Taxi & Limousine Commission (TLC) v



Taxi and Limousine Commission v. Vorge Charles, Lic. No. 5298728

DECISION

The Administrative Law Judge’s (“ALJ”) decision is incorrect and is reversed. Rule 9-08A[1], Rule 9-08E[2], Rule 9-10C[3], and Rule 9-10D[4] are remanded (rescheduled) for a new hearing. Vorge Charles (the “respondent”) is entitled to apply for a refund of the fines, if paid.

The ALJ’s decision with respect to Rule 9-10E1[5] is correct and is affirmed.

BACKGROUND

Respondent filed an appeal of ALJ Roxanne Wild’s decision dated July 23, 2008, wherein the ALJ found the respondent in violation of Rule 9-08A, Rule 9-08E, Rule 9-10C, Rule 9-10E1 and Rule 9-10D, issued in connection with summons numbers 1162791A, 1162793A, 1162794A, 1162796A, and 1162797A, respectively. The ALJ imposed penalties of $300, $300, $25, $75, $50, respectively.

The decision appealed from sets forth in pertinent part:

The Respondent is charged with numerous violations under chapter 9 – Commuter vans. At the start of the hearing, Respondent’s attorney made several motions for dismissal on the summonses themselves….The Officer credibly testified that while traveling on Flatbush Ave, she observed Respondent driving a van. The Officer observed a male passenger dropped-off along B41 bus route, following along, she observed a second stop where another male passenger was dropped-off and another picked-up. The Respondent was stopped, ticketed for unlicensure, and failing to have the manifest, no prearrangement, dropping off in unauthorized area. The Respondent argues that the van is a chartered van with LA plates. Being licensed by DOT to bring passengers from outside of the city, into the city. The Respondent further argues that there was no indicia of commuter van service, ie; no exchange of money, no ropes on the handles. I find that there was a pick-up within the city and the Respondent is found guilty of be [sic] unlicensed by the TLC. The Respondent is also found guilty of operating along a bus route as a commuter, not having a manifest, dropping off passengers outside authorized area and not having a pre-arrangement for pick-ups.

The respondent’s appeal, pursuant to Rule 8-13A, was filed on July 23, 2008.

On appeal, the respondent argues, as follows:

We believe the summons should be overturned. The officer testified that she observed a drop off. She further testified that she did not speak to anyone, saw no money exchange, no rope on the door nor a cb radio. This vehicle is a DOT licensed vehicle. Even if it is determined that the officer has sufficient indicia to stop and inquire that inquiry must be further supported by establishing the prima facie case. The mere drop off of a passenger unsupported by any other testimony is not sufficient to establish the prima facie case.

The ALJ states “that there was a pick up within the city and the respondent is found guilty of being unlicensed by the Taxi and Limousine Commission.” Vehicles bearing LA plates are allowed to pick up or drop off within the city as long as they are not working point to point with the City of New York. The officer honestly stated that she does not know where the individual was picked up or if it was a paid ride. Additionally, there was no evidence, circumstantial or otherwise, to even indicate this vehicle was operating for hire, other than a drop off which is not prohibited under any city, state or local law. For these reasons we respectfully ask that the decision be overturned.

ANALYSIS

The respondent argues that the Commission failed to establish a reasonable basis for the vehicle stop and a prima facie case of unlicensed commuter van operation.

Vehicle Stop

While a licensee of the Commission may be stopped at any time, with or without cause, the Commission does not have the authority to stop the vehicle of a non-licensee unless the Officer has a reasonable belief that a violation has been committed. (See, New York City Taxi and Limousine Commission v. Avion K. Cornwall, Lic. No. 5225336 [October 1, 2007] citing New York City Taxi and Limousine Commission v. Patrick Elias, Lic. No. 716522 [February 18, 1994]). Accordingly, where the vehicle in question is an unlicensed vehicle, a conviction for unlicensed commuter van activity requires consideration of the validity of the stop. A stop is only proper when certain indicia of commuter van or for-hire activity are observed. Here, the ALJ credited the officer’s testimony that two male passengers were dropped off and one person picked up along a B41 bus route on Flatbush Avenue in New York City by a vehicle driven by the respondent that bore livery plates. The ALJ was correct in finding that a single observation of a passenger pick up along a bus route by a vehicle with livery plates[6] was a sufficient basis for conducting a vehicle stop. (See, New York City Taxi and Limousine Commission v. Unity Express Inc., Lic. No. 5276894 [December 18, 2008]).

