Taxi & Limousine Commission v. Atilla Yuksel, Lic. No. 5168701
DECISION
The appeal of the Taxi & Limousine Commission (the “Commission”) is denied.
The decision of the Administrative Law Judge (the “ALJ”) is affirmed.
BACKGROUND
On February 10, 2010, the Commission appealed ALJ Lisa Strax’s decision dated February 5,
2010. In that decision, the ALJ dismissed nine Rule 2-12A1 violations stated in summons
numbers AD01712 through AD01720, inclusive.
The ALJ’s decision states:
The respondent is charged with for-hire activity while on suspension in violation
of TLC rule 2-12(a). The commission presents its case on written documents
without any witnesses testifying from personal knowledge as to the entries
contained therein or accuracy thereof.
The commission presents a TLC CAMIS record, which shows the vehicle was on
suspension on the day in question for LEGAL. I find this record to be properly
authenticated as full, complete and accurate, and kept in the ordinary course of
TLC business. I further find this respondent to have been on a summary
suspension on the day in question.
The commission also presents a Tripsheet Report prepared and maintained by a
independent private third-party entity, Creative Mobile Technologies (“CMT”).
A distinction must be made between a certification that the entries contained
within a record are true, accurate and complete and an authentication that the
document itself is a true and authentic copy of a record maintained or prepared by
a third party.
I find TLC’s internet access to such records does not rise to the level of qualifying
them as records kept in the ordinary course of TLC business. However there is no
requirement that the document be certified as a business record for the purpose of
establishing the truth of entries contained therein. TLC v. Sohan Singh Gill, Lic.
No. 865100. After review of the document in question, absent any other
corroborative evidence, I do not give this record sufficient weight to prove this
respondent to have been engaged in for-hire activity on the days in question. I
further find this record has not been properly authenticated as a true and complete
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Operating a taxicab with a suspended taxicab driver’s license
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Taxi & Limousine Commission v. Atilla Yuksel, Lic. No. 5168701
copy of a record maintained in the ordinary course of business of CMT business.
TLC v. Suculanda, Lic. No. 5122401
The respondent further seeks to challenge the validity of the underlying
suspension, on the ground that the procedure followed in its imposition did not
comply with the guidelines set forth in TLC 8-16. The validity of the suspension
is presumed upon the presentation of proper documentation. This is a rebuttable
presumption which must be raised and proven by the respondent. I find the
respondent has not sustained his burden to establish the suspension was erroneous
because of procedural error, clerical error or otherwise. The mere allegation that
the proper procedure was not followed is not proof that that was not so.
That being said, I find the commission has failed to present any evidence that the
respondent had notice of the suspension of his TLC license. Mr. Akinolo has
made a belated appearance during the hearing and cites to Appeals cases as
holding that there is no requirement for the TLC to notify licensees of a license
suspension. However, Mr. Akinolo was unable to provide a copy of said
decision(s) or otherwise identify them so Mr. Scifo might argue in opposition or
distinguish.
I find notice of suspension is an essential element of the particular rule violation
charged. The issue of notice of a suspension was squarely addressed in the Matter
of Udodenko. As stated by Judge Ling-Cohan, “The TLC’s failure to provide
petitioner with written notice that his FHV license had been suspended and its
failure to provide petitioner with a pre-suspension or immediate post suspension
hearing to present evidence to contest suspension, violated the requirements of
procedural due process”. Udodenko v. NYC et al., Supreme Court, New York
County, Index No.100422/04 at 8. See also, New York Apple Tours, Inc. v
Hoffman, 278 AD2d at 73.
The summonses are dismissed for all the reason stated hereinabove.
On appeal, the Commission argues that there is no requirement that documents presented at
administrative proceedings be authenticated, that there is no need for authentication where there
is no dispute as to the truth of the facts contained in the document and the respondent never
disputed that he drove the vehicle on the days he allegedly drove while on suspension. The
Commission further alleges that the ALJ’s findings are not supported by substantial evidence.
The Commission also maintains that the driver’s alleged unawareness of his license suspension
is not a defense to a charge of operating with a suspended license, that the Commission did give
notice to the respondent and that the ALJ took over the respondent’s case and assumed the role
of an advocate.
