Taxi & Limousine Comm'n V Hussein

1

Taxi Limousine Comm’n v. Bautista

OATH Index No. 373/09(Sept. 12, 2008), modified, Comm’r/Chair’s Decision (Oct. 24, 2008), appended

In revocation proceeding, a for-hire driver was charged with masturbating and driving recklessly. ALJ found that masturbation allegations were proven, that reckless driving charge was not proven, and recommended revocation.

Commissioner/Chair imposes the penalty of license revocation plus maximum fines for violations of 6-18(d)(2) ($350) and 6-18(i) ($1000), an aggregate fine of $1350.

______

NEW YORK CITY OFFICE OF

ADMINISTRATIVE TRIALS AND HEARINGS

In the Matter of

TAXI AND LIMOUSINE COMMISSION

Petitioner

-against-

ANGEL BAUTISTA

Respondent

______

REPORT AND RECOMMENDATION

JOHN B. SPOONER,Administrative Law Judge

This proceeding was commenced by the Taxi and Limousine Commission against respondent, Angel Bautista, pursuant to the Administrative Code and the Taxicab For-Hire Vehicle rules, title 35, chapter 6 of the Rules of the City of New York (RCNY). Petitioner alleges that respondent masturbated within the view of a female passenger and drove recklessly.

A hearing was held before me onAugust 6, 2008. Petitioner presented the testimony of the passenger. Respondent testified with the aid of a Spanish interpreter, denying any impropriety.

For the following reasons, I find thatthe first two charges should be sustained and that the charge of reckless driving be dismissed. I recommend that respondent’s for-hire license be revoked.

ANALYSIS

This case concerns a for-hire taxi ride taken by several passengers on March 11, 2008. The testimony of the two trial witnesses, passenger Barbara Ziegler and respondent, was in accord that Ms. Ziegler, along with several other passengers, rode in respondent’s for-hire taxi from Brooklyn to Manhattan. The two witnesses also offered similar accounts of most of the details of what respondent did, with the exception of whether he exposed himself.

Ms. Ziegler testified that, on March 11, 2008, she called Access-A-Ride and was given authorization to call CTG Car Services to pick her up from her Brooklyn home and drive her to a 9:00 a.m. appointment at MemorialSloanKetteringHospital in Manhattan (Tr. 7, 19). Respondent, who had driven Ms. Ziegler six or eight times before, arrived at Ms. Ziegler’s home with his for-hire cab at around 7:30 a.m. with one other female passenger in the back seat. Ms. Ziegler got into the back seat of the cab. Respondent then drove to pick up more passengers. From her position behind the passenger side, Ms. Ziegler observed the car “jerking” and “drifting off to the other side.” At the same time, she saw that respondent had a Spanish newspaper in his right hand which he seemed to be reading. He also twice sprayed his hands and wiped them with tissues. Ms. Ziegler and the other passenger commented upon this odd behavior in very low voices (Tr. 7-9).

Respondent then drove to Queens and picked up another woman and her young son, requiring Ms. Ziegler to move from the back seat to the front passenger seat. Respondent then drove toward Manhattan, using an electronic mapping device. At Bushwick Avenue, he argued with a female driver who was blowing her horn. He got out of his cab, called the other driver a “mother-fucker” and a “dumb bitch,” and threw a tissue at her (Tr. 10). This caused Ms. Ziegler and the other passengers to look at one another in disbelief, silently expressing the view that the driver was “crazy” (Tr. 11).

After they entered Manhattan, Ms. Ziegler noticed that respondent had a suit jacket draped over his right arm and a newspaper in his right hand. As he drove, he kept grabbing tissues. Trying to identify what respondent was doing with the tissues, Ms. Ziegler looked over and saw that respondent’s penis was exposed and that he was rolling the fingers of his right hand across it (Tr. 13). Ms. Ziegler estimated that respondent continued this motion for about 15 seconds (Tr. 14).

Ms. Ziegler was “shocked” and said to respondent, “You’re not doing what I think you’re doing” (Tr. 14). Respondent asked, “What did you see?” Ms. Ziegler replied, “You’re playing with yourself.” Respondent argued, “Oh, come on, I wouldn’t do that. I can’t be doing that. How can I do that and I’m driving a car?” (Tr. 15). Ms. Ziegler demanded that respondent stop the taxi and get out, to “let everybody see your zipper is open.” Respondent did stop and got out of the car, letting the other passengers also see his zipper was open. He then zipped up and got back in (Tr. 15). Ms. Ziegler called respondent’s dispatcher and told them what respondent had been doing. She was told that he “had just gotten in trouble” the day before (Tr. 15).

