Matter of Reyes v New York City Dept. of Consumer Affairs

[*1] Matter of Reyes v New York City Dept. of Consumer Affairs 2005 NY Slip Op 51002(U) Decided on June 30, 2005 Supreme Court, New York County Stallman, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on June 30, 2005
Supreme Court, New York County

In the Matter of the Application of JOSE REYES, Petitioner,

against

THE NEW YORK CITY DEPARTMENT OF CONSUMER AFFAIRS, Respondent.



101797/05



For Petitioner:

Tatia L. Miller, Of Counsel

Derek Tarson, Of Counsel

Sally Friedman, Esq.

Legal Action Center of the

City of New York, Inc.

153 Waverly Place, 8th Floor

New York, New York 10014

(212) 243-1313

Debevoise & Plimpton, LLP

919 Third Avenue

New York, New York 10022

(212) 909-6466 For Respondent:

Michael A. Cardozo, Esq.

Corporation Counsel of the

City of New York

100 Church Street, Room 5-161

New York, New York 10007

(212) 788-0461

Gabriel Taussig, Esq.

Mark W. Muscheinheim, Esq.

Christina L. Hoggan, Esq.

Of Counsel

Michael D. Stallman, J.

In this Article 78 proceeding, petitioner challenges respondent's denial of his application for a home improvement license. Respondent New York City Department of Consumer Affairs found that petitioner was unfit to be granted a home improvement license due to, inter alia, circumstances surrounding his 1984 conviction of Attempted Murder in the Second Degree.

After respondent requested petitioner three times to explain the nature of his arrest, petitioner finally revealed the events of the crime. Petitioner had been hired as a hitman. In exchange for payment, petitioner agreed to take part in a plan to abduct the victim from his home, shoot him and leave him in his car. Pursuant to that plan, petitioner and two accomplices drove to Roslyn, Long Island and entered the victim's home. Pretending to be robbers, they threatened the victim's wife and abducted the victim. Petitioner, along with his accomplices, gagged and bound the victim, and put him in the trunk of his car. Petitioner and his accomplices drove the victim to Maspeth, Queens, where they opened the trunk; one of petitioner's accomplices shot the victim three times. They then shut the trunk, leaving the victim in the trunk and continued driving around. Thereafter, petitioner and the two accomplices again opened the trunk. This time, petitioner shot the victim twice. Petitioner and his accomplices left the victim in his car and drove away in another vehicle.

Pursuant to Administrative Code § 20-390, applicants for a home improvement license must be of good moral character. Where respondent finds that an applicant is "untrustworthy or not of good character," it may deny the applicant a home improvement license. Id. Moreover, under Administrative Code § 20-392, respondent may deny a home improvement license "if the applicant ...has been... convicted of [a] crime which, in accordance with article twenty-three of the correction law, would provide a justification for the commissioner to refuse to issue... such license." Similarly, New York Executive Law § 2965(15) permits an agency to deny a license based on an applicant's prior criminal conviction if done in compliance with Correction Law Article 23-A .

Correction Law Article 23-A sets forth the conditions under which an agency, such as respondent, may deny a license due to an applicant's criminal convictions and enumerates the factors that the agency must consider in reviewing the applicant's criminal history. Correction Law §§ 750-755. Pursuant to Correction Law § 752, a license application may be denied where "the issuance of [*2]the license or the granting of the employment would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public." Under Correction Law § 753, the agency, in determining such, must consider the specific duties and responsibilities necessarily related to the license sought, the bearing, if any, the criminal offense for which the person was previously convicted will have on his fitness or ability to perform one or more such duties or responsibilities, the time which has elapsed since the occurrence of the criminal offense, the seriousness of the offense, evidence of rehabilitation and good conduct and the public agency's legitimate interest in protecting the safety and welfare of specific individuals and the general public.

In considering petitioner's criminal history, respondent complied with Correction Law §§ 752 and 753 and considered the factors specified in Correction Law § 753 including, inter alia, the information provided by petitioner regarding his rehabilitation and good conduct and provided petitioner with an opportunity to submit additional documentation. Indeed, respondent requested that petitioner submit a "[1l]etter explaining the nature of the arrest. . .[a] Certificate of Disposition for [his August 18, 1978] arrest. . .[c]haracter or reference letters, [l]etters from past or current employers, [c]ertificates of completion of mental health or anger management counseling programs [l]etters from probation or parole officers." See letter dated June 28, 2004. Petitioner's submissions, bearing on his character and the nature of his arrest, were incomplete.

In response to respondent's request, petitioner submitted a Certification of Disposition for his 1978 arrest, a Certificate of Release from prison for his 1984 conviction, Certificates of Completion for anger management and peer training courses petitioner took while in prison, and a letter from his probation officer. Moreover, in response to respondent's request for character or reference letters and letters from past or current employers, petitioner submitted one letter from an Alternatives to Violence Project Coordinator regarding his character, and one letter from his employer, the Red Cross, which was addressed to petitioner, not respondent, and which did not address petitioner's character or fitness to possess a home improvement license, but rather expressed "gratitude. . .for [petitioner's] hard work. . .as a critical member of the September 11, Recovery Program team."

In response to respondent's request for an explanation of the nature of his arrest, petitioner submitted a two page letter which indicated only that "I was arrested in June 1983 for the attempted murder of Mr. Wachtler. I took responsibility for the crime and pleaded guilty to attempted murder and was sentenced to 8 1/3 to 25 years of incarceration." Petitioner failed to explain the circumstances of his criminal involvement until respondent requested the information from him two more times.