The standard of review of an ALJ’s decision on appeal is substantial evidence upon the entire record. (See, 300 Gramatan Avenue Associates v. State Division of Human Rights, 45 N.Y.2d 176, 180 [1978]; Matter of Maspeth Ave. Operating Corp. v. Martinez, 2 AD3d 446 [2003]; Matter of L. Camino Trucking v. Martinez, 5 AD3d 597 [2004]; Matter of Siano v. Dolce, 256 AD2d 582 [1998]). Substantial evidence has been defined as “such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact.” (See, 300 Gramatan Avenue Associates v. State Division of Human Rights, at 180). Credibility findings are not disturbed if they are supported by substantial evidence. Here, the ALJ credited the Officer’s testimony that she observed respondent pick up a passenger while driving a van with livery plates. The ALJ’s finding is supported by substantial evidence and is sufficient to establish the validity of the stop.

Commuter Van Activity

An ALJ is required to make findings of fact in each decision, setting forth what the ALJ believes to have actually occurred with respect to each element of the violations charged. An ALJ must also rule on each defense raised, and make credibility findings about the testimony given on issues that determine whether there has been a violation or whether a defense has been shown by the respondent (see generally, Taxi & Limousine Commission v. Mohammad F. Khan Lic. No. 5171771 [April, 2008]; Taxi & Limousine Commission v Prosper St. Pierre, Lic. No. 433325 [February 26, 2003]). Here, the ALJ failed to make sufficient findings of fact on four of the five Rule charges and failed to rule on the defenses raised by the respondent.

Rule 9-08A

(Operating a commuter van without a commuter van driver’s license)

Rule 9-08E

(Operating a commuter van without a commercial driver’s license)

With respect to these Rule charges, the ALJ recounted the officer’s testimony, which she found credible, that the respondent was “ticketed for unlicensure” when stopped and concluded, without explaining why, that the respondent was “guilty of be [sic] unlicensed by the TLC.” The ALJ failed to make any findings regarding whether respondent was operating a commuter van[7] (e.g., seating capacity, CB radio or other two-way radio communication system, rope pull or other door control device from the driver’s seat, business cards, etc.), for hire (e.g., exchange of money, solicitation of passengers, etc.) along an established bus route (e.g., more than one pick up and/or drop off, travel for several streets, street/area with high incidence of commuter van activity, etc.) in New York City at the time of the stop, without a valid TLC commuter van driver’s license and/or a valid commercial driver’s license.

Rule 9-10C

(Failure to keep passenger manifest in the van and failure to enter the name of each passenger to be picked up legibly in ink prior to the boarding of each passenger)

With respect to this Rule charge, the ALJ recounted the officer’s testimony, which she found credible, that the respondent failed “…to have the manifest…” when stopped and concluded, without making further findings that the respondent was guilty of “not having a manifest…” The ALJ failed to make any findings regarding the Officer’s observations, inquiries, and/or conversations with the respondent evidencing the absence of a passenger manifest in the van being operated for hire at the time of the stop.

Rule 9-10D

(Providing transportation service to a passenger without prearrangement and failure to evidence prearrangement by records maintained at the business premises of the commuter van service)

With respect to this Rule charge, the ALJ recounted the officer’s testimony, which she found credible, of “no prearrangement” and concluded, without making further findings that the respondent was guilty of “not having a pre-arrangement for pick ups.” The ALJ failed to make any findings regarding the absence of a telephone contract or other documented prearrangement for the pick up.

The findings of the ALJ with respect to the Rule 9-08A, Rule 9-08E, Rule 9-10C, and Rule 9-10D charges are therefore not supported by substantial evidence as the ALJ failed to make specific findings regarding these commuter van violations. As such, the ALJ erred in finding the respondent in violation of these Rules.

Dated: January 20, 2009

Charles R. Fraser

Deputy Commissioner for Legal Affairs

By: D. Rivers

Administrative Law Judge, Appeals Unit

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[1] Operating a commuter van without a commuter van driver’s license.

[2] Operating a commuter van without a commercial driver’s license.

[3] Failure to keep passenger manifest in the van and failure to enter the name of each passenger to be picked up legibly in ink prior to the boarding of each passenger.

[4] Providing transportation service to a passenger without prearrangement and failure to evidence prearrangement by records maintained at the business premises of the commuter van service.

[5] Unauthorized pick up or discharge of passengers outside of the geographic area set forth in the authorization to operate a commuter van service.

[6] New York State Vehicle and Traffic Law §121-e defines a livery plated vehicle as a “…motor vehicle, other than a taxicab or a bus, used in the business of transporting passengers for compensation.”

[7] Rule 9-01 defines a commuter van as a “motor vehicle operated in a commuter van service having a seating capacity of at least nine passengers but not more than twenty passengers and carrying passengers for hire….and not permitted to accept street hails from prospective passengers in the street.”

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