Recent Decisions - January 2013

The following is a summary of some recent OATH decisions decided in January 2013.  To ascertain whether the OATH judges' recommendations were adopted by the referring agency, please call OATH's calendar unit at (347) 820-4954.  

Personnel

The Department of Correction charged a correction officer with fighting with another officer, using profane language, leaving her post, and bringing an unauthorized bag near her post. ALJ Kara J. Miller found that the Department proved all of the charges except the claim that respondent engaged in a physical altercation with another officer. The testimony showed that, at most, respondent may have pushed past the other officer rudely and brushed against her. ALJ Miller did not find this to be misconduct. She recommended a penalty of a 15-day suspension with credit for time served.   Dep’t of Correction v. Peterson (in PDF), OATH Index No. 2095/12 (Jan. 11, 2013).

Licensing

Food cart vendor licenses and permits are not transferable under the NYC Administrative Code. ALJ John B. Spooner found that a vendor violated the Code when he contracted to rent his license and cart to an individual without a vendor’s license for two years for $10,000. Finding that respondent committed a flagrant violation, ALJ Spooner recommended revocation of the licensee’s food vendor permit and license.   Dep’t of Health & Mental Hygiene v. Castillo (in PDF), OATH Index No. 1119/13 (Jan. 13, 2013), adopted, Comm’r Dec. ((Feb. 21, 2013).

The Business Integrity Commission charged a sewer contractor with the unlicensed collection of trade waste in the form of excavated dirt. The contractor sought dismissal of the charge, alleging that the address of the occurrence identified in the notice of violation (“NOV”) was incorrect. ALJ Astrid B. Gloade found that even if the NOV stated the wrong address of the occurence, the error was not fatal because the NOV provided respondent with enough information to prepare a defense and because a wrong address did not refute the charge that respondent collected trade waste without a license. The contractor asserted the Commission failed to meet its burden of proving the contractor had collected excavated dirt. The Commission’s photographs did not show collected dirt at the scene or within respondent’s vehicle, and a Commission inspector who was at the scene for twenty minutes testified that he did not personally observe excavated dirt in respondent’s truck. ALJ Gloade found that the Commission failed to meet its burden of proof and recommended that the matter be dismissed.   Business Integrity Comm’n v. Liberty Water & Sewer, LLC, (in PDF), OATH Index No. 983/13 (Jan. 25, 2013).

Licensed carters of trade waste are required to file an annual financial statement with the Business Integrity Commission. ALJ Joan R. Salzman found that the licensee had received proper notice of the hearing, but failed to appear and the matter proceeded by inquest. The Commission’s evidence – including documents and the testimony of an auditor who searched for the required filing – demonstrated that the licensee failed to file as required. In the absence of any defense or mitigation, ALJ Salzman recommended a fine of $10,000.   Business Integrity Comm’n v. KNA Waste Removal, Inc. (in PDF), OATH Index No. 1325/13 (Jan. 30, 2013).

An individual was charged with hauling broken concrete without a license or an exemption from the licensing requirement. The inspector who wrote the NOV testified that he saw pieces of concrete inside respondent’s van, which was parked near a demolished sidewalk. The inspector also testified that respondent told him he was doing a job for his son’s construction company and that he was taking the concrete to a waste station. Respondent did not deny those facts but argued that he was unaware of the licensing requirements to haul construction debris and promised not to do it again. ALJ Alessandra F. Zorgniotti found the argument unpersuasive in light of respondent’s testimony that he has been in the construction business for 25 years. She noted that ignorance of the law is not an excuse, and found that the Commission sustained the charge. ALJ Zorgniotti recommended a $5,000 fine as respondent failed to put forward any mitigating circumstances.   Business Integrity Comm’n v. Chrostowski (in PDF), OATH Index No. 1064/13 (Jan. 7, 2013), adopted, Comm’r Dec. (Jan. 23, 2013).

Practice and Procedure

Three tenants who filed rent-setting applications with the Loft Board failed to appear for a hearing on the applications. The hearing was marked final against them after a prior default, a re-scheduling of the hearing, and new notices of the hearing being mailed to them.  ALJ Ingrid M. Addison recommended dismissal of their applications for failure to prosecute their claim.    Matter of Nocera (in PDF), OATH Index Nos. 480/13 & 482/13 (Jan. 18, 2013).