In the Matter of Ciro Dellaporte, Respondent,v.New York City Department of Buildings, et al., Appellants.BriefN.Y.February 13, 2014Supreme Court, New York County To be argued by Index No. 111622/2011 KAREN M. GRIFFIN NEW YORK SUPREME COURT 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 Nortlett, Director Licensing Unit, Respondents-Respondents. BRIEF OF RESPONDENTS MICHAEL A. CARDOZO, Corporation Counsel of the City of New York, Attorney for Respondents- Respondents, 100 Church Street, New York, New York 10007. (212) 788-0791 or 1055 kgriffin@law.nyc.gov FRANCIS F. CAPUTO, JASMINE M. GEORGES, KAREN M. GRIFFIN, Of Counsel February 26, 2013 REPRODUCED ON RECYCLED PAPER TABLE OF CONTENTS Page TABLE OF AUTHORITIES.......................................... ii PRELIMINARY STATEMENT.......................................... 1 RELEVANT FACTS................................................. 2 A. Background................................... 2 B. Petitioner’s 2011 Application for Renewal of his Stationary Engineer License............................. 2 C. DOB’s Request for Additional Information Regarding Petitioner’s Conviction...................... 3 D. Denial of Petitioner’s Application for Renewal of his Stationary Engineers License................. 5 E. The Instant Proceeding....................... 8 DECISION BELOW................................................ 10 ARGUMENT...................................................... 12 THE SUPREME COURT PROPERLY HELD THAT DOB’S DENIAL OF PETITIONER’S RENEWAL APPLICATION WAS RATIONAL AND THE PETITION WAS PROPERLY DISMISSED.......................................12 CONCLUSION.................................................... 20 PRINTING SPECIFICATIONS STATEMENT............................. 21 i TABLE OF AUTHORITIES CASES Page Acosta v. New York Dep't of Education, 16 N.Y.3d 309 (2011) ........................................17 Bonacorsa v. Van Lindt, 71 N.Y.2d 605 (1988) ....................................16, 17 Matter of City Servs., Inc. v. Neiman, 77 A.D.3d 505 (1st Dept. 2010) ..............................19 Kaplan v. Bratton, 249 A.D.2d 199 (1st Dep't 1998) .............................12 Nelson v. Roberts, 304 A.D.2d 20 (1st Dep't 2003) ..............................12 Peckham v. Calogero, 12 N.Y.3d 424 (2009) ....................................12, 13 Rudin Mgmt. v. N. Y. State Div. of Hous. & Cmty. Renewal, 215 A.D.2d 243 (1st Dep't 1995) .............................13 Servedio v. Bratton, 268 A.D.2d 356 (1st Dep't 2000) .............................12 Sullivan Co. Harness Racing Assn. v. Glasser, 30 N.Y.2d 269 (1972) ........................................13 STATUTES 18 U.S.C. § 666(a)(1)(A)........................................5 N.Y. Correct. Law § 752................................10, 13, 19 N.Y. Correct. Law § 753...............................10, 14, 15 NYC Administrative Code § 28-401.12....................... 13, 19 NYC Administrative Code § 28-401.19........................13, 19 ii PRELIMINARY STATEMENT Petitioner-Appellant, Ciro Dellaporte, appeals from the Order of the Supreme Court, New York County (Kern, J.), filed on March 27, 2012, which denied his Article 78 petition seeking to annul the decision of Aisha Norflett1, the Director of Licensing for the New York City Department of Buildings (“DOB”), denying petitioner’s 2011 application for renewal of his High- Pressure Boiler Operating Engineer (“Stationary Engineer”) license. The Supreme Court properly held that DOB’s determination not to renew petitioner’s license was rational. After considering all of the factors required by law, DOB properly determined that petitioner’s prior federal conviction for “Theft from an Agency Receiving Federal Funds” showed poor moral character that adversely reflects on his fitness to conduct work regulated by the Administrative Code especially where, as here, petitioner’s conviction arose out of his professional dealings with the City of New York. As such, the Court correctly found that DOB’s determination denying petitioner’s renewal application was neither arbitrary nor capricious and dismissed the petition. 1 Ms. Norflett’s name is misspelled in the caption. 