MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS’ MOTION FOR A TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION This motion is on behalf of taxi drivers whose licenses have been illegally revoked by the New York City Taxi and Limousine Commission. Reacting to a legitimate concern, that minorities in New York have difficulty hailing yellow cabs, the City and TLC ignored its own rules, the law, and the Constitution. In doing so, it deprived many taxi drivers, including John Padberg, Mohammad Inam, and Rashid Ahmed, of their licenses and their livelihoods. Plaintiffs now move for a preliminary injunction to put an end to these abuses and to restore the licenses of the named plaintiffs and drivers similarly situated. Preliminary Statement In November 1999, the TLC, reacting to a movie star’s complaint, decreed that taxi drivers suspected of a “bias refusal” would have their licenses suspended summarily and, after a hearing, revoked altogether. The law did not and does not authorize either action, as administrative law judges for the New York City Office of Administrative Tribunals and Hearings (OATH) soon held. Rather than comply with the law, the TLC ignored the OATH rulings and started instead to bring refusal cases in its own courts. The agency then instructed its own judges how to decide the cases—in a way that contradicted both the law and the OATH judges’ rulings—as a matter of TLC “policy.” The TLC’s and the City’s actions violated the drivers substantive and procedural rights and should be preliminarily and permanently enjoined. STATEMENT OF FACTS In November 1999, Danny Glover complained that as a black man he had difficulty hailing a yellow cab. While this complaint is long standing—and no one denies it is legitimate and often true—the difference this time was a movie star was talking. The TLC made an equally loud response. Mayor Giuliani ordered “Operation Refusal,” what he called “an intensive undercover effort” designed to “root out bias or discrimination in the cab industry.” The TLC, for its part, announced a new scheme of penalties in which it would confiscate taxis, summarily suspend the license of any cabbie suspected of a a “bias refusal,” and later revoke that cabbie’s license altogether. (Mazarin Declaration Exhibits 1-2) Danny Glover’s own lawyer called the new enforcement action a “publicity stunt.” (Mazarin Declaration Exhibit 3) Stunt or not, the TLC’s action had devastating effect on untold numbers of New York City cab drivers who were forced out of work without the right to present evidence or a defense of any kind. The TLC’s action was unconstitutional and had no basis in law. The TLC’s own rules—Taxicab Driver Rule 2-50(b) and the related penalty provision, Rule 2-87(a)(1)-- clearly state the penalties for service refusal: a fine of $200-$350 for the first offense; a fine of $350-$500 (and a possible 30-day suspension) for the second offense; on the third offense within 36 months, the driver’s license shall be revoked. (For a copy of the relevant TLC Driver Rules see Mazarin Decl. Exhibit 4.) Rather than follow the law—or seek to enact a new law—the TLC announced that drivers accused of a bias refusal would have their licenses summarily suspended and their taxicabs confiscated—on the first offense. Drivers would be entitled to a summary “pre-suspension hearing” (after, in fact, they had already been stripped of their licenses on the street). On information and belief, the suspension has been upheld in every Operation Refusal case presided over by a TLC judge. The full hearings of the Operation Refusal cases, were as required by TLC Rule 2-87(h), held before the Office of Administrative Trials and Hearings (OATH). OATH is a separate city agency that hears cases from all city agencies and departments. Though the OATH judges (in all or nearly all cases) accepted the TLC’s version of the facts, they ruled in case after case against the TLC on the law. The TLC argued that they could seek revocation pursuant to Rule 2-61(a)(2) which prohibits actions “against the best interest of the public.” But at least a dozen OATH rulings rejected the TLC’s construction. The OATH courts unanimously held that the specific rule, Rule 2-87(a)(1), establishes the penalty—a fine—and that there was no legal basis for revocation. (For one such OATH ruling, see Mazarin Decl. Exhibit 5. Unlike TLC court rulings, OATH decisions are available to the public.) The OATH judges were not asked to rule on the validity of the suspensions prior to the revocation hearings. But the same reasoning dictates that these actions were also illegal. Even