Taxi & Limousine Comm n v. Khaimov OATH Index No. 1872/08 (Mar. 25, 2008)

Transcription

1 Taxi & Limousine Comm n v. Khaimov OATH Index No. 1872/08 (Mar. 25, 2008) Revocation of for-hire vehicle recommended based upon finding that driver s continued licensure following his recent conviction for driving while impaired would pose a threat to the public safety. NEW YORK CITY OFFICE OF ADMINISTRATIVE TRIALS AND HEARINGS In the Matter of TAXI AND LIMOUSINE COMMISSION Petitioner -against- ALLIK KHAIMOV Respondent REPORT AND RECOMMENDATION FAYE LEWIS, Administrative Law Judge Petitioner, the Taxi and Limousine Commission, brought this fitness proceeding against respondent, Allik Khaimov, a licensed driver of for-hire vehicles, under its rules and New York City s Administrative Code. 35 RCNY 8-15(a) (LEXIS 2007); Admin. Code Petitioner contends that respondent no longer meets the requirements for licensure because of his November 29, 2007, conviction for driving while impaired, a violation. Respondent contends that a particularized assessment of risk is required and that in this case petitioner has not established that his continued licensure would pose a threat to the public safety. A hearing was held on March 14, Petitioner presented documentary evidence to establish respondent s conviction. Respondent also introduced documentary evidence of his completion of a drinking driver program. At respondent s request, the record was kept open until March 21, 2008 for his counsel to have a further opportunity to obtain information relating to the arrest. On March 20, 2008, respondent presented a criminal court complaint, which was taken into evidence, and which stated, inter alia, that the respondent had submitted to a breathalyzer test which showed a blood alcohol concentration of.095 (Resp. Ex. B).

2 - 2 - As set forth below, I find that respondent s continued licensure would pose a threat to the public safety, and recommend revocation of his license to drive a for-hire vehicle. ANALYSIS Respondent received his for-hire vehicle license on June 11, On November 28, 2007, he was arrested in Brooklyn on misdemeanor charges of driving while intoxicated, Veh. & Traff. Law 1192(2), (3), as well as the infraction of making an unsafe turn or failing to give an appropriate signal, Veh. & Traff. Law 1163(a) (Pet. Ex. 1) (Lexis 2008). The next day, November 29, 2007, respondent pled guilty to driving while impaired, which is a violation. Veh. & Traff. Law 1192(1) (Lexis 2008). He was sentenced to a year s conditional discharge, and a $300 fine, and his Department of Motor Vehicles ( DMV ) license was suspended for 90 days (Pet. Ex. 2). Respondent submitted proof that he had entered a New York State drinking driver program ( DDP ) on January 10, 2008, and completed the program on February 21, 2008 (Resp. Ex. A). Petitioner presented evidence of respondent s TLC adjudication record, which contains but two violations, both in August, 2007 (one for parking and one for smoking in his car), as well as respondent s DMV record, which indicates a total of eight convictions, including three in the last five years (Pet. Ex. B). Of these three DMV violations, two relate to respondent s November 28, 2007, arrest for driving while impaired; the other one is for passing a red light (Pet. Ex. B). In mitigation, respondent testified that he is 57 years old. He has had a TLC license for about 13 years, during which he has driven a for-hire vehicle, or black car. On November 28, 2007, he was on his way home when he decided to pull over his car and have a beer. He acknowledged that the car he was driving at the time was the for-hire vehicle. He parked the car and sat for about twenty minutes, drinking the beer. He did not finish the beer, but left a little in the bottle. He then waited twenty to thirty minutes before starting to drive. Respondent asserted that he then very slowly started to drive. He acknowledged, however, that he was stopped by a police officer who said he was speeding, but did not give him a speeding ticket. Respondent said he was driving perhaps 40 or 45 miles per hour in a 30 mile per hour zone. He stated that this was his first arrest for driving while drinking. Respondent s attorney argued that it is impermissible to presume from a driver s conviction for driving while impaired, which is a violation, not a crime, that the driver poses a

