Taxi of Tomorrow remains (at least) a day away

As has been widely noted by now, the TLC's "Taxi of Tomorrow" regulation has been invalidated by a New York State Supreme Court justice with the improbable name of Shlomo Hagler. Article on the ruling are here, here, and here.

The case is called Greater New York Taxi Ass’n, et al. v. New York City Taxi and Limousine Commission Limousine Commission, et al., 101083/2013 (October 8, 2013). The ruling invalidated the “Taxi of Tomorrow” program on the grounds that the regulation exceeded the TLC’s statutory authority and that in enacting the regulation the TLC violated the separation of powers doctrine. 

The Taxi of Tomorrow regulation would have mandated that medallions owners purchase a specific make and model of automobile (the Nissan NV200) that had been designated by the TLC as the Official Taxicab Vehicle. It was enacted after substantial public discussion, an online poll as to the public's preference and formal notice and comment in September 2012. After an earlier ruling invalidated part of the rule on the ground that it did not permit the use of hybrid taxis, the rule was amended.  Now the the entire program has been thrown out.

The court analyzed whether the TLC had been delegated authority to enact such a rule by its enabling statute, the City Charter. In its review, the court found that “the purpose of the TLC was clearly defined” and that the Charter “enumerated authority to set ‘standards of service, standards of insurance and minimum coverage; standards for driver safety and design; standards for noise and air pollution control; and to set standards and criteria for the licensing of vehicles, drivers and chauffeurs, owners and operators engaged in such services.’” The court then concluded that the power to compel medallion owners to purchase a specific automobile does not exist in the City Charter.

The court further found that the TLC rule unlawfully impinged on the authority of the City Council to mandate the type of cars that could be used as taxis (if there was to be such a mandate at all). The TLC was not exercising a “typical administrative ‘interstitial’ rule-making function” such as its historical role of setting technical standards for taxicabs. Instead, it wrote on a clean slate, “creating its own comprehensive set of rules without benefit of legislative guidance.”

This is just the latest effort by Mayor Bloomberg and his (theoretically independent taxi commissioners) to dictate the type of vehicle that taxi owners might purchase. First, the mayor tried to force the industry to buy hybrid vehicles, not in so many words by through a minimum gas-mileage regulation. That ruling was held invalid on the grounds that only the Congress could dictate gas mileage.  Then Bloomberg pushed through the Taxi of Tomorrow, which ironically would have prevented the use of hybrids. 

The city has said it will immediately appeal. But for now, we are back to the traditional regime, where, in Justice Hagler's words the New York City taxi fleet "comprised various makes and models of

vehicles made by different automobile manufacturers. These makes and models were then modified or 'hacked-up' for use as taxis."  The TLC set the specific standards for cars that could be employed as taxis and the medallion owners were given the freedom to purchase any make or model of vehicle from any manufacturer who met those standards.

Only recently has the TLC decided it was smart enough to design cars. But it seems it was too smart by half. Nissan, meanwhile, says it will still roll out the NV200, and that it's a great car. Maybe so, but without its state-mandated monopoly, it will be a tougher sell.

Are Green Cabs game changers? Depends if anyone wants to drive them.

The Times has touted the green cab often enough, as have others such as this piece from something called the New York Business Journal.  According to the Times, the TLC says 200 such cabs are on the road, which is a far cry from the 18,000 planned. I have heard scuttlebutt that the drivers are slow to sign on to drive the greenies despite some hard sell from the city. Why not? First, because it turns out the cruising for fare in the outer boroughs is not such a good business plan-- as yellow cab drivers have known for years. Second, there are already plenty of cabs cruising the the green areas. These are traditional livery cabs, which have long accepted street hails, in the outer boroughs and in Manhattan as well, albeit illegally. So why would a livery cab driver pay to buy a cab, obtain a license and hack it up with green pain and mandatory technology-- which, all told could cost $10,000-- when he is already doing what the green license allows. It seems like a lot of drivers have decided there is no good answer to this question.

