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Rothenberg v. Daus

United States District Court, S.D. New York

July 31, 2014

SAUL ROTHENBERG, EBRAHIM ABOOD, TOBBY KOMBO, KONSTANTINOS KATSIGIANNIS, BOUBACAR DOUMBIA, ROBERT DYCE, and MOUSTACH ALI, individually and on behalf of all others similarly situated, Plaintiffs,
v.
MATTHEW DAUS, DIANE MCGRATH-MCKECHNIE, JOSEPH ECKSTEIN, ELIZABETH BONINA, THOMAS COYNE, THE NEW YORK CITY TAXI LIMOUSINE COMMISSION and THE CITY OF NEW YORK, Defendants.

OPINION & ORDER

SIDNEY H. STEIN, District Judge.

Plaintiffs-former drivers of taxicabs and for-hire vehicles ("FHVs")- have sued the City of New York and several officials for alleged violations of their Fourteenth Amendment right to due process, based on the revocation of their licenses by the New York City Taxi and Limousine Commission ("TLC"). Plaintiffs Ebrahim Abood, Boubacar Doumbia, Konstantinos Katsigiannis, and Saul Rothenberg ("drug test plaintiffs") failed a required annual drug test, prompting the suspensions and revocations of their licenses. Plaintiffs Robert Dyce, Tobby Kombo, and Moustach Ali ("conviction plaintiffs") were arrested and then convicted for off-duty conduct, leading to their suspensions and revocations. Plaintiffs allege that defendants Matthew Daus, Diane McKechnie, Joseph Eckstein, Elizabeth Bonina, Thomas Coyne, and the City of New York violated the Fourteenth Amendment's guarantee of procedural due process in four principal ways: (1) the regulations putatively supporting plaintiffs' revocations were unconstitutionally vague; (2) the notices of their revocation hearings were constitutionally inadequate; (3) the revocation hearings were sham hearings that did not provide plaintiffs a meaningful opportunity to be heard; and (4) the administrative law judges ("ALJs") conducting the hearings were impermissibly biased against plaintiffs. Plaintiffs also complain that their license revocations violated several state laws.

Before the Court are the parties' cross-motions for summary judgment, on remand after the U.S. Court of Appeals for the Second Circuit affirmed in part and vacated in part an earlier grant by this Court of summary judgment for defendants. For the reasons set forth below, the Court grants partial summary judgment to defendants, grants partial summary judgment to plaintiffs, and concludes that a genuine issue of material fact persists as to whether plaintiffs had the benefit of an impartial tribunal. The Court also concludes that it does not have jurisdiction to consider plaintiffs' state law claims or alternatively declines to exercise jurisdiction over those claims and therefore dismisses plaintiffs' state law claims.

I. BACKGROUND

A. The TLC issues and revokes licenses for taxicab and FHV drivers pursuant to New York City law.

The New York City Charter establishes the TLC, "the purposes of which shall be the continuance, further development and improvement of taxi and limousine service in the city of New York." N.Y.C. Charter § 2300. The TLC comprises nine commissioners, including a chairman, appointed by the Mayor of New York City. Id. § 2301(a), (c). Its charge includes the promulgation of standards for safety and licensing related to taxis and limousines. Id. § 2300. The City Charter vests specific powers in the TLC, including "[t]he issuance, revocation, [and] suspension of licenses for drivers, chauffeurs, owners or operators of vehicles, other than licenses issued pursuant to state law, ... and the establishment of qualifying standards required for such licenses." Id. § 2303(b)(5). That section further provides to the TLC residual authority to "formulat[e], promulgat[e] and effectuat[e] [] rules and regulations reasonably designed to carry out the purposes, terms and provisions of this chapter." Id. § 2303(b)(11).

Any driver of a taxicab or FHV in New York City must obtain a license from the TLC. See N.Y.C. Admin. Code § 19-505(a) (2009). Where the Charter creates the general power to license drivers and set standards for licensure, the New York City Administrative Code provides further instruction on those standards. For example, it requires that license applicants "[b]e fingerprinted, " id. § 19-505(b)(4), "[b]e of good moral character, " id. § 19-505(b)(5), and "[n]ot be addicted to the use of drugs or intoxicating liquors, " id. § 19-505(b)(6).

