Get documents about "Taxi Limousine Comm Zhang
Shared by: jennyyingdi
-
Stats
- views:
- 3
- posted:
- 6/28/2012
- language:
- pages:
- 9
Document Sample
Taxi & Limousine Comm’n v. Louissaint
OATH Index No. 1627/08 (Mar. 11, 2008)
Evidence established that taxicab driver recently convicted of
driving while intoxicated presented a risk to the public safety.
License revocation recommended.
______________________________________________________
NEW YORK CITY OFFICE OF
ADMINISTRATIVE TRIALS AND HEARINGS
In the Matter of
TAXI AND LIMOUSINE COMMISSION
Petitioner
-against-
LOUIS LOUISSAINT
Respondent
______________________________________________________
REPORT AND RECOMMENDATION
JOAN R. SALZMAN, Administrative Law Judge
Petitioner, the Taxi and Limousine Commission (“TLC”), brought this proceeding against
respondent, Louis Louissaint, a licensed taxicab driver, under its rules and New York City’s
Administrative Code. 35 RCNY § 8-15(a); Admin. Code §§ 19-505(b)(5) and/or 19-512.1.
Based upon respondent’s conviction for driving while intoxicated, in violation of section 1192(2)
of the Vehicle and Traffic Law, petitioner contends that respondent no longer meets the
requirements for licensure (ALJ Ex. 1). During the hearing, after respondent’s counsel argued
that the agency would not be able to show that respondent lacks good moral character, petitioner
withdrew the portion of its petition that rests upon a showing that respondent lacks good moral
character under section 19-505(b) of the Administrative Code and is, therefore, unfit to hold his
license; the agency now relies solely on the claim that respondent poses a threat to the public
safety under section 19-512.1 and that his license should be revoked on that basis alone.
A hearing in this matter went forward on February 7, 2008, and although I said I would
close the record on February 20, 2008, when the last brief was due, counsel filed their briefs by
February 14, 2008. At the hearing, petitioner relied upon documentary evidence to establish
respondent’s prior conviction. Respondent testified on his own behalf. There is no dispute that:
respondent was arrested on December 30, 2007, in Valley Stream, New York; on January 9,
-2-
2008, he was convicted on his guilty plea to the misdemeanor of driving while intoxicated, in
violation of Vehicle and Traffic Law section 1192(2) (illegal per se for a driver to operate a
motor vehicle when such driver’s blood-alcohol level exceeds .08%); respondent has no viola-
tions on his Commission record since 1999 and thus had a good record as a driver in the relevant
period prior to his conviction (Pet. Exs. 1-3).
For the reasons below, I find that respondent’s recent criminal conviction renders him
unfit for licensure and recommend revocation of his license to operate a taxicab.
ANALYSIS
As a result of the conviction, respondent’s driver’s license was suspended. It is
undisputed that as part of respondent’s plea agreement he received a limited certificate of relief
from disabilities with specific reference to the return of his driver’s license, a conditional license,
from the New York State Department of Motor Vehicles (“DMV”) (Pet. Ex. 2). His DMV
license has been restored, but his TLC license is suspended pending the outcome of this
proceeding. On this certificate, at paragraph 15, respondent agreed that as an “applicant” he
would allow an investigation to determine his fitness for a certificate of relief from disabilities
pursuant to article 23 of the New York State Correction Law (Pet. Ex. 2). The parties agree that
respondent received a certificate of relief from disabilities limited to the return of a conditional
DMV license and that he is not automatically entitled to retain his TLC taxicab license on the
basis of the certificate of relief from disabilities, which he signed on January 9, 2008, and which
was also signed by a judge of the District Court of Nassau County.
Respondent’s lawyer argues that because of the cited provision, paragraph 15, this
tribunal should undertake an analysis of respondent’s fitness to keep his license under Correction
Law section 753, which is part of article 23-A of that law. Agency counsel agrees that such an
assessment can be made under that statute. That article prohibits “unfair discrimination” against
ex-offenders in employment or licensure, unless there is a “direct relationship” between the
criminal offense and the specific license sought or held, or the continuation of the license “would
involve an unreasonable risk to property or to the safety or welfare of specific individuals or the
general public.” N.Y. Correct. Law § 752 (Lexis 2008). A “‘direct relationship’ means that the
nature of criminal conduct for which the person was convicted has a direct bearing on his fitness
-3-
or ability to perform one or more of the duties and responsibilities necessarily related to the
license . . . in question.” N.Y. Correct. Law § 750(3). Here, I find a strong, direct relationship
between driving in a sober condition and the proper discharge of the important duty of driving
members of the public. The limited certificate of relief from disabilities grants relief from
enumerated disabilities, such that respondent was able to have a conditional DMV license
restored, and did not provide relief from all disabilities and bars to employment (Pet. Ex. 2).
