Taxi & Limousine Commission V. Garoutsos Cab Corp., Lic No. 2P87

Taxi & Limousine Commission v. Garoutsos Cab Corp., Lic No. 2P87

Taxi & Limousine Commission v. Garoutsos Cab Corp., Lic No. 2P87

DECISION

The TLC judge’s decision that a violation of Rule 1-60B(2) was not established was incorrect. The decision is reversedand the matter is rescheduled for a new hearing.

BACKGROUND

The New York City Taxi & Limousine Commission (“Commission”) filed an appeal of the decision of Administrative Law Judge (“ALJ”) Richard Smolian dated July 16, 2007, wherein the ALJ dismissed the Rule 1-60B(2)[1] charge that was issued in connection with summons number 113239A.

The decision appealed from states, in relevant part, as follows:

TLCinspector observed respondent’s vehicle being operated while vehicle equipment remained in a defective condition. The Woodside facility became an authorized DMV

Inspection station and, in discovering vehicle defects, TLC would direct the vehicle

from the facility without an inspection sticker. When it returned with the defect repaired, an inspection sticker would then be issued. By comparing VIR’s (vehicle inspection reports)that were issued before and after the equipment repair together with a meter receipt, it was determined that the vehicle was actively engaged in for-hire activity during the interim period when it did not have the inspection sticker. Respondent’s defense is that it cannot conclusively be determined that the equipment was defective at the time the vehicle was being operatedfor hire after it had left Woodside. Inspector concurs but maintains that the issuance of the sticker is tantamount for permission to operate….Respondents’ additional defense that the violation is too vague and broad in the instant case bears consideration. Clearly, no definitive proof is presented that the respondent operated its vehicle in a for-hire capacity while its equipment was defective. The implication exists but this alone cannot sustain the all inclusive language of the violation which is “against the best interests of the public.” …. The allegations are sufficiently rebutted and a summons will be reissued under an appropriate rule

The Commission’s appeal was filed pursuant to Rule 8-13C on July 26, 2007.

On appeal the Commission argues that the ALJ erred in dismissing the summons since respondent’s vehicle failed the Taxi & Limousine Commission and Department of Motor Vehicles inspection and the vehicle was without a current inspection sticker as required by Taxi & Limousine Rule 1-10A and Vehicle and Traffic Law§ 301, and respondent had its vehicle operate as a taxi with the Department of Motor Vehicle inspection sticker and misrepresented to the public that this was a vehicle allowed to be on the road and doing for-hire activity.

The respondent did not file a response to the Commission’s appeal.

ANALYSIS

The ALJ erred in dismissing the summons upon the ground that it was defective and should be issued under an appropriate rule. The narrative in the summons states that the vehicle was being used for hacking with an unsafe condition after failing the inspection. This would pose a danger to the riding public and would be an act against the best interests of the public in violation of rule 1-60B(2), especially since respondent would have had full knowledge of the unsafe condition and still permitted the taxi to be operated for hire. Therefore, the rule charged was the proper rule. Moreover, if there was a conflict between the narrative and the rule number, the ALJ could have amended the rule number to conform to the narrative (see, Rule 8-06A(iii); Taxi & Limousine Commission v. Grappa Taxi LLC, Lic No. 8V52 [October 17, 2008]; Taxi & Limousine Commission v. El Service Corp., Lic. No. 6J11 [October 17, 2008]).

As to the ALJ’s finding that the Commission failed to prove that the taxi was being operated while it was in a defective condition, the ALJ found credible the issuing inspector’s testimony that between the time of the initial inspection on April 26, 2007 and the re-inspection on May 9, 2007 there had been 646 extra trips. This finding was sufficient to raise an inference that the taxi was operated for hire while in a defective condition and was sufficient to establish a violation of Rule 1-60B(2). The burden of proof then shifted to the respondent to establish that the repairs were made prior to the time the taxi was operated for hire. This respondent did not do so since there was no testimony offered on behalf of respondent.

The standard of review of an ALJ’s decision on appeal is substantial evidence (see generally, Matter of Ifrah v. Utschig, 98 NY2d 304 [2002]; 300 Gramatan Ave. Assoc. v. State Div.of Human Rights, 45 NY2d 176 [1978]; also see generally, Matter of Ortiz-Arroyo, NYLJ, Sept 5, 2003, at 18, col 3). Here the ALJ’s decision was not supported by substantial evidence and cannot be sustained

Dated: December 11, 2008

CharlesR. Fraser

Deputy Commissioner for Legal Affairs

By: Thomas Bonanno

Administrative Law Judge, Appeals Unit

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Printed on paper containing 30% post-consumer material.

[1] Acting against the best interests of the public