BenchNOTES Newsletter

BenchNOTES - May/June 2013

Personnel

Correction officer did unlicensed home improvement work.

The Department of Correction charged a correction officer with filing a false report that she used force on an inmate in the presence of supervisors.  The three captains whom she named as witnesses to the incident denied that a use of force occurred. The Department suggested that the officer’s own report was an elaborate concoction. ALJ Ingrid M. Addison noted that the Department’s evidence conflicted and was inconclusive as to what actually occurred.  Accordingly, she found that the Department did not prove its charge against respondent by a preponderance of the credible evidence and recommend its dismissal.   Dep’t of Correction v. Norris (in PDF), OATH Index No. 494/13 (Apr. 5, 2013), OATH Index No. 1368/13 (May 30, 2013).

Licensing

Failure to include license number on website violated agency rule.

The Taxi and Limousine Commission alleged that a taxicab driver verbally harassed a female passenger. The driver argued that his comments to the passenger were not harassment under the State Penal Law and that the Commission was infringing his First Amendment rights. ALJ Faye Lewis determined that a finding of harassment under Commission rules does not require a finding of harassment under the Penal Law.  ALJ Lewis also found that, in the licensing context, the right of free speech is not absolute. Congress and states are permitted to regulate the speech of licensees as a condition of continued licensing.   Taxi & Limousine Comm’n v. Awan/a S-Lawn Care (in PDF), OATH Index No. 1719/13 (May 21, 2013), adopted, Comm’r Dec. (July 8, 2013).

Human Rights

Landlord discriminated by refusing to accept tenants with housing vouchers.

The Commission on Human Rights brought charges against a landlord for posting a discriminatory advertisement and engaging in a pattern of discrimination based on lawful source of income.  At the hearing the Commission was required to establish a prima facie case as the landlord defaulted.  The Commission presented a copy of a craigslist advertisement stating “no programs” and the testimony of an investigator who called the number in the advertisement and was told the landlord was not accepting section 8 housing vouchers.  ALJ John B. Spooner found this was sufficient to sustain the charge of posting a discriminatory ad, but concluded that one web listing was not enough to prove a pattern of discrimination.  He recommended a civil penalty of $10,000.   Comm’n on Human Rights v. Shahid (in PDF), OATH Index No. 1381/13 (May 13, 2013).

Practice and Procedure

The filing of a bankruptcy petition does not prevent a city agency from commencing enforcement action.

In a housing discrimination case brought by the Commission on Human Rights, two real estate brokers pointed to a Federal bankruptcy statute to argue that the filing of a bankruptcy petition prevents the Commission from commencing or continuing any legal proceeding against them.  ALJ Tynia D. Richard found that the Commission could proceed with the charges because of an exception in the same statute, which provides that the filing of a bankruptcy petition does not affect the power of a regulatory agency to enforce government regulations.   Comm’n on Human Rights v. Britati Realty, Inc. (in PDF), OATH Index No. 778/13 (May 21, 2013).

Prevailing Wage

The International Brotherhood of Teamsters (Local 237) filed a complaint seeking a determination of the prevailing wages and benefits for elevator mechanics, supervisor elevator mechanics, and elevator mechanic helpers employed by the City.  The Comptroller made a preliminary determination that elevator mechanics and their supervisors should be paid the same as comparable private sector titles covered by the Local 1 contract and that helpers should be paid the same as helpers covered by the Local 3 contract.   ALJ Alessandra Zorgniotti upheld the Comptroller’s preliminary determination finding that because Local 1 was the prevailing union and had comparable titles, elevator mechanics and supervisors should be paid at Local 1 rates.  However, because there was no comparable permanent helper title in Local 1, the helpers were found to be comparable to the Local 3 helpers.   Office of the Comptroller, ex rel. Local 237 v. Office of Labor Relations (in PDF), OATH Index No 126/13, mem. dec. (Apr. 3, 2013).