Relying on the authority granted to it by the City Charter and on the more specific instructions in the Administrative Code, the TLC has promulgated licensing requirements for drivers of taxicabs. The requirements for drivers of taxicabs are codified in Chapter 2 of the TLC Rules, and the requirements for FHV drivers are codified in Chapter 6.[1]

Some of the requirements incumbent on TLC-licensed drivers are specific. For example, a driver is prohibited from "threaten[ing], harass[ing] or abus[ing] any passenger" while on-duty, TLC Rules § 2-60(a); "distract[ing] or attempt[ing] to distract a service animal accompanying a person with a disability, " id.; committing or attempting "fraud, misrepresentation or larceny against a passenger" while on-duty, id. § 2-61(a)(1); and "offer[ing] or giv[ing] any gift, gratuity or thing of value to any employee, representative or member of the [TLC], " id. § 2-62(a). Other requirements are more general. For example, a driver must not "commit or attempt... any willful act of omission or commission which is against the best interests of the public." Id. § 2-61(a)(2).

One section of the TLC Rules pertains specifically to criminal convictions, requiring drivers to "notify the [TLC] in writing of his conviction of a crime within fifteen (15) days of such conviction" and to "deliver to the [TLC] a certified copy of the certificate of disposition issued by the Clerk of Court within fifteen (15) days of sentencing." Id. § 2-63. Separately, in the section of the Rules dealing only with probationary licenses, the Rules allow for revocation of a probationary license if a driver is convicted of a crime during the probationary period. Id. § 2-04(b).

Pursuant to the City Charter's delegation to the TLC of "[t]he issuance, revocation, [and] suspension of licenses for drivers, " N.Y.C. Charter § 2303(b)(5), the TLC has adopted rules to define what conduct prompts fitness hearings, suspensions, and revocations, see, e.g., TLC Rules §§ 8-14 to 8-17. Section 8-15(c) of the TLC Rules allows the TLC to suspend a driver's license if a driver fails a required drug test. More generally, Section 8-15(a) allows the TLC to initiate revocation proceedings if the driver "does not meet or does not continue to meet the qualifications for licensure."

At all times relevant to this action, revocation proceedings took place under the administrative auspices of the TLC, and all fitness hearings took place before the TLC's own administrative law judges ("ALJs"). (Defs.' Rule 56.1 Statement of Material Undisputed Facts ("Defs.' 56.1") ¶ 28; Pls.' Post-Remand Rule 56.1 Statement in Support of Their Renewed Mot. for Summary Judgment ("Pls.' 56.1") ¶ 31.) After the facts underlying this action took place, the TLC substantially amended its adjudication rules and transferred its adjudication process to New York City's Office of Administrative Trials and Hearings ("OATH"). ( Id. ¶ 31; Defs.' 56.1 ¶¶ 35, 51.)

B. The TLC suspended and then revoked plaintiffs' licenses to drive taxicabs and FHVs.

Against this regulatory backdrop, plaintiffs obtained taxicab and FHV driver's licenses from the TLC. The following facts are undisputed.

Tobby Kombo was a TLC-licensed taxicab driver when he was arrested on July 16, 2006. (Defs.' 56.1 ¶ 183.) Two days later, on July 18, 2006, the TLC suspended Kombo's license. ( Id. ¶ 184.) Kombo pled guilty to assault in the second degree on March 29, 2007. ( Id. ¶ 185.) On April 23, 2007, Kombo notified the TLC that he had been convicted, and in a notice dated April 24 he was directed to appear for a fitness hearing to determine whether the TLC would revoke his license. ( Id. ¶¶ 185-186.) Kombo appeared for his fitness hearing on May 4, 2007, before a TLC administrative law judge. ( Id. ¶ 188.) The ALJ recommended to then-TLC Chairman Matthew Daus that the TLC revoke Kombo's license, and Kombo sent a responsive memorandum to Daus. ( Id. ¶¶ 193, 195). Seven weeks later, on June 20, 2007, Daus revoked Kombo's license. ( Id. ¶ 196.)

