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Taxi & Limousine Commission v. Jorge A. Pacheco, Lic. No. 865061

DECISION

The appeal of the Taxi & Limousine Commission (the “Commission”) is granted.

The decision of the Administrative Law Judge (the “ALJ”) is reversed. The matter may be scheduled for a new hearing.

BACKGROUND

On May 15, 2008, the Commission appealed ALJ Daniel Kuzyk’s decision dated May 5, 2008. In that decision, the ALJ dismissed the Rule 6-15A(2)[1] violation stated in summons number 0000841K.

The ALJ’s decision states, in relevant part:

Upon a hearing the above summons is dismissed inasmuch as proof has been offered to this court that the respondent’s wife had been at the DMV prior to March 8, 2008 to pay summons DMV ticket #AAG2824441, but was told that her husband was required to make payment. On [March] 8th, 2008 the respondent mailed his check #1460 to the DMV in the sum of $130. On March 12, 2008, the above TLC summons issued for a DMV suspension as pertains to above mentioned DMV summons. On March 13, 2008, the wife went to the DMV with $125 in cash and paid that ticket. On March 31, 2008, the DMV returned the respondent’s check #1460 with the notation that the c[h]eck payment was returned because the case had been satisfied and closed.

Under these circumstances, and with the attempted payment by the respondent of the DMV summons, which proof has been exhibited, this court feels that the above TLC summons should be dismissed. Check payment was made, and then a duplicate cash payment was rendered. The mix-up of events does not warrant, in this court’s mind, the issuance of the above TLC summons. Accordingly, same is dismissed.

On appeal, the Commission asserts, in relevant part:

Respondent was stopped for driving with a suspended chauffeur’s license. It was not disputed that his DMV license was suspended. According to his testimony, on March 8, 2008, his wife went to DMV to pay for the DMV ticket but she was unable to pay it and was told that her husband’s presence was required. He then mailed a check to DMV. On March 12, 2008, this summons was issued and the Respondent’s wife went to DMV to pay for the DMV ticket on March 13, 2008, a day after the summons was issued. The same wife who was not allowed to pay for the ticket on March 8, 2008 was allowed to pay it on March 13, 2008, a day after TLC summons was issued. However, the mere fact that he sent a check to DMV does not lift the suspension until the check is cashed and is not a defense to driving with a suspended license. Assuming it was true that his wife was informed that her husband has to pay the ticket in person; Respondent should have gone to DMV to pay in person and ensure that the suspension is lifted before he decided to get behind the wheels.

Jorge A. Pacheco (the “respondent”) did not file a response to the Commission’s appeal.

ANALYSIS

The ALJ erred in dismissing the summons.

The summons, issued on March 12, 2008, charged the respondent with violating Rule 6-15A(2) in that the inspector observed the respondent driver operating a vehicle for hire while his DMV driver’s license was suspended for failure to answer a DMV summons dated 3/10/08.

At the hearing, the respondent testified that he did not know that his DMV license was suspended until the officer stopped him, on March 12, 2008, as he thought payment had been made by mail. The respondent presented 1) check #1460 for $130, dated and sent on March 8, 2008 to DMV; 2) a receipt dated March 13, 2008, for a cash payment of $125 to DMV; and 3) a Traffic Violations Correction Notice dated March 31, 2008, showing that the respondent’s check #1460 for $130 was being returned because the case had been satisfied and closed. Commission records indicate that the respondent’s for-hire vehicle driver’s license was suspended on March 13, 2008 but does not provide any information regarding the status of the respondent’s DMV license.

Rule 6-15A(2) provides, in relevant part:

A driver shall not operate a for-hire vehicle without a valid New York State chauffeur's license or a valid license of equivalent class of the state of which he is a resident. For the purposes of these rules, a valid chauffeur's license or a license of equivalent class shall mean a license which is neither probationary, suspended, revoked, conditional, nor restricted as to use by the New York State Department of Motor Vehicles or agency of another state which issued such license for violations of traffic laws or regulations.

The Commission establishes the elements of a Rule 6-15A(2) violation when it shows that a for-hire vehicle driver was operating a for-hire vehicle with a suspended New York State chauffeur’s license at the time of the stop. Rule 6-15A(2) is a strict liability statute. If a driver’s chauffeur’s license is suspended, then a violation has occurred (see Taxi & Limousine Commission v. Jose R. Reyes, Lic. No. 5176111 [April 20, 2009]). Here, the ALJ found that the summons was properly issued but that the respondent thought payment to the DMV had been made, and that payment had been made but returned because there had been a duplicate payment.

On appeal, the law requires that substantial evidence (reasonable proof of all the elements of the charges) support the ALJ’s decision (see 300 Gramatan Ave. Assoc. v. State Div. of Human Rights, 45 N.Y.2d 176, 408 N.Y.S.2d 54 [July 13, 1978]; Taxi & Limousine Commission v. Balbir Singh, Lic. No. 5016472 [June 27, 2008]). Substantial evidence may be based on the believability of witnesses and documents (evidence). The ALJ’s dismissal of the Rule 6-15A(2) violation was based on the respondent’s belief that he paid the DMV on an outstanding summons and that payment had been made on that summons. As the DMV receipt for the $125 cash paid is dated March 13, 2008, the respondent has not shown that his DMV license was valid on March 12, 2008, the day the summons was issued. The ALJ’s findings are not supported by substantial evidence (see Taxi & Limousine Commission v. Wei J. Huang, Lic. No. 5069900 [April 23, 2009]) and his decision is reversed.

Dated: April 12, 2010

Charles R. Fraser

Deputy Commissioner for Legal Affairs

By: D. Rivers

Administrative Law Judge, Appeals Unit

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[1] Operating a for-hire vehicle without a valid state chauffeur's license.

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