Taxi & Limousine Commission v. Dudhnath Dhanesri, Lic. No. 7E92
Taxi & Limousine Commission v. Dudhnath Dhanesri, Lic. No. 7E92
DECISION
The Taxi & Limousine Commission’s (“Commission”) appeal is granted.
The Administrative Law Judge’s (“ALJ”) decision is incorrect and is reversed. The matter is remanded (rescheduled) for a new hearing.
BACKGROUND
On December 24, 2008, pursuant to Rule 8-13C, the Commission appealed ALJ Lisa Badner’s decision, dated December 19, 2008. In that decision, the ALJ dismissed the Rule 1-10B[1] charge stated in summons number SE0006994.
The decision appealed from states, in part:
Owner appeared at Woodside on the date directed by TLC. This car was scheduled to be retired, but owner was trying to get a hybrid per letter from TLC dated 7/16/08. This directive was ultimately stayed. I find that the owner appeared for inspection as directed so was not in violation of 1-10B.
On appeal, the Commission asserts:
Respondent was required to put the medallion in storage if the vehicle was unable to be inspected. He did not do so and should have been found guilty as charged. The vehicle was scheduled to be inspected on November 17, 2008; a new vehicle was not hacked up until November 20, 2008. At no time did the Respondent put the medallion in storage as required under the rules. The purpose of the rule is to protect the public at large by ensuring that the vehicle being used as a taxicab passes inspection and meets the safety guidelines of the Commission. Operating the vehicle without passing inspection is endangering the lives, properties and welfare of all the stakeholders on the roads of New York City. The Respondent knowing that another vehicle would be hacked up should have had the old one inspected before the hack up, hack up a new vehicle before or not later than 48 hours after the scheduled inspection date or put the medallion in storage until a new vehicle is hacked up. In the alternative, Respondent should have sought and obtained an extension that he was in the process of getting a new vehicle. Finally, showing up at Woodside for inspection with a retired vehicle is not a compliance with the rule since a retired vehicle without an extension will not be inspected.
Dudhnath Dhanesri (“the respondent”) did not file a response to the Commission’s appeal.
ANALYSIS
The ALJ is incorrect.
Rule 1-10B states: “An owner shall have his taxicab inspected every four months at a date and time designated by the Commission and at any other time deemed necessary by the Commission.” [Emphasis added] The requirement is not merely to have the vehicle inspected every four months, but to do so at the specified date and time. The Commission sets forth a prima facie case for a Rule 1-10B violation when the respondent failed to appear at the date and time specified by the Commission.
Here, summons number SE0006994, issued on November 20, 2008, indicates that the respondent failed to appear for inspection for medallion 7E92 on November 17, 2008 at 7:01 a.m. at Woodside. A review of the hearing recording reveals that the issuing officer (“IO”) testified that the respondent did appear on November 17, 2008 for inspection but that his credentials were confiscated because the respondent appeared with a vehicle that had been retired on November 5, 2008. The IO further testified that the respondent hacked up new car on November 24, 2008 and was therefore seven days late for initial inspection.
The ALJ credited the respondent’s testimony that he appeared for inspection at the designed date and time because he had been told by the TLC to go to a dealer who would carry hybrids, but that the dealer advised him that they would not be getting any hybrids until January. Respondent testified further that after the inspection, he went to Rector Street to request an vehicle retirement extension, waited a few days, then finally found and bought a hybrid vehicle in the Bronx, which he hacked on November 24, 2008.
A licensee is presumed to present a non-retired vehicle for inspection. When a taxicab has been retired by the TLC, the vehicle is no longer authorized to be operated as a taxicab and is no longer subject to inspection. Prior to the scheduled inspection date, Respondent could have requested a vehicle retirement extension or placed the medallion and rate card in storage. Here, the respondent sought the extension only after the vehicle had already been retired and after his credentials had been taken at Woodside, and did not place the medallion and rate card in storage. The respondent failed to present a valid defense.
An ALJ’s credibility findings will not be disturbed on appeal if those findings are based on substantial evidence, which is reasonable proof of all the elements of the Rule charged (see 300 Gramatan Avenue Associates v. State Division of Human Rights, 45 N.Y.2d 176, 180 [1978]; Matter of Maspeth Ave. Operating Corp. v. Martinez, 2 AD3d 446 [2003]; Matter of L. Camino Trucking v. Martinez, 5 AD3d 597 [2004]; Matter of Siano v. Dolce, 256 AD2d 582 [1998]). Here, the ALJ’s credibility findings are not supported by substantial evidence in that, respondent did not timely appear with an authorized taxicab, in violation of Rule 1-10B.
Dated: June 23, 2009
Charles R. Fraser
Deputy Commissioner for Legal Affairs
By: D. Rivers
Administrative Law Judge, Appeals Unit
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Printed on paper containing 30% post-consumer material.
[1] Failure to have taxicab inspected every four months.