3 - 3 - threat to the public health and safety. Rather, counsel asserts, this tribunal must take into account the totality of circumstances, relating both to the arrest and respondent s prior DMV and TLC records. By analogy, counsel cites to parole board hearings, which require a case by case determination of whether a prisoner should be released on parole. See 8 NYCRR (parole release decision) (Lexis 2008). Petitioner s counsel agreed that in this case, where respondent testified about his arrest, I should consider the factual circumstances surrounding his arrest. I agree with both counsels that the assessment of risk to the public health and safety should be individualized. However, I find that in this case, this assessment militates against respondent s continued licensure. As Judge Salzman recently found in a similar case, involving a conviction for driving while intoxicated, it is helpful in assessing risk to consider the factors set forth in article 23-A of the New York State Correction Law, which prohibits unfair discrimination against ex-offenders in employment or licensure, unless there is a direct relationship between the criminal offense and the specific license sought or held, or the continuation of the license would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public. Taxi & Limousine Comm n v. Louissant, OATH Index No. 1627/08, at 2 (Mar. 11, 2008); N.Y. Correct. Law 752 (Lexis 2008). Among the factors that may be considered are the seriousness of the offense, the relationship between the offense and the specific duties and responsibilities relating to licensure, the time which has elapsed since the commission of the crime, the age of the licensee, any information relating to the licensee s rehabilitation and good conduct, and the interest of the public agency in protecting the general public. Louissant, OATH 1627/08, at 3, 6; N.Y. Correct. Law 753 (Lexis 2008). In Louissant, despite the driver having had no violations on his Commission record since 1999, Judge Salzman concluded that revocation of his license was warranted, based upon the nexus between the DWI conviction and licensure, which was very close, the fact that respondent was a mature adult who should have known better, and the relative recency of the conviction, which occurred on January 9, 2008 (the arrest was slightly earlier, on December 30, 2007). Judge Salzman took note of the fact that respondent was driving his own car, while arrested, not a taxicab, although she concluded that that factor did not diminish the gravity of the safety risk. Louissant, OATH 1627/08, at 6.

4 - 4 - This case differs from Louissant in that respondent, unlike Mr. Louissant, was convicted of driving while impaired, a violation rather than a crime. However, driving while impaired by its nature involves driving under the influence of alcohol. Without doubt, therefore, there is a nexus between the behavior underlying respondent s conviction and the duties and responsibilities of a licensed taxi driver. In several cases, we have noted that licensed taxi drivers, who are entrusted with the safety of passengers and the general public, may be held to a higher standard of care than the rest of the driving public. Taxi & Limousine Comm n v. Rudy, OATH Index No. 662/08, at 3 (Nov. 26, 2007) (licensee convicted of driving while impaired poses threat to public safety); Taxi & Limousine Comm n v. Pina, OATH Index No. 573/08 (Oct. 15, 2007) (same); Taxi & Limousine Comm n v. Chulsky, OATH Index No. 233/08, at 3 (Aug. 28, 2007) (same). In each of these cases, we have recommended revocation, notwithstanding that the driver s convictions were for driving while impaired, not driving while intoxicated. See also Taxi & Limousine Comm n v. Corrales, Index No. 259/08, at 5 (Aug. 24, 2007) (higher standard of care noted in finding public safety risk based upon licensee s conviction for driving while intoxicated). Undeniably, it weighs in respondent s favor is that he has been a licensee for eighteen years and has a minimal TLC and DMV adjudicative record. It is also in his favor that he completed a New York State drinking driver program. However, it is of serious concern that respondent consumed alcohol in his for-hire vehicle, rather than his private car. It is not clear why respondent chose to have a drink in his car, purportedly on his way home, rather than simply go home and then have a drink. Respondent did not provide any assurances that he would behave differently in the future. As a mature adult, he should have known better than to be so irresponsible. The TLC rules speak to the seriousness with which that licensing entity views driving a for-hire vehicle while under the influence of alcohol. Rule 6-16(t) of the forhire-vehicle rules explicitly prohibits a driver from operating a for-hire-vehicle while impaired by intoxicating liquor, and it also prohibits a driver from operating a for-hire-vehicle within six hours of drinking such a beverage. It is not clear whether rule 6-16(t) was intended to apply to off-duty driving, such as respondent contends he was engaged in, and respondent was not charged under this rule in the petition. Nonetheless, it is appropriate to consider rule 6-16(t), and the mandatory penalty for its violation, in assessing whether respondent s continued licensure

