New York County Clerk’s Index No. 101083/2013
Court of Appeals
of the
State of New York
GREATER NEW YORK TAXI ASSOCIATION and EVGENY “GENE” FREIDMAN,
Petitioners-Appellants,
- against -
THE NEW YORK CITY TAXI AND LIMOUSINE COMMISSION,
a charter-mandated agency, and DAVID YASSKY, in his capacity as the Chairman of the New
York City Taxi and Limousine Commission,
Respondents-Respondents,
- and -
NISSAN TAXI MARKETING, N.A., LLC and NISSAN NORTH AMERICA, INC.
Respondents-in-Intervention-Respondents.
BRIEF FOR AMICI CURIAE, DESIGN TRUST FOR PUBLIC SPACE;
BRYANT PARK CORPORATION AND 34
TH
STREET PARTNERSHIP;
GLOBAL GATEWAY ALLIANCE; PAUL HERZAN; SARAH HOLLOWAY;
LILY AUCHINCLOSS FOUNDATION, INC.; MANHATTAN CHAMBER OF
COMMERCE; ERIC ROTHMAN; ELLIOT “LEE” SANDER;
JOHN E. SHERMAN, M.D.; SMART DESIGN; AND TRANSPORTATION
ALTERNATIVES, IN SUPPORT OF RESPONDENTS-RESPONDENTS
Claude M. Millman
Caroline Rule
KOSTELANETZ & FINK, LLP
7 World Trade Center, 34
th
Floor
New York, New York 10007
212-808-8100
Attorneys for Amici Curiae
i
NEW YORK STATE
COURT OF APPEALS
X
GREATER NEW YORK TAXI :
ASSOCIATION and
EVGENEY "GENE" FRIEDMAN, :
Petitioners-Appellants, :
-against- : APL-2014-00275
THE NEW YORK CITY TAXI AND :
LIMOUSINE COMMISSION, a charter-
mandated agency, and DAVID YASSKY, :
in his capacity as Chairman of the New
York City Taxi and Limousine :
Commission,
Respondents-Respondents, :
-and- :
NISSAN TAXI MARKETING N.A., LLC :
and NISSAN NORTH AMERICA, INC.
:
Respondents-in-Intervention-Respondents.
:
------------------------------------------------------X
DISCLOSURE STATEMENT
Pursuant to Section 500.1(f) of this Court's Rules of Practice, Amici state,
with respect to those of them that are corporations or other business entities, there
are no affiliates, parents, or subsidiaries, other than: Manhattan Chamber of
Commerce Foundation, the Manhattan Chamber of Commerce Community Benefit
iii
TABLE OF CONTENTS
TABLE OF AUTHORITIES.....................................................................................v
INTRODUCTION.....................................................................................................1
INTERESTS OF THE AMICI CURIAE....................................................................5
Design Trust for Public Space ...................................................................... 6
Bryant Park Corporation and 34th Street Partnership ................................10
Global Gateway Alliance ............................................................................11
Paul Herzan .................................................................................................11
Sarah Holloway ...........................................................................................12
Lily Auchincloss Foundation, Inc. ..............................................................12
Manhattan Chamber of Commerce .............................................................13
Eric Rothman...............................................................................................13
Elliot “Lee” Sander .....................................................................................14
John E. Sherman, MD .................................................................................15
Smart Design ...............................................................................................15
Transportation Alternatives.........................................................................16
THE TAXI OF TOMORROW................................................................................16
ARGUMENT...........................................................................................................32
I. THE TLC DID NOT EXCEED ITS AUTHORITY IN
PROMULGATING THE REVISED TAXI OF
TOMORROW RULES.......................................................................32
A. THE REVISED TAXI OF TOMORROW RULES FALL
SQUARELY WITHIN THE TLC’S LEGISLATIVELY-
DELEGATED AUTHORITY..................................................34
iv
B. THE REVISED TAXI OF TOMORROW RULES ARE
NEITHER ARBITRARY NOR UNREASONABLE..............40
C. EVEN IF THEY WERE NOT SO CLEARLY
AUTHORIZED BY THE TEXT OF THE NEW YORK
CHARTER, THE REVISED TAXI OF TOMORROW
RULES WOULD STILL FALL WITHIN THE TLC’S
AREA OF AUTHORIZED RULE-MAKING........................41
D. THE REVISED TAXI OF TOMORROW RULES
ARE BASED ON DOCUMENTED STUDIES
AND HENCE ARE SUPPORTED BY
SUBSTANTIAL EVIDENCE..................................................42
E. PETITIONERS-APPELLANTS’ RELIANCE ON
THE VEHICLE SUPPLY AGREEMENT IS
MISPLACED; THE AGREEMENT ISVALID
UNDER THE TLC’S EXERCISE OF ITS
AUTHORITY TO SET POLICY FOR TAXI
SERVICES IN THE CITY.......................................................44
F. THE MERE FACT THAT IT HAS NOT
SPECIFICALLY DONE SO BEFORE DOES
NOT INVALIDATE THE TLC’S SELECTION
OF A SINGLE VEHICLE AS THE TAXI OF
TOMORROW..........................................................................50
II. THE TLC DID NOT VIOLATE THE SEPARATION OF
POWERS DOCTRINE IN PROMULGATING THE
TAXI OF TOMORROW RULES......................................................53
CONCLUSION.......................................................................................................62
v
TABLE OF AUTHORITIES
Cases
Alexandre v. New York City TLC, 2007 WL 2826952
(S.D.N.Y. Sept. 28, 2007) ....................................................................................33
Bittrolf v. Ho’s Dev. Corp., 77 N.Y.2d 896 (1991) .................................................38
Boreali v. Axelrod, 71 N.Y.2d 1 (1987) ........................................................... passim
Committee for Taxi Safety, Inc. v. City of New York, 40 Misc.3d 930
(S.Ct. N.Y. Cty 2013) ................................................................................ 1, 24, 38
Finger Lakes Racing Ass’n v. New York State Racing & Wagering Bd.,
45 N.Y.2d 471 (1978) ...........................................................................................38
Greater N.Y. Taxi Ass’n v. New York City TLC, 40 Misc.3d 1062
(S.Ct. N.Y. Cty 2013) ...........................................................................................41
Matter of Allstate Ins. Co. v. Rivera, 12 N.Y.3d 602 (2009).............................42, 48
Matter of Beer Garden v. New York State Liquor Auth.,
79 N.Y.2d 266 (1992) ...........................................................................................38
Matter of City of New York v. State Comm’n on Cable Television,
47 N.Y.2d 89 (1979) ...................................................................................... 38, 39
Matter of Consolation Nursing Home v. Commissioner of New York
State Dep’t of Health, 85 N.Y.2d 326 (1995) ................................... 33, 34, 40, 43
Matter of Levine v. Whalen, 39 N.Y. 2d 510 (1976)...............................................53
Matter of Mayfield v. Evans, 93 A.D.3d 98 (1st Dep’t 2012) .................................42
Matter of Medical Soc’y of the State of New York v. Serio,
100 N.Y.2d 854 (2003) .................................................................................. 34, 42
vi
Matter of Mercy Hospital of Watertown v. N.Y. State Dep’t of Social
Services, 79 N.Y.2d 197 (1992) ...........................................................................38
Matter of Nicholas v. Kahn, 47 N.Y.2d 24 (1979)..................................................42
Metropolitan Taxicab Board of Trade v. TLC, 18 N.Y.3d 329 (2011)...................36
New York City Committee for Taxi Safety v. New York City TLC,
256 A.D.2d 136 (1st Dep’t 1998) .........................................................................39
New York Statewide Coalition of Hispanic Chamber of Commerce v.
N.Y.C. Dep't of Health and Mental Hygiene, 23 N.Y.3d 681 (2014)...........passim
Oklahoma Public Employees Ass’n v. Oklahoma Dep’t of Central Services,
55 P.3d 1072 (S.Ct. Okla. 2002) ..........................................................................49
People ex rel. Knowles v. Smith, 54 N.Y.2d 259 (1981).........................................42
US Ecology, Inc. v. State of Calif., 92 Cal. App.4th 113
(Ca. Ct. Appeal, 4th Dist. 2001) ...........................................................................49
Statutes
6 N.Y.C.R.R. § 617.9 ...............................................................................................22
N.Y.C. Charter § 823(d) ..........................................................................................50
N.Y.C. Charter § 2003 .............................................................................................57
Local Law 12 of 1971; N.Y.C. Charter § 2300 ............................................... passim
N.Y.C. Charter § 2301 ...................................................................................... 35, 39
N.Y.C. Charter § 2303 ..................................................................................... passim
N.Y.C. Admin. Code § 19-533 ............................................................. 24, 38, 51, 60
N.Y.C. Admin. Code § 19-534 ................................................................................60
vii
N.Y.C. Admin. Code § 19-535 ................................................................................61
35 R.C.N.Y. § 52 ......................................................................................................35
35 R.C.N.Y. § 67 ........................................................................................................ 1
City Administrative Procedure Act ..........................................................................25
Other Authorities
Megan Canning et al., Designing the Taxi (Chelsea Mauldin ed., 2005) ...........7, 17
Sylvia Harris et al., Taxi 07: Roads Forward (Rachel Abrams ed., 2001) ...........8, 9
1
INTRODUCTION
Amici Curiae submit this brief in support of the authority of the New York
City Taxi & Limousine Commission (“TLC”) to have issued the Revised Taxi of
Tomorrow Rules (hereinafter sometimes the “Rules”).
1
The Rules require nearly
all taxi medallion owners to purchase a purpose-built vehicle, a version of the
Nissan NV200, i.e. the Taxi of Tomorrow, when their current vehicles must be
replaced, and for the next ten years.
2
The Taxi of Tomorrow is a taxicab vehicle that has been developed over
many years. Other New York City taxis are regular passenger cars that are
“hacked up” into taxicabs. No safety guidelines or crash regulations govern how
this is done, and metal and plexiglass partitions are installed between front and
back seats after the vehicles are purchased, thus compromising the vehicle
structure and changing the manufacturer’s intended airbag deployment. In
contrast, the Taxi of Tomorrow is purpose-built, with numerous pre-installed
safety features, the most significant of which is that the partition is now a factory-
1
The Revised Taxi of Tomorrow Rules amend Title 35, Chapter 67 of the Rules of the City of
New York, entitled “Rules for Taxicab Hack-up and Maintenance.” The Rules were to be
effective October 2013. The original Taxi of Tomorrow Rules were previously struck down on
the grounds that they did not allow taxi medallion owners to purchase a hybrid taxi, Committee
for Taxi Safety, Inc. v. City of New York, 40 Misc.3d 930, 971 N.Y.S.2d 793 (S.Ct. N.Y. Cty
2013), and were revised to remedy this problem. (786-88 ¶¶ 244-52.)
2 A medallion owner who wishes to purchase a hybrid vehicle may choose from three vehicles
that meet the TLC’s specifications, as discussed further, post, and thus is not required to
purchase the Taxi of Tomorrow.
2
engineered part of the vehicle’s basic structure, designed not to interfere with side
air bag deployment. As additional safety features, the vehicle’s front end is
designed to minimize pedestrian injuries in a collision, and the vehicle has sliding
doors that will prevent injuries to cyclists from wide-opening doors. Seatbelt
usage is encouraged by color-coded buckles and straps. The vehicle also has an
automatic light to alert pedestrians and cyclists when a passenger is entering or
exiting the vehicle. To enhance passenger and driver comfort and convenience, the
Taxi of Tomorrow includes a roomier passenger compartment than most current
taxis, and provides separate driver- and passenger-controlled air conditioning and
heating systems. It is equipped with an intercom for clear communication between
the driver and rear-seat passengers, and includes technology to assist passengers
who have hearing aids. The vehicle includes a step and grab handles that facilitate
passengers’ entry and exit. The Taxi of Tomorrow has a panoramic glass roof
designed to provide passengers with views of a vertical cityscape. It has passenger
reading lights, floor lights that illuminate when the doors open (making it easy for
passengers to find their belongings), and charging ports for phones and tablets.
The Taxi of Tomorrow is painted yellow at the factory; poor execution in
repainting a vehicle after it is purchased can cause operating systems to
malfunction. Unlike current taxis, the Taxi of Tomorrow features an ergonomic,
3
adjustable driver’s seat for the safety, health and comfort of drivers who sometimes
work as long as 12-hour shifts.
The Appellate Division’s ruling that the Revised Taxi of Tomorrow Rules
do not exceed the TLC’s statutorily-delegated authority, and do not violate the
separation of powers doctrine, must be affirmed. The Appellate Division properly
reversed the trial court’s ruling to the contrary, since both alleged grounds for
striking down the Rules were incorrect as a matter of law.
The trial court phrased the question whether the TLC exceeded its authority
in enacting the Rules as being whether the TLC has authority to contract with a
third-party vendor – here Nissan – to provide taxicabs that medallion owners must
purchase. The trial court looked at the question backwards; the City’s contract
with Nissan – whose Nissan NV200, as modified, was selected to be the Taxi of
Tomorrow – is a subsidiary but necessary adjunct to the Rules, and merely
operates to give effect to the TLC’s broad authority to prescribe criteria for safety
and comfort in taxicab vehicles. The initiative behind the Rules drove the contract,
rather than the other way around.
There is no doubt that the TLC could have, within its regulatory powers,
prescribed requirements as to vehicle design, safety, comfort, and convenience that
would have left taxi medallion owners with only one option – to purchase the
Nissan NV200. And, the TLC could have done so without the price caps,
4
warranties, and numerous other protections for taxi owners that are contained in
the City’s contract with Nissan, as discussed herein.
For example, the TLC could have, under its legislatively-delegated authority
to prescribe safety requirements for taxicabs, promulgated rules requiring a taxicab
to have a partition that is part of the vehicle’s structural design and that is
demonstrated, through crash testing, not to interfere with side air bag deployment.
Such a regulation would effectively have eliminated all current taxicab vehicles
other than the Nissan NV200.
But it must be emphasized that, without the City’s having entered into a
supply contract with Nissan, it was highly unlikely that such a safety-enhanced
vehicle would ever have been developed, since an automobile manufacturer would
be unlikely to have investing the tens of millions of dollars required to design the
vehicle without the assurance of exclusivity. Thus, the City’s contract with Nissan
is a necessary, albeit subsidiary, complement to the primary purpose of the Revised
Taxi of Tomorrow Rules, i.e. to meet the need for a new, safer and more
comfortable taxicab for New York City – which need the TLC is specifically
authorized by the New York Charter to fulfill via regulation. The TLC was well
within its powers to prescribe the requirements of a new taxicab meeting higher
“standards of safety, and design, comfort, convenience, noise and air pollution
control and efficiency in the operation of vehicles,” N.Y.C. Charter § 2303(b)(6),
5
when it promulgated the Revised Taxi of Tomorrow Rules. The contract was a
requisite accompaniment to those Rules.
INTERESTS OF THE AMICI CURIAE
The Amici that submit this brief are part of a broad group of New Yorkers
who believe that a central component of the TLC’s statutory power is its
rulemaking authority to ensure that taxi passengers, taxi drivers, pedestrians, and
cyclists are safe and comfortable. Many of the Amici signed a June 2013 letter to
the TLC supporting the Revised Taxi of Tomorrow Rules. (Exh. A hereto.) (The
letter was considered by the TLC at its public hearings on the Rules, and is thus
part of the administrative record.) In addition to the Amici, the June 2013 letter
was signed by other business and civic leaders who supported the TLC’s
rulemaking efforts to ensure that taxis are safe, comfortable, and convenient.
Those signatories included Kathy Wylde (President/CEO of the Partnership for
New York City), William C. Rudin (Chairman of the Association for a Better New
York, also known as ABNY), Jonathan Tisch (Chairman of Loews Hotels), Steven
Spinola (President of the Real Estate Board of New York), Douglas Durst
(Chairman of the Durst Organization), Jennifer Falk (Executive Director of the
Union Square Partnership), Cristyne L. Nicholas (Chair of the Broadway
Association), and Alfred C. Cerullo, III (President and CEO of the Grand Central
Partnership). The Amici’s views are thus consistent with those of other public-
6
minded New Yorkers who believe that the promotion of safety, health, comfort,
and convenience is a central aspect of the TLC’s statutory authority.
Design Trust for Public Space
Amicus Design Trust for Public Space (“Design Trust”) is a not-for-profit
organization committed to improving the design and utility of New York City’s
public spaces, with the goal of making the city more beautiful, sustainable,
functional, and available to all. Under the Design Trust’s rubric, a New York taxi
is a public space. (Exh. B hereto (selected pages from Taxi 07: Roads Forward, a
Design Trust publication) p.4.)
3
Since 1995, the Design Trust has advanced the quality of New York City’s
public realm by forging alliances between city agencies, community groups, and
private-sector professionals. The Design Trust thinks systemically about how
cities work and effects change through unconventional research, design, and
planning projects. The Design Trust has worked since 2005 to facilitate innovative
3
As part of its involvement in taxicab development, discussed below, the Design Trust published
Designing the Taxi, a catalog to an exhibition. Attached hereto as Exhibit C are copies of
excerpted pages from Designing the Taxi. There, Paul Goldberger, Dean of Parsons, The New
School For Design, wrote:
What is troubling about the New York City taxi is not that it is ubiquitous, but
that it is so ill-suited for its job. . . . [I]t is hard to enter, hard to leave,
uncomfortable to sit in, and awkward to carry luggage in. . . . At the basis of the
Design Trust’s effort was a recognition that New York City taxis, both
collectively and singly, constitute a form of public space – public space that
moves, but public space nonetheless.
(Exh. C p. 6.)
