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IN RE: the Application of Tyrone NICHOLS, Petitioner, v. The NEW YORK CITY DEPARTMENT OF BUILDINGS LICENSING UNIT, William Hinkley and Shanee Graham, Respondents.
In this Article 78 proceeding, pro se petitioner Tyrone Nichols challenges the determination of the New York City Department of Buildings (“DOB”) denying his application for renewal of his Site Safety Coordinator (“SSC”) certificate. Respondents the DOB, William Hinkley, Executive Director of DOB Licensing & Exams, and Shanee Graham, Special Assistant Counsel of DOB Licensing and Regulatory Matters answer and assert the determination was rational and lawful, and thus should not be disturbed. For the reasons set forth below, the Court denies the petition and dismisses the proceeding.
The relevant facts are as follows. By application dated February 15, 2015, petitioner first applied for a SSC certificate (“Original Application” or “Original Questionnaire”). A SSC is responsible for overseeing the construction or demolition of major buildings to ensure that this work is performed safely and does not endanger workers or the public at large. In order to obtain a SSC certificate, an applicant must submit satisfactory proof establishing his or her eligibility through one of four possible ways. As is relevant here, the applicant can show that he or she “[h]as 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” (NY Building Code [Administrative Code of City of NY tit 28, ch 4] § 28–403.2 ).
As required, petitioner submitted a DOB Background Investigation Questionnaire. In the Original Questionnaire, petitioner was asked to “[l]ist all licenses, certifications, or registrations issued to [him]” and to “[i]nclude all Drivers Licenses and other trade licenses issued to you.” In response, petitioner listed licenses, certifications, and registrations that the New York State Department of Motor Vehicles, the DOB, the Fire Department of the City of New York and “NYCTECH” issued to him. Notably, petitioner responded “NO” to the question: “[h]ave any licenses/certifications/registrations issued to you ever been suspended, restricted or revoked; or have you ever been censured or disciplined in connection therewith?” 1
On January 6, 2016, the DOB rejected petitioner's SSC application as the DOB claimed it was unable to verify sufficient relevant construction trade experience pursuant to Administrative Code § 28–403.2(4). The DOB noted that the petitioner failed to submit the required Experience Verification Forms (“EVF's”) from his former supervisors. Subsequently, petitioner submitted EVF's from four of his former supervisors and requested that the DOB reconsider its determination. By letter dated, May 10, 2016, the DOB approved petitioner's Original Application for a SSC certificate and DOB issued petitioner a SSC certificate, which expired on May 23, 2017.
On or about April 3, 2017, petitioner applied to the DOB to renew his SSC certificate (“Renewal Application”). The DOB requested additional information from the petitioner so that it could make a determination on the Renewal Application, explaining that its background investigation revealed that petitioner's “status as an authorized Occupational Safety and Health Administration (“OSHA”) outreach trainer was revoked as a result of failing to comply with OSHA's Outreach Training Program requirements and procedures” (respondents' exhibit J). The DOB requested that petitioner provide a written explanation of the circumstances surrounding the revocation of his trainer credentials and submit copies of any documentation provided by OSHA stating the basis for their determination and the requirements which petitioner failed to comply with. Petitioner responded in writing on April 24, 2017, and provided the following documentation in further support of his Renewal Application: (1) an unsigned copy of petitioner's brief, dated August 3, 2009, administratively appealing OSHA's decision, to revoke petitioner's OSHA training authorization; (2) a letter dated July 16, 2009, from OSHA's Directorate of Training and Education, which sought documentation from petitioner “for each Outreach training course [he] conducted during 2008 and 2009” as part of “a full records audit”; (3) a letter dated August 3, 2009, from OSHA's Directorate of Training and Education to petitioner regarding the permanent revocation of petitioner's authorization as an OSHA trainer; 2 (4) copies of petitioner's OSHA Outreach Training Program Reports, dated June 26, 2009 and June 27, 2009; and (5) an Amended DOB Background Investigation Questionnaire for License Applicants, in which petitioner provided a certification, sworn to on April 22, 2017, that his responses in the Amended Questionnaire were truthful, accurate, and complete. Under the “License Information” section of the Amended Questionnaire, petitioner stated that in 2007, OSHA issued him “Trainer” certification No. 647, which OSHA later revoked in 2011 (respondents' exhibit P at 2). Further, petitioner answered “YES” in response to the question “[h]ave any licenses/certifications/registrations issued to you ever been suspended, restricted, or revoked; or have you ever been censured or disciplined in connection therewith?” (Id.). Petitioner stated that OSHA revoked his Trainer certification “for failure to retain record” (Id.).
