Recent Decisions - November 2013

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

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Licensing

In a summary suspension hearing, respondent, a taxicab driver, asserted that his off-duty arrest for DWI does not prove his continued licensure is a direct and substantial threat to the public. Respondent testified that he has no prior alcohol-related arrests, that he has been a taxi driver since 1991 without incident, and that neither his TLC license nor his DMV license has ever been suspended. Respondent also introduced the report of a clinical psychologist who concluded after an evaluation that he was a well-functioning individual who had no prior issues with alcohol and no prior alcohol-related criminal history, did not meet the diagnostic criteria for alcohol dependence or abuse, and therefore did not need treatment. She further noted that respondent related that he had not consumed any alcohol since his arrest and stated that he has neither the time, income, nor inclination to drink frequently or to excess. ALJ Faye Lewis found that a continued threat to public safety was not inherent in the facts of respondent’s arrest, where respondent testified and put forth an expert opinion to counter the argument that his continued licensure would pose a direct and substantial threat to the public health or safety, and, considering the evidence put forth by respondent, recommended lifting the suspension.   Taxi & Limousine Comm’n v. Nau, OATH Index No. 985/14 (Nov. 22, 2013).

In a summary suspension hearing, the Taxi & Limousine Commission sought to continue the suspension of a medallion driver who was arrested for leaving the scene of an accident. Since respondent entered no evidence asserting that he was not a risk to the public, ALJ Tynia D. Richard found that leaving the scene of an accident reflected negatively on the driver’s fitness and integrity and recommended continued suspension of the medallion driver’s license. Taxi & Limousine Comm’n v. Al-kafi, OATH Index No. 580/14 (Nov. 7, 2013), adopted, Comm'r Dec. (Jan. 2, 2014).

Personnel

Correction officer was arrested as a result of a drug bust operation. After criminal charges against the officer were dismissed, Department of Correction (DOC) brought a disciplinary proceeding against the officer accusing him of knowingly driving a family friend to a drug transaction and subsequently possessing cocaine in his car. ALJ Kevin F. Casey found that DOC failed to prove that the officer knew he was driving a family friend to purchase drugs or that the officer knowingly possessed the drugs later found in his car. ALJ Casey recommended the dismissal of the charge. Dep’t of Correction v. Perry, OATH Index No. 265/14 (Nov. 22, 2013).

Correction officer admitted to using excessive force by stomping on an inmate's head after the inmate had been subdued with his face to the floor and his hands cuffed behind his back. Respondent's actions caused the inmate to sustain lacerations to his chin and loss of a front tooth. As mitigation, respondent asserted that on his way to work, he learned that his best friend had been murdered, and that this news upset his equilibrium. Finding that neither disruptive behavior by the subdued inmate nor the murder of respondent's friend, if true, was mitigation for respondent's conduct, ALJ Ingrid M. Addison recommended termination of his employment. Dep’t of Correction v. Agbai, OATH Index No. 156/14 (Nov. 25, 2013), adopted, Comm'r Dec. (Jan. 2, 2014).

The Department of Environmental Protection brought disciplinary charges against a project manager for working longer than his 7-hour shift, reporting late to a storehouse, and falsely stating that he made a vehicle damage report. ALJ John B. Spooner found that respondent worked longer than a 7-hour day and recommended a one-day suspension. ALJ Spooner dismissed the other charges, noting that petitioner’s counsel displayed some animus toward respondent and his efforts to defend himself. ALJ Spooner noted that discipline of one of respondent's witnesses for appearing early at the tribunal on the day of her testimony was “extraordinary” and may have been intended to punish the witness or to discourage her from testifying. Dep’t of Environmental Protection v. Berlyavsky, OATH Index No. 181/14 (Nov. 26, 2013), rejected in part, Comm’r Dec. (Dec. 26, 2013) (adopting sustained charge, rejecting dismissal of other charges, and increasing penalty to 30-day suspension without pay).

The Department of Sanitation alleged that a sanitation worker kicked a supervisor in the groin then slapped him in the face, disobeyed a direct order, refused to submit to substance use tests, and was discourteous to a drug testing vendor by calling him a "pecker checker." ALJ Kara J. Miller found that respondent failed to submit to only one substance use test, but upheld all other charges and recommended termination of employment based on respondent’s unprovoked physical attack of his supervisor in conjunction with respondent’s pattern of insolent, obscene, and aggressive conduct. Dep’t of Sanitation v. Anonymous, OATH Index No. 1888/13 (Nov. 12, 2013), adopted, Comm'r Dec. (Dec. 4, 2013).

Prevailing Wage

The Office of the Comptroller charged that the respondents failed to pay the prevailing rate of wages and benefits to four employees on two public works contracts with the New York City Health and Hospitals Corporation. The respondents failed to appear at the hearing. Finding that the underpayment was willful and that respondent had deliberately falsified payroll records, ALJ Astrid Gloade found respondent liable for the underpayment at the maximum interest rate of 16% and the maximum civil penalty, 25% of the total violation. ALJ Gloade recommended debarment from all governmental contracts within New York State for five years. Office of the Comptroller v. Decoma Building Corp., OATH Index No. 2154/13 (Nov. 18, 2013).

Real Property

Owners of a single room occupancy building applied for a certificate of no harassment. The record showed that the owners repeatedly told one tenant he had to move out within a short period of time because the building had been sold and the new owner wanted the building vacant, and that the owners failed to make prompt repairs with the intent to cause another tenant to vacate his unit. ALJ Faye Lewis recommended that the application be denied. Dep’t of Housing Preservation & Development v. McFaddin, et. al., OATH Index No. 2327/13 (Nov. 8, 2013).