Indeed, the specific sections of the Vehicle and Traffic Law cited in the certificate confirm that
the Commission retains the discretion to revoke a taxicab license where appropriate. See N.Y.
Veh. & Traf. Law § 1196(7)(g)(Lexis 2008) (notwithstanding anything to the contrary in a
certificate of relief from disabilities, no conditional license issued to a person convicted of
violating section 1192 of the Vehicle and Traffic Law shall be valid for operation of a taxicab);
N.Y. Veh. & Traf. Law § 530(5)(a restricted use license is invalid for operation of a taxicab
notwithstanding a certificate of relief from disabilities).
Section 753(1) of the Correction Law provides:
§ 753. Factors to be considered concerning a previous criminal conviction;
presumption
1. In making a determination pursuant to section seven hundred fifty-two of
this chapter, the public agency or private employer shall consider the following
factors: (a) The public policy of this state, as expressed in this act, to encourage
the licensure and employment of persons previously convicted of one or more
criminal offenses. (b) The specific duties and responsibilities necessarily related
to the license or employment sought or held by the person.
(c) The bearing, if any, the criminal offense or offenses for which the person was
previously convicted will have on his fitness or ability to perform one or more
such duties or responsibilities. (d) The time which has elapsed since the
occurrence of the criminal offense or offenses. (e) The age of the person at the
time of occurrence of the criminal offense or offenses. (f) The seriousness of the
offense or offenses. (g) Any information produced by the person, or produced on
his behalf, in regard to his rehabilitation and good conduct. (h) The legitimate
interest of the public agency or private employer in protecting property, and the
safety and welfare of specific individuals or the general public.
N.Y. Correct. Law § 753 (Lexis 2008).
-4-
Although respondent’s attorney concedes that this law is not strictly applicable here to a
license revocation proceeding, both sides agree that this tribunal has looked to section 753 of the
Correction Law as a guide in city, administrative license revocation proceedings (Respondent’s
Memorandum of Feb. 13, 2008, at 3; Petitioner’s E-mail Reply Brief of Feb. 14, 2008).
Accordingly, I consider this matter under the New York City Administrative Code, section 19-
512.1, with reference to Correction Law section 753.
Respondent admitted that he was drinking on the night of the arrest. He testified that he
had consumed a “couple of wines” at a party he attended from 4 p.m. to 8 p.m. on the night he
was arrested. He said he went home and slept from about 8 to 11 p.m., and thereafter left home
in his private car, which he drove nearby his home, in the vicinity of the Green Acres shopping
mall. He had been driving five minutes when he made an improper left turn and was arrested
(see Respondent’s Memorandum, at 2). Although he pleaded guilty to driving while intoxicated,
respondent stated here that believed he was not drunk when he was stopped by police about
midnight.
On questioning from his counsel, respondent stated that he is a family man with two
daughters in college and one in high school and that he needs this job to support his family. It
was undisputed that he has never had his license revoked, nor was he ever arrested for driving
while intoxicated or impaired in more than 20 years of operating a cab. He contradicted his
guilty plea, and stated that he does not know how the breathalyzer test he underwent on
December 30, 2007, showed intoxication because he did not feel drunk at the time (“I was
okay”), and that he pleaded guilty to driving while intoxicated on the advice of his attorney, even
though he told his attorney he was a TLC-licensed driver. He testified further that he is not a
chronic drinker and understands that he should not drink and drive.
Although respondent described himself as a responsible man, and there was clearly no
prior record of drunk driving by him, he has taken no action to vacate the plea or to bring his
protestations of any problem with the breath test to the attention of the Commission until the
hearing, and he has admitted drinking alcohol on the night of the arrest that led to his conviction.
His proclamations that he is responsible do not line up with the criminal record, and while he
impressed me as an earnest individual, his testimony was self-serving and problematic because it
was also self-contradictory. He spoke of his being mature and sensible, and gave his age, 52.
-5-
Although he clearly has family responsibilities and is a “family man” as he put it, and was in
denial that he was intoxicated on December 30, 2007, he did plead guilty to the crime. But this
is not the appropriate forum in which to seek to undo the binding legal effect of the guilty plea
and conviction. Under well established principles of collateral estoppel, respondent’s guilty plea
and conviction thereon conclusively establish the underlying facts of the criminal charge of
driving while intoxicated, a misdemeanor. Dep’t of Environmental Protection v. Licari, OATH
Index No. 1685/07, at 4 (June 5, 2007) (citing, inter alia, S.T. Grand, Inc. v. City of New York,
32 N.Y.2d 300, 344 N.Y.S.2d 938 (1973)). Respondent has admitted the charge that he operated
the vehicle while intoxicated. His guilty plea and conviction are binding on the record presented.
