Recent Decisions

The following is a summary of some recent OATH decisions decided in *January 2020*.  To ascertain whether the OATH judges' recommendations were adopted by the referring agency, please call OATH's calendar unit at 1-844-628-4692.

Licensing

The Taxi and Limousine Commission (“Commission”) suspended respondent driver’s license based on pending criminal charges. Respondent attempted to request a hearing by calling the telephone number the Commission provided for such requests, but was provided inaccurate information by Commission representatives and was able to schedule a hearing only after he retained counsel who directly contacted the Commission attorney who handled summary suspension hearings. ALJ Astrid B. Gloade found that petitioner’s failure to hold a hearing within ten days of the driver’s initial request, as required by the Commission’s rules, warranted granting respondent’s motion to dismiss. Reinstatement of respondent’s TLC Driver License recommended. Taxi & Limousine Comm’n v. Singh, OATH Index No. 1245/20 (Jan. 30, 2020), adopted, Comm’r Dec. (Feb. 5, 2020)

An operator of a mobile food commissary, which supplies mobile food vendors, was charged with operating without the required permit. ALJ John B. Spooner found the Department of Health and Mental Hygiene established not only that the commissary had been operating without a permit for months, but also had flagrantly violated the Health Code as documented in repeated inspections. Also, the commissary operator had simply removed Department orders of closure and continued operating as usual after each of these inspections, and had paid none of $20,300 in fines owed to the Department. Padlocking and sealing of business recommended. Dep’t of Health and Mental Hygiene v. King of Halal Corp., OATH Index No. 1153/20 (Jan. 10, 2020).

A licensed taxi driver, charged with failing a drug test, asserted an innocent ingestion defense. ALJ Spooner found the driver did not establish the defense by a preponderance of the evidence. The driver’s testimony failed to establish that the hookah pipe contained marijuana. Also, the driver’s witness failed to corroborate many of the details of the driver’s testimony, including who drove home from the party in question. License revocation recommended. Taxi & Limousine Comm’n v. Ouedraogo, OATH Index No. 945/20 (Jan. 15, 2020), adopted, Comm’r Dec. (Feb. 4, 2002).

Personnel

Employee charged with excessive absence, and remaining on the job site against her supervisor’s orders on 76 occasions, raised a whistleblower defense. ALJ Noel R. Garcia found the employee failed to make out the defense because the reports the employee made were factually unconnected to the employee’s long periods of absence without leave, and were not the sole reason for disciplinary action. Petitioner also proved that the employee did not provide medical documentation in connection with her absence, and had not sought treatment until nearly four months after the beginning of her absence in 2018, nor did the treatment establish that her absence was caused by her mental health condition. Termination of employment was recommended. Dep’t of Social Services v. Anonymous, OATH Index No. 2055/19 (Jan. 7, 2020).

Respondent employee was charged with failing both a random drug test and a follow-up test about a month later. ALJ Ingrid M. Addison found no mitigation in respondent’s explanation for his use of marijuana, and in light of the Department’s zero-tolerance policy, recommended respondent’s termination from his employment. Fire Dep’t v. Robinson, OATH Index No. 1004/19 (Jan. 24, 2020).

Contracts

In a dispute arising from a $116 million contract to rehabilitate infrastructure at a sewage treatment plant, the contractor sought an additional $48,421.14, claiming the agency’s directive to clean each channel “in its entirety” was extra work. Based upon the agency’s response to a pre-bid question, the contractor claimed it only had to clean the channels to a level that would allow for safe entry of its workers and for the performance of the work. The Contract Dispute Resolution Board (“CDRB”), chaired by ALJ Faye Lewis, found ambiguity in the agency’s response, which was made part of the contract. The contract also required bidders to clarify any ambiguity before bidding, providing that if a bidder did not do so, it would be assumed that it calculated the cost according to the most expensive way of doing the work. Because of the contractor’s failure to clarify the ambiguity, the CDRB found for respondent and dismissed the petition in its entirety. Jett Industries Inc. v. Dep’t of Environmental Protection, OATH Index No. 2087/19, mem. dec. (Jan. 16, 2020).