Opinion
100695/2018
11-07-2018
In the Matter of John KELLY, Petitioner, v. The CITY OF NEW YORK, New York City Department of Buildings, Respondents.
Glenn J. Fuerth, Wilson, Elser, Moskowitz, Edelman & Dicker LLP, 150 East 42nd St., New York, NY 10017, For Petitioner. Ellen Parodi, Assistant Corporation Counsel, Offices of Zachary W. Carter, Corporation Counsel of the City of New York, 100 Church Street, Room 5-179, New York, NY 10007, For Respondents.
Glenn J. Fuerth, Wilson, Elser, Moskowitz, Edelman & Dicker LLP, 150 East 42nd St., New York, NY 10017, For Petitioner.
Ellen Parodi, Assistant Corporation Counsel, Offices of Zachary W. Carter, Corporation Counsel of the City of New York, 100 Church Street, Room 5-179, New York, NY 10007, For Respondents.
Carmen Victoria St. George, J.
According to the petition, the facts are as follows: Petitioner John Kelly had been a licensed master rigger since October of 2009. He performed work in his capacity as project manager, senior project manager, and vice president of Helmark Steel, and as executive vice president of Falcon Steel. His master rigger's license was set to expire on September 30, 2015. For renewal of the license, petitioner had to take an eight-hour master rigger renewal course. In July 2015 petitioner attempted to satisfy the requirement, but the only two organizations which offered an approved renewal course — Total Safety Consulting (TSC) and City Safety Compliance (City Safety) did not offer the course that month. He signed up with TSC for the course several times in August and September, but each time the class was canceled due to insufficient enrollment. Therefore, petitioner could not take the course and complete his continuing education requirement by the date his license expired.
There was a twelve-month grace period during which petitioner could take the class and renew rather than seek reinstatement of his license. After repeated attempts at registration, petitioner finally took and passed the class on May 19, 2016. At this point, petitioner began to work on the other requirements for renewal. Among other things, petitioner had to take a drug test, pass a physical, and show that his insurance was up-to-date.
Unfortunately, petitioner did not complete these additional tasks by September 30, 2016, and his grace period expired. Therefore, when he completed his paperwork on November 30, 2016, petitioner applied for reinstatement of his license rather than one for renewal. As part of his application, petitioner was required to show that he had "lawfully engaged in the trade" (Petition, ¶ 13). The employment verification forms require that the applicant's supervisor provide details about the applicant's work.
On November 30, 2016, respondent the Department of Buildings (DOB), which issues the licenses at issue here, informed petitioner that it could not approve the application because petitioner had no supervisor to verify his work. Petitioner discussed this problem with DOB Deputy Commissioner Ari Wax in December, noting that as a licensed master rigger he had not needed supervision. Deputy Commissioner Wax recommended that petitioner reapply for the license, this time as a new applicant for the license. A new applicant must show that he or she had five years of practical experience within the seven years prior to his or her application. According to the petition, Deputy Commissioner Wax informed petitioner that he satisfied the requirements for a new applicant and that he could self-certify that he had performed the work in question. On December 14, 2016, therefore, petitioner applied for a master rigger's license as a new applicant. He passed the written examination on March 21, 2017, and he passed the practical examination on August 21, 2017.
Petitioner again submitted the documentation necessary for his background investigation; a prior attempt to do so failed because, despite Deputy Commissioner Wax's assurances, DOB rejected his self-certification. Petitioner submitted his self-certification for his work for Helmark and Falcon—from July 2001 to December 2010, and from January 2011 to June 2014, respectively, showing that he worked under supervision during this period until he became a certified master rigger. He also explained that he worked at W & W Steel Erectors, LLC (W & W), from July 2001 to December 2010. His supervisor from July 2001 to October 2009, Stanley Rybienski, had died, and therefore someone else from the company would certify on his behalf. He became a licensed master rigger in October 2009, and after that he supervised himself. In addition to his self-certification, petitioner provided verification forms signed by his employers. The vice president and chief engineer of W & W, Dominick D'Antonio, provided verification regarding petitioner's work at the company. Ron Wackrow, executive vice president of Related Co./Hudson Yards Const./N.Y. Tower Crane verified that petitioner worked for him from July 2014 to November 2017, when Mr. Wackrow signed the verification. Each of petitioner's supervisors noted that, as a master rigger—who, for the bulk of the period in question, had an effective license—did not need a supervisor and, in fact, supervised himself. Collectively, the documents showed that petitioner worked as a rigger from July 2001 until December 21, 2017, with plans to work on an ongoing basis thereafter. Petitioner submitted additional documents further verifying the dates he worked and the work he performed. Petitioner completed his submissions on December 21, 2017.
