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(b) The determination of an ALJ at the OATH Tribunal will be a Recommended Decision, subject to review by the Chairperson for the following matters:
2. penalty determinations in padlocking or proceedings under subdivision (b) of § 19-528 of the Administrative Code; and
3. findings and penalty determinations in Summary Suspension proceedings pending Revocation and in Summary Suspension proceedings pending Compliance.
(Amended City Record 2/2/2023, eff. 3/4/2023)
(a) Respondent's Opportunity to Respond.
1. When a Recommended Decision is issued, the Respondent must be given an opportunity to provide a written response to the Chairperson.
2. The response from the Respondent must be limited to only the record of the hearing and the determination of the OATH ALJ.
(b) Submission to Chairperson. The Recommended Decision and record of the hearing will be submitted to the Chairperson along with any written comments submitted by the Respondent as provided in subdivision (a) of this section.
(c) Final Decision by Chairperson.
1. The Chairperson will determine whether to accept, modify, or reject the Recommendation of the OATH ALJ and will issue a Final Decision.
2. As an alternative to 1. above, and instead of issuing a Final Decision, the Chairperson can remand the matter to the OATH ALJ for further consideration.
(a) The only Chairperson's Final Decision that can be appealed to the Commissioners is a Final Decision that imposes Discretionary Revocation (see 35 RCNY § 68-13).
(b) The Chairperson's Final Decision to impose Discretionary Revocation can be appealed to the Commissioners as follows:
1. The Respondent must file a written appeal with the Deputy Commissioner for Legal Affairs/General Counsel within 30 calendar days from the date of the Chairperson's final decision.
2. The filing must describe the basis for the appeal and must include all supporting statements and arguments.
3. The Chairperson can prescribe the form for the conduct and filing of these appeals.
4. A review of the Chairperson's decision by the Commissioners must be limited to the issues of law raised in the appeal submitted and whether the decision of the Chairperson and the Recommended Decision of the OATH ALJ are supported by substantial evidence. The Commissioners cannot review findings of fact or determinations of credibility by an OATH ALJ.
5. The Commission may submit a written response to any appeal filed by the Respondent.
6. The Respondent must be given the opportunity to respond in writing to the Commission's written submission.
7. The Commissioners must each receive a copy of the OATH ALJ's Recommended Decision, the Chairperson's Final Decision, the Respondent's appeal, and any responses filed by the Commission or the Respondent.
8. The Commission must affirm, reject, modify, or remand the Chairperson's Final Decision.
(A) A minimum of 5 votes is required to reject, modify, or remand the Final Decision.
(B) If there are fewer than 5 votes to reject, modify, or remand the Final Decision, the decision is affirmed.
(C) The Chairperson cannot vote on these appeals.
9. The Commission must communicate at a public meeting the results of the vote and the action taken.
(a) The Chairperson, or if he or she designates, the General Counsel for the TLC, may review any determination of the Appeals Unit that interprets any of the following:
(1) A rule set forth in Title 35 of the Rules of the City of New York;
(2) A provision of law set forth in Chapter 5 of Title 19 of the Administrative Code;
(3) A provision of law set forth in Chapter 65 of the Charter.
(b) Upon review of a determination of the Appeals Unit, the Chairperson or the General Counsel may issue a decision adopting, rejecting or modifying the Appeals Unit decision. The Chairperson will be bound by the findings of fact in the record and will set forth his or her decision in a written order. The Chairperson's interpretation of the Commission's rules and the statutes it administers shall be considered agency policy and must be applied in future adjudications involving the same rules or statutes.
(c) Process for Chairperson Review.
(1) Within 30 days of service by OATH of the determination of an appeal by the Appeals Unit of the OATH Hearings Division, either party may petition the Chairperson to reject the determination by delivering a petition to the General Counsel of the TLC and mailing a copy to the adverse party.
(A) Petitions to the Chairperson must state the errors of law that the Petitioner wishes to have reviewed, and must be accompanied by a copy of the decision of the Appeals Unit.
