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Taxi Limousine Comm’n v. Jonathan

OATH Index No. 2307/08 (June 9, 2008)

Taxicab driver cursed, threatened, and assaulted passenger. He also asked passenger about his destination prior to allowing him to enter the taxicab and withheld the passenger’s briefcase. Fines totaling $3350 and revocation of taxicab driver’s license recommended.

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NEW YORK CITY OFFICE OF

ADMINISTRATIVE TRIALS AND HEARINGS

In the Matter of

TAXI AND LIMOUSINE COMMISSION

Petitioner

-against-

KWANSA JONATHAN

Respondent

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REPORT AND RECOMMENDATION

KEVIN F. CASEY, Administrative Law Judge

The Taxi and Limousine Commission brought this license revocation proceeding under its rules and the New York City Administrative Code. It charged taxi driver Kwansa Jonathan with asking passenger Ken Evans for his intended destination before allowing him to enter a taxicab, harassing and physically assaulting Evans, and withholding his property, in violation of Taxicab Drivers Rules. 35 RCNY §§ 2-50(a), 2-60(a), 2-60(b), and 2-61(a)(2) (ALJ Ex. 1).

At a hearing on May 21, 2008, petitioner relied upon Evans’stestimony. Respondent testified and offered documentary evidence.

For the reasons below, I find that petitioner proved all of the charges and recommend revocation of respondent’s taxicab driver’s license and imposition of fines totaling $ 3350.

ANALYSIS

On the afternoon of March 18, 2008, respondent drove Evans from West 33rd Street in Manhattan to NewarkAirport. At the airport, a dispute arose concerning the credit card payment. Evans and respondent offered dramatically different versions of the nature of the dispute; each accused the other of being the aggressor. Because he offered coherent, logical explanations for his actions, Evans was more credible. In contrast, respondent’s testimony was inconsistent and implausible.

Evans testified that he hailed respondent’s taxicab at about 1:15 p.m. near Pennsylvania Station. As Evans stood outside the vehicle, respondent asked him where he was headed (Tr. 5). Evans replied that he needed to get to NewarkAirport in a hurry (Tr. 5-6). Respondent agreed to drive to the airport and Evans lifted the back door of the minivan to store his suitcase. Evans held on to his briefcase and entered the taxicab through aside door (Tr. 6).

From the beginning of the ride, Evans had some doubts about respondent. Those doubts began whenrespondent missed the first entrance for the Lincoln Tunnel on 33rd Street (Tr. 6). After Evans pointed out the error, respondent stopped and backed up to the entrance. In New Jersey, respondent did not drive south on the Turnpike, the route that Evans frequently took to the airport. Instead, respondent drove north. Evans asked about the route and respondent told him that he was taking a shortcut to avoid construction at the southbound tollbooths. Skeptical, Evans looked over his shoulder and did not see any construction (Tr. 6). Evans also asked if he could use his corporate credit card to pay his fare and obtain a receipt. Respondent said that would not be a problem and mentioned an additional $10 charge to cover tolls to and from the airport. Although that “seemed strange” to Evans, he agreed to pay the added fee (Tr. 7, 26).

They arrived at the airport at about 1:45 p.m. and Evans swiped his credit card through a machine in the passenger area of the taxicab. The screen displayed a total of $77.15 (Tr. 7). Evans agreed to that amount and the screen indicated that this payment was approved. After printing a receipt, respondent became upset and said that there was something wrong. Respondent stated that Evans had cheated him and he needed to swipe his credit card again. Already suspicious,due to the detour and $10 surcharge, Evans refused to swipe his credit card a second time because the initial $77.15 charge hadbeen approved (Tr. 7).

According to Evans, respondent was very agitated. Conceding that he had some difficulty with respondent’s accent, Evans did not understand all that was said.[1] But he clearly heard respondent state, “You are fucking cheating me” (Tr. 8). Anxious to catch his 2:30 p.m. flight, Evans decided to get out of the cab. He grabbed his briefcase and tried to go out the right door. Respondent came around the front and pushed Evans back into the taxicab. Evans slid to the left side of the taxicab, opened the door, and tried to get his suitcase from the rear of the vehicle (Tr. 9). Respondent ran around, grabbed Evans’s briefcase, and pushed him again. Evans pushed back, took the keys out of the ignition, and walked around to the rear of the taxicab. As Evans opened the back door to retrieve his suitcase, respondent slammed down the door. Respondent continued to clutch the briefcase and pushed Evans again, knocking him to the curb. Evans took out his cell phone and called 911 (Tr. 9-10).