7
new taxicab designs and to propose improvements to the technologies, regulations,
and public spaces that support the taxi system. Since the Design Trust only
inaugurates a project with the collaboration of the city agency or community group
best able to implement any policies or designs that are developed, the Design
Trust’s first step was to engage with New York City’s taxi regulators, the TLC.
(Exh. D hereto.)
4
In 2005, the Design Trust and the TLC partnered in series of workshops to
evaluate the current state of the taxi system and to identify opportunities for
improvement. Participants included taxi fleet owners, drivers, taxi medallion
holders, landscape architects, urban planners, industrial designers, graphic artists,
representatives of City agencies, and civic groups. A public exhibition, Designing
the Taxi, was held at Parsons School of Design, and the Design Trust issued a
publication of the same name. (Exh. C; Exh. D; see n.3, ante.)
In Summer 2006, encouraged by support for its taxi project from the TLC,
the taxi industry and the public, the Design Trust launched a project that came to
be named “Taxi 07.” This project’s purposes included celebrating the taxicab’s
2007 centennial, fostering design innovation, and developing a taxi master plan
with a dual focus on the taxi vehicle and the taxi system. (Exh. B. p.4.) As part
of the project, the Design Trust mounted a comprehensive exhibit concerning the
4
Exhibit D is a Design Trust information sheet describing its taxi initiative.
8
New York City taxi at the New York International Auto Show in April 2007. The
exhibit drew more than 100,000 visitors over 12 days, and enjoyed extensive
media coverage, including commentary by late night TV hosts, Jay Leno and
Conan O’Brien. (Exh. D.)
Drawing on input from the exhibition, and further research, the Design Trust
published and released a book, Taxi 07: Roads Forward, in December 2007. The
book outlined strategies for taxi improvement that would be feasible and cost
effective over a 10-year period. Taxi 07: Roads Forward represented multiple
phases and years of work by Design Trust fellows who interviewed a wide range of
taxi stakeholders, including drivers and fleet-owner groups, environmental and
accessibility organizations, and New York City agencies; or asked these groups to
review a draft of the publication. In Taxi 07: Roads Forward, the Design Trust
noted that the “TLC’s Safety and Emissions Division . . . certifies the ‘hack-up’ of
every new cab [the means by which a consumer vehicle becomes a taxicab] and
performs ongoing testing of new vehicle models to assess their suitability for use
as a New York City taxi” (Exh. B p.66); and that:
Passengers deserve . . . a point-to-point transportation service that is
easy to use, comfortable, safe and enjoyable.
Drivers should have a safe and comfortable working environment.
(Exh. B p.77.)
* * *
9
Riders may be aware of small changes in New York’s taxi vehicles
over recent years – improved passenger air conditioning, for example
– but many may not perceive the vehicle as a designed object that
could be reconfigured to specifically address the requirements of taxi
service. Passengers are not familiar with the frequency of vehicle
turnover in the yellow-cab fleet, the power of the TLC to mandate
vehicular and systemic change, or the economics of medallion
ownership that might finance significant improvements. Nor do they
explicitly recognize the degree to which systemic elements, from
streetscape design to driver ownership models, affect their passenger
experience. (Exh. B p.84.)
(Emphases added). According to then-TLC Commissioner, Matthew Daus,
speaking in 2008, the “Taxi 07” project was the genesis of the TLC’s Taxi of
Tomorrow program. (Exh. E hereto.)
5
Following strategies identified in Taxi 07:
Roads Forward, the Taxi of Tomorrow program aimed to increase safety and
environmental standards, include iconic design elements, and enhance ride quality,
durability, and accessibility. (Exh. D.) With the incentive of a prize of a year of
free taxi rides, sponsored by Design Trust, 23,000 New Yorkers participated in a
survey of the three finalists for the TLC Taxi of Tomorrow vehicle, discussed
further post. (Id.)
5
Exhibit E is a copy of selected pages from the catalog for the Design Trust’s The Taxi 07
Exhibit, at which eight possible prototypes for a new taxicab were displayed. (Exh. E p.20.)
10
The Design Trust also provided advisory services in connection with the
TLC’s Taxi of Tomorrow Request for Proposals (“RFP”) (2035-36
6
¶ 19), see post,
and took part in a June 2013 meeting to discuss the design, ride and handling of the
Taxi of Tomorrow, at which meeting changes in the vehicle prototype were
discussed (2045 ¶ 53). The Design Trust endorsed the Revised Taxi of Tomorrow
Rules during the public hearing process.
Bryant Park Corporation and 34th Street Partnership
Amici Bryant Park Corporation and 34
th
Street Partnership are not-for-profit,
private management companies, and business improvement districts consisting of
cooperating neighboring property owners. Daniel A. Biederman, President of both
organizations, is a member of the Urban Land Institute, serves on the New York
District Council’s Executive Committee, and is a member of the International
Downtown Association. As organizations that focus on improving New York
City’s economic growth and environment, these Amici support the TLC’s efforts to
improve the safety and comfort of New York City’s taxicabs, because taxis play an
important role in New York City’s civic life by facilitating, among other things,
tourism and other business activity.
6 Page numbers in parentheses refer to the Record on Appeal.
11
Global Gateway Alliance
Amicus Global Gateway Alliance (“GGA”) is an advocacy organization
focused on major challenges facing the New York City metropolitan region’s
airports and related infrastructure. GGA believes that, if such challenges are left
unaddressed, they will serve as major impediments to the long-term growth of New
York City. GGA recognizes the importance of taxi transportation to the success of
the airports in the region. GGA is joining this brief to express its view that that the
safe, comfortable, and convenient taxi service to and from airports that the Taxi of
Tomorrow offers strengthens New York City's ability to attract airlines, businesses,
passengers and tourists, and helps build the regional economy.
Paul Herzan
Amicus Paul Herzan is Chairman Emeritus of the Cooper-Hewitt
Smithsonian Design Museum (the “Museum”). The Museum participated with
Amicus Design Trust and the TLC in the Taxi of Tomorrow project. As a
concerned citizen, Mr. Herzan himself has followed the development of the Taxi of
Tomorrow, and he supported the Revised Taxi of Tomorrow Rules during the
public hearing process. Mr. Herzan is a founding advisor to Cab Riders United, an
organization that serves as a voice for the 1.2 million daily passengers who ride in
New York City’s taxicabs and for-hire vehicles, and that strives to improve the
12
safety, quality of service, and environmental impact of New York City’s taxicab
industry.
Sarah Holloway
Amicus Sarah Holloway is a faculty member at Columbia University where
she lectures on nonprofit management and social entrepreneurship. In 2010, Ms.
Holloway and her daughter, Emilia Victoria, were injured as passengers in a New
York City taxi when the cab that they were in collided with another taxi. Since
then, Ms. Holloway has developed a personal interest in taxi passenger safety. Ms.
Holloway is joining this brief because she and her daughter believe that it is
important that the courts allow the TLC to ensure the safety of the taxi-riding
public.
Lily Auchincloss Foundation, Inc.
Amicus Lily Auchincloss Foundation, Inc. is a private grantmaking
foundation dedicated to the enhancement of quality of life in New York City. The
foundation supports art, preservation and community programs that enrich the lives
of the people of New York City. It has provided funding to Amicus Design Trust,
and supported the Design Trust in its “Taxi 07” initiatives and all Taxi of
Tomorrow projects.
13
Manhattan Chamber of Commerce
Amicus the Manhattan Chamber of Commerce (“MCC”) is a non-profit
member organization comprised of a cross section of 10,000 business members
and subscribers, ranging from sole proprietors to large corporations and multi-
national firms doing business in Manhattan. The MCC represents the voice of over
100,000 companies in Manhattan, and partners with over 300 diverse business
organizations. The MCC is joining this brief because it believes that the TLC’s
statutory authority to regulate taxi safety, comfort, and convenience, among other
things, strengthens the New York City economy through the promotion of business
and tourism in Manhattan, which is a core part of the MCC’s mission.
Eric Rothman
Amicus Eric Rothman is President of New York consulting firm HR&A
Advisors, Inc. (HR&A). He holds a Master's degree in Public Policy from
Harvard's Kennedy School and a Bachelor of Arts degree from Princeton
University, and is a nationally-renowned expert in transportation planning, transit-
oriented development, and economic development. In 2006, Mr. Rothman was
awarded a Design Trust Fellowship for “Taxi 07” to focus on the economics of the
taxi industry. Mr. Rothman previously served as Director of Business Planning for
Transport for London, where he was responsible for the integration of multiple
transit systems and regulatory agencies, including the Public Carriage Office, to
14
deliver improved and efficient transportation throughout London. He is joining
this brief because he believes that the TLC's statutory power to promote taxi
passenger safety, comfort, and convenience via its rulemaking authority is an
important element of New York City's ability to protect and promote the general
welfare through, among other things, the growth of the City’s business and tourism
sectors.
Elliot “Lee” Sander
Amicus Elliot “Lee” Sander was formerly head of the Metropolitan
Transportation Authority, Commissioner of the New York City Department of
Transportation, Director of Transit for the New York State Department of
Transportation, and Deputy Commissioner of the New York State Division of
Housing and Community Renewal. He served on the Taxi and Limousine
Commission for ten years. Mr. Sander is now President and CEO of the HAKS
Group Inc. Mr. Sander is the founder of the Rudin Center for Transportation
Policy and Management, and a founding co-chair of the Empire State
Transportation Alliance. He currently serves as chairman of the Regional Plan
Association, an independent planning organization that plays a role in New York
City’s infrastructure and economic development. As an individual who has played
many leading roles in the development of New York City’s transportation system,
Mr. Sander has a significant interest in the improvement of New York City’s
15
taxicab system and supports the TLC’s authority to issue the Revised Taxi of
Tomorrow Rules.
John E. Sherman, MD
Amicus Dr. John Sherman is a New York City plastic surgeon whose
practice includes facial trauma. He is a past President of the Manhattan Council of
the American College of Surgeons, representing over 1,100 surgeons, and is the
current President of the New York State Chapter of the American College of
Surgeons. Dr. Sherman has practiced in New York City since 1980, and is a
Clinical Assistant Professor of Surgery at The Weill Cornell University Medical
College. Dr. Sherman is a co-author of Surgery of Facial Bone Fractures, a
surgical textbook used by plastic surgeons throughout the world, and has also been
published widely in medical journals. Dr. Sherman has treated many hundreds of
patients who have suffered facial injuries from taxi accidents, often due to the
partitions that are added to taxis after the vehicles are crash tested. He supports the
TLC’s authority to implement improved safety measures through the Taxi of
Tomorrow.
Smart Design
Amicus Smart Design is an award-winning design and innovation consulting
firm with offices in New York and London. It works with companies of all sizes
and across diverse industries to create design solutions that are centered on human
16
needs. Smart Design partnered with Amicus Design Trust to work towards
defining the ideal taxi experience, leading to the Taxi of Tomorrow initiative.
Smart Design developed the passenger and driver experience specifications that
were included in the TLC’s RFP for the Taxi of Tomorrow. Smart Design has, on
a pro bono basis, advised the TLC and the Nissan design team throughout the
development of the NV200 taxi. Smart Design’s vision was to leverage the taxi
industry’s purchasing power to procure the first purpose-built taxi designed
specifically for New York City, which is what the Revised Taxi of Tomorrow
Rules accomplished.
Transportation Alternatives
Amicus Transportation Alternatives is New York City’s leading
transportation advocacy organization, with a citywide network of 120,000 active
supporters committed to reclaiming New York City’s streets for people by
ensuring that every New Yorker has safe spaces to walk and bike, as well as access
to public transportation. Transportation Alternatives supports the TLC’s authority
to designate the Taxi of Tomorrow as the New York City taxicab, because the
vehicle is safer for passengers, cyclists, and pedestrians.
THE TAXI OF TOMORROW
The Taxi of Tomorrow has been years in the making. As a result of Amicus
Design Trust’s taxi projects, described ante, the TLC, in 2007, convened an
17
advisory committee that included Design Trust to consider options to improve the
New York City taxicab – options that included selecting a single automobile
manufacturer to design a vehicle specifically to be a taxicab. In February 2008, the
TLC issued a public Request for Information (“RFI”), the product of the TLC and
the New York City Mayor’s office, in consultation with Ricardo, Plc. (“Ricardo”),
a global engineering and strategic consulting firm selected to work with the TLC
advisory committee to develop workable specifications for the Taxi of Tomorrow.
(2035-36 ¶ 19; 768-69, ¶¶ 184-187.) The RFI announced that the TLC was
launching a project aimed at developing “a single iconic vehicle
7
that provides a
unique identity for a New York City taxicab while meeting each of the stakeholder
requirements.” (769 ¶ 186.) The RFI gave notice that a Request for Proposals
“may be issued at a future date to seek one or more vendors to develop a purpose-
built vehicle.” (769 ¶ 188.)
In December 2009, as a result of information gained from responses to the
RFI, the TLC, through the New York Department of Citywide Administrative
Services (“DCAS”), issued a Request for Proposals (“RFP”) for the Taxi of
7
In Designing the Taxi, see n.3, ante, Phil Patton, who writes on design in books, The New York
Times, and other publications, described, “The Taxi as Icon”:
The taxicab is a symbol of New York to millions of tourists. . . . . That is why
taxis figure among the most popular souvenirs of the city, along with models or
images of the Empire State Building or the Statue of Liberty.
(Exh. C. p.17.)
18
Tomorrow. The RFP, which was developed in consultation with industry trade
groups representing owners, drivers, passenger advocates and policy experts,
including certain Amici, sought “a highly qualified Original Equipment
Manufacturer (‘OEM’) . . . to provide an innovative vehicle developed or modified
for use in a highly visible taxi market located within one of the paramount
marketing centers of the world.” (2035-36 ¶¶ 19-20; 769-70 ¶¶ 189-92.) The RFP
listed among the attributes that the Taxi of Tomorrow should embody: the highest
safety standards, a superior passenger experience, superior driver comfort and
amenities, an appropriate purchase price and on-going maintenance and repair
costs, more useable interior room, accessibility for disabled users, and an iconic
design that would identify the vehicle with New York City. (770 ¶ 193.)
The City received seven proposals. An evaluation committee of five
members with expertise in a variety of fields relating to taxicabs and
transportation, along with advisory members that included Ricardo, scored these
proposals according to a complex series of metrics; and the three highest-scoring,
including the Nissan NV200 vehicle, were announced in November 2010.
Members of the public were asked to provide feedback on the three winning
designs, and to vote on design features that are important in a taxicab. (2036 ¶ 21;
771-72 ¶¶ 197-203.)
19
The evaluation committee then began a further thorough review of the three
highest-scoring proposals, including additional complex scoring, and interviews of
the potential manufacturers. The Nissan NV200 scored highest, after the scores
were corrected for economic value by considering the total cost of owning the
vehicle, including repairs, replacement parts, and fuel. Ricardo also assessed the
three proposals, and similarly concluded that the Nissan vehicle offered the best
balance of price, features, and reliability. The Nissan vehicle came with the lowest
base price of each of the three proposals. In May 2011, then-Mayor Bloomberg
announced that the Nissan NV200 had been selected to be the Taxi of Tomorrow.
(772-73 ¶¶ 204-06, 774 ¶ 209; 2038-40 ¶¶ 27-38.)
This did not end the matter, though. The TLC and Nissan next executed a
Letter of Intent that set forth their joint intention to have the City of New York
enter into a contract with Nissan concerning the purchase and sale of vehicles to
serve as New York City taxicabs. (1217-20.) The City of New York and Nissan
then commenced negotiations for a contract that would cover pricing; design
improvements; certain exceptions to Nissan’s exclusivity; the development of a
wheelchair accessible Taxi of Tomorrow that would comply with the Americans
With Disabilities Act; parts and service; training personnel; and a mandate that
Nissan continue, for ten years, to provide a competitive vehicle. A Taxi of
Tomorrow Industry Advisory Panel that included volunteer members of several
20
industry stakeholder organizations, including trade groups representing the
interests of medallion owners, met monthly for over two years, from May 2011
through July 2013, to hear how the contract negotiations were proceeding, and to
provide feedback on key contract provisions; and then, after the contract was
signed, to hear and discuss how requirements of the contract were being carried
out. Issues discussed at these meetings included parts and service of vehicles;
crash testing standards; warranties for vehicles and parts; and components of the
NV200 taxicab, including the partition, sliding doors, rooftop glass, and phone and
tablet chargers. (775-76 ¶¶ 213-15.)
In June 2012, a proposed contract, embodying the business terms for the
final contract between the City and Nissan, was scheduled for public hearing.
Nobody appeared to testify at the hearing, however, and, in October 2012, the
Department of Citywide Administrative Services (“DCAS”) and Nissan signed a
contract, the Vehicle Supply Agreement.
Some of the key terms of the Vehicle Supply Agreement provided that:
Nissan would have the exclusive right, through October 2023, to sell
the Taxi of Tomorrow to unrestricted medallion holders.
8
Nissan
would supply repair parts, and service the vehicles, until October
2028.
8
Prior to the effective date of the Taxi of Tomorrow Rules, the owner of an unrestricted taxi
medallion could purchase any vehicle that complied with TLC specifications. After the effective
date, the Rules require that an unrestricted medallion must be used either with the Taxi of
Tomorrow or an authorized hybrid vehicle. (783-84 ¶¶ 238-39.)
21
The vehicle would be tested to demonstrate that it is a commercial
grade vehicle suitable for use as a New York City taxicab.
This testing was required to take place with vehicles that had all
Nissan-supplied parts pre-installed, including the partition and rear
HVAC system.
Nissan would always have a thirty-day supply of vehicles available.
