Taxi & Limousine Commission v.Sukhdev S. Khalil, Lic. No. 5116887
Taxi & Limousine Commission v.Sukhdev S. Khalil, Lic. No. 5116887
DECISION
The appeal of Sukhdev S. Khalil(the“respondent”) is denied.
The decision of the Administrative Law Judge(the “ALJ”) is affirmed.
BACKGROUND
On January 18, 2011, the respondent appealedALJ Paul Vaygen’s decisiondated December 17, 2010. In that decision, the ALJ found the respondent guilty of violatingRule 6-16F1stated in summons number 1307541A.
The ALJ’s decisionstates, in relevant part:
I find the respondent guilty of violating [Taxi and Limousine Commission (the “Commission” or “TLC”)] Rule 6-16(f).
Rule 6-16(f) states, in relevant part, that a driver shall not solicit or pick up passengers by means other than prearrangement through a licensed base.
I find the TLC’s case proved that the respondent picked up a passenger without prearrangement.The TLC inspector testified that he was conducting an undercover street hail operation with his partner, when they observed a white male passenger hailing a cab. The respondent stopped and the passenger entered his vehicle. The inspector asked the passenger if he pre-arranged with the base to be picked up by the respondent. He said that he did not and confirmed that the respondent agreed to take him to East 43rd Street and 1st Avenue for $10.00. The inspector told the passenger to leave and prearrange a pickup with a licensed base. There was an active 2-way radio in the vehicle. As the inspector was writing the summons, the driver asked him for a break.
Mr. Bach made a motion to dismiss the summons on the basis that the inspector's testimony contradicted the narrative in thesummons. The narrative states: "Driver p/up one w/ male passenger on a street hail at above location, passenger entered vehicle & stated this is not prearranged ride, he agreed to take me to E.43 st & 7 ave. for $10.00, active two way radio, driver asked for a break." Mr. Bach said that since the narrative states "…he agreed to take ME to E.43 st …" and not "him" that the inspector meant that the respondent agreed to take the inspector himself and not the white male passenger. He concluded that the summons does
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1 Soliciting or picking up passengers without prearrangement through a licensed base.
not, therefore, state a prima facie case, implying that the inspector is either
confused as to whom therespondent agreed to transport (the passenger or the inspector -- which would establish a lack of independent recollection) or that the inspector is not being truthful. I do not find Mr. Bach's argument persuasive, since the narrative includes the word "stated", meaning, in its context, that whatever follows this word are the words of the passenger, not the inspector. Furthermore, the inspector clarified this though his testimony at the hearing. I therefore deny Mr. Bach's motion to dismiss.
Upon questioning by the respondent's counsel, Mr. Bach, the inspector answered that he had an independent recollection of the incident; that he only had a conversation with the passenger and not the driver (other than the driver's request for the inspector to "give him a break"); that the inspector was standing at the North East corner of 1st Avenue and observed the respondent pick up the passenger at the South East corner; that the respondent's vehicle was traveling in the [uptown] direction; that he was 5 to 10 yards from the respondent's vehicle when he observed the alleged violation; that he was situated on the same side of the street as the respondent's vehicle; that there was 1 lane of traffic and traffic was heavy; that the respondent was stopped at a red light when the passenger entered the vehicle; and that it was a weekday. I find the inspector's testimony credible.
Mr. Bach argued that since there was only one lane of traffic and the respondent was stopped for a red light, there is no proof that he stopped for the passenger's street hail. The passenger could have gotten in the vehicle without the driver's consent. He also argued that the inspector only spoke with the passenger and not the driver, thereby failing to establish the violation. When the inspector requested to ask the respondent questions, Mr. Bach refused to allow his client to testify.
I do not find Mr. Bach's arguments persuasive. The inspector established the violation through his questioning of the passenger. Regardless of why the respondent stopped, the inspector's testimony is credible that the passenger did get in the vehicle and agreed upon a ride without prearrangement with the respondent. Since the respondent did not testify, he did not disprove the violation or even dispute the inspector's testimony.
On appeal, the respondent through his attorney Daniel Bach, Esq., argues that a pedestrian entering a vehicle at a red light does not meet the definition of “soliciting or picking up passengers” and so cannot be the basis for a violation; the inspector did not ask the driver for his version of events; and, the ALJ’s findings of fact were insufficient in that they did not appropriately address the issues raised at the hearing.
The Commission did not file a response to the respondent’s appeal.
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ANALYSIS
The ALJ’s decision is affirmed.
Agreeing to carry a passenger in a for-hire vehicle for a fee without prearrangement is a violation of Rule 6-16F, whether the passenger enters the vehicle after it stops for a hail or whether the passenger enters the vehicle at a red light.
The standard of proof used in administrative hearings is a preponderance of the evidence. This requires that the ALJ must be persuaded that the existence of a fact is more probable than its non-existence (see Taxi & Limousine Commission v. Israr Hussain, Lic. No. 884442 [May 28, 2009]; Taxi & Limousine Comm’n v. Sobczak, OATH Index No. 1691/08 [April 7, 2008], modified on penalty, Comm’r/Chair’s Decision [May 9, 2008]; Taxi & Limousine Commission v. Merl Levy, Lic. Nos. 5079853, 852969 [August 31, 2001].
Here, the ALJ’s decisionmeticulously sets forth the case presented by each party to meet that standard of proof. The ALJ’s decision is based on a finding of credibility of the inspector’s testimony. The respondent had an opportunity to present his version of events at the hearing but chose not to do so.
There is no basis to disturb the ALJ’s finding on appeal.
Dated: October 11, 2011
OATH Taxi and Limousine Appeals Unit
By: Mark Snyder
Administrative Law Judge, Appeals Unit
cc: Daniel Bach, Esq.
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