Recent Decisions - October 2015

The following is a summary of some recent OATH decisions decided in October 2015.  To ascertain whether the OATH judges' recommendations were adopted by the referring agency, please call OATH's calendar unit at 1-844-628-4692.

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Licensing

The Business Integrity Commission (BIC) alleged that a data shredding contractor collected trade waste without a BIC license in violation of the city trade waste law. The contractor made a pre-trial motion to dismiss BIC's enforcement action under the city law as preempted by federal and state law. ALJ Faye Lewis denied the motion. Analyzing the legislative history, she found that Congress did not intend to preempt local regulation of the curbside collection and transport of recyclable materials, including recyclable paper. She also concluded that the contractor failed to demonstrate that the city law was preempted by the state law. Although the City law adds an additional layer of regulation, the contractor did not show that the two levels of regulatory oversight could not co-exist.    Business Integrity Comm'n v. Data Shredding Service, Inc., OATH Index No. 2204/15, mem. dec. (Oct. 14, 2015).

In a license revocation proceeding, ALJ Ingrid M. Addison sustained charges that respondent taxi driver: refused to take passenger going to Astoria, Queens, and demanded that the passenger get out; exited the taxi, and opened the passenger door in an attempt to get the passenger out of the vehicle; and attempted to use force to extract the passenger. ALJ Addison recommended that respondent's license be revoked and that he be assessed a $2,000 fine.    Taxi & Limousine Comm'n v. Rustemi, OATH Index No. 279/16 (Oct. 29, 2015),adopted, Comm'n Dec. (Nov. 24, 2015).

ALJ Tynia D. Richard sustained charges that taxi driver acted against the public interest and used force against a passenger when he demanded that the passenger, who got sick in the taxi, provide her contact information and grabbed her arm and purse when she exited the cab without paying the fare. Noting the driver's clean record and recent decisions of the TLC that found mitigation in instances where force was used, ALJ Richard recommended a three-month suspension and a fine of $1,500 rather than license revocation.    Taxi & Limousine Comm'n v. Ogieva, OATH Index No. 0034/16 (Oct. 5, 2015).

Personnel

ALJ Alessandra F. Zorgniotti found that a correction officer violated the Department's use of force directive on two occasions by using unnecessary force on inmates who were restrained and also filing a false report. ALJ Zorgniotti recommended termination of employment.   Dep't of Correction v. Dixon, OATH Index No. 156/16 (Oct. 23, 2015).

The Department failed to show that an environmental police officer engaged in misconduct when he complained to a supervisor about being denied the day off on a holiday, and when with his supervisor's consent, he repeated his complaint to his co-workers. ALJ Kevin F. Casey recommended dismissal of the charges.  Dep't of Environmental Protection v. Dorste, OATH Index No. 2686/15 (Oct. 26, 2015).

ALJ Astrid B. Gloade found that an off-duty correction officer brandished his firearm while intoxicated during an altercation outside of a night club and failed to cooperate with the police during his arrest. The recommended penalty was termination of employment.    Dep't of Correction v. Santos, OATH Index No. 1349/15 (Oct. 26, 2015).

ALJ Kara J. Miller recommended dismissal of charges that a juvenile counselor permitted two juvenile residents to fight, conspired with other juvenile counselors to allow the juveniles to fight, committed a security breach by withdrawing from the area where fight took place, submitted a false report regarding the incident, and made false representations during an investigative interview. However, ALJ Miller found that respondent failed to take appropriate measures to safeguard the non-participating residents. Noting that respondent has never been formally disciplined during her eight-year tenure, ALJ Miller recommended that respondent be suspended for 15 days.   Admin. for Children's Services v. Hutchinson, OATH Index No. 1562/14 (Oct. 29, 2015).

A quality assurance specialist assigned to manage school bus routes was charged with incompetence and insubordination when on multiple occasions he improperly modified bus routes and failed to communicate changes to school and bus personnel. The specialist's mistakes resulted in students missing a day of classes and in multiple routers working overtime to correct his errors. ALJ John B. Spooner sustained all of the charges and he recommended termination of the specialist's employment.   Dep't of Education v. Thompson, OATH Index No. 2135/15 (Oct. 7, 2015).

Prevailing Wage

ALJ Spooner found that an electrical contractor willfully failed to pay 14 workers the prevailing rate of wages and supplementary benefits for work projects at three public schools. He recommended restitution to the workers with interest, that contractor be assessed a civil penalty of 25%, and be barred from bidding on future public work contracts within New York State for five years.   Office of the Comptroller v. Scott Electrical Service LLC, OATH Index No. 2056/15 (Oct. 14, 2015), adopted, Comptrollers Determination & Order (Oct. 30, 2015).