Taxi _ Limousine Comm'n v. Ajoku

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					                    Taxi & Limousine Comm’n v. Ajoku
        OATH Index No. 408/11 (Jan. 14, 2011), adopted, Comm’r Dec. (Feb. 3, 2011)

               In a contested overcharge proceeding, petitioner proved that
               taxicab driver overcharged passengers on 91 occasions over a
               9-month period. Driver’s testimony that he accidentally
               activated Rate 4 and then reimbursed his customers was not
               credible. Revocation of license to drive taxicabs and $850 fine
               recommended.

               Commissioner accepted that ALJ gave respondent “the benefit
               of the doubt” with respect to seven dismissed charges, without
               construing it as a precedent. Affirmed as to penalty.
               ___________________________________________________
                                NEW YORK CITY OFFICE OF
                       ADMINISTRATIVE TRIALS AND HEARINGS

                                    In the Matter of
                        TAXI AND LIMOUSINE COMMISSION
                                       Petitioner
                                        -against-
                                 CHIJIOKE AJOKU
                                      Respondent
               ___________________________________________________

                        REPORT AND RECOMMENDATION
FAYE LEWIS, Administrative Law Judge
       Petitioner, Taxi and Limousine Commission, commenced this proceeding against
respondent, Chijioke Ajoku, a taxicab driver, pursuant to the New York City Administrative
Code and the Taxi and Limousine Commission Rules, title 35, chapters 2 and 8. 35 RCNY §§ 2-
34(a), 2-87, 8-03(b)(ii).   Petitioner alleged that respondent overcharged passengers on 98
occasions, in violation of 35 RCNY section 2-34(a) (Pet. Ex. 1).
       A hearing commenced on November 9, 2010, and was continued, at respondent’s request,
to December 7, 2010. Although respondent had initially retained an attorney to represent him, he
decided for financial reasons to represent himself. In accordance with the rules of conduct
governing administrative law judges, I advised respondent multiple times of his right to have an
attorney represent him and asked if he wanted to obtain an attorney. He declined to do so and
indicated that he would represent himself. I then explained to respondent the manner in which
the hearing would proceed, and informed him of his right to testify, offer exhibits into evidence,
                                               -2-

object to any evidence offered by petitioner, and make legal arguments (Tr. 5-9, 84-85). See
Rule 103(A)(8) of Appendix A to title 48 of the Rules of the City of New York, the Rules of
Conduct for Administrative Law Judges and Hearing Officers of the City of New York.
       As set forth below, I find that the charge is sustained as to 91 overcharges and
recommend an $850 fine and revocation of respondent’s taxicab driver’s license.


                                           ANALYSIS
       Since 2007, taxicabs have been required to install a “taxicab technology system.” 35
RCNY § 1-11(e)(1). The taxicab technology system, known as TPEP (Taxicab Passenger
Enhancement Project), provides for electronic trip sheets which employ a global positioning
system (“GPS”). See 35 RCNY § 3-03(e)(6). Based upon TPEP-generated data, petitioner
alleged that respondent overcharged passengers on 98 occasions between May 25, 2009 and
February 28, 2010, in violation of Section 2-34(a) of the Taxicab Drivers Rules, which prohibits
drivers from charging passengers in excess of the approved rates (Pet. Ex. 1).
       According to an affirmation by Serge Royter, a TLC employee familiar with TPEP, there
are three brands of taxi meters which are equipped with this technology and authorized for
installation in approximately 13,000 medallion taxicabs in New York City (Pet. Ex. 3). The
brands include the Centrodyne silent meter, produced by CMT, which is installed in the taxicab
which respondent usually drives (medallion 2N16) (Tr. 92). The Centrodyne silent meter, like
the other meters, displays the fare, surcharges, and the rate number for the trip (Pet. Exs. 3, 3B).
There are five rate numbers: (1) trips within New York City; (2) trips to and from JFK airport
and Manhattan; (3) trips to Newark airport; (4) trips to Nassau and Westchester counties; and (5)
negotiated fares for New Jersey, upstate New York, and Suffolk County. Rate 4 is double Rate
1. Trips to Nassau or Westchester start at rate 1 in New York City and increase to rate 4 when
the drivers leave the city. Rate 4 is designed to compensate drivers for their return trip to New
York City because they cannot pick up fares in Nassau or Westchester (Pet. Ex. 3, 3A).
       According to Mr. Royter, TLC employees reviewed data provided in an electronic form
from the three TPEP vendors, including CMT, to learn whether taxicab drivers were improperly
using rate 4 on trips within New York City. A Rate 4 Database Report on respondent shows that
he activated rate 4 for trips within New York City on 98 occasions from May 25, 2009 through
February 28, 2010. Mr. Royter wrote that the report did not include trips ending in Nassau or
                                                       -3-

