Dep't of Correction v



Taxi & Limousine Comm’n v. Sobczak

OATH Index No. 1691/08 (Apr. 7, 2008), modified on penalty, Comm’r/Chair’s Decision (May 9, 2008), appended

ALJ found that petitioner failed to prove respondent assaulted a fellow taxi driver but found respondent guilty of verbal harassment. ALJ recommended a $350 fine.

Commissioner/Chair disagreed with the recommended penalty. He increased the penalty to a $1000 fine plus a thirty day suspension.

______________________________________________________

NEW YORK CITY OFFICE OF

ADMINISTRATIVE TRIALS AND HEARINGS

In the Matter of

TAXI AND LIMOUSINE COMMISSION

Petitioner

- against -

ZBIGNIEW SOBCZAK

Respondent

______________________________________________________

REPORT AND RECOMMENDATION

ALESSANDRA F. ZORGNIOTTI, Administrative Law Judge

This license revocation proceeding was referred by petitioner, the Taxi and Limousine Commission (“TLC” or “Commission”), pursuant to the New York City Administrative Code and the Taxi and Limousine Commission’s Drivers Rules. Respondent Zbigniew Sobczak, a taxi driver, is charged with assaulting and verbally harassing a fellow taxi driver in violation of the TLC Drivers Rules 35 RCNY sections 2-60(a) and (b) (ALJ. Ex. 1).[1]

A hearing was held before me on February 26 and March 10, 2008. Petitioner presented the testimony of Malik Rizwan, the complainant taxi driver, as well as documentary evidence. Mr. Sobczak appeared with counsel and denied the charges. I find that petitioner failed to prove respondent assaulted Mr. Rizwan but find respondent guilty of verbal harassment. I recommend that respondent be fined $350.

ANALYSIS

Mr. Sobczak is charged with physically assaulting and verbally harassing Mr. Rizwan on October 8, 2007 (ALJ Ex. 1). Neither driver had a passenger at the time (Tr. 6, 66). The charges stem from an incident where Mr. Sobczak allegedly cut in front of Mr. Rizwan on Central Park West and 65th Street. Mr. Rizwan honked and followed Mr. Sobczak across the Central Park transverse. A verbal confrontation occurred on Fifth Avenue and 65th Street. Following the incident, Mr. Rizwan called the police and pursued Mr. Sobczak south on Fifth Avenue until he turned left on 56th Street and stopped at Madison Avenue. Mr. Rizwan got out of his taxi and blocked Mr. Sobczak’s cab until the police arrived. Mr. Sobczak was not arrested. Six weeks later, Mr. Rizwan filed a complaint with the Commission alleging that on Fifth Avenue and 65th Street, Mr. Sobczak assaulted and verbally harassed him.

Section 2-60 of the Taxicab Drivers Rules provide:

a) A driver shall not threaten, harass or abuse any passenger . . . or other person while performing his duties and responsibilities as a driver . . . .

b) A driver shall not use or attempt to use any physical force against a passenger . . . or other person while performing his duties and responsibilities as a driver, . . . .

35 RCNY § 2-60 (Lexis 2008). The Administrative Code authorizes the Commission to suspend or revoke a taxicab license for good cause shown relating to a threat to the public health or safety, after notice and an opportunity for a hearing. NYC Admin. Code § 19-512.1.

In a revocation proceeding, petitioner bears the burden of proof, and must establish its charges by a preponderance of the credible evidence. See Taxi & Limousine Comm’n v. Kharoufi, OATH Index No. 1277/07 (Mar. 12, 2007); Taxi and Limousine Comm’n v. Egalite, OATH Index No. 1542/00 (Aug. 4, 2000) aff’d by Comm’n (Feb. 27, 2001). A preponderance has been defined as the burden of persuading “the trier of fact that the existence of a fact to believe is more probable than its nonexistence.” Metropolitan Stevedore Co. v. Rambo, 521 U.S. 121, 137, 117 S. Ct. 1953, 1963 (1997); see also Dep’t of Correction v. Tavarez, OATH Index No. 1273/02, at 5 (Nov. 21, 2002) (where the evidence is equally balanced, the burden is not met); Taxi & Limousine Comm’n v. Gebremengist, OATH Index No. 198/88 (Oct. 6, 1988) (where evidence was unclear, charges were dismissed).

