40 Rector Street, New York, New York 10006
July 26, 2002
Mr. Samuel H. Sloan
39-75 56th Street, #5A
Woodside, NY 11377
Dear Mr. Sloan:
I conducted a hearing with respect to your status as a Licensee of the TLC and issued the attached Report and Recommendation to the Chairperson pursuant to Chapter 8 of the Taxi and Limousine Commission Rules.
You are hereby afforded the opportunity to submit a written response to my Recommendation which, together with my Recommendation, will be submitted for the Chairperson's consideration in rendering the Final Agency Decision in this matter.
Your response, if you choose to make one, must be submitted within ten (10) calendar days from the date of this letter. it must be limited solely to any exceptions or objections you have to the conclusions contained in the Report and Recommendation. No evidence outside of the hearing record can be considered. The final Agency decision, which will be made by the Chairperson, will become a matter of public record.
Your response must be submitted in writing to the New York City Taxi & Limousine Commission, Legal Department, 40 Rector Street, 5th Floor, New York, NY 10006.
Very truly yours,
J. R. Schneider
Administrative Law Judge
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NEW YORK CITY TAXI & LIMOUSINE COMMISSION
40 Rector Street, New York, New York 10006
RECOMMENDATION TO TLC CHAIRPERSON
RE: Hearing of Samuel H. Sloan TLC License No. 5093363
FROM: J.R. Schneider Administrative Law Judge
DATE: July 26, 2002
On July 12, 2002, I conducted a hearing to determine whether Samuel H. Sloan, a TLC licensee, violated Rule 6-18(d)(1) (misrepresentation) in connection with his application for For-Hire Vehicle ("FHV") Operator's license no. 5093363.
At the instant hearing, the TLC appeared by Assistant General Counsel Marc T. Hardekopf who submitted a copy of the Notice of Charges and Hearing on the Merits issued on June 24, 2002 (hereinafter "Notice.") The Notice charged Mr. Sloan with violating Rule 6-18(d)(1) by falsely stating in response to Question 18 of the instant application that no license issued to him had ever been suspended or revoked. The Notice also charged Mr. Sloan with a second violation of the above-referenced Rule by falsely stating in response to Question 20 of the same application that he was never convicted of a crime.
Mr. Sloan appeared at the hearing pro se. At the commencement of the hearing, he moved for dismissal of the charges on the ground that Commission action was precluded by ongoing legal proceedings in the Supreme Court of the State of New York, County of New York- and by rulings in that matter. He also objected to the instant proceeding because, he stated, in the TLC adjudicative system the Administrative Law Judge is not independent. Mr. Sloan said, with regard to the latter claim, that Mr. Hardekopf had informed him that hearings in this matter would be held before the Office of Administrative Trials and Hearings (hereinafter "OATH".) In response, Mr. Hardekopf stated that he had merely informed Mr. Sloan that other charges (not disclosed at the instant hearing) might be the subject of charges before OATH. Further, Mr. Hardekopf claimed that the instant hearing was not precluded by any prior legal action. Review of various legal documents submitted by Mr. Sloan, including an Order, indicate that that the Court in those proceedings was aware of possible TLC actions in this matter and had ruled that the Commission could proceed. Further, the Notice specified that the hearing on the above-referenced charges would be held at the TLC Tribunal. Mr. Sloan had adequate time prior to the hearing to seek Supreme Court clarification concerning this and/or relief from the instant proceeding and had not done so. Based upon the foregoing, his motions were denied. For the same reason, his motion for an adjournment was also denied.
For TLC
Mr. Hardekopf submitted the instant application, dated September 7, 2001, showing that Mr. Sloan had checked "no" in response to Questions 18 (prior suspensions or revocations) and 20 (criminal convictions.)
Question 18 Mr. Hardekopf stated that the charge of misrepresentation in connection with the Question 18 answer was based solely upon Mr. Sloan's failure to disclose suspensions of a prior license. He submitted Mr. Sloan's TLC record which showed that his prior TLC license (no. 496476) was suspended five times between 1998 and 1999 (12/21/98,1/07/99, 9/8/99, 11/18/99, 11/30/99) and that all the suspensions had ended prior to the date of the instant application. TLC computer records specified that four of the suspensions resulted from inquest hearings and the fifth was explained as "legal" and "failure to respond to the TLC." Mr. Hardekopf stated the suspensions required affirmative steps by Mr. Sloan for removal and that the records indicated that such steps were taken. In this connection, he noted that the last suspension ended April 27, 2001, that payment of $90 was made, and that on the same date Mr. Sloan had applied for a medallion operator's license. (That application (no. 5081212) was subsequently denied.) Mr. Hardekopf claimed that the dates indicated that Mr. Sloan was made aware of an open suspension when he filed that application and took steps to promptly clear it. Based on the foregoing, Mr. Hardekopf argued that Mr. Sloan knowingly failed to disclose suspensions and therefore misrepresented.
