1

Taxi and Limousine Comm’n v. Rehman

OATH Index No. 1293/08 (Jan. 3, 2008)

At a summary suspension hearing, ALJ determined that respondent posed a threat to the public safety where respondent was arrested for criminal possession of a weapon and menacing. ALJ recommended that license suspension should continue.

______

NEW YORK CITY OFFICE OF

ADMINISTRATIVE TRIALS AND HEARINGS

In the Matter of

TAXI AND LIMOUSINE COMMISSION

Petitioner

- against -

SYED REHMAN

Respondent

______

REPORT AND RECOMMENDATION

INGRID M. ADDISON, Administrative Law Judge

Petitioner, the Taxi and Limousine Commission (“Commission”),commenced this summary suspension proceeding against respondent, Syed Rehman, a licensee, pursuant to the Commission’s rules, title 35 of the Rules of the City of New York (RCNY), and the New York City Administrative Code. See 35 RCNY § 8-16(c); Admin. Code § 19-512.1(a) (Lexis 2007). Petitioner had summarily suspended respondent’s license upon notificationthat respondent had been arrestedon criminal charges. Petitioner acted pursuant to Administrative Code section 19-512.1(a) and section 8-16(a) of its rules, which authorize the summary suspension of a license to insure public health or safety. Petitioner now seeks to continue the suspension pursuant to sections 8-16(c) & (e) of its rules, until a final disposition in the criminal case.

A hearing was held before me on December 28, 2007. Respondent appeared with counsel and testified on his own behalf, seeking to have the suspension of his license lifted. For the following reasons, I find that suspension of respondent’s taxi driver’s license should continue.

ANALYSIS

Petitioner asserts that on August 19, 2007, respondent was arrested for criminal possession of a weapon in the second degree; criminal possession of a weapon in the third degree; and, menacing in the second degree, in violation of Penal Law sections 265.03(2), 265.02(1) and 120.14(1), respectively (Pet. Ex. 1). Upon notification of the arrest, petitioner wrote respondent on August 21, 2007, notifying him that it had suspended his license pursuant to section 8-16(a) of its rules and advising him that he had the right to request a hearing to contest the suspension (Pet. Ex. 1). Respondent requested a hearing to determine whether the suspension of his license should continue pending a final disposition of the criminal case. 35 RCNY § 8-16(c).

Section 19-512.1(a) of the Administrative Code authorizes the Commission to suspend a taxicab or for hire vehicle license “for good cause shown relating to a threat to public health, or safety and prior to giving notice and an opportunity for a hearing.” Under the Commission’s rules, the Chairperson may summarily suspend a license “based upon an arrest on criminal charges that the Chairperson determines is relevant to the licensee’s qualifications for continued licensure.” 35 RCNY § 8-16(c).

The Commission’s rules provide that the sole issue in this proceeding is “whether the charges underlying the licensee’s arrest, if true, demonstrate that the licensee’s continued licensure during the pendency of the criminal charges would pose a threat to the health or safety of the public.” 35 RCNY § 8-16(c). Petitioner must therefore establish a nexus between respondent’s arrest and a risk of harm to the public.

Penal Law section 265.03(1) provides that a person is guilty ofcriminal possessionof a weapon in the second degree when,“with intent to use the same unlawfully against another, (b) he possesses a loaded firearm.” Penal Law § 265.03(1) (Lexis 2007). Criminal possession of a weapon in the second degree is a class C felony. A person commits criminal possession of a weapon in the third degree when he commits the crime of criminal possession of a weapon in the fourth degree pursuant to Penal Law section 265.01, and has been previously convicted of any crime. Penal Law § 265.02(1) (Lexis 2007). Criminal possession of a weapon in the fourth degree includes possession of “…any firearm, electronic dart gun, electronic stun gun, gravity knife, switchblade knife, pilum ballistic knife, metal knuckle knife….”Penal Law § 265-01(1) (Lexis 2007). Criminal possession of a weapon in the third degree is a Class D felony. Menacing in the second degree involves the intentional act of placing or attempting to place another person “in reasonable fear of physical injury, serious physical injury or death by displaying a deadly weapon, dangerous instrument or what appears to be a pistol, revolver, rifle, shotgun, machine gun or other firearm.” Penal Law § 120.14(1) (Lexis 2007). Menacing in the second degree is a class A misdemeanor.

Petitioner argued that there is a nexus between the criminal acts of which respondent is accused and the qualifications for his continued licensure because of the seriousness of the charges. Petitioner acknowledged that the alleged conduct occurred while respondent was off-duty but argued that the Commission takes weapons possession so seriously thatits rules prohibit the possession of a weapon while operating a taxicab and that such possession is punishable by revocation. 35 RCNY §§ 2-25(a) & 2-86. Petitioner expressed that, fromthe charges against respondent, one might reasonably infer a propensity for violence, which would render respondent unfit to interact with members of the public because disputes involving fares and destinations frequently arise between licensees and motorists or pedestrians. Accordingly,petitioner contends that respondent’s arrest for criminal possession of a weapon and menacing is sufficient to demonstrate that he poses a threat to the public health and safety.