Mr. Rizwan’s testimony was difficult to follow because he was very agitated at the hearing, he was argumentative with respondent’s counsel, he spoke in incomplete sentences, and he did not provide a clear, sequential explanation of the events.[2]

Mr. Rizwan testified that the incident began while he was in the south bound lane on Central Park West waiting to turn east and cross Central Park. When the left arrow light turned green, he turned onto the 65th Street transverse and another taxi “overturned” him from the center lane (Tr. 5-11). Mr. Rizwan testified that he did not see the other cab until it cut in front of him but he was sure the driver had come from the lane next to him (Tr. 19-22). He repeated that drivers in the center lane cannot turn left but are supposed to go straight (Tr. 12, 13, 21). He testified that he “beeped” at the driver (Tr. 9, 10, 12). Mr. Rizwan stated he felt it was necessary to beep because the other driver was “wrong” and could have caused an accident. The beep was a “little long horn” that lasted about “five” or “ten” seconds (Tr. 22-25).

According to Mr. Rizwan, the other taxi stopped just inside the park entrance on the transverse which is a one lane road with cars coming from the other direction (Tr. 11-12, 28, 30). Mr. Sobczak got out of his taxi and came back to Mr. Rizwan’s cab. The window was open. Mr. Sobczak started “abusing” him and his parents. When asked to explain, Mr. Rizwan stated that Mr. Sobczak asked him, “What the fuck you have problem why you beeping?” and also called him a “motherfucker.” Mr. Rizwan responded, “You was wrong what you doing you overturn” [sic] (Tr. 10, 12, 26). According to Mr. Rizwan, Mr. Sobczak tried to open the cab door and he pulled it shut (Tr. 13). On cross-examination, Mr. Rizwan admitted that he told Mr. Sobczak “You fuck you go in your car” (Tr. 28). He also stated that he “forgot one thing,” that Mr. Sobczak “spit in [his] face too,” (Tr. 27). When asked to explain, Mr. Rizwan made a spitting sound which indicated that this was an intentional act (Tr. 28). Upon further examination he retreated from this accusation (Tr. 28-30) and later conceded that Mr. Sobczak probably sprayed him a little bit because of his accent and that it was an accident (Tr. 52).

Mr. Rizwan testified that because the people behind them were honking (Tr. 12, 26), Mr. Sobczak got back in his cab and continued across the park (Tr. 30). When Mr. Sobczak reached Fifth Avenue, he pulled into the right turn lane and stopped at the light. Mr. Rizwan pulled behind him. Mr. Rizwan denied honking his horn again (Tr. 31). Mr. Rizwan testified that after the first encounter he was afraid of Mr. Sobczak (Tr. 11) but that he did not lock his door when he saw Mr. Sobczak approaching, because he is not allowed to lock his doors while on duty (Tr. 32-33). According to Mr. Rizwan, Mr. Sobczak opened the cab door, “abused” him, and punched him two or three times with a closed fist on the left side of his face (Tr. 13-14, 32, 36). His face hurt but there was no bleeding and he did not go to the hospital (Tr. 18). Mr. Rizwan also stated that Mr. Sobczak pulled open the door so far that the hinge was “out of balance,” which made it difficult to close (Tr. 14, 33-34). When Mr. Rizwan stated he was going to call the police, Mr. Sobczak replied, “Go call the police you motherfucker.” When he called the police they told him to get the medallion number of the other taxi which he did. Because the light was green Mr. Sobczak got in his cab and turned down Fifth Avenue. Mr. Rizwan followed (Tr. 14, 37) and called out, “I am calling the police, don’t run” (Tr. 15). As he was driving, Mr. Rizwan stayed on the phone with the police (Tr. 15). Mr. Sobczak was not speeding (Tr. 38).

