Taxi & Limousine Commission V. Apple Cab Corp., Lic. No. 4H14

Taxi & Limousine Commission v. Apple Cab Corp., Lic. No. 4H14

Taxi & Limousine Commission v. Apple Cab Corp., Lic. No. 4H14

DECISION

The appeal of Apple Cab Corp. (the “respondent”) is denied.

The decision of the Administrative Law Judge (the “ALJ”) is affirmed.

BACKGROUND

On September 25, 2009, the respondent appealed ALJ Susan Brand’s decision dated September 16, 2009. In that decision, the ALJ found the respondent in violation of Rule 1-46A[1] stated in summons number 1248452A. The ALJ imposed a penalty of $250 and license suspension for ten days.

The ALJ’s decision states, in relevant part:

Officer Crandon appeared and testified that he stopped the cited vehicle at a checkpoint and after investigation, learned that the driver’s TLC license had expired. He then found that the driver’s DMV license had been suspended.

Peter [Mazer], Esq. appeared on behalf of Respondent and made a motion to dismiss ... arguing that Officer Crandon did not produce any evidence in support of the summons and that he had not made out a prima facie case, as he had not testified that the driver was actively operating the vehicle for hire.

I credit Officer Crandon’s details as written in summons #1248452 as well as his sworn testimony and find that Respondent failed to rebut the charges.

In his appeal, respondent, through his attorney, Peter Mazer, argues that the Rule 1-46A violation conviction should be dismissed for the following reasons:

The Administrative Law Judge failed to make sufficient findings of fact and conclusions of law. The Judge simply stated in her decision, “I credit Officer Crandon’s details as written in summons #1248452 as well as his sworn testimony and find that Respondent failed to rebut the charges.” By merely crediting testimony, and affirming what was indicated on a summons, the Judge made insufficient findings of fact to sustain a conviction.

An additional error was committed throughout the hearing. ALJ Brand, a new judge, was being observed by Administrative Law Judge Gary Grassi, a more senior Judge. Throughout the hearing, Judge Brand had “off-the-record” conversations with ALJ Grassi, i.e., private conversations between the two Judges, the contents of which were not shared with either the Commission representative nor myself. These conversations included substantive discussions of the Commission’s arguments and respondent’s defenses, and clearly influenced Judge Brand’s decisions. Two of these conversations occurred during the hearing, and may be found on the tape of the hearing, from 7:24 through 8:49, and from 13:23 through 14:59 (tape times on the hearing transcript provided to me).

Judge Grassi improperly acted in the capacity of a Commission representative, advocating the Commission’s position directly to the presiding Judge, although his conversations were not part of the public record. The two recorded conversations were intended to be private bench conversations between Judges Brand and Grassi. A review of the tape clearly shows that during these conversations Judge Grassi advised Judge Brand how to rule on the … [summons]. An additional conversation was held between Judges Brand and Grassi after the hearing was concluded and the tape was turned off (the undersigned remained in the room after the hearing was concluded and witnessed these conversations).

These conversations between Judge Grassi and the presiding ALJ were improper and caused the Judge to base her decision on matters not part of the record. Accordingly, the conduct of the hearing violated the City Charter, the Administrative Procedure Act, and the code of ethics for Administrative Law Judges.

Inasmuch as the proceeding was conducted in a [manner] that violated respondent’s due process rights, and the judge’s decision was based on matters not part of the record, the summons alleging a Rule 1-46A violation should … be dismissed.

Furthermore, the Judge imposed a suspension as part of the penalty without explanation. Even were the conviction to be sustained, the Judge has failed to explain the basis for her suspension penalty.

ANALYSIS

The respondent has not shown reversible error.

Findings of fact and conclusion of law

The respondent first claims that the ALJ made insufficient findings of fact to sustain a conviction of Rule 1-46A by merely crediting testimony and affirming the details written on the summons.

Here, the summons charged the medallion owner with allowing a driver to operate a taxicab with an expired hack license, in violation of Rule 1-46A, which provides “[n]o taxicab shall be operated for hire unless the driver has in his or her possession a current valid taxicab driver’s license.”

