Dep t of Health & Mental Hygiene v. Gad OATH Index No. 0005/17 (Aug. 3, 2016)

Transcription

1 Dep t of Health & Mental Hygiene v. Gad OATH Index No. 0005/17 (Aug. 3, 2016) In default proceeding, holder of mobile food vendor s license found guilty of making misrepresentations on his license application, being issued one or more Health Code and four or more Administrative Code violations over a two-year period, and failing to pay the fines imposed for the sustained violations. Revocation of respondent mobile food vendor s licenses recommended. NEW YORK CITY OFFICE OF ADMINISTRATIVE TRIALS AND HEARINGS In the Matter of DEPARTMENT OF HEALTH & MENTAL HYGIENE Petitioner -against- NASHAAT GAD a.k.a. NASHAAT MOHAMED Respondent REPORT AND RECOMMENDATION INGRID M. ADDISON, Administrative Law Judge Petitioner, the Department of Health and Mental Hygiene ( Department ), commenced this proceeding pursuant to section of the Administrative Code of the City of New York, sections 5.17 and 89.33(c) of the New York City Health Code ( Health Code ), and section 6-10(c) of title 24 of the Rules of the City of New York ( RCNY ). Respondent Nashaat Gad, a.k.a. Nashaat Mohamed, a mobile food vendor, is charged with: (1) making misrepresentations on his mobile food license application(s), (2) having been found guilty of one or more Health Code violations and/or four or more violations of various provisions of subchapter 2 of chapter 3, title 17 of the Administrative Code in a two-year period, and (3) failing to pay the fines and penalties imposed for the violations that were sustained against him (ALJ Ex. 1). See Admin. Code (a)(2) (Lexis 2016); Health Code 5.17(a) and 89.33(c) (Lexis 2015); 24 RCNY 6-10(c) (Lexis 2015).

2 - 2 - At a trial scheduled for July 29, 2016, respondent failed to appear. The Department submitted proof of proper service of the petition and notice of hearing on respondent by certified and regular mail at the addresses which he provided the Department on two different mobile food vendor license applications, and which were recorded in the Department s records as respondent s addresses (Pet. Exs. 1, 2, 3). See Admin. Code (Lexis 2016); Health Code 89.13(h) (Lexis 2015). Such proof satisfied the jurisdictional prerequisite for finding respondent in default pursuant to section 5.19 of the Health Code. Health Code 5.19(b) (Lexis 2015). The trial proceeded in the form of an inquest during which the Department relied on documentary evidence and the testimony of James Middleton III, Executive Director of the Department s Bureau of Food Safety and Office of Community Sanitation. For the following reasons, I recommend revocation of respondent s mobile food vendor s licenses. BACKGROUND In October 2008, respondent applied for a mobile food vendor s license. His name on the application was Nashaat Mohamed Gad. He presented an Egyptian passport which showed his photograph, a social security card issued in June 2008, and a New York State Department of Taxation and Finance Certificate of Authority with an assigned identification number to Nashaat Gad Mohamed Gad. Respondent listed his address as Street in Queens, New York. He was issued mobile food vending license number ( initial license ) on October 10, 2008, which was also identified in the Department s books under CAMIS number (Pet. Exs. 2, 6). Permits are valid for two years and may be renewed. Admin. Code (e) (Lexis 2016); Health Code 89.09(a) (Lexis 2015). Before a permit may be renewed, the licensee must provide proof that all penalties and fines for sustained or defaulted notices of violation issued to the licensee for Administrative Code and Health Code violations have been paid. Admin. Code (b) (Lexis 2016); Health Code 89.11(c) (Lexis 2015). Between June 2009 and October 2010, respondent was issued six Administrative Code and two Health Code violations, of which five were Class A violations. The Department presented a printout of the violations which included charges of failing to display a license or plate, failing to move after being given notice of exigent circumstances, failing to provide