There would be at least three authorized dealers within New York
City and a least five authorized dealers within twenty-five miles of the
City.
All the vehicles would meet detailed specifications set forth in an
appendix to the agreement, including having dual manual sliding
doors, rear passenger entry steps, passenger reading lights, adjustable
driver and passenger seats, extra legroom, built-in GPS navigation
systems, rear passenger HVAC controls, USB charge ports, a
transparent roof panel, and floor lighting.
Nissan would have in place at all times a contract with a third-party to
convert the Taxi of Tomorrow into a wheelchair accessible vehicle.
Nissan would provide a 150,000 mile power-train warranty9, and a 36,000
mile bumper-to-bumper warranty
10
.
Nissan would upgrade the power-train for improved fuel economy.
9
A power-train warranty covers all or part of the power-train of a vehicle, which is made up of
the engine, transmission and drive-train. Essentially, the power-train is the system that powers
the car, transfers that power to the transmission, and then finally to the wheels of the car.
10
A bumper-to-bumper warranty provides protection for parts that are not covered by the power-
train warranty, including the fuel system, brakes, power steering, sensors, audio system, lights,
and climate control.
22
Nissan would not have a monopoly on servicing the vehicles either during or
after the warranty period.
There would be liquidated damages if more than 25% of taxis were out of
service because of an inability to obtain parts or service.
(776-77 ¶¶ 216-19.)
New York City is not wedded to the Nissan NV200 for ten years, however.
The Vehicle Supply Agreement also provides that, if New York City should
identify a vehicle manufacturer other than Nissan that can produce a superior
competing vehicle, the TLC may approve that vehicle for use in or after October
2018, if Nissan cannot demonstrate that it will match or exceed the characteristics
of the superior vehicle. (1278 § 6.3.)
As required, the TLC conducted a City Environmental Quality Review of
the Taxi of Tomorrow project, pursuant to 6 N.Y.C.R.R. § 617.9. It determined
that the project would not have a significant adverse effect on the environment, and
issued an Environmental Assessment Statement to this effect. Based on the TLC’s
findings, the City issued a Negative Declaration stating that the Taxi of Tomorrow
project “will not have a significant adverse impact on the environment.” (778-79
¶¶ 220-226.)
Public hearings on the first proposed Taxi of Tomorrow Rules were held in
September 2012. (780 ¶ 229.) At those hearings, the Executive Director of
Financial Planning and Analysis for the TLC explained both the TLC’s perceived
23
need for the Taxi of Tomorrow, and the concomitant need for a contract with a
single manufacturer to produce the Taxi of Tomorrow:
Why should we have a taxi of tomorrow? The simple reason is that
for the first time we’ll have a taxi vehicle built specifically for New
York City.
* * *
Current taxi vehicles have some issues. One of the major problems is
that they’re not actually designed to be taxis. The last vehicle that
was really designed to be a taxi that was in common use in New York
was the Checker, and that left 24 years ago.
* * *
There’s a lot of modifications done to current vehicles, like adding a
partition, drilling holes to add roof caps and other things. You’re
altering a car and you’re not testing what happens to that car. Let’s
say it’s in an accident. What happens to that equipment[?]
* * *
We’ve heard from many, many automobile manufacturers since 2007,
both large and small, and they’ve all told us the same thing, which is
that it takes a lot of money to develop a customized taxi vehicle for
one municipal market. It’s a very small volume in terms of the grand
scheme of things for them. And unless they’re able to sell to pretty
much everybody in the New York market, they’re not going to make
their money back. So an exclusive deal is an important part of the
arrangement we have with the company.
(780-81 ¶¶ 230-32 (emphasis added).)
The Senior Manager, Product Planning, at Nissan North America, Inc.,
discussed the environmental advantages of the Taxi of Tomorrow:
The product has a very small footprint . . . . [W]e calculated . . . five
acres of real estate saved by the NV200 Taxi [of] Tomorrow.
24
Despite the small footprint, the product has a very large interior space
. . . . What we call a limousine-like seating leg room position.
* * *
The product is also very fuel efficient. We’re using 2 liter proven and
very durable four-cylinder engine in this product. It has high fuel
efficiency, and it has very smooth transmission that adds to its fuel
efficiency.
(782 ¶ 234.)
The TLC promulgated the Revised Taxi of Tomorrow Rules (788-89 ¶¶ 253-
55) following the decision in Committee for Taxi Safety, Inc. v. City of New York,
40 Misc.3d 930, 971 N.Y.S.2d 793 (S.Ct. N.Y. Cty 2013), that struck down the
original Taxi of Tomorrow Rules because they did not comply with N.Y.C.
Admin. Code § 19-533, which requires the TLC to approve for use as a taxicab one
or more hybrid electric vehicles (786-88 ¶¶ 244-52). Under the Revised Rules, at
least three currently-available vehicles, including a lower-priced vehicle, qualify as
hybrid taxicabs. (2070 ¶ 23; 2071 ¶ 26.) Petitioners-Appellants’ frequent assertion
that medallion owners must now purchase only one vehicle is thus simply
incorrect.
The Revised Taxi of Tomorrow Rules were approved on June 20, 2013 by a
seven to one vote of the TLC Commissioners, after a public hearing on that same
date. (789 ¶ 256; 792 ¶ 265.) Proposed rules were previously published in the City
Record, with a 30-day period for public comments before the hearing, in
25
accordance with the City Administrative Procedure Act (“CAPA”). (788-89 ¶¶
253-55.) The Rules now require owners of unrestricted taxicab medallions, when
their current vehicles must be replaced under existing regulations, to purchase
either the Taxi of Tomorrow or an approved hybrid vehicle that meets the TLC’s
requirements.
During the public hearing, the TLC received a June 2013 letter signed by
some of the Amici and other business and civic leaders who supported the TLC’s
efforts to ensure that taxis are safe, comfortable, and convenient. The letter urged
the TLC Commissioners to “adopt the proposed Taxi of Tomorrow rule,” stating in
relevant part:
We believe the Taxi of Tomorrow will be an even greater advance in
customer service. We recognize that the vehicles currently used as
taxicabs were designed for general consumer use and have been
retrofitted for taxi use. By contrast, the Taxi of Tomorrow vehicle has
been custom designed for use as a taxicab, and will provide a new
standard of safety, comfort and passenger amenities:
Safety: Unlike current taxis, the Taxi of Tomorrow vehicle will
meet federal crash-test standards with the partition installed,
and will reduce the risk of head and face injuries to passengers.
The vehicle’s front is specifically designed to minimize
pedestrian injuries in the event of a collision, and the sliding
doors will prevent the ‘dooring’ of cyclists.
Passenger comfort: After safety, the most significant
shortcoming in much of the current fleet is a lack of adequate
legroom for rear-seat passengers. The Taxi of Tomorrow
vehicle includes a spacious passenger compartment that will
accommodate even taller passengers. It also provides a separate
26
hearing and air conditioning system controlled by rear-seat
passengers.
Ease of entry and exit: Many older passengers and passengers
with limited mobility have difficulty entering and exiting the
SUV and minivan vehicles that now compose about half of the
taxi fleet. The Taxi of Tomorrow vehicle includes a retractable
step, grab handles that will make entry and exits much easier,
and an automatic light to alert pedestrians and cyclists when a
passenger is entering or exiting the vehicle.
Driver/passenger communication: The [Taxi of Tomorrow] is
equipped with an intercom enabling clear communication
between the driver and rear-seat passengers. The intercom
includes hearing loop technology to assist passengers with
hearing aids.
Panoramic roof: The Taxi of Tomorrow vehicle is equipped
with a panoramic roof that is substantially larger than a typical
sunroof, giving passengers thrilling, vertical views of the
cityscape. Visitors to the City will particularly appreciate this
feature.
Reading lights, floor lights and charging ports: The Taxi of
Tomorrow includes passenger reading lights similar to those
found in luxury “black cars,” as well as floor lights that
illuminate when the door opens, to help existing passengers
notice items left on the floor. The Taxi of Tomorrow also
includes charging ports for phones and tablets.
In sum, we believe that the Taxi of Tomorrow will provide a
passenger experience markedly superior to that provided by current
taxis, and thus will help New York City continue to improve its
position as choice location for businesses and an attractive destination
for tourists. We urge you to vote in support of the Taxi of Tomorrow
rule on June 20.
(Exh. A hereto.)
27
While this letter describes most of the features of the Taxi of Tomorrow, it
does not sufficiently emphasize how dramatically some of these features differ
from those in current taxicabs. For example, because the partition is created by the
Taxi of Tomorrow’s manufacturer, it is integrated into the vehicle’s very structure,
and has no exposed rivets or jagged edges. Moreover, a specially-designed airbag
deploys around the partition. The partition also has new anti-glare features to
enhance visibility both for passengers and drivers. The separate driver and
passenger HVAC systems are so distinct that the driver can have the heat on while
the passenger uses air conditioning.
Probably the most important feature of the Taxi of Tomorrow is the
vehicle’s improved safety, both for passengers, and for cyclists and pedestrians
who are also affected by taxicabs’ operation and design. At the June 20, 2013
hearings, Dr. Denise Hoyt-Connolly read a letter on behalf of emergency room
physicians who support the Revised Taxi of Tomorrow Rules. The letter discusses
injuries that currently result to passengers and cyclists from taxi accidents, and
explains how the Taxi of Tomorrow can prevent many of these injuries:
The injuries range from severe facial fractures and lacerations to
traumatic brain injury and neck and spinal injuries . . . .
Seat belts not only save lives, but they reduce injuries for all parties
involved in a collision. The highlighted seat belt connectors with
color in the Taxi of Tomorrow will hopefully encourage passengers to
use it more frequently.
28
Having the vehicle equipped with side passenger air bags intended to
deploy without interference from the partition is another important
safety feature, and many of the injuries we see are as a result of the
partition . . . .
Another feature which promotes safety is the sliding door which will
inhibit crashes with cyclists and other vehicles. This is another area in
which we treat many people in the emergency department, both
passengers and cyclists that, for example, may have been hit with a
door as they’re riding by the taxi.
Lastly, the illuminated lights on the rear exterior when a door in the
taxi is opening will avert similar types of accidents.
(791 ¶ 263.)
Another doctor, Dr. Charles DiMaggio, testified at length about the superior
safety of the Taxi of Tomorrow over the current fleet of taxicabs that are converted
from non-purpose built vehicles, including safety for pedestrians:
The Taxi of Tomorrow brings commonsense engineering designs that
are unique to the kinds of injuries that are associated with taxis . . . .
Partitions with protruding steel nuts and bolts, sharp edged credit card
machines and change cups have all been about 16 inches from an
adult passenger’s face for the past 20 years or so. That’s been
changed now. They’ve been replaced with recessed features and
rounded edges that are no longer at adult face level. Safety testing
with partitions installed should further decrease the risk of passenger
head and facial injuries by ensuring that partitions will not interfere
with side air bag deployment. . . .
My particular area of study is pedestrian injuries. In New York City,
as in most large metropolitan areas, pedestrian injuries outnumber
occupant injuries . . . . And the designers of the proposed Taxi of
Tomorrow have taken particular attention to address this important
issue. In fact, pedestrian injuries actually involve three series of
injuries. The bumper impact to the lower extremities, the leading
29
edge impacts to hips, and the head and the body swivel onto the hood
of the car. It appears that the front end and architecture of the
proposed Taxi of Tomorrow is designed to address all three aspects of
this injury test. The recessed bumper placement should decrease
severe lower extremity injury. The sloping architecture will absorb
more energy and decrease hip and pelvic injuries. Perhaps most
importantly, the hood is designed to redirect the upper body and head
away from and provide additional clearance between the hood and the
sides of the unforgiving, underlying engine components, preventing
the kinds of traumatic brain injuries that account for the majority of
severe and fatal pedestrian injuries in New York City.
(791-92 ¶ 264.)
Nissan spent over $50 million in researching and developing the Taxi of
Tomorrow. (2186 ¶ 13.) The Taxi of Tomorrow vehicle has now been crash tested
and certified compliant with applicable Federal Motor Vehicle Safety Standards.
The Taxi of Tomorrow is the only side curtain air bag equipped taxi vehicle that is
certified compliant with federal industry safety standards with the partition
integrated into the vehicle’s structure and it is the only side-curtain air bag
equipped taxi vehicle that has been crash-tested with the partition pre-installed.
(2185 ¶¶ 8, 9.)
As noted, Nissan developed a curtain air bag unique to the Taxi of
Tomorrow, which will deploy around the partition. In current taxis, there is no
guarantee that side air bags will function at all after the partition has been installed
in these retrofitted passenger vehicles. For additional safety, Nissan added
structural reinforcements to the front doors, and the front and sides of the vehicle,
30
including a thicker side-impact beam and a reinforced center pillar, where the
partition is mounted. (2188-89 ¶ 22.)
The Taxi of Tomorrow is manufactured with a commercial-grade cargo
platform, engineered for more durability than a retail passenger vehicle. (2186-87
¶¶ 15,16.) In addition, Nissan replaced its original NV200 cargo vehicle’s
transmission with an updated continuously variable transmission to improve the
Taxi of Tomorrow’s fuel efficiency and engine durability. (2188-89 ¶ 22.)
In accordance with the Vehicle Supply Agreement, Nissan selected the
Braun Mobility Corporation in Indiana as the third-party vendor that will modify
Taxi of Tomorrow vehicles to be wheelchair accessible. (2195-96 ¶ 3; 2045 ¶
51.)
11
With an improved wheelchair “tie down” system that does not require (as
some current vehicles do) substantial driver training, and accessibility
modifications that do not interfere with storage or loading when the vehicle is not
being used to accommodate a wheelchair, the Taxi of Tomorrow will reduce load
time and make loading easier. (2198 ¶¶ 11-13.)
11
According to the Vehicle Supply Agreement, the cost of conversion may not be more than
$14,000. For comparison, the previous cost to taxi owners for conversion of a Toyota Sienna
minivan was approximately $10,000 to $11,000. (2197 ¶ 9.)
31
The TLC aims to have 50% of the taxi fleet consist of wheelchair accessible
vehicles (“WAV”) by the year 2020. (Exh. F.
12
p.4 ¶ 6.) For non-Taxi of
Tomorrow vehicles, the conversion of ordinary passenger vehicles to wheelchair
accessibility is undertaken and certified by a less- or more-costly “converter” who
may have no relationship or contact with the vehicle manufacturer. In contrast,
Nissan specially engineered the Taxi of Tomorrow to accept the “upfit” to a WAV
vehicle as the final step in the vehicle manufacture. Unlike in other WAV-
converted vehicles, the wheelchair restraints are permanently installed in the Taxi
of Tomorrow and cannot be removed without tools; the restraints are stored on
retractors under the floor so that they remain clean and debris-free; and the
integrated Taxi of Tomorrow curtain side-impact air bags protect a wheelchair
passenger. (Exh. G.
13
p.5.) A comprehensive, step-by-step instruction guide is
affixed to the door of the WAV Taxi of Tomorrow for driver reference. (Id.)
Moreover, Nissan engineering staff oversee the upfit performed under contract by
Braun Mobility Corporation to ensure that Nissan’s technical specifications are
met during the upfit to a WAV. In addition, Braun’s work to develop the
12 Attached hereto as Exhibit F is a copy of testimony of Michael O’Loughlin, on behalf of Cab
Riders United, presented to the TLC on March 5, 2015.
13 Attached hereto as Exhibit G is a letter from Braun Mobility Corporation to Cab Riders United.
For a description of Cab Riders United, see description of Amicus Paul Herzan, above. See also
http://cabridersunited.org/.
32
wheelchair-accessible Taxi of Tomorrow has been conducted with continual
oversight by the TLC and by Ricardo, which, as discussed, has been contracted by
the TLC to ensure conformity with all federal safety regulations and TLC rules. If
the Taxi of Tomorrow Rules are not in effect, however, the city’s taxicab fleet will
consist of a large number of non-Taxi of Tomorrow vehicles converted into WAV
vehicles and structurally compromised in the process. (See, e.g., Exh. F. p.4 ¶ 6
(testimony before the TLC describing a brand new non-Taxi of Tomorrow WAV
vehicle as sounding “like a dangerous bucket of bolts.”)
Taking into account the reduced costs of “hacking up” a Taxi of Tomorrow,
i.e. making it ready to operate as a taxi (purchasers no longer need to install a
costly partition and other components, but need only install the meter, small driver
and passenger viewing screens, and a credit card system, as well as some minor
decals) the Taxi of Tomorrow’s Manufacturer’s Suggested Retail Price is more
than competitive with current taxis, being less expensive than many of the taxis
currently in use. (2051-52 ¶ 70.)
ARGUMENT
The Appellate Division, First Department, correctly held that the Revised
Taxi of Tomorrow Rules are valid, rejecting the trial court’s reasoning: (1) that the
TLC purportedly acted outside its authority in enacting the Rules, and (2) that the
Rules violate the separation of powers doctrine. Petitioners-Appellants now again
33
raise these same objections before this Court, and argue that the trial court’s
decision should be followed. But neither of the trial court’s purported reasons for
why the Revised Taxi of Tomorrow Rules are invalid withstands proper legal
analysis, and the Appellate Division’s decision must therefore be affirmed.
I. THE TLC DID NOT EXCEED ITS AUTHORITY IN
PROMULGATING THE REVISED TAXI OF TOMORROW RULES
“The standard for judicial review of an administrative regulation is whether
the regulation has a rational basis and is not unreasonable, arbitrary or capricious.”
Matter of Consolation Nursing Home v. Commissioner of New York State Dep’t of
Health, 85 N.Y.2d 326, 331, 624 N.Y.S.2d 563, 565 (1995) (citations omitted).