When Mr. Sobczak reached 56th Street, he turned left and stopped for the light on Madison Avenue. Mr. Rizwan got out of his taxi and stood in front of Mr. Sobczak’s cab and told him not move because the police were coming (Tr. 15-16, 39-41). Mr. Sobczak got out of his cab, grabbed Mr. Rizwan by the collar, punched him in the chest, “abused” him, and threw him on the ground. Mr. Sobczak said that he wanted to go and got back in his cab. Mr. Rizwan then sat in front of the cab. When the police came, they moved the taxis so that the traffic behind them could pass (Tr. 16, 42-42). Mr. Rizwan told them that Mr. Sobczak had abused and punched him and they gave him an “Incident Information Slip” for “Harassment” (Pet. Ex. 1). The police said they could not arrest Mr. Sobczak because he only “push[ed]” him, which is harassment, and because there was “no blood” (Tr. 17-18, 41-42, 47).[3]

Mr. Rizwan was too upset to work. He went to a 24-hour garage on 49th Street and Eleventh Avenue and had his door fixed for $20.00. After, he went home. Mr. Rizwan did not get a receipt for fixing the car door or keep his daily trip sheet because he did not think it was important (Tr. 48-52). He subsequently spoke to a lawyer about the incident, presumably to sue respondent or the taxi company, but the lawyer wanted too much money to take the case. He filed a complaint with the TLC six weeks later. He did not get the police complaint because he did not want to pay $11.00 for a copy (Tr. 43-46).

Petitioner presented a copy of the police complaint which indicates that the complaining victim stated “he got into dispute w/suspect over suspect cutting him off in traffic. C/V states suspect hit him in the face (no injuries).” The case was closed (Pet. Ex. 2).

Mr. Sobczak testified that he was on 65th Street going into Central Park (Tr. 65). He was on his way home after visiting a friend and was not on duty (Tr. 68, 73). Just inside the park, the taxi driver behind him started to “honk very hard a couple of times” (Tr. 65-66). When he got to Fifth Avenue the light was red and the driver pulled up behind him and honked again (Tr. 71). Mr. Sobczak got out of his cab to find out what was wrong. Mr. Rizwan “quickly” opened his door in an “aggressive” manner and Mr. Sobczak reacted by pushing it shut so that Mr. Rizwan could not get out of his cab (Tr. 66, 70-71). Mr. Rizwan was “screaming,” “upset,” “pissed off” and he made some “stupid point.” Mr. Sobczak was angry and asked Mr. Rizwan what his problem was and why he was honking. Mr. Sobczak acknowledged that he said some “bad words” to Mr. Rizwan which he could not recall but that they were similar to the things that Mr. Rizwan was saying at the scene. Mr. Rizwan cursed at him first (Tr. 67, 71-73, 76). Mr. Sobczak denied punching or using any “power” with Mr. Rizwan (Tr. 66-67, 69). When the light turned green, Mr. Sobczak got back into his cab and headed south on Fifth Avenue. Mr. Rizwan followed and tried to pass him on 64th Street (Tr. 67, 79).

When Mr. Sobczak reached 56th Street, he turned left and stopped at Madison Avenue. Mr. Rizwan got out of his taxi and lay on the ground in front of his cab and called the police. All the cars behind them started to honk. Mr. Sobczak stated that he did not want to “escape” and that he tried to move Mr. Rizwan to the sidewalk so he could move his car to the side and let the cars pass while they waited for the police. Initially Mr. Rizwan complied, but then he got back in front of Mr. Sobczak’s cab (Tr. 67-68). At that point he was no longer angry and was “smiling” at Mr. Rizwan who was on the ground “pissed off.” He did not curse at Mr. Rizwan (Tr. 73-76). When the police arrived they spoke to both drivers and Mr. Sobczak told his story and denied hitting Mr. Rizwan. Mr. Rizwan also complained about his cab door but the police found nothing wrong with it. Mr. Sobczak was not arrested and never heard anything else until he was contacted by the TLC (Tr. 68).

