Recent Decisions

The following is a summary of some recent OATH decisions decided in *January 2021*.  To ascertain whether the OATH judges' recommendations were adopted by the referring agency, please call OATH's calendar unit at 1-844-628-4692.

OATH News

MEND NYC gets international recognition: The MEND NYC mediation program, a collaboration of OATH and the Office of Nightlife within the Mayor’s Office of Media and Entertainment, was featured among the “Global Nightlife Wins of 2020” by Nighttime.org, which called the program “an innovative and essential alternative to formal enforcement, which can cause financial hardship and erode trust.” For more information, click here. The program was also featured in the Mayor’s Office of Media and Entertainment’s 2020 highlights report.

OATH announces new Administrative Justice Resource training program: On January 7, OATH launched the Administrative Justice Resource program in the Bronx, to provide training to elected officials’ and nonprofit organizations’ staff about how to identify and address clients’ civil summonses at OATH. OATH was joined by Council Member Fernando Cabrera and representatives from Good Shepherd Services.

OATH text-messaging reminders: OATH’s text-messaging reminder program, launched last year, has continued to gain new users. If you have a hearing coming up at OATH, get text message reminders about your hearing date by texting “OATHreminder” to (917) 451-8829.

COVID-19 update
Pursuant to an order of the Chief Administrative Law Judge, all hearings, trials, and other OATH operations are being conducted by telephone, videoconferencing, online, or mail, and OATH will only allow in-person appearances in limited, pre-approved circumstances. Individuals may only enter OATH offices if the agency has approved your or your representative’s request because there is a compelling need for an in-person proceeding and the proceeding can be conducted while providing sufficient social distancing and other public health protections to comply with state and local government public health guidelines. For more information, read OATH's public flyer.

OATH Trials Division

Featured agency decision

In a recent decision, the New York City Conflicts of Interest Board (“COIB”) adopted a report by ALJ Kara J. Miller, recommending a fine of $15,000 on a former member of the New York City Council and current New York State Senator. The Report finds that then-Council Member James Sanders, Jr. accepted valuable gifts and services on 18 occasions from Margert Community Corporation ("Margert"), a not-for-profit housing organization doing business with the City. Margert received $841,000 in discretionary funding from the City Council which was sponsored by Mr. Sanders, Jr. Part of the discretionary funds were used for trips to the Poconos and a dinner cruise around Manhattan for senior citizens living in Mr. Sanders, Jr.'s district. Mr. Sanders, Jr. and several family members attended these trips to the Poconos and accepted free accommodations at a luxury resort as well as free tickets to a September 2011 dinner cruise in violation of the City Conflicts of Interest Law.

The COIB agreed with ALJ’s Miller’s findings that the free hotel accommodations and dinner cruise tickets constituted valuable gifts and that respondent's argument that his family members were serving as volunteers at the senior events was pretextual. ALJ Miller found that their attendance did not serve a government purpose. Although the COIB noted that the market value of an accommodation may be considered with respect to penalty, it adopted ALJ Miller’s method of calculating the value of the prohibited gifts based on the discounted group price because it was a standard volume discount available to large groups. Conflicts of Interest Bd. v. Sanders, Jr., Conflicts of Interest Bd. Case No. 2017-110 (Dec. 8, 2020), adopting, OATH Index No. 0747/19 (Dec. 17, 2019).

Personnel

An OATH ALJ recommended termination of employment for a job opportunity specialist at the Department of Social Services (Human Resources Administration) for making discourteous and threatening statements towards staff members both at the workplace and on social media, culminating with making a statement, that “I’m going to shoot up this place.” The employee was placed on pre-trial suspension for 30 days shortly after making that statement, but he continued to post several discourteous statements regarding his HRA Director and co-workers on his non-private personal Instagram account, including using racial epithets. ALJ Noel R. Garcia determined that the offending statements were not protected speech under the First Amendment as they were not expressed in the role of a private citizen regarding a matter of public concern. Further, the employee did not take any responsibility for his actions or express any regret. Because he had a significant prior disciplinary record, ALJ Garcia recommended termination of employment. Dep’t of Social Services (Human Resources Admin.) v. Miles, OATH Index No. 1432/20 (Dec. 10, 2020).

An OATH ALJ recommended a 55-day suspension of a correction officer for using impermissible and unnecessary force against an inmate and submitting a false report about the incident. Based on testimony from an investigator, a surveillance video, and documentary evidence, ALJ Kevin F. Casey found that the correction officer entered a holding cell, put his hands around an inmate’s neck, elbowed the inmate in the head, and then held the inmate’s face to the floor. ALJ Casey also found the officer filed a false report by omitting details of the force used by his fellow officers. Taking into consideration the officer’s unblemished prior disciplinary record, ALJ Casey recommended a penalty of 55 days’ suspension without pay. Dep’t of Correction v. Thompson, OATH Index No. 2232/19 (Dec. 2, 2020).