Rule 8-11D provides “At the conclusion of the hearing, the ALJ shall issue a decision which shall include findings of fact and conclusions of law.” An ALJ is required to make findings of fact in each decision, setting forth what the ALJ believes to have actually occurred with respect to each element of the violation charged. An ALJ must also rule on each defense raised, and make credibility findings about the testimony given on issues that determine whether there has been a violation or whether a defense has been shown by the respondent (see Taxi & Limousine Commission v. Mohammad F. Khan, Lic. No. 5171771 [April 23, 2008] citing Taxi & Limousine Commission v. Prosper St. Pierre, Lic. No. 433325 [April 7, 2003]).

Here, the ALJ set forth the essence of the officer’s testimony in her decision: “Officer Crandon appeared and testified that he stopped the cited vehicle at a checkpoint and after investigation, learned that the driver’s TLC license had expired. He then found that the driver’s DMV license had been suspended.” The ALJ credited “Officer Crandon’s details as written in summons #1248452.” The narrative of the summons states that Officer Crandon observed that the “owner allow[ed] driver … to actively hack with … medallion [4H14] while his hack license expired on April 11, 2009. Driver actively working at … [9th Avenue and West 12th street] with for hire [lights] on.” The ALJ also credited Officer Crandon’s sworn testimony. At the hearing, the officer testified that he stopped the respondent at a checkpoint, that the respondent presented him with an expired hack license, as confirmed over the radio, by a check of Commission (TAMIS) records, showing that the driver’s hack license expired on April 11, 2009. The officer also stated that when he went “in house,” he personally reviewed a TAMIS print out showing the expiration of the respondent’s driver’s license. The ALJ also found that the respondent failed to rebut the charges.

On this record, the ALJ’s decision was sufficient to show that the respondent owner allowed a driver to operate its taxicab with an expired hack license.

Penalty of license suspension

The respondent’s attorney argues that the ALJ failed to explain her suspension penalty.

Rule 8-11D requires an ALJ to impose, upon finding that a violation has been committed, the appropriate penalties, which may include a fine, and/or suspension or revocation of the respondent’s license. Rule 1-86 provides that the penalty for a Rule 1-46A violation is a range fine “and/or suspension up to 30 days.” Thus, the ALJ had full discretion to impose a penalty of license suspension of up to 30 days. Here, the ALJ imposed the penalty of license suspension for ten days and was therefore within the range provided by Rule 1-86. The respondent’s attorney fails to cite to any authority mandating an ALJ to explain a license suspension penalty that is within the range specified in Rule 1-86.

ALJ training during the hearing

The respondent’s attorney asserts that ALJ Grassi conducted improper “off the record” conversations at the hearing while on the record, training ALJ Brand, which influenced ALJ Brand’s decision, in violation of the City Charter, the Administrative Procedure Act and the Code of ethics for ALJs.

The record shows that the respondent’s attorney represented the respondent at the hearing and failed to object to ALJ Grassi’s “off the record” training of ALJ Brand at the hearing. The respondent therefore cannot do so for the first time on appeal. Arguments not raised by a party at a hearing are generally unpreserved for appellate review (see Taxi & Limousine Commission v. Chaudhry R. Hussain, Lic. No. 2C64 [April 15, 2009]; Taxi & Limousine Commission v. Walid K. Alsheyab, Lic. No. 690508 [September 30, 2008] citing Bingham v. New York City Transit Authority, 99 N.Y.2d 355, 359 [2003]).

ALJ training after the hearing

The respondent’s attorney states that he witnessed “an additional conversation” between ALJ Grassi and ALJ Brand after the hearing was concluded and the tape turned off. The respondent’s attorney claims that this additional conversation caused ALJ Brand to base her decision on matters not part of the record, in violation of the City Charter, the Administrative Procedure Act and the Code of ethics for ALJs. The respondent has not clearly explained how “an additional conversation,” the contents of which he fails to identify, has prejudiced him and fails to specify which sections of the cited laws have been violated.

Dated: October 20, 2009

Charles R. Fraser

Deputy Commissioner for Legal Affairs

By: D. Rivers

Administrative Law Judge, Appeals Unit

- 4 –

Printed on paper containing 30% post-consumer material.

[1] Operating a taxicab without a valid taxicab driver’s license.