Respondent has a duty to protect the public safety and welfare. In light of the seriousness of petitioner's criminal conviction of Attempted Murder in the Second Degree and the underlying circumstances of a pre-meditated, meticulously planned contract killing, respondent had a reasonable basis for denying petitioner's application. The nature of the crime violent and coldly calculated, albeit two-decades old raises serious questions about petitioner's judgment, ethics and suitability to enter strangers' homes. Petitioner seeks a license to allow him to enter private homes as a contractor approved by the City of New York. His customers would be unaware of his background. When respondent requested petitioner to submit character or reference letters and [*3]letters from employers, petitioner submitted only one letter that actually addressed his character. Based on the foregoing, respondent rationally found that the submitted documentation was insufficient to show that petitioner was rehabilitated and fit to obtain a home improvement license.

The resume and character references that petitioner now offers (Exhibits 2 and 3 to the Petition) could have been submitted to respondent; in fact, petitioner deprived himself of the opportunity to have respondent consider the requested documentation. Because petitioner chose to submit only one character letter, he may not now submit additional evidence to ask this Court to find that, based on this evidence, in addition to the administrative record, that respondent's final agency determination was arbitrary and capricious. This Court is required to make its determination based on the evidence considered by the agency. See Featherstone v Franco, 95 NY2d 550, 554.

Contrary to petitioner's allegations, respondent's determination sufficiently detailed its consideration of the factors enumerated in Correction Law § 753. Even though an agency does not state in its written determination that it considered and evaluated each of the enumerated factors, it must be presumed, absent evidence to the contrary, that it considered the factors enumerated in Correction Law § 753. See Bevacqua v Sobol, 176 AD2d 1, 2. Moreover, the record, including the final agency determination which indicated that respondent applied the factors specified in Correction Law § 753 (see October 6, 2004 letter, para. 2) supports that conclusion.

Not only does the determination clearly list the factors considered, but unlike the agencies in the cases cited by petitioner, respondent both solicited and considered evidence of rehabilitation. Respondent sent petitioner a letter requesting that he submit information including character or reference letters, which could potentially demonstrate petitioner's rehabilitation and indicating that respondent in "determining whether to grant [petitioner's] license application, [that respondent ] . . . [would] consider the factors enumerated in § 753 of the Correction Law." See June 28, 2004 letter. By submitting to the agency what he did, petitioner chose not to have respondent consider the material he belatedly submitted to the Court on this petition.

Petitioner claims that his due process rights (see U.S. Const. Amend 14; NY Court Art. 1, § 6) were violated because respondent's determination was allegedly arbitrary and capricious. Petitioner has not met his burden of demonstrating that respondent's determination was arbitrary or capricious or contrary to law. Rather, respondent used a fair and rational process to consider petitioner's application according to law and had a rational basis for its determination. Petitioner received whatever process he was due under law.

Finally, petitioner has failed to establish that his equal protection rights were violated; he fails to allege or show that he was treated differently than any applicant who was similarly situated. Rather, petitioner conclusorily asserts that respondent violated his equal protection rights by denying his application based on his conviction.

The equal protection clause (U.S. Const. Amend. 14 and NY Const. Art. I, § 11) forbids the City from applying or enforcing an admittedly valid law "with an evil eye and an unequal hand, so as practically to make unjust and illegal discrimination between persons in similar circumstances." 303 W. 42nd Street Corp. v Klein, 46 NY2d 686, 693 (1979), quoting Yick Wo v Hopkins, 118 US 356, 373-74, 30 L. Ed. 220, 6 S. Ct. 1064 (1886). To prevail on such a claim, petitioner must demonstrate that (1) he was treated differently from other similarly situated individuals, and (2) such [*4]differential treatment was based on "impermissible considerations such as race, religion, intent to inhibit or punish the exercise of constitutional rights, . . . malicious or bad faith intent to injure a person" or some other arbitrary classification. Harlen Assoc. v Inc. Vill. of Mineola, 273 F.3d 494, 2001 US App. LEXIS 24808 at 8 (2d Cir. 2001). See also 303 W. 42nd Street Corp., 46 NY2d at 692.

Where, as here, petitioner is not a member of a protected class and a fundamental right is not implicated, the "evil eye" requirement necessitates a showing either that the differential treatment was "irrational and wholly arbitrary" or that it was motivated by malice or personal animus. Harlen, 273 F.3d 494, 2001 US App. LEXIS at 10-l2, citing Vill. of Willowbrook v Olech, 528 US 562, 565, 145 L. Ed. 2d 1060, 120 S. Ct. 1073 (2000). Thus, to prevail on a discriminatory enforcement claim, petitioner must show that there has been "uneven enforcement against a class that has been selected for some reason apart from effective regulation," 303 W. 42nd Street Corp., 46 NY2d at 695, or that respondent had an intent to injure him by denying his application. Petitioner has failed to make this showing.

The Court notes that respondent did not automatically deny petitioner's application based on his status as an ex-offender. Respondent reviewed petitioner's application in accordance with Correction Law §§ 752 and 753 and made its determination that he was not fit to possess a home improvement license based on the application, the paucity of supporting documentation, petitioner's criminal history and his explanation of it.

Petitioner was not treated differently than other applicants similarly situated. Respondent requests that all applicants having criminal records submit information regarding their records and bearing on their character and rehabilitation, and then considers the application in accordance with the law.

Accordingly, it is ORDERED and ADJUDGED that petitioner has failed to demonstrate that respondent acted arbitrarily, capriciously or contrary to law; the petition is denied and the proceeding is dismissed.

This constitutes the decision, order and judgment of the Court.

Dated: June 30, 2005 ENTER:

New York, New York

s/

MICHAEL D. STALLMAN, J.S.C.