Taxi and Limousine Comm’n v. Rubinov OATH Index No. 451/08 (Oct. 12, 2007)

In proceeding held on default, respondent was found unfit to retain his license on the basis of his conviction for criminal possession of a weapon. ALJ recommended revocation of respondent’s license. ______

NEW YORK CITY OFFICE OF ADMINISTRATIVE TRIALS AND HEARINGS

In the Matter of TAXI AND LIMOUSINE COMMISSION Petitioner - against - ROMIK RUBINOV Respondent ______

REPORT AND RECOMMENDATION TYNIA D. RICHARD, Administrative Law Judge This fitness proceeding was referred by petitioner, the Taxi and Limousine Commission (“TLC” or “Commission”), against respondent Romik Rubinov, a licensed TLC driver, pursuant to the Commission’s rules and the New York City Administrative Code. See 35 RCNY § 8- 15(a); Admin. Code §19-505(l). Petitioner alleges that respondent is unfit to retain his license due to his conviction for criminal possession of a weapon, a violation of section 265.01 of the Penal Law. A hearing was scheduled to be held before me on September 19, 2007. Upon respondent’s failure to appear, proper proof of service of the petition and the notice of hearing were submitted (Pet. Ex. 1). Such evidence established the jurisdictional prerequisites for finding respondent in default and the matter proceeded in the form of an inquest. For the following reasons, I find that, because of his conviction for criminal possession of a weapon, respondent no longer meets the qualifications for licensure and recommend revocation of his TLC driver’s license. 2

ANALYSIS Petitioner has issued respondent a license to operate a motor vehicle, although no where in the record did petitioner specify what type of license had been issued to respondent.1 On August 20, 2007, respondent pled guilty to violating section 265.01 of the Penal Law, criminal possession of a weapon in the fourth degree, a class A misdemeanor (Pet. Ex. 2). He was sentenced to a one-year conditional discharge and issued an order of protection for a year. The record does not indicate exactly what weapon respondent possessed.2 Petitioner submitted in evidence an uncertified copy of the criminal court certificate of disposition, but did not present a plea allocution containing a recitation of facts (Pet. Ex. 2). Moreover, respondent did not appear and present evidence concerning the details of the incident. Based upon the guilty plea to criminal possession of a weapon, I find that respondent was in criminal possession of a weapon. See Cumberland Pharmacy, Inc. v. Blum, 69 A.D.2d 903, 415 N.Y.S.2d 898 (2d Dep’t 1979) (under the doctrine of collateral estoppel, respondent legally foreclosed from contesting facts inconsistent with his guilty plea). On the basis of his conduct, petitioner asserts that respondent lacks “good moral character,” a requirement necessary to maintain his license. As a corollary to his alleged lack of good moral character, petitioner also asserts that respondent’s conduct creates a risk to public safety. A lack of moral character can be shown by criminal conduct that poses a risk to public safety or that directly relates to particular licensing requirements. Mandel v. N.Y.S. Bd. of Regents, 250 N.Y. 173, 176 (1928) (“denial or revocation of a license because of guilty of an offense which tends to show moral or intellectual unfitness . . . is only a measure of protection of the public”); accord Taxi and Limousine Comm’n v. Fuentes, OATH Index No. 201/08, at 3 (Aug. 28, 2007) (whether criminal conduct creates a risk to public safety is another “relevant

