Taxi _ Limousine Comm'n v. Nitram Cab Corp

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					          Taxi & Limousine Comm’n v. Nitram Cab Corp.
 OATH Index No. 2809/08 (Aug. 4, 2008), adopted, Comm’r/Chair’s decision (Sept. 8, 2008),

              Agency alleged that medallion owner failed to comply with a
              directive to identify the driver who was the subject of a Com-
              mission investigation until a hearing some two months after the
              directive was sent. ALJ held that, even though the proof of service
              was inadequate to establish that the original directive was properly
              served on respondent, respondent’s admitted failure to supply the
              requested information within 10 days after petition was received
              established a violation and warranted a $200 fine.

              Commissioner/Chair adopts ALJ’s recommendation.              Chair
              overrules Appeals Unit decision ALJ had (properly) followed and
              finds the directive was served in compliance with Commission rule
              8-05 and further, proof of actual notice [made here] is a complete
              substitute for proof of technically correct service.
                           NEW YORK CITY OFFICE OF

                                   In the Matter of
                       TAXI AND LIMOUSINE COMMISSION
                               NITRAM CAB CORP.

                       REPORT AND RECOMMENDATION
JOHN B. SPOONER, Administrative Law Judge
       Petitioner, the Taxi and Limousine Commission, brought this proceeding alleging that
respondent, Nitram Cab Corp., failed to comply with a Commission directive to submit proof as
to the identity of the driver of taxicab medallion number 3H78 on May 11, 2008.
       Respondent’s attorney appeared for a hearing at this tribunal on July 14, 2008. He
requested and was granted additional time to comply with the directive and to consider whether
to accept a settlement offer. He appeared again on July 24, 2008, submitted an affidavit and
records complying with the previous directive, and argued that respondent was now in full
compliance and should not be fined.

       For the reasons set forth below, I find the evidence sufficient to prove that respondent
failed to comply with a valid Commission order and recommend that a fine in the amount of
$200 be imposed on respondent.

       Medallion owners are required to comply with directives from the Commission and its
representatives. Section 1-68(a) of the owners’ rules provides:
       An owner shall promptly answer and comply with all questions, communications,
       directives and summonses from the Commission or its representatives and the
       NYC Department of Investigation or its representatives.

35 RCNY § 1-68(a).
       According to the Commission records (Pet. Ex. 1), on May 23, 2008, the Commission
investigation unit sent respondent a written directive to submit, within 10 days, or by June 6,
driver’s information and a trip sheet for a taxicab with medallion number 3H78 regarding an
incident that occurred at 9:47 p.m. on May 11, 2008 (see Pet. Ex. 2). In a memo (Pet. Ex. 1),
Director Herman Perez noted that, as of June 19, 2008, nothing had been received by the
investigation unit. Therefore, on June 23, 2008, petitioner’s attorney mailed out the petition and
notice of hearing, notifying respondent that it had violated Commission rules by failing to supply
the requested information. The petition repeated the warning that respondent faces suspension of
its medallion license until it complies with the investigation unit directive. The letter scheduled a
hearing for July 14, 2008, at which, respondent’s attorney appeared and obtained a ten-day
adjournment. At the adjourned hearing on July 24, respondent’s attorney appeared once more
and submitted an affidavit and records from Nitram, which petitioner’s attorney conceded fully
complied with the May 23 demand from the investigation unit.
       The issue here is whether respondent’s submission of the requested information on July
24, two months after it was initially ordered to do so, establishes a violation warranting a
mandatory $200 fine. As to this issue, respondent’s attorney challenged the sufficiency of
petitioner’s proof that the May 23, 2008 directive was properly served by the investigation unit.
Petitioner’s proof consisted of a photocopy of a blank affidavit form with a certification stamp
(Pet. Ex. 5). This stamp states, “I certify that this is a true copy of an affidavit inserted by me in
an envelope addressed to the named respondent at the address set forth thereon and deposited in
the normal course of business with the TLC Mail Service.” The stamp then bears illegible