In response to questioning, Mr. Hardekopf acknowledged that all the above-stated information concerning Mr. Sloan's suspension record was in TLC records at the time the instant license was granted. He said that he had no knowledge as to whether Mr. Sloan had been notified of the suspensions when commenced but believed that he must have come to know of them because they had all been cleared.
Question 20
With regard to the charge of misrepresentation in the response to Question 20, Mr. Hardekopf stated that Mr. Sloan had failed to disclose prior criminal convictions. He said that in late 2001 he had had reason to believe, from a parole letter posted on Mr. Sloan's internet site, that Mr. Sloan had been convicted of a crime in Virginia. He made repeated efforts to obtain Mr. Sloan's criminal record from Virginia without involving Mr. Sloan but had been unable to do so. Mr. Sloan consented to the release of information on or about May 24, 2002, after repeated TLC requests to him for information. On or about June 19, 2002, Mr. Hardekopf received a "Virginia Criminal Record" from Virginia's Department of State Police, Central Criminal Records Exchange (hereinafter "criminal record".) The criminal record stated that on September 5, 1991, Mr. Sloan was charged with "Abduction" (a felony) and on October 7, 1992, he was charged with "Fail to Appear" (a felony.) He was convicted of "Attempted Abduction" and "Fail to Appear" (both felonies) on January 13, 1993, and on April 23, 1993, he was sentenced to five years and 10 days for "Attempted Kidnap/Contempt of Court." (The Criminal History Record Request and the criminal record were submitted at the instant hearing.) Mr. Hardekopf stated that he had been informed that Mr. Sloan had been thereafter imprisoned for a period of time. Mr. Hardekopf argued that the foregoing established misrepresentation by Mr. Sloan in his response to Question 20 and that the motivation for his false statement was that disclosure of these serious offenses could well have resulted in denial of the application. This possibility was precluded by misrepresentation.
For Samuel Sloan
Mr. Sloan testified and denied the charges:
Question 18
Mr. Sloan stated that he applied for a medallion operator's license in April 2001 and that application was denied the following month after a hearing. In early September 2001, he applied for the instant FHV operator's license. Mr. Sloan said that he was well known at the TLC's Long Island City facility because he had been there on numerous occasions. He said he was also known to TLC officials because he was a frequent and strong critic of TLC polices and procedures. When he arrived to file his application, a clerk pulled up his record, reviewed the screen and consulted a supervisor who said everything was OK. TLC staff then accepted his application and payment. He received the license about two weeks later. No hearing had been held. (TLC records show that the instant license was approved September 19, 2001.) On or about October 19, 2001, the license was suspended. Mr. Sloan said that he was told that it was due to an alleged misrepresentation in his response to Question 18 concerning a hearing at JFK. He stated that he was thereafter informed by Charles Tortorici, Deputy Commissioner for Licensing, that there had been a mistake. Mr. Sloan said that he had a subsequent conversation with TLC Investigator Jeanmarie Ariola who told him that he had Question 18 correctly but that his answer to Question 17 was "wrong." He testified that he had never been told that his prior license was suspended and that there was no letter informing him of suspensions in the TLC's May 2002 response to his FOIL request. He also argued that the TLC had failed to establish that any suspensions had occurred.
In response to questions, he said that he could not recall paying a $90 fine or clearing a suspension in April 2001, that his prior license had never been confiscated for any reason and that he had believed that his license had never been suspended at the time he filed his application.
Question 20
Mr. Sloan acknowledged that he had been convicted in Virginia of the crimes specified on his Virginia criminal record and had been imprisoned for a year-and-a-half and thereafter released on parole. He also acknowledged that the convictions were not reversed or expunged from his record. He stated, however, that the convictions arose from a child custody dispute and were improper and meaningless.
Mr. Sloan stated that his wife had custody of their infant child but left the United States leaving the child with him. He became apprehensive that babysitters who were caring for the child were attempting to convert her to their fundamentalist Baptist faith and therefore took the then four-year old child to Abu Dhabi in about 1985. He said that in about 1990, the child was kidnapped from his home there by Christian fundamentalists connected with the prior babysitters. Mr. Sloan had reason to believe that the child was in Virginia and went there in 1991. He acknowledged that there had been pre-existing litigation in Virginia concerning the custody of the child and involving the Virginia social services department.
He said with regard to the attempted abduction charge that he was arrested when he arrived in Virginia and before he had seen his child, and that he had never intended or attempted to abduct the child. With regard to the failure to appear charge, he said that the hearing at issue had in fact been rescheduled. (Mr. Sloan submitted a October 3, 1991 Virginia court decision awarding full custody of child to the former babysitter - and denying visitation rights to Mr. Sloan. The factual recitation in that decision differs in various details from that made by Mr. Sloan in the instant proceeding. Mr. Sloan also submitted an October 25, 1994 New York Supreme Court order granting "on default" a modification of the 1982 order and granting custody of the child to Mr. Sloan.)