On January 11, 2018, DOB notified petitioner that it had denied his application. Its letter stated that qualifying practical experience "must [be] performed ... under the direct and continuing supervision of a licensed rigger" (see also Administrative Code § 28-404.1). Prior to the expiration of his license, he had been permitted to work unsupervised, the letter indicated. However, because his license had expired on September 30, 2015, the work petitioner performed without supervision from October 1, 2015 to December 21, 2017 did not qualify. This left him with four years and nine months of qualifying experience within the seven years prior to the submission of his application, which was six months shy of the requirement (citing Administrative Code § 28-404.3-1).
In its current papers, respondent notes that the letter — which stated that petitioner had qualifying work for four years and six months -- was incorrect.
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Petitioner submitted a letter appeal on January 18, 2018, in which he stated that respondent had miscalculated his work experience in that it should not have considered his experience prior to the date he completed his application. Commencement, he stated, is the date an applicant files his application form (LIC41)—which, in this case, was on December 8, 2016. Based on this date—or, alternatively, on the dates on which he completed the qualifying examination and his training programs—he had the requisite five years of qualifying work experience.
On February 6, 2018, DOB informed petitioner by letter that it would adhere to its original decision. In support, respondent cited the Administrative Code as well as section 104-1 (e) of the Rules of the City of New York (RCNY). The RCNY provision, which relates to the licensing and registration of those engaged in building work, states that "[f]or the purposes of qualification for licensure, ‘application’ refers to the documents submitted to start the background investigation." DOB could not evaluate petitioner's application based on the December 2016 filing date, the letter stated, because petitioner did not take the 30-hour training course until May 2017. Respondent's letter constituted a final determination by DOB. Subsequently, petitioner commenced this Article 78 proceeding challenging the determination.
In this proceeding, petitioner argues that the determination was irrational and that it is inconsistent with the prevailing guidelines. He notes that the City has disseminated a guide to obtaining a master rigger license (the Guide). The Guide states that an applicant must have five years of practical experience within the last seven years, but it does not require that the work must be supervised in all circumstances. Further, he reiterates the argument that DOB measured his work experience improperly. He contends that respondent's reliance on RCNY § 104-1 (e) is irrational because this language was adopted in early 2017, after petitioner filed his application. When he filed his application, petitioner argues, the Administrative Code, which requires that the applicant has obtained his or her five years of experience within the seven years preceding the application, and the Guide's requirement that the applicant certify in the LIC41 form that he or she meets this qualification governed. Furthermore, the LIC41 form required petitioner to declare that, "as of the date [he signed the] form, [he had] met all qualifications according to the NYC Administrative Code, applicable rules and regulations for licensure." Thus, he certified that he had the necessary work experience when he filled out the LIC41 form, he argues, and respondent was required to look at the seven years prior to that date. If respondent looked at the seven years prior to the date he filed the necessary background information, petitioner states, he would have to verify his eligible experience twice — that is, he would have to verify that as of the application date he had this experience, and also that as of the date he filed the papers necessary for the background review he had the required experience. According to petitioner, this is not rational. Petitioner seeks an order compelling respondent to issue the license.
In opposition, respondent stresses the discretion it enjoys in the implementation of its powers and that the applicable arbitrary and capricious standard requires courts to evaluate DOB's actions with extreme deference. Respondent states that it was rational to consider whether he had five years of acceptable work experience within the seven years prior to December 21, 2017. If it were to use the December 2016 date instead, respondent reiterates, the application would be denied based on petitioner's failure to complete the requisite coursework by that time.