Indeed, “An administrative agency’s exercise of its rule-making powers is
accorded a high degree of judicial deference, particularly when the agency acts in
the area of its particular expertise.” Id. (citations omitted; emphasis added).
“[A]ctions taken by an administrative agency are cloaked with a presumption of
regularity, and are presumed to be valid unless proven otherwise.” Alexandre v.
New York City TLC, 2007 WL 2826952 at *7 (S.D.N.Y. Sept. 28, 2007)
(upholding TLC rules requiring installation in all yellow cabs of the Taxicab
Technology System that includes credit card services, text messaging, automatic
trip data collection, and trip tracking). To paraphrase this Court, “the [TLC]’s
‘interpretation [of legislative policy], if not irrational or unreasonable, will be
34
upheld in deference to [its] special competence and expertise with respect to the
[taxi] industry, unless it runs counter to the clear wording of a statutory
provision.’” Matter of Medical Soc’y of the State of New York v. Serio, 100
N.Y.2d 854, 863, 768 N.Y.S.2d 423, 428 (2003).
“Accordingly, the party seeking to nullify [an agency] regulation has the
heavy burden of showing that the regulation is unreasonable and unsupported by
any evidence.” Matter of Consolation Nursing Home, 85 N.Y.2d at 331-332, 624
N.Y.S.2d at 565 (citations omitted; emphasis added).
A. THE REVISED TAXI OF TOMORROW RULES FALL
SQUARELY WITHIN THE TLC’S LEGISLATIVELY-
DELEGATED AUTHORITY
The TLC was created by the New York City Council in 1971, through an
amendment to the New York City Charter. Local Law 12 of 1971; N.Y.C. Charter
§ 2300 et seq. Under the Charter, the purposes of the TLC include “the
continuance, further development and improvement of taxi . . . service in the city
of New York”; “consonant with the promotion and protection of the public comfort
and convenience to adopt and establish an overall public transportation policy
governing taxi . . . services as it relates to the overall public transportation network
of the city”; and “to establish . . . standards for driver safety, standards for
equipment safety and design . . . all as more particularly set forth herein.” N.Y.C.
Charter § 2300 (emphasis added).
35
The “jurisdiction, powers and duties of the commission shall include the
regulation and supervision of the business and industry of transportation of
persons by licensed vehicles for hire in the city.” Id. § 2303(a) (emphasis added).
The legislative delegation of authority to the TLC could hardly be broader. The
TLC may set policy for, and regulate and supervise, the entire business and
industry of the City’s taxi fleet. See also 35 R.C.N.Y. § 52-01 (“Creation and
Purpose of the Commission. Pursuant to §§ 2300 and 2301 of the New York City
Charter, there will be a . . . New York City Taxi and Limousine Commission . . .
whose overall purpose will be to continue, further develop, and improve taxi and
limousine service in New York City. To promote public comfort and convenience,
and taking into account the overall public transportation network of the City, the
Commission will establish an overall public transportation policy governing for-
hire transportation services in the City, including taxi . . . services.” (emphasis
added).)
Petitioners-Appellants attempt to overcome the significance of the
legislative delegation to the TLC of the authority to establish overall policy
governing taxi services by arguing that N.Y.C. Charter § 2300’s grant of this
authority is somehow limited by the language that follows. A plain reading of the
provision, however, establishes that the grant of authority to the TLC to establish
overall policy is one of a list of equally-weighted delegations of authority, and not
36
merely a preamble. Metropolitan Taxicab Board of Trade v. TLC, 18 N.Y.3d 329,
331, 937 N.Y.S.2d 153, 154 (2011), cited by Petitioners-Appellants is not to the
contrary, stating, “The Commission was created by the New York City Charter to
serve a number of purposes, among them ‘to adopt and establish an overall public
transportation policy governing taxi . . . services.” There is no meaningful
distinction between a legislature’s unequivocal statement that an agency’s purpose
is to adopt an overall policy, on the one hand, and a legislative delegation to the
agency of authority over that policy, on the other hand; they are essentially one and
the same thing. As the Appellate Division held, the TLC is not limited to
establishing standards and specifications; it has the “authority . . . to set policy.”
(2488-89.)
The TLC’s overarching power to establish policy for, and to regulate and
supervise, the taxi business specifically extends, inter alia, to:
The regulation and supervision of standards and conditions of service.
[Providing] standards of safety, and design, comfort, convenience,
noise and air pollution control and efficiency in the operation of
vehicles and auxiliary equipment.
The development and effectuation of a broad public policy of
transportation affected by this chapter as it relates to forms of public
transportation in the city, including innovation . . . in relation to type
and design of equipment . . . .
37
N.Y.C. Charter § 2303(b)(2), (6) & (9).
14
Thus, even if the legislative delegation of authority over overall taxi policy
to the TLC were “merely a general statement of the agency’s raison d’etre” (Brief
for Petitioners-Appellants at p.18), which it is not, see ante, Petitioners-Appellants
would be sorely mistaken in arguing that the TLC went beyond its prescribed
regulatory authority under the City Charter in enacting the Revised Taxi of
Tomorrow Rules. The decision concerning what vehicle may be used as a taxicab
patently falls within the overarching authority that the TLC enjoys to “regulat[e]
and supervis[e] the business and industry of transportation of persons by licensed
vehicles for hire in the city.” N.Y.C. Charter § 2303 (a).
14
35 R.C.N.Y. § 52-04, entitled, “Specific Powers and Duties of the Commission,” similarly
provides:
(a) Powers and Duties with Respect to Regulating.
(1) Formulate and adopt rules reasonably designed to carry out the purposes of the
Commission.
(2) Set and enforce standards and conditions of service.
(3) Establish and enforce standards of safety, comfort, convenience, operational efficiency,
and compliance with good public policy in the design of vehicles and auxiliary equipment.
* * *
(7) Develop and implement a broad public policy of transportation as it pertains to the forms
of public transportation regulated by the Commission.
(8) Encourage and provide procedures to encourage innovation and experimentation relating
to type and design of equipment, modes of service and manner of operation.
38
Moreover, “It is well settled that an agency’s powers include not only those
expressly conferred but also those ‘required by necessary implication.’ This is
especially true where . . . the Legislature has delegated administrative duties in
broad terms, leaving the agency to determine what specific standards and
procedures are most suitable to accomplish the legislative goals.” Matter of Mercy
Hospital of Watertown v. N.Y. State Dep’t of Social Services, 79 N.Y.2d 197, 203-
04, 581 N.Y.S.2d 628, 631-32 (1992) (citations omitted). See also Matter of City
of New York v. State Comm’n on Cable Television, 47 N.Y.2d 89, 92, 416
N.Y.S.2d 786, 787 (1979) (“An administrative agency, as a creature of the
Legislature,
15
is clothed with those powers expressly conferred by its authorizing
statute, as well as those required by necessary implication.”); Finger Lakes Racing
Ass’n v. New York State Racing & Wagering Bd., 45 N.Y.2d 471, 480, 410
N.Y.S.2d 268, 273 (1978) (“An administrative agency is imbued with such powers
as are conferred upon it by the Legislature by the specific terms of its enabling act
or as may be necessarily implied therefrom.”); Matter of Beer Garden v. New York
State Liquor Auth., 79 N.Y.2d 266, 276, 582 N.Y.S.2d 65, 69 (1992) (“It is of
course a fundamental principle of administrative law that agencies are possessed
15
In New York City, the N.Y.C. Admin. Code, enacted by the New York City Council, “has the
force of a statute.” Committee for Taxi Safety, Inc. v. City of New York, 40 Misc.3d 930, 971
N.Y.S.2d 793 (S.Ct. N.Y. Cty. 2013) (striking down the original Taxi of Tomorrow Rules as
violating N.Y.C. Admin. Code § 19-533) (citing Bittrolf v. Ho’s Dev. Corp., 77 N.Y.2d 896, 899
n.1, 568 N.Y.S.2d 902, 903 n.1 (1991)). The New York City Charter, amended by the New
York City Council, necessarily also has the force of a statute.
39
only of those powers expressly delegated by the Legislature, together with those
powers required by necessary implication.”).
Thus, if sections 2300 and 2303(a) of the New York City Charter were all
the indication of legislative intent in this case, the TLC would have the authority to
designate the Taxi of Tomorrow as the only acceptable taxi (aside from the hybrid
taxi required by legislation), since that authority is necessarily implied in the
TLC’s overall authority to regulate and supervise the business and industry of
transportation of persons by licensed vehicles for hire in the city. An
administrative agency’s rulemaking will be upheld if, as is the case here, “far
reaching control has been delegated to a commission charged with implementing a
pervasive regulatory scheme.” State Comm’n on Cable Television, 47 N.Y.2d at
93, 416 N.Y.S.2d at 787. Section 2303 specifically delegates to the TLC the
authority “to promulgate and implement a pervasive regulatory program for the
taxicab industry.” New York City Committee for Taxi Safety v. New York City
TLC, 256 A.D.2d 136, 137, 681 N.Y.S.2d 509, 510 (1
st
Dep’t 1998) (upholding
TLC’s authority to require extensive financial disclosures from taxicab owners)
(emphasis added). The authority to require a particular vehicle to be used as a
taxicab is a power necessarily implied from the TLC’s authority to promulgate and
implement an overall public transportation policy, including policy for taxi
services. N.Y.C. Charter §§ 2301, 2303(a).
40
But here we have more to support the TLC’s authority to issue the Revised
Taxi of Tomorrow Rules. The Rules fall – literally – within the TLC’s additional
specified delegated authority to set forth “[r]equirements of standards of safety,
and design, comfort, convenience, noise and air pollution control and efficiency in
the operation of vehicles,” N.Y.C. Charter § 2303(b)(6) (emphasis added); and to
“develop and effectuate . . . innovation . . . in relation to type and design of
equipment,” id. § 2303(b)(9) (emphasis added). In promulgating the Revised Taxi
of Tomorrow Rules, the TLC thus “act[ed] in the area of its particular expertise,”
Matter of Consolation Nursing Home, 85 N.Y.2d at 331, 624 N.Y.S.2d at 565, and
the Rules must therefore be accorded particular deference by a reviewing court.
The Rules are well within the TLC’s area of authority.
B. THE REVISED TAXI OF TOMORROW RULES ARE NEITHER
ARBITRARY NOR UNREASONABLE
There is nothing arbitrary or unreasonable about the Revised Taxi of
Tomorrow Rules. As discussed in detail, ante, and, as testified to by physicians
who must be regarded as the experts in this issue, the Taxi of Tomorrow vehicle is
infinitely safer than current taxis. It gets rid of the sharp edges and protruding
metal parts in partitions that taxi passengers have faced for decades. It ensures
functioning air bags. It encourages the use of seat belts by color-coordinated belt
buckles. It is designed to be safer for cyclists and pedestrians who are not riding in
41
cabs. A primary aspect of the Taxi of Tomorrow’s design is intended to promote
safety for passengers and the public as a whole. And, the “TLC has the authority
to adopt regulations pertaining to driver safety and public safety.” Greater N.Y.
Taxi Ass’n v. New York City TLC, 40 Misc.3d 1062, 1068, 972 N.Y.S.2d 410, 414
(S.Ct. N.Y. Cty 2013) (emphasis added). The Taxi of Tomorrow is also more
comfortable than current taxis, with greater leg room, and more passenger
conveniences, including separate air-conditioning and heating systems for drivers
and passengers, phone and tablet chargers, and aids for the hearing impaired. It
has enhanced ease of entry and exit, and can be fitted to be wheelchair accessible.
It has been designed specifically to be fuel efficient. Thus, the Taxi of Tomorrow
Rules, which fall squarely within the TLC’s designated authority, are neither
arbitrary nor unreasonable. Indeed as the Appellate Division held, “In sum, the
TLC’s selection of the Taxi of Tomorrow does not represent a significant departure
from its past practice, except insofar as it provided substantial additional benefits
to riders, drivers, owners, and the public . . . .” (2491.)
C. EVEN IF THEY WERE NOT SO CLEARLY AUTHORIZED BY
THE TEXT OF THE NEW YORK CHARTER, THE REVISED
TAXI OF TOMORROW RULES WOULD STILL FALL WITHIN
THE TLC’S AREA OF AUTHORIZED RULE-MAKING
Even if they were not so clearly authorized by the text of the N.Y.C. Charter,
the Taxi of Tomorrow Rules would nevertheless fall within the TLC’s area of
42
authority. This Court has long held that “[t]he Legislature may authorize an
administrative agency to fill in the interstices in the legislative product by
prescribing rules and regulations consistent with the enabling legislation” Matter of
Allstate Ins. Co. v. Rivera, 12 N.Y.3d 602, 608, 883 N.Y.S.2d 755, 758 (2009)
(quoting Matter of Medical Soc’y of State of N.Y. v. Serio, 100 N.Y.2d 854, 865,
768 N.Y.S.2d 423, 429-430 (2003) (quoting Matter of Nicholas v. Kahn, 47
N.Y.2d 24, 31, 416 N.Y.S.2d 565, 569 (1979) (emphases added)))). “In practice,
this has meant that ‘an agency [charged with the enforcement of a statute has been
empowered to] adopt regulations that go beyond the text of that legislation,
provided they are not inconsistent with the statutory language or its underlying
purposes.’” Matter of Mayfield v. Evans, 93 A.D.3d 98, 103, 938 N.Y.S.2d 290,
294 (1
st
Dep’t 2012) (bracketed portion in original) (quoting Matter of Allstate Ins.
Co., 12 N.Y.3d at 608, 883 N.Y.S.2d at 758). Moreover, a regulation adopted by
an agency, “in implementation of the statutory scheme it is empowered to enforce,
is to be read, if possible, in a manner consistent with, rather than in opposition to,
the governing statute.” People ex rel. Knowles v. Smith, 54 N.Y.2d 259, 267, 445
N.Y.S.2d 103, 107 (1981). The Taxi of Tomorrow Rules are not inconsistent with
any of the provisions of the N.Y.C. Charter, but instead are entirely consistent with
the TLC’s broad delegated authority to set policy for and to oversee the taxi
43
industry, to establish standards of safety and design, and to effectuate innovation in
the design of taxicabs. The Rules must therefore be upheld.
D. THE REVISED TAXI OF TOMORROW RULES ARE BASED ON
DOCUMENTED STUDIES AND HENCE ARE SUPPORTED BY
SUBSTANTIAL EVIDENCE
The Petitioners-Appellants cannot carry their heavy burden of showing that
the Revised Taxi of Tomorrow Rules are “unsupported by any evidence.” Matter
of Consolation Nursing Home, 85 N.Y.2d at 331-332, 624 N.Y.S.2d at 565.
Indeed, they carefully skirt this issue. In Matter of Consolation Nursing Home,
this Court noted that, “[a]lthough documented studies often provide support for an
agency’s rule making,” they are not necessary. 85 N.Y.2d at 332, 624 N.Y.S.2d at
565. Here, however, we have years of documented studies that have gone into the
design of the Taxi of Tomorrow. See ante. As the Appellate Division put it, the
Taxi of Tomorrow was developed “after years of public vetting.” (2480.)
According to the Senior Manager, Product Planning, at Nissan North
America, Inc. who has managerial responsibility for product planning and project
management for the Taxi of Tomorrow, “The [Taxi of Tomorrow] was engineered
according to exacting protocols that govern the design, engineering, testing and
validation of every vehicle system and part, including the vehicle itself. These
protocols reflect Nissan’s long history of automaking experience and know-how, in
excess of $50 million of research and development, and thousands of engineer
44
hours.” (2186 ¶ 13 (emphasis added); see also 2185 ¶ 8 (“Nissan conducted 16
different crash tests with the partition and [other] equipment installed in the
crashed vehicle” to determine that the Taxi of Tomorrow met applicable Federal
Motor Vehicle Safety Standards, as well as “an additional six crash tests to validate
that the vehicle met Nissan’s own stringent internal standards”), 2189 ¶ 23
(describing how Nissan reinforced the Taxi of Tomorrow’s suspension system and
ground clearance to operate in New York City’s difficult road conditions), 2189-90
¶ 24 (“Nissan also custom designed rear seating and restraints, the rear HVAC
system, automatically deploying side steps, partition, exterior lighting, hearing
loop system, floor lighting, and intercom system,” and, after the design phase,
“Nissan conducted iterative testing on successive generations of more than 15
[Taxi of Tomorrow] prototypes”); 2199 ¶ 15 (describing rigorous testing for the
wheelchair accessible version of the Taxi of Tomorrow); 2043 ¶ 45 (in October,
2011, TLC staff provided feedback and made decisions on mock-ups of the taxicab
interior and exterior), 2044 ¶ 49 (in September 2011, TLC Executives took test
drives in a fully equipped Taxi of Tomorrow, and changes were made to the
vehicle as a result of their feedback), 2045 ¶ 51 (in February 2013, a TLC
Executive traveled to Indiana to view a prototype of the wheelchair accessible Taxi
of Tomorrow), 2045 ¶ 53 (in June 2013, drive tests were conducted in New York
45
City)). The TLC’s decision to issue the Revised Taxi of Tomorrow Rules is
supported by substantial evidence.
E. PETITIONERS-APPELLANTS’ RELIANCE ON THE VEHICLE
SUPPLY AGREEMENT IS MISPLACED; THE AGREEMENT IS
VALID UNDER THE TLC’S EXERCISE OF ITS AUTHORITY TO
SET POLICY FOR TAXI SERVICES IN THE CITY
The trial court phrased the issue in this case as being whether the TLC is
“vested with authority to contract for medallion owners with third party vendors”
(22), but the Vehicle Supply Agreement with Nissan, signed by the DCAS, is an
agreement between New York City and Nissan, not between third-parties and
Nissan. In any event, the contract is merely a necessary adjunct to the TLC’s
exercise of its legislatively-sanctioned authority to regulate and supervise the taxi
industry, and to prescribe standards of safety, design, comfort and convenience in
the operation of taxis.