After Ms. Ziegler’s call, respondent’s dispatcher called respondent on his cell phone. Ms. Ziegler heard respondent say that his zipper was open because he went to the bathroom and forgot to zip up. He also insisted it was “impossible for him to do that because he was driving the car.” Respondent persisted in telling Ms. Ziegler that he “didn’t do it” (Tr. 16).

At Sloan-Kettering, Ms. Ziegler telephoned 911 to summon the police. They arrived about 10 minutes later. Based upon Ms. Ziegler’s complaint, respondent was arrested. Ms. Ziegler later learned that the criminal case was dismissed because of a late filing by the prosecutor (Tr. 17). Respondent confirmed nearly every statement made by Ms. Ziegler. He confirmed that he arrived at her home around 7:30 a.m., after picking up another passenger. He acknowledged that he recognized Ms. Ziegler and insisted that, due to her size, she always sat in the front passenger seat and did so this morning (Tr. 34-35). When respondent told Ms. Ziegler he had another pick-up, she became “upset” because “she was running very late” (Tr. 35). He made the third pick-up, a mother and son, and drove from Queens toward Manhattan. In Williamsburg, a female driver “cut me off,” although respondent insisted that he did not yell, use profanity, or get out of his cab (Tr. 37).

Respondent crossed the WilliamsburgBridge and drove up Third Avenue toward the first drop-off at Madison Avenue and 40th Street. Somewhere around 27th Street, Ms. Ziegler asked him, “Are you doing what I’m thinking?” Respondent said, “What are you talking about?” Ms. Ziegler then told the other passengers that respondent was “exposing” himself. She asked respondent why he had a jacket in his lap, and he said he had a suit jacket and another jacket “because it’s winter time.” He didn’t wear the suit jacket “because it wrinkles” and he usually hangs it on a hook. He explained that he also had a napkin in his hand due to a runny nose caused by seasonal allergies (Tr. 40). He confirmed that he had been holding a newspaper in his right hand, with the jacket lying across his lap (Tr. 50). He also admitted, on cross-examination, that he “might have” scratched his penis while driving without realizing it (Tr. 52).

At Ms. Ziegler’s request, he stopped the cab and got out. When he did he noticed that he had forgotten to zip up his pants after using the bathroom at the beginning of his shift (Tr. 41). Respondent vehemently denied exposing himself or “pleasuring” himself while driving (Tr. 42).Respondent finally dropped Ms. Ziegler off at 9:30 a.m. at Memorial Sloane Kettering (Tr. 44).

Respondent indicated that most drivers did not like to pick up Access-a-Ride passengers because the fare was discounted and the passengers were often overweight, disabled, or had mental problems (Tr. 46).

As a preliminary matter, I note that Ms. Ziegler’s testimony that the taxicab was “jerking” and “drifting off to the other side” during the ride was inadequate to demonstrate that respondent was operating the car recklessly so as to endanger the passengers, as prohibited by 35 RCNY section 6-16(a). Ms. Ziegler did not indicate that she herself perceived any specific dangers caused by respondent’s driving. Her affirmative response to the question from petitioner’s attorney as to whether she feared for “her safety” (Tr. 18-19) did not persuade me that her life was, in fact, in peril or that she had a factual basis to believe such a peril existed. This was particularly so because Ms. Ziegler made these observations from the back seat, and may have been unable to observe objects or road conditions that might have justified respondent’s maneuvers. Specification 3 of the charges must therefore be dismissed.

The remainder of the evidence placed Ms. Ziegler’s observations of respondent exposing himself at variance with respondent’s denials of doing so. For a number of reasons, I found Ms. Ziegler’s testimony more credible than that of respondent. First, her testimony, unlike respondent’s, should be accorded greater weight because she has no interest in the outcome of the hearing, while respondent stands to lose his license. Nearly all of the details in her account, other than the visibility of respondent’s penis, were corroborated by respondent himself, who admitted that he was holding a newspaper, had a jacket over his lap, was using tissues, and had an open zipper. He went so far as admitting that he might have been “scratching” himself, corroborating Ms. Ziegler’s account that his fingers were on his penis.

I found it highly improbable that Ms. Ziegler fabricatedthe lurid detailof seeing respondent’s penis. Far from appearing to embellish her account with graphic details of improprieties, she was reluctant to repeat even relatively mild profanity she recalled respondent uttering. The call to 911 and insistence on waiting for the police to arrive is further evidence that she was extremely upset and believed that she witnessed a crime.

