NEW YORK CITY OFFICE OF ADMINISTRATIVE TRIALS AND HEARINGS

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1 Taxi & Limousine Comm n v. Elouannas OATH Index No. 1620/09 (April 3, 2009), modified on penalty, Comm r/chair s Dec. (June 25, 2009), appended, aff d, Comm n Dec. (Mar. 18, 2010), appended In revocation proceeding, taxicab driver found guilty of cursing, grabbing a passenger s arm and purse, and locking passengers inside the cab. License revocation and $3,850 fine recommended. Chair imposes penalty of license revocation but finds maximum aggregate fine is $3200, which he imposes. On appeal, the full Commission affirmed the Chair s penalty. NEW YORK CITY OFFICE OF ADMINISTRATIVE TRIALS AND HEARINGS In the Matter of TAXI AND LIMOUSINE COMMISSION Petitioner -against- MOHAMED ELOUANNAS Respondent REPORT AND RECOMMENDATION JULIO RODRIGUEZ, Administrative Law Judge This proceeding was commenced by the Taxi and Limousine Commission against respondent, Mohamed Elouannas, pursuant to the Administrative Code and the Taxicab Drivers Rules, title 35, chapter 2 of the Rules of the City of New York (RCNY). Petitioner alleges that respondent cursed, locked two passengers inside the cab, and grabbed one passenger s arm and purse. A hearing was held before me on January 15, Petitioner presented the testimony of the two passengers. Respondent admitted using the f word but otherwise denied the alleged violations. For the following reasons, I recommend that the charges be sustained, that respondent s license be revoked, and that he be fined $3,850.

2 - 2 - ANALYSIS This case concerns a taxi ride taken by two passengers, Veronica Relea and Renee Zaytsev, on September 7, Ms. Relea testified that, at around 10:30 p.m., she hailed respondent s cab near her apartment at 68 th Street and First Avenue and asked him to make two stops, the first at 28 th Street and Fifth Avenue to pick up a friend, and the second at 30 th Street and Tenth Avenue, where the two of them were attending a party. Respondent drove down Fifth Avenue to 28 th Street and they waited a few minutes until Ms. Zaytsev arrived. Ms. Relea apologized to respondent for the delay. After Ms. Zaytsev entered the cab, Ms. Zaytsev told respondent to drive to 30 th Street and Tenth Avenue. He asked her whether she was going to tell him how to drive there. Ms. Zaytsev and Ms. Relea became immersed in conversation and did not pay close attention to the route respondent was taking. At around 32 nd Street, Ms. Relea told respondent he was going the wrong way. According to Ms. Relea, respondent immediately began cursing and said, You re stupid. Neither passenger remembered anything else respondent said. Ms. Relea said she did not need to take this and asked to get out of the cab. Ms. Relea recalled respondent answering, I m not letting you out until you pay the fucking fare. According to Ms. Zaytsev, he said, I m not going to let you out of this cab until you pay me the fucking $12, you stupid bitch. The two women heard a click and realized respondent had locked all the car doors. At this point, Ms. Relea freaked out, and threatened to call the cops. As respondent continued to drive, she began crying. Respondent drove west on 33 rd Street, turned on to Tenth Avenue, and stopped at 34 th Street. Ms. Relea, Ms. Zaytsev, and respondent all got out. Respondent told the women they were not going anywhere until they paid him. Ms. Relea said they would not pay for the detour respondent had taken after driving past their destination. Respondent grabbed Ms. Relea s arm, then her purse, and wrested it from her grasp. During this struggle, Ms. Relea broke the heel of her shoe. At this point, Ms. Zaytsev slapped respondent and was able to grab Ms. Relea s purse back, although by this time the purse s contents were all over the pavement. Respondent picked up a small bowl of yogurt which Ms. Zaytsev had been eating, from the seat of the taxi, and threw it at her. Ms. Relea said again that she would call the police. Respondent got into his cab and drove away. Before he left, Ms. Relea copied down his license number and then reported the incident to the police.

