Recent Decisions - October 2013

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

The documents below are in PDF format. Download the Adobe Reader now.

Personnel

Respondent, a Bridge and Tunnel Officer, was charged with misconduct for his role in a fight at a car wash. Respondent approached a car wash employee, said his car was damaged and asked to speak to a supervisor. When the employee balked, respondent shoved the employee. Several employees surrounded respondent. When two advanced on him, respondent displayed his firearm. ALJ Kara J. Miller found that, given respondent’s peace officer status, he could be disciplined for initiating a physical altercation, even though he was off-duty. ALJ Miller recommended dismissal of a charge that respondent improperly displayed his weapon, finding the officer objectively feared for his safety when the workers advanced on him. She credited the officer’s testimony that he did not place his finger on the trigger and that he re-holstered his weapon when the employees retreated. A 30-day suspension without pay was recommended.   Triborough Bridge & Tunnel Auth. v. Francis, OATH Index No. 825/13 (Oct. 10, 2013).

A sanitation worker was charged with accepting a $40 gratuity from undercover investigators in exchange for disposing of approximately 12 black garbage bags containing trade waste. The bags were in the back of a pickup truck driven by the investigators, who approached respondent on his route. ALJ Faye Lewis found that the Department did not prove that the worker knew the bags contained construction debris, but held that he knew or should have known the bags did not likely contain household garbage. Thus, the worker violated the trade waste directive by disposing of more than six bags of construction debris without supervisory approval. Finding that respondent's partner played the dominant role in the transaction and respondent played only a secondary role, ALJ Lewis recommended 30 days’ suspension.   Dep’t of Sanitation v. Ferguson, OATH Index No.1571/13 (Oct. 17, 2013), modified on penalty, Comm’r Dec. (Nov. 14, 2013)(adopting 30-day suspension and adding transfer from current work location for 5 years).

ALJ Kevin F. Casey recommended dismissal of charges that a sanitation worker had vandalized a garbage truck parked in a department garage. The Department of Sanitation proved that the truck was vandalized, but it did not prove that respondent was the culprit. The Department relied upon testimony from investigators who recorded video of the garage from the rooftop of an adjacent building, late at night. The sound of broken glass could be heard on the video, but nobody was visible because it was too dark. ALJ Casey found that the investigators, inside a car, behind a guard rail, had a limited opportunity to identify the person who damaged the truck. Nor did the Department rebut respondent’s alibi evidence, including video, showing that respondent was at a 7-Eleven at the time of the incident. Dep’t of Sanitation v. Ambrosino, OATH Index No.1572/13 (Oct. 7, 2013).

Licensing

The Business Integrity Commission (“BIC”) charged respondent with parking a vehicle licensed to transport trade waste on a City street for more than one hour while not in use, in violation of BIC rules, which require licensees to provide off-street parking for their vehicles when not in use. At the hearing, respondent argued that he has a multi-use vehicle which was in use at the time, but not for trade waste collection. ALJ Ingrid M. Addison found that respondent's argument did not permit him to violate the BIC rule, and she sustained the charge. The ALJ recommended a $250 fine, rather than the $1,000 petitioner sought, given respondent’s credible, albeit incorrect interpretation of the rule. Business Integrity Comm’n. v. H. L. General Contractors, Inc., OATH Index No. 759/14 (Oct. 21, 2013).

The Taxi and Limousine Commission brought a discretionary license revocation proceeding against a taxicab driver, alleging that the driver hit a member of the public on the head and made an obscene gesture to her with his middle finger. ALJ Astrid Gloade credited the complainant’s testimony and sustained the charges. ALJ Gloade recommended revocation of the driver’s license and a $1,500 fine. Taxi & Limousine Comm’n v. Ockiya, OATH Index No. 127/14 (Oct. 21, 2013).

Vehicle Retention

The Police Department sought to retain respondent’s vehicle seized in connection with his arrest for driving while under the influence of alcohol. ALJ Raymond E. Kramer ordered the Department to return the car, finding that it did not show that retention of the car was necessary to prevent a risk to public safety. ALJ Kramer noted that a single arrest for driving while intoxicated, without more, is insufficient to demonstrate a heightened risk to public safety. Neither respondent's prior history nor the circumstances of his arrest demonstrated a heightened risk. Rather, respondent's need for the car to perform his job and to make frequent trips to the emergency room for his two children, who suffer from serious medical conditions, established the opposite. Further, a restricted driver’s license issued to respondent by a state court judge supported the finding that he is not a heightened safety risk. Police Dep’t v. Romeo, OATH Index No. 682/14, mem. dec. (Oct. 24, 2013).

Human Rights

The Commission on Human Rights filed a motion seeking to declare respondents in default for failing to timely file an answer to its complaint, which alleged respondents engaged in gender discrimination. ALJ Alessandra F. Zorgniotti granted the Commission’s motion in accordance with OATH’s Rules of Practice. The ALJ also granted respondents’ motion to vacate the default judgment after finding that respondents showed “good cause” for failure to file an answer and alleged a “meritorious defense” to the complaint. Accordingly, she granted respondents leave to file a verified answer. Comm’n on Human Rights v. Xio Lounge, OATH Index No. 2150/13, mem. dec. (Oct. 28, 2013).