initials and a date of “5/23/08.” In addition, in his memo (Pet. Ex. 1), Director Perez states, “The
directive was certified, signed and mailed by Investigator Lamar McPhail on May 23, 2008.”
        Pursuant to Commission rules, a notice must be served by “personal service,” “first class
mail in a postpaid envelope addressed to the last mailing address filed with the Commission,” or
“personal service on the driver.” 35 RCNY § 8-05(a). Petitioner contended that the certification
here demonstrated proper service and that respondent was on notice of the Commission order to
supply records as of a few days after May 23. Since the evidence showed that he failed to submit
the records until July 24, some two months later, he was in violation of the rules and should be
subject to the standard fine of $200 for this violation. See 35 RCNY §§ 1-68(a), 1-86.
        Respondent asserted that the certification from petitioner failed to establish that the forms
were actually mailed on July 24. In this regard, respondent’s attorney submitted a copy of a
decision from the Commission’s appeals unit, Taxi & Limousine Comm’n v. RP 44 Limo, Inc.,
TLC Appeal No. 5254827 (June 9, 2008). In this decision, Commission Appeals Judge Geanine
Towers affirmed an ALJ’s determination that the certification language of delivery to the “TLC
Mail Service” was inadequate in two ways: by failing to show the document was mailed by
“first class mail,” as required by Commission rule 8-05(a)(ii), and also by failing to establish the
date of mailing. The appeals judge therefore held that the ALJ had properly dismissed the
original summons.1 This decision was cited and followed in at least two subsequent appeals
decisions. Taxi & Limousine Comm’n v. Wang Min, TLC Appeal No. 5229633 (June 26, 2008);
Taxi & Limousine Comm’n v. U.S. Royal Transit Inc., TLC Appeal No. 5225107 (June 24,
2008). In U.S. Royal Transit, the certification was found to be defective for the additional reason
that it failed to demonstrate mailing to the licensee’s last address of record.                    Two recent
decisions of this tribunal also have found this Commission certification to be insufficient,
standing alone, to establish service of a notice of hearing. See Taxi & Limousine Comm’n v.
DSW Cab Corp., OATH Index No. 285/09 (July 28, 2008); Taxi & Limousine Comm’n v.
Louissaint, OATH Index No. 286/09 (July 28, 2008).
        Respondent insists that, based upon this persuasive precedent, there is insufficient
evidence to hold that the May 23, 2008 directive and blank affidavit were ever served on
respondent. Respondent offers no evidence in support of its attorney’s claim that it did not
receive the May 23 directive. Nor does respondent contest proper service of the June 23, 2008

 According to the attorneys in the instant case, this decision has been followed in many, but not all, of the ALJ
decisions issued since June 9.

petition and notice of hearing, since its attorney appeared at the initial hearing. Respondent does
argue that the absence of proof that it received the May 23 papers and its filing of the required
response on July 24 prevents a finding that it did not comply with a Commission directive.
       I must agree with respondent that, based upon the Commission appeals unit decision as
well as upon a reading of the certification language, the certification of delivery to a “TLC Mail
Service” is insufficient to establish that identified documents were mailed by “first class mail” as
required by the Commission rules. It is true that this certification has apparently been used for
many years by Commission staff. It is also true that, as ruefully pointed out by petitioner’s
attorney, prior to the hearing in the instant case, this certification had been accepted as proof of
proper service by mail in numerous default decisions issued by this tribunal. However, the fact
that the language of the certification has never been challenged or litigated previously does not
shield it from attack here. Indeed, the plain language of the certification, that the signator
deposited the document with the agency mail service, demonstrates only that an agency
employee placed the document in a location where he or she assumed someone else would pick it
up and mail it. While there may have been ample justification for the employee’s confidence
that a co-worker would deposit the document in the mail, no evidence was offered on this issue
either in RP 44 Limo or in the case before me.
       The statement in Mr. Perez’s memo that the directive was mailed by Investigator McPhail
is also insufficient to establish mailing. On its face, this statement appears to be made on the
basis of Mr. Perez’s review of the written certification by Investigator McPhail of delivery to the
Mail Service. There is no indication that Mr. Perez actually witnessed the investigator deposit
the envelope in a mail box and thus no independent basis to conclude that the directive was
actually sent by first class mail as required.
       For these reasons, I find that the proof here was inadequate to show that respondent was
served with or received the May 23 directive from the investigators.
       Since respondent does not dispute receiving and being on notice of the directive by virtue
of the June 23 petition and notice, the issue remains as to whether the filing of the required
documents some 30 days later on July 24 constituted a violation of the rule. Notably, the only
timeliness requirement in rule 1-68 is that compliance be “prompt.” Furthermore, the petition
alleged that respondent failed to submit the required affidavit by June 6 and enclosed a copy of
the May 23 directive, stating that the affidavit must be supplied within 10 days and that failure to
submit the document within this time may result in a fine. Respondent’s attorney then appeared

