In the Matter of Ciro Dellaporte, Respondent,v.New York City Department of Buildings, et al., Appellants.BriefN.Y.February 13, 2014SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: FIRST DEPARTMENT Application of CIRO DELLAPORTE, Petitioner- Appellant, For a Judgment Pursuant to CPLR Article 78 -against- NEW YORK CITY DEPARTMENT OF BUILDINGS, And Aisha Ncrtlett, Director Licensing Unit, Respondents- Respondents. New York County Index No.: 111622/2011 BRIEF FOR PETITIONER- APPELLANT The Rosenthal Law Firm, PC Attorneys for Petitioner-Appellant 350 Broadway, Suite 214 New York, NY 10013 Tel: (212) 625-8300 Fax: (212) 625-8661 Email:douglas.rosenthal@usa.net Corporation Counsel Attorneys for Respondent- Respondent Jasmine M. Georges Assistant Corporation Counsel New York City Law Department 100 Church Street, Room 5-179 New York, NY 10007 Phone: (212) 788-0819 Fax: (212) 791-9714 Fmail:jgeorges@law.nyc.gov Reproduced on Recycled Paper TABLE OF CONTENTS TABLE OF CONTENTS TABLE OF AUTHORITIES QUESTION PRESENTED NATURE OF THE CASE - PRELIMINARY STATEMENT STATEMENT OF FACTS ARGUMENT A. THE LOWER COURT ERRED IN FINDING A DIRECT RELATIONSHIP EXISTED BETWEEN APPELLANT'S CRIMINAL CONVICTION AND HIS FITNESS OR ABILITY TO PERFORM ONE OR MORE OF THE DUTIES OR RESPONSIBILITIES NECESSARILY RELATED TO THE SUBJECT LICENSE. Page i 1 5 1. Statutory Scheme 2. Appellant's Crime 9 3. The Lower Court's Two (2) Errors. 10 H. APPELLANT COMPLIED WITH ALL OF APPELLEE'S 14 REQUIREMENTS FOR RENEWAL OF HIS STATIONATRY ENGINEER'S LICENSE III. STATIONARY ENGINEERS WERE NEVER RESPONSIBLE FOR LOW PRESSURE BOILER INSPECTIONS. CONCLUSION PRINTING SPECIFICATION STATEMENT 14 15 16 TABLE OF AUTHORITIES CASES Acosta V. New York Dept. Of Education, 16 NY3d 309, 946 N.E. 2d 731 (NY2011) Bonacorsa v. Van Líndt, 71 NY2d 605, 523 N.E. 2d 806, 528 N.Y.S. 2d 519 (NY 1988) Marra v City of White Plains, 96 A.D.2d 865 (1983) Soto-Lopez V. NYC Civil Service Commission, 713 F.Supp. 677 (SONY 1989) PAGE 7,8,9 6,7 13 13 STATUTES 18 USC 666(a) (1) (A) 9 New York State Correction Law 5,6,8 Article 23-A, Section 752 New York Administrative Code Law 12 28-413.3 QUESTION PRESENTED Whether the Supreme Court erred in upholding the New York City Department of Buildings ( "NYCDOB ") decision which denied Appellant's application to renew his Stationary Engineer's license - a determination claimed by Appellant to be arbitrary, capricious and an abuse of discretion. NATURE OF THE CASE - PRELIMINARY STATEMENT This appeal arises from the March 22, 2012 (filed March 26, 2012) decision by the Supreme Court of the State of New York for the County of New York with regard to Appellant's application for renewal of his Stationary Engineer's license. Appellant filed a petition pursuant to Article 78 of the Civil Practice Law and Rules of the State of New York seeking to vacate, reverse and annul the NYCDOB determination dated June 13, 2011. The decision by Appellee, must be vacated inasmuch as same is a textbook example of a decision deserving the label "arbitrary and capricious ". In its decision on page 6, the Supreme Court not only erred but contradicted itself as well in finding that: The Stationary Engineer license also requires that Appellant retain truthful and accurate records of boiler pressure, temperature, power output and fuel consumption, and to submit annual low pressure boiler inspection reports to the DOB on behalf of building owners. As a 1 Stationary Engineer licensee, Appellant is authorized to submit inspection reports to the DOB and it is imperative that these submissions are reliable in order to protect the safety and welfare of the public. However, this finding is factually incorrect inasmuch as a stationary engineer is NOT required to submit annual low pressure boiler inspection reports to the DOB on behalf of building owners, but is only authorized to do so. In fact, Appellant has never submitted such an inspection report in all his fifteen (15) years as a Stationary Engineer. Though qualified he is not required to do so. Appellant claims it is not on his job description to inspect low pressure boilers. Appellant further claims that his job description was improperly changed by DCAS (Department of Citywide Administrative Services) to suggest that Stationary Engineers do low pressure boiler inspections, which runs counter to the CBA (Collective Bargaining Agreement "). Inasmuch as the lower Court found that Appellant's criminal activity bears a direct relationship on Appellant's "fitness and ability to perform his duties and responsibilities of a stationary engineer" (Decision page 6) the court's decision is flawed and in error since there is no such requirement to submit the kind of inspection reports the Court noted and the decision should therefore be reversed. 