3 - 3 - handwashing facilities, and failing to maintain personal hygiene (Pet. Ex. 8). At hearings before the Environmental Control Board ( ECB ), respondent defaulted on all but one of the violations. ECB sustained the violations against respondent and assessed penalties of over $2, Those penalties remained unpaid until October 4, 2013 (Pet. Ex. 2 at 2). Meanwhile, in December 2010, with the penalties against his initial license still outstanding, respondent applied for a new license in the name of Nashaat Mohamed (Pet. Ex. 3). As with his first application, respondent submitted his Egyptian passport. He also submitted an individual taxpayer identification number issued him by the Internal Revenue Service, and a New York State Department of Taxation and Finance Certificate of Authority with an assigned identification number which differed from the one submitted with his initial app lication. Respondent also listed an address that differed from the one previously submitted. Respondent was issued a second mobile food vending license number (CAMIS number ), with an expiration date of December 2012 (Pet. Exs. 3, 4, 7). Between April 2011 and December 2012, respondent amassed 40 violations of the Administrative Code and four violations of the Health Code, against license number (Pet. Ex. 9). Of those, 25 Administrative Code violations and the four Health Code violations were Class A violations. At hearings before ECB, respondent defaulted on all the violations which were sustained and assessed penalties of $33,890. To date, those fines remain unpaid. On October 4, 2013, respondent paid $2,355.43, to satisfy the outstanding fines assessed against his initial license number That sum included interest of $ (Pet. Ex. 2). Following satisfaction of that outstanding debt, respondent immediately submitted a renewal application for his initial mobile food vending license. On the renewal application form, respondent identified himself as Nashaat G. Gad, and on a separate form, handwrote an explanation that he was dropping Mohamed from his name because it had been excluded from his green card (Pet. Ex. 1 at encl. 2). In support, he submitted a copy of his Permanent Resident Card (the green card ) which was issued in August 2008, prior to his application for his initial license (number ). He also submitted his New York State driver s license issued in June 2013, and a new social security card issued in August The address he listed was the same as the one submitted on his application for the second license which he was issued 1 Under the City Charter, a failure to appear for a hearing on a violation is deemed an admission o f liability and is grounds for imposing the maximum fine allowed under the law. Charter a(d)(1)(d) (Lexis 2016); Health Code 89.33(d) (Lexis 2015).

4 - 4 - in 2010 (license number ). Respondent s license was renewed on October 21, 2013, with an expiration date of October 31, His new mobile food vending license showed only the Department s CAMIS number, that is, number (Pet. Ex. 7). Between November and December 2013, respondent was issued 11 Administrative Code and two Health Code violations against the renewed license (Pet. Ex. 8). The two Health Code violations, which included one for failing to protect displayed food from contamination, were Class A violations, as were eight of the Administrative Code violations. At adjudications before ECB, the violations were all sustained and penalties of $1,222 were assessed. ANALYSIS Respondent Concealed and Misrepresented Material Facts Petitioner charged that respondent made misrepresentations about his identity on his mobile food vendor license application in violation of section 3.19(a) of the Health Code (ALJ Ex. 1). Section 3.19(a) of the Health Code provides that: Health Code 3.19(a). No person shall make a false, untrue or misleading statement... on a certificate, application, registration, report or other document in paper, electronic or any other form or medium, required to be submitted or filed with the Department. Section (a) of the Administrative Code authorizes the commissioner to refuse to renew or to revoke a mobile food vendor s license if the licensee is found to have made a material false statement or concealed a material fact in an application for a permit to vend food from a vehicle or pushcart. Admin. Code (a)(1)(a). Petitioner s evidence overwhelmingly supports that in order to avoid paying the penalties on his initial license, which was necessary for him to be successful with a renewal application, respondent instead applied for a new license, and deliberately submitted a variation of his name on the new application, in order to hoodwink the Department and thwart the system. Thus, the charge is sustained.