Petitioner alleges that, because of his recent conviction for driving while intoxicated,
respondent’s taxicab license should be revoked. Specifically, petitioner alleges that respondent
poses a threat to the public safety, Admin. Code § 19-512.1 (“commission may, for good cause
shown relating to a threat to the public health or safety” suspend a taxicab or for-hire vehicle
license, and, after notice and an opportunity for a hearing, “revoke such license”). I find that
petitioner has proved its case by a preponderance of the credible evidence. See generally Taxi &
Limousine Comm’n v. Zhang, OATH Index No. 834/08 (Nov. 27, 2007); aff’d, Comm’r Dec.
(Jan. 7, 2008); Taxi & Limousine Comm’n v. Romero, OATH Index No. 166/08 (Aug. 27, 2007),
aff’d, Comm’r Dec. (Sept. 28, 2007); Taxi & Limousine Comm’n v. Corrales, OATH Index No.
259/08, at 4-5 (Aug. 24, 2007), aff’d, Comm’r Dec. (Sept. 28, 2007).
The undisputed fact that respondent was convicted of driving a vehicle while intoxicated
as recently as January 9, 2008, establishes that he poses a risk to the public safety under
Administrative Code section 19-512.1. His testimony that he was “okay” when he drove after
drinking does not tend to show self-awareness and full appreciation for the grave risk of such
behavior to the public safety. Driving while intoxicated is simply incompatible with driving a
TLC-licensed, for-hire vehicle. Although respondent did show that the conduct leading to his
conviction of driving while intoxicated was aberrant and that his history as a driver is a good
one, it is the extreme recency of this conviction that prevents me from recommending anything
other than revocation of his TLC license. “Similar to police officers, taxi drivers ‘occupy
positions of great public trust and high public visibility.’” Nnebe v. Daus 2006 U.S. Dist. LEXIS
-6-
58611, at *12 (S.D.N.Y. 2006) (citing Gilbert v. Homar, 520 U.S. 924, 932 (1997)). Licensees
of the TLC are professional drivers “who may be held to a higher standard of care than the rest
of the driving public.” Taxi & Limousine Comm’n v. Pina, OATH Index No. 573/08, at 5 (Oct.
15, 2007) (safe driving and good judgment required), aff’d, Comm’r Dec. (Nov. 8, 2007). That
he was driving his private car does not diminish the gravity of the safety risk because of the
nature of the taxicab driver’s occupation, which requires safe driving. See, e.g., Corrales,
OATH 259/08, at 5.
The outcome is no different under Correction Law section 753 because the factors set
forth in that law overlap with the public safety analysis under the Administrative Code of the
City. As requested by respondent’s counsel in this case, I do not recommend revocation based
on the DWI conviction per se. Rather, I find that based on a review of the undisputed facts
amassed in the record here, revocation should be imposed in the discretion of the Commission
based on the factors set forth in both the Administrative Code and the Correction Law. The
limited certificate of relief from disabilities here does not apply by its terms to protect the taxicab
driver’s license (Pet. Ex. 2). Section 701(3) of the Correction Law states that even an applicable
certificate of relief from disabilities (and there is no applicable, general certificate of relief from
all disabilities here) in no way prevents any administrative licensing or other body or authority
from relying on the conviction specified in the certificate as the basis for the exercise of its
discretionary power to revoke a license. Dep’t of Buildings v. Emmolo, OATH Index No.
102/93, at 5 (Oct. 2, 1992).
Among the Correction Law factors are the seriousness of the offense, which I find to be
extremely serious for the driving, passenger and pedestrian public; the time between the crime
and the license application, which I find to be too short to warrant retention of the license; and
the duties and responsibilities and the relationship between the conviction and the ability to
perform the relevant services. There is clearly very close nexus between the DWI conviction and
fitness to perform this driving job. In addition, he is a mature adult, fully responsible for his
actions, and, given his occupation, he should have known better. Such factors weigh against
respondent, as his counsel conceded at least as to the recency of the conviction. I find these
factors dispositive, outweighing the others listed in section 753, the public policy of the state to
encourage licensure of persons who have been convicted of crimes, and information concerning
-7-
rehabilitation (his limited certificate) and otherwise good conduct in his prior driving record. It
is too soon to say whether respondent has been rehabilitated. The conditional restoration of
respondent’s DMV license does not mean that he should be entrusted with providing driving
services to others when he so recently got behind the wheel of a car on the same night he
admittedly consumed alcohol at a party. See generally Taxi & Limousine Comm’n v.
