Taxi & Limousine Comm n v. Rahman OATH Index No. 620/16 (Jan. 5, 2016)

Transcription

1 Taxi & Limousine Comm n v. Rahman OATH Index No. 620/16 (Jan. 5, 2016) Petitioner proved that taxi driver cursed at and exposed himself to a bus driver. Revocation of respondent s hack license and a $2,000 fine recommended. NEW YORK CITY OFFICE OF ADMINISTRATIVE TRIALS AND HEARINGS In the Matter of TAXI AND LIMOUSINE COMMISSION Petitioner - against - MD SAZDAR RAHMAN Respondent REPORT AND RECOMMENDATION ALESSANDRA F. ZORGNIOTTI, Administrative Law Judge This license revocation proceeding was referred by petitioner, the Taxi and Limousine Commission ( TLC ) pursuant to the New York City Administrative Code and TLC s Rules. Respondent MD Sazdar Rahman, a taxicab driver, is charged with cursing at and exposing himself to a bus driver in violation of TLC s Rules prohibiting acts against the public interest and harassment of another person (ALJ Ex. 1). At a hearing held on December 18, 2015, petitioner presented documentary evidence and the testimony of the bus driver. Respondent testified and denied the charges. For the reasons below, petitioner established the charges. Respondent s hack license should be revoked and he should be fined $2,000. ANALYSIS Section of TLC s Rules proscribes the deliberate performance of any act that is against the best interests of the public. 35 RCNY 54-12(e) (Lexis 2015). This section also prohibits harassment of another person in the performance of a taxi driver s duties. 35 RCNY 54-12(f) (Lexis 2015).

2 - 2 - The charges arise out of a traffic dispute in Manhattan on Sunday November 9, 2014, at 10:15 a.m. between respondent and a New York City Transit Authority ( MTA ) bus driver. At the time of the incident, traffic was light and it was a clear day. Complainant, a bus driver for 10 years, testified that she was driving the M9 bus travelling west on Houston Street with approximately 20 passengers. The bus was a standard bus and was about 40 feet long. Complainant needed to turn left onto Essex Street and head south to Battery Park City. Because there was construction on Houston Street, the left turning lanes in both directions were closed and signs were posted that only busses could turn. Complainant testified that as she began her turn, a taxi travelling east on Houston also started to make a left turn onto Essex Street to head north on Avenue A and that neither vehicle could get through the intersection. They each stopped at a slight angle and were about six feet apart with the drivers windows parallel to each other. Because the bus was higher than the taxi, complainant was looking down on respondent. Complainant testified that she had a clear view into the taxi and was able to see respondent s entire body, except for below his knees. There were no passengers in the taxi (Tr , 22-24, 26-30, 32-35, 37, 40-45). Complainant testified that she slid her window open and told respondent there were no left turns permitted and that he must move. Respondent lowered his window about three inches and loudly told her to, Shut the fuck up. When she asked him, What did you say? respondent said Fuck you about four or five times (Tr. 18, 38, 45-46, 50-51). Complainant testified that she got a pen and some paper from the fare box to write down the taxi medallion number with the hope that respondent would move rather than risk a complaint being filed against him. Instead of moving, respondent went ballistic and pointed at his genitals, lifted his jacket, unzipped his pants, exposed himself, and said, Suck my dick (Tr , 49-50, 57-60). Complainant moved the bus forward and respondent moved to avoid being hit. This left enough room for the bus to turn onto Essex Street. As the bus moved out of the intersection, respondent completed his left turn and headed north (Tr. 19, 21, 47-48, 60-61). Complainant testified that most of the passengers exited the bus on the way downtown and that when she got one block from the end of the route, she stopped and asked the remaining four passengers to exit because she was too distraught to finish the route. She called her supervisor and said that she needed a personal, which she was allowed to do. Complainant testified that she was upset and crying (Tr , 30-32, 36).