5 - 5 - would pose a threat to the public health, or safety, justifying revocation under section of the Administrative Code. Moreover, as in Louissant, only a short period of time has elapsed between respondent s conviction for drinking and driving and the time of the hearing. The relative recency of the conviction is a significant factor weighing against permitting respondent to keep his license at this time. It may well be, given respondent s long and almost unblemished driving record, that his decision to have a beer in his car on his way home was a mere aberration, never to re-occur. It is worthy of note that in at least one decision, the Supreme Court suggested that, for a driver convicted of driving while impaired who sought renewal of his hack license, a suspension of that license for six months following his completion of a drinking driver s program, followed by reevaluation of his fitness, was appropriate, rather than revocation of the hack license. Matter of Kahlon v. McGrath-McKechnie, Index No /98-001, at 4-5 (Sup. Ct. N.Y. Co. Oct. 16, 1998) (finding revocation of a taxicab driver s license based upon a driving while impaired conviction to be grossly disproportionate and remanding for further consideration). However, in that case, the driver was driving his private vehicle when arrested. In the instant matter, not only was respondent driving a for-hire vehicle, he chose to drink alcohol within that vehicle, which is an additional aggravating factor. Given the evidence that respondent s blood alcohol content was.095, I was skeptical of his claim that he drank less than one beer. I was not persuaded that respondent would not engage in similar reckless conduct in the future. Additionally, Kahlon stemmed from a fitness hearing, in which it was relevant that the driver had fully disclosed the incident in his license renewal application and had answered all questions posed in an honest and forthright manner. Id., at 4. This case, by contrast, is a revocation proceeding where the question of full disclosure never came into play. Thus, in this case, as did Judge Salzman in Louissant, I find it premature to conclude that respondent does not pose a risk to the public safety. OATH 1627/08, at 7. In all, notwithstanding respondent s lengthy tenure as a licensee, his relatively good history as a driver, and his completion of a drinking driver s program, I am convinced that revocation of his license is warranted -- based upon the nexus between his driving while impaired conviction and his duties and responsibilities as a cab driver, the recency of his conviction, and the fact that he chose to drink in his for-hire vehicle and then drive that vehicle. See Taxi & Limousine Comm n v. Rudy, OATH 662/08 (recommending revocation despite the

6 - 6 - driver s 18-year tenure as a licensee and his good driving record, noting the recency of his conviction, the nexus between his conviction for driving while impaired and his continuing ability to hold a hack license, and respondent s decision not to testify nor present any evidence in mitigation); see also Pina, OATH 573/08, at 5 (in finding a public safety risk despite the driver s completion of a stop DWI class, noting the relatively recent nature of the incident and respondent s probationary status). FINDINGS AND CONCLUSIONS Petitioner established that respondent poses a risk to public safety due to his recent conviction for driving while impaired by alcohol. RECOMMENDATION I recommend that respondent s for-hire vehicle driver s license be revoked. Faye Lewis Administrative Law Judge March 25, 2008 SUBMITTED TO: MATTHEW W. DAUS Commissioner APPEARANCES: MARC T. HARDEKOPF, ESQ. Attorney for Petitioner CYNTHIA D. FISHER Attorney for Respondent