on July 14, adjourned the hearing for 10 days, and then, without further explanation, produced
the requested documents 10 days later on the adjourned hearing date of July 24.
        Under these circumstances, the production of these documents did not comply with the
time limit of 10 days given in the written directive from the investigations unit, which respondent
admits receiving soon after June 23. Moreover, I conclude that submitting the documents nearly
30 days after receiving an order to produce them in 10 days does not constitute “prompt”
compliance as required by rule 1-68.
        I therefore find that respondent is in violation of rule 1-68, as alleged.

                                 FINDING AND CONCLUSION
               Respondent failed to comply with a TLC order to provide
               information relevant to an investigation, in violation of 35 RCNY
               sections 1-68(a)(1) and 1-86.

        The penalty for the charge proved is a fine of $200, as requested by counsel for
petitioner.   See 35 RCNY § 1-86.          In the absence of any mitigating facts, respondent’s
unexplained delay in complying with the official directive of the Commission’s investigation
unit warrants the requested fine. Accordingly, I recommend that a $200 fine be imposed.

                                                               John B. Spooner
                                                               Administrative Law Judge
August 4, 2008

Attorney for Petitioner

Attorney for Respondent

Taxi & Limousine Comm’n Comm’r/Chair’s Decision, September 8, 2008

MATTHEW W. DAUS, Commissioner /Chair


Dear Sir/Madam:

        Pursuant to TLC Rule 8-02(c), a hearing was concluded on July 24, 2008, as a result of
your failure to comply with a directive to submit an affidavit identifying the driver who was
operating Medallion 3H78 on May 11, 2008. After hearing the evidence presented, the presiding
Administrative Law Judge ("ALJ") recommended that a $200 fine be imposed for failure to
comply with the directive.
        You were given the opportunity to comment on the ALJ's report and recommendation,
and your attorney, Peter M. Mazer, Esq., submitted a response dated August 22, 2008. Mr.
Mazer maintained that, because the case was not brought to seek revocation of your license, but
instead was brought to seek the imposition of a fine, the ALJ's decision is not reviewable by me.
However, section 8-02(c) of the Commission's rules expressly provides that any case that is
referred to the Office of Administrative Trials and Hearings, as this one was, is to be decided by
report and recommendation to me.
        In any event, I agree with Judge Spooner's assessment of the case and accept his
recommendation that you be fined $200. I write this decision to clarify the standard governing
the service of notices and directives pursuant to section 8-05 of the Commission's rules.2

         This case involves service of a directive, not of a summons or petition that commences an administrative
adjudication-although both are governed by the same Commission rule, at least in cases before the Commission's
Adjudications Tribunal. There is a separate question whether OATH's rules or the Commission's rules apply to
service of the petition that commences the Commission's case before OATH. The Commission's adjudication rules
include provisions governing the manner of service (35 RCNY §8-05), but the Commission's rules do not include a
separate provision specifying how service must be proved. The Commission's rules do provide that a case referred to
OATH shall be governed by OATH's rules (35 RCNY §8-02(c)).

        As to manner of service, OATH's rules provide:

        Service of the petition shall be made pursuant to statute, rule, contract, or other
        provision of law applicable to the type of proceeding being initiated. Absent any
        such applicable law, service of the petition shall be made in a manner reasonably
        calculated to achieve actual notice to the respondent. Service by certified mail,
        return receipt requested, contemporaneously with service by regular first-class
        mail, shall be presumed to be reasonably calculated to achieve actual notice.

(48 RCNY § 1-23(b)). As to proof of service, OATH's rules require only that such proof be "[a]ppropriate" (id.).