Robert Dyce had held a TLC license to drive a taxicab for approximately five years when he was arrested for possession of a forged instrument in the third degree on April 11, 2006. ( Id. ¶¶ 199-200.) On the same day, Dyce pled guilty to that charge. ( Id. ¶ 202.) The TLC suspended his license three days later. ( Id. ¶ 201.) On April 19, the TLC notified Dyce of his fitness hearing, to be held on May 16, 2006. ( Id. ¶¶ 203-204.) A TLC ALJ conducted the fitness hearing and recommended that Daus revoke Dyce's license. ( Id. ¶ 208.) Dyce responded in writing to Daus. ( Id. ¶ 210.) On June 22, 2006, Daus revoked Dyce's license. ( Id. ¶ 211.)

Moustach Ali was a TLC-licensed FHV driver for a decade until July 25, 2006, when he was arrested for driving while intoxicated. ( Id. ¶¶ 214-215; see Defs.' Mem. at 7.) On August 8 of that year, Ali resolved his criminal case by pleading guilty to the non-criminal infraction in the New York Vehicle and Traffic Law of driving while ability impaired ("DWAI"). (Defs.' 56.1 ¶ 217.) The next day, the TLC notified Ali that his license was suspended. ( Id. ¶ 216.) After receiving notice that a hearing was scheduled, Ali appeared for his hearing on August 22, 2006, before a TLC ALJ. ( Id. ¶ 218-219.) The ALJ recommended that Ali's license be revoked, and his attorney sent a response to the TLC. ( Id. ¶¶ 228-229.) On September 28, 2006, Daus revoked Ali's license. ( Id. ¶ 230.)

Saul Rothenberg, Konstantinos Katsigiannis, and Boubacar Doumbia were all TLC-licensed taxicab drivers whose licenses were revoked after they tested positive for illicit drugs in their annual drug tests. ( Id. ¶¶ 112-114, 150-152, 164-166.) Ebrahim Abood, also a TLC-licensed taxicab driver until failing an annual drug test, failed his drug test because he submitted two urine samples at below 90° Farenheit, leading the drug testing laboratory to conclude pursuant to its testing protocol that he had adulterated or substituted his samples. ( Id. ¶¶ 134-136, 143.) Rothenberg, Katsigiannis, Doumbia, and Abood all received notice of revocation hearings, appeared at hearings before TLC ALJs, and had their licenses ultimately revoked, although none of them was accused of addiction to drugs or of on-duty impairment. ( Id. ¶¶ 128-131, 144-147, 158-161, 177-180; Pls.' 56.1 ¶¶ 146-160.)

C. Procedural History

Plaintiffs allege in this action brought under 42 U.S.C. § 1983 a variety of due process violations pursuant to the Fourteenth Amendment of the U.S. Constitution. Specifically, plaintiffs contend that the suspension and later revocation of their licenses violated their due process rights because: (1) they lacked fair warning that their conduct would require revocation; (2) they lacked adequate notice with respect to their individual hearings; (3) their hearings did not provide a meaningful opportunity to be heard; and (4) their hearings were subject to adjudication by biased administrative law judges ("ALJs"). In addition, plaintiffs initially challenged defendants' mandatory drug testing- i.e., in the "absence of probable cause or reasonable suspicion"-as a violation of the Fourth and Fourteenth Amendments of the U.S. Constitution. (Am. Compl. ¶¶ 161-163.) Finally, several claims are based on analogous state and local laws: namely, that defendants' policies exceeded the scope of their delegated powers, violating the New York City Charter and Administrative Code ( id. ¶¶ 148-159); that revoking plaintiffs' licenses as a response to a criminal conviction violated the New York Corrections Law ( id. ¶¶ 164-166); that defendants violated plaintiffs' due process rights guaranteed to them by the New York State Constitution ( id. ¶¶ 167-170); that defendants' procedures for adopting TLC regulations violated the City Administrative Procedure Act ("CAPA") and the New York City Charter ( id. ¶¶ 171-173); that the TLC's ex parte communication with its ALJs violated the CAPA ( id. ¶¶ 174-176); and that plaintiffs' allegedly sham hearings violated the CAPA ( id. ¶¶ 177-179).