Often the resolution of disputed facts hinges on the assessment of witness credibility. There is no more fundamental nor more difficult task for a trier of fact than the resolution of a controversy between two parties based solely on an assessment of their credibility. No magic formula exists by which a trier of fact may separate with certainty truth from fiction in a witness’s account. At best, the task remains an exercise of carefully reasoned judgment, aided by the consideration of such factors as witness demeanor, consistency of a witness’s testimony, supporting or corroborating evidence, witness motivation, bias or prejudice, and the degree to which a witness’s testimony comports with common sense and human experience. Dep’t of Correction v. Hansley, OATH Index No. 575/88, at 19 (Aug. 29, 1989), aff’d sub nom. Hansley v. Koehler, 169 A.D.2d 545, 564 N.Y.S.2d 398 (1st Dep’t 1991); see also Dep’t of Sanitation v. Menzies, OATH Index No. 678/98 (Feb. 4, 1998), aff’d, NYC Civ. Serv. Comm’n Item No. CD 98-101-A (Sept. 9, 1998). This tribunal has also recognized that a respondent has a powerful motive to fabricate his testimony as he faces possible revocation of his hack license. Taxi & Limousine Comm’n v. Narcisse, OATH Index No. 1998/07, at 5 (Aug. 16, 2007), modified on penalty, Comm’r/Chair Dec. (Sept. 24, 2007); Taxi & Limousine Comm’n v. Martinez, OATH Index No. 1183/07, at 4, mem. dec. (Apr. 11, 2007).

After weighing the testimony of the two principals in this case, together with the available documentation, and evaluating whether the testimony comports with common sense and experience, I am unable to conclude that it is more likely than not that a physical attack occurred. See Narcisse, OATH 1998/07 (petitioner failed to demonstrate assault); Martinez, OATH 1183/07 (failure by agency to meet its burden of proof); Taxi & Limousine Comm’n v. Singh, OATH Index No. 984/07, at 4 (Jan. 26, 2007) (same); Taxi & Limousine Comm’n v. Singh, OATH Index No. 280/99 (Sept. 22, 1998) (same); Taxi & Limousine Comm’n v. LeCoin, OATH Index No. 1037/91 (Dec. 9, 1991) (complaints were incredible). Cf. Taxi & Limousine Comm’n v. Elbstamey, OATH Index No. 976/07 (Jan. 8, 2007), modified, Comm’n Dec. (July 12, 2007) (charges sustained). This finding is based in part on my conclusion that Mr. Rizwan was incredible, prone to fabrication, and that he provoked this incident.

Mr. Rizwan admitted that he honked for five or ten seconds when Mr. Sobczak cut him off and emphatically stated that this was necessary because the other driver was wrong. Mr. Sobczak credibly denied that he stopped in the middle of the park (Tr. 66, 80). If every taxi driver stopped traffic to ask why someone was honking, the city would come to a complete standstill. At Fifth Avenue, Mr. Rizwan deliberately pulled behind Mr. Sobczak and honked again instead of going into another lane (Tr. 71, 78). Mr. Rizwan was angry and wanted to confront Mr. Sobczak about “overturning” him.

It was undisputed that the drivers engaged in a verbal exchange and cursed at each other. Mr. Rizwan stated that when Mr. Sobczak approached he asked, “What the fuck you have problem why you beeping?” and that he later called him a “motherfucker.” Mr. Sobczak admitted that he cursed at Mr. Rizwan and I find it likely that respondent was the first to use profanity. Mr. Sobczak admitted that he was angry and Mr. Rizwan’s version comports with common sense. Moreover, Mr. Rizwan’s statement to Mr. Sobczak, “You fuck you go in your car” would more likely be a response than a preliminary statement. Therefore, I find that respondent cursed at Mr. Rizwan in violation of TLC Drivers Rule 2-60(a).