Aussie wants "justice" and thinks he got it

Here is an article from an Australian website about how to "get justice" against NYC cabbies.  Of course it gets it somewhat wrong when it says the cabbie "pled guilty." The $100 fine means the cabbie agreed to pay in exchange for the TLC not bringing charges at all. This practice, now common, is of dubious legality.

Following the Money that follows the Pols

The taxi industry is fraught with both litigation and regulation. So it's not surprising that industry players are lining up behind various candidates for mayor of the city of New York.

The Wall Street Journal has a nice story about various sectors of the industry are picking sides. Livery cab owners are backing Bill Thompson, who backs the outer borough taxi plan.  Yellow cabs are backing Public Advocate Bill de Blasio, who opposed the plan, or at least the way it was passed without the City Council.  Some yellow fleet owners backed Anthony Weiner early on. Considering what's happened since is kind of like catching a cab and realizing a block later that you forgot your lunch box and had to go back home.

In NYC, cabbies are still looking for a hand

In New York, the hand is still mightier than the app. This is according to a report in the Times that says few riders have taken to taxi hailing apps, now available as part of a TLC pilot program. And when they try to use them, they rarely work.    

Here is the key finding as reported in the paper of record:

According to data from the city’s pilot program for taxi-hailing smartphone apps, the revolution has yet to arrive.

Over four weeks in June, the first month of the program, trips arranged by smartphones accounted for less than one-quarter of 1 percent of all yellow taxi rides. Of the roughly 117,000 requests made using the apps, only 17 percent were “successful,” the city said — meaning a driver and rider eventually found each other using the program.

Of course, apps may be more useful in cities where there are fewer cabs and fewer passengers.

Despite the TLC's vaunted efforts to get cabs to the outer boroughs, 85% of the app attempts came from Manhattan, where the most of the passengers are and, therefore, most of the cabs are.

"the reality is we don't need these taxi hailing apps," says Eugene Weixel

Loyal "Taxis and the Law" blog reader has an excellent piece in the Guardian on the danger and folly of taxi hailing apps. Here is the link, with some highlights below.

Well done, Eugene!

"Let me put it this away: anyone can be both a data input clerk and a taxi driver. If I have a data input job during the week and I also drive a taxi on weekends, this wouldn't concern the public. Were I to combine the two occupations and do them simultaneously, it should be a matter of serious concern. If 14,000 drivers (or more at peak times) are being encouraged to do this with the approval of the municipal authorities, it is an even greater concern. Yet this is exactly what is happening in New York City, and the local media and mayoral candidates have little to say about it and likely are oblivious to it."
***
"At those times taxis and livery cars are really scarce (such as when it's raining or at shift change time) Hailo is still useless. Why would a taxi driver pass up people waiving and whistling and shouting to him in order to answer a Hailo call? The only reason to ignore potential customers and answer Hailo is if a driver is trying to impress the Hailo management. 

Hailo instituted a point system for drivers – complete with little badges of bronze, silver and golden colors and other "recognition". But let's be honest, drivers do this for money, not badges."

Maybe not today, Maybe not tomorrow either.

Opponents of Mayor Bloomberg's Taxi of Tomorrow project filed suit to block the initiative Wednesday, with just months before the first of the new Nissans are to supposed to hit the New York City streets.

The Wall Street Journal reports that the case was filed by the Greater New York Taxi Association, which is the smaller of two fleet owner group, and Evgeny “Gene” Freidman, who recently got into  a shouting match with Bloomberg, or so it has been reported at Madison Square Garden. The suit filed  in state court in Manhattan charges that the plan to force virtually all yellow taxi medallion owners to purchase a single vehicle oversteps the mayor’s authority under the law.

Freidman's real issue is that he is the largest owner of hybrid cabs and hybrid cab medallions. He likely wants to assure that his favored vehicles will remain taxi street legal, Even though the TLC has said it will allow exceptions for hybrids, Freidman's cabs could be overshadowed by the the "Tomorrow" cabs, that is if tomorrow ever comes.