On April 27, 2017, the DOB rendered a final determination, denying petitioner's renewal application based on petitioner's “making of material[ly] false” statements to the DOB in his Original Application and to OSHA. The DOB explained that petitioner misled the DOB by failing to disclose that OSHA permanently revoked petitioner's authorization as a trainer in 2009. Instead, in his Original Application, he stated that he never had “any licenses/certifications/ registrations issued to [him] suspended, restricted, or revoked; or have ever been censured or disciplined in connection therewith.” The DOB further explained that petitioner made materially false statements to OSHA when he, as an authorized OSHA trainer conducting occupational safety and health classes for workers, failed to collect and retain course records and falsified information on student course complete cards. The DOB stated in relevant part:
“[a]ccording to the OSHA determination letter dated August 3, 2009, the revocation was based on [petitioner's] failure to comply with OSHA Outreach Training Program guidelines. Namely, [petitioner] failed to collect and retain course records as required. [Petitioner] also falsified information on student course completing cards. OSHA's investigation revealed that the “dates on most of the cards [petitioner] provided did not match the end dates of the courses [petitioner] reported.”
(respondents' exhibit Q at 2).
Additionally, the DOB stated that it denied renewal as petitioner had not satisfied the good moral character requirement for a SSC based on the circumstances surrounding OSHA's revocation of petitioner's trainer authorization. The DOB noted that it depends on the integrity of SSCs to supervise all aspects of onsite construction safety, enforce DOB regulations, and follow OSHA safety standards. Further, the DOB stated that SSCs are responsible for identifying and recording hazards, practices, and conditions of the construction site in daily, weekly and monthly reports. The DOB set forth that OSHA's revocation of petitioner's trainer authorization bears a direct relationship on his fitness and ability to perform these duties. The DOB's rejection letter stated in relevant part:
“[The DOB] has a special interest in the actions that led to the revocation of [petitioner's] OSHA training authorization. [The DOB's] regulations that require licensed persons including Site Safety licensees, as well as unlicensed workers to obtain OSHA training and certificates in order to engage in construction activity in NYC. The purpose of OSHA training is to ensure workers are aware of the hazards present on their worksite and, most importantly, to prevent injury and casualties to the workers and the public.” [Petitioner] demonstrated extremely poor judgment by listing incorrect information on OSHA training cards for courses you taught. Additionally, your failure to inform [the DOB] that you held the OSHA trainer authorization or that you were disciplined in conjunction therewith demonstrates a lack of moral character.”
(respondents' exhibit Q at 2).
Petitioner then commenced this Article 78 proceeding with the filing of the instant petition on August 23, 2017, challenging the DOB's decision.
Administrative Code § 28–401.19 sets forth bases upon which a license or certificate of competence can be suspended or revoked. In relevant part, it states as follows:
§ 28–401.19 Suspension or revocation of license or certificate of competence.
The commissioner shall have the power to suspend or revoke a license or certificate of competence for any of the following:
* * *
2. The making of a material false or misleading statement on any form or report filed with the department or other governmental entity;
* * *
13. Poor moral character that adversely reflects on his or her fitness to conduct work regulated by this code
Parties Respective Contentions
Petitioner argues that the DOB acted arbitrarily and capriciously in denying his renewal application. First, petitioner denies making materially false statements in his Original Application to the DOB regarding the revocation of his OSHA trainer authorization. Petitioner maintains that the trainer authorization issued to him by OSHA was not a license, registration, or certification. In support, petitioner submits a selection of pages from an “OSHA Training Manual” (petitioner's exhibit D). Petitioner cites to page 4 which states in relevant part “[n]one of the courses within the Outreach Training Program is considered a certification” (petitioner's exhibit D at 4). Petitioner argues that he was correct in answering “NO” to the question “[[h]ave any licenses/certifications/registrations issued to you ever been suspended, restricted or revoked?” because his OSHA trainer authorization did not fall into any one of those categories. Consequently, petitioner maintains that he did not make materially false statements in his original application to the DOB.
Furthermore, petitioner argues, the DOB's decision to deny his renewal application because petitioner demonstrated “poor moral character” is irrational. Petitioner contends that he was falsely accused of failing to collect and retain course records and falsifying information on OSHA training cards for the courses he taught. Petitioner claims that OSHA's investigation was inconclusive. He also argues that the DOB's conclusions to the contrary are improperly based on two articles from The Daily News titled “Fake Construction Safety Training Cards Resurface, Raising New Concerns” and “Ex–City Buildings Inspector Busted for Selling Fake Safety Certificates.” Both articles discussed the widespread fraud in OSHA safety training and noted petitioner's involvement in selling fake OSHA safety certificates. Petitioner claims he did not commit any of the acts attributed to him by The Daily News. Further, he argues that the DOB failed to properly investigate whether he falsified information on the student course complete cards.