The parties cross-moved for summary judgment. On September 8, 2010, Magistrate Judge Ronald L. Ellis issued a Report and Recommendation recommending that defendants' motion for summary judgment be granted and that plaintiffs' motions for partial summary judgment be denied. See Rothenberg v. Daus, No. 08 Civ. 567, 2010 WL 3860425 (S.D.N.Y. Sept. 8, 2010) (" Rothenberg I "). This Court subsequently adopted the Report and Recommendation with certain modifications. See Rothenberg v. Daus, No. 08 Civ. 567, 2010 WL 3860417 (S.D.N.Y. Sept. 30, 2010) (" Rothenberg II ").

On appeal, the U.S. Court of Appeals for the Second Circuit "affirm[ed] the decision of [this Court] dismissing TLC as a defendant, and [] deem[ed] plaintiffs' Fourth Amendment claim forfeited on appeal." Rothenberg v. Daus, 481 F.Appx. 667, 670 (2d Cir. 2012) (" Rothenberg III "). At the same time, the Second Circuit vacated and remanded the action for a determination by this Court on the issues of "plaintiffs' federal due process claims, plaintiffs' state claims, and plaintiffs' claims against the individual defendants." Id. [2]

Following remand to this Court, the parties have renewed their respective motions for summary judgment, accompanied by further briefing and extensive record development.

II. LEGAL STANDARD

Summary judgment is appropriate only if the evidence shows that there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In determining whether a genuine dispute of material fact exists, the Court "is to resolve all ambiguities and draw all permissible factual inferences in favor of the party against whom summary judgment is sought." Patterson v. Cnty. of Oneida, 375 F.3d 206, 219 (2d Cir. 2004). Nonetheless, the party opposing summary judgment "may not rely on mere conclusory allegations nor speculation, but instead must offer some hard evidence" in support of its factual assertions. D'Amico v. City of New York, 132 F.3d 145, 149 (2d Cir. 1998); see also Buckley v. Deloitte & Touche USA LLP, 888 F.Supp.2d 404, 414-15 (S.D.N.Y. 2012), aff'd 541 F.Appx. 62 (2d Cir. 2013).

"When considering cross-motions for summary judgment, a court must evaluate each party's motion on its own merits, taking care in each instance to draw all reasonable inferences against the party whose motion is under consideration." Make the Rd. by Walking, Inc. v. Turner, 378 F.3d 133, 142 (2d Cir. 2004) (internal quotation marks omitted). Thus, a district court addressing cross-motions for summary judgment "is not required to grant judgment as a matter of law for one side or the other." Heublein, Inc. v. United States, 996 F.2d 1455, 1461 (2d Cir. 1993).

III. DISCUSSION

The Fourteenth Amendment to the United States Constitution guarantees that "[n]o state shall... deprive any person of life, liberty, or property, without due process of law." U.S. Const. amend XIV, § 1. In considering a Section 1983 challenge based on procedural due process, a court must address "(1) whether a property interest is implicated, and, if it is, (2) what process is due before the plaintiff may be deprived of that interest." Nnebe v. Daus, 644 F.3d 147, 158 (2d Cir. 2011).

In analyzing what process is due, courts balance the three factors set forth in Mathews v. Eldridge, 424 U.S. 319 (1976). See id. at 335. Those three factors are as follows:

First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.

Id. The balancing of these three factors constitutes "the test for both when a hearing is required ( i.e., pre- or post-deprivation) and what kind of procedure is due...." Brody v. Village of Port Chester, 434 F.3d 121, 134 (2d Cir. 2005). Where a lawsuit alleges multiple due process challenges, courts apply the Mathews test separately to each claim. See, e.g., Rothenberg III, 481 F.Appx. at 674 (considering Mathews factors with respect to adequacy of hearing notice letters); id. at 675 (considering Mathews factors with respect to meaningfulness of hearings).