Westchester counties, duplicate trips, or trips where the rate 4 activation occurred during the last
20 percent of the ride (Pet. Exs. 3, 3C).1
        Apart from the affirmation, petitioner produced detailed tripsheets for respondent for
February 28, 2010, which show that over the course of three and a half hours, between 12:17
a.m. and 3:47 a.m., respondent improperly activated rate four three times, on trip numbers 5411,
5413, and 5421. Trip number 5411 took only 21 minutes and was solely within Manhattan. Trip
number 5413 took only 13 minutes and was also solely within Manhattan. Trip number 5421
took ten minutes and went from Manhattan to Queens (Pet. Ex. 4).
        Respondent did not deny activating Rate 4 on the occasions noted in the Rate 4 Database
Report. However, he denied deliberately activating Rate 4 or overcharging passengers. He
contended instead that (1) he activated Rate 4 by accident because it was dark in the cab at night,
during his shift, and he could not see the Rate 4 button; (2) he realized as soon as he had
activated Rate 4 that he had done so and told the passengers he had made a mistake and would
refund the money; and (3) at the end of the trip, he refunded any Rate 4 charges. Respondent
asserted that he refunded the overcharges instead of voiding the trips because voiding the trips
would have resulted in his losing the entire fare, which would be unjust (Tr. 93-94, 138-39, 190).
For various reasons, I did not find respondent credible.
        At my request, petitioner produced a demonstration model of the Centrodyne silent meter
at trial (Pet. Ex. 5), which respondent acknowledged worked the same way as the meter in his
taxicab, in terms of how Rate 4 is activated (Tr. 150).2 The Centrodyne meter is also portrayed
in one of the attachments to Mr. Royter’s affidavit (Pet. Ex. 3B at 3) and in one of the
photographs submitted by respondent of his meter as seen from the interior of the taxicab (Resp.
Ex. E). The meter has four buttons near the bottom, located from the very left hand side of the
meter to about the middle of the meter. The first button to the left, with the word “HIRED” in


1
  The database report originally listed 100 trips, but upon review, two of those trips (trip numbers 4081, 4705) were
found to have commenced in New Jersey and thus to have been improperly included within the list of overcharges.
Hence, the report was amended to delete those two trips (Pet. Ex. 3c).
2
  Respondent had initially requested that this tribunal issue a subpoena to his garage to produce the meter from the
taxicab or, alternatively, that the Commission order the garage to produce the meter. Respondent asserted that he
wanted to demonstrate how the meter worked at his hearing. He declined to lease the car for the day of trial, which
would have given him access to the meter, because he did not want to pay for it. Ultimately, the issue was resolved
when the Commission produced a demonstration model of the same type of meter at trial (Tr. 39, 44, 47-59, 72-75,
92).
                                                -4-