On the other hand, I am unable to confidently state that it is more likely than not that Mr. Sobczak opened Mr. Rizwan’s door and punched him three times in the face. I credit Mr. Sobczak’s testimony that Mr. Rizwan opened the door quickly and aggressively and that he reacted instinctively by pushing it shut. At that moment Mr. Rizwan was agitated and it would not be unreasonable to contain someone who was in such a state. Also, there were no visible injuries on Mr. Rizwan even though he claimed he had been punched three times in the face with a closed fist. Mr. Sobczak was larger and appeared to be much stronger than Mr. Rizwan (Tr. 14, 28, 81). It seems that the police, who met the drivers shortly after the alleged assault, did not find Mr. Rizwan’s story of assault persuasive. They noted on the complaint that they observed no injuries and told Mr. Rizwan that they could not arrest Mr. Sobczak based on a push.

Mr. Rizwan went to great lengths to have Mr. Sobczak arrested for assault and I question his motives for doing so. This tribunal has recognized that in a case such as this there is frequently the potential of obtaining payment in a lawsuit against the taxi company. Narcisse, OATH 1998/07, at 5; Taxi & Limousine Comm’n v. Martinez, OATH Index No. 1183/07, at 4, mem. dec. (Apr. 11, 2007). It was evident that Mr. Rizwan was incensed at being cut-off and called a “motherfucker.” It is possible that he fabricated the assault when the police arrived in the same manner he fabricated on cross-examination that Mr. Sobczak intentionally spit on him, so that he would have a better case for a lawsuit. Immediately following the incident, Mr. Rizwan tried to hire an attorney to sue Mr. Sobczak. Six weeks later, after he failed to find an attorney, Mr. Rizwan complained to the TLC that respondent assaulted and harassed him.

Petitioner’s argument that Mr. Sobczak’s admission that he pushed Mr. Rizwan’s door shut and later tried to move him from in front of his cab makes it more likely that respondent punched Mr. Rizwan on Fifth Avenue was unpersuasive (Tr. 85-86). To the contrary, Mr. Sobczak’s admission that he was angry and cursed at Mr. Rizwan, that he tried to move him from the front of his cab, and that Mr. Rizwan never tried to hit him (Tr. 77) enhanced respondent’s credibility. During the hearing Mr. Sobczak was calm and gave realistic testimony. I am unable to conclude that respondent would punch a fellow driver because the other driver honked and said “fuck you.” Therefore, petitioner failed to demonstrate by a preponderance of the evidence that respondent assaulted a fellow driver.

Use of Force on 56th Street

Petitioner did not make a motion but instead left it to this tribunal to amend the petition to include a violation of rule 2-60(b) because Mr. Sobczak admitted that he “grabbed and pulled” Mr. Rizwan from in front of his cab on 56th Street (Tr. 83-84).

When it becomes apparent during a trial that the pleadings contain an error or misstate the issues in controversy, a motion to amend the pleadings to conform to the proof may be made. In this case, petitioner’s attorney made no such motion, leaving it to a sua sponte motion to cure. Amendment of charges in administrative proceedings, where pleadings serve only a notice-giving function is freely granted absent irremediable prejudice. Notice is sufficient as long as the charges apprize the party of the conduct at issue so as to enable him to adequately prepare and present a defense. Human Resources Admin. v. St. Louis, OATH Index No. 895/05 (May 26, 2005), aff’d, NYC Civ. Serv. Comm’n Item No. CD07-03-SA (Feb. 9, 2007); Dep’t of Correction v. Lee, OATH Index No. 284/88, at 4 (Dec. 2, 1988). Nevertheless, the Court of Appeals has held that “no person may lose substantial rights because of wrongdoing shown by the evidence, but not charged.” Murray v. Murphy, 24 N.Y.2d 150, 157, 299 N.Y.S.2d 175, 181 (1969); see also Brown v. Saranac Lake Central School District, 273 A.D.2d 785, 709 N.Y.S.2d 706 (3d Dep’t 2000).

