SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE DIVISION: FIRST DEPARTMENT
In the Matter of the Application of
Index No. 100071/21
THE New York City DEPARTMENT OF
BUILDINGS LICENSING UNIT, WILLIAM HINKLEY
This is an appeal from an Order denying appellant’s petition and dismissing the case in the Supreme Court of the State of New York, New York County. The said decision was rendered by Honorable Carol R. Edmead on June 9, 2021, after hearing the parties in a formal proceeding held on February 1, 2018.
Appellant, pro se, submitted a petition pursuant to Article 78 of the Civil Practice Law and Rules, with exhibits challenging an administrative decision rendered by Respondent on April 27, 2017. Respondents’ attorneys submitted a verified answer and a memorandum of law, dated October 13, 2017.
Appellant submitted a timely notice of appeal notifying this Court of his intention to appeal the Supreme Court’s, New York County (Honorable Carol R Edmean)’s, decision and order rendered on June 9, 2021.
WHETHER THE SUPREME COURT ERRED BY UPHOLDING THE ADMINISTRATIVE DECISION THAT WAS BASED ON ERRONEOUS EVIDENCE
PREVIOUS STATEMENT OF FACTS
On or about February 13, 2015, appellant applied for a Site Safety Coordinator’s License (“initial application”), in which application appellant provided a certification, sworn to on February 13, 2015, that his responses in the SSC Background Questionnaire were truthful, accurate and complete to the best of his knowledge. After providing the Department of Buildings (DOB) with the required proof sufficient to qualify him for such licensure, appellant was afforded a license to perform as a Site Safety Coordinator (SSC). On January 6, 2016, the DOB rejected appellant’s application for an SSC License. Its reason was that appellant had not provided sufficient evidence to show that he had the necessary experience to qualify for such a license. On May 10, 2016, the DOB approved his initial application, after he submitted the required Experience Verification Forms (EVF’s) from four of his former supervisors. Appellant’s SSC License expired on May 23, 2017. On April 3, 2017, he applied to renew the said license.
Appellant was required to submit a Background Investigation Questionnaire (BIQ) when first applying for an SSC License. In the said questionnaire, appellant was asked to list “all licenses, certifications, or registrations” he received, including “Driver’s Licenses and other trade licenses” and whether any were “suspended, restricted or revoked, or [has he] ever been censured or disciplined in connection therewith?” He answered “No.” Likewise, when applying to renew his SSC License, appellant was required to again submit a BIQ.
The BIQ for the renewal application presented the same question concerning whether any “licenses, certifications or registrations” he received were “suspended, restricted or revoked,” etc. He again answered “No” to that question. After first answering that particular question in the negative (“No,” as he had in his original application), he was persuaded to change his answer and answer “Yes”. So, in an amended application, he changed his answer from “No” to that question to “Yes”. However, when respondents attached exhibits to illustrate that appellant had answered this particular question differently, to attempt to demonstrate that appellant made a materially false statement to DOB, they did not include in their exhibits the portion of the BIQ renewal application that would demonstrate that he had answered that question in the negative (“No”), similarly to his answer in the initial application.
Relying on respondents’ version of the facts surrounding the circumstances which involved the revocation of appellant’s authorization as an OSHA outreach trainer, the lower court accepted respondents’ contention that the said authorization was the equivalent to any “licenses, certifications or registrations” the BIQ had inquired about. Therefore, that court expressed the view that appellant “cannot hide behind the semantics of the wording of a question,” assuming that he made such an attempt to avoid detection of allegedly having made “materially false statements to the DOB”. Moreover, the court concluded that the DOB’s position that appellant displayed a lack of “good moral character,” a requirement for the issuance of an SSC License, was justified. The court held that the DOB’s administrative decision was not irrational, arbitrary, and capricious.
THE SUPREME COURT ERRED BY UPHOLDING THE ADMINISTRATIVE DECISION THAT WAS BASED ON ERRONEOUS EVIDENCE
- Appellant duly qualified for the certification of a site safety manager certificate
Administrative Code § 28-401.4 provides that a license is required for certain activities within the City of New York. The said section states in that regard that: “[i]t shall be unlawful for any person to engage in or carry on in the city any business, trade or occupation regulated by this chapter [for occupations engaged in building work].” Accordingly, Appellant contends that he qualified to be issued with a DOB license. Administrative Code § 28-401.6 sets forth qualifications required of applicants for DOB-issued licenses and certificates of competence. It states, in pertinent part, the following:
All applicants for a license or certificate of competence shall be at least 18 years of age, shall be able to read and write the English language, shall be of good moral character, and shall meet additional qualifications that may be prescribed for the particular license or certificate of competence.
The department may refuse to qualify an applicant if it has found that the applicant violated any law, rule, or regulation of the department resulting in the suspension or revocation of a department issued license.
