Taxi & Limousine Commission v. Fatawu A. Sibawie, Lic. No. 5329304
DECISION
The appeal of Fatawu A. Sibawie (the “respondent”) is denied .
The decision of the Administrative Law Judge (“ALJ”) is modified to the extent that the $200.00 penalty imposed for the Rule 2-34A violation is vacated. The decision, as so modified, is affirmed .
BACKGROUND
On June 28, 2010, the respondent appealed the decision of ALJ Roxanne Wild dated May 27,
2010. In that decision, the ALJ found respondent in violation of Rules 2-27A(2)
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and 2-34A
2 in connection with summons number 393210C.
The ALJ’s decision states:
The TLC by Mr. Carnivale offered into evidence 4 items: hotel bill from
Millennium Hilton for witness, copy of the taxi receipt, Driver Trip log and 311 phone complaint. A witness by telephone, Ms. Goldberg credibly testified that she had the hotel concierge get her a taxi to take her from the hotel to LaGuardia
Airport. She stated she comes to NYC all the time and always gets the taxi cab information from inside the cab. She gets the cabbie name and number and medallion number. She was not able to do that in the cab, because it was not present. She stated that the Driver did not take the Brooklyn Bridge route which she thought he was going to do. I asked are you taking the Brooklyn Bridge and he said something about the traffic. She stated that she couldn’t really hear him because he was facing forward. The witness stated that the cab got to the Triboro
Bridge and the fare was about $18. She thought that this amount was about the usual amount at this time and figured that toll would be the usual amount she pays. She stated that once they got over the bridge, the amount was about doubled. When the cab got her to the airport and she got the receipt, she asked the cabbie what is this rate 4, $20? She stated that the Driver said he didn’t know and took off. In questioning by the Driver, the Witness stated that she was alone and not with a boyfriend or husband.
The Driver testified that there was a man and a woman. He stated that there was a lot of traffic at this time on a week day, so he went up the FDR where the traffic
1 Failing to have taxicab driver’s license in the appropriate frame
2 Charging or attempting to charge a fare of ten dollars or more above the approved rate of fare for taxicabs
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Taxi and Limousine Commission v. Fatawu A. Sibawie, Lic.No. 5329304 was moving and no trucks on the highway. The Driver offered in his copy of the receipt, which is the same as the one offered by the TLC, except the Driver’s copy has the Witness’ signature. The Driver also offered into evidence a receipt of the next fare which he states was a pick up from the same hotel to LaGuardia again.
The Trip sheet does not show it this way. The Driver stated that when he got to
LaGuardia and the woman signed the receipt, he noticed the rate 4 because she questioned the amount. He stated that he told her to call TLC and take information from the back. He stated he always puts his license and rate card in the frame. He stated he thought something was wrong with his meter, but on cross examination by the TLC, he did not take his meter out of service and go to the garage.
I find the Witness’ testimony credible. I find the Driver did not have his license and rate card in the frame. Guilty. I find that the Driver overcharged the passenger with the rate 4 charge of $20. Guilty. The amount is over $10 and the
Driver’s license is revoked. I do not find that the Driver [did] not use the shortest reasonable route. Dismissed. I do not find that the Driver’s actions rise to an action against a public interest. Dismissed.
On appeal, the respondent argues:
All the elements of the charge must be established. For a 2-34A overcharge,
“intent” must be established and for revocation, an intentional $10.00 or more overcharge must be established. The decision never establishes where the complaining witness was picked up or where the hotel was located? No witness testified as to what the trip should of cost. Rate 4 does not necessarily mean that a fare doubled. Judge is neither a witness nor an expert. What is Rate 4? When does it double a fare, if at all. TLC presented no evidence establishing what the fare should have been or that Rate 4 doubled the fare.
The Taxi & Limousine Commission (the “Commission”) did not file a response to the appeal.
The ALJ’s decision is correct.
ANALYSIS
The meter of a taxicab operating completely within the five boroughs of New York City, when occupied by anyone in addition to the driver, shall be activated at the metered rate of fare defined in Rule 1-70, the standard city rate. This appears on the meter as a Rate Code 1. For taxicabs equipped with the T-PEP system, switching the meter to Rate Code 4 will automatically calculate twice the metered, standard city rate of fare from the time the Rate Code 4 button is
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Taxi and Limousine Commission v. Fatawu A. Sibawie, Lic.No. 5329304 activated. The respondent’s argument that Rate 4 does not necessarily mean that a fare doubled is without merit.
Here, the taxi receipt presented at the hearing showed that this trip occurred on December 10,
2009, start time of 08:01 and an end time of 08:33, with Rate Code 1 for 9.74 miles at a fare of
$23.30 and Rate Code 4 for 4.85 miles at a fare of $20.00. The ALJ credited the taxi receipt and found credible the complaining witness’ testimony that upon arrival at LaGuardia Airport, the taxicab meter was activated at Rate 4 indicating twice the metered fare and showing $20.00 for that portion of the trip. This factual finding establishes the fare charged was, at a minimum,
$10.00 more than the standard city rate.
Rule 2-34A requires evidence that the overcharge was intentional. Intent may be inferred from all of the circumstances surrounding the event ( see Taxi & Limousine Commission v. Antoine
Dauphin , Lic. No. 351927 [January 6, 2009] citing Taxi & Limousine Commission v. Joseph
Exume , Lic. No. 331667 [April 6, 1999] and Taxi & Limousine Commission v. Abdelhafize
Shaddad , Lic. No. 461155 [September 23, 1997]).
The ALJ found credible the witness’ testimony that after getting the receipt and asking the respondent “what is this rate 4, $20.00”, the respondent said he did not know and took off.
Under these circumstances, the respondent’s intent to charge a fare of ten dollars or more above the approved rate of fare for taxicabs was properly inferred. The respondent offered no rebuttal to the inference of intent to overcharge. The findings of the ALJ are based on a determination of credibility and are supported by substantial evidence in the form of the complaining witness’ testimony and the metered rate of fare for taxicabs equipped with the T-PEP system.
Rule 2-87A(2) provides that the mandatory penalty for a violation of Rule 2-34A where the fare charged, or attempted to be charged, is ten dollars or more above the approved rate of fare for taxicabs, is license revocation. There is no provision for a monetary penalty in addition to license revocation. Having imposed the mandatory penalty of license revocation, the ALJ should not have also imposed the $200 fine. The respondent is entitled to a refund, if paid.
The respondent raises no issue on appeal with respect to the Rule 2-27A(2) violation. In the absence of any argument, the ALJ’s decision regarding this violation is affirmed.
Dated: October 4, 2010
Charles R. Fraser
Deputy Commissioner for Legal Affairs
By: Cathryn A. Cohen
Administrative Law Judge, Appeals Unit
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