Taxi & Limousine Comm’n v. Liriano OATH Index No. 242/09 (July 18, 2008)

In a summary suspension proceeding, a for-hire vehicle driver was arrested and charged with possession of a controlled substance in the third degree. In the absence of other proof, ALJ found the arrest sufficient to establish a threat to the public safety and recommended continued suspension of respondent’s taxi driver’s license. ______

NEW YORK CITY OFFICE OF ADMINISTRATIVE TRIALS AND HEARINGS

In the Matter of TAXI AND LIMOUSINE COMMISSION Petitioner -against- RAMON LIRIANO Respondent ______

REPORT AND RECOMMENDATION JOHN B. SPOONER, Administrative Law Judge This proceeding was commenced by the Taxi and Limousine Commission against respondent, Ramon Liriano, pursuant to 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 respond- ent’s arrest for third degree criminal possession of a controlled substance warrants suspension of his for-hire vehicle driver’s license pending the outcome of the criminal charges. A hearing was held before me on July 14, 2008. Petitioner offered proof that respondent was arrested. Respondent appeared with counsel and argued that the fact of his arrest was insuf- ficient to establish that he was a threat to the public. For the reasons provided below, I find petitioner’s evidence sufficient to continue the suspension of respondent’s for-hire driver’s license.

ANALYSIS 2

In this case, petitioner suspended respondent’s license following notification of his arrest on June 27, 2008. The suspension of respondent’s license was pursuant to the Commission’s authority under the Administrative Code and its own rules. Section 19-512.1 of the Code authorizes the Commission “for good cause shown relating to a threat to the public health, or safety” to suspend a license pre-hearing and to suspend or revoke the license after a hearing. Commission rules specifically define the Commission’s authority as it pertains to arrests. Pursuant to Commission rule 8-16(c), the Chairperson “may summarily suspend a license . . . 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). Where the suspension is based upon the driver’s arrest, the issue to be determined in a summary suspension hearing is “whether the charges underlying the licensee's arrest, if true, demonstrate that the licensee's continued licensure during the pendency of the criminal charges would pose a threat to the health or safety of the public.” Id. The Commission must either lift the suspension or commence a revocation proceeding within five days of receiving the certificate of disposition. Petitioner’s sole proof consisted of a photocopy of an arrest notification form (Pet. Ex. 1) sent on June 27, 2008. This form, generated by the New York State Department of Criminal Justice Services (“DCJS”) to the Taxi and Limousine Commission, indicates that DCJS received “an Arrest Fingerprint card” for respondent, an individual who holds a Commission license. The form contains respondent’s name, date of birth, address, and license or application number. It also indicates, presumably based upon data from the fingerprint card, that respondent was arrested on June 27, 2008, at “NYCPD 33” at 8:05 p.m., for third degree and fourth degree possession of a controlled substance . On the advice of his attorney, respondent chose not to testify at the hearing because of the criminal charges still pending against him. His attorney argued that the mere fact of respond- ent’s arrest for drug possession, standing alone, was insufficient to warrant concluding that respondent was a threat to the public such that respondent’s suspension should be continued. As provided in rule 8-16(c), the focus of the summary suspension hearing is whether the “charges underlying the licensee’s arrest,” if true, establish that reinstating respondent’s license would pose a threat to the public safety. A person commits possession of a controlled substance in the third degree, a class B felony, when he knowingly and unlawfully possesses an illegal narcotic drug “with intent to sell it.” Penal Law § 220.16(1) (Lexis 2008). Possession of a 3 controlled substance in the fourth degree, a class C felony, consists of possessing one-eighth ounce or more of a narcotic. Penal Law § 220.09 (Lexis 2008). Respondent’s attorney noted that the City Council recently amended section 19-512.1 of the Administrative Code by indicating that suspension of a license would only be appropriate where the pending criminal charges pose a “direct and substantial threat” to the public health or safety. He also cites a recently issued statement by the Commission indicating that the Commission interprets the “threat” mentioned in section 19-512.1 of the Administrative Code and in section 8-16(c) of its own rules to require a finding that of a “direct and substantial threat” to the health or safety of the public. The Commission recently announced its intention to amend section 8-16(c) to provide for suspension after licensee’s arrest where “pendency of the criminal charges would pose a direct and substantial threat to the health or safety of the public.” In a Commission Statement of Basis and Purpose of Proposed Rule, the Commission stated that “the proposed rules would codify the Commission’s existing practice of summarily suspending a license only when continued licensure poses a direct and substantial threat to public health or safety.” See Resp. Ex. A. Counsel for petitioner conceded that demonstration of a “direct and substantial threat” was required based upon the Commission’s own proclamation of its suspension policy. The issue raised here is thus whether the fact that respondent was arrested for criminal possession of a controlled substance in the third degree, standing alone, demonstrates that his continued driving of a for-hire vehicle would pose a “direct and substantial threat to the health or safety of the public.” The criminal statute defines this offense as knowingly and unlawfully possessing a narcotic drug with intent to sell. It is true, as pointed out by respondent’s attorney, that there is no indication that the narcotics were recovered while respondent was in a vehicle. On the other hand, there is certainly merit to the argument of petitioner’s counsel that drug offenses generally are a threat to the public safety. There can also be no question that the narcotics industry was and is notoriously violent, with sellers and buyers often firing weapons at one another and injuring bystanders. Indeed, New York’s criminal drug laws, known as the Rockefeller laws, are labeled “offenses against public health and morals.” They were originally enacted in 1973 with the goal of controlling both drug use and also drug-related criminal conduct. Drug offenses were graded according to not only the quantity but also the dangerousness of the drug involved. See State of 4

New York, Proposed New York State Controlled Substances Act and Revision of Article 220 of the Penal Law: Interim Report of the Temporary State Commission to Evaluate the Drug Laws, Leg. Doc. No. 10, at 59 (1972). As petitioner’s counsel points out, the fact that the narcotics offense for which respondent was arrested is classified as a B felony is the equivalent of a legislative finding that possessing illegal narcotics is highly dangerous and inimical to the public safety. The pending criminal charges in this case indicate that, at respondent’s arrest, he was in possession of one-eighth ounce of illegal narcotics. In the absence of any other proof from respondent, the possession of these drugs demonstrates that respondent was probably using the drugs himself, selling them to others, or perhaps both. If he was using narcotics, he may be incapacitated from operating a motor vehicle, let alone driving passengers. If he was selling narcotics, his continued driving raises the possibility that he may keep drugs in his vehicle and transact drug sales after or before transporting passengers. In sum, respondent’s continued driving of a for-hire vehicle poses a “direct and substantial threat” to the public safety due to the likelihood of his impaired ability to drive or to his involvement in highly dangerous drug transactions while driving his for-hire vehicle. Based upon this evidence, I therefore recommend that the suspension of respondent’s license be continued. FINDING AND CONCLUSION The suspension of respondent’s for-hire vehicle license should be continued because petitioner established that the charges underlying his June 27, 2008 arrest for third degree possession of a controlled substance show that his continued licensure would pose a direct and substantial threat to the public health and safety pursuant to 35 RCNY section 8-16(c).

John B. Spooner Administrative Law Judge July 18, 2008

SUBMITTED TO:

MATTHEW W. DAUS Commissioner/Chair 5

APPEARANCES:

MARC T. HARDEKOPF, ESQ. Attorney for Petitioner

PETER MAZER, ESQ. Attorney for Respondent