5 - 5 - Health Code and Administrative Code Violations The Department charged that one or more violations of the Health Code and/or four or more Class A violations of the Administrative Code were sustained against respondent within a two-year period and that respondent failed to pay fines and penalties for the sustained violations. Class A violations are: [A]ll violations of the Health Code, the State Sanitary Code, these rules and the violations of the Administrative Code listed in subdivision (d) of this section where the licensee, permittee or applicant is found in violation as a result of a hearing on the merits or by default. 24 RCNY 6-10(a) (Lexis 2015). For the purposes of revocation or suspension of mobile food vending permits or licenses, or of determining whether such permits or licenses may be renewed or new licenses and permits issued, subdivision (d) enumerates the sections of the Administrative Code, violations of which comprise Class A violations. They include the following sections for which respondent received violations on multiple occasions under both licenses during each of the two-year periods of their duration, and which were sustained before ECB: sections: (failure to display mobile food vending license... ); (a) (Vendor on sidewalk that allows less than 12 feet as pedestrian path; or unit not at, or abutting curb); and (e) (Vendor within bus stop, within 10 feet of any driveway, or any subway entrance or exit, or any crosswalk at any intersection). 24 RCNY 6-10(d) (Lexis 2015). Petitioner s evidence, in the form of printouts showing the type of violations issued, the license against which they were issued, the date of issuance, and the outcome before ECB, was convincing and undisputed, and establish that respondent was issued one or more Health Code violations and/or four or more Class A violations within a two-year period for each of the licenses issued him. This charge is therefore sustained. The evidence further established that respondent failed to pay the fines sustained against license number (CAMIS number ) and that they remain outstanding. This charge is also sustained. FINDINGS AND CONCLUSIONS 1. Respondent was served with notice of the hearing and failed to appear.

6 The Department proved that respondent deliberately misrepresented his personal information in an effort to obtain a new mobile food vending license from the Department while penalties assessed for violations sustained against an initial license issued him were outstanding. Respondent s misrepresentation was in violation of Health Code Section 3.19(a). 3. The Department proved that over multiple two-year periods, respondent was guilty of one or more Health Code violations and/or four or more Administrative Code violations, and that he failed to pay fines imposed, in violation of Admin. Code (a)(2), Health Code 89.33(c), and 24 RCNY 6-10(c). RECOMMENDATION Section 556(c)(9) of the City Charter empowers the Department to supervise and regulate the food and drug supply of the city and other businesses and activities affecting public health in the city, and ensure that such businesses and activities are conducted in a manner consistent with the public interest and by persons with good character, honesty and integrity. Charter 556(c)(9) (Lexis 2016). Conduct that violates the Department s regulatory scheme may be grounds for suspension or revocation of a mobile food vendor license and permit. Admin. Code ; Health Code Specifically, misrepresentations in an application or the concealment of a material fact are grounds for revocation of the permit. Admin. Code (a)(1)(a); see also Health Code 89.33(a); Dep t of Health v. Ruby Reel, Inc., d/b/a Crown Fried Chicken, OATH Index No. 263/02 at 6-7 (Aug. 10, 2001) ( Any license applicant who cannot comply with orders and directions of the Health Department, which are issued to safeguard the public health, warrants a refusal to license.... ), adopted, Comm r Dec. (Sept. 25, 2001). Respondent s conduct in applying for a new license under an altered version of his name while fines were outstanding against a different license issued him was a deliberate attempt to deceive with which he was successful. This alone is sufficient grounds for revocation as it demonstrates respondent s deliberate attempt to flout the Department s regulatory scheme. See Dep t of Health & Mental Hygiene v. Sabet, OATH Index No. 2407/14 at 7 (July 14, 2014). The Commissioner may also revoke a mobile food vendor license following notice and a hearing at which the licensee is found guilty of one or more violations of the Health Code and/or

7 - 7 - four or more violations of the Administrative Code within a two-year period, and for failing to pay the fines imposed. Admin. Code (a)(2), (b); Health Code 89.33(c), (d); 24 RCNY 6-10(c). Respondent s accumulation of multiple Class A violations over a two-year period, which he failed to pay demonstrates his blatant disregard for the law. This provides another independent basis for revocation of respondent s license. See Dep t of Health & Mental Hygiene v. Bouabane, OATH Index No. 2353/15 at 5-6 (July 21, 2015); Dep t of Health & Mental Hygiene v. Sabet, OATH Index No. 2407/14 at 7 (July 14, 2014). Respondent compounded his disregard of the system by failing to pay more than $33,000 in fines amassed under license number (CAMIS number ). I therefore find that revocation of respondent s mobile food vendor s licenses (CAMIS Numbers and ) is appropriate and I so recommend. August 3, 2016 Ingrid M. Addison Administrative Law Judge SUBMITTED TO: MARY TRAVIS BASSETT, M.D., M.P.H. Commissioner APPEARANCES: CHRISTINA KANG, ESQ. Attorney for Petitioner No Appearance for or by Respondent