2 STATEMENT OF FACTS Appellant originally received his Stationary Engineer license in 1995 from Appellee, Department of Buildings bearing license number 19115. Same had been consistently renewed each and every year - 15 renewals in total - until this 2011 when Appellant received the decision containing the denial which forms the subject of this appeal. On or about January 19, 2006, Appellant pled guilty to Title 18, United States Code, Section 666- Theft from an Agency Receiving Federal Funds. This conviction stemmed from actions while employed as a school custodian at several Elementary and Intermediate schools in Brooklyn. Appellant applied and had his license renewed five (5) times subsequent to said conviction. Upon information and belief the renewal application process was modified in 2008 to include a supplemental affidavit in the event a renewal applicant was convicted of a crime. Notwithstanding the changes in the application process and the requirements for eligibility age in 2008, Appellant applied and had his license renewed two (2) times subsequent to said modification in the law. In fact in 2010 the Department Of Citywide Administrative Services issued a NOTICE Of PERSONNEL Action with respect to Appellant in which the Deputy Commissioner made the decision finding 3 that the Appellant QUALIFIED FOR CONSIDERATION regarding his position in its decision, the notice clearly states: REASONS: Candidate meets requirements. Conviction record noted. Prior public employment, noted. Background noted. In addition, Appellant has been issued a Certificate of Relief from Disabilities. Further, upon information and belief, three other stationary engineers were convicted of either the same or similar kickback type crimes and had their licenses renewed without as much as a question or challenge, only compounding the theory of arbitrariness and capriciousness in the subject decision. Further still to the arbitrariness and capriciousness of the subject decision, is the irony that Appellant had his license renewed in 2007, when he was working at Long Island College Hospital on high pressured boilers which carry a true concern of risk yet, at present when he is not working on these kinds of boilers which are acknowledged as dangerous machines, Appellee denied him a license and thereby denied him his livelihood. ARGUMENT POINT I THE LOWER COURT ERRED IN FINDING A DIRECT RELATIONSHIP EXISTED BETWEEN APPELLANT'S CRIMINAL CONVICTION AND HIS FITNESS OR ABILITY TO PERFORM ONE OR MORE OF THE DUTIES OR RESPONSIBILITIES NECESSARILY RELATED TO THE SUBJECT LICENSE. 1. Statutory Scheme Article 23-A, Section 752 of the New York State Correction Law provides that an applicant for a license may be denied where "there is a direct relationship between one or more of the [the applicant's] previous criminal offenses and the specific license... sought" [emphasis supplied], or where "the issuance of the license would involve an unreasonable risk to property or to the safety or the welfare of the general public." The term "Direct relationship" is defined in section 750 to mean: that the nature of criminal conduct for which the person was convicted has a direct bearing on his fitness or ability to perform one or more of the duties or responsibilities necessarily related to the license, opportunity, or job in question. [emphasis supplied]. Section 753(1) of the Corrections Law lists the factors an agency must take into account when making that determination: (a) The public policy of the state, as expressed in this act. to encourage the licensure and employment of persons previously convicted of one or more criminal offenses. (b) The specific duties and responsibilities necessarily 5 related to the license or employment sought or held by the person. (c) The bearing, if any, the criminal offense or offenses for which the person was previously convicted will have on his fitness or ability to perform one or more such duties or responsibilities. (d) The time which has elapsed since the occurrence of the o criminal offense or offenses. (e) The age of the person at the time of occurrence of the criminal offense or offenses. (f) The seriousness of the offense or offenses. (g) Any information produced by the person, or produced on his behalf, in regard to his rehabilitation and good conduct. (h) The legitimate interest of the public agency