Freidman appears to be relying on a a decision issued just yesterday that upheld the striking down of Bloomberg's ban on big-gulp sodas. 

Hailing Apps are Hitting the Street

Taxi hailing apps from various companies, including Uber, Hailo and Taxi Magic are now in use in NYC, according to the New York Times.  The use of these apps in Gotham (and elsewhere) as caused legal wrangling.  In New York, the problem essentially has been whether an app-hail is a street hail (which only a yellow taxi can do) or a ride "by pre-arrangement" (which only livery cabs can do).  Right now, the TLC is allowing app use pursuant to a pilot program.

ACLU says taking of Indianapolis Cabs Violates Constitution

Cab Drivers File Lawsuit Against Speedway Police Department

Last updated on Tuesday, July 2, 2013

(SPEEDWAY) - Several taxi drivers have filed a lawsuit against the Speedway Police Department, saying their taxi licenses were seized without explanation on Indy 500 race day.

The ACLU of Indiana is representing some of the cab drivers in the class action federal suit. Legal director Ken Falk says the problem occurred on Main Street in Speedway after the race was over on May 26, as the taxis tried to pick up passengers who had been dropped off earlier in the day and who had arranged for pickup. "Police officers from Speedway came by and stopped approximately 80 taxi drivers. They asked to see their taxi licenses - their license to operate a taxi - and then took them," Falk said.

Falk says the drivers were not given an explanation as to why their taxi licenses were taken, and since race day is on a Sunday, they weren't able to get their licenses back for at least two days. "When they went to pick up their licenses, most of them received $50 parking tickets, although they had not been parking. The problem is that you can get a parking ticket, but the penalty cannot be that police seize your license," said Falk.

The Speedway Police Department hasn't seen the lawsuit yet. "We can't comment on the lawsuit until we are served and it crosses someone's desk," said Speedway Lt. Trent Theobold.

The lawsuit claims the department violated the 4th Amendment's ban on unreasonable search and seizure as well as the due process clause of the 14th Amendment. "The state has no business seizing your property without cause and certainly has no business taking something as important as the license you use for your livelihood without some sort of process," said Falk.

Ride Shares

Ride sharing, a new app-aided phenomenon, may prove an existential threat to the taxi business. Ride sharing allows people who need rides with ordinary drivers willing to provide them.  The drivers may do so when they have spare time and an empty car.  But they are not taxis and are not regulated like taxis.

Here is a piece from LAist describing a protest by the city's taxi drivers against ride-sharing.

Taxi Drivers are oft-hated, and this time it's a crime

Yesterday, a film student (of all things)  pleaded guilty to attempted murder as a hate crime on Tuesday for stabbing a New York City taxi driver in what prosecutors said was an anti-Muslim attack.

Michael Enright, 24, faces 9-1/2 years in prison when he is sentenced later this month.

After hailing a taxi in Manhattan one evening in August 2010, Enright asked the driver, Ahmed Sharif, whether he was a Muslim, according to prosecutors.

When Sharif replied that he was, Enright slashed Sharif's throat with a knife, stabbed at his face, arms and hands and yelled anti-Muslim comments, prosecutors said.

Sharif survived the attack, and later he appeared with Mayor Michael Bloomberg at a news conference where he said he believed he was stabbed only because of his religion.

While any crime of this nature is shocking, the hate behind it is not.  Muslims are often held in contempt-- we know that.  But so are taxi drivers, and they are often the victims of violence, far more than almost any other profession in American.  Even good liberals who'd never say anything derogatory about an ethnic group often have little difficulty denouncing cab drivers.

At it's root is (a) some cabbies do provide bad service; and (b) people could have 19 good taxi rides, but if the 20ths is bad, that's the one they'll remember and talk about.

I've heard it again and again.  It hurts them on the streets, and it hurts them in the courts.

Here is Reuters on the Sharif case.

For a discussion of how the NYC Taxi and Limousine Commission actually encourages an irrational fear of of taxi drivers, click here and read pages 19-23

NYC Can Give Apps a Try

On June 6 (the same day a the big decision on the outer borough taxi plan) a state appeals court cleared the way for a pilot program that would allow taxi passengers to use smartphone apps to hail cabs.  