I decline to amend the charges sua sponte to include a second physical force charge. It does not appear that Mr. Rizwan made such a complaint to the police or the TLC and the failure of notice of such a claim presumes prejudice. Indeed, the amendment would not be based on the incredible claims of Mr. Rizwan but rather on respondent’s admission that he tried to move Mr. Rizwan so that the traffic could pass. As noted by petitioner’s counsel, had Mr. Sobczak been arrested for harassment, which at most this unwanted touching may amount to, there would be no revocation proceeding. Petitioner confirmed that this action was based solely on Mr. Rizwan’s complaint to the TLC (Tr. 62). Since Mr. Rizwan did not complain about being assaulted on 56th Street, amending the petition would be inappropriate.

Performance of duties and responsibilities as a driver

Mr. Sobczak raised the question whether the TLC Drivers Rules apply to his conduct because it did not occur while he was on duty. Thus, the issue is whether respondent was “performing his duties and responsibilities as a driver” at the time of the incident. 35 RCNY § 2-60. The tribunal has noted the difficulty of determining what conduct is covered under the rule. Narcisse, OATH 1998/07 at 11; Taxi & Limousine Comm’n v. Rustemi, OATH Index No. 214/86, at 6 (July 16, 1986). Regardless whether respondent was on or off-duty, he was driving his taxi and cursed at another person in a public place. Since this incident could reflect poorly on the Commission, it has an interest in regulating this conduct.

FINDINGS AND CONCLUSIONS

1. Petitioner failed to prove that on October 8, 2007, respondent used physical force against a fellow taxi driver in violation of rule 2-60(b).

2. On October 8, 2007, respondent verbally harassed a fellow taxi driver in violation of rule 2-60(a).

RECOMMENDATION

Upon making the above findings, I reviewed respondent’s record as a cab driver. Respondent began driving a cab in 1990 and drove until 2002, when his license was revoked for failing an annual drug test. A new license was issued to him in May 2007.

Between 1990 and 2000, respondent was adjudicated guilty of various rule violations, including operating a cab without a valid driver’s license, operating a cab in an unsafe manner, refusing to take a passenger to a destination, failing to properly signal “off-duty,” failing to maintain equipment in good working order, failing to maintain proper trip records, and failing to comply with TLC directives. The penalties for these violations were not specified. No violations were issued between 2000 and 2002.

Since his new license was issued in 2007, he was cited for three violations for failing to maintain proper trip records and failing to properly signal. His Department of Motor Vehicles record includes four violations in 2005 for failing to wear a seat belt.

On the basis of the charges preferred, the Commission has requested the maximum fine and license revocation. Nevertheless, any penalty assessment must be adjusted downward to reflect the fact that the most serious charge, physical force, was not proven.

Respondent has been found guilty of verbally harassing a fellow taxi driver by saying “what the fuck” and “motherfucker.” Respondent’s conduct in no way implicated passenger safety since neither the respondent nor the other driver was traveling with a passenger. Respondent’s actions did not create a risk to the public safety but instead involved another taxi driver who was enraged at being cut off. The record demonstrates that the other driver instigated and prolonged the encounter by honking excessively and by pulling up behind respondent to confront him. Respondent’s anger was provoked and his verbal outburst brief. The dispute took place within the span of one red light. Even after it was concluded the other driver continued to pursue respondent by chasing and shouting at him for nine blocks down Fifth Avenue and then blocked traffic until the police came. I credit respondent’s testimony that by this point he was no longer angry but rather was amused by the other driver who was sitting on the ground “sulking” (Tr. 74) and that he accepted he had no choice but to wait for the police. The fact that the police did not arrest respondent and the police complaint was closed, supports a conclusion that this was a minor verbal altercation between two taxi drivers over who had the right of way.

