Taxi & Limousine Comm n v. John OATH Index No. 2858/10 (July 15, 2010)

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1 Taxi & Limousine Comm n v. John OATH Index No. 2858/10 (July 15, 2010) Taxi driver alleged to have overcharged passengers. In a default proceeding, ALJ found taximeter data sufficient to establish 570 instances of overcharges and recommended revocation of driver s hack license and an $850 fine. NEW YORK CITY OFFICE OF ADMINISTRATIVE TRIALS AND HEARINGS In the Matter of TAXI AND LIMOUSINE COMMISSION Petitioner - against - MICHAEL JOHN Respondent REPORT AND RECOMMENDATION JOHN B. SPOONER, Administrative Law Judge This license revocation proceeding was referred by the Taxi and Limousine Commission ( TLC ), pursuant to the New York City Administrative Code and Title 35 of the Rules of the City of New York ( RCNY ). Respondent Michael John, a taxi driver, is charged with overcharging passengers on 570 occasions, in violation of 35 RCNY section 2-34(a) (Lexis 2010) (Pet. Ex. 1). After respondent failed to appear for the hearing scheduled for July 6, 2010, petitioner submitted proof of service sufficient to establish that it mailed the petition and notice of hearing to respondent at the address he provided to TLC (Pet. Exs. 1, 2). The petition placed respondent on notice that the proceeding might result in suspension, fines, and revocation of his TLC license. Based upon this evidence, respondent was found in default and the hearing went forward in the form of an inquest. At the hearing petitioner relied upon documentary evidence and called one witness. As discussed below, I find that petitioner s proof was sufficient to sustain the charges. I recommend that respondent s hack license be revoked and that he be fined $850.

2 -2- ANALYSIS This case relies heavily upon newly implemented technology to establish that respondent has repeatedly overcharged passengers over the course of 17 months. Since 2007 the Commission has required that all taxicabs be equipped with a taxicab technology system. 35 RCNY 1-11 (Lexis 2009). The taxicab technology system, also known as TPEP, provides for electronic trip sheets which employ a global positioning system ( GPS ), a driver monitor for text messaging, credit card capability, and a backseat passenger information monitor. See 35 RCNY 3-03(e)(6) (Lexis 2009). Under TPEP, each taxi is equipped with a meter which displays the fare, any surcharges, and the rate number for the trip (Pet. Ex. 4). The authorized fare rates range from 1 to 5 as follows: (1) trips within New York City; (2) trips to and from JFK airport and Manhattan; (3) trips to Newark airport; (4) trips to Nassau and Westchester counties; and (5) negotiated fares. Rate 4 is double rate 1. When driving to Nassau or Westchester County, drivers start with rate 1 in the City and change to rate 4 when they cross the county line (Pet. Ex. 3). The rationale for enhanced fares outside the City limits is that drivers should be reimbursed for their return trip because they are not permitted to pick up a fare outside the City. As demonstrated by equipment manuals (Pet. Ex. 4), the driver manually sets the rate by pushing a button on the meter to start the trip. At any time during the trip the driver can push a button to change the rate. There are three brands of taxi meters authorized for installation in City taxicabs: TaxiTronic, Centrodyne, and Pulsar. Each brand employs a slightly different method of engaging and changing rates, which drivers are obliged to learn. Systems analyst Serge Royter testified that TLC recently completed an investigation into whether taxi drivers were improperly using rate 4 when driving passengers within New York City. From the various TPEP vendors, TLC obtained data on taxi trips including the driver s license number; the date, time, and pick-up and drop-off locations for each trip; the fare charged; and the rate used. In analyzing the data, TLC found that over 500 drivers had activated rate 4 more than 50 times during the period for trips inside New York City and commenced license revocation proceedings against these drivers, on the theory that, based upon the trip data, these activations represented intentional overcharges (Pet. Ex. 6).

