Recent Decisions

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

OATH News

ALJ Spooner retires from OATH: In late November, ALJ John Spooner retired from OATH after having served as an Administrative Law Judge since 1989. In his time at OATH, ALJ Spooner issued more than 1,200 decisions and led a range of agency efforts to modernize and improve information technology systems. Mayor de Blasio and Counsel to the Mayor Kapil Longani shared their congratulations.

ALJ appointments: In November, Chief Administrative Law Judge Joni Kletter re-appointed ALJ Noel Garcia to a new term. ALJ Garcia started his career as an Administrative Law Judge at OATH in 2015. In December, Chief ALJ Kletter appointed Joan Salzman to serve as an Administrative Law Judge. ALJ Salzman previously served as an OATH ALJ from 2005 to 2014, and also served as Supervising Judge and Deputy Commissioner.

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 Commission on Human Rights adopted ALJ John B. Spooner’s finding of housing discrimination based on a tenant’s perceived immigration status, but increased the damages awarded to the complainant. The Commission initially brought a discrimination claim at OATH on behalf of a tenant against her former landlord, under the New York City Human Rights Law. The Commission alleged that the Queens landlord sent her tenant a series of text messages referring to her as an “illegal immigrant” and threatening to contact immigration enforcement to have her deported. The Commission also alleged that the landlord retaliated against the tenant after she filed her complaint with the Commission. Based upon the credible testimony of the complainant, corroborated by the text messages, ALJ Spooner recommended damages of $12,000 for emotional distress be awarded to the tenant and a civil penalty of $5,000 be assessed against the landlord.

After reviewing the record, the Commission adopted the finding of discrimination, increased the compensatory damages award to $28,000 based on physical manifestations of emotional distress and the chilling effect acts of retaliation have on other immigrants’ willingness to file complaints, and offered the landlord an opportunity to avoid the civil penalty if she agrees to complete a restorative justice program. The Commission emphasized the importance of restorative trainings and programs in conjunction with monetary damages in order to foster more accountability, discourage future violations of the Human Rights law, and help to repair intra-community relations. Comm’n on Human Rights ex rel. Ondaan v. Lysius, OATH Index No. 2801/18 (Sept. 12, 2019), modified, Comm’n Dec. and Order (Nov. 24, 2020).

Licensing

ALJ Faye Lewis recommended against revoking a Taxi and Limousine Commission license despite a positive marijuana test, finding that the driver had consumed THC in a tea product that is legal under federal law. The driver did not dispute the positive test result but claimed that it was caused by her consumption of Iaso Tea Instant with Full-Spectrum Hemp Extract, a legal substance. ALJ Lewis found that the licensee established the affirmative defense of “innocent ingestion.” She credited testimony from the licensee and her boyfriend that she consumed the tea and does not use marijuana. The licensee also produced a photograph of the tea’s packaging, information on which stated that the product may contain "trace elements" of THC below the federal legal limit of .3%, but that "most drug tests targeting THC will not detect its presence." On review, the TLC Commissioner adopted the recommendation and dismissed the charge. The Commissioner deferred to ALJ Lewis’ judgment as to the adequacy of the proof while noting that respondents continue to bear the evidentiary burden for proving this affirmative defense. Taxi & Limousine Comm’n v. Jimenez, OATH Index No. 2201/20 (Nov. 5, 2020), adopted, Comm’r Dec. (Nov. 30, 2020).

In a case in which the Department of Buildings (“DOB”) charged a general contractor and a subcontractor with negligence, incompetence, failing to cooperate with an investigation, and other charges after a worker fell off a scaffold and died, ALJ Noel R. Garcia recommended revocation of the respondents’ special rigger licenses. ALJ Garcia found the proof showed respondents failed to ensure proper safety practices were followed, and recommended revocation of the licenses. In addition, ALJ Garcia denied a motion to dismiss or stay the proceeding because one of the respondents had pending summonses before the Environmental Control Board (“ECB”) purportedly based on the same scaffold violations, finding that the charges and penalties sought did not overlap. Dep’t of Buildings v. Bellet & Bhutta, OATH Index Nos. 438/20 & 439/20 (Nov. 9, 2020), adopted, Comm’r Dec. (Nov. 18, 2020).