DOB further contends that even prior to its amendment, 1 RCNY 104-01 (e) considered the application date to be the date the applicant submitted his background investigation documentation. Respondent states this is a rational interpretation of the pre-amendment rule because it is consistent with Administrative Code § 28-401.7, which states that "[e]very applicant shall commence the license application process with the department within one year of passing the examination for licensure and shall furnish to the department a completed license application within one year of submission of the first filing." Respondent points out that it credited petitioner for his unsupervised work during the period when he held his master rigger's license and states its decision not to credit him for his unsupervised work after the expiration of his license was appropriate. It states that because applicants generally work between the date they apply for the written examination and the date they submit the documentation necessary for the background review, it is not irrational to require them to have the requisite work experience on both dates. Respondent states the requirement is rational because "[i]f an applicant's work was not directly and continuously supervised by a licensed rigger, DOB would not be able to confirm that such an applicant is fully capable for taking on the perilous and extensive duties and responsibilities of a Master Rigger" (Mem of Law in Opposition, * 16). Respondent concludes that mandamus relief is not available to petitioner here, where a discretionary decision by DOB allegedly is involved.
In reply, petitioner notes that respondent should have considered that, pursuant to 28 Administrative Code § 404.1, petitioner did not have to work under a licensed rigger when he performed hoisting or lowering work. Instead, although Building Code § 3316.9.1 states that "[t]he hoisting or lowering of any article on the outside of any building in the city shall be performed by or under the direct and continuing supervision of a licensed rigger," it goes on to state that "3. In lieu of a licensed rigger, the hoisting or lowering of articles on the outside of a building may be performed by or under the supervision of a competent person designated by the contractor" under specified conditions which petitioner states have been satisfied. Petitioner argues that the rules at issue here do not give DOB any discretion, but rather gives petitioner "a clear legal right to the relief demanded" and "a corresponding nondiscretionary duty on the part of the administrative agency" (citing Matter of Flosar Realty LLC v. New York City Housing Auth. , 127 AD3d 147, 152 [1st Dept 2015] [Flosar] ).
Discussion
Initially, the Court notes that, contrary to petitioner's contention, "the issuance of a license is an exercise of discretion" ( Testwell, Inc. v. New York City Dept. of Buildings , 80 AD3d 266, 274 [1st Dept 2010] [regarding DOB's decision not to renew concrete testing laboratory's license following indictment of its sole shareholder and some employee's]; Matter of Montanez v. City of New York Dept. of Buildings , 8 Misc 3d 405 [Sup Ct NY County 2005] [finding that DOB's denial of master plumber's license was irrational where DOB added the condition, not contained in the governing rules, that applicants had to be under the direct supervision of a licensed master plumber during the period in question] ). Therefore, mandamus is not applicable here (see Matter of Maron v. Silver , 14 NY3d 230, 249 [2010] ; Flosar , 127 AD3d at 152 ).
Instead, the court applies the generally applicable standards and, if appropriate, remands the matter to the agency for further review. "[T]he standard for judicial review of an administrative determination pursuant to CPLR article 78 is limited to inquiry into whether the agency acted arbitrarily or capriciously" ( Arbuiso v. New York City Dept. of Buildings , 64 AD3d 520, 522 [1st Dept 2009] [denial of application for reinstatement of plumber's license]. The decision is arbitrary if there is no "sound basis of reason" or if the decision is made without "regard to the facts" ( Resto v. State Dept. of Motor Vehicles , 135 AD3d 772, 772 [2nd Dept 2016] [denial of application for new driver's license] ). Courts uphold an agency's determination if it has rational support (Matter of Peckham v. Calogero , 12 NY3d 424, 431 [2009] ). A court "may not overturn an agency's decision merely because it would have reached a contrary conclusion" (Matter of Verbalis v. New York State Div. of Hous. & Community Renewal , 1 AD3d 101, 107 [1st Dept 2003] ). A court should grant a petition, on the other hand, if the respondent acted irrationally or if its interpretation of the law or an abuse of its discretion (e.g., Sullivan v. Miele , 226 AD2d 308 [1st Dept 1996] ; Matter of Babino v. Dept of Citywide Admin. Servs. , 2011 NY Misc LEXIS 2904, 2011 WL 2516748, 2011 NY Slip Op 31624 [U] [Sup Ct NY County 2011] ).