1 RELEVANT FACTS A. Background DOB first issued petitioner a Stationary Engineer License in 1995, and continued to renew petitioner’s Stationary Engineer License, upon petitioner’s application, until his final renewal in 2010. Pursuant to Chapter 4 of Title 28 of the Administrative Code, disclosure of convictions on license renewal applications became required for all license renewals beginning in 2008 (68). B. Petitioner’s 2011 Application for Renewal of his Stationary Engineer License By application submitted to DOB on or about February 10, 2011, petitioner applied for renewal of his Stationary Engineer License (84-87). In the section of the application entitled “Convictions and Fines,” petitioner disclosed that he had been convicted or pled guilty to a violation, misdemeanor, or felony (84). As the application requires, petitioner explained on a supplemental affidavit form attached to the renewal application that he was charged with “Misappropriation of funds” and sentenced to three years probation and paid a fine (85). Petitioner also disclosed that he received a “certificate of relief of civil liabilities” (85). 2 C. DOB’s Request for Additional Information Regarding Petitioner’s Conviction Pursuant to its discretion to conduct further investigation and evaluation of petitioner’s character as it relates to his duties as a licensee, DOB requested that petitioner provide additional information regarding his 2006 conviction (89, 96).2 Petitioner responded to DOB’s requests within the requested time period. Petitioner responded to DOB’s February 22, 2011 letter by a letter dated March 6, 2011. In this letter, petitioner submitted a written explanation of the circumstances surrounding his arrest and subsequent guilty plea, stating, in pertinent part: I was employed by the Board of Education in 1995 as a Custodian Engineer and worked for them for ten years. As a Custodian Engineer I was a quasi contractor for the Board of Ed and given a budget. I was responsible for all the hiring, payroll, supplies, vendors, contractors, building mechanicals, boilers, air conditioning equipment and for the 2 Although petitioner had revealed his conviction on renewal applications submitted prior to the 2011 renewal application, DOB had not previously investigated the circumstances surrounding the conviction. Pursuant to Chapter 4 of Title 28 of the Administrative Code, disclosure of convictions became required for all license renewals beginning in 2008. However, DOB phased in its review of this newly required information. Its review of disclosures of this nature by Stationary Engineers began in July of 2010 (75). 3 cleanliness and safety of the building. On May 5, 2005 the FBI arrested me on a complaint for dealing with a vendor giving kickbacks. * * * On June 6, 2006 I pleaded guilty to misappropriation of funds and [was] sentence[d] to three years probation and paid a fine (91). In addition, petitioner annexed to this letter: (i) a copy of a Certificate of Relief from Disabilities, dated March 16, 2009, and (ii) a notice from the New York City Department of Citywide Administrative Services (“DCAS”), dated December 8, 2010, qualifying petitioner for consideration for employment as a Stationary Engineer (91-94). In response to DOB’s March 15, 2011 letter requesting additional information, petitioner, on or about March 29, 2011, submitted copies of: (i) the Information relating to the criminal proceeding commenced against him in the United States District Court of the Eastern District of New York; (ii) a letter dated October 7, 2008 from petitioner’s probation officer stating that on June 8, 2006, petitioner was sentenced to three years probation following petitioner’s plea of guilty to “Theft From An Agency Receiving Federal Funds,” in violation of 18 U.S.C. § 666(a)(1)(A), a Class C Felony and was compliant with the conditions of probation; and (iii) the Court Judgment and 4 outline of the Probation terms (98-103). The Court Information provided, in pertinent part, as follows: The United States Attorney Charges: In or about and between June 2003 and February 2005, both dates being approximate and inclusive, within the Eastern District of New York and elsewhere, the defendant CIRO DELLAPORTE, an agent of the New York City Department of Education (“DOE”), did knowingly and intentionally embezzle, steal, obtain by fraud and misapply property valued at $5,000 or more, that was owned by and under the care, custody and control of the DOE, which agency received benefits in excess of $10,000 each of the years 2003, 2004, and 2005 under a Federal program involving a grant, subsidy and other form of Federal assistance (99). D. Denial of Petitioner’s Application for Renewal of his Stationary Engineers License By letter dated June 13, 2011, DOB informed petitioner that his application for renewal of his Stationary Engineer license was denied (105-107). DOB explained that in reaching this determination, it considered the criteria set forth in Article 23-A, Section 753(1) of the NYS Correction Law that agencies are required to take into account when a denial of a renewal license is based on a prior conviction. 