1 The Commission’s records do not precisely record when respondent’s license to operate a motor vehicle was issued, nor the type of license issued to him. Under the Administrative Code, there are five types of driver’s licenses issued by TLC with respect to for-hire motor vehicles: taxicab driver’s licenses, coach driver’s licenses, for-hire vehicle driver’s licenses, wheelchair accessible van driver’s licenses, and commuter van driver’s licenses, and all are subject to the same set of rules. Admin. Code § 19-505(a). Inasmuch as the same qualifications are required of each of these for-hire licenses, the decision of this tribunal does not turn on the type of license that was issued. The Commission’s advocate asserted that its records, as indicated in the driver display information (Pet. Ex. 3), suggest that respondent likely obtained his license in the 1980’s. 2 Penal Law section 265.01 lists a variety of weapons that violate its provisions, including any firearm, an electronic dart gun, electronic stun gun, gravity knife, switchblade knife, cane sword, billy, blackjack, bludgeon, metal knuckles, chuka stick, wrist-brace type slingshot, dagger, stiletto, or imitation pistol, among others. 3 factor” in evaluating moral character); Taxi and Limousine Comm’n v. Corrales, OATH Index No. 259/08, at 4 (Aug. 24, 2007). While petitioner relied solely upon the record of respondent’s conviction, and did not present any evidence detailing the events that led to respondent’s arrest and conviction, the conviction alone may be sufficient to find that respondent no longer meets the qualifications for licensure. See, e.g., Taxi and Limousine Comm’n v. Gurevich, OATH Index No. 299/08 (Sept. 4, 2007) (in default proceeding, tribunal held that conviction for driving while impaired rendered driver unfit); Taxi and Limousine Comm’n v. Chuisaca, OATH Index No. 297/08 (Sept. 4, 2007) (same). The Commission notes that its rules for taxicab drivers prohibit possession of a weapon in its vehicles and that doing so is a ground for license revocation (35 RCNY § 2-25(a)). It emphasizes that the illegal possession of a weapon implicates the Commission’s significant interest in public safety. Although there is no evidence that respondent had any weapon inside his TLC vehicle, his conviction is sufficient to raise serious concerns about his ability to interact safely with the public. This concern could possibly be mitigated by evidence to the contrary, however respondent failed even to appear and defend against the charge to preserve his license, which suggests not only a lack of interest in maintaining his license but also represents a refusal to account for his actions to his licensing agency. See Taxi and Limousine Comm’n v. Chulsky, OATH Index No. 233/08, at 3 (Aug. 28, 2007) (“a licensee may rebut petitioner’s case and demonstrate good moral character by, among other things, answering every question at a fitness hearing in an honest and forthright manner”), citing Matter of Kahlon v. McGrath-McKechnie, Index No. 115374/98-001, at 4-5 (Sup. Ct. N.Y. Co., Oct. 6, 1998). I also find significant the fact that his criminal sentence includes an order of protection, thus indicating that one court has already found that respondent presents some danger to the public. In light of the foregoing, I find that respondent is unfit to be a TLC driver because he creates a risk to public safety. For the same reasons, I find him unfit to be a driver on the ground of poor moral character. Accordingly, I conclude that his license should be revoked.

FINDINGS AND CONCLUSIONS 1. Respondent was convicted of criminal possession of a weapon, a violation of section 265.01 of the Penal Law. 4

2. Respondent’s conviction establishes that he is unfit to maintain a license to drive for-hire vehicles for TLC on the grounds that he has demonstrated poor moral character and poses a risk to public safety.

RECOMMENDATION I recommend a finding that respondent is unfit to maintain his license to drive vehicles for TLC and recommend revocation of his license. I might note that respondent’s past record as a driver does not suggest a risk to public safety. His driving record is clean, with no TLC violations (Pet. Ex. 3). Respondent’s record with the Department of Motor Vehicles shows three convictions in the past four years: two in 2007 (for passing on the right and for not having a child restraint device) and a third conviction in 2005 (for operating a motor vehicle while using a mobile phone). He has no points. The Commission’s advocate conceded that respondent’s was a very good driving record, although he hastened to add that the absence of violations might also indicate that respondent does not often use his license. While such a good past record might possibly be considered in mitigation, it is inadequate to overcome the conduct established here.

Tynia D. Richard Administrative Law Judge October 12, 2007

SUBMITTED TO:

MATTHEW W. DAUS Commissioner

APPEARANCES:

MARC T. HARDEKOPF, ESQ. Attorney for Petitioner

No appearance by Respondent