A. Plaintiffs have a protected property interest in their licenses.

The due process guaranteed by the Fourteenth Amendment is explicitly limited to interests in "life, liberty, or property." U.S. Const. amend XIV, § 1. A plaintiff claiming the guarantee of procedural due process must therefore "first identify a property right." Local 342, Long Island Pub. Svc. Employees v. Town Bd. of Huntington, 31 F.3d 1191, 1194 (2d Cir. 1994). The holder of a state driver's license or business license has a firmly established property right in that license, because "[o]nce licenses are issued... their continued possession may become essential in the pursuit of a livelihood." Bell v. Burson, 402 U.S. 535, 539 (1971); see Spinelli v. City of New York, 579 F.3d 160, 169 (2d Cir. 2009). The same reasoning applies to taxicab and FHV driver's licenses, each being necessary for the license holder's continued employment.

When the parties in this case originally cross-moved for summary judgment, it was "undisputed that a taxi driver has a protected property interest in his license sufficient to trigger due process protection, " Rothenberg I, 2010 WL 3860425, at *4 (quoting Nnebe, 665 F.Supp.2d at 323), as it was on appeal, see Brief of Defendants-Appellees at 29, 44, Rothenberg v. Daus, 481 F.Appx. 667 (2d Cir. 2012) (No. 10-4411-CV). Defendants now dispute whether three plaintiffs-Rothenberg, Kombo, and Ali-had any protected property interest in their licenses, because at the time of their revocations, they had license renewal applications pending before the TLC.

Defendants' new argument lies outside the scope of the Second Circuit's remand order, which "identif[ied] a number of issues that warrant further briefing and, possibly, record development" but which did not identify the existence vel non of a protected property interest as one of those issues. Rothenberg III, 281 F.Appx. at 671. The absence of this issue from the Second Circuit's remand order makes perfect sense, of course, because all the parties to this litigation had previously agreed that all plaintiffs had a property interest in their licenses. Accordingly, litigation of this new issue is foreclosed. See United States v. Ben Zvi, 242 F.3d 89, 95-96 (2d Cir. 2001) ("generally prohibit[ing] the district court from reopening the issue on remand unless the mandate can reasonably be understood as permitting it to do so"); United States v. Stanley, 54 F.3d 103, 107 (2d Cir. 1995) ("Because [defendant] decided on his first appeal to forego [an] argument..., the mandate rule prohibited the district court from reopening the issue."). Even if this rule did not prohibit this Court from considering defendants' new argument, this Court has the discretion to refuse to entertain it at this late stage. Thomas v. Arn, 474 U.S. 140, 154 n.14 ("[T]he district court... may refuse to entertain issues that are not raised in properly filed objections" to a magistrate judge's report and recommendation.); see also United States v. Grandberry, 730 F.3d 968, 980 n.10 (9th Cir. 2013).

Defendants had several full rounds of briefing in which they might have raised this issue: in briefing the original cross-motions for summary judgment before the magistrate judge; in the objections to the Report and Recommendation of September 8, 2010, which all parties filed; and on appeal before the Second Circuit. They declined to raise the issue at those stages, and the Court declines to entertain the issue now. For purposes of determining whether summary judgment is proper, the Court concludes that plaintiffs' TLC-issued licenses are property interests protected by the Due Process Clause.

B. All plaintiffs except Ali had fair warning that their conduct would result in revocation of their licenses.

"[A] law or regulation whose violation could lead to [] a deprivation [of property] must be crafted with sufficient clarity to give the person of ordinary intelligence a reasonable opportunity to know what is prohibited' and to provide explicit standards for those who apply them.'" Piscottano v. Murphy, 511 F.3d 247, 280 (2d Cir. 2007) (quoting Grayned v. City of Rockford, 408 U.S. 104, 108 (1972)). Because "we can never expect mathematical certainty from our language, " Grayned, 408 U.S. at 110, a regulation is "not automatically invalidated as vague simply because difficulty is found in determining whether certain marginal offenses fall within their language, " United States v. Nat'l Dairy Prods. Corp., 372 U.S. 29, 32 (1963). To balance the interest in clarity with the challenges of meticulous specificity, the Second Circuit's standard for sufficient clarity requires that "a reasonably prudent person, familiar with the conditions the regulations are meant to address and the objectives the regulations are meant to achieve, has fair warning of what the regulations require." Rock of Ages Corp. v. Sec'y of Labor, 170 F.3d 148, 156 (2d Cir. 1999) ( quoted in Rothenberg III, 481 F.Appx. at 671.) The inquiry "begin[s] with the text of the provision, considered in context, and where appropriate, with the benefit of canons of statutory construction and legislative history.'" Rothenberg III, 481 F.Appx. at 671 (quoting United States v. Farhane, 634 F.3d 127, 142 (2d Cir. 2011)).