5 In considering the specific duties and responsibilities necessarily related to the Stationary Engineer License DOB found, in pertinent part, as follows: As a Stationary Engineer, you are responsible for ensuring that high pressure boilers operate safely by performing routine maintenance, shutting down equipment, making repairs, and regulating machinery as necessary. You must retain truthful and accurate records of boiler pressure, temperature, power output, and fuel consumption. Additionally, you are authorized to submit annual low pressure boiler inspection reports to the Department on behalf of building owners. (106). In addition, DOB considered the bearing petitioner’s prior conviction would have on his fitness or ability to perform the duties and responsibilities as a Stationary Engineer and found, in pertinent part, as follows: Your conviction for Theft from [an] Agency Receiving Federal Funds bears a direct relationship to your fitness and ability to perform the duties and responsibilities of a Stationary Engineer. As a custodial engineer, you were required to keep certain books and records, and provide documentation of your expenditure of funds. However, you misused this position of trust. As a licensee, you are authorized to submit inspection reports to the Department and it 6 is imperative that these submissions are reliable in order to protect the safety and welfare of the public. (106-107). Furthermore, DOB considered the time that had elapsed since the occurrence of the criminal offense and petitioner’s age at the time of the offense. DOB explained that although the offense occurred less than seven years ago, petitioner was forty-one years old at the time of the offense, “presumably a responsible adult who should not have engaged in such conduct” (107). DOB also considered the documentation submitted by petitioner with respect to his rehabilitation and good conduct. However, after a thorough review of the Certificate of Relief from Disabilities and additional documentation submitted by petitioner, DOB found that in weighing the various statutory factors, these documents did not overcome the other factors, including the seriousness of the offense as it relates to the duties and responsibilities of a Stationary Engineer (107). By letter dated June 28, 2011, petitioner requested reconsideration of DOB’s denial of his renewal application (109). DOB informed petitioner that his request for reconsideration was denied in a letter dated September 1, 2011 (112). 7 E. The Instant Proceeding By Notice of Petition dated October 11, 2011 and Verified Petition dated October 12, 2011, petitioner commenced the instant Article 78 proceeding seeking, inter alia, a judgment annulling DOB’s June 13, 2011 final determination denying petitioner’s application for renewal of his Stationary Engineer License alleging that such denial was arbitrary and capricious (19-42). In his verified petition, petitioner alleged that it was arbitrary and capricious to deny his application for renewal because the grounds upon which the denial was based had been disclosed to the agency on his prior renewal applications and was not a basis for denial on these earlier applications (23). In addition, he argued that the denial was arbitrary and capricious because three other stationary engineers who were convicted of the same or similar crimes had their licenses renewed (22).3 In its verified answer, DOB argued that its denial was neither arbitrary nor capricious. First, DOB explained although pursuant to Chapter 4 of Title 28 of the Administrative Code, 3 Appellant includes in the record on appeal a supplemental affidavit and exhibits which he submitted after oral argument (43-60). These documents were never submitted to DOB for its consideration and thus cannot properly be considered in determining whether DOB’s determination was arbitrary and capricious. 