The trial court’s decision, which Petitioners-Appellants urge this Court to
adopt, wrongly viewed the TLC’s actions as being “not a form of regulation.”
(22.) There is no doubt, however, that the TLC could have promulgated detailed
regulations concerning design, safety, comfort and convenience that would have
allowed taxi medallion owners only one option – to purchase the Nissan NV200.
As the trial court noted, historically “the TLC set the specific standards for the
composition and hack-up of taxis and the medallion owners were given the
46
freedom to purchase any make or model of vehicle from any manufacturer who met
those exacting standards.” (16. (emphasis added)). The TLC could have set
exacting standards that only the Taxi of Tomorrow met, without the price
limitations and many other protections for taxi owners, i.e. warranties, guaranteed
supply, guaranteed availability of parts and service, guaranteed access to non-
Nissan operated repair services, etc., that the DCAS’s Vehicle Supply Agreement
with Nissan provides. The trial court thus misplaced its focus; the Vehicle Supply
Agreement is simply a necessary concomitant of the TLC’s proper exercise of its
authority to prescribe requirements for the design of a New York City taxicab.
Indeed, the trial court recognized that the TLC could possibly, as a
“legitimate exercise of its rule-making authority,” set standards that would result in
medallion owners selecting only one vehicle in exercising their responsibility to
meet the TLC’s standards. (25 n.6.)
16
Petitioners-Appellants fail to grasp that this
admission undercuts the trial court’s entire decision, as well as Petitioners-
Appellants’ arguments here. For example, the TLC could, under its authority to
prescribe requirements of safety, have promulgated rules requiring a taxicab
vehicle to have a pre-installed partition that is demonstrated, through rigorous
16 The Appellate Division correctly relied on the fact that, “Petitioners do not challenge the
agency’s right to adopt a list of specifications so thorough and exacting that only one vehicle
would satisfy them,” to hold that the TLC could have “prescribed specifications that would leave
medallion owners with only one non-hybrid purchase option: The Nissan NV200.” (2490.)
47
testing, not to interfere with side air bag deployment. This regulation would have
eliminated all currently-available vehicles other than the Taxi of Tomorrow.
But, again, without the City having entered into a contract with Nissan, no
such safety-enhanced vehicle would ever have been developed. Consequently,
Petitioners-Appellants’ bald statement that it is “obvious” that many manufacturers
could produce a vehicle identical to the Taxi of Tomorrow (Brief for Petitioners-
Appellants at p.20) can be set aside as rhetoric. According to Nissan, over $50
million went into the design of the Nissan NV200 taxicab, and, as the TLC found,
no business would have put that amount of money and effort into the design of
such a vehicle, including the special side curtain air bag that deploys around the
partition, unless it was assured that it would recoup its investment through having
taxi owners actually purchase its vehicles. As the Executive Director of Financial
Planning and Analysis for the TLC stated:
Since market forces alone cannot resolve this issue, TLC embarked on
a process to capitalize on the negotiating power of the City on behalf
of all stakeholders to identify a vehicle manufacturer to design and
manufacture a custom New York City taxicab that would better meet
the needs of Drivers, Passengers and Owners. The TLC realized that
in order to better meet the needs of all stakeholders and to address the
longstanding goals of improving safety, comfort, accessibility and
sustainability of the taxi vehicle; it would need to enter into a fuller
partnership with an auto manufacturer.
(2031 ¶¶ 8, 9.)
48
The contract with Nissan was necessary to accomplish the primary purposes
of the Revised Taxi of Tomorrow Rules. The TLC’s perceived need for a new,
safer and more comfortable taxicab, designation of which is within the TLC’s
delegated authority, drove the need for the contract, rather than the other way
around, as the trial court seemed to assume, and as Petitioners-Appellants appear to
argue. This is borne out by the Vehicle Supply Agreement’s provision that,
should New York City identify a vehicle manufacturer other than Nissan that can
produce a superior taxicab vehicle, the TLC may approve that other vehicle for use
after October 2018, so long as Nissan cannot demonstrate that it will match or
exceed the characteristics of the superior vehicle.
Without any discussion whatsoever, the trial court held that the Vehicle
Supply Agreement did not “come within the ambit of the TLC’s typical
administrative ‘interstitial’ rule making function.” (25.) But the trial court’s
description of what it deemed the TLC’s “interstitial” rulemaking in fact described
rulemaking that is specifically authorized by legislation (and hence is not
“interstitial”) – in the trial court’s own words, this rulemaking consists of “setting
standards for the technical composition of the taxicab . . . ” (25), which is explicitly
authorized by N.Y.C. Charter §§ 2300, 2303(b)(6) and 2303(b)(9).
In any event, the Vehicle Supply Agreement was necessary “to fill in the
interstices in the legislative product,” and is “consistent with the enabling
49
legislation.” Matter of Allstate Ins. Co. v. Rivera, 12 N.Y.3d at 608, 883 N.Y.S.2d
at 758. If the DCAS had not entered into the Vehicle Supply Agreement, the TLC
would almost surely have been unable to issue the Revised Taxi of Tomorrow
Rules, setting forth, as provided by the enabling legislation, improved
“[r]equirements of standards of safety, and design, comfort, convenience, noise
and air pollution control and efficiency in the operation of vehicles,” N.Y.C
Charter § 2303(6); nor would it have been able to “develop and effectuate . . .
innovation . . . in relation to type and design of equipment,” id. § 2303(9)
(emphasis added), via the Taxi of Tomorrow. The Vehicle Supply Agreement –
the interstitial means by which the TLC has carried out its specifically-
legislatively-delegated rulemaking – is “not inconsistent with the statutory
language or its underlying purposes.” Matter of Mayfield, 93 A.D.3d at 103, 938
N.Y.S.2d at 294.
When entering into a contract is consistent with an administrative agency’s
legislatively-delegated authority, the agency has the authority to do so. See, e.g.,
US Ecology, Inc. v. State of Calif., 92 Cal. App.4
th
113, 132, 111 Cal. Rptr.2d 689,
704 (Ca. Ct. Appeal, 4
th
Dist. 2001) (“an administrative agency has the power to
contract on a particular matter if this power may be fairly implied from the general
statutory scheme”); Oklahoma Public Employees Ass’n v. Oklahoma Dep’t of
Central Services, 55 P.3d 1072, 1081-83 (S.Ct. Okla. 2002) (despite a lack of
50
specific legislative authority contractually to outsource the operation of a mental
health facility, the State Department of Human Services necessarily possessed that
authority through its statutory duty to operate the facility). It can fairly be implied
from the TLC’s extensive authority to set standards of safety, and design; to set
standards of comfort and convenience; to set standards of efficiency in the
operation of taxicabs; and to develop and effectuate innovation in equipment
design, that the TLC may enter into a contract for the development of a particular
vehicle to serve as the New York City taxicab, when to do so is necessary to
accomplish these legislatively-authorized ends.
It is unnecessary to decide that question, however, because it must be
remembered that it was not the TLC that entered into the contract. It was the
DCAS that, at the TLC’s request, called for the RFPs; and it was the DCAS that
signed the Vehicle Supply Agreement on behalf of the City. Under the New York
City Charter, the DCAS is authorized to “procure, supply and manage contractual
services other than personal or professional services for the use of city agencies.”
N.Y.C. Charter § 823(d).
17
See Appellate Division Decision (2492).
Consequently, the Vehicle Supply Agreement was authorized by the City Charter.
17
Thus, if the Petitioners-Appellant’s specifically intended to attack the Vehicle Supply
Agreement, they sued the wrong party; they should have named the DCAS or the City as
defendant.
51
F. THE MERE FACT THAT IT HAS NOT SPECIFICALLY DONE SO
BEFORE DOES NOT INVALIDATE THE TLC’S SELECTION OF
A SINGLE VEHICLE AS THE TAXI OF TOMORROW
Finally, simply because it may not specifically have done so before does not
mean that the TLC did not have authority to select a single vehicle as the primary
designated taxi for New York City, and to have the City enter into a subordinate,
interstitial, contract with an automobile manufacturer to effect that selection. As
an illustration, N.Y.C. Admin Code § 19-533 authorizes the TLC to approve “one
or more hybrid electric vehicle models.” (Emphasis added.) If it is an acceptable
exercise of the TLC’s authority to approve only one hybrid taxi model, there is no
rational reason why the TLC does not have the authority to select only one regular
taxi model. In 2006, the TLC authorized nine vehicles as “the only vehicles
permitted for hack-up as New York City Medallion Taxis. . . .” (See Exh. H.)
18
There was no requirement that the TLC approve nine vehicles. If it was within the
TLC’s authority to approve only these nine vehicles, however, can there be any
doubt that the TLC could have issued standards under which only three vehicles
qualified, or only one vehicle? The answer is obviously “no,” as the trial court
itself recognized. (25 n.6.)
18
Attached hereto as Exhibit H is a copy of an internet printout of a 2005 TLC Industry Notice
concerning the 2006 vehicle models approved for use as New York City taxicabs.
52
There is nothing in the N.Y.C. Charter or the N.Y.C. Admin. Code that
guarantees taxicab medallion owners the right to a choice of vehicles, nor that
requires the TLC to approve more than one vehicle for use as a taxicab.
19
And,
while the Vehicle Supply Agreement does give Nissan the exclusive right to
provide non-hybrid taxicabs, it does not set the ultimate price. It sets only a
Manufacturers’ Recommended Sales Price, which may be negotiated between
taxicab purchasers and individual Nissan dealers. (2051-52 ¶ 70.)
The Revised Taxi of Tomorrow Rules designate a taxicab that the TLC has
determined – after years of consultation with other experts – will provide much-
improved, tested, “standards of safety, and design, comfort, convenience, . . . and
efficiency in the operation of vehicles,” N.Y.C. Charter § 2303(b)(6) (emphasis
added); and will effectuate “innovation . . . in relation to type and design of
[taxicab] equipment,” id. § 2303(b)(9). The Rules therefore have a rational basis
and are not unreasonable, arbitrary, or capricious. They must be upheld as a proper
exercise of the TLC’s authority.
19
In 2005, 90% of the New York City taxi fleet consisted of the stretch Crown Victoria, which is
no longer in production. (2067 ¶ 10.)
53
II. THE TLC DID NOT VIOLATE THE SEPARATION OF POWERS
DOCTRINE IN PROMULGATING THE TAXI OF TOMORROW
RULES
Reaching to bolster their insupportable conclusion that the TLC exceeded its
authority under the New York City Charter, the Petitioners-Appellants urge this
court to adopt the trial court’s ruling that, even if the Revised Taxi of Tomorrow
Rules did not fail on that ground, the Rules violate the separation of powers
doctrine. (8-12.) There is even less support for this argument. The Appellate
Division properly held that “in view of the City Council’s delegation to the TLC of
comprehensive responsibility for policy relating to all aspects of the City’s for-hire
transportation services,” there is no violation of the separation of powers doctrine
here. (2495 (citing Matter of Levine v. Whalen, 39 N.Y.2d 510, 516-17, 384
N.Y.S.2d 721, 724 (1976).)
None of the four factors enunciated by this Court in Boreali v. Axelrod, 71
N.Y.2d 1, 523 N.Y.S.2d 464 (1987), indicating a violation of the separation of
powers, is present here, and this case is thus not comparable to New York Statewide
Coalition of Hispanic Chambers of Commerce v. N.Y.C. Dep’t of Health and
Mental Hygiene, 23 N.Y.3d 681, 992 N.Y.S.2d 480 (2014), relied on by
Petitioners-Appellants.
Both the Appellate Division and the trial court relied – albeit reaching
opposite conclusions – on Boreali, the seminal case on this issue, in which this
54
Court struck down the New York City Public Health Council’s code governing
tobacco smoking in areas open to the public, after the Legislature had repeatedly
tried, but failed, to reach an acceptable balance between the concerns of
nonsmokers, smokers, businesses and the public. None of the four factors set
forth in Boreali to determine whether an administrative agency has violated the
separation of powers doctrine by engaging in impermissible policy-making is
present here. This Court specified in Boreali that none of these four factors,
standing alone, is sufficient to warrant the conclusion that an administrative agency
has “usurped the Legislative’s prerogative,” 71 N.Y.2d at 11, 523 N.Y.S.2d at 469;
obviously, when none of the factors is present at all, regulations are a valid
exercise of an administrative agency’s authority.
The first factor is whether the agency acted “solely on [its] own ideas of
sound public policy.” 71 N.Y.2d at 12, 523 N.Y.S.2d at 470. What this means is
that an agency acted beyond its authorization in making a “cost-benefit” analysis.
Id. Yet, “it is true that many regulatory decisions involve weighing economic and
social concerns against the specific values that the regulatory agency is mandated
to promote.” Id. See also Coalition of Hispanic Chambers of Commerce, 23
N.Y.3d at 697, 992 N.Y.S.2d at 488.
The second sentence of Coalition of Hispanic Chambers of Commerce does
away with Petitioners-Appellants’ argument. In that case, the New York City
55
Board of Health “[chose] among competing policy goals, without any legislative
delegation . . . .” 23 N.Y.3d at 690, 992 N.Y.S.2d at 483 (emphasis added). Here,
the TLC is legislatively delegated to “establish an overall public transportation
policy governing taxi . . . services.” N.Y.C. Charter § 2300 (emphasis added).
Petitioners-Appellants admit as much: “Charter § 2300 addresses the TLC’s
purpose of adopting an overall transportation policy relating to taxi service and
also sets forth specific tasks within the scope of that purpose.” (Brief for
Petitioners-Appellants at p.3; see also id. at p.11) The TLC is thus authorized to
“regulat[e] and supervis[e] the business and industry” of New York City taxis,
N.Y.C. Charter § 2300, and is mandated to consider safety, id. § 2303(b)(6). This
delegation of authority, and requirement that the TLC take safety into
consideration, necessarily carries with it the authority to make some cost-benefit
analyses. As the Appellate Division held, the language giving the TLC the
authority to “adopt and establish an overall public transportation policy governing
taxi . . . services,” N.Y.C. Charter § 2300, “could hardly be stronger or more
expansive; the TLC’s assigned mission is to establish public transportation policy
to develop and improve the New York City taxi fleet.” (2482 (emphasis in
original).)
20
The Appellate Division recognized the significance of the fact that the
20 Consequently, Petitioners-Appellant’s discussion of the general analysis when an
administrative agency has exceeded its authority is meaningless. (Brief for Petitioners-
56
N.Y.C. Charter limits the TLC’s authority only in one respect, i.e. in the number of
taxicab licenses that may be issued. (2481.) This further supports that the TLC
has authority over the area of the City’s taxi services in all other respects.
The Public Health Council in Boreali was authorized to “deal with any
matters affecting the . . . public health.” 71 N.Y.2d at 8; 523 N.Y.S.2d at 567-68.
This authority of the Public Health Council over the vast field of public health is
much broader than the TLC’s delegated authority over the narrower taxi industry,
and thus more likely to lead to the former agency’s overstepping the bounds of the
separation of powers doctrine. Coalition of Hispanic Chambers of Commerce
likewise involved an agency’s oversight of the broad, ill-defined, and extremely
complex area of “public health.” This case, involving the question of safe,
comfortable taxicabs for New York City, does not represent an agency resolving
the kinds of “difficult social problems” at issue in Boreali or Coalition of Hispanic
Chambers of Commerce. Coalition of Hispanic Chambers of Commerce, 23
N.Y.3d at 692, 697, 992 N.Y.S.2d at 484, 488. See Appellate Division Decision
(2496).
An agency like the TLC cannot carry out its legislatively-delegated powers
to set an overall policy for, and to regulate and supervise, i.e. oversee in all
respects, a clearly-delineated industry segment, such as taxi services, and take into
Appellants at pp.13-14.)
57
account the all-important issue of safety, without making some cost-benefit
analyses. The Appellate Division properly rejected the trial court’s complaint that
the TLC overstepped its bounds when it “balanced between competing concerns of
consumer comfort, cost and the need to increase the number of hybrid, clean air
and accessible taxicabs in the Revised Taxi of Tomorrow Rules” (26), since that is
precisely what the TLC is supposed to do under its delegation of authority “to
develop[] and effectuat[e] a broad public policy of transportation.” N.Y.C.
Charter § 2003(9). (2481.) Tbe Appellate Division properly held that:
[T]he Legislature ha[s] clearly articulated its policy regarding the
TLC’s assigned task, namely, the goal of ensuring and optimizing the
comfort of riders, while protecting the public, the environment, the
drivers, and the rights of medallion owners. The TLC was not left to
take action based on its own ideas of sound policy.
Appellate Division Decision (2497). The TLC “simply balance[ed] costs and
benefits according to preexisting guidelines.” Coalition of Hispanic Chambers of
Commerce, 23 N.Y.3d at 698, 992 N.Y.S.2d at 489.
In discussing this first factor, this Court in Boreali further stated that the
conclusion that an agency has acted on its own unauthorized ideas regarding public
policy “is particularly compelling . . . where the focus is on administratively-
created exemptions, rather than on rules that promote the legislatively expressed
goals, since exemptions ordinarily run counter to such goals and, consequently,
cannot be justified as simple implementations of legislative values.” 71 N.Y.2d at
58
12, 523 N.Y.S.2d at 470. It is thus ironic that what Petitioners-Appellant’s have
complained of here is that the TLC’s Revised Taxi of Tomorrow Rules have only
one exemption, for the legislatively-required hybrid taxi. (2070 ¶ 18.) The Rules
promote the legislatively expressed goals of consumer safety and comfort, and
innovation in design of taxicab equipment, without countervailing exemptions.