         Relying on an appeals decision rendered by the Commission's Adjudications Tribunal,
your counsel argued at the hearing before Judge Spooner that service of the directive at issue in
this case did not comply with section 8-05, and Judge Spooner agreed. Nonetheless, Judge
Spooner correctly concluded that the service issue is moot, because it is undisputed that you
received actual notice of' the directive after it was served (Report and Recommendation, p. 4).
Given Judge Spooner's discussion of a line of decisions from the Commission's Appeals Unit
that I conclude are erroneous, clarification of the issue is warranted.
         Preliminarily, I note that Judge Spooner correctly referred to Appeals Unit decisions for
guidance in construing an applicable Commission rule, absent decisional precedent from a higher
authority. In this instance, however, I disagree in two respects with the Appeals Unit decisions
construing section 8-05 of the Commission's rules.
         The lead Appeals Unit decision on this point is Taxi and Limousine Commission v. RP 44
Limo, Inc., Appeal Decision No. 5254827 (June 9, 2008). In that case, the appeals judge
reasoned as follows:
        Such notice must be sent according to Rule 8-05 in a properly addressed envelope, with
First Class postage prepaid, and mailed to the respondent licensee at his last address filed with
the Commission. In the instant case, while [sic] the certification on the back of the summons is
signed and dated by a TLC employee, and the shield number next to the signature adequately
identifies the employee. However, the certification does not specify "first class mail," or "last
mailing address filed with the Commission," as required by Rule 8-05(a) (ii). Service of the
summons was therefore improper.

        Moreover, the ALJ held alternatively that the certification of service was incomplete
because there was no statement in the certification setting forth the day upon which the summons
was actually mailed. That finding is correct. The date next to the signature, in the mail
certification on the instant summons, merely reflects the date upon which the signatory made the
certification. That date is not meaningful for due process purposes. The date of placing the
summons in the US mail is highly significant, as that date determines whether and when the
respondent licensee had reasonable notice of the hearing.

          Therefore, because the Commission's rules provide that OATH's rules apply generally to Commission cases
before OATH, and OATH's rules provide that the Commission's rules apply to service of the petition, there is a
significant question which agency's rules apply to service of the petition. There is also a significant question
whether OATH’s incorporation of the Commission's rule on “[s]ervice of the petition” is limited to the
Commission's rule on the manner of service, or also includes the Commission's rule, if any, on proof of service of a
petition. Decision of those questions is deferred to a case in which service of a petition, not a notice, is at issue.

TLC v. RP 44 Limo, p. 2.
         I conclude that the appeals judge erred in two respects, both stemming from an
inappropriately technical approach to the Commission's proof of service. First, the appeals judge
erred in finding that the proof of service in that case did not adequately demonstrate that service
had been made by first-class mail. Second, the appeals judge erred in finding that the proof of
service in that case did not adequately demonstrate that the mailing had been timely done.3
         The affidavit of service in that case attested that the summons had been placed on a
particular date in a depository maintained for pick-up by the Commission's mail room. In my
view, this was sufficient proof of both the fact that the summons was mailed by first-class mail,
and the fact that the summons was mailed on the day it was placed in the depository or within
one business day thereafter.
         The mail room exists for the sole purpose of handling mail.                                The mailroom's
responsibility for outgoing mail can be meaningfully served only if it regularly processes
outgoing mail promptly.
         In response to the Appeals Unit decision in TLC v. RP 44 Limo, the Commission began
placing in the record of each case an identical affidavit of service attesting that the mail room's
regular practice is to process outgoing mail promptly, no later than one business day after it is
deposited for collection by the mail room, and to the fact that the mail room's regular practice is
to deposit mail with postage for first-class delivery.
         I see no value to filing identical copies of this affidavit over and over. Instead, I think it is
appropriate to take notice that the mail room's regular practice is to deliver outgoing mail to the
United States Postal Service promptly after it is deposited by operational staff or collection. “It
would have been pointless to require the government to produce a mail room employee to testify
to what is already implicit in [the attorney's] statement; when letters go into the mail room's box
for U.S. mail service, the mail room generally sends those letters by U.S. mail-that's why they
call it the ‘mail room.’” United States v. Rivas, 493 F.2d 131, 143 (3dCir. 2007), cert. denied,

  Although not at issue in this case, I disagree with the appeals judge in a third respect. Where proof of service is
insufficient, as opposed to where service is insufficient, the appropriate remedy of first resort is not dismissal of the
case. Instead, at least as a general matter, the Commission should be afforded the opportunity to supplement its
proof, by documents or testimony, as it might choose.