A Port Authority police officer arrived and talked to the two men separately. The officer gave Evans the briefcase in exchange for respondent’s keys. They opened the back of the taxicab and Evans retrieved his suitcase. The officer looked at the initial receipt and noted that the amount listed wasless than $4.00(Tr. 11). It appeared to the officer that respondent had printed the receipt from the previous fare. Respondent printed out another receipt, for the correct amount of $77.15, and the officer handed it to Evans. The officer told Evans that if he wanted to press charges, it would take several hours to process. Evans declined to press charges at the airport, went to his flight, and later filed an on-line complaint on petitioner’s web site (Tr. 11).

In his testimony, respondent disputed nearly all of Evans’s claims. Respondent denied asking about the destination before Evans entered the taxicab (Tr. 30). He also denied backing up to the tunnel entrance, taking any property, cursing, or striking anyone (Tr. 30). Respondent recalled that Evans waited until he entered the taxicab to announce that he was in a rush to get to the airport. To avoid traffic, respondent drove straight to 11th Avenue, near the JavitsCenter, and entered the tunnel (Tr. 30). Respondent told Evans that there would be a charge of $10 for tolls, based upon the $8 for the tunnel and $1 each way on the New Jersey Turnpike (Tr. 31). He also explained that his credit card machine did not include a recent toll increase, so he had to enter $12 for tolls and his broker would reimburse Evans’s credit card account for $2. In New Jersey, respondent never drove north; he took Route 3to avoid construction-related traffic near theairport (Tr. 32-33).

When they arrived at the airport, the amount due was $77.15, which included the tolls of $10 and a $6 tip that Evans had added. Respondent testified that his broker required him to obtain signed receipts for all amounts over $30 (Tr. 33-34). But Evans was impatient and did not want to wait for the receipt to be printed. After swiping his credit card, Evans got out of the taxicab and went to the back door to get his luggage. Respondent also went to the back of the vehicle and “held” the door of the trunk, insisting that Evans had to wait to sign a receipt (Tr. 34-35). Respondent claimed that Evans pushed him, left one bag in the minivan, took the keys from the ignition, and started to run away (Tr. 34).

Someone called the police and an officer arrived moments later. The officer asked respondent whether he had hit Evans. Respondent denied that he hit anyone and explained to the officer that Evans needed to sign a receipt. After respondent gave the officer the receipt, Evans signed it and exchanged it for a copy. According to respondent, Evans said, “If I lose my flight, I’ll make you pay it in another way” (Tr. 35).

Respondent produced documents confirming that the total was $77.15, including tolls and a tip, and that Evans later received a $2.45 credit on his account (Resp. Exs. A, B).

Based upon Evans’scomplaint, petitioner charged respondent with breaking four rules: Rule 2-50(a), requesting a destination before the passenger entered the taxicab; Rule 2-60(a), harassing a passenger; Rule 2-60(b), assaulting a passenger; and Rule 2-61(a)(2), acting against the best interests of the public by grabbing a passenger’s property. To prevail, petitioner must prove the charges by a preponderance of the credible evidence. See Taxi Limousine Comm’n v. Martinez, OATH Index No. 1183/07, mem. dec. at 3-4 (Apr. 11, 2007). The evidence proved all of those charges.

Evans was a very credible witness who lacked any apparent motive to lie and did not seem to hold a grudge. Despite his skepticism, he did not argue about the toll charges or the detour. In fact, he authorized a $6 tip. Moreover, Evans did not exaggerate or claim that he suffered any physical injury. Indeed, he conceded that he kicked respondent during the altercation and took the keys from the ignition. Evans also acknowledged that he did not fully understand respondent and there may have been some mix-up with the receipt. He credibly asserted that he would have been satisfied if respondent had apologized when the officer arrived.