3 - 3 - Ms. Relea and Ms. Zaytsev waited for the police to arrive. Because the officers told them it was unlikely that criminal charges would be issued against respondent, they did not file a formal complaint. Instead, they returned to Ms. Zaytsev s apartment, Ms. Relea borrowed a pair of shoes, Ms. Zaytsev changed her clothes, and they took another cab to the party. The next day Ms. Zaytsev filed a complaint at the Commission about respondent s actions. In his testimony, respondent admitted driving first Ms. Relea and then both her and Ms. Zaytsev on September 7. He recalled that Ms. Relea first told him to drive to 28 th Street and Fifth Avenue and a few moments later told him to go to 27 th Street. When he arrived at 27 th Street, she asked, Why are you here? I told you 28 th Street. She made a call and then apologized to respondent, saying the confusion about the cross street was her fault. Respondent insisted that, after Ms. Zaytsev entered the cab, either she or Ms. Relea told respondent they were going to 31 st Street and Eleventh Avenue and never mentioned 30 th Street or Tenth Avenue. Respondent proceeded west and, because he lives in this neighborhood, realized that there was no such address as 31 st Street and Eleventh Avenue due to the railroad tracks. He insisted that he told his passengers there was no such address, but they ignored him. Respondent contended that, as he drove west on 33 rd Street, one of his passengers asked, Where the fuck are we going? Why are we going this way, dumb ass? Between Ninth and Tenth Avenues, one of the women ordered respondent to let them out. He agreed but demanded that they pay $15. One of them replied, No, we re not fucking paying you, you idiot. Respondent again explained that this route was the only way to reach 31 st and Eleventh Avenue. Respondent also insisted that the safest manner to drop the women off without obstructing traffic was to turn left on Tenth Avenue and then stop. Ms. Zaytsev told Ms. Relea to pay respondent. Both women got out. As Ms. Relea exited, she somehow broke her heel and dropped her purse. Respondent denied grabbing either Ms. Relea or her purse. Ms. Relea said, You freaking asshole, you broke my shoes. At this point, respondent realized he would not get paid. He noticed the yogurt container on the seat and pushed it with his hand onto the ground. Ms. Zaytsev stumbled over the yogurt and stained her pants. Respondent closed the doors and left. Respondent contended that, despite the two passengers foul language, he just verbally argued and perhaps used the f word. He denied calling either passenger a bitch.

4 - 4 - I found both Ms. Relea and Ms. Zaytsev to be credible witnesses with no apparent motive to falsify their accounts. Both offered abundant details concerning the incident, including their own angry reactions. Ms. Relea admitted using profanity herself and admitted apologizing multiple times about the confusion of the address of the first stop. Ms. Zaytsev admitted striking respondent in the head in order to retrieve Ms. Relea s purse. Ms. Zaytsev made it clear that, although the cab doors locks were engaged by respondent, she and Ms. Relea were, in fact, still able to manually unlock them. None of these details were consistent with respondent s contention that the women fabricated their testimony. Moreover, most of the details, including respondent s use of the f word, the broken high heel, the spilled contents of the purse, and the yogurt splattered on Ms. Zaytsev s clothing, were all confirmed by respondent himself. On the other hand, respondent s testimony was replete with contradictions and efforts to suggest that the passengers, particularly Ms. Relea, were profane and unreasonable. He insisted that the address for the second stop did not exist, yet indicated that he proceeded to drive there without insisting on clarification. He accused Ms. Relea of being loud and profane in speaking with him, but admitted that she repeatedly apologized about having to wait for Ms. Zaytsev. The most surprising contradiction concerned his interactions with Ms. Zaytsev at the end of the ride. On direct examination he characterized Ms. Zaytsev as being quiet and polite and stated that he simply drove away after the two passengers exited the cab. Then, late on cross-examination he indicated that Ms. Zaytsev struck him while he was on the floor. I attributed respondent s withholding of this particular detail to his inability to explain why a quiet passenger suddenly struck him without provocation. Respondent s testimony exhibited a pattern of admitting inclupatory facts and then offering unconvincing and sometimes contradictory explanations. He indicated that he did not immediately stop the cab when requested because he was concerned about the traffic flow, although he described crossing several lanes of traffic on Fifth Avenue to make a sharp right turn. He conceded that Ms. Relea broke her high heel and dropped her purse, but insisted that both were purely accidental. He also admitted that Ms. Zaytsev got yogurt on her pants, but indicated this, too, was either an accident inside the cab or due to her stumbling on the pavement. He insisted that in his minivan cab the doors locked automatically whenever the transmission was in drive. Notably, he repeatedly mentioned his anger at not collecting his fare, confirming

