Taxi & Limousine Commission V. Tofail A. Chowdhury, Lic. No. 497753

Taxi & Limousine Commission v. Tofail A. Chowdhury, Lic. No. 497753

Taxi & Limousine Commission v. Tofail A. Chowdhury, Lic. No. 497753

DECISION

The appeal of the Taxi and Limousine Commission (the “TLC” or the “Commission”) is denied.

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

BACKGROUND

On April 10, 2009, the Commission appealed ALJ Suzanne Zalewski’s decision dated March 26, 2009. In that decision, the ALJ dismissed the Rule 2-34A[1], Rule 2-61A(2) [2] and Rule 2-46B[3] violations stated in summons number 388708C.

The ALJ’s decision states, in relevant part:

Industry representative Rizwan Raja appeared for the respondent. Mr. James Carney appeared for the TLC . . .

[C]omplaining witness for the TLC . . . testified: On 11/30/08 at 9:30 pm she got into a cab at LaGuardia airport. She told the cab driver she was going to the Fairfield hotel in E. Rutherford New Jersey. The driver turned off the meter and started leaving. He called the hotel for directions but they hung up on him [because] of communication issues. She called back and got directions. On the way, he stopped the cab and urinated at the side of the street/road. He did get her to the hotel. Once there, he told her it would be $170. She was shocked. She asked to pay by credit card but he could not get the machine to work. He asked her to go to the cash station. She had to pay with credit card, so after quite some time, finally, he said to swipe it in back where the screen displayed a $3 fare and add a $167 tip. She did this. When she asked for a receipt he could only give her the $3 receipt or a handwritten one. She refused but took a card he handed to her so she could call the next day and have a receipt faxed to her.

Lieutenant John Thomas testified as a witness for the TLC: He has worked for the TLC for 22 years. He works in enforcement and was a cab driver for 3 years before this. The TLC Rules state for a fare to New Jersey (other than Newark) the fare must be agreed to by the driver and the passenger before the trip begins. Drivers often refer to the “Blue Book” – Nestor’s – which gives suggested rates.

The TLC submitted respondent’s trip log and it was admitted into evidence.

Respondent made a motion to dismiss each charge for no prima facie case. TLC objected and made a motion to amend the 2-34A to 2-35 violation. Motion to amend is denied. TLC had already rested when motion was made. Respondent argues TLC failed to establish their case that there was an overcharge because no evidence was presented about how much the fare should have been. TLC argues the fare had to be set in advance. I find the TLC established a prima facie case on this charge.

Mr. Raja made a motion to dismiss for no prima facie case for the 2-46B charge because the witness testified she was offered a receipt. Motion denied. I find the TLC established a prima facie case.

Mr. Raja made a motion to dismiss for no prima facie case on the 2-61A2 charge arguing since no overcharge and no receipt charge were established, this charge had to fall. I deny this motion. I find the TLC established a prima facie case.

The respondent testified: When the complaining witness got into the cab and said where she was going, he told her because it was out of state it was a flat fare, he held up and showed her the “Blue Book” but did not open it. She said ok. He had turned his meter on when she got in but as soon as she said where she was going he turned it off. He did not look in the book at LaGuardia because it was very busy and he had to pull out because of congestion. When he got to the hotel, the meter showed $3 from when it was on, and the gps was relatively new for him. He didn’t know how to do the flat fare. He tried 3 times and did everything he knew how, but the credit card system just kept showing $3. Finally she told her to put in the 167 as a tip. He offered a handwritten receipt. She declined. He gave her a card for his garage and gave her their phone and fax. He had called them to make sure the cc went through and it had.

When they first arrived at the hotel, he opened the “Blue Book” and looked up the rate for LGA to Murray Hill (he thinks – to the best of his memory). The amount shown was $121 and change. Plus there had been approx. $12 in tolls. (He thought the total was about $135-$137). He showed her the book and told her about the tolls. She said she would pay him $170 because of where he was and he would have to go back without a fare.

The respondent submitted a well-worn Nestor’s Blue Book and it was admitted into evidence.

The TLC made a motion to dismiss the violation of TLC Rule 2-46B – no receipt. Motion granted. This charge is dismissed.

