Recent Decisions

The following is a summary of some recent OATH decisions decided in *August 2017*.  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

In a default proceeding, ALJ John W. Burns issued civil penalties of $16,850 against respondent tow truck company and $3,500 against respondent tow truck operator, who was the company's manager. Respondents unlawfully towed a properly parked vehicle from private property, overcharged customers, refused to accept credit cards from three separate customers, unlawfully booted a vehicle, and violated record-keeping, reporting, and licensing requirements. ALJ Burns also ordered $351 in restitution to the complaining consumers, revocation of the tow truck company's license, and a 20-day suspension of the tow truck driver's license.    Dep’t of Consumer Affairs v. Riverdale Towing Associates, Inc., OATH Index No. 1848/17, mem. dec. (Aug. 3, 2017).

The Taxi and Limousine Commission ("TLC") suspended respondent’s TLC driver’s license following his arrest for unlawfully soliciting ground transportation services at an airport. After a summary suspension hearing, ALJ Ingrid M. Addison recommended that the suspension of respondent’s license pending the outcome of the criminal matter be lifted, finding the evidence insufficient to establish that continuation of respondent’s license during the pendency of the criminal case would render a direct and substantial threat to the public safety, even if the charge were true. ALJ Addison found that the criminal charge pending against respondent was not of the same nature as the non-exhaustive list of 18 enumerated charges in the applicable TLC rule, the commission of which would undoubtedly pose a direct and substantial threat to the public.    Taxi & Limousine Comm’n v. Crow-Martinez, OATH Index No. 0084/18 (Aug. 18, 2017).

The Taxi and Limousine Commission charged a licensee with unfitness for testing positive for codeine. ALJ Joycelyn McGeachy-Kuls found that the licensee established the affirmative defense of unknowing ingestion and recommended dismissal of the charge. The licensee, who had a prescription for Percocet, explained that he kept his medication in the same cabinet as his mother’s Tylenol-Codeine and photographs demonstrated the near identical appearance of both the pills and their respective pill bottles. After being notified of the failed drug test, the licensee faxed his prescription for Percocet to Doctors Review Services, knowing that he had taken medication the night before the test and reasonably assuming that Percocet was the controlled substance he tested positive for. ALJ McGeachy-Kuls found that the evidence indicated a very strong likelihood that the licensee unknowingly took his mother’s Tylenol-Codeine instead of his prescribed Percocet.    Taxi & Limousine Comm’n v. Alexiadis, OATH Index No. 0053/18 (Aug. 24, 2017), adopted, Comm’n Dec. (Sept. 1, 2017).

Human Rights

ALJ Susan J. Pogoda recommended dismissal of a complaint that respondent refused to provide a cooperative apartment rental application to complainant based on her race, color and national origin. Complainant, a black Haitian American woman, alleged that after she viewed an available apartment and expressed her interest in it, respondent, a white Russian Jewish woman, never provided her with an application. The evidence established that respondent’s brother had asked to move in to the apartment within days of the complainant viewing it and respondent’s brother did in fact move into the apartment. ALJ Pogoda found that respondent articulated a non-discriminatory reason for not providing a rental application to complainant and petitioner failed to show that reason was a pretext for discrimination.    Comm’n on Human Rights ex rel. Lissade v. Baron, OATH Index No. 188/16 (Aug. 25, 2017).

Real Property

The Department of Buildings sought to close the premises on the ground that it was being used for commercial and manufacturing purposes in violation of the Zoning Resolution. ALJ Kara J. Miller found the premises is located in a R7-1 area, which permits Use Group 6 retail stores but not retail custom awning shops, which are Use Group 7 or awning manufacture, which is Use Group 17. Respondent acknowledged that it was an awning sign company, but claimed that the awnings were manufactured elsewhere and that it was using the premises solely as a Use Group 6 retail store, as permitted by the Certificate of Occupancy. ALJ Miller found that the proof, including respondent’s statements, established that while the awning frames are fabricated off the premises, the frames are wrapped with fabric on the premises. Noting that an awning is not complete until it is covered in fabric, ALJ Miller found that respondent turned bare metal frames into awnings on premises, which constitutes impermissible Use Group 7 and 17 activities. She recommended closure of the premises under the Padlock Law.    Dep’t of Buildings v. 1275 Edward L. Grant Highway, Bronx, New York, OATH Index No. 1075/17 (Aug. 1, 2017).

Personnel

ALJ Addison recommended that respondent, a bridge and tunnel officer, be terminated from his employment after being found guilty of attempting to engage in forcible sexual intercourse with his former girlfriend, and causing her physical injury while doing so. Respondent pled guilty to Assault in the Third Degree, a Class A misdemeanor, was sentenced to a one-year conditional discharge, and a five-year Order of Protection was issued against him. Bridge and tunnel officers are peace officers and ALJ Addison found respondent’s conduct to be contrary to his responsibilities as a peace officer. In addition, respondent failed to promptly notify his employer of his conviction and sentence.    Triborough Bridge & Tunnel Auth. v. Jones, OATH Index No. 1229/17 (Aug. 29, 2017), adopted, Pres. Dec. (Sept. 15, 2017).

ALJ Addison recommended a 20-day suspension without pay for a job opportunity specialist who engaged in disrespectful and intimidating behavior. The respondent loudly confronted the director of her work location to complain about her supervisor, used inappropriate and offensive language, and refused to leave the director’s office after she was instructed to do so. On another occasion the respondent snatched a document from, pointed her finger, and yelled at her supervisor. Additionally, petitioner established that respondent failed to follow her supervisor’s instructions on three occasions.    Human Resources Admin. v. Carrington, OATH Index No. 2307/17 (Aug. 15, 2017).