small white type above it, is the default button that is pressed to activate Rate 1. When the
“hired” button is pressed once, the word “VACANT” appears in red fluorescent type above the
fourth button. The fourth button has the word “RATE” above it in small white type. The word
“RATE” and the number “1” also clearly appear in red fluorescent typeface on the right side of
the meter. When the “hired” button is pressed again, the red “VACANT” vanishes and is
replaced by the word, “HIRED,” lit up in red fluorescent immediately to the right of the “hired”
button and above the smaller white print, “HIRED” (Pet. Ex. 5; Tr. 136).
       By contrast, to go from Rate 1 to Rate 4, the driver must push the fourth button, which is
the button all the way to the right. When the Rate 4 button is pressed, the word “RATE” appears
in larger red fluorescent letters toward the right hand side of the meter, and the number “4”
appears also in red fluorescent letters, plainly visible (Tr. 137-38; Pet. Ex. 5). The photographs
accompanying Mr. Royter’s affidavit also indicate where the Rate Code number “4” is seen on
the meter when the Rate 4 button is pressed (Pet. Ex. 3B at 3).
       Respondent testified that he usually drives at night and the interior of his car is dark. The
buttons on the meter are too close to him, making it easy to make mistakes. He repeatedly
asserted that he could not see the Rate 4 button at night and he hit the Rate 4 button when he was
intending to hit the “pause” or “time off” button (Tr. 181-82). The button to pause the meter is
located immediately to the right of the “hired” button and has the words “time off” written above
it, in white capital letters (Pet. Ex. 5). Respondent acknowledged that sometimes he successfully
hits the “pause” button, but other times he makes mistakes because “the lighting is bad” and “the
meter is so close” (Tr. 182). In support of this assertion, he introduced photographs which
purportedly show the interior of his car at night. In one of these photos (Resp. Ex. C), it is
indeed difficult to see the buttons on the meter. In another photograph (Resp. Ex. E), which
respondent testified he took by shining a flashlight on the meter, the buttons are more visible. It
was unclear whether the interior of the car as reflected in Exhibit C accurately represents the
condition of the car at night, with no interior lighting. However, even if that were the case, the
default, Rate 1, button is all the way to the left of the meter, to the left of the word, “off,” which
is illuminated even in Exhibit C. By contrast, the Rate 4 button is under the illuminated word,
“VACANT,” shown in respondent’s photograph. Given the configuration of the buttons, it is not
plausible that respondent would make the same mistake close to 100 times over the course of
nine months, even if the interior of the car was dark.
                                                           -5-

           Additionally, respondent’s explanation that it was too dark to see the buttons does not
answer the question of why he did not simply turn on the interior lights whenever he wanted to
pause the meter. Respondent testified that he needs to pull over frequently during his shift to get
change from local stores, particularly on Fridays, which is a pay day for many people. At these
times, he asks passengers in his taxi to wait while he gets change (Tr. 132, 140, 161-62). Many
passengers are “not in a rush” and agree (Tr. 132). Respondent also asserted that he pauses the
meter sometimes if he needs to investigate a “sound in the back of the car,” or make a “personal
stop,” or is getting a ticket (Tr. 134, 162). I did not credit respondent’s testimony about routinely
stopping to get change while he has passengers in the taxi. It was difficult to believe that
passengers would be content to wait in the cab while the driver went into a grocery store to get
change, made a personal stop, or investigated a noise. If respondent really needed change, then
either he would ensure that he had it at the start of his trip or he would stop to get change when
he did not have a fare. Similarly, if he needed to stop for other reasons, he would do so when he
did not have passengers. It is unlikely that he would make a practice of pulling over to get
change while he had a fare.
           However, even if respondent’s testimony were to be credited, he asserted that he parked
his cab in order to get change. If he was parking his car, or even double-parking, he would likely
be close to some street lighting (Tr. 178). Respondent contended, however, that street lighting
would not make any difference because of the placement of the meter. Even assuming that street
lighting would not illuminate the meter, the question remains: why didn’t respondent just turn
on the interior lights in the cab after he parked? Asked why he did not do so, respondent replied
only, “. . . how many times do you use overhead lights when you’re driving your personal car?
You know where all your stuff is. You hit the button, you go. You turn the light on” (Tr. 169).3
Respondent’s reply makes no sense, given his testimony that time and time again, he pressed the
Rate 4 button by mistake because it was so dark in the car. Respondent’s testimony that he has
been driving for four years and became “sloppier” the longer he stayed on the job also does not
explain his failure to simply turn on the lights (Tr. 152). The only logical conclusion to be drawn
from respondent’s testimony is that respondent did not care whether he pressed the Rate 4 button
on trips within city limits. Indeed, this conclusion is supported by respondent’s testimony that