As the Appellate Division held, “the Legislature had clearly articulated its
policy regarding the TLC’s assigned task, namely the goal of ensuring and
optimizing the comfort of riders, while protecting the public, the environment, the
drivers, and the rights of medallion owners.” (2497.) The first Boreali factor is
entirely absent.
The second Boreali factor is whether an agency has not “merely fill[ed] in
the details of broad legislation describing the broad policies to be implemented,”
but has instead written “on a clean slate, creating its own comprehensive set of
rules without benefit of legislative guidance.” 71 N.Y.2d at 13, 523 N.Y.S.2d at
470. As noted, however, the TLC is charged itself with “[t]he development and
effectuation of a broad public policy of transportation . . . .” N.Y.C. Charter §
2303(9) (emphasis added). The TLC is not merely authorized to implement a
legislatively-mandated public policy, but is delegated the authority to develop and
effectuate the very public policies to be implemented in the relatively-narrow area
of taxi services (when compared with the wide-ranging, complex area of “public
59
health” at issue in both Boreali and Coalition of Hispanic Chambers of
Commerce). The Appellate Division correctly held that the Revised Taxi of
Tomorrow Rules do not violate the separation of powers doctrine because
“practical necessities,” including the competence and familiarity of the TLC in
connection with the taxi policy of the City (2495 (citation omitted)), compelled the
City Council’s “delegation to the TLC of comprehensive responsibility for policy
relating to all aspects of the City’s for-hire transportation services” (id.). This is
entirely different from the situation in Coalition of Hispanic Chambers of
Commerce, where the rules concerning sugary drinks “reflect[ed] a new policy
choice” by an agency that was not delegated authority over the specified area of
sugary drinks. 23 N.Y.3d at 700, 992 N.Y.S.2d at 490.
In any event, it is absurd to suggest that the Revised Taxi of Tomorrow
Rules write on a clean slate. The TLC has always designated standards that only
certain vehicles meet. (See, e.g., Exh. H.) Designating the Taxi of Tomorrow as
the vehicle that fits within the TLC’s current determination – after years of
considered planning and testing – of the preferred “standards and conditions of
service,” N.Y.C. Charter § 2303(2); the preferred “standards of safety, and design,
comfort, convenience, noise and air pollution control and efficiency in the
operation of vehicles and auxiliary equipment,” id. § 2303(6); and the appropriate
“innovation . . . in relation to type and design of equipment,” id. § 2303(9), simply
60
follows legislative guidance as to the TLC’s authority. As the Appellate Division
properly held, “The TLC was not left to take action based on its own ideas of
sound public policy.” (2497.) The second Boreali factor is entirely absent.
The third Boreali factor is “that the agency acted in an area in which the
Legislature had repeatedly tried – and failed – to reach agreement in the face of
substantial public debate and vigorous lobbying by a variety of interested
factions.” Boreali, 71 N.Y.2d at 13, 523 N.Y.S.2d at 470. Any public debate and
vigorous lobbying in this case, however, was directed at the TLC. The trial court
relied on the fact that the City Council has passed legislation requiring the TLC to
approve one or more hybrid vehicles, and to work to increase the numbers of clean
air and wheelchair accessible vehicles in New York City. (25-26.) Of course, the
very fact that the City Council passed legislation takes this case out of the third
Boreali factor. And the TLC has complied with the cited legislation. As
discussed, it has designated one or more hybrid vehicles under N.Y.C. Admin.
Code § 19-533. There is no evidence that the TLC has failed to develop a plan to
significantly increase the number of clean air and accessible vehicles in New York
City under N.Y.C. Admin. Code § 19-534; as noted, the Taxi of Tomorrow has
been designed and remodeled to increase fuel efficiency; and the Vehicle Supply
61
Agreement requires Nissan to ensure that the Taxi of Tomorrow can be converted
to be wheelchair accessible.
21
The third Boreali factor is absent.
The fourth Boreali factor is that an agency has acted to issue regulations that
involve no special expertise or technical competence to develop. 71 N.Y.2d at 13-
14, 532 N.Y.S.2d at 471. This factor requires little discussion. Quite obviously
special expertise is required to develop a purpose-built taxicab. As discussed at
length above, the TLC utilized its own expertise in the taxi industry, and sought
advice from numerous outside experts, to develop the Revised Taxi of Tomorrow
Rules. See also Appellate Division Decision (2499 (“The TLC . . . has now . . .
become the possessor of unique expertise in the field, and is far better equipped
than the City Council to decide which vehicle, or vehicles, will best serve as New
York City taxis.”)). The fourth Boreali factor is also absent.
The Revised Taxi of Tomorrow Rules do not violate the separation of
powers doctrine under the Boreali and Coalition of Hispanic Chambers of
Commerce analyses.
21
The trial court also cited N.Y.C. Admin. Code § 19-535, which has to do with the extension of
retirement periods for hybrid taxis and wheelchair accessible taxis. There is no evidence
whatsoever that the TLC has failed to comply with this provision
iii iii
I I
Dear Commissioners:
We are writing to urge you to adopt the proposed Taxi of Tomorrow rule at your June 20
meeting. We believe this rule will greatly enhance the quality of taxi service in New York City.
Taxicabs form a critical piece of the City's transportation network, complementing our
unparalleled subway and bus service, and transporting some 600,000 people a day. In particular,
taxis provide crucial transportation support to the midtown and downtown Manhattan business
districts, to the airports, and to the City'S tourism industry.
We commend the TLC for keeping taxicab service reasonably priced, compared to
competitor cities, and for enabling taxi passengers to pay by credit card and to use taxi-hailing
smartphone apps. Credit card acceptance, in particular, has proved to be of great value to taxi
passengers.
We believe the Taxi of Tomorrow will be an even greater advance in customer service.
We recognize that the vehicles currently used as taxicabs were designed for general consumer
use and have been retrofitted for taxi use. By contrast, the Taxi ofTomorrow vehicle has been
custom designed for use as a taxicab, and will provide a new standard of safety, comfort and
passenger amenities:
• Safety: Unlike current taxis, the Taxi ofTomorrow vehicle will meet federal crash-test
standards with the partition installed, and will reduce the risk ofhead and face injuries to
passengers. The vehicle's front is specifically designed to minimize pedestrian injuries in
the event of a collision, and the sliding doors will prevent the 'dooring' of cyclists.
• Passenger comfort: After safety, the most significant shortcoming in much of the
current fleet is a lack of adequate legroom for rear-seat passengers. The Taxi of
Tomorrow vehicle includes a spacious passenger compartment that will accommodate
even taller passengers. It also provides a separate heating and air conditioning system
controlled by rear-seat passengers.
• Ease of entry and exit: Many older passengers and passengers with limited mobility
have difficulty entering and exiting the SUV and minivan vehicles that now compose
about half of the taxi fleet. The Taxi of Tomorrow vehicle includes a retractable step,
grab handles that will make entry and exit much easier, and an automatic light to alert
pedestrians and cyclists when a passenger is entering or exiting the vehicle.
• Driver/passenger communication: The ToT is equipped with an intercom enabling
clear communication between the driver and rear-seat passengers. The intercom includes
hearing loop technology to assist passengers with hearing aids.
.. Panoramic roof: The Taxi ofTomorrow vehicle is equipped with a panoramic roof that
is substantially larger than a typical sunroof, giving passengers thrilling, vertical views of
the cityscape. Visitors to the City will particularly appreciate this feature.
• Reading lights, floor lights and charging ports, The Taxi of Tomorrow includes
passenger reading lights similar to those found in luxury "black cars," as well as floor
lights that illuminate when the door opens, to help exiting passengers notice items left on
the floor. The Taxi ofTomorrow also includes charging ports for phones and tablets.
In sum, we believe the Taxi ofTomorrow will provide a passenger experience markedly
superior to that provided by current taxis, and thus will help New York City continue to improve
its position as a choice location for businesses and an attractive destination for tourists. We urge
you to vote in support of the Taxi of Tomorrow rule on June 20.
Nancy Ploeger
President
Manhattan Chamber of Commerce
(as one who took a test ride in the Taxi ofTomorrowl)
Kathy Wylde
President/CEO
Partnership for New York City
Lee Sander
President/CEO
HAKS
Chair
Regional Plan Association
William C. Rudin
Chairman & CEO
Rudin Management Company
Chairman
Association for a Better New York (ABNY)
Jonathan Tisch
Chairman
Loews Hotels
Steven Spinola
President
Real Estate Board ofNew York
Douglas Durst
Chairman
The Durst Organization
Jennifer Falk
Executive Director
Union Square Partnership
Cristyne L. Nicholas
Chair
The Broadway Association
Alfred C. Cerullo, III
President and CEO
Grand Central Partnership
Paul Steely White
Executive Director
Transportation Alternatives
Stephen Sigmund
Executive Director
Global Gateway Alliance
Joe Sitt
Chairman
Global Gateway Alliance
CEO, Thor Equities
Susan Chin
Executive Director
Design Trust for Public Space
@!l @!l
I I
·BESIGN·TRUST -. ·>
: FORPUBlIC SPACE.- - .. - ':-. :,- ';--"
.,qm .(!!if&. NEWYORK CITY
. lliJ. :.~ ..·I~..~~~. TAXI &LIMOUSINE.. ".~ COMMISSION
. Editors
Rachel Abrams
Stephanie Elson
Chelsea Mauldin
Copyright 2007 by the Design Irustfor PublicSpace and
bylheCity ofNewYor~, actingby arid throughtheTa~i
& Limousine Commission. All rights reserved. Nothing
contained in Taxi 07: Roads Forwardshall beconstrued as
obligating the TLC or the Cityto makeariychanges In their
currentprocedures or to adoptanyof the recommendations
made inTaxi 07: RoadsForward.
ISBN 978-0-9777175-1-4
DESIGN TRUST lJfl©~.&'&Y~~~5~E
FOR PUBLIC SPACE L:J COMMISSION
PREFACE
DESIGN TRUST
In honor of the hundredth anniversary of the first gas-powered taxi in New York City, the Design Trust for Public Space
launchedTaxi 07, a programto facilitate innovative newcab designs and propose improvements to the technologies, regula-
tions, and public spaces that support the taxi system. This publication is oneof the productsof that project.
The Design Trustfor Public Space is a not-for-profit organization committed to improvingthe design, utility,and understand-
ing of NewYork City'spublic spaces. We forgepublic/private partnerships between neighborhoods, city agencies and design
professionals. While the subject of Design Trustprojects mayvary, the goal is always to make NewYork Citymorebeautiful,
sustainable, functional, and available to all.
Toensure that Design Trust projectsbecome reality on city streets, we will not initiate a projectwithout the collaboration of
the city agencyor community group best situated to implementthe project's results. In the caseof Taxi07, and Taxi 07:
Roads Forward in particular, the Design Trustenjoyed an enormously productive partnership with the NewYork City Taxi &
Limousine Commission (TLC). Together, the Design Trustand the TLC selected sixextraordinary fellows whoare the primary
authorsof this document.
The project also benefited from an unprecedented levelof citywide and taxi industry-wide collaboration. A broad range of
taxi stakeholders-drivers and fleet-owner groups, environmental and accessibility organizations, and New York Cityagen-
cies-were either interviewed by our fellows or asked to review Taxi 07: Roads Forward in draft form. Comments from these
experts havebeen incorporated here to the fullestextentpossible. Fora full list of interviewparticipants and peerreviewers,
please seethe Acknowledgments section.
The broad collaboration that produced this bookattests to strongoptimismabout the future of NewYork Citypublic spaces
and for our city's taxis in particular. In fact, taxiswill contributeto improvingNewYorkCity's air quality by meetingnewfuel-
efficiencyand emissions goalscurrently under review bythe TLC. These goals, originallyproposed in PlaNYC, MayorMichael
R. Bloomberg's blueprint for New YorkCity's environmental future (released April, 2007), include plans for replacing the
NewYorkCitytaxi fleetwith hybrid-electricvehicles overtime. Finally, we wish to thank PaulHerzan, whose passionate civic
commitment inspired and guided this project. We believe that discussion, study, and implementation of the findings and
strategies describedherewill help makeNewYork's cabsmoreusable, moreeconomically valuable, moreefficient,and more
sustainable for all NewYorkers-now and for generations to come.
Deborah Marton
Executive Director
Design Trust for PublicSpace
December 2007
4 PREFACE
E
we celebrate the lOOth Anniversary of the NewYorkCitytaxicab, it is naturalfor the Taxi & Limousine Commission (TLC)
reflectnot onlyon the accomplishments of the past-but on our plansand outlookfor the future. Weareundoubtedly in a
goodplace-as the taxicab industryhasreached unforeseen heights of safety, customerservice, economic health and oppor-
tunity. However, we can always striveto do betterto fulfill our agency's mission-and that is why we participated in Taxi 07.
Taxi 07 and our workwith the Design Trustwasa collaborative startingpoint to takea fresh lookat redefining the taxi-from
both a functional and aesthetic standpoint-to complementour beautifully transformed metropolis. When I was first ap-
pointedCommissioner, I neverenvisioned that wewould becollaborating with architects, designers and graphic artiststohelp
fulfill our vision. This projecthascertainlyserved as an inspiration to manyongoing and neweffortsto improve service.
Roads Forward is a comprehensive and interesting perspective on where the taxi industry has come from and where it
should go.While we all agree to move forward-there are, of course, many different roads we can travel to get to our final
destination. The importance of this project is to recognize that progress is a "two-way street"-involving the "giveand take"
of all identifiablestakeholders. Whiletraffic moves in an orderlyfashion on our roadof progress, we endeavor to travelat the
speed limit rather than belowit. That is whywe no longer referto our projectas the "Taxicab of the Future"-but ratheras
the "Taxicab of Tomorrow."
The "Taxicab of Tomorrow" projectis the Bloomberg Administration's plan to identifyand developa functional and aestheti-
cally appropriate taxicabthat is accessible, clean-air fueled, durableand user-friendly. Today, we are seeing the first of our
newtaxicablogos and designs hit the streets, and sooneverytaxicabwill havea newsleekand uniform look-to complement
our dynamic city. On the sustainability front, thanks to MayorBloomberg's PlaNYC, by 2012 everytaxicab will be clean air
fueledto improve our environment and reducethe city's carbonfootprint. Todate, the TLC hasmorehybrid-electric taxicabs
on the roadthan any other U.S.city,and wewill be speeding-up our progress. Our nextstepsare to identifyand develop the
characteristics and specifications of the ideal vehicle to be branded as New York City's iconic taxicab. Details such as the
rooflights, partitions, heightand shape, legroom and headroom of the taxicabwill be identifiedandwe will workwith automo-
bile manufacturers to makethis dreama realityassoonas possible.
The TLC has also initiated and implemented many projectsdesigned to enhancethe quality and availability of taxicabcus-
tomer service. For instance, the TLC auctionedadditional medallions-including manydedicated to vehicles that are clean
air fueledand accessible to passengers with disabilities. Also, the TLC developed newtaxicabtechnology providing for credit
card payment optionsand interactive backseat passenger information screensthat include fare rates, news, entertainment
and mapsby just touching the screen. The rearseattaxicabexperience will bedramatically transformed, with newclear and
smallerpartitions and no moremessy interiorstickers.Ournewlocation-based technology system will provide textmessaging
for driversto find placesand events wherepassengers arewaitingfor taxiservice, and to help recover lostpassenger property
morequickly and successfully.
I would like to thank the teamof fellows at the Design Trustfor PublicSpace, all of the members of Taxi 07 and ourdedicated
staff at the TLC for their hard work and creativity. While the TLC may not agree with every concept, idea or suggestion in
Roads Forward, this publicationrepresents a giant leap on our roadof progress - and we are delighted that our agency can
makea significantcontribution not only to our passengers, but to the greatest public spacein our universe.
Matthew W. Daus
Commissioner/Chairman
New York City Taxi & Limousine Commission
December 2007
PREFACE 5
HOW ARE TAXIS TESTED FOR SAFETY AND EMISSIONS?
Three times every year, each of the more than 13,000
medallion taxicabs are inspected by the TLC. A 264-point
checklist assesses vehicle condition through mechani-
cal and visual inspections, and it certifies that vehicles
are both road-worthy and in compliance with TLC man-
dates-everything from legible passenger information
stickers to accurate fare meters. In addition, TLC's state-
of-the-art testing center in Woodside, Queens,was the first
large-scale facility to be certified by New York State OMV
to carry out On-Board Diagnostic (OBO) II testing, which
66 REGULATING TAXI SERVICE
checks each cab's engine performance and emissions by
connecting directly to the vehicle's on-board computers.
TLC'sSafety and Emissions Division (S&E)also certifies the
'hack-up' of every new cab and performs ongoing testing
of new vehicle models to assess their suitability for use as
a New York City taxi.
At the TLC's Woodside facility, an inspector(bottomright)performs a visual
inspection; herehe'scheckingthe chassis and verifying thatthere'sno leakin
the gastank. A computerized inspections process (top left)runs andrecords
diagnostics for engine,tire, brake,and emissions tests.Interdepartmental clerical
work(top right) is routedbetween the TLC's offices.
