Recent Decisions

The following is a summary of some recent OATH decisions decided in *September 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

The Taxi and Limousine Commission ("TLC") summarily suspended a taxicab driver’s license upon his arrest for leaving the scene of an accident. A trial was held to determine whether to continue the suspension until the criminal charge is resolved. Respondent’s testimony, corroborated by telephone records and his trip sheet, showed he made diligent efforts to report the accident and exchange information with the other party before respondent left the scene and returned to work. Administrative Law Judge Joycelyn McGeachy-Kuls found that the TLC did not show that respondent posed a threat to public safety and she recommended restoration of his TLC license.   Taxi & Limousine Comm’n v. Stallworth, OATH Index No. 467/18 (Sept. 26, 2017).

A taxi driver who tested positive for marijuana claimed that he did not knowingly use the drug. He testified that he spent years working as a translator for poppy eradication program in Afghanistan, is a student who works to support his family, and does not use illegal drugs. He explained that he smoked flavored tobacco at a hookah bar the night before the drug test and that someone before him must have smoked marijuana using the same pipe. ALJ Faye Lewis noted that unknowing ingestion is an affirmative defense which must be closely scrutinized. On the unique facts presented, Administrative Law Judge Lewis found the licensee met his burden and she recommended dismissal of the charge.   Taxi & Limousine Comm’n v. Salim, OATH Index No. 0094/18 (Sept. 15, 2017), adopted, Comm’r Dec. (Sept. 25, 2017).

Vehicle Retention

Administrative Law Judge McGeachy-Kuls ordered the Police Department to release a car that it had seized in connection with the owner’s arrest. The Police Department did not show it served the car owner with notice of his right to a hearing at the time of the arrest, as required by federal court order.    Police Dep’t v. Barizone, OATH Index No. 585/18, mem. dec. (Sept. 19, 2017).

The Police Department seized a car following the driver’s arrest for reckless endangerment and other crimes. The driver’s mother sought return of the car as an innocent owner. The son testified that he occasionally takes the car without his mother’s permission and that he has access to the keys because they are hung on the door. Administrative Law Judge Ingrid M. Addison found the mother allowed her son unfettered access to her car and was not an innocent owner. The Department is entitled to retain the car pending a civil forfeiture action.   Police Dep’t v. Welsh, OATH Index No. 616/18, mem. dec. (Sept. 20, 2017).

Personnel

An agency attorney who worked in lower Manhattan was charged with AWOL when she did not report to a new workplace in the Bronx for over 13 months and failed to respond to notices regarding her absence. The attorney claimed she was afraid to report to the Bronx workplace because she personally handled disciplinary cases involving employees at that location. A psychologist who testified on respondent’s behalf opined that she suffered from depression and anxiety related to her reassignment. Petitioner’s psychiatrist testified that respondent did not exhibit signs of severe anxiety or depression. ALJ Astrid B. Gloade found the conflicting medical evaluations of limited value as they were completed after the AWOL period. ALJ Gloade was not persuaded that respondent’s mental health prevented her from responding to department notices or reporting to work for over 13 months. Nor did she credit respondent’s contention that the relocation threatened her safety, as respondent’s supervisors confirmed that security measures, including security guards, department police officers and panic buttons, were in place. Termination of employment recommended for long, unexplained AWOL.    Dep’t of Homeless Services v. Anonymous, OATH Index No. 1653/17 (Sept. 19, 2017).

Contracts

Six contractors were charged with willfully failing to pay prevailing wages and benefits to workers performing renovation and demolition work at several public schools. Five contractors settled before trial, and trial proceeded against the remaining subcontractor. Administrative Law Judge Noel R. Garcia found that testimony and a sworn complaint, corroborated by documentary evidence, proved the subcontractor underpaid three workers. He also found that the subcontractor had falsified certified payroll records and that the violations were willful. Respondents are liable for the amount of the underpayment, plus interest. ALJ Garcia also recommended imposition of a civil penalty of twenty-five percent and five-year debarment; because the prime contractors agreed to pay full amount of subcontractor’s underpayments and part of its civil penalty as part of prime contractors’ settlements, Comptroller ruled that subcontractor did not have to compensate workers for its underpayments and the Comptroller reduced the amount of the subcontractor’s civil penalty.    Office of the Comptroller v. Sukhmany Construction, Inc., OATH Index No. 936/16 (Sept. 1, 2017), modified on penalty, Comptroller’s Determination and Order (Oct. 17, 2017).