Under the circumstances of this case, the Court concludes that respondent abused its discretion when it denied petitioner a master rigger's license. The Court notes that, as respondent states, it is rational for DOB to deny a license where the applicant has not shown that he or she has the five years of requisite experience (see Maroti v. Hirst , 91 AD3d 541, 541 [1st Dept 2012] ). As respondent correctly emphasized, however, it had the discretion to review this requirement in light of the circumstances of the case at hand (see Testwell, 80 AD3d at 274 ). Despite this, DOB denied the application reflexively, as if its duty were nondiscretionary. It did not consider 1) that petitioner had worked in the industry since 2001, 2) that he had been a licensed master rigger from 2009 to 2015, and 3) that from 2001 to 2015 he had worked steadily, either as a licensed master rigger or, prior to his certification, under the appropriate supervision. Respondent does not point to any evidence which suggests that petitioner was not qualified to perform the work at hand; thus, there is no merit to respondent's argument that petitioner, who had worked as a rigger for sixteen years, was not "fully capable for taking on the perilous and extensive duties and responsibilities of a Master Rigger" (Mem of Law in Opposition, * 16). As such, respondent's failure to consider petitioner's experience and record was arbitrary and capricious.
Respondent additionally ignored the facts that petitioner did not renew his license before the initial expiration date because he signed up for a mandatory class which was cancelled due to limited enrollment, and that petitioner signed up for the course in January and February 2016 but due to cancellations he was unable to take the course until May 2016. Absent these problems, which were outside of his control, he likely would have submitted all documents and taken all required tests by the end of the grace period in September 2016. Moreover, petitioner alleges that Deputy Commissioner Wax gave him advice regarding his application which caused him to submit an unacceptable self-certification, and that had he not been so advised he would have had the requisite work experience when he completed the application process. Respondent's failure to consider these factors despite its discretionary power to do so also renders the decision arbitrary and capricious.
Also, as petitioner points out, 28 Administrative Code § 404.1 does not require that a rigger be supervised while he or she hoists or lowers articles outside the building. Building Code § 3316.9.1, petitioner notes, reiterates that the supervision of a licensed rigger is required except when this type of hoisting or lowering work is performed. In these circumstances, the articles may be "hoisted or lowered by or under the supervision of a qualified and/or competent person" (id. ) Thus, as a competent person, petitioner was able to perform the work in question. Respondent's statement that petitioner is not a competent person within the meaning of the Building Code is belied by the definitions section of the Code, Building Code § 3302.1, which states that a competent person is "[o]ne who is capable of identifying existing predictable hazards in the surroundings or conditions that are unsanitary, hazardous or dangerous, and who has authorization to take prompt corrective measure to eliminate such hazards." Although his license had lapsed, respondents do not contend that his competency evaporated on that date. In addition, his employers gave him supervisory responsibility, which necessarily includes the power to take corrective measures where necessary. Finally, on this point, respondent does not indicate that during the evaluation process it even considered whether the Administrative Code and Building Code allowed petitioner to supervise himself as a "competent person." Their subsequent arguments on this point cannot be used to justify their original, and reflexive, interpretation of the prevailing rules and laws (see Rizzo v. New York State Division of Housing and Community Renewal , 6 NY3d 104, 115 [2005] [stating that a court may only evaluate the grounds upon which the agency relied].
Furthermore, as petitioner notes, an applicant must certify his qualifications when he or she files the LIC41 form. Petitioner argues that it makes no sense for respondent to require two such certifications — one when the LIC41 form is filed, and another when the applicant makes the submissions which trigger respondent's background evaluation. The Court agrees that this would be a waste of respondent's resources, as it would necessitate two analyses by respondent based on the two submission dates. Even if the Court accepts respondent's argument that this double requirement is rational, DOB's action here would be irrational for two reasons. One, there is no indication that respondent evaluated petitioner's application on the earlier of the two filing dates; therefore, respondent would have violated its own rule. Two, petitioner satisfied the five-year requirement at the time of the initial application and was only three months shy of the five-year requirement on the second date. Respondent apparently did not consider these facts or decide whether under these circumstances it was reasonable to deny petitioner's license. Instead, respondent applied the rule reflexively, without the exercise of discretion.
For all the reasons this Court has discussed, a remand to DOB is appropriate. The Court declines to mandate that DOB issues a license to petitioner, but it requires respondent to render a determination based on a more comprehensive consideration.
Based on the above, therefore, it is
ORDERED and ADJUDGED that the petition is granted to the extent of remanding this matter to DOB, and the proceeding is remanded for further proceedings consistent with this decision. The Court notes that it has considered all the parties' other arguments and reviewed the transcript of the argument in reaching its conclusion.
The Clerk is directed to enter judgment accordingly.