or private employer in protecting property, and the safety and welfare or specific individuals or the general public. It has been established that, "Article 23A of the Correction Law was enacted in 1976 in an attempt to eliminate the effect of bias against ex- offenders which prevented them from obtaining employment. Studies establish that the bias against employing or licensing ex- offenders was not only widespread but particularly unfair and counterproductive." Bonacorsa v. Van Lindt, 71 NY2d 605, 523 N.E. 2d 806, 528 N.Y.S. 2d 519 (NY 1988). The Bonacorsa Court went on to stress that even where the statutory definition of "direct relationship" between the conviction and the employment or license pursued applies, a certificate of good conduct creates a presumption of rehabilitation which can be overcome by the production of independent evidence to rebut the presumption. In the instant matter, among other errors by the lower court, Appellant was not given a presumption of rehabilitation warranted by his proffered Certificate of Good Conduct, either by the agency or by the lower court, yet no evidence was presented by Appellee to rebut said presumption'. The same presumption applies to the "unreasonable risk" exception. No evidence was presented to rebut said presumption as it applies to "unreasonable risk ". It has been found that the weighing of the factors is not a mechanical function and cannot be performed by some mathematical formula. Rather, the Court of Appeals said it must be done through the exercise of discretion to determine whether the direct relationship between the "convictions and the license has been attenuated sufficiently." Bonacorsa, supra. Moreover, in Acosta v. New York Dept. Of Education, 16 NY3d The lower court stated, "While petitioner provided a Certificate of Relief from Disabilities and additional documentation, the DOB rationally found that petitioner failed to present sufficient evidence of rehabilitation in light of the above conduct which stemmed directly from the position of trust and authority he was given by the City of New York ", Inasmuch as a Certificate of Relief from Disabilities creates a presumption of rehabilitation, the lower Court erred in finding Appellant failed to "present sufficient evidence of rehabilitation ". Rather, upon production of said Certificate, the burden should then have shifted to the D0B to rebut that presumption with documentary evidence - which it utterly failed to do. 7 309, 946 N.E. 2d 731 (NY2011), the New York City Bar Association filed an Amicus Curiae brief before the Court of Appeals in support of petitioner Acosta and in support of a finding that the New York City Department of Education's denial of employment to petitioner was arbitrary and capricious. Below is an selection from said brief focusing on the purpose of New York Correction Law: Article 23 -A of the New York Correction Law is a landmark statute that articulates a broad and powerful public policy favoring employment opportunities for individuals who have previously been convicted of one or more criminal offenses. One of the law's principal goals is to reduce recidivism by increasing employment opportunities for persons with criminal records. By its terms, an employer may not deny or terminate employment on the basis of prior criminal convictions except in two narrowly defined circumstances. Some employers, licensing entities, and public agencies in New York, however, have adopted impermissibly broad interpretations of Article 23 -A's exceptions that have effectively turned this antidiscrimination provision on its head. They have employed procedures that comply neither with New York administrative law nor the requirements of Article 23 -A, frustrating the legislature's aim of eliminating employment discrimination against former offenders. As a result, persons with criminal histories, having been denied employment on the basis of convictions from many years before, must commence Article 7S proceedings to secure the rights guaranteed by the statute - an option they may not even know about and that, given the limited resources of legal services firms, may not realistically be available. [emphasis supplied]. Brief of Amicus Curiae the New York City Bar Association, In the Matter of the Application of Madeline Acosta, Petitioner -Appellee, v. The New 8 York City Department of Education, et al, Court of Appeals of New York, May 18, 2010. The Court in Acosta found that the Department of Education did not consider each of the eight factors as found in Correction Law §753 and that