Taxi & Limousine Comm’n v. Bogy
OATH Index No. 989/09 (Oct. 1, 2008)*
At a summary suspension hearing, petitioner established that
respondent poses a threat to public safety based upon his arrest for
menacing and criminal possession of a weapon. Continued
suspension of license to drive for-hire vehicles recommended
pending resolution of the criminal charges.
*Subsequent history: License reinstated after prosecutor notified
respondent that it would not be ready to go forward on desk
appearance ticket return date.
_____________________________________________________
NEW YORK CITY OFFICE OF
ADMINISTRATIVE TRIALS AND HEARINGS
In the Matter of
TAXI AND LIMOUSINE COMMISSION
Petitioner
-againstBALLIO BOGY
Respondent
_____________________________________________________
REPORT AND RECOMMENDATION
KEVIN F. CASEY, Administrative Law Judge
The Taxi and Limousine Commission brought this proceeding against respondent, Ballio
Bogy, under Administrative Code section 19-512.1 and title 35, section 8-16(e) of the Rules of
the City of New York (RCNY). Petitioner alleges that respondent’s arrest for menacing and
criminal possession of a weapon in the fourth degree justifies continued suspension of his license
to drive for-hire vehicles pending the resolution of the criminal case.
At a hearing on September 19, 2008, petitioner presented documentary proof of
respondent’s arrest. Respondent testified in his own behalf, denied any wrongdoing, and argued
that suspension would pose an undue hardship.
For the reasons below, I find that petitioner’s evidence is sufficient to warrant
continuation of the suspension.
-2ANALYSIS
On September 11, 2008, New York State’s Department of Criminal Justice Services
(DCJS) notified petitioner that respondent had been arrested and charged with menacing in the
second degree and criminal possession of a weapon in the fourth degree in violation of sections
120.14(1) and 265.01(2) of the Penal Law, respectively (Pet. Ex. 1). Upon receipt of the arrest
notification, petitioner suspended respondent’s license to drive for-hire vehicles. At the hearing
to determine whether the suspension should continue, petitioner relied upon proof of the arrest
and offered no additional facts concerning the charges.
Respondent testified that the arrest stemmed from a dispute with a passenger concerning
a $15 fare. At the end of the ride, the passenger said that she needed to make change. After
getting out of the car, she refused to pay the fare. Respondent summoned a nearby police officer.
According to respondent, he told the officer that the passenger had refused to pay her fare.
Apparently, the passenger told the officer that respondent had threatened her with a weapon.
Respondent conceded that he had a hammer and a spatula or window scraper near his seat in the
front of the car, but he denied that he had threatened anyone. The officer arrested respondent
and issued him a desk appearance ticket directing him to appear in court on October 14, 2008.
During his testimony, respondent described the hardship that he would suffer from
continued suspension of his license. He is 53 years old and has no prior arrests. Without income
from driving, respondent did not know how he would continue to pay his rent or car insurance.
He also expressed concern about family members in Haiti who relied upon him for financial
support.
Section 19-512.1(a) of the Administrative Code allows the Commission “for good cause
shown relating to a direct and substantial threat to the public health or safety” to suspend a
license prior to a hearing and authorizes revocation or suspension after a hearing.
The
Commission’s rules permit pre-hearing suspension “based upon an arrest on criminal charges
that the Chairperson determines is relevant to the licensee’s qualifications for continued
licensure.” 35 RCNY § 8-16(c). Petitioner must notify a licensee of the suspension within five
calendar days and, following receipt of the notice, the licensee has ten days to request a hearing.
35 RCNY § 8-16(d).
Under the Commission’s rules, the only issue at a post-suspension hearing is “whether
the charges underlying the licensee’s arrest, if true, demonstrate that the licensee’s continued
-3licensure while the criminal charges are pending” poses a threat to the public. 35 RCNY § 816(c). Relying, in part, upon a Supreme Court case upholding the validity of a pre-hearing
suspension, petitioner insists that a driver’s testimony regarding the charges is irrelevant and this
tribunal “must presume” the truth of the charge. See, e.g., Taxi & Limousine Comm’n v. Riano,
Comm’r/Chair Dec. (July 11, 2008), rev’g, OATH Index No. 2554/08 (June 11, 2008), citing
Gilbert v. Homar, 520 U.S. 924 (1997).
As this tribunal has repeatedly recognized, it is
questionable whether petitioner’s view of the hearing’s scope comports with due process as
guaranteed by the state and federal constitutions. See, e.g., Taxi & Limousine Comm’n v. Singh,
OATH Index No. 2861/08, at 4 (July 16, 2008).
Here, it is not necessary to decide whether petitioner’s rules are unduly restrictive.
Respondent testified at length about the circumstances leading to his arrest and his denial of any
wrongdoing was unpersuasive.
Indeed, respondent’s testimony established that his arrest
followed a fare dispute with a passenger and he had access to items that, depending on their use,
qualified as weapons. Under these circumstances, where an arrest directly relates to passenger
safety, the evidence justified continued suspension of a license to drive for-hire vehicles.
Although respondent credibly maintained that continued suspension of his license would
be a substantial hardship, those concerns did not overcome petitioner’s significant interest in
protecting the public.
FINDINGS AND CONCLUSIONS
1.
Respondent was arrested for menacing and
possession of a weapon.
criminal
2.
To protect the health and safety of the public, petitioner may
continue respondent’s suspension during the pendency of the
criminal case.
RECOMMENDATION
I recommend continuance of respondent’s suspension during the pendency of his criminal
case.
Kevin F. Casey
Administrative Law Judge
-4-
October 1, 2008
SUBMITTED TO:
MATTHEW W. DAUS
Commissioner/Chair
APPEARANCES:
MARC T. HARDEKOPF, ESQ.
Attorney for Petitioner
BALLIO BOGY
Respondent, pro se