Penalties for violating section 2-60(a) include a fine between $350 to $1,000 and/or suspension up to 30 days or revocation. See 35 RCNY § 2-86. Revocation of respondent’s hack license would clearly be excessive for the charge proven in this case. See Taxi & Limousine Comm’n v. Suliman, OATH Index No. 1833/00, at 5-7 and cases cited therein (Aug. 22, 2000), penalty rescinded, Comm’n Decision (May 1, 2002) (revocation excessive for single verbal confrontation, absent threat or physical contact); Taxi & Limousine Comm’n v. Baudin, OATH Index No. 341/81 (Feb. 10, 1982) (driver’s use of profanity during fight with pedestrian was not misconduct; giving cognizance to realities of life in New York City, use of profane language by cab driver should be evaluated on case by case basis). Revocation is typically reserved for instances of physical assault and/or threats. See, e.g., Kharoufi, OATH 1277/07 (revocation of hack license and $400 fine imposed for assault, threat and verbal harassment of a passenger, refusal to transport passengers and failure to have license in the appropriate frame); Taxi & Limousine Comm’n v. Khan, OATH Index No. 333/99 (Dec. 14, 1999) (hack license revoked for assaulting law enforcement personnel and damaging a law enforcement vehicle).

In Suliman, OATH 1833/00, a driver was assessed a $600 penalty for loudly demanding, “What the f--k is this for?” and angrily referring to the Commission chief of staff and other employees as “racist m------f----rs.” The ALJ found that had the conduct complained of involved no more than a few angry obscenities to the security guards, it would not be deserving of more than a $100 fine. However, the nature of the disruptive behavior was exacerbated by the respondent’s failure to heed the guards’ warnings to lower his voice and by the angry confrontation and insulting remarks to the chief of staff. Recently, the Commission increased a recommended penalty of $250 to a 30-day suspension and $1,000 fine for a driver who called another motorist “a piece of shit” during a parking space dispute. See Narcisse, OATH 1998/07.

In this case a $1,000 fine and a 30-day suspension are unwarranted. Unlike Narcisse, this encounter involved two taxi drivers and there was substantial provocation by the other driver who also cursed at the respondent. There is no doubt that respondent should have maintained a civil bearing with the other taxi driver despite the provocation and that he must be held accountable for his profanity. It would, however, be inappropriate to penalize respondent for charges which were dismissed or for conduct which was never charged. Moreover, while respondent has a violation history, it is notable that he has never been found guilty of harassment or physical assault. Accordingly, for his use of the words “fuck” and “motherfucker,” I recommend a fine of $350. Such a penalty should be sufficient to discourage respondent from using discourteous language while driving a taxi.

Alessandra F. Zorgniotti

Administrative Law Judge

April 7, 2008

SUBMITTED TO:

MATTHEW W. DAUS

Commissioner

APPEARANCES:

MARC T. HARDEKOPF, ESQ.

Attorney for Petitioner

CYNTHIA D. FISHER, ESQ.

Attorney for Respondent

NYC Taxi and Limousine Commission Comm’r/Chair’s Decision, May 9, 2008

_________________________________________

THE NEW YORK CITY

TAXI AND LIMOUSINE COMMISSION

Petitioner

- Against -

ZBIGNIEW SOBCZAK

Respondent

_________________________________________

MATTHEW W. DAUS, Commissioner/Chair

DECISION

A hearing was concluded on March 10, 2008, at the New York City Office of Administrative Trials and Hearings (“OATH”). After hearing the evidence presented, the presiding Administrative Law Judge (“ALJ”) found that Respondent, ZBIGNIEW SOBCZAK, violated Taxi and Limousine Commission (“TLC”) Rule 2-60(a). The ALJ has recommended the imposition of a $350 fine.

I have, moreover, reviewed the letter submitted by Respondent’s Attorney, Cynthia Fisher, Esq., dated, April 18, 2008, in response to the ALJ’s recommendation. I find the arguments to be unpersuasive.

