Livery Round Table, Inc. v.

• Decision Date: 18 April 2018
• Docket Number: 18-cv-2349 (JGK)
• Parties: THE LIVERY ROUND TABLE, INC., BLACK CAR ASSISTANCE CORP., THE NEW YORK BLACK CAR OPERATORS INJURY COMPENSATION FUND, LIMO ASSOCIATION OF NEW YORK, INC., LIVERY BASE OWNERS, INC., FAST OPERATING CORP. d/b/a CARMEL CAR & LIMOUSINE SERVICE, and REUVEN BLECHER, Plaintiffs, v. NEW YORK CITY FHV AND LIMOUSINE COMMISSION, MEERA JOSHI, in her official capacity as Chair and Chief Executive Officer of the New York City Taxi and Limousine Commission, and THE CITY OF NEW YORK, Defendants.
• Court: U.S. District Court — Southern District of New York

THE LIVERY ROUND TABLE, INC.,BLACK CAR ASSISTANCE CORP.,THE NEW YORK BLACK CAR OPERATORS INJURYCOMPENSATION FUND, LIMO ASSOCIATIONOF NEW YORK, INC., LIVERY BASE OWNERS, INC.,FAST OPERATING CORP.d/b/a CARMEL CAR & LIMOUSINE SERVICE,and REUVEN BLECHER, Plaintiffs, v. NEW YORK CITY FHV AND LIMOUSINE COMMISSION,MEERA JOSHI, in her official capacityas Chair and Chief Executive Officerof the New York City Taxi and Limousine Commission,and THE CITY OF NEW YORK, Defendants.

18-cv-2349 (JGK)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

April 18, 2018

MEMORANDUM OPINION & ORDER

JOHN G. KOELTL, District Judge:

The plaintiffs, an operator of a for-hire taxi, an owner of a for-hire-taxi base company, and related trade associations, seek a preliminary injunction against the New York City Taxi and Limousine Commission (the "Commission"), Meera Joshi in her official capacity as the Commission's chair and chief executive officer, and the City of the New York enjoining the implementation of Rules 59A-11(e), 59B-17(c), and 59B-17(d) of title 35 of the Rules of the City of New York, as amended by the Commission on December 13, 2017. The challenged Rules principally set new requirements for the number of trips in which a dispatch base for For-Hire Vehicles ("FHVs") must dispatch a wheelchair-accessible vehicle (a "WAV"). The plaintiffs must begin to comply with the amended Rules by July 1, 2018. They have sued the defendants for a declaratory judgment that the amended Rules are unlawful because they allegedly: violate 42 U.S.C. § 1983 and The Americans with Disabilities Act of 1990 (the "ADA"), Pub. L. No. 101-336, 104 Stat. 328 (codified as amended at 42 U.S.C. § 12101 et seq.); violate the Equal Protection Clause and the Dormant Commerce Clause of the United States Constitution; are barred by estoppel; and violate the New York State Constitution. The plaintiffs filed the present motion for a preliminary injunction on March 16, 2018, arguing that the challenged Rules are preempted by the ADA and violate separation of powers principles.

The Court held an evidentiary hearing on the plaintiffs' motion on April 16, 2018. The plaintiffs called two witnesses at the hearing -- Dr. Avik Kabessa, the chief executive officer of Fast Operating Corp. (which does business as Carmel Car and Limousine Service) and founder of a non-profit organization comprised of four livery associations and two of the largest livery bases in New York City, and Reuven Blecher, an FHV driver who does not drive a WAV. The defendants did not call any witnesses at the hearing. Disabled in Action, Mobilization forJustice, New York Lawyers for the Public Interest, and United Spinal Association also filed a brief as amici curiae in opposition to the plaintiffs' motion.

Having reviewed the evidence and arguments submitted by the parties, the Court now makes the following findings of fact and reaches the following conclusions of law. For the following reasons, the plaintiffs' motion is denied.

FINDINGS OF FACT

A.

1. The plaintiffs consist of an operator of a licensed for-hire livery vehicle, an owner of a licensed FHV dispatch base company, and three trade associations that represent operators and owners of for-hire livery, black car, and luxury limousine FHVs and FHV bases. Kabessa Decl. ¶¶ 3, 6; Goldstein Decl. ¶ 1; Rose Decl. ¶¶ 1-2; Blecher Decl. ¶ 1.

2. The defendants consist of the City of New York, the Commission, which is an executive agency of the City created by section 2300 of the New York City Charter, and Joshi in her official capacity as the Commission's chair and chief executive officer.

3. On July 7, 2017, the Commission published notice of proposed amendments to Rules 59A-11(e), 59B-17(c), and 59B-17(d) of title 35 of the Rules of the City of New York, which deal with wheelchair-accessible FHVs. Goldberg-Cahn Decl. ¶ 3, Ex. A. 4. On September 28, 2017, the Commission held a public hearing regarding these proposed amendments. Id. ¶ 4.

5. On December 8, 2017, the Commission published on its website a public notice of intent to consider a proposal for a pilot program to test response times for wheelchair-accessible FHV services. Id. ¶ 7, Ex. B.