if the TLC made its initial argument in good faith, which seems dubious on its face, its reaction to the OATH rulings was deliberate and lawless. Rather than accept the opinion of the OATH Courts, the TLC, directed by McGrath-McKechnie and aided and abetted by Daus and McKay did three things: First, the TLC started to bring the Operation Refusal cases before their own judges rather than before OATH. Second, when lawyers for taxi drivers made motions that the TLC tribunals lacked jurisdiction, the motions were denied out of hand and without reason. Third, when one of their own judges ruled in favor of revocation, McGrath-McKechnie, presumably counseled by Daus, wrote a letter to the OATH Chief Judge Rose Rubin suggesting that all the OATH judges reverse their decisions to accord with that of a single TLC judge. The OATH judge, of course, rejected this application, calling it “most unorthodox” and “misplaced.” Judge Rubin also noted that the TLC commissioner’s arguments “were also made to the [OATH judges], considered by them and rejected.” (See Mazarin Decl. Exhibits 6-7) Nevertheless, on February 18, 2000, Lisa R. Rana the TLC Chief Administrative Law Judge wrote a memorandum to “All Administrative Law Judges,” with a copy to McKay, directing them how to decide refusal cases: “Please be advised that, upon a finding of a refusal, the Commission’s policy requires that both the Rule 2-50B and Rule 2-61A2 violations be sustained.” (See Mazarin Decl. Exhibit 8) This statement of “policy,” of course, completely undermines the TLC’s legal position that these are two separate violations with distinct penalties. TLC Rule 2-85(h) provides for OATH courts to issue a “Report and Recommendation” to the TLC. The TLC can then “accept, modify or reject” the ALJ’s report. It would seem that the commissioner desired OATH’s stamp of approval for her actions. When she did not get it, the TLC proceeded anyway. Since deciding to simply bypass the OATH courts, TLC judges have been routinely recommending the license revocation of drivers who are found guilty of a service refusal. The TLC judges offer no legal reason for doing so. Instead—per the instructions in Chief ALJ Rana’s memorandum—they refer to “the policy of the Commission that a service refusal is sufficient to establish [a Rule 2-61(a)(2) violation].” (For one such TLC judge ruling, see Mazarin Decl. Exhibit 9) Based on such decisions by TLC judges, McGrath-McKechnie told the Daily News she has now started to order the revocation of licenses on her own authority without even consulting the full commission. (See Mazarin Decl. Exhibit 10) John Padberg: John Padberg has been a licensed New York City Cab Driver since 1974. During that time he has transported roughly 160,000 customers. On February 15, 2000 at approximately 5:20 p.m., he was driving on Queens Boulevard heading towards the Queensboro Bridge. He saw a woman hailing a cab from three blocks away. She was hailing him frantically and she was a large woman and therefore quite visible. As he was passing the intersection of Queens Boulevard and 44th Street, he saw another man emerging from the side street, also hailing a cab. This man was black. Because he saw the large woman first, and because he had no time to stop for the man at the intersection, he stopped for the woman. (Padberg Aff. ¶¶ 1-2) The woman entered the cab and asked to go to Parsons Boulevard in Queens. But before he could drive off, the woman asked him, if he had seen the black man hailing him. Mr. Padberg said he had seen the man, but he told the woman, “I saw you first.” She asked again if he’d seen the black man. Again, he admitted he had, but he had seen her first and from three blocks away and that he had no time to stop for the black man. (Padberg Aff. ¶¶ 3-4) At that point, the woman identified herself as a TLC inspector Bonilla and demanded his license and rate card. The black man was her partner, Inspector Alston. Inspector Alston wrote two tickets, one for violating Rule 2-50B, the other for violating Rule 2-61A2. The inspectors confiscated his taxicab along with his license. The inspectors instructed him to call the fleet to inform the fleet manager where to pick up the taxi. (Padberg Aff. ¶ 4) Three days later, Padberg was afforded a “pre-suspension hearing” at the TLC. The hearing officer informed him and his counsel that “my hands are tied” and affirmed the suspension. (Padberg Aff. ¶ 5) On March 6, 2000, Padberg appeared for a hearing at the TLC. For the first time since being suspended three weeks before he was permitted to offer evidence. He testified that he saw the woman