An earlier decision had blocked the plan, which will benefit venture capital rich companies like Hailo and Uber, both of which have systems that link taxi with waiting passengers.  The lawsuit had was filed by the Livery Roundtable, Black Car Assistance Corp. and several car-service firms sued the TLC in February, claiming the program violates city codes and may let drivers discriminate against racial minorities based on their names or locations, as well as the elderly, who are less likely to own smartphones.  

But as usual, the real issue is taxi turf. By tradition, and arguably by law, the right to accept a fare "by prearrangement" was the exclusive preserve of livery cabs.  Yellow cabs could accept street hails, but were not allowed to accept radio calls or fares by phone.  In their view, an app was just another way to call a cab and yellow taxis should not be allowed in that business.

The measure adopted by the New York City Taxi & Limousine Commission in December would run for 12 months and exempt areas such as airports that have provisions for taxi lines. While all licensed city cab drivers would be eligible, participation would be optional.

It will be interesting to see what happens on the street.  Will taxis pass by potential passengers with their hands in the on  their way to pick up a guy with a smartphone three blocks away?  If he does, can he be cited for refusing service to the customer he passes by? Will a cabbie who had accepted the hail by app blow it off if he sees a traditional hail closer at hand.  

Gothamist coverage

The Wall Street Journal coverage

Bloomberg's Outer Borough Taxis Back In Business

On June 6, the New York Court of Appeals, the highest court in NY state, unanimously upheld the Mayor Bloomberg’s plan to radically expand so-called street-hail taxi service beyond Manhattan, signaling a fundamental shift in New York City’s entrenched taxi culture.

The decision permits a plan, which had been held in violation of New York's "Home Rule" law, that will allow thousands of the newly designated taxis — painted green, rather than yellow — to accept street hails in the city's outer boroughs and in northern Manhattan.

The plan has been advertised as addressing an inequity by which  that has existed for decades by which folks outside Manhattan were left without taxis.  In fact, most of New York had cabs widely available.  But these were livery cabs that had to be called or "pre-arranged."  Only yellow taxis were permitted to accept street hails.  For the classic take by Howard Husock on the City's Three-Tier Taxi System, click here.

While the legal wrangling focused on whether the new law could be enacted by the state legislature rather than the NYC City Council, the real issue involves a turf fight between taxi companies.  Yellow cab owners figured that when they paid for a medallion, which can trade for as much as $1 million, they bought exclusive rights to accept street hails.  

The Court of Appeals took the unusual step of accepting the appeal straight from the trial court without requiring an intermediate appeal. Its decision upsets the apple cart in a major way.  It also ends a serious litigation losing streak for the NYC Taxi and Limousine Commission.

The Court of Appeals Decision

For The New York Times story on the decision: http://www.nytimes.com/2013/06/07/nyregion/plan-for-expanded-taxi-hailing-service-reinstated.html?_r=0

The NY Daily News http://www.nydailynews.com/new-york/18-000-cabs-street-hails-article-1.1364855

The Village Voice http://blogs.villagevoice.com/runninscared/2013/06/the_green_cab_i.php

The City Press Release

New Orleans Cab Companies Denied Cert

On May 20, the Supreme Court denied cert in Melancon et al v. City of New Orleans, a case coming out of the 5th Circuit challenging a massive re-regulation of the taxi industry in the Big Easy.

These ordinances banned the use of law enforcement vehicles, vehicles previously used as taxis in other jurisdictions, and "salvaged," "reconditioned," or "rebuilt" vehicles as taxicabs.  More ominously, it declared that driver's permits and the wonderfully named Certificates of Public Necessity and Convenience ("CPNCs"-- akin to medallions) are privileges and not right.  They required taxicabs to have a taximeter with Passenger Information Monitor (PIM) device, which generates detailed printed receipts and prohibits the use of handwritten receipts and they required all taxicabs to be fitted with global positions systems (GPS).