(2) If the respondent delivers and mails such a petition, TLC may submit an answer to the petition within 30 days by delivering such an answer to the General Counsel of TLC and serving it on the respondent. Unless the Chairperson takes action on the respondent's petition within 30 days of its delivery, the determination of the appeal by the Appeals Unit shall become the final decision of the Commission.
(3) If TLC delivers and mails such a petition, within 30 days the Chairperson may notify the respondent that he or she is considering the petition, and within 30 days thereof, the respondent may mail an answer to the General Counsel of TLC. If the Chairperson does not notify the respondent that he or she is considering the petition within 30 days of its receipt, or takes no action on the petition within 30 days of the receipt of respondent's answer or within 60 days of its notification to the respondent if no answer is received, the determination of the appeal by the Appeals Unit shall become the final decision of the Commission.
(4) In reviewing the determination of the Appeals Unit of the OATH Hearings Division, the Chairperson shall be bound by the findings of fact in the decision.
(5) The determination of an appeal by the Appeals Unit that is not acted upon by the Chairperson shall become a final decision of the Commission.
(Amended City Record 2/2/2023, eff. 3/4/2023)
(a) Mandatory Revocation. Mandatory License revocation will be imposed when a Respondent is found liable for a violation in which mandatory revocation is specified.
(b) Discretionary Penalties. If the Commission seeks Discretionary Revocation or other discretionary penalties as specified in subdivision (b) of 35 RCNY § 68-02, the following procedure must be followed.
(1) The Chairperson must determine that the continued licensure of the Respondent presents a threat to public health, safety, or welfare.
(2) The proceeding must be commenced before the OATH Tribunal.
(3) The Commission must notify the Respondent of the proceeding by serving a written summons detailing the charged misconduct and warning the Respondent that a finding of guilt could result in License revocation.
(4) The Respondent must be served with charges according to the procedures in 48 RCNY Chapter 1, which include the location, date, and time of any scheduled hearing.
(6) The OATH Tribunal decision will be a Recommended Decision. The recommended penalties can include:
(A) License revocation,
(B) License suspension for a period up to 6 months,
(C) a fine not to exceed $1,000 for each offense for which a Licensed Driver is found guilty, and
(D) a fine not to exceed $10,000 for each offense for which any other Respondent is found guilty.
(a) The Chairperson will notify the Licensee to appear as a Respondent for a fitness hearing if the Chairperson believes that a Licensee is not Fit to Hold a License, for the following reasons, based upon:
(1) Any act that implicates the Licensee's ability to safely interact with the public or operate a TLC licensed vehicle, including but not limited to:
(A) Any act, as prohibited by these Rules, of driving a TLC licensed vehicle while Impaired by intoxicating liquor (regardless of its alcoholic content), or Drugs;
(B) Any act, as prohibited by these Rules, of bribery, fraud, material misrepresentation, theft, threat against a person, harassment, abuse, or use of physical force;
(C) Any act, as prohibited by these Rules, involving the possession of a Weapon in a vehicle licensed under these Rules;
(D) Driver, while driving a Licensed Vehicle, was issued a summons for or charged with one or more traffic related violations or crimes in a Serious Crash, that is, a crash in which any person has suffered Critical Injury or death;
(2) Any felony conviction;
(3) Any conviction of the following criminal offenses:
(A) Assault in the third degree, as set forth in New York State Penal Law § 120.00;
(B) Reckless endangerment in the second degree, as set forth in New York State Penal Law § 120.20;
(C) Criminal obstruction of breathing, as set forth in New York State Penal Law § 121.11;
(D) Sexual misconduct, as set forth in New York State Penal Law § 130.20;
(E) Forcible touching, as set forth in New York State Penal Law § 130.52;
(F) Sexual abuse in the third or second degree, as set forth in New York State Penal Law § 130.55 and § 130.60, respectively;
(G) Promoting prostitution in the third, second, or first degree, as set forth in New York State Penal Law § 230.25, § 230.30, and § 230.32, respectively;
(H) Compelling prostitution, as set forth in New York State Penal Law § 230.33;
(I) Sex trafficking, as set forth in New York State Penal Law § 230.34;
(J) Public lewdness, as set forth in New York State Penal Law § 245.00;
(K) Endangering the welfare of a child, as set forth in New York State Penal Law § 260.10;
(L) Criminal possession of a weapon in the fourth degree, as set forth in New York State Penal Law § 265.01;
(M) Overdriving, torturing, and injuring animals or failing to provide proper sustenance, as set forth in New York Agriculture and Markets Law § 353;
(N) Leaving the scene of an accident, as set forth in New York Vehicle and Traffic Law § 600.2;
(O) Driving while ability impaired, as set forth in New York Vehicle and Traffic Law § 1192.1;
(P) Operation of a motor vehicle while intoxicated, as set forth in New York Vehicle and Traffic Law § 1192.2;
(Q) Operation of a motor vehicle with an illegal blood-alcohol content, as set forth in New York Vehicle and Traffic Law § 1192.3;
(R) Driving while ability impaired by drugs, as set forth in New York Vehicle and Traffic Law § 1192.4.