8 disclosure of convictions was required for all license renewals beginning in 2008, DOB phased in its review of this newly required information. Consequently, while petitioner had revealed his conviction on applications submitted prior to the 2011 renewal application, DOB only began its review of disclosures of this nature by Stationary Engineers in July of 2010 and thus had not previously investigated the circumstances surrounding the petitioner’s conviction. Second, DOB asserted that petitioner’s prior conviction does directly bear on his duties and responsibilities as a Stationary Engineer and his fitness or ability to perform these duties (76-77). Moreover, it concluded that the documentation petitioner submitted did not present sufficient evidence of rehabilitation in light of both the seriousness of the offense and the fact he misused his position of trust as a City employee by receiving kickback payments which resulted in a theft of over $9,000 of NYC Department of Education funds (79). Third, DOB asserted that petitioner’s equal protection claim fails because he is not in a protected category or suspect class and there is no evidence that DOB acted intentionally to discriminate against him (79). Moreover, petitioner was not treated differently than these individuals. DOB simply had not begun looking at Stationary Engineers licensee’s moral character until after these individuals’ applications had been approved 9 (80). In any event, qualifications for fitness for license are reviewed on a case-by-case basis and DOB properly determined that the facts and circumstances surrounding petitioner’s conviction did not satisfy the requirements for maintaining a Stationary Engineer License (80). DECISION BELOW By decision and order entered on March 26, 2012, the Supreme Court, New York County (Kern, J.) denied the petition finding that a rational basis exists for DOB’s determination not to renew petitioner’s Stationary Engineer License (8-14). The Court held that DOB rationally determined, after properly analyzing the statutory factors required to be considered under § 752 and § 753 of the Correction Law, that petitioner displayed poor moral character and thus his license should not be renewed. In reaching this conclusion, the Court recognized that it is the policy of this state to employ previously convicted, yet rehabilitated criminals. However, an exception to this policy exists where there is a direct relationship between one or more of the previous criminal offenses and the specific license or employment sought or held by the individual (13). The Court held that DOB’s finding that such a direct relationship exists here was supported by the record. As DOB noted, a Stationary Engineer License made petitioner responsible for ensuring that high pressure boilers operate safely. In 10 performing that job, petitioner is required to retain truthful and accurate records. Moreover, as a Stationary Engineer licensee, petitioner is authorized to submit inspection reports to DOB and it is imperative that these submissions are reliable in order to protect public safety and welfare. The Court held that DOB properly found that in petitioner’s previous job as a Custodial Engineer, he was required to keep certain books and records and provide documentation of his expenditure of funds but that petitioner misused this position of trust (13). Thus DOB rationally found that petitioner’s criminal activity bears a direct relationship to his fitness and ability to perform the duties and responsibilities of a Stationary Engineer (13). The Court found that 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. Finally, the Court rejected petitioner’s argument that DOB’s determination was arbitrary and capricious because DOB renewed the licenses of three other engineers who were convicted of same or similar crimes (14). At the time these applications were renewed DOB was unaware of the convictions due to timing of the applications. Furthermore, the process of reviewing an 11 application’s qualifications and fitness for renewal is a case- by-case determination (14). ARGUMENT THE SUPREME COURT PROPERLY HELD THAT DOB’S DENIAL OF PETITIONER’S RENEWAL APPLICATION WAS RATIONAL AND PROPERLY DISMISSED THE PETITION. The decision to deny petitioner’s license renewal application based on his federal conviction for theft from a City agency receiving federal funds was a reasonable exercise of DOB’s discretion in furtherance of its legitimate interest in protecting public safety and welfare. Administrative agencies enjoy broad discretionary power when rendering determinations on matters they are empowered to decide. See Servedio v. Bratton, 268 A.D.2d 356 (1st Dep’t 2000); Kaplan v. Bratton, 249 A.D.2d 199, 201 (1st Dep’t 1998). A determination can be set aside only if it “was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion.” N.Y. C.P.L.R. § 7803(3). The arbitrary and capricious standard requires only that the administrative agency’s determination be rational and supported by the record taken as a whole. See Peckham v. Calogero, 12 N.Y.3d 424, 431 (2009); Nelson v. Roberts, 304 