York's medalliontaxicabs are more than a means of transportation-they're
faubiquitous and vital component of the city's public realm. As both a public
e and a public space,taxis should be held to high standardsof accessibility,
rt, safety, and convenience-what could be called usability.
iconic status makestaxi usability even more important. As a symbolof
ty, yellow-cabservicesshouid capture some of the glamour and profession-
of New York-through appealing appointments, relevant technology, and
Ilent customer service. Interactions between drivers and passengers should
.mize the efficiency and no-nonsense charm that make New Yorkers famous
world over.
iy usable NewYork Citycab would also meetthe physicaland servicerequire-
ts of both of its major user groups, passengers and drivers:
ngers deserve courteous treatment and a point-to-point transportation
ce that is easy to use. comfortable. safe. and enjoyable.
, ers should have a safe and comfortable working environment and be
pported in providing top-quality transportation services to their customers.
e New York City Taxi & limousine Commission's regulatory responsibilities
perly include oversight of both the design of medallion-taxi vehicles and the
ices that drivers and vehicles'provide.This section describes the usersof the
system and their preferences relating to both vehicular and service issues.
proposes opportunities for the TLC to strengthen its role as a passenger
and regulatorof drivers, improving taxi usability for all.
USABILITY 77
to achieve if they remain off passengers' radar. Attempts to improve taxi usability
must educate passengers about the following:
The Driver is Part of a System
Taxi passengers see the driver as the human face of the taxi system. Riders are
largely unaware of the role that the TLC, medallion owners, fleets, and other mem-
bers of the taxi industry play in taxi service. Consequently, they are not familiar
with the financial and service constraints experienced by drivers.
Changes in the TaxiSystem CanAffect Passengers
Riders may be aware of small changes in New York's taxi vehicles over recent
years-improved passenger air conditioning, for example-but many may not
perceive the vehicle as a designed object that could be reconfigured to specifi-
cally address the requirements of taxi service. Passengersare not familiar with the
frequency of vehicle turnover in the yellow-cab fleet, the power of the TLC to man-
date vehicular and systemic change, or the economics of medallion ownership
that might finance significant improvements. Nor do they explicitly recognize the
degree to which systemic elements, from streetscape design to driver ownership
models, affect their passenger experience.
New Technologies CouldSignificantly Alterthe Taxi Experience
Just as networked communications technologies are becoming ubiquitous in other
aspects of contemporary life, wireless data delivery and geographic positioning are
now emerging in cabs, too. Seatback monitors, credit-card readers, GPS-enabled
electronic maps, electronic trip sheets, and text-messaging capabilities have
been conceived, initiated, implemented and approved by the TLC and are being
installed in the current fleet (see page 88). Beyond these forthcoming initia-
tives, GPS location of passenger demand, mobile hailing, and Internet access are
related technologies that could also be considered for New York City's cabs.
The impact of these services may be significant. These technologies are precur-
sors of a taxi system that knows where passengers are, what they need, where
they want to go, and how much it costs to get there. However, passenger aware-
ness of the possibilities provided by these technologies is currently limited, mean-
ing that riders have little ability to lobby for the particular technology applications
that they would find most valuable. (Lack of information in the driver community
can also be an impediment to the embrace of new technologies, as drivers may
be unable or unwilling to explain the services to rlders.)
"IF YOU WORK LATE AT NIGHT, YOU LOOK AT THE
PEOPLE. IF THEY ARE DRUNK, I MIGHT NOT PICK
THEM UP. YOU DON'T WANT THEM TO THROW
UP IN THE CAB."
84 USABILITY
"PEOPLE GET INTO CABS AND JUST SHOUT UT
THE ADDRESS AT THE GUY... AND THE DRIVER
BARELY AC OWLEDGES IT WITH AGRUNT.
IF THE DRIVER DIDN'T HEAR, AND THEN IF THE
PASSENGER IS NOT CLEAR, IT CAN LEAD TO
AWHOLE lOT OF PROBLEMS."
Sensitize Riders to Driver Interaction
Passengers could also be more mindful of the social aspects of the driver-pas-
senger interaction. Some conduct is simple common sense: Just as passengers
prefer for drivers to know the way, drivers prefer attentive passengers. Drivers
report that passengers using mobile phones often fail to respond to driver ques-
tions (such as "Which side of the street do you prefer to be dropped off?"), and
then become frustrated when drivers cannot accommodate their preferences at
the last minute. More subtle social nuances may be completely lost on passen-
gers: while it may be unreasonable, some drivers prefer that women not ride in
the front passenger seat, as they wish to avoid any appearance (or accusation) of
inappropriate behavior.
TLC could explore options for customer-service announcements that address
these and other interactive aspects of the trip, perhaps through messages from
real drivers displayed as video clips on PIMs. TLC might consider other opportuni-
ties to remind passengers of the individual humanity of drivers, such as introduc-
ing more detailed driver-identification materials.
Photos and biographical material describing how long the driver has been oper-
ating a cab, for example, might be displayed on the passenger monitor. These
materials should be developed with input from drivers, coordinated with other
public-relations campaigns, and designed to reflect the TLC'sconsistent, friendly,
informative tone.
ENSURE ASAFE, COMFORTABLE, AND ACCESSIBLE RIDE
As a publicly regulated transportation service, the taxi system should provide a
safe ride that is easy to access and even enjoyable-for all passengers. By imple-
menting licensing and vehicle standards, the TLC has done an excellent job of
providing safe service. Some opportunities do exist, however, to make the taxi
system easier to access and more enjoyable.
Accessibility is a broad term that can include both availability (see the Efficiency
section, below, on matching cab supply to passenger demand) and physical ac-
cess and user comfort. How enjoyable a cab ride is depends in part on sufficient
90 USABILITY
flEI flEI
I I
til) @l
I I
Design Trust for Public Space
The Design Trust for Public Space is an independent nonprofit organization dedicated to
improving public space in New York City. Since 1995, the Design Trust has advanced the
quality of New York City's public realm by forging critical alliances between city agencies,
community groups, and private-sector professionals. We think systemically about how
cities work, and effect change through unconventional research, design and planning
projects. Visit http://designtrust.org to learn more.
Design Trust's Taxi Initiatives
The Design Trust has worked since 2005 to facilitate innovative new cab designs and
propose improvements to the technologies, regulations, and public spaces that support
the taxi system. Since we will not inaugurate a project without the collaboration of the city
agency or community group best able to implement any policies or designs we develop,
the first step was to engage New York's taxi regulators, the New York City Taxi &
Limousine Commission.
Designing the Taxi
BOARD OF DIRECTORS
Cindy Allen
Hugo Barreca
Alison Bauer
Theodore Berger
Deborah Berke
Victor Body-Lawson
Kitty Hawks
Marc Heiman
Susan Grant Lewin
Stephen Maharam
Zack McKown
Raymond Merrill
Paula Mueller
Linda Pollak
Annabelle Selldor!
Susanna Sirefman
Sylvia Smith
Claire Weisz
Andrea Woodner BOARD CHAIR
From the beginning, we found the TLC to be an open and enthusiastic partner in our
efforts, and we were able to move forward with the first stage of this project, which was a
series of workshops, called Designing the Taxi, undertaken to determine the current state
of the taxi system and identify opportunities for improvement.
Working in cooperation with Parsons, the Design Trust held two half-day events, a
workshop and a presentation, where participants could share expertise and experience. A
broad range of taxi stakeholders participated in the workshops - many of whom had never
interacted before. Participants included fleet owners, drivers, landscape architects, urban
planners, vehicle and industrial designers, graphic artists, medallion holders,
representatives of City agencies, civic groups and others.
The Design Trust developed the workshop findings into an illustrated publication that
described the constraints and possibilities for the New York City taxi system. Designing
the Taxi included a grab-bag of ideas from the obvious and doable - like a more legible
rooflight - to larger and more complex systemic improvements, like a fully electric taxi and
a cellphone hailing system. A Designing the Taxi exhibit was also held at Parsons School
of Design from November 2005 through January 2006.
Taxi 07 Exhibit
Encouraged by the outpouring of support for the project from the TLC, the industry, and
the public, in the summer of 2006, the Design Trust launched Taxi 07, a program to
celebrate the taxi's 2007 centennial, foster design innovation, and develop a taxi master
plan. Taxi 07 had a dual focus: the taxi vehicle and the taxi system. The scale of the
Design Trust's efforts to improve the taxi and the taxi system was without precedent in the
organization's 12-year history. This multi-year, multi-phase project engaged many
stakeholder groups to activate innovation in a system that had been considered
intractable for decades.
In April 2007, the Design Trust mounted the most comprehensive array of information on
New York City's taxis ever seen at the New York International Auto Show. For the exhibit,
the Design Trust invited auto manufacturers, some of the nation's top industrial designers,
and design students to create taxi prototypes. From a re-designed roof light to a purpose-
built, wheelchair-accessible taxi to an air filter that turns each taxi into a mobile air purifier,
the Taxi 07 Exhibit displayed real, feasible improvements, including eight fully functional
vehicle prototypes and a range of taxi infrastructure. In addition to these prototypes, the
exhibit was the most comprehensive display of information on New York City's taxis
mounted to date.
The Taxi 07 Exhibit drew more than 100,000 visitors over 12 days, at times as many as
1,400 people in one hour. Media coverage of the exhibit was extensive, with feature
stories appearing in newspapers (13), magazines (12), on television (15), radio (5),
international media (15) and online (26+), and perhaps most prominently garnering a few
jokes on late night television by Jay Leno and Conan O'Brian (please see addendum for
full list of media coverage). This tremendous media response demonstrated unequivocally
that taxis are a touchstone issue for New Yorkers and reiterated the taxi's identity as a
global icon for all things New York.
Taxi 07 also sponsored a series of public events and educational programs, including
the designation of "NYC Taxi Week" (April 6-15, 2007) by Mayor Bloomberg, a panel at
the Cooper-Hewitt National Design Museum, a month-long taxi film series at the IFC
Center, and a taxi-yellow lighting of the Empire State Building in honor of the centennial
and Taxi 07.
Taxi 07: Roads Forward
A fundamental premise of Tax; 07 is that New York's taxi services form a system - an
interdependent network of people, vehicles and the city itself.
Tax; 07: Roads Forward, officially released December 18, 2007, provides the City of New
York with the first long-term plan for improving the taxi system. A joint project of the
Design Trust for Public Space and the New York City Taxi & Limousine Commission
(TLC), Tax; 07: Roads Forward analyzes the current taxi system and outlines taxi-
improvement strategies that are feasible and cost effective over a 10-year period. This
publication gives the City of New York and the TLC the best and most thorough
information available about the usability, economic value, efficiency, and sustainability of
the taxi system today, and details ways to improve this crucial transit link over the next ten
years.
Roads Forward was created to give the City of New York, the TLC, and the City Council
the best and most thorough information available about the state of the taxi system today
and opportunities for improvement. Specifically, this publication explores how the taxi can
best function as a vital part of New York City's public realm. Recommendations are made
for how the taxi system could be optimally regulated to provide excellent transportation
service for all its passengers and stakeholders, and for the city at large.
Roads Forward was well received by both the TLC and the New York City Council. Since
its release, several key recommendations have been adopted by the TLC, and they
continue to use it today as a vital guide and reference tool about the taxi system.
Taxi of Tomorrow
"Taxi 07 served as the genesis of the 'Taxi of Tomorrow' program."
-- Matthew W. Daus, Commissioner/Chairman, NYC Taxi & Limousine Commission
The Taxi 07 Project catalyzed change. As a direct result of the Design Trust's Taxi 07
program, the TLC launched the Taxi of Tomorrow program in early 2008 to pursue the
creation of a new iconic and environmentally sound taxi for New York City. Taxi of
Tomorrow is the culmination of a four-year partnership between by the Design Trust for
Public Space and TLC to make both the vehicle design and the vast infrastructure of the
taxi system more iconic, energy efficient, and user-friendly.
Following the goals the Design Trust identified in Taxi 07: Roads Forward, the Taxi of
Tomorrow competition called for a purpose-built taxicab with increased safety and
environmental standards, reduced vehicle and lifestyle costs, iconic design elements and
enhanced ride quality, durability, and accessibility. After TLC narrowed down competition
finalists to Ford, Karsan, and Nissan, the Design Trust worked with the agency to roll out
an interactive public survey. Incentivized by the opportunity to win a year of free taxi rides,
a prize sponsored by the Design Trust, 23,000 New Yorkers participated in the Taxi of
Tomorrow survey.
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Testimony of Michael O'Loughlin
on behalf of
CAB RIDERS UNITED
to the
New York City Taxi & Limousine Commission
Regarding
Vehicle Retirement Schedules of Yellow Taxis and Black Cars
March 5, 2015
Good morning, Chair Joshi and members of the Taxi and Limousine Commission. My name is
Michael O'Loughlin. I speak today on behalf of Cab Riders United. a voice for the 1.2 million
daily passengers who pay for transportation in New York City's taxicabs and other for-hire
vehicles and for the countless other New Yorkers and New York businesses that rely on taxicab
and for-hire vehicle service to keep the city moving every day.
Our mission is to improve the safety, quality and environmental impact of the city's taxi and for-
hire vehicle industry.
For all of those reasons, although we support parity, we oppose the proposals to extend yellow
and black car retirement schedules, as currently proposed. Cab Riders United urges you to level
the playing field by improving standards not lowering them.
Cab Riders United urges you to consider a level three year retirement schedule as a place to start
the conversation, rather than a seven year retirement schedule. (A three year retirement schedule
is more consistent with the hard life of a taxi or for-hire vehicle and better aligned with the
typical manufacturer's warranty.) Additionally, we urge the TLC to consider whether setting
vehicle retirement on the basis of mileage might be more appropriate than using vehicle model
year, at least in some industry sectors.
Now, TLC rules traditionally limit speakers to only three minutes, but for the business I hope to
accomplish this morning I would prefer to go on and on and on for seven minutes - or maybe
forever. Is that okay? If not, fine, I understand that there are competing interests at stake and
other important values to consider.
I hope you take my point.
There are so many reasons the proposed retirement rule changes appear to be a bad idea for
passengers.
1. Here's a simple truth: Vehicles deteriorate, especially given the very heavy use most
cabs get. Old, clunker cabs will be less comfortable, worse for the environment and less
safe for New Yorkers both inside and outside the car.
2. Math: Under the proposed rule, yellow taxis would pound the streets for up to 7 years -
half a million miles - of stop and go traffic, fender benders, potholes, puking passengers -
and apparently a lot of snow and ice - before they are finally retired and replaced. Half a
million miles is the equivalent of20 trips around Planet Earth, but remember, Planet Taxi
is made up of the aforementioned stop and go traffic, fender benders, potholes, puking
passengers, etc.
Under the proposed rule, black cars would have no fixed retirement age whatsoever,
regardless of improvements to new car vehicle safety standards, emissions controls, etc.
In the words of Buzz Lightyear, they could remain in service "to infinity... and beyond!"
3. Passenger opinion: Passengers, who, one must remember pay every single dollar that
flows through this industry, understand the implications of this proposal and they really
don't like it. Passenger voices we've heard even in just the last 24 hours:
Tim: As it is with the current rules some of the cabs I get into have holes in the floors
and sound like they haven't put oil in the engine since the car was purchased.
S. Grant: 1 remember the horrible clunker cabs, before the law changed, and 1 don't
want to go back!
1. Auer: We have made so much progress in improving the quality of life in NYC ...
this would be a step backwards. Please don't approve the proposal.
Sarah: Was in ancient, falling-apart Ford yesterday... No way it should have been on
the road!
Constance: Great. .. we are now paying more and getting smelly, dirty and old
rattling cars. It is a disgrace and a safety hazard for the public. Seat belts rarely work
in the old cabs too. 1 go out of my way NOT to take them.
Most poignantly, Ali: Because my five-year-old has to cross the streets and breathe
the air in this city. I need to keep him safe.
4. Safety and Vision Zero: Like Transportation Alternatives, New York City's leading
advocate for safe streets, with 100,000 active supporters and a committee of activists
working in every borough, Cab Riders united is gravely concerned about the safety
implications of the proposed rule.
a. Brakes, steering, electrical and other vehicle systems deteriorate over time. The
Statement of Basis and Purpose of the Proposed Rules points out that only 30%
of yellow taxis currently fail their inspections after two years. Yes, that is
important progress compared with the 71% failure rate before the three and five
year retirement rules were put in place in 1996, but that progress can also be
interpreted as evidence of the three and five year retirement rule's success and the
importance of preserving a lower retirement age. And frankly, if an airline had a
30% inspection failure rate, I would not get on the plane. Would you?
b. Also, newer vehicles are equipped with the most up-to-date safety technology to
protect the vulnerable New Yorkers inside and outside the vehicle. Extending or
eliminating retirement schedules delays the introduction of new safety
technology.
5. Environment and Health: We join with our allies at the American Lung Association of
the Northeast, the New York League of Conservation Voters and the National Resources
Defense Council in urging the TLC to pause and reconsider the health and environmental
impacts of the proposed rule changes. Specific concerns include smog, soot and
greenhouse gas pollution. People already get sick and sometimes die due to the air
pollution in New York. The proposed rule would delay the introduction of new vehicles
with minimal or zero emissions, and it appears very much contrary to the Mayor de
Blasio's and the City Council's commitment in law to reducing greenhouse emissions
80% by 2050.
a. The proposed rule changes would delay the introduction of new vehicles with
minimal or zero emissions while also costing taxi drivers and their customers'
money due to higher fuel consumption and operating costs. Compared to the
average car on the road today, new cars in 2025 will consume roughly half as
much fuel and emit half as much pollution as the average vehicle on the road
today.
b. In 2017, federal Tier 3 emission standards go into effect, dramatically reducing
smog and soot pollution from passenger vehicles. Allowing vehicles as of2015
to remain on the street for seven years (or perhaps longer) risks delaying the
turnover to lower polluting vehicles by two to four years. Federal Tier 3
standards, which will affect the new vehicle fleet in 2017, will require an average
per mile tailpipe emission rate that is 80% lower than today's average rate.
c. Today automakers warranty cars to meet smog and soot pollution standards for
120,000 miles. Tier 3 will raise that minimum to 150,000 miles. Yellow taxis
typically drive 150,000 miles in just two years or a little more. Allowing them to
operate for longer risks more pollution as emission control systems degrade.