3
    It appears that respondent was referring to outside headlights when he noted, “you turn the light on.”
                                               -6-

only recently are he and other drivers putting on the interior lights, because of the Commission’s
prosecution of Rate 4 overcharge cases (Tr. 170).
       In any event, respondent admitted knowing as soon as he pressed the Rate 4 button that
he had activated the out-of-town rate. He testified that when Rate 4 is activated it shows up on
the monitor which is visible to passengers in the back of his cab (Tr. 160). There was no doubt,
moreover, even from respondent’s photographs, that the rate number appears in fluorescent lights
next to the word “RATE,” and is visible even if the interior of the cab is dark (see Resp. Ex. C).
Respondent explained that he had initially tried to end the trips when he hit Rate 4 mistakenly,
expecting that the passengers would be fair and would pay for any extra blocks beyond where the
meter cut off, but the passengers were not fair and he lost money (Tr. 177). Hence, despite
continuing to hit Rate 4, purportedly by mistake, and despite knowing when he had hit Rate 4
because the number “4” appeared in fluorescent on his meter, respondent decided that he would
not end the trips and would instead continue driving with Rate 4 activated. Respondent stated
without equivocation, “if I accidentally hit the Rate 4 I’m not going to cut it off. I’ll ride it
through and I will settle [with] the passengers” (Tr. 93-94). Later, respondent stressed that there
is no way of canceling Rate 4 if you hit it by mistake and so, to void the Rate 4, he would have to
“cancel the whole thing and you lose money. The passengers do not compensate you” (Tr. 183).
       Respondent explained his method of settling with the passengers. He testified that as
soon as he realizes that he has mistakenly activated Rate 4, he tells passengers that he has hit the
Rate 4 button by mistake and that he would refund the overcharge to the passengers. At the end
of the trip, if the passengers pay by credit card, they pay the whole amount and then he refunds
them the exact amount of the overcharge. If they pay by cash, they pay the amount of the full
fare, minus any overcharge for Rate 4 (Tr. 94-95, 100-01, 138-39, 160-61). Respondent asserted
that the passengers are usually so grateful for his sincerity that they reward him with a bigger tip
(Tr. 173).
       Respondent contended that for each of the 98 trips on the Rate 4 spreadsheet, except for
two when the passengers ran away without paying, he settled with the passengers (Tr. 160). He
asserted that because his Rate 4 activations within city limits were accidental and he had
refunded any Rate 4 overcharges, he had not violated the Commission’s rule prohibiting
overcharges (Tr. 165, 167).
                                               -7-