Eleftheriou, OATH Index No. 280/90 (Jan. 12, 1990) (taxicab driver’s license revoked after
respondent pleaded guilty to assaulting a Commission inspector and damaging his car with a
baseball bat); Dep’t of Buildings v. Casa, OATH Index No. 975/97 (May 14, 1997), adopted,
Comm’r Dec. (Sept. 30, 1997) (that licensed master plumber worked for many years as a
licensee without any wrongdoing having been attributed to him prior to attempted bribery con-
viction might indicate nothing more than that he was not detected doing anything improper);
Dep’t of Buildings v. Gelb, OATH Index No. 2155/96, at 19 (Mar. 3, 1997) (“Gelb I”), aff’d,
Sup. Ct. N.Y. Co., Index No. 107934/97, Decision and Order (Dec. 11, 1998) (Daniels, J.)
(certificate of relief from disabilities protects recipient from certain automatic forfeitures, but in
no way precludes discretionary revocation; electrician’s license revoked following conviction for
mail fraud); cf. Dep’t of Buildings v. Gelb, OATH Index No. 1298/97 (Nov. 12, 1997), aff’d,
Comm’r Dec. (Apr. 21, 1998) (in case of brother of respondent in Gelb I, electrician’s license not
revoked where crime of mail fraud occurred 11-12 years before revocation was sought and
respondent was genuinely contrite and was rehabilitated as shown by his conduct in the
community).
With such a fresh conviction of a crime that so clearly affects the safety of both motorists
and pedestrians were respondent to be allowed to resume his driving members of the public, it is
simply premature to say that this driver does not present a risk to the public safety. While
respondent’s predicament as a father who needs to earn a living certainly inspires sympathy, I
find that he does present a risk of accident or injury, and the fact that he drove his own private
car, as opposed to his cab, while intoxicated does not change the analysis. He showed poor
judgment and placed others at risk of accident, injury, or worse. After some period of time, if
respondent remains free of such problems with the law, he can apply for a license again.
-8-
FINDING AND CONCLUSION
Petitioner proved that respondent poses a risk to public safety due
to his recent conviction for driving while intoxicated. Admin.
Code § 19-512.1.
RECOMMENDATION
Contrary to respondent’s argument that my prior decision in Taxi & Limousine Comm’n
v. Dutan, OATH Index No. 1113/08 (Dec. 21, 2007), aff’d, Comm’r Dec. (Jan. 16, 2008), is
distinguishable because the driver in Dutan was a probationary driver with a much shorter
driving record than respondent here, the public safety analysis on the salient point, recency of
conviction, is the same. The recent DWI convictions in both cases militate in favor of revocation
because there is an insufficient basis on both records to say that respondents no longer present a
risk to the motorists, passengers and pedestrians on the theory that they have overcome the
drinking problem or poor judgment that led them to get behind the wheel of a motor vehicle in an
intoxicated state. In addition, both respondents pleaded guilty to the DWI misdemeanor, in
violation of Vehicle and Traffic Law section 1192(2), and then gave testimony contradicting
those binding pleas in this tribunal. There is no evidence before me that respondent is fully
rehabilitated, only that he denies he was drunk on the night of his DWI arrest. Neither that
testimony nor the restoration of respondent’s DMV license conditionally provides sufficient
assurance that respondent’s conviction does not show a threat to the public safety if he continues
to drive a cab at this juncture. Cf. Kahlon v. McGrath-McKechnie, Ind. No. 115734/98-001
(Sup. Ct. N.Y. Co. (Oct. 16, 1998) (revocation of taxicab driver’s license, following conviction
of driving while impaired, seemed unduly harsh in light of substantial mitigation that included
candid acceptance of responsibility, genuine remorse, and rehabilitation). Here, DWI is a more
serious conviction than is driving while impaired, and other than his good, long TLC driving
record, respondent has not shown substantial mitigation. There is no evidence of acceptance of
responsibility, true remorse or rehabilitation. See generally, e.g., Taxi & Limousine Comm’n v.
Romero, OATH Index No. 166/08 (Aug. 27, 2007) aff’d Comm’r Dec. (Sept. 28, 2007) (upon
respondent’s conviction of DWI, N.Y. Veh. & Traf. Law § 1192(2), and failure to acknowledge
the seriousness of his actions, taxicab license revoked on, inter alia, public safety grounds).
-9-
For all of the foregoing reasons, I recommend that respondent’s taxicab license be
revoked.
Joan R. Salzman
Administrative Law Judge
March 11, 2008
SUBMITTED TO:
MATTHEW W. DAUS
Commissioner
APPEARANCES:
MARC T. HARDEKOPF, ESQ.
Attorney for Petitioner
PETER M. MAZER, ESQ.
Attorney for Respondent
