Taxi Limousine Commission v. Charles Kesse, Lic. No. 5121709
Taxi & Limousine Commission v. Charles Kesse, Lic. No. 5121709
DECISION
The appeal of Charles Kesse (the “respondent”) is denied.
The decision of the Administrative Law Judge (the “ALJ”) is affirmed.
BACKGROUND
On February 25, 2010, the respondent appealed ALJ Robert Gould’s decision dated February 24, 2010. In that decision, theALJ found the respondent guilty of violating Rule 2-07A[1]stated in summons number CD93373.
In relevant part, the ALJ found, based upon theNew York State Department of Motor Vehicles (the “DMV”) abstract of the respondent’s driving record, that the respondent had accumulated nine or more points on his DMV license within a fifteen month period, from February 1, 2008 to October 21, 2008, less two points for successful completion of a safe driver course. The ALJ concluded that the respondent was in violation of Rule 2-07A for accumulating six or more points on his DMV license within the 15-month period.
The respondent raises the following issues on appeal:
1)The decision was not based on substantial evidence as the DMV abstract was not certified;
2)Principles of estoppel should exclude violations occurring more than fifteen months prior to issuance of a Rule 2-07A summons; and
3)The application of Rule 2-07A is further inequitable because it rewards drivers with more recent violations by establishing the fifteen month look-back period only from the date of the most recent conviction carrying points. A driver with no recent convictions can be suspended or revoked while the driver with the same record plus an additional, new conviction carrying points can retains his or her medallion operator’s license if that new conviction is more than fifteen months removed from other accumulated points.
The Taxi & Limousine Commission(the “Commission”) did not file a response to the respondent’s appeal.
ANALYSIS
There is no requirement that a certified copy of the respondent’s DMV record be the original document with the original signature of the Commissioner of the DMV and have an original raised seal. In Taxi & Limousine Commission v. Jose R. Suculanda, Lic. No. 5122401 [August 5, 2008], the Commission had submitted records that did not have a certification from the DMV and those records were held to be unreliable. That is not true here. The purpose of a proper certification was to assure the ALJ that the documents submitted were duplicates of the originals in the possession of the DMV and thus reliable evidence. That was accomplished in this case by the certification at the bottom of the DMV abstract (see Taxi & Limousine Commission v. Walter Bryant, Lic. No. 5173130 [July 14, 2009]).
It is argued that principles of estoppel should prevent this respondent from being charged with a violation.Estoppelprohibits one from raising an issue which is permissible as a matter of law because of its inherent unfairness as applied to that case.
There are two stated grounds for this defense. First, it is alleged that it is unfair to include violations more than fifteen months old in determining whether there has been a critical driver violation pursuant to Rule 2-07A.Second, it is alleged that it is unfair because other drivers with exactly the same poor driving record, but with an additional, later violation do not face suspension, in effect rewarding the worse driver because he or she incurred a more recent violation.
With respect to the first ground, the respondent fails to set forth a reason why it is inherently unfair for the Commission to go back more than fifteen months. The only time limitation imposed by the Rules precludes the Commission from considering DMV violations that occurred prior to February 15, 1999 (see Taxi & Limousine Commission v. Gurwinder Singh, Lic. No. 5161152 [July 15, 2008]. With respect to the second ground, the Commission has chosen to define the look-back period as running from the time of the most recent violation resulting in a conviction carrying points. By doing so, the Commission is merely exercising its proper authority as a supervising agency to regulate its licensees. The application of Rule 2-07A may incidentally benefit some drivers but that result does not make it unreasonable for the Commission to define a look-back period as running from the date of the most recent conviction carrying points.
The ALJ’s decision is affirmed.
Dated: March 23, 2010
Charles R. Fraser
Deputy Commissioner for Legal Affairs
By: Mark H. Snyder
Administrative Law Judge, Appeals Unit
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[1] Critical Driver – license suspension.