       Just as I did not find respondent credible in asserting that he mistakenly activated Rate 4
close to 100 times, I did not find his testimony that he refunded each and every overcharge to be
credible. Respondent did not produce a witness to corroborate his testimony, as he indicated that
he had hoped to do. However, he did submit a hand-written statement accompanying a receipt
for a trip on December 5, 2010 (Resp. Ex. F). This was not among the trips alleged in the
petition, but I permitted respondent to submit it into evidence as part of his defense. The receipt
for the cab fare shows a “regular fare” “Rate 1” of $9.70, and an out-of-town fare, “RATE 4” of
$3.20, plus two additional fifty cent surcharges, for a total of $13.90 (Resp. Ex. F). Respondent
asserted that this was a trip on which he had mistakenly hit the Rate 4 button and had informed
the passenger that she did not have to pay the $3.00 Rate 4 overcharge.             According to
respondent, the passenger gave him the money anyway and said that included her tip (Tr. 104).
At his request, she then wrote a statement, saying, “I was not overcharged. I paid $13.99 + $2
tip” (Resp. Ex. F). Thus, according to the passenger, she paid the full fare, including the Rate 4
portion of the charge. On top of that, she paid a two dollar tip. The passenger made no mention
of respondent refunding her any money. Thus, the only evidence that respondent offered to
corroborate his testimony that he refunded any overcharges to his passengers showed the
opposite.
       Respondent contended that some of the trips on the Rate 4 Database Report (Pet. Ex. 3c)
did not result in overcharges, even though Rate 4 was activated, because Rate 4 was activated for
less than a minute. He asserted that the meter does not increase for intervals less than a minute
(Tr. 122). It was unclear that this was correct, because the unit fare depends on how fast the
taxicab is traveling as well as the distance that it is traveling (Pet. Ex. 3a; Tr. 126-27).
Respondent asserted that trip 3760 on the Rate 4 spreadsheet (Pet. Ex. 3c) showed Rate Code 4
activated at 1:07:01 p.m., 59 seconds before the end of the trip at 1:08 p.m., and asserted that it
was not an overcharge (Tr. 123-24).        Although respondent did not make similar specific
assertions about other trips on the Rate 4 spreadsheet (Tr. 151-52), my examination of the
spreadsheet showed that there were four other trips in which Rate 4 was engaged for less than a
minute before the trip ended: trips number 4126 (Rate 4 engaged 8:36:04 p.m., trip ended
8:36:53 p.m.), 4292 (Rate 4 engaged 10:19:29 p.m., trip ended 10:20:24 p.m.), 4319 (Rate 4
engaged 9:28:16 p. m., trip ended 9:29:08 p.m.), 5367 (Rate 4 engaged 6:40:08 p.m., trip ended
6:40:44 p.m.).
                                               -8-

       Respondent also claimed that he did not overcharge the passenger on trip number 5413,
shown both on the Rate 4 spreadsheet and the more detailed tripsheet report (Pet. Ex. 4), because
the passenger left the car without paying when he was at the light. He did not report the situation
to the police, as the Drivers Rules require, because the police do not want to be bothered (Tr.
156). He testified that he recalled this trip because it was his next to the last trip of February,
2010 (Tr. 130-31). I found respondent’s recall of this particular trip, almost a year ago, to be
surprising. It seemed all too coincidental that of the three trips highlighted on the tripsheet
report, respondent claimed that the passenger had run away without paying on one of them. I
also questioned respondent’s testimony that there was one other incident where the passenger ran
out without paying, which he thought was on the list of Rate 4 overcharges (Tr. 157).
Respondent admitted that he was not sure when this occurred; at best, he believed it was on the
list of overcharges.
       Nonetheless, even giving respondent the benefit of the doubt with regard to the five trips
where Rate 4 was activated for under a minute and the two trips where he claimed the passengers
left without paying, that leaves 91 trips where Rate 4 was activated erroneously. I was not
convinced by respondent’s argument that he mistakenly hit the wrong button, two buttons over
from the “pause” button, time after time, without even bothering to turn on the interior lights.
On January 28, January 29, and January 30 alone, respondent hit the Rate 4 button eleven times
each evening. The sheer volume suggests that this was not an innocent mistake. See Taxi &
Limousine Comm’n v. Dimian, OATH Index No. 225/11 at 3 (Aug. 25, 2010) (“high” frequency
of improper Rate 4 activations was “consistent with deliberate overcharging of passengers”).
Respondent attempted to minimize his activation of Rate 4: “there’s nothing serious about this
thing. It’s just a mistake . . . if we made those mistakes, we settled and there was [sic] no
problems . . . until we began to have problems with the Commission” (Tr. 170-71). As I did not
credit respondent’s testimony either that he innocently activated Rate 4 or that he always
refunded Rate 4 overcharges, his defense was unavailing.
       Respondent’s other arguments were not persuasive. Respondent contended that Rule 2-
34, which prohibits overcharges, does not specifically prohibit Rate 4 charges within the City
limits. Moreover, respondent asserted that Rule 2-35, dealing with “trips beyond the City,” does
not instruct drivers on what to do when they accidentally activate Rate 4 (Tr. 114, 141).
However, Rule 2-34(a) is unambiguous: “A driver shall not charge or attempt to charge a fare
                                               -9-

