blow to his face knocked off his glasses and baseball cap and caused him to drop his telephone. Respondent attempted to punch Mr. Pachuta two or three more times, but never made contact. In addition, respondent unsuccessfully tried to kick Mr. Pachuta. As Mr. Panoutsopoulos approached, respondent ran back to his cab and fled the scene. Respondent was subsequently arrested for assault in the third degree and is currently awaiting trial (Pet. Ex. 9).

By the time the police arrived respondent had already left. Mr. Pachuta had memorized the medallion number which he provided to the police (Pet. Ex. 6). An ambulance was called to treat Mr. Pachuta's injuries. Paramedics treated him on the scene to staunch the flow of blood from his mouth and urged him to accompany them to the hospital for further treatment. He refused because he wanted to go the hospital near his home. Mr. Pachuta subsequently went to BethIsraelHospital in Brooklyn, where he received eleven stitches in his lip and mouth (Pet. Ex. 3). Mr. Pachuta was in a great deal of pain and he was unable to eat solid food for several days due to swelling and soreness from the stitches (Pet. Exs. 4, 5).

In addition to sustaining significant physical injuries, Mr. Pachuta suffered some financial consequences. He paid Mr. Panoutsopoulos $150 for the damages sustained to his vehicle and currently owes the hospital $189.56 for his medical treatment in the emergency room (Pet. Exs. 7, 8).

I found Mr. Pachuta to be an extremely credible witness. He neither exaggerated nor embellished his testimony. Indeed, he candidly pointed out an error in the police report which stated that respondent had hit him three times. He acknowledged that although respondent had swung at him several times and tried to kick him, he had only made contact once. Mr. Pachuta submitted the police complaint documenting the accident and the assault (Pet. Ex. 6).

Respondent was charged with violating rule 2-60(b), which states that a driver shall not use any physical force against another person while performing his responsibilities as a driver. Mr. Pachuta credibly testified that respondent punched him in the face and that he sustained significant injuries. He had a vivid and clear recollection of the events, which was corroborated by the hospital report and a series of photographs of his face, lip and the interior of his mouth (Pet. Exs. 3, 5). I find that respondent violated rule 2-60(b) by punching Mr. Pachuta in the face.

Respondent was additionally charged with violating rule 2-60(a), which prohibits a driver from threatening, harassing or abusing another person while performing his duties and responsibilities as a driver. Mr. Pachuta's testimony was consistent in his description of respondent's actions at the scene of the accident. Mr. Pachuta tried to prevent respondent from fleeing the scene and respondent reacted by shouting "fuck you" and making profane hand gestures, constituting threatening, harassing and abusive behavior. Accordingly, I find that respondent violated rule 2-60(a) by acting in a threatening and harassing manner.

Finally, respondent was charged with violating rule 2-21(a), which states that a driver shall not operate his taxicab in such a manner which unreasonably endangers other drivers or pedestrians. Mr. Pachuta credibly testified that while driving southbound on Varick Street, respondent swerved into Mr. Pachuta's lane, causing a three-car collision. Furthermore, respondent attempted to use his vehicle to bump Mr. Pachuta out of his way, exhibiting a dangerous disregard for Mr. Pachuta's safety. Looking beyond the outrageousness of using a taxicab to try to nudge someone out of the way, if respondent had lost control of the vehicle, he would have run over Mr. Pachuta, causing him serious injury. Therefore, I find that respondent violated rule 2-21(a) by driving in a reckless manner which unreasonably endangered others.

FINDINGS AND CONCLUSIONS

1.Respondent was properly served with the charges and notice of hearing.

2.Petitioner established that respondent used physical force against Mr. Pachuta while performing his duties and responsibilities as a driver on November 9, 2007, in violation of Taxicab Drivers Rule 2-60(b).

3.Petitioner established that respondent threatened, harassed, and abused Mr. Pachuta while performing his duties and responsibilities as a driver on November 9, 2007, in violation of Taxicab Drivers Rule 2-60 (a).