5 - 5 - the plausibility of the two passengers account that respondent used fear and then physical force to attempt to obtain his money. It is true that respondent also admitted using the f word and that such an admission would normally be an indication of truthfulness. However, in this case, respondent s other testimony was so contradictory and at odds with the more believable account of Ms. Relea and Ms. Zaytsev that this concession was insufficient to restore any faith in his veracity. Respondent s counsel suggested that Ms. Relea s and Ms. Zaytsev s decision to change clothes and attend the party was inconsistent with their contention that they were upset by the incident. If anything, this detail confirmed my impression that the two passengers were not embellishing the circumstances of the incident. Had they fabricated the accusations that respondent assaulted them, it seemed unlikely that they would concede they went to the party. The fact that Ms. Zaytsev filed a complaint with the Commission the next day was also consistent with her and her friend s portrayal of two passengers who had been abused by a driver. On one detail where the testimony of Ms. Relea and Ms. Zaytsev diverged, I found an insufficient basis to make a fact-finding. Ms. Zaytsev recalled respondent calling Ms. Relea a bitch, but Ms. Relea did not mention this. Because the use of such an insult seemed something that Ms. Relea would have been likely to remember, I reached no finding on this issue. Based upon the credible testimony of Ms. Relea and Ms. Zaytsev, I find that, on the date in question, Ms. Relea and Ms. Zaytsev asked respondent to take them to 30 th Street and Tenth Avenue. When they noticed they had reached 32 nd Street, they told him he was going the wrong way. Respondent answered that they were stupid and began yelling at them in an angry tone of voice. Ms. Relea said she did not have to take this and asked respondent to let them leave the cab. Respondent then said, I m not going to let you out of this cab until you pay me the fucking $12. Respondent then engaged the locks and drove at least two cross town blocks, finally turning left on Tenth Avenue and stopping. Ms. Relea, Ms. Zaytsev, and respondent all exited the vehicle. They argued about the fare, with respondent demanding that they pay the full $12 fare and Ms. Relea saying she would not pay for the detour respondent had supposedly taken. Respondent then grabbed Ms. Relea s arm and purse, wresting her purse away from her. Ms. Relea fell backwards and broke the heel on her shoe. Ms. Zaytsev then slapped respondent in the head and grabbed the purse back. Respondent grabbed a bowl of yogurt from the seat of the taxi

6 - 6 - and threw it at Ms. Zaytsev, staining her clothes. Respondent then drove away. Ms. Relea and Ms. Zaytsev called the police but did not file a complaint against respondent. Ms. Zaytsev filed a complaint with the Commission the next day. Respondent s grabbing of Ms. Relea s arm in an effort to take her purse and his throwing of the bowl of yogurt at Ms. Zaytsev violate rule 2-60(b), which prohibits a driver from using physical force against a passenger. His seizing of Ms. Relea s purse violates 2-61(a), which forbids a driver from committing or attempting to commit any act of larceny against a passenger. His reference to Ms. Relea having to pay the fucking $12 is a violation of rule 2-60(a) forbidding verbal abuse or harassment. Finally, respondent s refusal to stop and his locking of the car doors for several minutes had the effect of imprisoning the two passengers in the moving taxicab. This action violated rule 2-61(a)(2), which prohibits any action against the best interests of the public. FINDINGS AND CONCLUSIONS Petitioner established by a preponderance of the credible evidence that: 1. Respondent used physical force against a passenger by grabbing her arm, and used physical force against another passenger by throwing a bowl containing yogurt at her; 2. Respondent grabbed a purse off the person of a passenger; 3. Respondent locked the doors to his taxicab and refused a passenger s request to stop and drove for two or three blocks with the doors locked, thereby not allowing the passengers to exit the taxicab; and 4. Respondent harassed a passenger by stating that she had to pay the fucking $12 fare. THEREFORE: I find respondent, Mohamed Elouannas, guilty of all charges.