above the approved rates, as provided by these rules.” Rule 2-35 does not permit activation of
Rate 4 except for trips beyond the City.
       Respondent further contended that petitioner did not present a witness whom he could
question, nor submit any affidavits or complaints from any passengers (Tr. 116-17, 143).
Respondent asserted that the fair thing would be for the Commission to try to locate passengers
which it believed had been overcharged, by going through records of taxi fares paid by credit
card and calling the credit card companies to try to obtain information on the individual
cardholders (Tr. 185-86). However, petitioner met its burden of proof in this civil licensing
proceeding by producing documentation establishing that respondent activated Rate 4 on over 90
trips within New York City limits, during a nine-month period. I did not find respondent’s
defense that he mistakenly activated Rate 4 over 90 times and always reimbursed his passengers
to be credible. The document which respondent produced in support of his claim of
reimbursement instead showed that the passenger paid the full fare, including the Rate 4 fare.
Thus, the Commission was not obligated to try to ascertain the whereabouts of respondent’s
passengers so that respondent could question them at trial about whether he had refunded the
Rate 4 overcharges. See Fung v. Daus, 45 A.D.3d 392 (lst Dep’t 2007) (holding that substantial
evidence, including a chain of custody form, supported finding that driver had tested positive for
an illegal substance, and that there was “no basis” for the driver’s contention that the
Commission should have provided at least one witness for cross-examination); Gordon v. Brown,
84 N.Y.2d 574 (1994) (in administrative proceeding on charges that police officer ingested and
possessed cocaine, due process did not require that police department produce four laboratory
technicians at trial so he could cross-examine each to try to uncover possible human error).
       In sum, petitioner established that respondent overcharged passengers on 91 occasions by
improperly using Rate 4 on trips within city limits, in violation of 35 RCNY section 2-34(a).


                              FINDINGS AND CONCLUSIONS
               1. Respondent was properly served with the petition and notice of
                  hearing.

               2. From May 25, 2009 through February 28, 2010, respondent
                  overcharged passengers on 91 occasions in violation of 35
                  RCNY section 2-34(a).
                                              - 10 -


                                    RECOMMENDATION
       Petitioner seeks revocation of respondent’s license to drive taxicabs and an $850 fine.
That request is appropriate. Rule 2-87 sets forth the penalty for violations of rule 2-34 and also
provides, “Nothing contained herein shall limit or restrict any other authority the Commission
may have to suspend or revoke a driver’s license.” 35 RCNY § 2-87(a)(1). Rule 8-03(b)(ii)
states that, “the Commission may, in its discretion, impose a penalty of license revocation . . .
and/or a fine” not to exceed $1,000 for each violation against a licensed driver. 35 RCNY § 8-
03(b)(ii); see also NYC Admin. Code § 19-505(l).
       Where, as here, a taxi driver has a pattern of intentionally deceiving passengers by using
an unauthorized rate on his meter, license revocation is warranted to protect the riding public.
Taxi & Limousine Comm’n v. Cheema, OATH Index No. 1450/10 at 5 (Jan. 21, 2010) (hack
license revoked where driver acted against the best interests of the public by improperly using
rate 4 and overcharging passengers 574 times within a one-month period).
        Petitioner’s request for an $850 fine, the fine authorized for a first and second
overcharge violation under section 2-87, is also appropriate. See Rule 8-03(b)(ii) (permitting
fines up to $1,000 per violation). Indeed, this tribunal has imposed revocation plus an $850 fine
in numerous similar cases. See Taxi & Limousine Comm’n v. Mangane, OATH Index No.
1333/11 (Jan. 10, 2011) (127 overcharges in 22 months); Taxi & Limousine Comm’n v. Charles,
OATH Index No. 540/11 (Sept. 24, 2010) (102 overcharges in a year); Taxi & Limousine
Comm’n v. Arshid, OATH Index No. 243/11 (Sept. 2, 2010) (108 overcharges in slightly under
two years); Taxi & Limousine Comm’n v. Bilic, OATH Index No. 226/11 (Aug. 23, 2010) (78
overcharges within 15 months).
       Accordingly, I recommend revocation of respondent’s license to drive taxicabs and
imposition of an $850 fine.