In answering, respondents argue that the petition should be denied since the DOB's decision to deny petitioner's application for renewal of his SSC certificate was rational, reasonable, and within the DOB's discretion. Respondents assert that the DOB properly concluded that the petitioner made materially false statements in his Original Application to the DOB regarding the revocation of his OSHA trainer authorization. Respondents emphasize that only after the DOB confronted petitioner regarding the materially false statement he swore to in his Original Application, did petitioner attempt to explain the discrepancy in the Renewal Application. Likewise, respondents contend that petitioner made materially false statements to OSHA when he falsified student course completion cards and failed to collect and retain course records. They point out that based on petitioner's “making of a material false statement on any form or report filed” with the DOB and OSHA, on this ground alone, the DOB reasonably denied petitioner's Renewal Application.
Furthermore, respondents assert that the DOB's determination was rational based on petitioner's lack of good moral character pursuant to Administrative Code § 28–401.19 (13). Respondents contend that petitioner's failure to inform the DOB that he held an OSHA training authorization or that he was disciplined in conjunction therewith demonstrates a lack of moral character. Additionally, respondents maintain that petitioner demonstrated extremely poor judgment by failing to collect certain course records and falsifying information on OSHA training cards. In particular, respondents argue that petitioner's lack of trustworthiness and good moral character adversely reflects on his fitness to hold a SSC certificate. Respondents point out that the very purpose of the OSHA courses petitioner presumably taught was to prevent injury and casualties to the workers and the public. Therefore, they argue, there is a direct correlation in the actions that led to the revocation of petitioner's OSHA training authorization and the responsibilities of a SSC.
In reviewing an agency determination under Article 78, “the 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] ). Moreover, if the agency's determination is sound, “the judicial function is at an end” (Id.). The courts must uphold an agency's determination if it has rational support (Matter of Peckham v. Calogero, 12 NY3d 424, 431  ). A court “may not overturn an agency's decision merely because it would have reached a contrary conclusion” (Matter of Sullivan County Harness Racing Assn., Inc. v. Glasser, 30 NY2d 269, 278 ; Matter of Verbalis v. New York State Div. of Hous. & Community Renewal, 1 AD3d 101, 107 [1st Dept 2003] ).
The DOB is authorized to approve or deny renewal license applications, such as the one held by petitioner, for, among other things “poor moral character that adversely reflects on his or her fitness to conduct work regulated by his code” (NYC Administrative Code § 28–401.19  ) Additionally, the DOB may refuse to renew a SSC certificate to an applicant who makes “a material false or misleading statement on any form or report filed with the department or other governmental entity” (NYC Administrative Code § 28–401.19  ).
In the instant action, the Court finds that the DOB's decision to deny petitioner's application for renewal of his SSC certificate was rational and should be upheld. As stated above, the DOB made its determination based on petitioner's lack of good moral character and his making of materially false statements to OSHA and the DOB. Both bases stem from OSHA's revocation of petitioner's training authorization. Petitioner's argument that he was falsely accused of failing to collect and retain course records and falsifying information on OSHA training cards, is unconvincing. There is nothing in the administrative record that indicates OSHA's determination to permanently revoke petitioner's trainer authorization was unfounded. To the contrary, petitioner's renewal application included a letter from OSHA dated August 3, 2009, which stated that his trainer's authorization had been permanently revoked. The Court notes that petitioner did submit an unsigned of copy of his brief dated August 3, 2009, administratively appealing OSHA's decision to revoke petitioner's authorization as an OSHA trainer. However, the Court is left to speculate as to whether or not petitioner actually proceeded with the administrative appeal and if so, what the outcome was. “[J]udicial review of administrative determinations is confined to the ‘facts and record adduced before the agency’ ” (Matter of Featherstone v. Franco, 95 NY2d 550, 554  citing Matter of Yarbough v. Franco, 95 NY2d 342, 347  ). Notwithstanding the fact that petitioner claims OSHA's investigation came up inconclusive, petitioner failed to provide this Court with any documentation supporting his position. Additionally, of import, is the fact that petitioner eventually conceded to the DOB that his OSHA training authorization had been revoked in his amended questionnaire (respondent' exhibit P).
Petitioner's position that the DOB improperly relied on the articles featured in The Daily News is equally unavailing. While respondents' brief makes reference to the articles in a footnote (respondents' brief at 15, fn 15), there is no evidence in the record that the DOB relied on these articles. In contrast, the record indicates that the DOB based their determination on information which petitioner voluntarily provided about the circumstances of the revocation of his OSHA training authorization.