3 - 3 - Complainant called 311 and filed a complaint against respondent alleging that he prevented her from making a left turn and that in the process he cursed at her and exposed himself after she wrote down his medallion number (Pet. Ex. 3; Tr. 22). After filing the 311 complaint, complainant returned to her scheduled route (Tr. 31). She did not notify the MTA of the incident (Tr. 51). Complainant testified that she filed another complaint years ago when a taxi driver got out of his taxi, stood in front of her bus, and gave her the finger but since then she has ignored taxi drivers bad behavior. She stated that taxi drivers routinely curse at other vehicles and people, especially bus drivers and that it does not bother her. She filed the instant complaint because respondent s conduct was different than the previous incidents and she wanted to send a message to taxi drivers that this was unacceptable (Tr ). Respondent, a taxi driver since 2009, testified that he was travelling east on Houston Street without any passengers in his taxi. When he got to Essex Street he had a left turn signal and he made a left turn. A bus was also making a left turn which blocked him from completing his turn. The bus driver said that he was blocking the bus and respondent said that she was blocking him. The bus driver started cursing at him and said something about why are Indian people here and to go back to India. Respondent testified that he did not say anything and that he left the intersection first (Tr , 75-76, 78). Respondent testified that he had the window of his taxi closed but that he could hear the bus driver (Tr. 74, 78). He also testified that when the bus driver cursed at him and told him to go back to India that he responded by saying, Where s your grandfather coming from... if I go back to India (Tr. 71). Respondent denied cursing at or exposing himself to the bus driver. Respondent explained that he is deeply religious and stated that I never lie but that if he lies he prays to god (Tr ). He also denied seeing the bus driver write down his medallion number (Tr. 71). Respondent testified that he has had other bus drivers engage in misconduct towards him and that this also happens with other drivers (Tr. 72). In this proceeding, petitioner bears the burden of proof and must establish the charges by a preponderance of the credible evidence. See Taxi & Limousine Comm n v. Sobczak, OATH Index No. 1691/08 at 2 (Apr. 7, 2008), modified on penalty, Comm r/chair s Dec. (May 9, 2008). The resolution of disputed facts such as these often hinges on an assessment of witness credibility. Taxi and Limousine Comm n v. Blake, OATH Index No. 1138/94 at 4 (Aug. 22,

4 ). In making credibility determinations, this tribunal may consider 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 Sanitation v. Menzies, OATH Index No. 678/98 at 2-3 (Feb. 4, 1998), aff d, NYC Civ. Serv. Comm n Item No. CD A (Sept. 9, 1998). Complainant was a credible witness who had no apparent motive to lie. Contrary to respondent s argument that complainant was biased against taxi drivers (Tr ), her testimony that respondent s actions were so disturbing that she could not ignore them was credible. Moreover, her testimony comported with common sense and was consistent with the 311 call. On the other hand respondent had a motive to lie to avoid a finding against him and his testimony about the incident was incredible. It seems unlikely that complainant, with a bus full of passengers, would curse and make racially insensitive remarks to a taxi driver merely because he was blocking a turn. Had she done so, a passenger might have reported her to the MTA. Respondent s testimony was also nonsensical and riddled with inconsistencies. It seems unlikely that respondent never rolled down his window during the verbal exchange and even more unlikely that he could have heard the bus driver speaking to him with his window closed. Respondent said that he never responded to complainant s alleged racial slurs but also testified that he responded with a question about a grandfather. Respondent also claimed that he never lies but stated that when he lies he prays to god. It was also unclear how respondent was able to complete his left turn first, as he claimed, when a 40 foot bus was blocking the intersection. The credible evidence established that respondent was verbally abusive to a bus driver and told her to Shut the fuck up, Fuck you, and Suck my dick. This conduct violated TLC Rule 54-12(f), which provides that [w]hile performing the duties and responsibilities of a Licensee, a Licensee must not threaten, harass, or abuse any person. 35 RCNY 54-12(f) (Lexis 2015). See Taxi & Limousine Comm n v. Ali, OATH Index No. 998/14 at 6 (Dec. 11, 2013) (confronting the driver of another car, yelling at him, and pounding on his window constitutes harassment); Taxi and Limousine Comm n v. Dolley, OATH Index No. 1567/08 at 5-6 (Mar. 24, 2008) (driver harassed passenger by incessantly yelling at her). The credible evidence also established that respondent exposed himself to a bus driver. Thus, respondent violated TLC Rule 54-12(e), which states that a licensee must not deliberately perform or attempt to perform... any act that is against the best interest of the public, although

