Recent Decisions

The following is a summary of some recent OATH decisions decided in *November 2019*.  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

Petitioner immediately suspended respondent taxi driver’s license after being notified of his arrest for assault and criminal possession of a weapon. At a post-suspension hearing to determine whether the suspension should continue, ALJ Kevin F. Casey applied the federal court decision in Nnebe v. Daus, which requires an individualized assessment as to whether the criminal charges, if true, show that reinstatement of the taxi driver’s license would pose a direct and substantial threat to the public health or safety. Relevant considerations include “the conduct underlying the complaint and the driver’s history and characteristics.” Nnebe v. Daus, 931 F.3d 66, 82 (2d Cir. 2019). ALJ Casey found that petitioner failed to prove that respondent posed a continuing “direct and substantial threat” to the public’s health or safety. ALJ Casey noted that respondent testimony, corroborated by witnesses, established that respondent was attacked first by drunken party-goers in his own home, that respondent defended himself, and that respondent called the police first. In addition, respondent presented unrefuted evidence of an unblemished TLC driving record, that in the five years he worked as a full time driver for TLC, he had never been accused of threatening or assaulting a passenger, and maintained a 4.88 Uber rating. ALJ Casey recommended the summary suspension be lifted. Taxi & Limousine Comm’n v. Singh, OATH Index No. 701/20 (Nov. 1, 2019), adopted, Comm’r Dec. (Nov. 19, 2019).

A registered architect was charged with making false statements on 254 departmental forms, when he falsely stated that he was the principal or director of a special inspection agency. Administrative Law Judge Noel R. Garcia found that respondent did not intentionally make false statements, rather, it was based on a genuine misunderstanding of the rules, causing him to commit the same mistake on each form. ALJ Garcia noted that while respondent had a duty to know the rules pertaining to special inspections, it was significant that DOB had accepted the incorrectly filled forms without objection for six years. In making the penalty recommendation, ALJ Garcia found mitigation in the fact that respondent has never been subject to discipline over a thirty-year career. ALJ Garcia therefore recommended revocation of self-certification privileges and the filing of TR-1 forms related to special inspections. The Department of Buildings Commissioner increased penalty to include disqualification from conducting special inspections, permanent exclusion from the Department’s programs for limited supervisory check, and prohibition from filing any documents with the Department for three years. Dep’t of Buildings v. Tartaglione, OATH Index No. 2063/19 (Nov. 6, 2019), modified on penalty, Comm’r Dec. (Nov. 27, 2019).

In fitness proceeding, taxi driver was found to have tested positive for marijuana. Respondent did not dispute the test result, rather, he claimed that his ingestion was lawful because he obtained marijuana as a qualified patient under the New Jersey Medical Marijuana Program, and he supported that claim with corroborating documents. The New Jersey and New York statutes are similar, with comprehensive enforcement mechanisms, identical policy concerns, and inclusion of legal protections for certified medical marijuana patients. Petitioner argued that its policy requires that a driver who uses medical marijuana do so under the requirements of the New York Compassionate Care Act, which requires a New York medical marijuana card. ALJ Faye Lewis found that because respondent is not a New York resident, he is ineligible for medical marijuana under the New York law. She concluded that TLC’s argument would preclude drivers who live out of state from legally obtaining medical marijuana, placing an unfair burden on out of state drivers who wish to drive in New York. ALJ Lewis therefore recommended the charges should be dismissed because respondent’s ingestion of marijuana was legal under the New Jersey law. Taxi & Limousine Comm’n v. M.N., OATH Index No. 169/20 (Nov. 1, 2019), adopted, Comm’r Dec. (Nov. 25, 2019).

Personnel

Respondents, three correction officers and a captain, clad with helmets which had visors and side flaps, responded to an incident between another officer and an inmate. As they were escorting the inmate, he turned and spat at the other officer. Two respondents who were beside the inmate, immediately took him down, causing his face to hit a row of chairs. Relying on a video of the incident, petitioner claimed that the other officer punched the inmate in retaliation for being spat upon, and charged respondents with filing false reports by not reporting a use of force. ALJ Ingrid M. Addison recommended dismissal of the charges, finding that petitioner’s evidence neither established that the inmate was struck by the other officer or that respondents witnessed a use of force which they failed to report. Dep’t of Correction v. Smith, OATH Index Nos. 2526/19, 2527/19, 2528/19 & 198/20 (Nov. 12, 2019).