Sick Leave Law

An action was brought by the New York City Department of Consumer and Worker Protection against a security services company and its owner for violating the Earned Safe and Sick Time Act by failing to provide sick time to employees, firing employees in retaliation for taking sick time and failing to provide employees with written notice of their rights. ALJ Joycelyn McGeachy-Kuls dismissed allegations of workplace-wide violations based upon the testimony of a single worker, finding that the agency had not established a prima facie case for workplace-wide violations. (In an earlier decision, ALJ McGeachy-Kuls denied the Department’s motion to reconsider her dismissal of those charges.) ALJ McGeachy-Kuls sustained the charges relating to the worker who testified about his employer’s actions, and recommended payment to the employee of $6,648.24 in lost wages and $4,000 in civil penalties. Dep’t of Consumer and Worker Protection v. J&O Security Services, Inc. and Osagie, OATH Index No. 2830/18 (Nov. 5, 2020).

Personnel

ALJ Ingrid M. Addison recommended a 30-day suspension of a Human Resources Administration employee following a physical encounter with a co-worker, use of aggressive language and expletives, and creating a disturbance that resulted in the NYPD being called to respond to the agency’s workplace. The NYPD responded to the call and determined that the matter should be handled in-house, and the agency filed this disciplinary proceeding. ALJ Addison found that the employee had created a disturbance in the workplace and wasted City resources, in violation of HRA’s Code of Conduct. Finding no mitigation for respondent’s conduct, ALJ Addison recommended a 30-day suspension without pay. Dep’t of Social Services (Human Resources Admin.) v. Thompson, OATH Index No. 1598/20 (Nov. 2, 2020).

Vehicle Retention

In a proceeding filed by the NYPD to retain a vehicle seized as the alleged instrumentality of a crime, ALJ Kara J. Miller determined that the NYPD failed to demonstrate reasonable suspicion for the initial vehicle stop. The vehicle was seized following the respondent’s arrest for criminal possession of a loaded firearm and illegal possession of marijuana. The NYPD relied upon the arrest report, complaint report, and criminal court complaint to show probable cause for respondent's arrest and seizure of the vehicle. None of the NYPD’s exhibits, however, provided the reason for stopping respondent’s car, which is a necessary element to prove probable cause existed for the arrest and seizure of the vehicle. ALJ Miller ordered the NYPD to release the vehicle to the respondent. Police Dep’t v. Hudson, OATH Index No. 721/21, mem. dec. (Nov. 19, 2020).

Appeals Division

The Appeals Division affirmed a hearing officer’s decision finding that the respondent had illegally altered her one-family home for occupancy as four single-room-occupancy hotel rooms. While respondent argued that the lack of locks on the room doors was a defense to the charge, the Appeals Division noted that although the presence of locks establishes a rebuttable presumption that no common household existed, there was evidence of independent living in this case, such as the tenants’ admissions that they rented individual rooms, the storage in the rooms of personal effects typically found in common areas (such as appliances and food), and ads on Booking.com which advertised the rental of “hotel rooms,” each with its own distinct features, options, and terms for private, individual stays. DOB v. Chang Liu, Appeal No. 2000762 (Nov. 12, 2020).

The Appeals Division affirmed a hearing officer’s decision finding that the Department of Buildings failed to establish a violation by a contractor for failing to report an accident where it called DOB on the date of the accident but did not notify them via e-file as directed in a DOB guidance document. The Appeals Division agreed that the guidance document lacked the force of law in the same manner as the Administrative Code and the Building Code and rules promulgated under those codes. DOB v. Lavada & Rubin Dev and Co, Appeal No. 2000783 (Nov. 12, 2020).

The Appeals Division reversed a hearing officer’s decision that a court-appointed individual or entity responsible for managing dangerous private building could not be subject to violations issued by the Fire Department. The Appeals Division found that under the Fire Code, violations may be issued to anyone directly or indirectly in control of property, including receivers, trustees, and assignees of rents, and that the court order appointing an administrator directed him to use the rent collected to remedy violations issued by City agencies. FDNY v. Fernando Alfonso 7A Administrator, Appeal No. 2000886 (Nov. 12, 2020).