first and that he did not see the black man until it was too late to stop. The TLC judge ruled that the testimony of the TLC inspectors was credible and did not credit Padberg’s explanation for his actions. (Padberg Aff. ¶ 6) The TLC judge wrote, “With regard to the Rule 2-61A2 violation, it is the policy of the Commission that a finding of a service refusal is sufficient to establish that the respondent acted against the best interests of the public.” Thus, based on this TLC “policy,” and the testimony of TLC inspectors, the TLC judge affirmed both violations and recommended that Padberg’s license be revoked. (Padberg Aff. ¶ 7) Padberg learned of the judge’s “recommendation” when he received a letter dated March 24, 2000, from a supervising judge, enclosing the hearing judge’s report. The letter offered him 10 days to respond to the findings in the report. (Padberg Aff. ¶ 7) On March 31, Padberg submitted a response restating his version of events and noting his good driving and TLC records. This response also did not help. By letter dated May 9, 2000, defendant McGrath-McKechnie informed Padberg that she had reviewed his letter and character references submitted by his taxi fleet owner and a former passenger whose purse containing $200 he had found, safeguarded and returned. McGrath-McKechnie wrote, “While I do not take these testimonials lightly, it is the Commission’s policy to treat passenger refusals with the utmost concern” and she accepted the TLC judge’s recommendation that his license be revoked. (Padberg Aff. ¶¶ 8-9) McGrath-McKechnie did not consult the full commission in ordering revocation. Instead she acted on her own authority. In her letter to Padberg in which she informed him that his license had been revoked, McGrath-McKechnie relied in part on assertions about his “record.” Padberg’s record—which is, in any event, quite good—has no bearing on the TLC’s right to revoke his license for the instant offense. (Padberg Aff. ¶ 10) Rashid Ahmed: On December, 2, 1999, Rashid Ahmed was on midtown Manhattan when he pulled over for a cigarette break and turned on his “off duty” light. An undercover TLC inspector hailed him from half a block away. The inspector testified that Ahmed asked him where he was going. When the inspector asked to be taken to an address in Brooklyn, Ahmed replied that he was off duty. Although TLC rules have a specific provision relating to the misuse of the off-duty light, the inspector considered Ahmed’s action to be a refusal, confiscated his, license, his rate card and his taxicab and cited him for the offense. Ahmed was given a “pre-suspension” hearing before a TLC judge. Ahmed was not permitted to present evidence and his suspension was affirmed. After a full hearing, an OATH judge ruled that Ahmed was guilty of a refusal. The judge stated on the record that the refusal was, in his view, based on economics rather than race. The judge went on to rule that a fine was appropriate penalty and that the law did not authorize revocation. He said the TLC was being “overzealous in seeking this penalty [revocation].” To date, the TLC has not ruled on the OATH judge’s report and recommendation. To date, no judge who heard evidence as to his guilt or innocence has recommended or authorized his suspension. Nevertheless, Ahmed’s suspension has remained in effect for almost seven months. MOHAMMAD INAM: Mohammed Inam has been a New York City taxi driver for 9 years starting in 1991. Until his license was suspended he drove six or seven days per week. (Inam Aff. ¶ 1) On May 4, 2000, at approximately 11:15 a.m., Inam was driving on Central park South and Seventh Avenue heading west towards Columbus Circle where he was stopped at a traffic light. Another empty taxicab was to his right. (Inam Aff. ¶ 2) When the light changed, he and the other cabbie both moved forward to where there were two men hailing taxis. He felt he could not reach the first fare before the cabbie to his right. Therefore, he stopped for the second fare, a white man while the cab to his right stopped for the first fare, a black man. Inam believed that had he tried to pick up the first fare he might have caused an accident. (Inam Aff. ¶ 3) The man got in Inam’s cab and told him to go to Astoria. He started the meter and drove ahead. After one block, he told the cabbie to pull over and identified himself as a TLC inspector. He demanded his hack license, his rate card, and car keys. The inspector demanded to know why Inam did not pick up the black man. Inam tried to explain that had he stopped for the first fare, the other cab would have hit him. (Inam Aff. ¶ 4) The