(S) Driving while ability impaired by the combined influence of drugs or of alcohol and any drug or drugs, as set forth in New York Vehicle and Traffic Law § 1192.4-a.
(4) A failed drug test as a result of illegal drug use or failure to comply with drug testing procedures.
(b) Prior to the hearing, the Commission must notify the Respondent of the proceeding by serving a written notice specifying the reason(s) the Respondent is believed to be not Fit to Hold a License and warning the Respondent that a finding that Respondent is not Fit to Hold a License will result in License revocation.
(c) The OATH Tribunal's decision after the hearing will be a Recommended Decision.
(d) The Chairperson can accept, reject, or modify the Recommended Decision in a written decision that includes the reasons therefor. The decision of the Chairperson will constitute the final determination of the Commission.
(e) In determining whether the Licensee is not Fit to Hold a License, to the extent possible, the Chair shall not revoke the license solely by reason of the licensee having been convicted of one or more criminal offenses, or by reason of a finding of lack of "good moral character," when either such finding is based upon the fact that the individual has been convicted of one or more criminal offenses, unless:
(1) There is a direct relationship between one or more of the criminal offenses and the duties of a Licensee licensed by the TLC; or
(2) The continuation of licensure would pose an unreasonable risk to property or to the safety or welfare of specific individuals or the general public.
(f) In determining whether the Licensee is not Fit to Hold a License, the Chair shall be governed by applicable law, and shall further consider the following factors in his or her Decision:
(1) The specific duties and responsibilities necessarily related to licensure as a Licensee licensed by the TLC.
(2) The bearing, if any, the criminal offense or offenses for which the Licensee was convicted will have on his or her fitness or ability to perform one or more of the duties or responsibilities of a Licensee licensed by the TLC.
(3) The time that has elapsed since the occurrence of the criminal offense or offenses.
(4) The age of the Licensee at the time of occurrence of the criminal offense or offenses.
(5) The number of years during which the Licensee has held his or her License and his or her overall record as a Licensee.
(6) The seriousness of the offense or offenses.
(7) Any information produced by the Licensee, or produced on his or her behalf, in regard to his or her rehabilitation and good conduct.
(8) The legitimate interest of the Commission in protecting the safety and welfare of specific individuals, the general public, and property.
(g) The License of a Licensee who is found to be not Fit to Hold a License will be revoked.
(Amended City Record 5/14/2018, eff. 6/13/2018)
(a) Summary Suspension.
(1) The Chairperson can summarily suspend a License if the Chairperson believes that continued licensure would constitute a direct and substantial threat to public health or safety, pending revocation proceedings. Such direct and substantial threats to public health or safety include but are not limited to:
(i) Any act, as prohibited by these Rules, of driving a TLC licensed vehicle while Impaired by intoxicating liquor (regardless of its alcoholic content), or Drugs;
(ii) Any act, as prohibited by these Rules, of bribery, fraud, material misrepresentation, theft, threat against a person, harassment, abuse, or use of physical force;
(iii) Any act, as prohibited by these Rules, involving the possession of a Weapon in a vehicle licensed under these Rules;
(iv) A positive result on a drug test or a drug test sample that cannot be tested for Drugs.