6. Wheelchair Accessibility: Like the Taxis for All Campaign, we urge the TLC to explain
how the proposed rule change will not affect its commitment to 50% yellow taxi
wheelchair-accessibility by 2020, or progress toward 100% accessibility, including black
cars and other for-hire vehicles
Also, and importantly, as you know from past testimony during which I played audio of a
brand new WAV that sounded like a dangerous bucket of bolts, we are very concerned
about the safety standards and durability standards for WAV conversions. While one or
possibly two TLC-approved WAVs have reportedly been tested and proven to comply
with National Highway Traffic Safety Administration (NHTSA) and Federal Motor
Vehicle Safety Standards (FMVSS) regulations, many of the WAVs on the streets today
fall far short of the safety, durability, comfort and other standards that passengers should
have a right to expect - especially now that passengers are paying a surcharge to
subsidize the expansion of wheelchair accessibility.
We strongly urge the TLC to adopt meaningful regulations to ensure appropriate safety,
durability and other standards for WAV taxis and for-hire vehicles.
Currently WAVs can qualify for additional time before retirement, but in the absence of
appropriate regulations to ensure safety, durability and other standards, many of these
vehicles should arguably be licensed for less time, not more.
7. Drivers: Passengers have a special relationship with drivers. We literally put our lives in
their hands. The driver's safety and the quality of the driver's work environment is a
concern for passengers as well. Those who drive for fleets have little power to determine
what vehicle they are assigned. If, as proposed, more vehicles remain in service for an
extended period before retirement and the quality of the vehicles therefore deteriorates, as
we predict it will, this will threaten the safety and the comfort of the driver as much or
more than passengers. Additionally, older and deteriorated vehicles pose a threat to the
driver's livelihood because passengers will be less inclined to tip well for transport in an
old, clunker cab. Finally, we understand that various parts of the industry are intensely
competing for drivers right now, but we find it difficult to understand why a driver who
cares about the quality of the vehicle would choose to remain in one industry sector with
increasingly older and shabbier vehicles when they are offered a new vehicle and other
enticements to move to another sector.
Cab Riders United urges the TLC to weigh fully today's public testimony, then move to
implement the rules under discussion today (and to review them in due course to ensure they are
proving effective and being applied appropriately), and then to act swiftly to improve driver
training and work conditions, vehicle design and maintenance, insurance rules and
accountability, and so many other issues that are essential to reaching the Vision Zero goal for
passengers, drivers and the New Yorkers out there on the streets and sidewalks.
Thank you for the opportunity to present to you today.
t!!l t!!l
I I
BraunAbUItyITheBraunCorporation
631W.t 1'"Street
Winamac:, IN46996
(BOO) 946-7513
February 6, 2015
Mr. Michael O'Loughlin
Cab Riders United
11 Park Place, Suite 1802
New York, NY10007
Dear Mr. O'Loughlin,
Thank you for your recent inquiry about the Nissan NV200, made accessible for
wheelchair users by the people of BraunAbility. Forty-three years after Ralph Braun
founded our company in order to achieve his own independence, we continue to serve
wheelchair users and their families with a passion that has made us the global leader in
mobility. You can find our story here: http://www.braunability.com/.
As advocates for public transportation for all Americans, including those with physical
disabilities, we share Cab Riders United's core principles:
• To improve passenger safety in taxis and for-hire vehicles through sound
engineering, rigorous testing and compliance with all u.s. federal regulations;
III Expanded service levels for all members of society, especially wheelchair users
who have been tragically underserved by our public transportation system for so
long, and;
• A commitment to a healthier environment through the production of vehicles
featuring state-of-the-art technology and low GHG emissions for a safer planet.
Our commitment to each of these principles is embedded in the wheelchair accessible
NV200 that has been developed with continual oversight by Nissan Motors, the New York
Taxi and Limousine Commission as well as Ricardo Plc., a global automotive engineering
firm under contract by the TLC to assure conformity with all federal safety regulations
and TLC rules. The wheelchair accessible NV200, after a comprehensive 36-month
development program involving all of the organizations captured above, is 100 percent
compliant with the National Highway Traffic Safety Administration's (NHTSA) Federal
Motor Vehicle Safety Standards (FMVSS) regulations. The vehicle was engineered to
expand taxi service levels for wheelchair users with safety, security and reduced
environmental impact. Below, please find specific answers to the questions that you
raised in your email of February 3, 2015.
Why Rear Entry Taxis in New York?
Currently, more than 580 wheelchair accessible vehicles (WAVs) are in service as yellow
cabs in Manhattan and virtually all of them feature rear wheelchair access/egress. There
are more than 970 WAVs operating in outer borough green cab fleets, and virtually all of
these also are rear-entry. In turn, all rear-entry cabs operating in New York feature a
ramp that stores in the vertical position when a wheelchair user is inside the vehicle.
Some of the reasons the New York WAV market is so heavily oriented toward rear-entry
functionality include:
• There are a large number of one-way streets in New York where
passengers wish to be picked up and dropped off on both sides
of the street. When the ramp is
located in the rear of the WAV,
wheelchair passengers are given
the same freedoms as any other
taxi user. In a side-entry WAV,
where the ramp is located on the
right side of the vehicle,
wheelchair users are forced to
either cross the street or enter
the vehicle in traffic. The adjacent
graphic shows the practical implications of these two WAV
configurations for New York taxi passengers.
• Because curb access is so limited on the
streets of New York, "double parked" taxis
are an unfortunate reality for passengers.
For wheelchair users, these conditions can
present an even more pronounced safety
risk. As shown at right, a rear-entry WAV
presents a more compact footprint in the
unfortunate situations when the driver
chooses to deploy the ramp in traffic.
2
As shown at left, all passengers ride safely
and securely in the same general cabin
area of the NV200, whether seated on the
bench seat or in their wheelchair.
Since WAY taxis were first introduced into New York City fleets more than 10 years ago,
accumulating many millions of miles in service since that time, the rear-entry design has
performed to the satisfaction of the TLC, federal regulators and taxi owner/operators who
provide transportation services to wheelchair users each day. These facts support the
conclusion that rear-entry taxis provide safe and reliable transportation for all New Yorkers.
When the NV200 ramp is in the vertical position, as shown below, it mates against the steel
frame of the vehicle itself, similar to the way a door closes against the vehicle frame. On its
pivot, the ramp cannot travel past the vertical plane because it mates against the vehicle
frame (a). Further, in the vertical position, dual steel latches secure the ramp to the vehicle
frame (b). Finally, the rear swing doors lock to the ramp providing an integrated door/ramp
system aft of the wheelchair user (c). To be clear, the ramp is not free-moving when in the
vertical position. It is designed to maintain a very rigid and stationary position while the
vehicle is in operation and meets all applicable safety standards.
3
NV200 WAY Restraint System
In your email, you reference that certain individuals have asserted that the wheelchair
restraint system in the NV200 WAY does not meet provisions of the Americans with
Disabilities Act (ADA). As a first principle, requirements for wheelchair restraints are
regulated under the Society of Automotive Engineers (SAE) J2249 standard, and not under
the ADA. The restraint system in the NV200 WAV is engineered to comply with and has
been certified to meet the requirements found in SAE J2249.
The photograph that you attached to your email depicted a concept vehicle built for auto
shows and demonstration purposes only. The vehicle, ramp and restraint system shown in
the photograph you forwarded were concepts only; they were never intended for
production and do not depict the vehicle, ramp or restraint system that is available for sale
in New York in 2015.
The restraint system in the NV200 WAY is manufactured by Q'Straint
{http://www.qstraint.comD, the world's leading supplier of vehicular restraint systems for
wheelchair users. Here is a link to an instructional video produced by Q'Straint that is used
by taxi fleets to train their drivers on the proper use of the system to secure wheelchair
passengers. Click on the image below to view this video.
The innovative and patent-pending restraint system in the NV200 WAY was developed by
Q'Straint and BraunAbility after extensive research with wheelchair users and advocates in New
York City. Through this outreach, we learned that one of the biggest safety risks present today
does not involve the design or functionality of the restraint system, but rather the failure of the
restraints to be correctly utilized in practice. Unfortunately, wheelchair restraints frequently
become lost or destroyed during the heavy duty cycles that taxis experience on the streets of
New York. When loose wheelchair restraints are missing from the taxi interior at the time the
wheelchair user is picked up, passenger safety can be severely compromised.
4
In the NV200 WAY, the restraints are permanently installed in the vehicle and cannot be
removed without tools. They are stored on retractors under the floor so they remain clean
and free of debris. They are easily accessed by the driver to provide a quick and a complete
four-point securement as provided for under SAE J2249. Further, BraunAbility is the first
manufacturer to affix a comprehensive, step-by-step instruction guide to the door of the
vehicle for driver reference in addition to the commonly included booklet instructions that
can be easily lost or misplaced.
Integrated Air Bag SafetySystems
Air bags also are a vitally important component of the NV200's safety promise. The vehicle
features a state-of-the-art passenger protection system, comprised of six (6) different air
bag modules (driver and front passenger dual-stage air bags, driver and front passenger
seat-mounted side-impact air bags plus twin roof-mounted curtain side-impact air bags).
Throughout the development of the NV200 WAY, the safety and security of both wheelchair
users and walking passengerswas the most important technical objective. Through the use
of air bags and a soon-to-be patented wheelchair restraint system that addressesone of the
greatest safety risks (restraints missing from the vehicle). we have engineered a system that
puts the safety of allpassengers first. This is a system that New York taxi users should
rightfully expect in a modern, 2015 model year vehicle.
In stark contrast, there is a vehicle some voices are promoting for taxi applications in New
York that employs just one, single, driver air bag. In this particular vehicle, the protection of
taxi passengers through integrated air bag technology is not found.
Rigorous SafetyTesting Protocol
The NV200 WAY is 100 percent compliant with all NHTSA regulations for motor vehicle
safety. Our rigorous testing protocol was carried out by a leading independent vehicle
testing organization, MGA Research (http://mgaresearch.comh a company with global
facilities that serves many of the world's largest automakers as well as BraunAbility. Our
testing regimen, completed over many months, employed automotive industry standard
practices in strict accordance with NHTSA's FMVSS regulations. We have tested to, and are
compliant with, the following FMVSS standards that are necessary for multi-passenger
vehicles to be sold in the U.S.
• FMVSS 206 Door Locks and Door Retention Components
Vehicle level sled test performed by MGA Research
• FMVSS 207 Seating Systems /210 Seat Belt Assembly Anchorages
Vehicle level test for 2nd row seating done internally and by MGA Research
5
• FMVSS 208 Occupant Crash Protection /214 Side Impact Protection /301 Fuel
System Integrity
Vehicle level (3 vehicles used) crash testing performed by MGA Research
All crash testing performed with Nissan OEM taxi partition in place
• FMVSS 302 Flammability of Interior Materials
Component level test performed internally in burn chamber
• SHED testingfor California Emissions
Vehicle level test to achieve an Executive Order (EO) from the Air Resources Board in
California
• 7,500 mile accelerated durabilitytest simulating 350,000 actual miles to evaluate the
structural integrity and mechanical longevity of the chassis, performed at
Transportation Research Corporation Inc., (http://www.trcpg.com/)
• SAE J2249 WheelchairTiedown and Occupant Restraint Systems
Assembly level sled test performed by MGA Research
• Static/Proof Load testingon ramp system performed internally per the American
with Disabilities Act, which requires a minimum proof load of 3 times the rated load
(800 Ibs x 3 = 2400 Ibs)
SuperiorEnvironmental Performance
The NV200 is a global vehicle platform engineered by Nissan Motors to meet the
requirements of the European, Asian and North American markets. The vehicle's impact on
the environment, particularly in the area of greenhouse gas emissions (GHG), is a vitally
important attribute because it is sold in markets where GHG emissions are regulated and
where customers value fuel efficiency with low vehicle emissions.
In order to achieve globally competitive emissions and fuel economy performance, Nissan's
vehicle development community selected state-of-the-art technology for the NV200, including:
• 2.0L DOHC 16-valve engine
• Continuously variable valve timing (CVVT)
• Direct ignition system
• Continuously variable transmission (CVT)
• Ultra Low EmissionsVehicle (ULEV)
6
Nissan's technology selection and systems approach to vehicle engineering have resulted in
one of the most fuel efficient and lowest GHG-emitting commercial vehicles available in the
world. According the U.S. Environmental Protection Agency (EPA), the NV200 ranks in the
top 5 percent of all vans sold in the u.s. market on GHG emissions.' In stop-and-go city
driving, the NV200 achieves 24 miles per gallon, making it one of the most fuel efficient
commercial vehicles in its class produced in the world today. The twin objectives of low
GHG emissions and excellent fuel economy are something we can all agree upon because
they are good for the environment and good for taxi operators who seek to minimize their
daily operating expenses. The people of BraunAbility applaud Cab Riders United for your
leadership on this issue by championing the need for taxis with reduced environmental
impact.
Unfortunately, there are voices promoting a vehicle for taxi service in New York that has a
highly detrimental impact on the environment. According to the EPA,2 this vehicle is among the
very worst performing in the U.S. market today, ranking in the bottom three percentile (3%) on
both emissions and fuel consumption in city driving. The agency gives this vehicle an
environmental impact rating of just two (2) on EPA's 10-point scale because it is among the 35
highest emitting vehicles of all 1,200 cars and trucks on the market. Some voices are promoting
a vehicle for taxi service that consumes88 percent more fuel and emits 88 percent more
harmfulemissions than the NV200. That'snearlydauble the emissions and double the fuel for
everyfare and everycityblocktraveledon the streets of New York.
With city fuel economy of just 13 miles per gallon, the vehicle that some voices are
promoting for taxi service in New York guzzles more gasoline and belchesmore GHG than a
2010 Hummer H3Ttruck. 3 Clearly, the use of such a vehicle in public transportation
represents the very worst sort of environmental back-sliding which we all wish to avoid. We
need taxis that reducethe fleet's environmentalimpact, not increase it.
1 http://www.fueleconomy.gov/feg/download.shtml
2 http://www.fueleconomy.gov/feg/Find.do?action=sbs&id=35854&id=35140&#tab2
3 http://www.fueleconomy.gov/feg/Find.do?action=sbs&id=29360&id=35140
7
Cab Riders United, TlC, Nissanand BraunAbility all understand that the city's vehicle choices
have the biggest impact on the fleet's overall contribution to climate change. The NV200
was engineered to create a safe, reliable and environmentally sound solution for New York
City's taxi fleet. Moreover, the NV200 WAV represents our commitment to an inclusive
public transportation system benefitting all New Yorkers. And we did it without
compromising safety and the environment.
We would be happy to answer any additional questions that you may have at your
convenience.
Sincerely yours,
For the People of BraunAbility,
/s/
Kevin B. McMahon
Executive Vice President
Sales, Marketing &Service
8
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I I
Home
About TLC
INDUSTRY INFORMATION I INDUSTRY NOTICES
Taxi of Tomorrow
TLC Rules and Local Laws
Court Administration
FOR Il'lf'ilEDIATE RELEASE
Industry Notice #05-30
October 25, 2005
Passenger Information
Licensing 2006 i"1ODELS APPROVED FOR USE AS NEW YORK CITY TAXICABS
Safety &. Emissions
The above-named vehicles do not require approval letters from Safety & Emissions.
These vehicles must meet all TLC Rules and specifications, including those listed
below:
The New York City Taxi and Limousine Commission (TLC) today announced the
authorization of the following model year 2006 vehicles for hack-up as New York City
medallion taxicabs. These vehicles are the only vehicles permitted for hack-up as New
York City Medallion Taxis, provided they meet all TLC Rules & Regulations:
2006 Ford Crown Victoria - Stretch
2006 Mercury f'ilariner - Hybrid
2006 Toyota Highlander - Hybrid
2006 Honda Civic - Hybrid
2006 Toyota Sienna CE
2006 Ford Escape '; Hybrid
2006 Toyota Prius - Hybrid
2006 Honda Accord - Hybrid
2006 Lexus RX400H
Commission Meetings
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Notices from the TLC
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1. All seating must be either leather or vinyl. If the front seats are equipped with
airbags, provisions must be in accordance with the manufacturer's
recommendations.
2. All flooring must be either vinyl or rubber.
3. The vehicle must be painted taxi yellow. (Dupont M6284 or equivalent)
4. All privacy glass must be replaced with standard tint and must have a light
transmittance of 70% or more.
5. For hack-ups of the Toyota Sienna I'linivan -- An exit warning system approved
by the TLC must be installed on the rear of the vehicle. Should the TLC change
the design of the warning light system in the future, you will be required to
install such a device.
6. Rear air conditioning/heating control(s) must be accessible and identifiable to
passengers.
7. If the vehicle is equipped with a roof rack, the center slides must be removed.
8. All other required taxi accessories must be installed to comply with the
specifications in Chapter 3 of the TLC Rules.
9. Power seats, power doors, 4-wheel drive and stability tracking devices are not
approved components for use in medallion taxi packages. The only exception to
this is for stability tracking in the case of approved hybrid-electric vehicles.
10. Vehicles must have less than 500 miles traveled at the time of initial hack-up.