128 S. Ct. 929 (2008). I also think it is appropriate to take notice that the mail room's regular
practice is to do mailings by first-class mail delivery. Finally, I think it appropriate to afford the
Commission the benefit of the presumption of regularity-a rebuttable presumption that placement
of an envelope for collection and mailing by the mail room resulted in the first-class mailing of
that envelope by the next business day. Nassau Insurance Company v. Murray, 46 N.Y.2d 828,
386 N.E.2d 1085, 414 N.Y.S.2d 117 (1978). See also Residential Holding Corp. v. Scottsdale
Insurance Co., 286 A.D. 2d 679, 729 N.Y.S.2d 776 (2d Dept. 2001). Badio v. Liberty Mut. Fire
Ins. Co., 12 A.D.3d 229, 230 (lst Dept. 2004)
        In this connection, I note that federal civil practice permits the certification by an attorney
that she caused a document to be mailed-that is, certification by an attorney that she initiated a
chain of events the ordinary result of which would be the first-class mailing of the document. I
trust that the sufficiency of federal judicial protections of the rights of parties to civil litigation is
not subject to serious dispute.      I see no practical reason that more should be required in
administrative adjudication before the Commission or before OATH.
        Finally, it bears emphasis that actual notice is always sufficient. The purpose of service
in administrative practice is not jurisdiction, but notice. Drolet v. N. Y. State Racing and
Wagering Bd., 115 Misc. 2d 7, 453 N.Y.S.2d 361 (Sup. Ct. Nassau Co. 1982). Therefore, where
actual notice is achieved, constitutional due process guarantees are satisfied, and technical
defects in service - including failure to make service in accordance with agency rules – are
irrelevant. E.g., Reda v, Department of Health, 137 Misc. 2d 61, 519 N.Y.S.2d 774 (S. Ct. N.Y.
Co. 1987), aff'd, 143 A.D.2d 1073, 533 N.Y.S.2d 411 (1st Dep't 1988); Drolet v. New York State
Racing and Wagering Board, 115 Misc.2d 7, 453 N.Y.S.2d 361, 363 (S. Ct. Nassau Co. 1982).
As OATH has observed, "Service of administrative pleadings is not a chess game, with victory
awarded to the cleverest tactician." Department of Buildings v, Owner, Occupants and
Mortgagee of 31 West 11th Street, New York, OATH Index No. 990/94 (Aug. 26, 1994), aff’d,
BSA No. I65-94-A, reprinted in 80 Bulletin of Bd.of Stds and Apps. 193 (May 4, 1995), aff'd
sub nom. Hiesinger v. City of New York, NYLJ, Nov. 6, 1996, p. 26, col. 1 (S. Ct. N.Y. Co).
        Therefore, proof of actual notice is a complete substitute for proof of technically correct
service. Proof of actual notice may take a number of forms. Perhaps foremost, proof of actual
notice of a hearing might consist of the obvious inference to be drawn from a respondent's
appearance at the time and place scheduled for the hearing. Where as in this case the respondent
is a licensee, actual notice may be rebuttably presumed from proof of mailing to the respondent's
                                                - 10 -

address then on file with the Commission (35 RCNY § 8-05(a)(ii); Human Resources Admin. v.
Rice, OATH Index No. 455/93 (Mar. 1, 1993), citing Department of Housing Preservation and
Development v. Graham, OATH Index No. 362/85, report and recommendation at 8 (Dec. 23,
          My construction of the Commission's rule has several beneficial results. First, it adheres
to a fundamental premise of administrative law that substance should be honored over
technicality. Second, it eliminates the unnecessary filing of repetitious form affidavits that recite
what I have stated here-that the Commission's mail room exists for the purpose of sending out
the agency's mail, and that the mail room's regular practice is to fulfill its purpose responsibly.
Third, it conforms the requirements for proof of service before TLC's tribunal to the
requirements that would apply to the same case, or to a case filed by any other agency, before
OATH.        And fourth, it restores the long-prevailing practice before the Commission's
Adjudications Tribunal. See. e.g., Taxi and Limousine Commission v. Khan, Lic. No. 3A60
          I concur with Judge Spooner's finding that you failed to comply with a Commission
directive, and with his recommendation that you be fined $200 for that violation.

MATTHEW W. DAUS, Commissioner/Chair, NYC Taxi & Limousine Commission

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