their denial was, indeed, arbitrary and capricious. The Legislature has established that, as a general rule, it is unlawful for a public or private employer to deny an application for a license or employment on the basis of an applicant's previous conviction of a crime. This general bar advances the rehabilitation and reintegration goals of the Penal Law. Plus, sparing discrimination against those who have paid their debt to society and easing their efforts to obtain employment aids the community as a whole. The "direct relationship" exception and the "unreasonable risk" exception to this general rule only may be employed upon a deliberation of each of the eight factors enumerated in Correction Law § 753. Acosta v. New York Dept Of Education, 16 NY3d 309, 946 N.E. 2d 731 (NY2011). 2. Appellant's Crime On or about June 8, 2006, appellant was sentenced to three years probation following a plea of guilty to "Theft From an Agency Receiving Federal Funds" in violation of 18 USC 9 666(a) (1) (A) . Accordingly, the nature of Appellants' conviction was misappropriation of funds. 3. The Lower Court's Two (2) Errors. As and for Appellant's duties and responsibilities as a Stationary Engineer, the lower court found: the Stationary Engineer license also requires that Petitioner retain truthful and accurate records of boiler pressure, temperature, power output and fuel consumption, and to submit annual low pressure boiler inspection reports to the DOB on behalf of building owners. As a Stationary Engineer licensee, Petitioner is authorized to submit inspection reports to the DOB and it is imperative that these submissions are reliable in order to protect the safety and welfare of the public. [ In so finding, the lower court errantly determined that Appellant's criminal conviction bore a direct relationship on his fitness or ability to perform one or more of the duties or responsibilities necessarily related to the license. In fact, in so finding, the lower court made two errors. First, the lower court mistook Appellant's duties or responsibilities which are necessarily related to the license and those duties for which Appellant is merely authorized to do. This Court's attention is drawn to the change in language from one sentence to the next regarding the description of a 10 Stationary Engineer's duties and responsibilities. The first sentence clearly states "required" with regard to the following duties: retaining truthful and accurate records of boiler pressure, temperature, power output. However, the second sentence clearly states "authorized" with regard to appellant's submission of inspection reports to the DOB. Further, it is this latter "authorized" but not "required" task (of submission of inspection reports) upon which the lower court found "it is imperative that these submissions are reliable in order to protect the safety and welfare of the public ". Yet, according to the definition of direct relationship in Section 750, this task has NO direct relationship between Appellant's previous criminal offense and the specific license, since the submission of inspection reports is NOT of those "duties or responsibilities necessarily related to the license ", since that task is merely authorized and not required! Moreover, Appellant has never submitted low pressure boiler inspection reports because he is not required to do so under his job title. Second, the lower court errantly equated the nature of Appellant's crime with his ability to submit reliable 11 inspection reports to the DOB. This was truly gross error, as the nature of appellant's conviction was a profit motivated misappropriation of funds. The nature of appellant's conviction was NOT boiler negligence or even lack of safety or for that matter posing any kind of danger to the general public. Appellant has never been cited for boiler negligence or accused of violating any safety measures by any agency including Appellee. Thus, the lower Court haphazardly linked the nature of Appellant's money motivated crime to an overarching breakdown in general trustworthiness and reliability for all purposes and all matters. By doing so, the Court effectively edited out the very clear terms of "direct relationship" and "direct bearing" purposely embedded within the statutory scheme. It has been held that, "a direct relationship can be found where the applicant's prior conviction was for an offense related to the industry or occupation at issue (denial of a liquor license warranted because the corporate applicant's principal had a prior conviction for fraud in interstate