A.D.2d 20 (1st Dep’t 2003). If the reviewing court finds the 12 determination is supported by facts or reasonable inferences that can be drawn from the record and has a rational basis in the law, it must be confirmed even if the court would have reached a contrary result. See Peckham, 12 N.Y.3d at 431; Sullivan Co. Harness Racing Assn. v. Glasser, 30 N.Y.2d 269, 278 (1972); Rudin Mgmt. v. N. Y. State Div. of Hous. & Cmty. Renewal, 215 A.D.2d 243 (1st Dep’t 1995). Here, the Supreme Court properly found that DOB’s determination denying petitioner’s application for renewal of his Stationary Engineer License was rational, within DOB’s discretion, and entirely lawful. Pursuant to Administrative Code § 28-401.12, DOB may refuse to renew a license based upon any ground upon which it could deny, suspend or revoke a license. Administrative Code section 28-401.19(12) provides that a license may be suspended or revoked for “[c]onviction of a criminal offense where the underlying act arises out of the individual’s professional dealings with the city or any other governmental entity.” Meanwhile, subsection (13) of Administrative Code § 28-401.19 provides that a license may be suspended or revoked for “[p]oor moral character that adversely reflects on his or her fitness to conduct work regulated by this code.” While it is the policy of the State to employ previously convicted, yet rehabilitated, individuals, Article 13 23-A, Section 752 of the Correction Law provides that an applicant for a license may be denied: (1) where there is a direct relationship between the applicant’s previous criminal offenses and the specific license sought; or (2) where the issuance of the license would involve an unreasonable risk to property or to the safety or the welfare of the general public. Meanwhile, section 753(1) of the Correction Law lists the factors an agency must take into consideration when making that determination.4 Section 753(2) states, in relevant part, that a 4 These factors include: (a) The public policy of this 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 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 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 of specific individuals or the general public. 14 certificate of relief from disabilities “shall create a presumption of rehabilitation in regard to the offense or offenses specified therein.” Here, DOB rationally determined, after analyzing the eight statutory factors set forth in Section 753, that petitioner displayed poor moral character and judgment and that his license should not be renewed. In reaching this conclusion, DOB considered the specific responsibilities and duties a Stationary Engineer has or may be required to perform and found that petitioner’s conviction bears a direct relationship to his fitness and ability to perform these duties (106-107). DOB pointed to the fact that in his prior position as a custodial engineer for the City, petitioner was also required to keep certain books and records and provide documentation of expenditure of funds and, moreover, that petitioner misused this position of trust (107). Meanwhile, as a stationary engineer licensee, he must inspect, repair and maintain high pressure boilers and is required to retain truthful and accurate records (106). In addition, DOB found that because Stationary Engineers are authorized to submit inspection reports to DOB, it is imperative that these submissions are reliable in order to protect the safety and welfare of the public (106). The Supreme Court properly found that DOB properly considered the statutory factors and reached a rational result. 15 Contrary to his assertion, DOB considered and gave proper weight to petitioner’s submissions (107). Petitioner’s claim that he was not given the presumption of rehabilitation warranted by his Certificate of Relief from Disabilities5 (Appellant’s Br. at 7), is improperly raised for the first time on appeal and, in any event, is incorrect. Contrary to petitioner’s representation, DOB was not required to come forward with independent evidence to rebut the presumption of rehabilitation he received from the “Certificate of Relief from Disabilities” (Appellant’s Br. at 7). The certificate does not establish a prima facie entitlement to the license or employment. Bonacorsa v. Van Lindt, 71 N.Y.2d 605, 614 (1988). Although rehabilitation is “an important factor to be considered by the agency or employer in determining whether the license or employment should be granted … it is only 1 of 8 factors to be considered.” Id. In Bonacorsa, the Court of Appeals recognized that: In some cases, consideration of other factors such as severity of the criminal offenses, the age of the offender at the time of the offenses, the passage of time between the offenses and the application, and the nature of the 5 Appellant incorrectly states that he “proffered [a] Certificate of Good Conduct” (appellant’s br. at 7), this is incorrect. Appellant submitted a Certificate of Relief from Disabilities (40). 