Plaintiffs contend that they lacked fair notice that their conduct would lead to revocation, pointing to standards that they believe are vague and to practices that they believe are inconsistent with published standards. Because the challenged standards and practices differ as between how defendants treat convictions on one hand and failed drug tests on the other, the Court considers each category of revocations separately.

1. Of the conviction plaintiffs, Kombo and Dyce-but not Ali- had fair warning that their convictions would lead to revocation.

Plaintiffs Kombo, Dyce, and Ali were convicted of a variety of off-duty conduct. ( See Pls.' 56.1 ¶¶ 147-153; Defs.' 56.1 ¶¶ 185, 202, 217.) After each was convicted, the TLC conducted a fitness hearing and subsequently revoked his license for failure to continue to meet the qualifications of a licensed taxicab driver. See TLC Rules § 8-15(a). Plaintiffs allege that the TLC used a per se rule of revocation following their convictions and that they lacked fair warning that their conduct would lead to license revocation. Defendants, on the other hand, contend that a reasonable person familiar with the requirement that a taxicab driver have "good moral character, " and familiar with that requirement's purposes, would expect plaintiffs' convictions to prompt revocation.

Plaintiffs have identified a per se policy by which the TLC revoked their licenses on the grounds of their convictions alone. For plaintiffs convicted of assault (Kombo) or possession of a forged instrument (Dyce), the good moral character requirement so clearly prohibited their convictions that they should reasonably have expected revocation as a per se response. But plaintiff Ali was found to have committed the non-criminal infraction of driving while ability impaired under the Vehicle and Traffic Law. His conviction was neither for a crime nor for conduct inconsistent with good moral character and as a result he did not have fair warning that his conviction would result in revocation.

a. Plaintiffs' convictions led to per se determinations of unfitness.

In the past, the parties have disputed whether the TLC's response to a conviction is per se revocation or a more flexible determination. Plaintiffs have contended that, although no law or regulation calls for per se revocation on the basis of conviction alone, the de facto practice of the TLC is to consider no facts other than the identity of the convict and the nature of the offense when determining whether to revoke a license. Accordingly, the Second Circuit directed this Court to "address the evidence in the record that an unpublished TLC policy imposed revocation as a per se penalty for conviction for certain offenses, including the offenses for which plaintiffs were convicted...." Rothenberg III, 481 F.Appx. at 673.

The evidence demonstrating per se revocation upon criminal conviction is overwhelming. It is clear that, at the very least, the ALJs making determinations of fitness understood the TLC's practice as automatically revoking licenses for convictions. ALJ Frank Fioramonti testified that he does not consider whether the crime has any nexus to driving a taxi (Fioramonti Dep. 88, Nov. 7, 2008.), whether the crime occurred while the driver was on-duty ( id. at 68), the licensee's driving record ( id. at 68-69), whether the driver expressed remorse ( id. at 88), whether the crime involved moral turpitude ( id. ), or any underlying facts of the criminal convictions ( id. at 67-68). He explained that he "knew the TLC's overall policy was... if you had a criminal conviction, you were to be revoked." (Fioramonti Dep. 29; see also id. 67 (agreeing that the TLC had a zero tolerance policy regarding criminal convictions).) TLC prosecutor Marc Hardekopf testified to a similar understanding of TLC's policy: under his view of the standard, it is of no moment whether the criminal conviction is the licensee's first offense, whether it is in keeping with the person's general character, or whether the licensee had a good record as a driver. (Hardekopf Dep. 72, Oct. 8, 2008.) According to TLC Deputy Commissioner for Legal Affairs and General Counsel Charles R. Fraser, "a felony conviction per se shows a lack of good moral character." (Fraser Decl., Oct. 15, 2009, ¶ 38.) With regard to operating under the influence of intoxicating liquor, Fraser stated that "the TLC has [] made the determination that the illegal use of alcohol while driving is per se inconsistent with licensure as a driver, and therefore license revocation is mandatory... when illegal use of alcohol while driving is proved." (Fraser Decl., Oct. 15, 2009, ¶ 25.)

