Dep't of Health and Mental Hygiene V

Dep't of Health and Mental Hygiene v. Emish OATH Index No. 710/06 (Dec. 9, 2005)

License revocation recommended for mobile food vendor found guilty of more than four violations of the Administrative and Health Codes within a two-year period. ______

NEW YORK CITY OFFICE OF ADMINISTRATIVE TRIALS AND HEARINGS

In the Matter of DEPARTMENT OF HEALTH AND MENTAL HYGIENE Petitioner - against - SHERIF M. EMISH Respondent ______

REPORT AND RECOMMENDATION

CHARLES D. Mc FAUL, Administrative Law Judge

This license revocation proceeding was referred by petitioner, Department of Health and Mental Hygiene, pursuant to section 17-317 of the Administrative Code, sections 5.05(e) and 89.13 of the Health Code, and section 7-02 of title 24 of the Rules of the City of New York (RCNY). Respondent, a mobile food vendor licensee, is charged with having been found guilty of more than four violations of various provisions of subchapter 2 of chapter 3, title 17 of the Administrative Code within a two-year period. See Admin. Code § 17-317(a)(2), (b); Health Code § 89.13 (Lexis 2005). A hearing on the charges was conducted before me on December 8, 2005, at which respondent failed to appear. Petitioner submitted proof of service of the petition and notice of hearing by certified and regular mail at respondent's last known address of record, which licensed vendors are required to keep current (Pet. Exs. 1 & 2). See Admin. Code § 17-312; Health Code § 89.03(f)(1) and (l). Such evidence established the jurisdictional prerequisite for finding respondent in default under the rules of this tribunal and the matter was submitted on papers. See 48 RCNY § 1-45. -2-

ANALYSIS

Petitioner introduced certified official records to establish that respondent holds mobile food vendor license number 1138917, which expires on May 31, 2007 (Pet. Ex 2). Certified records from the Environmental Control Board further establish that respondent was adjudicated on more than four occasions to have violated various provisions contained in subchapter 2 of chapter 3, title 17 of the Administrative Code during the two-year period 2003 to 2004 (Pet. Ex. 3). FINDINGS AND CONCLUSIONS

1. Respondent was properly served with the charges and notice of hearing.

2. Respondent has been found guilty of more than four violations of various provisions of subchapter 2 of chapter 3, title 17 of the Administrative Code within a two-year period.

RECOMMENDATION

Respondent has demonstrated a persistent disregard for the regulatory scheme pursuant to which he was issued a food vendor license. Respondent's violation history demonstrates that he is not qualified for licensure and I recommend revocation of his food vending license.

Charles D. McFaul Administrative Law Judge

December 9, 2005

SUBMITTED TO:

THOMAS R. FRIEDEN, M.D., M.P.H. Commissioner

APPEARANCES:

JANET GALLAGHER, ESQ. Attorney for Petitioner

No appearance by Respondent