The Court would be remiss not to address the DOB's contention that the basis of OSHA's determination to revoke petitioner's authorization to train workers on occupational safety and health has a direct bearing on his fitness as a SSC. OSHA permanently revoked petitioner's trainer's authorization because he falsified information on student course completion cards and failed to collect and retain course materials. Theoretically, petitioner could have been completing cards indicating that his students completed the OSHA safety course when, in fact, they didn't thereby rendering said students unqualified as to the “recognition, avoidance, abatement, and prevention of safety and health hazards in the workplace” (petitioner's exhibit D at 4). The DOB's concern is that a SSC is relied upon to “follow OSHA safety standards, identify and record hazards, practices, and conditions of the building construction site in daily, weekly, and monthly reports” (respondent's exhibit Q). Additionally, the DOB relies on these individuals to ensure the safety of all workers and the public. In essence, the DOB's position is that a licensee's integrity is paramount so to prevent construction related accidents. This Court sees the correlation and cannot say that the DOB's finding of petitioner's lack of good moral character was irrational.
Petitioner urges that he did not make materially false statements to the DOB because his OSHA trainer authorization was not a license, certification, or registration. Although this may be true, the Court concludes that, the petitioner cannot hide behind the semantics of the wording of a question directed at preventing precisely the kinds of deception petitioner unsuccessfully sought to hide. If the questionnaire had merely directed applicant to list all licenses, certifications and registrations, and nothing else, then petitioner's argument might have carried more weight. This is especially true, based on the statement petitioner cited to in the OSHA training manual in that “[n]one of the courses within the Outreach Training Program is considered a certification” (petitioner's exhibit D). However, the fact that the very next question in the questionnaire asked—“have any licenses/certifications/registrations issued to you ever been ․ revoked,”—petitioner should have chosen to err on the side of caution and disclose the revocation of his OSHA authorization. Indeed, OSHA did more than just permanently revoke petitioner's trainer's authorization. The Court points to OSHA's letter to petitioner dated August 3, 2009, which states in relevant part:
“[a]s a result of your failure to comply with the Outreach Training Program guidelines, your trainer's authorization has been permanently revoked. OSHA will instruct the Atlantic OSHA Education Center to not issue course completion cards to you for any future classes. Your name will be added to the OSHA Outreach Watch List, which is used to document trainers who have been subject to corrective action. You will also be unable to become an OSHA–authorized trainer through any other OSHA Training Institute Education Center at any point in the future”
(respondents' exhibit M).
In light of this, it is more reasonable for this Court to conclude that petitioner did not disclose OSHA's revocation of his training authorization because he thought the DOB would deny his SSC renewal application. Thus, the DOB's decision to deny petitioner's application based on petitioner's making of materially false statements is neither irrational nor an abuse of discretion.
The Court has considered the parties' remaining arguments and finds them unavailing.
Based on the foregoing, petitioner has not established that the DOB's denial of his application for renewal of his SSC certificate violated lawful procedure, was affected by an error of law, was arbitrary, lacked a rational basis, or was unsupported by the evidence presented (CPLR § 7803  and  ). Accordingly, it is hereby
ORDERED that the petition is denied and the proceeding is dismissed.
This constitutes the Decision and Order of this Court.
1. Petitioner also submitted the following documents in support of his application: (1) Site Safety Coordinator Employment Verification Affidavits from Frances Concilio and Dennis Prude; (2) a Certificate of Training certifying that on March 11, 2014 petitioner completed the 40 hour course for Site Safety Managers; (3) a Certificate of Training certifying that on November 13, 2014 petitioner completed a United Stated Department of Labor Occupational Safety and Health Administration (“OSHA”) 30 Hour Construction Outreach Certification Program; (4) a copy of his Social Security History of Earnings Statement; (5) a copy of his 2014 W–2 Wage and Tax Statement from Site Safety LLC; (6) a copy of his United States Passport; and (7) a copy of a National Grid statement bill addressed to petitioner dated February 6, 2015.
2. OSHA's letter stated in relevant part:“OSHA has received and reviewed the documentation you submitted in response to our records audit. Based on our review, it is apparent you have repeatedly failed to comply with the Outreach Training Program guidelines as follows:1. Failure to collect and retain course records: Trainers must maintain class files for 5 years which include student sign-in sheets for each class day and student addresses. Out of the 11 program reports you submitted, you only collected and retained student addresses for two of these classes.2. Falsification of information on student course completion cards: Trainers are required to complete student cards by printing or typing student's name and course end date. The dates on most of the cards you provided did not match the end dates of the courses your reported”(respondents' exhibit M).
Carmen Victoria St. George, J.
Response sent, thank you
Docket No: 101204/2017
Decided: May 03, 2018
Court: Supreme Court, New York County, New York.
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