3 -3- Mr. Royter further testified that based on the supplied vendor data he created and ran a Rate 4 Database Report (Pet. Ex. 5b), which revealed that between September 6, 2008, and February 27, 2010, respondent improperly activated the rate 4 fare 570 times within New York City. In reaching this count, Mr. Royter filtered out all rate 4 trips ending in Nassau or Westchester counties, and duplicate trips. In addition, TLC used two methods to eliminate rate 4 trips that may have been activation errors in that, even though the rate 4 code was activated, the passenger was not overcharged. Specifically, TLC did not count trips where the rate 4 activation occurred during the last 20 percent of the ride or (for instances where the rate 4 activation time was not recorded) where the fare, with the rate 4 activated, did not exceed a maximum fare calculation for the ride, based upon distance and time traveled. Mr. Royter confirmed that the Rate 4 Database Report (Pet Ex. 5b) accurately reflects respondent s misuse of rate 4 between September 6, 2008, and February 27, Rule 2-34(a) states, A driver shall not charge or attempt to charge a fare above the approved rates, as provided by these rules. Here, the unrebutted, credible evidence demonstrates that respondent overcharged passengers by improperly using a rate 4 fare, as alleged by petitioner. There is no evidence that respondent s meter was malfunctioning or that he did not understand how his meter worked. The frequency of respondent s improper rate 4 activations was high throughout the period, a fact consistent with deliberate overcharging of passengers. Petitioner offered respondent s trip sheets for April 26 and May 17, 2009 (Pet. Ex. 7b), which confirmed that on those dates respondent used rate 4 for more than 28 trips as indicated in the Rate 4 Database Report. Comparison of this tripsheet data with petitioner s Rate 4 Database Report corroborates the reliability of the report. The tripsheet records for another driver who drove the same taxicab on these dates show no rate 4 fares at all, suggesting that the meter operated properly. For all of these reasons, I find that, between September 6, 2008, and February 27, 2010, respondent overcharged passengers 570 times in violation of 35 RCNY section 2-34(a).

4 -4- FINDINGS AND CONCLUSIONS 1. Respondent was properly served with the petition and notice of hearing. 2. Between September 6, 2008, and February 27, 2010, respondent overcharged passengers 570 times in violation of 35 RCNY section 2-34(a). RECOMMENDATION As a penalty here, petitioner seeks revocation of respondent s hack license and the maximum fine. This request is reasonable. Rule 2-87 sets forth the penalty for violations of rule 2-34 and also provides, Nothing contained herein shall limit or restrict any other authority the Commission may have to suspend or revoke a driver s license. 35 RCNY 2-87(a)(1) (Lexis 2009). Rule 8-03(b)(ii) states that, the Commission may, in its discretion, impose a penalty of license revocation... and/or a fine not to exceed $1,000 for each violation against a licensed driver. 35 RCNY 8-03(b)(ii) (Lexis 2009); see also NYC Admin. Code (l). Respondent s manipulation of his meter to overcharge 570 passengers within a 17-month period was egregiously dishonest. The riding public should be able to trust that taxi drivers will transport them safely and charge the legally permitted fares. Here, where petitioner demonstrated with uncontroverted evidence that respondent has a pattern of intentionally deceiving passengers by using an unauthorized rate on his meter, revocation of his hack license is appropriate. Taxi and Limousine Comm n v. Cheema, OATH Index No. 1450/10 (Jan. 21, 2010) (hack license revoked where driver improperly used rate 4 and overcharged passengers 574 times within a one-month period. I further find that petitioner s request for a $850 fine, the same fine authorized for a first and second overcharge violation under section 2-87, is not excessive under rule 8-03(b)(ii), which permits fines of up to $1,000 per violation.

5 -5- $850. Accordingly, I recommend that respondent s hack license be revoked and that he be fined John B. Spooner Administrative Law Judge July 15, 2010 SUBMITTED TO: DAVID YASSKY Commissioner/Chair APPEARANCES: MARK T. HARDEKOPF, ESQ. Attorney for Petitioner No Appearance by Respondent