16 license or employment sought can warrant denial of the license notwithstanding the absence of new evidence specifically addressed at overcoming the presumption of rehabilitation. Id. at 367. Nor did DOB engage in a mechanical analysis, as petitioner contends (Appellant’s Br. at 7). As discussed above, DOB considered the various responsibilities and duties a Stationary Engineer performs or is authorized to perform and rationally concluded that they are directly related to petitioner’s conviction where, while employed by the City, he abused similar duties and responsibilities. In addition, DOB properly considered that the offense occurred only seven years ago and that petitioner was an adult, who certainly should have known better, when he engaged in such conduct (107). Indeed, DOB went through each of the eight enumerated factors and, while perhaps not artfully stated, concluded that the severity of the criminal offense, the age of the offender, and the direct relationship between the duties and responsibilities were sufficient to warrant the denial of renewal (106-107). Thus petitioner’s reliance on Acosta v. New York Dep’t of Education, 16 N.Y.3d 309 (2011), where the Court of Appeals faulted the New York City Department of Education for not considering each of the factors, is misplaced. 17 Finally, petitioner’s argument that the decision below should be reversed because of its use of “required” versus “authorized” with respect to the submission of inspection reports to DOB, lacks any merit (Appellant’s Br. at 10-12). In its determination, DOB correctly stated that stationary engineers are authorized to submit inspection reports to DOB and that it is critical to public safety and welfare that the reports are accurate (30). It is irrelevant that they are not required to submit reports to DOB. The fact that they are authorized to do so makes it necessarily related and thus a proper consideration. Finally, petitioner’s assertion that his crime was a “money motivated crime” and thus unrelated to his ability to keep or submit accurate reports overlooks a critical factor (Appellant’s Br. at 12-13). Stationary engineers are responsible for ensuring that high pressure boilers operate safely, including making the necessary repairs. These engineers are thus in a position to cover up the need for necessary repairs or falsely report that such repairs were made by inaccurately reporting the temperature, power output, etc. -- records that a stationary engineer is obligated to maintain (106). Thus Stationery Engineers have the ability to falsify performance records for a profit. This is both directly related 18 to petitioner’s conviction and presents a threat to the health and safety of the public. Consequently, as the Supreme Court properly found, DOB’s denial of petitioner’s renewal application pursuant to Administrative Code §§ 28-401.12, 28-401.19(12), and Article 23- A, Section 752 of the NYS Correction Law was entirely rational. It would be improper for a court to substitute its judgment for that of an agency, particularly with respect to matters within its expertise. See Matter of City Servs., Inc. v. Neiman, 77 A.D.3d 505, 507 (1st Dept. 2010) (court may not substitute its own judgment for that of agency, which concluded that petitioners lacked good character required for licensure and had not been rehabilitated). 19 CONCLUSION THE ORDER OF THE SUPREME COURT SHOULD BE AFFIRMED. Respectfully Submitted, MICHAEL A. CARDOZO Corporation Counsel, Attorney for Respondents- Respondents By: KAREN M. GRIFFIN FRANCIS F. CAPUTO, JASMINE M. GEORGES, KAREN M. GRIFFIN, Of Counsel. 20 21 PRINTING SPECIFICATIONS STATEMENT This brief was prepared with Microsoft Word 2003, using Courier New 12. According to the aforementioned processing system, the entire brief, including portions that may be excluded from the word count pursuant to 22 N.Y.C.R.R. § 600.10(d)(1)(i), contains 4,255 words. Dated: New York, New York February 26, 2013 MICHAEL A. CARDOZO Corporation Counsel of the City of New York Respondents-Respondents By: Karen M. Griffin Assistant Corporation Counsel 100 Church Street New York, New York 10007