Appellant contends that he fulfilled the requirements governing the qualifications for issuance of a site safety manager certificate as set forth in Administrative Code § 28-403.2. Administrative Code § 28-402.2 states, in pertinent part that an applicant for the site safety coordinator certificate must satisfy that the applicant:
“(1) Is a registered design professional and has had two years of experience supervising major buildings …, and within one year prior to application has satisfactorily completed an 8-hour course approved by the department; (2) Has five years of construction supervision or construction safety experience within the 10 years prior to application, including three years supervising major buildings …, and within one year prior to application has satisfactorily completed an 8-hour course approved by the department; or (3) Has equivalent education and construction experience as determined by the department and within one year prior to application has satisfactorily completed a 40-hour course approved by the department.”
Appellant further submits that the requirements governing the qualifications for issuance of a site safety coordinator certificate, which are set forth in Administrative Code § 28-403.2, are less stringent that those governing the qualifications for issuance of a site safety manager certificate, which are set forth in Administrative Code § 28-402.2. Administrative Code § 28-402.2 states, in pertinent part that an applicant for the site safety manager certificate must satisfy that the applicant:
“(1)… is a registered design professional and has had three years of experience supervising major buildings… and within one year prior to application has satisfactorily completed a 8-hour course approved by the department; (2) Has eight years of construction supervision experience within the 10 years prior to application, including five years major buildings … and within one year prior to application has satisfactorily completed a 40-hour course approved by the department; (3) Has completed an 18 month on-the-job training program working on major buildings …; (4) Has equivalent education and construction experience as determined by the department and within one year prior to application has satisfactorily completed a 40-hour course approved by the department; or (5) Has three years of experience as a certified site safety coordinator and within one year prior to application has satisfactorily completed a 40-hour course approved by the department.”
Further, Administrative Code § 28-401.10 establishes the procedure to issue licenses and certificates to individuals and business entities engaged in work regulated by the New York City Construction Code. It states in relevant part, as follows:
“Issuance of license, plate and/or seal, where applicable, or certificate of competence. The commissioner shall issue a license or certificate of competence to each applicant who shall have submitted satisfactory evidence of his or her qualifications, and shall have satisfactorily passed all required examinations and investigations, provided that no license or certificate of competence shall be issued unless and until the applicant shall have paid the required fee and complied with such other and further requirements for the particular license or certificate of competence as may be set forth in this chapter and in rules promulgated by the department.” (Emphasis added).
Appellant submits that he met and/or qualified for all requirements for the issuance of the license. Accordingly, the basis for respondents’ denial of appellant’s renewal application is irrational, without sound reason and unsupported by evidence. Respondents referred to what occurred during the period of time appellant was an authorized person permitted to instruct individuals on OSHA safety regulations in the construction field. Respondents attribute to appellant the allegation of making materially false statements to both DOB and OSHA; however, appellant had not made any such statements. According to respondents, appellant demonstrated poor moral character when making the alleged materially false statements, by not mentioning to DOB that he had previously been authorized to instruct individuals on OSHA safety regulations and that said authorization was revoked. Moreover, they allege that appellant allegedly “list[ed] incorrect information on OSHA training cards.”
The statements referred to by respondents is appellant’s failure to mention in his original application the revoking of his authorization to instruct individuals on OSHA safety regulations, the changing of his answer to the question in the initial application and subsequent amended renewal application, and the alleged listing of “incorrect information” by appellant on OSHA cards. First, respondent had not conducted an independent investigation into this matter but instead relied upon letters appellant had submitted to them concerning the revoking of his authorization to instruct individuals on OSHA safety regulations. Furthermore, it was after he was instructed to change his answer on his renewal application to the question pertaining to the suspension of previously held “licenses, certifications or registrations,” did appellant change his answer. Importantly, respondents kept from the lower court the portion of the BIQ to the renewal application where appellant had answered the question identically in both the original and first renewal applications.
As a result, appellant found himself having to explain to DOB what actually occurred regarding the revoking of his authorization to instruct individuals on OSHA safety regulations. However, DOB had misconstrued the incident and instead mistakenly relied upon it to mischaracterize appellant and attribute to him the making of materially false statements. Both of which are the furthest thing from the truth.
Because of DOB mistakenly attributing these negative and false traits to appellant, and using them to disqualify him from renewing his SSC License, he has been required to initiate a CPLR Article 78 proceeding to correct this matter. In light of the foregoing, it is evident that Respondents unlawfully rejected Appellant’s application.
- The Court failed to observe that the Department of Buildings had abused its discretion
“[T]he issuance of a license is an exercise of discretion” Testwell, Inc. v New York City Department of Buildings, 80 AD3d 266, 274 [1st Dept 2010]. Further, as this Court is aware, the type of question that may be raised in a CPLR article 78 proceeding is “whether a determination was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion”. CPLR 7803  (Emphasis added).