inspector ordered him to wait while he went to his car. He returned approximately 25 minutes later and handed the cabbie two summonses, one for violating Rule 2-50(b), the other for violating Rule 2-61(a). He also confiscated the taxicab and gave Inam instructions as to where the owner of the cab could retrieve it. (Inam Aff. ¶ 5) On May 22, 2000, Inam had a hearing at the TLC office on Rector Street. At that hearing, he was not allowed to testify or give his version on the events. A few days later, he received a letter from Lisa R. Rana, chief administrative law judge of the TLC, and a report from TLC judge Ari Goodman recommending that he remain on suspension. In early June, Inam received a letter dated June 5, 2000 from the TLC saying he would have another hearing on June 21, 2000. (Inam Aff. ¶¶ 6-7) As a cab driver, Inam routinely picks up passengers who hail him regardless of race. He does not refuse black people. He did not refuse anyone in this case. All he did was defer to a fellow cabbie and drive in such a way as to avoid an accident. (Inam Aff. ¶ 9) Inam has two young daughters. Laiba is 3 and one half. Sadaf is 2. My wife does not work and he has no other means of earning a living. To earn a living he needs to get his license back. (Inam Aff. ¶ 9) While we do not agree that the named plaintiff drivers are guilty on the facts, we do not challenge factual conclusions here. But we do note that here was no proof in any of these cases that the drivers were motivated by bias or that they are racists. Yet they are labeled racists by the TLC so the agency can prove its sensitivity to racial issues, and to a movie star’s concerns. Nor was there any proof that any the drivers are a threat to the “public, health, safety or welfare” as to justify continuing a suspension prior to a determination of a haring on the merits. While, the TLC’s impulse may have been understandable in initiating Operation Refusal, its methods are lawless and in violation of the Constitution. ARGUMENT For the plaintiffs to have a right to a preliminary injunction, they must establish (a) irreparable harm and (b) either the likelihood of success on the merits or sufficiently serious questions going to the merits and a balance of hardships tipping in the taxi drivers’ favor. Charette v. Town of Oyster Bay, 159 F.3d 749, 754 (2d Cir. 1998); Jackson Dairy v. H.P. Hood & Sons, 596 F.2d 70, 72 (2d Cir. 1979). Because this motion involves an effort to stay government action, plaintiffs will demonstrate a likelihood of success on the merits. See Velasquez v. Legal Services Corp., 164 F.3d 757, 763 (2d Cir. 1999); Charette,159 F.3d at 754. Section 1983: A. The TLC’s Illegal Penalty Scheme: 42 U.S.C. § 1983 creates a private right of action on behalf of individuals against every person who under color of state law subjects another to the “deprivation of any rights privileges, or immunities secured by the Constitution and laws” without due process of law. To establish a section 1983 violation, the plaintiffs must show that (1) their hack licenses are constitutionally protected property interests; (2) that the defendants acted under color of law and (3) that they were denied due process of law. Addickes v. Kress & Co., 398 U.S. 144, 150 (1970). In this case, the defendants took the plaintiffs’ licenses on the street without a hearing of any kind based simply on a TLC inspector’s suspicion. They then “affirmed” the license suspensions at a cursory hearing at which plaintiffs were not permitted to present any factual or legal defense. Weeks later, the TLC afforded the plaintiffs a fuller hearing. But even that hearing was presided over by a TLC judge who was ruling on an application by a TLC prosecutor enforcing a high-profile position of the TLC Commissioner and the Mayor of the City of New York. A hearing at which a single agency provides the police, the prosecutor and the judge in a politically charged atmosphere is insufficient to be termed due process. But even if the process were adequate, there would still be a constitutional violation because the law simply does not provide for license revocation under the offense alleged. As one OATH judge stated, the law is simple: “The [city code] is a particular legal provision and controls here. It does not permit license revocation for a first-time refusal offense.” The TLC lacks, no matter what hearing it provides, any authority for what it did to Mr. Padberg, Mr. Ahmed or the other drivers. The law as to refusals is stated by TLC regulations: “A driver shall not refuse by words gestures or other means, without justifiable grounds set