(2) Any Licensee whose License is summarily suspended is entitled to a Summary Suspension hearing at the OATH Tribunal as set forth below.
(3) The Commission will notify the Licensee either by personal service or by USPS first class mail of the Summary Suspension, within 5 days of the suspension.
(b) Summary Suspension or Revocation Hearing. If a Revocation hearing is not scheduled to be held within 15 calendar days from the suspension:
(1) The Respondent can request a hearing on the Summary Suspension by notifying the Commission within 10 calendar days from receiving the notice of suspension.
(2) Upon receipt of a request for a hearing, the Commission must request a Summary Suspension hearing to be held within 10 calendar days of the receipt of the request (if the tenth day falls on a Saturday, Sunday or holiday, the hearing may be held on the next business day), unless the Chairperson determines that the hearing will impair an ongoing civil or criminal investigation.
(3) No Summary Suspension hearing will be required where the Revocation hearing is scheduled within 15 calendar days of the suspension.
(4) If a Respondent does not request a hearing on the Summary Suspension within the time specified in paragraph (1) of this subdivision, then all of the following apply:
(i) the Respondent is deemed to have waived the opportunity to be heard on an expedited basis.
(ii) The Respondent will be scheduled for a hearing on the underlying violation in accordance with the normal procedures set forth in 48 RCNY Chapter 1.
(iii) The Summary Suspension will be continued until lifted by the OATH ALJ in the Revocation hearing.
(c) Conduct of Summary Suspension Hearing.
(1) The Summary Suspension hearing will be conducted according to the hearing procedures established in 48 RCNY Chapter 1.
(2) Where applicable, the affirmative defenses will include those provided in subdivision (b) of § 19-512.1 of the Administrative Code.
(3) The decision in the Summary Suspension hearing will be a Recommended Decision that includes findings of fact, conclusions of law, and a recommendation as to continuation of the suspension.
(4) The decision of the Chairperson is the final determination of the Commission with respect to the Summary Suspension.
(5) Unless otherwise specified, if the Chairperson does not render a decision within 60 calendar days from the end of the Summary Suspension hearing, the suspension must be lifted until the decision is rendered.
(d) Summary Suspension for Criminal Charges.
(1) The Chairperson can summarily suspend a License based upon criminal charges pending against a Licensee if the Chairperson believes that the charges, if true, would demonstrate that continued licensure would constitute a direct and substantial threat to public health or safety. Such charges include but are not limited to the following:
(i) Any charge for a crime which constitutes a felony;
(ii) Or any charge for the following offenses:
A. Assault in the third degree, as set forth in PL § 120.00;
B. Reckless endangerment in the second degree, as set forth in § 120.20;
C. Criminal obstruction of breathing, as set forth in § 121.11;
D. Sexual misconduct, as set forth in PL § 130.20;
E. Forcible touching, as set forth in PL § 130.52;
F. Sexual abuse in the third or second degree, as set forth in PL § 130.55 and § 130.60, respectively;
G. Promoting prostitution in the third, second, or first degree, as set forth in PL § 230.25, § 230.30, and § 230.32, respectively;
H. Compelling prostitution, as set forth in PL § 230.33;
I. Sex trafficking, as set forth in PL § 230.34;
J. Public lewdness, as set forth in PL § 245.00;
K. Endangering the welfare of a child, as set forth in PL § 260.10;
L. Criminal possession of a weapon in the fourth degree, as set forth in PL § 265.01;
M. Overdriving, torturing, and injuring animals or failing to provide proper sustenance, as set forth in AGM § 353;
N. Leaving the scene of an accident, as set forth in VAT § 600.2;
O. Driving while ability impaired, as set forth in VAT § 1192.1;
P. Operation of a motor vehicle while intoxicated, as set forth in VAT § 1192.2;
Q. Operation of a motor vehicle with an illegal blood-alcohol content, as set forth in VAT § 1192.3;
R. Driving while ability impaired by drugs, as set forth in VAT § 1192.4.
(2) Upon imposing Summary Suspension, the Commission must promptly notify the Respondent by serving written notice specifying the basis for the Summary Suspension, advising the Respondent of the right to a Summary Suspension hearing, and specifying the issue to be decided at the Summary Suspension hearing.