4.Petitioner established that respondent operated his taxicab in such a manner which unreasonably endangered Mr. Pachuta on November 9, 2007, in violation of Taxicab Drivers Rule 2-21(a).

RECOMMENDATION

After making the above findings, I reviewed respondent's driving record. Over the course of the last decade, respondent has been found guilty of threatening or harassing a passenger or member of the public on two occasions, driving recklessly, being discourteous, failing to comply with a reasonable request from a passenger, operating his taxicab while his license was suspended, and an assortment of minor violations, such as failing to fill out his trip sheet and failing to personally inspect his vehicle. It is also of some note that respondent's Department of Motor Vehicle ("DMV") license is currently suspended. Over the course of the last year, he incurred eight points on his DMV license.

The Commission requested that respondent's license be revoked and the maximum fine of $1,500 be imposed if he is found guilty of violating Rule 2-60(b) for physically assaulting Mr. Pachuta, the maximum fine of $1,000 be imposed if he is found guilty of violating Rule 2-60(a) for threatening and harassing behavior, and the maximum fine of $1,000 be imposed if he is found guilty of violating Rule 2-21(a) for reckless driving.

Ensuring public safety is one of the most important responsibilities for which the Commission is charged. Although license revocation is a severe penalty it is appropriate in instances in which Taxicab drivers physically assault and threaten or harass members of the public. SeeTaxi and Limousine Comm'n v. Kharoufi, OATH Index No. 1277/07 (Mar. 12, 2007) (license revoked where driver cursed at a passenger as he physically pulled him out of the taxi and attempted to punch him); Taxi and Limousine Comm'n v. Jaffar, OATH Index No. 2174/00 (July 13, 2000) (license revoked where driver verbally abused a passenger and hit her in the cheek); Taxi and Limousine Comm'n v. Tokosi, OATH Index No. 513/00 (Feb. 18, 2000), modified on penalty, Comm'n Dec. ( Apr. 12, 2000) (license revoked where driver used physical force and abusive language towards a passenger, despite the absence of injury and the driver's belief that he had been cheated out of a substantial fare); Taxi and Limousine Comm'n v. Verma, OATH Index No. 1085/99 (Mar. 9, 1999) (license revoked where driver screamed at passenger and threatened to hit her).

In this case, respondent punched Mr. Pachuta in the face with such force that he knocked off his glasses and hat, and caused him to drop his cell phone. Mr. Pachuta required eleven stitches and was in a severe amount of pain as a result. Respondent's inability to control his rage and his willingness to resort to violence makes him a threat to public safety. As such, respondent's license should be revoked to prevent similar occurrences and the maximum fine of $1,500 should be imposed for his violation of Rule 2-60(b).

In addition, respondent violated Rule 2-60(a) for threatening and harassing a motorist. Respondent used profane language and gestures in an effort to intimidate Mr. Pachuta, when he tried to prevent him from leaving the scene of the accident. The maximum penalty available is appropriate taking into consideration respondent's intimidating conduct and that he has been found guilty of threatening and harassing behavior on two prior occasions. Consequently, a fine of $1,000 should be imposed.

Finally, respondent was charged with driving in a manner that endangered other drivers and pedestrians. Respondent caused a three-car collision and refused to accept responsibility. In addition to hitting Mr. Pachuta's car while changing lanes, he tried to flee the scene of the accident by unsafely maneuvering around other vehicles. When Mr. Pachuta stood directly in front of the cab, respondent tried to use his vehicle to bump him out of the way. Respondent has previously been found guilty of driving recklessly by the Commission and has incurred points on his DMV license for speeding, unsafe lane change, passing a red light and failing to stop at a stop sign. The maximum penalty of $1,000 is appropriate in light of respondent's conduct during this incident and his extensive driving record.

Accordingly, I recommend that respondent's taxicab drivers license be revoked and a fine of $3,500 be imposed.

Kara J. Miller

Administrative Law Judge

February 6, 2008

SUBMITTED TO:

MATTHEW W. DAUS, ESQ.

Commissioner

APPEARANCES:

MARC T. HARDEKOPF, ESQ.

Attorney for Petitioner

No appearance for Respondent.