Licensing

ALJ Susan J. Pogoda recommended a continued suspension of a Taxi and Limousine Commission license where the driver was arrested and charged with assault in the third degree against his landlord’s wife, following a rent dispute. At trial, the TLC offered evidence of respondent’s prior guilty plea to a passenger complaint of unsafe driving which resulted in respondent hitting a parked vehicle. ALJ Pogoda considered the record as a whole and found that the that driver’s arrest for assault in the third degree reflected negatively upon his fitness to safely interact with members of the public and warranted continued suspension of his TLC license. Taxi & Limousine Comm’n v. Amrani, OATH Index No. 271/21 (Dec. 16, 2020).

An OATH ALJ recommended the continued suspension of a Taxi and Limousine Commission license after the driver’s license was summarily suspended following his arrest for criminal mischief. The TLC argued that continued suspension was appropriate while the criminal charges were pending because the driver’s continued licensure would pose a direct and substantial threat to public safety. At trial, the driver did not deny that he had a verbal argument with another driver and member of the public, which resulted in damage to the other driver’s vehicle. ALJ Susan J. Pogoda noted that TLC licensees often interact with passengers and other drivers and, when disputes arise, licensees are expected to refrain from any type of violence and to maintain self-control and professionalism according to their job duties. ALJ Pogoda found that positive feedback from passengers does not diminish the risk to public safety posed by continued licensure, and recommended that respondent’s license suspension continue. Taxi & Limousine Comm’n v. Singh, OATH Index No. 644/21 (Dec. 17, 2020). NOTE: Following issuance of the OATH report and recommendation, the TLC lifted the suspension of the driver’s license based on a reduction in the criminal charges.

Appeals Division

The Appeals Division reversed a hearing officer’s decision finding that the respondent had failed to comply with the Governor’s Executive Orders and State guidance prohibiting non-essential construction during the COVID 19 health emergency. The respondent was expanding the existing supermarket at his property and building out space for a new tenant, a pharmacy, which involved the installation of fire and sprinkler systems. The Appeals Division credited the respondent’s claim that on the date of violation, workers were in the middle of installing the systems, and that not finishing this work would endanger the supermarket’s customers and employees. Absent any evidence that the respondent was performing any other work to build out space for the pharmacy, the Appeals Division concluded that the respondent was performing emergency work that was exempt from emergency restrictions. Dep’t of Buildings v. Matthew Halloran, Appeal No. 2000966 (Dec. 10, 2020).

The Appeals Division affirmed a hearing officer’s finding that the respondent unlawfully engaged in price gouging by selling or offering to sell 25 bottles of hand sanitizer and a box of cold medication at an excessive price during a declared state of emergency. An “excessive price” is one that is 10% or more than the price offered for the same or similar good to buyers in New York City in the 30 to 60 day period before the Mayor’s March 12, 2020, Executive Order declaring COVID-19 a health emergency (i.e., between January 12, 2020 and February 11, 2020). Here, the hand sanitizer sold by the respondent was 279% to 499% more than the Department of Consumer and Worker Protection’s comparative product prices, and the box of cold medication was 26% to 78% more than DCWP’s comparative product prices. The Appeals Division held that while the prices of comparative products offered by DCWP at the hearing were from March 23, 2020, through April 28, 2020, the stark contrasts in price in this case allowed for a reasonable inference that the respondent’s prices were 10% or more above the prices at which the same or similar goods could have been purchased from January 12, 2020, through February 11, 2020. The Appeals Division found that the respondent engaged in price gouging because its prices were “excessive” under the law. Dep’t of Consumer and Worker Protection v. All Rx Pharmacy II Inc., Appeal No. 20N00110 (Dec. 14, 2020).

The Appeals Division reversed a hearing officer’s decision finding that the respondent’s act of obtaining a permit for plumbing and gas work was within the scope of allowing, authorizing or promoting work, in violation of a Department of Buildings stop work order. Instead, the Appeals Division held that merely applying for a permit while a stop work order was in place was insufficient to constitute a violation unless actual work is performed. Here, although the respondent sought and obtained a permit that authorized work that would have violated the stop work order had it been performed, the Department of Buildings did not allege that work had been conducted. Dep’t of Buildings v. P.H. Works INC, Appeal No. 2001003 (Dec. 10, 2020).