The Commission also argues:
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Taxi & Limousine Commission v. Atilla Yuksel, Lic. No. 5168701
In dismissing the §2-12(a) charges in the summonses . . . the ALJ applied strict
standards of evidence that are not required in an administrative hearing. The New
York city charter, (City Administrative [P]rocedure Act §1046(c)(1) states that
adherence to formal rules of evidence is not required at an administrative hearing.
The ALJ . . . is free to gather information without the encumbrances of minute
rules of evidence. In TLC cases heard at the Office of Administrative Trials and
Hearings electronic trip sheets are admitted into evidence as a matter of course
without a foundation, certification, or authentication. . . . Certification and
authentication take the place of live witness testimony from individuals
maintaining records. DMV records presented by the TLC are certified so as to
prevent the need for live testimony from a DMV employee. The trip sheets . . .
here are different in a number of respects. First, since the trip sheets records are
electronically generated and housed, there is no “live person” to attest to the
individual records. Second, the driver himself inputs the information himself by
turning the meter on and off. Finally, the data is maintained by a third party
vendor not the TLC. The TLC has no control over the data.
The Commission further argues that no other trip records were offered by the respondent because
there are no other trip records available. All taxicabs are now equipped with a taxicab
technology system that automatically records trip data and generates electronic trip records. The
vendors who have contracted with the Commission are required to provide access to trip sheets,
which are generated electronically through the data collected from the technology system. The
Commission and the medallion owners and drivers have access to these systems and can obtain
electronic trip sheets from the vendors through the vendor’s website.
Attila Yuksel (the “respondent”) did not submit a response to the Commission’s appeal.
ANALYSIS
The ALJ is correct insofar as she held that notice of suspension was required in these matters.
The respondent’s suspension arose from his being arrested. Rule 8-16C provides that the
Chairperson of the Commission may summarily suspend a license based upon an arrest on
criminal charges where the Chairperson determines that the criminal charges are relevant to the
licensee’s qualifications for continued licensure. However, Rule 8-16D requires that the
Commission notify the licensee of the summary suspension within five calendar days of the
suspension, whereupon the licensee may request a hearing within ten calendar days of receipt of
the notice of suspension. If a hearing is requested, the Commission must schedule it within ten
days from receipt of the request, unless the Commission determines that such hearing would be
prejudicial to any ongoing criminal or civil investigation. Service of the notice is essential to
notify a licensee that he has been suspended since suspension is not mandatory upon an arrest,
and the notice also triggers the licensee’s right to request a hearing to contest the suspension. It
should be noted that the notification requirement does not stem from the decision in Udodenko v.
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Taxi & Limousine Commission v. Atilla Yuksel, Lic. No. 5168701
The City of New York (5 Misc 3d 207 [2004]). Rule 8-16, with a suspension notification
provision, became effective December 31, 1999, long before the Udodenko decision. A
subsequent amendment added the provision permitting the Chairperson to summarily suspend for
an arrest on criminal charges.
Proof of service of the suspension notice provided for in Rule 8-16 is not part of the
Commission’s prima facie case. On the charge of operating a taxicab with a suspended license.
Nevertheless, when the claim is made that the required notice was not given, the Commission
must establish that it did, in fact, serve the notice. The Commission’s position that a driver’s
awareness of his suspension is irrelevant implies that there is no requirement for service of a
suspension notice on a licensee. Such a holding would be inconsistent with the requirements of
the Commission’s own Rule. The case relied on by the Commission, Taxi & Limousine
Commission v. Mohammed S. Mehr (Lic. No. 459069 [April 17, 2009]), which also involved a
summary suspension for an arrest, did hold that a respondent’s lack of awareness of his license
suspension is not a defense to a charge of operating a taxicab with a suspended license and a
driver with a suspended license is prohibited from operating a medallion taxicab at any time. To
the extent that the Mehr case implies it is unnecessary to serve a notice of suspension for a
summary suspension based on an arrest, it should not be followed.
The other arguments raised by the Commission are either without merit or do not warrant
disturbing the ALJ’s decision in view of the failure to show that the Commission served a notice
of suspension on the respondent.
Dated: June 10, 2010
Charles R. Fraser
Deputy Commissioner for Legal Affairs
By: Thomas Bonanno
Administrative Law Judge, Appeals Unit
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