The ALJ found that on October 8, 2007, Respondent verbally harassed a motorist. While I must accept the ALJ’s findings of fact, given his conviction for violating Rule 2-60(a), I disagree with her recommended penalty of only a $350 fine. Due to Respondent’s poor TLC record and driving history, summarized by the ALJ in her report and recommendation, and the degree of his departure from customer service standards, I conclude that the maximum fine of $1,000 and a 30-day suspension is a more appropriate penalty.

I disagree with the ALJ’s recommendation to distinguish the case of Narcisse, OATH Index No. 1988/07, from the instant case. In Narcisse, I raised the penalty to a $1000 fine and a 30 day license suspension against Respondent driver for the use of profanity towards another taxicab driver. While in the abstract, provocation may be a mitigating factor, I find no room for such misconduct from our professional drivers. The TLC continues to seek to raise the standard of conduct for its licensed drivers, and has made tremendous strides towards this goal over the last decade. While driving a taxicab is by no means an easy job devoid of stress, drivers must be cognizant of the negative image and perception that tarnishes the reputation of their industry, both locally and among visitors and potential tourists abroad. Drivers are often the first and last face that visitors to our city see, and verbal harassment, including the use of profanity is not only bad customer service, but for business and bad for New York City! Passengers and passersby expect and deserve more from professional taxicab drivers, and it is about time that we raise the bar to significantly deter such inappropriate behavior – as drivers now earn a living wage, and are being well compensated due to their passengers and the TLC. I have no doubt that the vast majority of drivers who adhere to our regulations and standards of decency and decorum will support taking appropriate action against those few drivers who verbally harass others and use profanity while working – as those few serve as a negative reflection on the many that do an excellent job.

Although not directly at issue here, I also disagree with any suggestion that license revocation would always be an inappropriate penalty for verbal harassment. To the extent that decisions issued before my tenure, such a TLC v. Baudin, OATH Index No. 341/81, may be read to rule out the penalty of license revocation for verbal harassment or abuse, I would overrule those decisions. The Baudin decision, decided in 1982, found that a “driver’s use of profanity during a fight with a pedestrian was not misconduct; giving cognizance to the realities of life in New York City.” I cannot more strongly disagree with this prior decision. The time for more civilized drivers has come as the industry has been radically transformed for the better since the 1980s.

In the interests of justice and equal treatment, the TLC will also bring charges against the complaining witness in this case, who is also a TLC licensee. Subsequent investigation and prosecution will be initiated based upon the evidence adduced during this proceeding, including admission made by the complainant during his sworn testimony.

Therefore, upon careful review of the record before me, I reject the ALJ’s recommended penalty, and hereby impose a 30-day suspension, effective as of the date of this letter, as well as a fine of $1,000. However, it is my sincere hope that Respondent will learn from these transgressions, and take advantage of his second chance to resume his driving career and provide better service to the public, while showing more respect for others.

MATTHEW W. DAUS, Commissioner/Chair, NYC Taxi and Limousine Commission

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[1] The charge that respondent violated 35 RCNY section 2-61(a)(1) by telling a TLC investigator that he was not involved in an incident with a fellow driver was withdrawn (Tr. 58).

[2] Mr. Rizwan testified that his first language is Erdu (Tr. 5) but was able to speak and understand English. Indeed, as a taxi driver he “must be able to speak, read, write and understand the English language.” 35 RCNY § 2-02(a)(6). When a question about whether Mr. Rizwan was having language issues arose, petitioner’s counsel declined this tribunal’s offer to provide a translator, saying that it was not necessary (Tr. 29).

[3] Pursuant to N.Y. Penal Law section 240.26(1), a “person is guilty of harassment in the second degree when, with intent to harass, annoy or alarm another person: He or she strikes, shoves, kicks or otherwise subjects such other person to physical contact, or attempts or threatens to do the same.” The crime of assault in the third degree requires physical injury. See N.Y. Penal Law §§ 120.00, 10.00(10).

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