beer sales); (application for a license to operate a truck in garment district denied since one of the corporate applicant's principals had been previously convicted of extortion arising out of a garment truck racketeering operation), or the elements 12 inherent in the nature of the criminal offense would have a direct impact on the applicant's ability to perform the duties necessarily related to the license or employment sought (application for employment as a traffic enforcement agent denied; applicant had prior convictions for, inter alia, assault in the second degree, possession of a dangerous weapon, criminal possession of stolen property, and larceny)." Marra y City of White Plains, 96 A.D.2d 865 (1983) (citations omitted). Similarly, in Soto -Lopez v. New York City Civil Service Commission, 713 F.Supp. 677 (SDNY 1989), the Court held that a manslaughter conviction would not warrant exclusion of an otherwise qualified individual from employment as a housing caretaker with the city housing authority as there was no direct relationship between the offense and the employment sought, and granting the application for employment would not involve an unreasonable risk to property or safety or welfare of general public. Consequently, it is clear that there is a certain disconnect in attempting to link or compare a crime involving money with the trustworthiness or reliability to safeguard public life. As such, the lower court's ruling is wrong and should be reversed. 13 II. APPELLANT COMPLIED WITH ALL OF APPELLEE'S REQUIREMENTS FOR RENEWAL OF HIS STATIONATRY ENGINEER'S LICENSE. Appellant complied with Appellee's own requirements for renewal of a Stationary Engineers license. The Administrative Code Law 28 -413.3 fitness sets forth: Fitness to perform work. As a condition of license renewal, a licensed high pressure boiler operating engineer shall provide evidence satisfactory to the department that such licensee is fit to perform the work. Appellant submitted a letter from his employer stating that he is in good moral conduct and able to perform or duties. This letter is mandatory for every engineer seeking renewal - no exceptions. Appellant has submitted this letter for 15 years - both before and after his conviction without issue. Appellant argues that Appellee accepts the letter of recommendation from Appellant's employer as to character and fitness because it is the only way Appellee can truly judge a renewal applicant's character and ability to perform. III. STATIONARY ENGINEERS WERE NEVER RESPONSIBLE FOR LOW PRESSURE BOILER INSPECTIONS. In anticipation of the possible argument which may be raised by Appellee that the City of New York amended the Stationary 14 Engineer's duties as listed on exam #8129 administered in 2009 stating, "What The Job Involves: as directed, inspect low pressure boilers in accordance with a unified inspection procedure instituted by the New York City Department of Buildings; and may operate a motor vehicle. All Stationary Engineers perform related work." Appellant argues this unilateral change was inconsistent with the Collective Bargaining Agreement and should therefore be unenforceable, despite the Mayor's ongoing efforts to extrajudicially redefine and reclassify all city employees and their job descriptions through Executive Order. The Stationary Engineer position never was responsible for low pressure boiler inspections. That domain belonged to the boiler inspectors for the Department of Buildings and the boiler inspectors for the Department of Citywide Administrative Services (DCAS). There are specific City job titles for boiler inspectors in both of those agencies. CONCLUSION For the foregoing reasons, Appellant respectfully requests that this Court reverse the decision of the Supreme Court of New York County, which denied Appellant's petition under Article 78 and to grant Appellant his renewal license with lost compensation and for such other and further relief as this Court deems proper. 15 By : Res ectfull submit, ed, Co sel for 'p.ell t THE CSEÑTH' AW FIRM, P.C. Do14g1 - Rosent 350 B o( dway, Suite 214 New , New York 10013 Tel: (212) 625 -8300 Fax: (212) 625 -8661 PRINTING SPECIFICATION STATEMENT This computer generated brief was prepared using monospaced typeface. Name of type face: Courier New Point size: 12 Line spacing : 2 The total number of words in the brief, inclusive of point headings and footnotes and exclusive of pages containing the table of contents, table of authorities, proof of service, certificate of compliance, or any authorized addendum is 3,124. 16