5 - 5 - not specifically mentioned in these rules. 35 RCNY 54-12(e) (Lexis 2015). Taxi & Limousine Comm n v. Zakout, OATH Index No. 1599/15 (Sept. 23, 2015) (driver who exposed himself to a passenger acted against the public interest); Taxi & Limousine Comm n v. Bautista, OATH Index No. 373/09 (Sept. 12, 2008), modified, Comm r/chair s Dec. (Oct. 24, 2008) (driver who removed penis from his pants and rubbed it in front of passengers acted against the public interest). FINDINGS AND CONCLUSIONS 1. Petitioner proved that respondent acted against the best interests of the public by exposing himself to bus driver in violation of TLC Rule 54-12(e). 2. Petitioner proved that respondent harassed a bus driver by cursing at and making lewd remarks to a bus driver in violation of TLC Rule 54-12(f). RECOMMENDATION Upon making these findings, I reviewed respondent s record as a taxi driver. Respondent has been licensed by the TLC since Respondent has two moving violations from Respondent has been found guilty of acting against the best interests of the public and harassment because he cursed at and exposed himself to a bus driver over a traffic dispute. The Administrative Code and TLC s rules vest the TLC with the authority to revoke a taxicab license. Admin. Code (a) (Lexis 2015); 35 RCNY 68-02(b) (Lexis 2015). Petitioner seeks revocation of respondent s TLC license and the maximum fine. Although license revocation is a severe penalty, it is appropriate in instances where taxicab drivers expose themselves or engage in similar lewd activities. Zakout, OATH 1599/15; Taxi & Limousine Comm n v. Kamal, OATH Index No. 641/14 (Dec. 12, 2013); Bautista, OATH 373/09; Taxi & Limousine Comm n v. Majeed, OATH Index No. 1540/00 (Apr. 12, 2000); Taxi & Limousine Comm n v. Kumar, OATH Index No. 499/00 (Jan. 31, 2000); Taxi and Limousine Comm n v. Rosenberg, OATH Index No. 522/94 (Mar. 23, 1994); Taxi & Limousine Comm n v. Fernandez, OATH Index No. 374/93 (Nov. 5, 1992); Taxi and Limousine Comm n v. Chaudhry, OATH Index No. 701/92 (Sept. 14, 1992); Taxi and Limousine Comm n v. Krikheli, OATH Index No. 588/91 (Jan. 16, 1991); Taxi and Limousine Comm n v. Feuerstein, OATH Index No. 577/89 (Sept. 15, 1989).

6 - 6 - Monetary fines for violations of TLC Rules 54-12(e) and (f) range from $150 to $350 and $350 to $1,000, respectively. 35 RCNY 54-12(e), (f). Thus, under this rule, the maximum penalty would be $1,350. However, TLC Rule 68-13(b)(6)(C) provides that a penalty in a discretionary revocation proceeding heard at OATH may be a fine not to exceed $1,000 for each offense for which a Licensed Driver is found guilty. Thus, under this rule the maximum penalty would be $2,000. Petitioner s request that respondent s license be revoked is reasonable in light of the seriousness of respondent s misconduct. There is no doubt that respondent s actions demonstrate that he should not be driving the public. Similarly, imposition of the maximum penalty provided for by the TLC s rules is also appropriate. Accordingly, respondent s taxicab license should be revoked and a maximum fine of $2,000 imposed. January 5, 2016 SUBMITTED TO: MEERA JOSHI Commissioner APPEARANCES: JOSHUA PAL, ESQ. Attorney for Petitioner PETER M. MAZER, ESQ. Attorney for Respondent Alessandra F. Zorgniotti Administrative Law Judge