Unlike Evans, who offered measured and candid testimony, respondent presented flawed and implausible testimony. Shifting all of the blame to Evans, respondent refused to admit any wrongdoing. He insisted that he never touched Evans, grabbed any luggage, or uttered a curse. These claims were difficult to believe.

Notably, respondent could not explain why Evans took the keys from the ignition. If Evans was in a rush to catch a flight without waiting for a receipt, as respondent claimed, therewas noneed to grab the taxicab keys. However, if respondent had taken Evans’s briefcase and prevented him from leaving the taxicab, then seizing the keys in retaliation and calling the police made sense. Evans behaved like a passenger who had been harassed and assaulted.

In short, I did not believe respondent’s testimony that he was the innocent victim of an irrational passenger. It is more likely that, following a disputed credit card transaction, respondent became angry. He cursed at Evans, assaulted him, refused to let him leave the taxicab, and took his briefcase. Because Evans was more credible than respondent, I also believed his testimony that respondent asked for his intended destination before he entered the taxicab. Thus, petitioner proved all of the charges.

FINDINGS AND CONCLUSIONS

1. Petitioner proved that respondent assaulted passenger Ken Evans.

  1. Petitioner proved that respondent harassed Evans.
  1. Petitioner proved that respondent improperly seized Evans’s property.
  1. Petitioner proved that respondent improperly ascertained Evans’s intended destination before admitting him to his taxicab.

RECOMMENDATION

After making the above findings I reviewed respondent’srecord as a taxicab driver. He has been driving taxicabs for more than 15years(Tr. 39). On more than 40 occasions, he has been found guilty of violating Taxicab Drivers Rules. For example, he was found guilty of harassmentin 1995 and 1996, he drove a taxicab with a revoked or suspended taxicab driver’s license in 2001, and he was found guilty of refusal to pick up passengers in 2000 and 2006. Last year, for the second time in his career, respondent was deemed a persistent violator of taxicab drivers rules, because he was found guilty of violating three rules within 15 months.

Petitioner now seeks revocation of respondent’s license and imposition of the maximum allowable fines. That request is appropriate in light of the present charges and respondent’s extensive history of rules violations.

Protecting the public is among petitioner’s most important responsibilities. Absent significant mitigation, assault of a passenger generally results in license revocation. Taxi & Limousine Comm’n v. Eugene, OATH Index No. 720/08 (Jan. 8, 2008), modified on penalty, Comm’r/Chair Dec. (Feb. 27, 2008) (license revoked and $2600 fine imposed where taxicab driver pushed or pulled passenger three times); Taxi & Limousine Comm’n v. Kharoufi, OATH Index No. 1277/07 (Mar. 12, 2007) (revocation and $400 fine where driver assaulted, threatened, and verbally harassed passenger); Taxi & Limousine Comm’n v. Tokosi, OATH Index No. 513/00 (Feb. 18, 2000), modified on penalty, Comm’n Dec. (Apr. 12, 2000) (license revoked following a fare dispute where driver used physical force and abusive language). Petitioner’s rules also provide for fines up to: $500 for requesting a destination before a passenger has entered the cab, where the driver violated a similar rule in the preceding 24 months; $1,000 for verbal harassment; $1500 for his use of force against a passenger; and $350 for withholding of property, which is conduct that is against the best interests of the public. 35 RCNY §§ 2-86, 2-87(a)(1).

Respondent repeatedly pushed Evans and attempted to prevent him from leaving the taxicab. He also cursed Evans and seized his briefcase. In light of the serious potential for harm and respondent’s long history of rule violations, the maximum available penalties should be imposed.

Accordingly, I recommend revocation of respondent’s taxicab driver’s license and imposition of fines totaling $3350.

Kevin F. Casey

Administrative Law Judge

June 9, 2008

SUBMITTED TO:

MATTHEW W. DAUS

Commissioner

APPEARANCES:

MARC T. HARDEKOPF, ESQ.

Attorney for Petitioner

ISAAC GODINGER, ESQ.

Attorney for Respondent

[1] Based upon their small talk during the ride, Evans believed that respondent was from Nigeria (Tr. 21). Respondent, who is from Ghana, claimed that there was no small talk on the way to the airport (Tr. 43).