6. On December 13, 2017, the Commission held a public hearing during which the proposed amendments to Rules 59A-11(e), 59B-17(c), and 59B-17(d) were discussed and adopted. The final versions of these Rules were published on December 20, 2017. Id. ¶¶ 5, 6.

7. The published Rules contained the following statement of basis and purpose: "Increasing access to the New York City Taxi and Limousine Commission's fleet of over 110,000 license vehicles is an important step to make New York City a place that is truly accessible to all of our residents and visitors, including those who use wheelchairs. . . . To reach the for-hire vehicle sector (black cars, car services and luxury limousines), which today transports 400,000 passengers each day, the [Commission] promulgates an accessible service requirement that would put wheelchair accessible [FHVs] in circulation and available for passengers who need them." Id. Ex. C, at 3-4.

8. Also at the December 13, 2017, hearing, the Commission discussed and approved the proposed pilot program regardingresponse times for wheelchair-accessible FHV services. The pilot program will run for two years beginning July 1, 2018. Id. ¶¶ 7, 8.

B.

9. Rule 59A-11(e) of title 35 of the Rules of the City of New York provides that an owner of a licensed FHV generally may not dispatch or permit another person to dispatch the owner's vehicle unless (1) the vehicle is affiliated with a validly licensed FHV base, (2) the base dispatching the vehicle is validly licensed, and (3) the vehicle is being dispatched from its affiliated base. The third requirement of Rule 59A-11(e) is subject to two disjunctive exceptions. One of the exceptions formerly provided that a vehicle need not be dispatched from its affiliated base if "[t]he vehicle is an Accessible Vehicle being dispatched to transport a Person with a Disability pursuant to a contract executed under section 59B-17(c) of these Rules." On December 13, 2017, the Commission amended that exception to provide that a vehicle need not be dispatched from its affiliated base if "[t]he Vehicle is an Accessible Vehicle affiliated with a For-Hire Base." Id. Ex. C, at 4.

10. The penalty for violating Rule 59A-11(e) is a fine of $400. Id.

11. Rule 59B-17(c) of title 35 of the Rules of the City of New York requires owners of licensed FHV bases to providetransportation services to individuals with disabilities. On December 13, 2017, the Commission amended Rule 59B-17(c)(1) to require each base to dispatch WAVs on at least five percent of total trips dispatched by the base between July 1, 2018, and June 30, 2019. The percentage of trips for which a base is required to dispatch WAVs under the amended Rule 59B-17(c)(1) increases incrementally over the next four years, eventually requiring a WAV for twenty-five percent of a base's yearly dispatched trips beginning on July 1, 2022. Id.

12. The penalty for violating amended Rule 59B-17(c)(1) is a fine of "$50 for each 100 trips by which the Base misses the percentage of trips it was required to dispatch to Accessible Vehicles in that calendar year." "If a Base fails to dispatch enough trips to Accessible Vehicles to meet at least half of its percentage requirement, the Commission may seek suspension of up to 30 days or revocation." Id.

13. Amended Rule 59B-17(c)(3) also provides: "Every year beginning July 1, 2019, the Commission will review Base compliance levels, service levels, and any other information it deems relevant to determine if adjustments need to be made to the percentages set forth in paragraph (1) of this subdivision." Id.

14. Rule 59B-17(d) of title 35 of the Rules of the City of New York is similar to Rule 59A-11(e). Among other things, itprovides flexibility to FHV bases in dispatching WAVs affiliated with other bases. Rule 59B-17(d) provides that a base owner generally may not dispatch a vehicle not associated with the base. There are three disjunctive exceptions to this Rule. One of the exceptions formerly provided that a base may dispatch a vehicle not associated with the base if the dispatched vehicle is "an Accessible Vehicle from a[nother] Base it has contracted with to provide accessible transportation pursuant to Section 59B-17(c) of these Rules." On December 13, 2017, the Commission amended that exception to provide that a base may dispatch a vehicle not associated with the base if the dispatched vehicle is "an Accessible Vehicle affiliated with a For-Hire Base and the Base Owner provides the customer with the name and license number of both the affiliated Base and the dispatching Base (clearly identifying which Base is the affiliated Base and which Base is the dispatching Base) in all communications with the customer and any materials or receipts provided to the customer." Id. at 4-5.

15. The penalty for violating Rule 59B-17(d) is a fine of $150. Id. at 5.

16. An FHV base may apply to participate in the two-year pilot program adopted by the Commission on December 13, 2017, instead of complying with amended Rule 59B-17(c)(1), which requires a minimum number of trips to be provided with WAVs.Bases must satisfy various pre-qualification conditions to apply for the pilot program and must be selected to participate by the Commission. Id. Ex. D.

17. There are two roles available to bases in the pilot program. Id. at 1-2.

18. At least one base must participate in the pilot program as a "WAV Dispatcher." A WAV Dispatcher will be "responsible for receiving requests for [WAVs] from Participating Bases and dispatching [WAVs] to fulfill at least sixty percent (60%) of those requests in under 15 minutes and ninety percent (90%) of those requests in under 30 minutes by the end of the first year of the Pilot Program and at least eighty percent (80%) of those requests in under 15 minutes and ninety...