I find the TLC failed to prove the respondent violated TLC Rule 2-34A by a preponderance of the evidence. The TLC submitted no evidence what the fare should have been and no evidence of how much the complaining witness was overcharged. While they argued the fare was required to be set in advance, this is a different TLC Rule completely there was nothing in the violation description on the summons which would indicate to the respondent he was charged with failing to set fare in advance, so no argument can stand that the description overrides the rule cited. TLC’s motion to amend came after they rested their case. Accordingly, this violation is dismissed. The TLC failed to establish the elements of this particular violation – particularly, what the fare should have been.

I find the TLC failed to prove the respondent violated TLC Rule 2-61A2 by a preponderance of the evidence. I find the respondent did not commit an action against the public interest. Since I find there was no overcharge and the fail to give receipt charge was dismissed, there are no other actions of the respondent which he was put on notice would ca[u]se a violation of this rule. Accordingly, the violation is dismissed.

On appeal, the Commission asserts, in relevant part:

Respondent proceeded to testify that he showed the book to the Complainant and the Complainant said she would pay $170. One, it is inconceivable that the same Complainant who agreed to pay $170 would turn back to file a complaint against the Respondent. Secondly, Respondent violated Rule 2-35A(1) which stipulates that the driver shall not start the trip until agreement has been made on a flat rate as set forth in Owner Rule Section 1-73. While Respondent was not charged for violating the rule, the ALJ should have taken this into consideration and found by preponderance of evidence that Respondent overcharged the Complainant. Respondent cannot determine the flat rate after reaching the destination; this should have been determined and agreed upon before the trip begins. Respondent testified that when he was told the destination, he told the Complainant it was going to be a flat fare; at no time did he testif[y] that he told the Complainant what the flat fare was and that the Complainant agreed to the flat fare. This deliberate act of not determining and agreeing on the price shows the intent of overcharging and actual overcharging the Complainant. It is not a valid legal defense or excuse that “he did not look in the book at LaGuardia because it was very busy and he had to pull out because of congestion.”

Secondly, there was no disagreement that Respondent did not give the Complainant a receipt in violation of rule 2-46B. It is surprising and absurd that the ALJ found the Respondent not guilty of the violation. The ALJ found that the Respondent testified that “When he got to the hotel, the meter showed $3 from when it was on, and the gps was relatively new for him. He didn’t know how to do the flat fare. He tried 3 times and did everything he knew how, but the credit card system just kept showing the $3. Finally she told her to put in the 167 as a tip. He offered a handwritten receipt. She declined. He gave her a card for his garage and gave her their phone and fax.” It is not disputed that Respondent did not give the passenger the receipt. If Respondent did not know how to operate the GPS system or how to do flat fare, he should not be driving taxi in New York City. He should have learn[ed] the operation of the system before driving. The act of offering to give handwritten receipt is not a valid legal defense to the violation because the rule does not recognize handwritten receipt. Respondent gave the Complainant a card for his garage; this has no relevance since the card is not a valid legal substitute for receipt.

Respondent should also have been found guilty of committing an act against the best interest of the public. His refusal to state and agree on a flat fare before the commencement of the trip; his refusal to give receipt at the end of the trip and the act of overcharging the customer should have been sufficient by preponderance of evidence to violate him for an act against the best interest of the public.

Tofail A. Chowdhury (the “respondent”) did not file a response to the Commission’s appeal.

ANALYSIS

The ALJ’s decision is correct.

The Commission’s arguments that the respondent’s failure to agree on a flat rate before the trip shows his intent to overcharge, in violation of Rule 2-35A(1), that the respondent’s offer of a handwritten receipt was not a valid defense to the Rule 2-46B violation, that the alleged failure to agree to a flat rate, provide a receipt and overcharge were actions against the best interest of the public were not raised at the hearing. New arguments not presented at a hearing are generally not considered on appeal (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 NY2d 355 [February 20, 2003]). The Commission is therefore precluded from raising new arguments for the first time on appeal. As the Commission fails to cite to any error of law or fact by the ALJ based on the record before her, the ALJ’s decision is affirmed.

Dated: July 8, 2011

OATH Taxi Limousine Appeals Unit

By: D. Rivers

Administrative Law Judge

cc: Rizwan Raja, Industry Representative

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Printed on paper containing 30% post-consumer material.

[1] Charging or attempting to charge more than the approved fare.

[2] Action against the best interests of the public.

[3] Failure to provide fare receipt to passenger at the end of a trip. Failure to give receipt that states the date, time, medallion number, fare paid, extras and the Commission Complaint Department telephone number.