Respondent did not contest petitioner’s evidence. Instead, he testified that his arrest had been precipitated by a former housemate against whom respondent had filed a criminal complaint a few days prior that led to the roommate’s arrest for criminal mischief, after he was captured on video surveillance, vandalizing respondent’s vehicle. In support, respondent submitted an incident information slip from the precinct at which he had filed his report on August 10, 2007, the criminal court complaint against his formerroommate, dated August 12, 2007, and a cover letter from the district attorney’s office, dated August, 15, 2007, requesting a supporting deposition from respondent against his roommate (Resp. Exs. A, B & C). Respondent stated that, on the night of his arrest, while sleeping in his room with three foreign visitors, the police, accompanied by his roommate, came to his room. With his authorization, the police searched his home and found a loaded gun in his closet. The complaint room screening sheetissued by the district attorney’s office indicated that it was the complaining witness who pointed out the gun to the arresting officer (Resp. Ex. D). Respondent claimed that he does not own a gun but that his room is always unlocked. He speculated that, in retaliation for being arrested, his roommate had placed a gun in respondent’s closet to frame him.

I find petitioner’s evidence sufficient to establish itsprima facie case. Rule 8-16(c), upon which respondent’s license was summarily suspended, confers discretion upon the Chairperson to determine what constitutes a threat to the public health or safety and authorizes the Chairperson to order the summary suspension of a license as a precursor to revocation proceedings. This tribunal has no authority to separately evaluate whether respondent’s evidence is sufficient to establish probable cause orto entertain defenses to the crimes alleged. Rather, this tribunal’s inquiry is confined to whetherthe charges underlying respondent’s arrest, if true, demonstrate that respondent poses a threat to public health or safety.

Assuming the charges to be true, I find that continued licensure during the pendency of respondent’s criminal case poses a threat to the public health or safety. While the timing of respondent’s arrest is peculiar, given the arrest of his roommate a few days earlier, respondent did not deny that a loaded gun was found in his home. Further, his only explanation for its presence was speculative. Certain crimes are classified by the Penal Law as “Crimes against Public Safety” and are deemed to show a heightened risk by the circumstances of the crime itself. See Police Dep’t v. Chan, OATH Index No. 197/08, mem. dec. at 4 (Aug. 14, 2007); Police Dep’t v. Harris, OATH Index No. 983/06, mem. dec. at 4 (Feb. 16, 2006) (respondent arrested for, among other charges, serious misdemeanors, including the criminal possession of a firearm). Crimes involving the possession of a loaded firearm relate directly to these public safety concerns enumerated in the Penal Law and justify suspension of respondent’s license.

Respondent’s attorney argues that respondent is not a threat to the public safety becausehe has not been indicted. That argument is unpersuasive. In a number of cases, an arrest and filing of charges have been found to warrant suspension even prior to an indictment. Nnebe v. Daus, No. 06-LV-4991, 2006 U.S. Dist. LEXIS 58611, at *7 (S.D.N.Y. Aug. 7, 2006); see also Gilbert v. Homar, 520 U.S. 924, 934, 117 S.Ct. 1807, 1814 (1997) (even though “there is more reason to believe an employee has committed a felony when he is indicted rather than merely arrested and formally charged, . . . arrest and charge . . . serve to assure that the state employer’s decision to suspend the employee is not ‘baseless or unwarranted’”); FDIC v. Mallen, 486 U.S. 230, 240, 108 S.Ct. 1780, 1787-88 (1988) (filing of indictment for felony involving dishonesty was sufficient to suspend bank official).

In light of the foregoing, I find that petitioner has sustained its burden of showing thatrespondent poses a threat to the public safety as a result of his arrest for criminal possession of a weapon and menacing.

FINDINGS AND CONCLUSIONS

  1. Licensee was placed on a summary suspension after petitioner was notified of his arrest for criminal possession of a weapon and menacing.
  1. In accordance with rule 8-16(c), petitioner is entitled to continue respondent’s suspension during the pendency of the criminal case because, if true, respondent’s arrest for criminal possession of a weapon and menacing establishes thathe poses a threat to the safety of the public.

RECOMMENDATION

I recommend that respondent’s suspension be continued during the pendency of his criminal case.

Ingrid M. Addison

Administrative Law Judge

January 3, 2008

SUBMITTED TO:

MATTHEW W. DAUS

Commissioner

APPEARANCES:

MARC T. HARDEKOPF, ESQ.

Attorney for Petitioner

RICHARD WEINBERG, ESQ.

Attorney for Respondent