Mr. Sloan denied misrepresentation with regard to his Question 20 answer and said that his conviction was not a secret. Rather, he said, he had broadly publicized it on his internet site because he believed that it was "invalid" because, among other reasons, Virginia never had custody of his child. Therefore, although he was convicted of a crime, he believed the criminal record to be meaningless.
Mr. Sloan claimed that the TLC's actions and charges in this matter were in retaliation for his vigorous criticism, over his internet site, since about 1998 as well as his legal action against the Commission. He stated that he has an exemplary record as a driver. Further, he said that he had not been aware that the five suspensions detailed by Mr. Hardekopf were the basis for the Question 18 charge until the date of the hearing. Rather, he had believed that the "airport" charge, which he said was a subject of the litigation in the NY Supreme Court, was the basis of the charge. Mr. Sloan stated that he has eight children, including an eight-month old, his wife is pregnant and loss of his license would cause financial hardship.
Findings
Question 18
I find that the record of suspensions submitted by the TLC as part of Mr. Sloan's TLC record is credible and that the TLC has established that Mr. Sloan's prior license was suspended on several occasions. Further, I credit Mr. Hardekopf's claim that affirmative steps were required to clear the suspensions. The suspension record shows that on or about the date of Mr. Sloan's filing of an application for a medallion license in April 2001, the last suspension was cleared. I find that the suspensions were cleared by Mr. Sloan. However, Mr. Hardekopf had no knowledge as to the underlying circumstances in the matters that resulted in suspension and no evidence was submitted at the instant hearing as to the nature of any notice received by Mr. Sloan at the time of the imposition of the suspensions. The computer records submitted indicate that the suspensions at issue were imposed by routine implementation of TLC rules and procedures to obtain compliance by a licensee. There has been no evidence submitted that they were imposed upon Mr. Sloan by an ALJ after a hearing and consideration of the circumstances in a particular case, as a penalty for a rule violation. In all the foregoing circumstances, I find that the fact that Mr. Sloan did not indicate them in his response to Question 18 does not establish a violation of Rule 6-18(d)(1). Accordingly, I dismiss that charge.
Question 20
Mr. Sloan does not dispute that he was convicted in Virginia of serious crimes which remain on his criminal record and that he was sentenced to a substantial term of imprisonment for those crimes. He argues rather as explanation for his failure to disclose them that the convictions are meaningless and invalid because they arose from a child custody dispute and that Virginia did not have jurisdiction over the child. The circumstances of the convictions, however, may not be considered in this proceeding. Rather, the issue is whether Mr. Sloan was required to disclose the convictions and violated Rule 6-18(d)(1) by failing to do so. Question 20 asks, "Have you ever been convicted of a crime in any jurisdiction, Federal, State, or Local? ... A "Yes" answer is not an automatic ban or disqualification..." I find that Mr. Sloan was required to disclose the convictions on his application, regardless of the sincerity of his view that they were improper. Further, I do not find it credible that Mr. Sloan, who is intelligent and highly competent in English, did not understand that. The information is clearly requested to enable the TLC to make an informed decision as to the fitness of an applicant. When a criminal record is disclosed, TLC procedures provide a hearing so that the applicant may explain the circumstances of the convictions and why he/she thinks a license should be granted. That proceeding is the proper place to assert that convictions which remain on the applicant's record were improper. I conclude that Mr. Sloan's failure to disclose the convictions was for the purpose of preventing further Commission inquiry. In this connection, I note that even a full disclosure of the convictions on Mr. Sloan s internet site, if such occurred at the time of his application, would not constitute an appropriate disclosure to the TLC in connection with an application. Based upon the foregoing, I find that Mr. Sloan violated Rule 6-18(d)(1) by stating "no" in response to Question 20.
Recommended Penalty
At the hearing, the TLC requested the penalty of revocation of respondent's TLC driver's license in light of the charges.
As this matter involves a request for a discretionary revocation, the following consists of my recommended decision.
Upon making the foregoing findings, I reviewed Mr. Sloan's driving records. His TLC record shows a total of nine violations, principally minor, in the two years that he operated a taxicab (8/97-10/99.) He has no other TLC violations on his record. His DMV record shows a total of four violations and indicates that he received his New York DMV license in 1997. Therefore, his record is not unacceptable.
However, I have found Mr. Sloan guilty of a deliberate misrepresentation in failing to disclose when applying for a license two serious convictions, involving attempted abduction of a child and failure to appear as required for court appearance. Therefore, with regard to the Rule 6-18(d)(1) violation, in light of the findings of fact and conclusions of law in the instant matter, I recommend the penalty of $350 fine and revocation and I impose 4 points pursuant to the Persistent Violator Program.
.