“Arbitrary action is without sound basis in reason and is generally taken without regard to the facts”. Matter of Pell v. Board of Educ. Of Union Free School Dist. No.1 of Towns of Scarsdale & Mamaroneck, Westchester Country, 34 NY2d 222. (Emphasis added).
Accordingly, the standard for judicial review is limited to whether the DOB’s decision denying appellant’s application for a license was arbitrary or capricious. See Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, 231 . A decision is arbitrary and capricious when it is made “without sound basis in reason and is generally taken without regard to the facts” id. The decision must be “supported by proof sufficient to satisfy a reasonable [person], of all the facts necessary to be proved in order to authorize the determination” id.
Although the issue of license eligibility is governed by regulation, the agency’s determination whether to grant a particular license application requires “a certain amount of discretionary judgment-making which courts will not disturb absent a finding that such judgments were arbitrary or capricious. Montanez v The City of New York Department of Buildings, et al., 8 Misc. 3d 405, 407 (Sup. Ct., NY Co. 2005), citing Matter of Pell v Bd. of Ed. of Union Free School Dist., 34 NY2d 222 (1974); see also Arrocha v Board of Educ. of City of NY, 93 NY2d 361 (1999). An action is considered arbitrary if is “is without sound basis in reason and is generally taken without regard to the facts.” Pell, 34 NY2d at 231.
“Once licenses are issued their continued possession may become essential in the pursuit of a livelihood. In such cases the licenses are not to be taken away without that procedural due process required by the Fourteenth Amendment. Accordingly, due process may prevent the revocation or suspension of a license without notice and a hearing.” Matter of Testwell, Inc. v. New York City Dept. of Bldgs, 80 A.D.3d 266 (Emphasis added).
Appellant asserts that respondents’ decision to not permit the renewal of his SSC License was arbitrary and capricious, resulting in an abuse of discretion. In lines 11-19 of page 4 of the proceedings at the lower court, the Court raised the question on the structure of Appellant’s application and its contents. The Court also questioned the Respondent DOB on the description of the job the SSC license. Appellant contends that this would have been the best opportunity for the Respondent to provide more clarity of their allegations. However, the Respondent gave misleading and false description to the Court, which misleading information led the Court to believe the function was training. Training is not the responsibly of SSC according to the BC3301.3. Further, the Respondent DOB only referred to lines 9-15 of page 8 of the document they filed. Besides, in lines 9 to 25 of page 9 of the proceedings at the lower court, the Court raised the question on respondent DOB’s Factual supporting evidence. The said respondent answered that it did not have the records.
The lower court therefore upheld an administrative decision that was improvidently made, whereas that court was not made aware of all of the circumstances surrounding the matter that was before it. Had that court been made aware of the entirety of the circumstances, it would have arrived at a different decision.
- The Trial Court abused its discretion
Under CPLR 5501(c), “The appellate division shall review questions of law and questions of fact on an appeal from a judgment or order… [T]here is a close affinity between questions of fact and questions of discretion, and the references in [the CPLR] to ‘questions of fact’…are routinely interpreted to include, as well, questions of discretion and exercises of discretion.”
The standard for judicial review is limited to whether the DOB’s decision denying appellant’s application for a license was arbitrary or capricious. See Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, 231 . A decision is arbitrary and capricious when it is made “without sound basis in reason and is generally taken without regard to the facts” id. The decision must be “supported by proof sufficient to satisfy a reasonable [person], of all the facts necessary to be proved in order to authorize the determination” id.
Appellant contends that the Trial Court abused its discretion by failing to consider Appellant’s case. Notably, the court upheld the Respondents’ allegations only based on the Respondents’ opinions, without factual evidence or any reference to law. The Court failed to evaluate or assess Appellant’s conduct for the past over thirty years.
In light of the foregoing, Appellant humbly submits that the Respondent Department of buildings (DOB) used the law to manipulate the Trial Court’s judge decision by entering false narrative and intertwining the requirement for the licensing of a trainer and superintendent, safety manager. Accordingly, Appellant humbly prays that this Court reverse the Trial Court’s decision, and as an alternative, remand this matter to that court for further proceedings consistent with gathering additional evidence before rendering a decision in this matter. Respondent (DOB) had no evidence or fact and submitted false and misleading information in an Article 78 proceeding.
|____________________________Tyrone Nichols 246 Saratoga AvenueBrooklyn, NY 11233(347) 894-1887 Tyronnichols15@yahoo.com Appellant, pro se|
Dated: July 15, 2021
CERTIFICATE OF SERVICE
The undersigned hereby certifies that he served a copy of the foregoing brief on counsel for the Appellee/Respondent by depositing a copy, contained in a first-class postage-paid wrapper or envelope, at an office of the United States Postal Service, addressed as follows:
[ENTER APPELLEE’S ADDRESS]
|____________________________Tyrone Nichols 246 Saratoga AvenueBrooklyn, NY 11233(347) 894-1887 Tyronnichols15@yahoo.com Appellant, pro se|
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