                                                       Faye Lewis
                                                       Administrative Law Judge




January 14, 2011
                          - 11 -



SUBMITTED TO:
DAVID YASSKY
Commissioner/Chair
APPEARANCES:
CHARLES TORTORICI, ESQ.
Attorney for Petitioner
CHIJIOKE AJOKU
Self-Represented
                                              - 12 -


Commissioner’s Decision (February 3, 2011)


        A hearing was held on November 9 and December 7, 2010, at the New York City Office
of Administrative Trials and Hearings (“OATH”), on charges brought by the Taxi and Limousine
Commission (“TLC”) that respondent overcharged passengers on 98 occasions. By report and
recommendation dated January 14, 2011, the presiding Administrative Law Judge (“ALJ”) found
that respondent overcharged passengers on 91 occasions, in violation of TLC Rule 2-34(a). The
ALJ recommended that I revoke respondent’s medallion operator license and impose a fine of
$850.

       On January 18, 2011, respondent was mailed a copy of the ALJ’s decision and a letter
advising him of the right to submit a written response within ten days. More than ten days have
passed and respondent has failed to submit any written comments.

       The ALJ found that 91 of the alleged overcharges had been proved, and seven had not
been proved.

        First, the ALJ dismissed five allegations of overcharging because respondent activated
the incorrect rate of fare for less than one minute on each of those trips. The ALJ observed that
it is “unclear” that such brief activation of the incorrect rate of fare would not result in actual
overcharging. In fact, the correct rate of fare depends on both time and distance driven (TLC
Rule 1-70(a)).

        Because the ALJ specifically noted that she was “giving [respondent] the benefit of the
doubt” regarding these five overcharges, I do not construe the ALJ’s ruling on this point to
constitute a legal ruling that establishes a precedent for future cases.

        Second, the ALJ dismissed two allegations of overcharging because respondent
contended that the passengers in those instances left without paying any fare, and therefore no
overcharge occurred. The ALJ specifically noted her suspicion of this defense, a suspicion I
think was altogether well founded. In any event, the ALJ discredited respondent’s claim to have
accidentally activated the incorrect rate of fare. Therefore, even if those two passengers paid no
fare, respondent was guilty of attempting to overcharge them, a clear violation of Rule 2-34(a).
Again, however, because the ALJ’s dismissal of these two allegations was in the context of
giving respondent “the benefit of the doubt,” I am content to leave for another case the question
whether the ALJ should have conformed the charges to the proof and found respondent guilty of
attempted overcharging in those two cases. See, e.g., Dep’t of Parks and Recreation v. Nappa,
OATH Index No. 306/00 (Jan. 25, 2000), modified on findings, aff’d on penalty, Comm’r Dec.
(Feb. 9, 2000); Health and Hospitals Corp. (North Central Bronx Hospital) v. Cross, OATH
Index No. 315/97 (Jan. 27, 1997).

        Given respondent’s violation of Rule 2-34(a) well more than three times within three
years, revocation of his medallion operator license is mandatory and imposition of the maximum
fine of $850 is certainly appropriate. Therefore, I accept the ALJ’s recommendation with regard
to penalty.
                                           - 13 -



       Upon careful review of the record before me respondent’s medallion operator license is
hereby revoked and he is hereby fined $850.


David Yassky
Commissioner

				
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