forth in Section 2-50(e) herein, to take any passenger top any destination within the City of New York, the counties of Westchester or Nassau or Newark Airport.” The penalty for violating this rules is established by Local Law, and is stated in Taxicab Driver Rule § 2-87: (a)(1) Any driver who has been found to have violated a provision of Sections 2-34(a), 2-50(a), 2-50(b), 2-50(c) and 2-50(d) ... shall be fined not less than $200.00 nor more than $350.00. Any driver who has been found in violation of any of the provisions of such rules ... For a second time within a twenty-four month period shall be fined not less than $350.00 nor more than $500.00, and the Commission may suspend the driver’s license of such driver for a period not to exceed thirty days. The Commission shall revoke the driver’s license of any driver who has been found to have violated any of the provisions of Sections 2-34(a), 2-50(a), 2-50(b), 2-50(c) and 2-50(d) . . . three times within a thirty six month period. This penalty provision was enacted by the City Council and cannot be superseded by agency regulations. It contemplates when a driver may be suspended—on the second offense—and when his license should be revoked—on the third offense. On the first offense, it contemplates a fine only, and no suspension. Nor does the law contemplate a summary, curbside suspension at any time. Yet the TLC has subjected at least a hundred drivers to automatic suspensions and has revoked the licenses of many drivers on the first offense. To justify what appears to be (and in fact is) lawless conduct, the TLC invented a theory that it was suspending and revoking licenses not pursuant to the rule prohibiting refusals, but to a rule, Taxicab Driver Rule 2-61(a)(2), which bars “act[s] of omission or commission . . . against the best interests of the public, even though not specifically mentioned by these rules.” Rule 2-61(a)(2) on its face does not apply to refusals, which are covered by Rule 2-50. Moreover, the remainder of Rule 2-61 speaks to criminal acts such as “fraud” or “larceny against a passenger,” concealing evidence of a crime, and using the taxicab to help criminals escape arrest. Given the clarity of the rules, and the fact that Rule 2-87 was based on Local Law, it would seem unlikely that the TLC’s argument that Rule 2-61 justifies immediate license revocation was made in good faith. In any event, the OATH judges quickly rejected it. OATH ALJ Donna Merris, for example, ruled, “Rule 2-61(a)(2) is a general provision that, by its own language, yields to the more specific rules regulating the conduct of drivers. The concluding phrase, ‘although not specifically mentioned in these Rules,’ indicates that this section regulates conduct not otherwise articulated.” As the OATH judges stated, this result is dictated by the long standing principle of statutory construction that where there is general rule and a particular rule in the same statute, the particular rule governs. General language such as that of Rule 2-61(a) does not apply to matters specifically addressed by another part of the enactment. People v. Lawrence, 64 N.Y. 2d 200, 204, 485 N.Y.S.2d 233, 236 (1984); People v. Mobil Oil Corp., 48 N.Y.2d 192, 200, 422 N.Y.S.2d 33, 38 (1979). This rule applies in the federal courts as well as in New York state courts. See Busic v. United States, 446 U.S. 398, 406 (1980); United States v. LaPorte, 46 F.3d 152, 156 (2d Cir. 1994) (“Under long-standing principles of statutory construction, a general section of a statue must give way to a specific one”); Weiss v. Cigna Healthcare Inc., 972 F. Supp. 748, 754 (S.D.N.Y. 1997). The absurdity of the TLC’s position is demonstrated by where it leads. Under the agency’s view, the TLC could seek to revoke the license of any taxi driver for any violation of TLC rules. Indeed, the TLC would be able to revoke the license of any driver for conduct that is not even a violation so long as, in the TLC’s view, the conduct is “against the best interests of the public.” This is the essence of arbitrariness, not law. The TLC and the individual defendants chose to ignore the language of the statute and the rules of statutory construction because they wanted a result that the law did not permit. When the OATH judges, not once, but at least 13 times, rejected their strained reasoning, they simply ignored the OATH judges. They did so first by purporting to change their procedures in a way that allows them to bring revocation cases before TLC judges rather than OATH judges. Second, the TLC proceeded to instruct its judges that Rule 2-61(a) charges, which the OATH judges