The taxi companies argued that the ordinances constituted a taking without just compensation.  They had prevailed in the District Court before Judge Fallon, who issued an injunction.  But the Fifth Circuit largely reversed.  With the Supreme Court denying the cert petition the case, which argued that the city's ordinances will likely wind up back in the district court, where some of the plaintiffs' factually specific claims still have some life.

The District Court decision is here: http://media.nola.com/politics/other/Doc%2044.pdf

The 5th Circuit Decision is here: http://www.ca5.uscourts.gov/opinions/pub/12/12-30921-CV0.wpd.pdf

TLC's Rate 4 Proof Rejected

Back in 2010, the TLC announced what it termed a major scandal. Taxi drivers were, according to then Chairman Matthew Daus, routinely ripping off passengers by pressing the “Rate 4” button on their meters, thus charging the higher out-of-town rate instead of the city rate.

Almost as soon as the TLC announced the scale of the crime—the TLC said it totaled $8.3 million—it doubled back. Most of the time, the TLC said, the Rate 4 button was pressed at or near the end of the trip, so there really was no overcharge.

But still, there were $1.1 million in overcharges left over, the TLC said, and it started a prosecution offensive, filing charges against hundreds if not thousands of taxi drivers. Many of these drivers were convinced to surrender their licenses. Others paid thousands of dollars in fines so they could keep driving.

But now, the basis for these prosecutions has been undermined and it appears that the TLC had no evidence to support its allegations. A ruling by the TLC Appeals Tribunal has held that trip sheet evidence—computer generated documents that show only where a trip started and commenced and that the Rate 4 button was pressed—was sufficient to establish a violation. The reason was that the driver might have pressed the button by accident, or he may not have charged the meter rate. The TLC never had any complaints by passengers; it had no other proof! Without some evidence that the driver deliberately charged an excessive fare, the charges had to be dismissed.

Even if the evidence was adequate, I believe it was gathered in violation of the Constitution because the TLC relied completely on GPS tracking using devices that drivers are required by law to keep in their cars. And the United States Supreme Court has ruled that GPS tracking is a search, which can only be used if the government has a search warrant.

While some drivers and their advocates (me included) questioned the basis for the TLC’s Rate 4 prosecutions from the very beginning, the TLC Tribunal did not rule with any certainty until March. That ruling came in a case brought against a long-time taxi driver named Hassan El-Nahal. El-Nahal, like many drivers could have paid a fine of $900 and gone back to work. But because he did not want to plead guilty to an offense he did not commit, he insisted on a trial.

At first, El-Nahal went to the TLC court without a lawyer, and he was convicted. I handled his appeal and the Appeals Board reversed his conviction because the TLC’s proof was inadequate. But the Board allowed the TLC to filed the charges again, not once, but twice. After El-Nahal was required to go to court a half a dozen times— with the TLC presenting the same trip sheets as its only evidence each time— the Appeals Board dismissed the charges outright. El-Nahal can now go back to work.

But the struggle wreaked havoc on his health and upset his relationship with his garage. Because his license was revoked several times before it was finally restored, the emotional and financial turmoil in him has been tremendous. But at least he is now back on the road. But what about all the drivers still facing charges?

And what happens to those who have been prosecuted and, for fear of permanent license revocation, reached a plea bargain with TLC prosecutors? I believe that charges still pending should be dismissed. And even plea deals can be rescinded because, in offering the deal, the TLC misled drivers and is guilty of a pervasive fraud on cabdrivers who agreed to a deal.

 During the legal process, the TLC told drivers that they had good evidence, evidence that had been sustained in court in a case against a driver named Cheema. But the fact is, this evidence had never been challenged or ruled valid because Cheema became a fugitive. Also, the TLC had much more evidence against Cheema than it did against other drivers. So the Cheema case was unique, not a model for prosecuting hundreds of other drivers.

Thus, based on the El-Nahal case and the Constitution, the TLC should restore the licenses it revoked and return the fines that the cabbies were forced to pay.