The argument of respondent’s counsel, that Ms. Ziegler was retaliating for respondent making her late for her doctor’s appointment, is illogical, since it is undisputed that she actually kept the appointment, albeit 30 minutes late, and, upon completion of the trip, she called the police and then waited for them to arrive. Surely, if her primary interest were anger over the delayed arrival, she would not have exacerbated the delay by waiting for police officers to report to the scene.

In sum, based upon Ms. Ziegler’s credible testimony, I find that, while driving Ms. Ziegler and three other passengers from Brooklyn to Manhattan, he removed his penis from his pants and rubbed it with his hand. There is no question that this unseemly behavior violated Commission rule prohibiting acts “against the best interests of the public” and discourtesy to passengers. 35 RCNY §§ 6-18(d)(2) and 6-18(i) (Lexis 2008). Specifications 1 and 2 must be sustained.

FINDINGS AND CONCLUSIONS

1.Specifications 1 and 2 should be sustained in that, at approximately 9:00 a.m. on March 11, 2008, respondent exposed and rubbed his penis in view of a female passenger, in violation of 35 RCNY sections 6-18(d)(2) and 6-18(i).

2.Specifications3 should be dismissed in that petitioner failed to prove by a preponderance of the credible evidence that respondent drove recklessly.

RECOMMENDATION

After making the above findings, I requested and received a summary of respondent’s driving record from the Commission. He has held a for-hire driver’s license since1999. He has been convicted of several past violations, including violations of the traffic laws, violations involving vehicle markings, picking up a passenger from the street, and harassing a passenger. He also has been convicted of speeding and using a cell phone while driving.

In this case, respondent’s obscene actions of masturbating while driving warrant revocation of his license, as requested by petitioner’s attorney. Indeed, other drivers have had their licenses revoked for such behavior. Taxi and Limousine Comm’n v. Rosenberg, OATH Index No. 522/94 (Mar. 23, 1994) ; Taxi and Limousine Comm’n v. Chaudhry, OATH Index No. 701/92 (Sept. 14, 1992); Taxi and Limousine Comm’n v. Krikheli, OATH Index No. 588/91 (Jan. 16, 1991); Taxi and Limousine Comm’n v. Feuerstein, OATH Index No. 577/89 (Sept. 15, 1989).

Accordingly, I recommend that respondent’s for-hire license be revoked.

John B. Spooner

Administrative Law Judge

September 12, 2008

SUBMITTED TO:

MATTHEW W. DAUS

Commissioner/Chair

APPEARANCES:

MARC T. HARDEKOPF, ESQ.

Attorney for Petitioner

M. DANIEL BACH, ESQ.

Attorney for Respondent

NYC Taxi and Limousine Commission Comm’r/Chair’s Decision, October 24. 2008

______

NEW YORK CITY OFFICE OF

ADMINISTRATIVE TRIALS AND HEARINGS

In the Matter of

TAXI AND LIMOUSINE COMMISSION

Petitioner

-against-

ANGEL BAUTISTA

Respondent

______

MATTHEW W. DAUS, Commissioner/Chair

DECISION

Dear Mr. Bautista:

A hearing was held on August 6, 2008, at the New York City Office of Administrative Trials and Hearings ("OATH"). After hearing the evidence presented, the presiding Administrative Law Judge ("ALJ") found that you violated Taxi and Limousine Commission (“TLC”) Rules 6-18(d) (2) and 6-18(i). The ALJ has recommended the revocation of your For-Hire Vehicle Driver license.

I have, moreover, reviewed the letters dated September 22, 2008 and September 25, 2008, submitted by Corporate Transportation Group, Ltd. and your attorney, Daniel Bach, respectively, on your behalf, in response to the ALJ's recommendation. Mr. Bach's arguments forthereducedpenalty ofsuspensioninstead ofthe revocation ofyourTLC licenseare unpersuasive.

The ALJ found that on March 11, 2008, you exposed your genitalia in view of a female passenger. Given your violation of Rules 6-18(d)(2) and 6-18(i), I concur with the ALJ's recommendation with regard to the ALJ's findings but disagree with regard to penalty. Due to the egregious sexual nature of your conduct, the maximum fine amounts of $350 for your violation ofRule 6-18(d)(2); and $1000 for your violation ofRule 6-18(i) are entirely appropriate given the circumstances.

Therefore, upon careful review of the record before me I hereby revoke your TLC license and impose a fine of $1350.

MATTHEW W. DAUS, Commissioner/Chair, NYC Taxi and Limousine Commission