had dismissed, would have to be sustained as a matter of TLC “policy.” The TLC memo dictating this policy demonstrates that the TLC judges are not permitted to make an independent legal judgment. It also devastates their position that the Rule 2-50(b) and Rule 2-61(a) are separate rules with distinct penalties. Finally, the commission proceeded to disregard the OATH judges and revoked the licenses of drivers who the OATH judges said not to revoke. While the law does not permit the commission to alter the OAT judge’s recommendation, it does not permit the commission to do so in a way that is outside the law. It is important to note that the OATH judges are not pro-taxi driver. In fact, in every case, the OATH judges found for the TLC on the facts and ruled that there had been a refusal in violation of Rule 2-50. But the OATH judges, who are independent of the agency bringing the charges, made the only reasonable ruling on the law, namely that Rule 2-61(a) did not apply and that the TLC had no legal authority to revoke a taxi driver’s license for a first-time refusal. A license, such as the hack licenses at issue here, is a form of property which the state cannot take away without due process of law. Bell v. Burson, 402 U.S. 535, 539 (1971); U.S. Schware v. Board of Examiners, 353 U.S. 232, 238 (1957); New York State Trawlers Ass’n v. Jorley, 4805 Convoy Inc. v. City of San Diego, 183 F.3d 1108 (9th Cir. 1999); Horodner v. Cahn, 360 F. Supp. 602 (E.D.N.Y. 1973). The seizure of the drivers’ licenses without a hearing and the subsequent revocations without legal authority constitutes constituted a deprivation of their “rights, privileges, or immunities secured by the Constitution” within the meaning of Section 1983, Monroe v. Pape, 365 U.S. 167 (1961) As noted by the Third Circuit in Bello v. Walker, the “touchstone of due process is protection of the individual against arbitrary action of the government.” 840 F.2d 1124, 1129 (3d Cir.), cert. denied, 488 U.S. 868 (1988). Here, as discussed above, the TLC has ignored the substantive law in invoking a penalty the law does not authorize. This arbitrary, wrongful action is unlawful “regardless of the fairness of the procedures used to implement” it. ZINERMON v. BURCH, 494 U.S. 113 (1990) (citing Daniels v. Williams, 474 U.S. 327, 331 (1986). The TLC has also failed to provide, and indeed has removed, procedural protections and has insured that drivers do not get a fair hearing. First, drivers are stripped of their licenses on the street without a hearing of any kind. Second, they are afforded a “pre-suspension hearing” (after their suspension-in-fact) at which they are not permitted to present any legal or factual defenses. These hearings, upon information and belief, result in the suspension being affirmed every time. Third, the agency has altered its own procedures to insure that its own judges, and not the independent OATH judges, rule on the merits of the case. Finally, the TLC has instructed its judges to rule—that a 2-61(a) charge must be sustained in conjunction with a finding of a refusal—in a way that defies the law on its face. That the TLC judges take orders as to questions of law belies any pretense that they are free to rule in accordance with their independent legal judgment. The TLC’s conduct was not random or unauthorized. It was systemic an calculated to deprive plaintiffs of their rights. The creation of a federal remedy where procedures exist in theory but not in practice is a classic purpose of section 1983. Monroe v Pape, 365 U.S. at 173-74. Due process is a flexible concept. Mathews v. Eldridge, 424 U.S. 319, 334 (1976); Charry v. Hall, 709 F.2d 139 (2d Cir. 1983). But there are certain fundamental requisites: (1) notice of charges; (2) the opportunity to be heard; and (3) that the process used must be reasonably calculated to protect the person’s property interest. Boddie v. Connecticut, 401 U.S. 371, 378-79 (1971); Charry v. Hall, 709 F.2d at 145. Here, taxi drivers have no opportunity to be heard prior to losing their licenses. There is no reason that drivers suspected of having committed a bias refusal could not have been ticketed and given a hearing prior to any suspension. See ZINERMON v. BURCH, 494 U.S. 113. At the so-called “pre-suspension hearings” drivers are not permitted to present their defense to the charges and therefore provide no meaningful protection. When drivers are granted a hearing, often months later, it is before judges who are employed by the same agency bringing the charges and which has made the finding of “racist” cabbies a political priority. Yet even