7 - 7 - RECOMMENDATION Upon making the foregoing findings, I reviewed a summary of respondent's driving record, which reveals several convictions for violating Commission rules dating back to Most significantly, respondent was found to have violated Commission rule 2-61(a)(2) in In this case, petitioner s counsel asserts that respondent s actions of using profanity, locking passengers inside his moving taxi for several minutes, assaulting two female passengers, and seizing a purse from a passenger warrant revocation and the maximum fines of $3,850. Certainly, any violence against passengers cannot be tolerated and must be severely penalized. Taxi & Limousine Comm'n v. Jaffar, OATH Index No. 2174/00 (July 13, 2000); Taxi & Limousine Comm'n v. Iqbal, OATH Index No. 791/93 (May 5, 1993). Likewise acts of discourtesy, while not as serious, demand a significant penalty. Accordingly, I recommend that respondent s license be revoked and that he be fined the maximum allowable fine for each violation, totaling $3,850. Julio Rodriguez Administrative Law Judge April 3, 2009 SUBMITTED TO: MATTHEW W. DAUS Commissioner/Chair APPEARANCES: MARC T. HARDEKOPF, ESQ. Attorney for Petitioner CYNTHIA FISHER, ESQ. Attorney for Respondent

8 - 8 - NYC Taxi and Limousine Commission Comm r/chair s Decision, June 25, 2009 In the Matter of TAXI AND LIMOUSINE COMMISSION Petitioner -against- MOHAMED ELOUANNAS Respondent MATTHEW M. DAUS, Commissioner/Chair DECISION A hearing was held on January 15, 2009, 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 respondent violated Taxi and Limousine Commission ("TLC") Rules 2-60(b), 2-61(a)(2) [2 violations], and 2-60(a). The ALJ has recommended the revocation of respondent s Medallion Operator license and the imposition of a fine totaling $3,850. I have, moreover, reviewed the letter written by respondent s attorney, Cynthia Fisher, in response to the ALJ's recommendation, which was received by the TLC on May 5, I find her arguments to be unpersuasive. The ALJ found that on September 7, 2009, respondent verbally harassed a passenger, locked two passengers inside your cab, physically assaulted a passenger and unlawfully retained possession of a passenger's property. Given respondent s violation of 2-60(b), 2-61 (a)(2) [2 violations], and 2-60(a), I concur with the ALJ's recommendation with regard to penalty. However, the maximum cumulative fine amount that can be imposed for all 4 violations is $3,200, not $3,800 as ALJ Rodriguez concluded in his recommendation. Therefore, upon careful review of the record before me, I hereby revoke respondent s TLC license and impose the maximum fine amount totaling $3,200. MATTHEW M. DAUS, Commissioner/Chair, NYC Taxi and Limousine Commission

9 - 9 - NYC Taxi and Limousine Commission Decision, March 18, 2010 In the Matter of TAXI AND LIMOUSINE COMMISSION Petitioner -against- MOHAMED ELOUANNAS Respondent Commission Executive Session DECISION Please be informed that at the Executive Session held today, March 18, 2010, the Commission affirmed the Chair's decision to revoke Mr. Elouannas's license and to impose a fine of $3,200.