(3) The Commission need not commence revocation proceedings while the criminal charges are pending. However, the Respondent is entitled to request a Summary Suspension hearing.
(4) If the Respondent requests a Summary Suspension hearing, the Commission must schedule such hearing to be held within 10 calendar days of receipt of the Respondent's request. If the tenth day falls on a Saturday, Sunday or holiday, the hearing may be held on the next business day.
(5) At the Summary Suspension hearing, the Commission must prove by a preponderance of the evidence that the charges pending against the Respondent, if true, demonstrate that the continuation of the Respondent's License during the pendency of criminal charges would pose a direct and substantial threat to public health or safety. At the hearing, both the Commission and the Respondent may present evidence relevant to the determination, including, but not limited to:
(a) The particular facts and circumstances underlying the criminal charges, including the connection between the alleged offense and the Respondent's duties and responsibilities as a driver licensed by the Commission;
(b) The Respondent's driving record, including any history of serious violations or license suspension under these Rules or applicable provisions of law relating to traffic or Vehicles licensed by the Commission;
(c) The Respondent's previous criminal record, or lack thereof;
(d) The Respondent's character and standing in the community; and
(e) Any other evidence relevant to whether continued licensure of the Respondent during the pendency of criminal charges would pose a direct and substantial threat to public health or safety.
(6) The Recommended Decision shall be rendered within ten (10) business days from the close of the record of the Summary Suspension hearing. If the Recommended Decision is not rendered within this deadline, the suspension will immediately be lifted until the Chair's decision is rendered.
(7) The Chairperson can accept, reject, or modify the Recommended Decision in a written decision that includes the reasons therefor. The Chairperson may not reject or modify the Recommended Decision without setting forth a reasonable basis for doing so.
(8) (i) Except as further specified in subparagraph (ii) of this paragraph, the Chairperson must render a decision on continued suspension within twenty (20) calendar days of the date of the Recommended Decision, but only after promptly providing the Respondent a copy of the Recommended Decision and an opportunity to respond to the Recommended Decision within ten (10) calendar days. If the Chairperson does not render a decision within the 20-day period, the suspension must be lifted until such action is taken by the Chairperson.
(ii) Within five (5) business days of receiving a Recommended Decision recommending that the suspension be lifted, the Chairperson must: (i) accept the recommendation and lift the suspension, or (ii) provide the Respondent notice that the Recommended Decision may be rejected or modified, and the reasons therefor, and ten (10) calendar days to respond in writing to such notice. The Chair must render a decision within five (5) business days of receiving a response from the Respondent to such notice. If the Chair fails to meet these deadlines, the suspension will immediately be lifted until the Chair's decision is rendered.
(9) Notwithstanding the procedures for lifting a suspension during the pendency of criminal charges as set forth in this paragraph:
(i) Within one (1) business day of receipt of a certificate of disposition indicating that the charges against the Respondent have been dismissed, withdrawn, reduced to an offense not specified in paragraph (1) of this subdivision, or otherwise disposed of in a similar manner, the Commission must lift the suspension.
(ii) In all other cases, within five (5) business days of receiving from the Respondent a certificate of disposition of the criminal charges, the Commission must either lift the suspension or commence revocation proceedings.
(Amended City Record 10/12/2018, eff. 11/11/2018; amended City Record 12/9/2020, eff. 1/8/2021; amended City Record 5/11/2021, eff. 6/10/2021)
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