these judges are not permitted to make an independent finding on the law as they have been instructed to adhere to TLC policy. When the commissioner of an agency has publicly stated her view that refusals require revocation, it is unreasonable to expect that a judge employed by that agency will rule otherwise. At least as to penalty, even the full hearing on the merits is a sham. The fact that the TLC judges are compromised as to their ability to make independent conclusions of law also taints their ability to find facts. By the nature of the offense, a taxi driver will rarely have anyone other than himself to testify on his own behalf. The case invariably comes down to what the driver said to the inspector or whether he could reasonably have been expected to stop for an undercover officer who claims to have hailed him. The cases turn on whom the judge believes, the driver or the TLC inspector. Almost always, the judges side with the inspectors. While this fact alone does not mean that the drivers have been deprived of due process, it does point out the need for a fair and impartial forum for weighing evidence. B. The TLC’s Failure to Adhere to Its Own Procedures: The TLC’s new procedures for adjudications stated in Title 35 of the Rules of the City of New York require that drivers subject to an “emergency action” suspension receive a “revocation proceeding” within 5 days (Rule 8-16). (Mazarin Decl. Exhibit 11). While Mr. Padberg did receive “pre-suspension” in three days, many drivers are made to wait much longer. Mr. Inam, for example, had to wait 18 days. The “pre-suspension” hearings, in any event, always result in an affirmation of the suspension and are not on the merits. Mr. Inam had to wait seven weeks for a full hearing. Mr. Padberg’s full hearing was three weeks after the incident. Mr. Ahmed was made to wait 11 weeks. Indeed, Mr. Ahmed’s suspension has gone on for seven months—even though the OATH judge in his case wrote specifically that “it’s been a long time since his license has been suspended and I feel that the matter should be reviewed and decided, finally, by the commission.” Nonetheless the TLC still has not ruled in his case. Mr. Inam, for his part, has been suspended for six weeks without any hearing on the merits. The TLC has no justification for summary suspension of drivers’ licenses. Even if suspension were justified, even if it were based in law rather than fiat, there is no reason drivers could not be given a prompt hearing. The TLC simply chooses not to provide one. There was no “emergency” here. There was only an arbitrary action by government officials who must be very sure they are right. Irreparable Harm: Drivers whose licenses have been revoked are deprived of their livelihoods. They cannot get their licenses back, even if exonerated, for many months. Many drivers who have had their licenses revoked or suspended pursuant to Operation Refusal have been driving taxis for many years and it is the only trade they know. This is the case with Mr. Padberg and Inam. Moreover, drivers whose licenses have been revoked are branded racists, though in most cases there is no proof of racial animus of any kind. The desire to rid the city of racially biased cabbies is, after all, the putative justification for the sting operation. In fact, many refusals—to the extent they occur—are based on an unwillingness to go to a certain destination (as in Mr. Ahmed’s case), a belief that trips to the outer boroughs are not lucrative, an instinct for self preservation (in a city where nine livery cab drivers have been murdered this year alone), or a simple mistake as to who hailed the driver first (as in Mr. Padberg’s case). Beyond the drivers who have lost their licenses, each of the more than 41,000 men and women who drives a yellow cab in New York City can now, per Operation Refusal, be stopped, accused of a service refusal, and deprived of their livelihood without a hearing at a moment’s notice. CONCLUSION For the reasons stated, this Court should enter an order (a) temporarily restraining and preliminarily enjoining defendants from summarily suspending the licenses of taxi drivers based on allegations of service refusal, (b) barring defendants from revoking or seeking to revoke the license of taxi drivers for a first or second refusal violation, (c) requiring that all taxi driver licenses suspended or revoked based on a first refusal offense be immediately reinstated, and (d) granting such other and further relief as the court deems just and proper. Dated: June 20, 2000 New York, New York
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