Given the weight of this evidence, defendants appear to no longer seriously dispute whether a conviction results per se in revocation. ( See Defs.' Mem. at 12 (framing the pivotal question as "whether the plaintiffs would reasonably have expected their convictions would render them unfit").) The Court sees no genuine dispute on this point. The Court concludes that the TLC had a per se policy to respond to plaintiffs' convictions with revocation.

b. Fair warning must be based on the "good moral character" standard.

Throughout the course of this litigation, two separate legal provisions have been offered to show that plaintiffs had fair notice that their convictions would prompt revocation proceedings. First, the Administrative Code includes a provision "for good cause shown relating to a direct and substantial threat to the public health and safety, " allowing the TLC to "suspend a taxicab or for-hire vehicle license" and ultimately to "revoke such license." N.Y. Admin. Code § 19-512.1(a) ( quoted in Rothenberg I, 2010 WL 3860425, at *2). Second, the TLC Rules provide for a fitness hearing "[i]f the [TLC] believes that a licensee... does not meet or does not continue to meet the qualifications for licensure, as set forth in [the TLC] Rules." TLC Rules § 8-15(a). As to the latter language, the qualifications for licensure in the TLC Rules include the requirement to "be of good moral character." Id. § 2-02(a)(7). The Second Circuit's remand order calls upon this Court to consider the applicability of each of these two provisions. See Rothenberg III, 481 F.Appx. at 572.

The "public health and safety" provision in Administrative Code Section 19-512.1(a) is facially inapplicable in this litigation. The text of the provision is limited to "a taxicab or for-hire vehicle license." Admin. Code § 19-512.1(a). Other provisions of the Code, by contrast, regard "a taxicab or for-hire vehicle driver's license." See, e.g., id. § 19-507.1(a)(1) (emphasis added). The Code defines a "[v]ehicle license" as a "taxicab license, coach license, wheelchair accessible van license or for-hire vehicle license issued by the commission, " id. § 19-502(e), and, it separately defines a "[d]river's license" as "a license for a driver issued by the commission, " id. § 19-502(d). The verbiage of the Code makes clear that Section 19-512.1(a) applies to licenses for vehicles and not to licenses for drivers.

Unlike the "public health and safety" provision, the "good moral character" requirement applies to drivers explicitly: it appears in a list of requirements for "[a]n applicant for a taxicab driver's license." See id. § 2-02(a). The section in which it arises is titled, "Requirements for a Taxicab Driver's License to Operate a Medallion Taxicab." Id. § 2-02. It therefore fits neatly into the "qualifications for licensure, as set forth in [the TLC] Rules, " id. § 8-15(a), and accordingly, an interruption in a licensee's good moral character fits squarely into Section 8-15(a)'s provision for a fitness hearing.

The Court concludes that the "public health and safety" standard cannot have provided fair warning to plaintiffs that their conduct's consequences would include license revocation, because that provision is unrelated to plaintiffs' licenses. By contrast, the Court concludes that the "good moral character" standard is the appropriate provision under which to analyze whether fair warning existed.

c. A reasonable driver would expect a conviction for assault or for possession of a forged instrument-but not for the non-criminal infraction of driving while ability impaired-to result in revocation.

Conviction plaintiffs' vagueness challenge depends upon whether a reasonable person familiar with the "good moral character" standard, and with its purpose, would have expected plaintiffs' conduct to prompt their license revocations. As the Second Circuit explained, "[t]o the extent the court determines that the good moral character' standard is appropriate, ... conviction plaintiffs cannot prevail if their conduct was so clearly within the ambit of the provision that they had warning that their conduct would lead to revocation." Rothenberg III, ...


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