removal permits to be issued. ok. >> on that motion to overrule with all those conditions and that reference. commissioner fung: aye. commissioner goh: aye. president peterson: aye. commissioner hwang: aye. >> the vote is 5-0. the denial is overturned. >> moving on to item number 7. just so you know, we usually call the department first when it is a denial.

>> appeal 10-026. it is the appeal of the denial on the timber 30 -- of september 30. >> enforcement and legal affairs. this is regarding a denial of application for medallion permits. he has already been twice denied an application for medallion permits. the number one issue is that he has not fulfilled full time driving requirements even as it stood when his application cannot in 2008.

he has never submitted the requisite number of waybills. he submitted 54 for 2005, none for 2006, but later submitted 3 for 2006. there is no dispute that he did not drive because he was out of the country. in 2008, it was determined that he substantially qualified for the year 2008 with the driving a requirement. please keep in mind at the time of the application, the rules were slightly different and he only needed to complete three out of four years. the current rule is four out of five. with the full time driving requirements, three out of four

years. he doesn't seem to dispute the lack of documentation. he does claim that he is a driver and people know him as a driver. the years in dispute are 2005 and 2006. there has never been documentation to substantiate that. it is important to note that the hearing officer in the matter of looking beyond the waybills. basically, the receipts hope you paid for your shift. you pay at the end and sometimes people get receipts. he claimed that he had receipts that he did bring to the underlying hearing before. but even based upon looking at

those receipts, it was found that at best, he had driven 620 hours in 2006, at best had driven 90 hours. he claimed the the reason he did not have the documentation was because the cab company he claims to have driven for had lost his information. and now he has stated that he had copies as well as the gate receipts at home. but he was unable to produce those because those were stolen from his home. as i stated, the mta is not aware of any police report at

his residence. the taxi company has lost his waybills -- i'm sorry. this was the police code prior. record keeping by color scheme or failure of the color scheme permit holder to comply with regulations would not relieve the applicant from the burden of proving that he or she had satisfied the requirement. again, he did not produce documentation showing that he drove in those years. playbills are the determining factor. moving forward, one of the things that was is that the

driving requirement is not valid. i am just going to shore lycee that the board -- the appellant claimed that the board of supervisors could not enact legislation. that is false. they simply cannot create legislation that complex with that ordinance. in short, it does not conflict with proposition k and it is not an unlawful amendment. the point of all of this is despite all the hearings and a lot of the documentation that

went through, he is unable to demonstrate that he was a full- time driver three out of four years when his application came up. he was unable to produce any documentation to show that he drove for the years 2005 and 2006. it is clear he did not drive 2007. commissioner garcia: use stated that it was legal and he did not cite authority. in order for it to be legal, it could not be in conflict with the original legislation. if you would impose stricter standards or requirements, hot that is not creating a conflict. what is creating a conflict? >> i think in this situation, it would be the removal, for

example, of the requirement. it does not create a conflict because while it becomes trickier, the basis is that there is a driving requirement that must be fulfilled. they clarified that to make sure it is 800 hours. commissioner garcia: i thought ft dealt withdr's -- i thought it dealt with ftdr's. >> and for applicants. proposition k is what created the current system we have now where you obtain a free medallion. the text even noted that any

person that is obtaining a permit must drive at least four hours a day for 75% of the business day during the calendar year. it was later determined to be 1564-hour shifts. that has already been stated as a full-time driving requirement for the applicant. commissioner fung: are hearing officers staff or consultants for themt mta? >> they are staffed and are often part-timers. [inaudible] they do work in the building. i am not sure what their

contract is, necessarily. but i know they are at least part time and they are paid. >> the hearing below is looking for those three years. if we were to hear it today, for example, will be looking at for out of the last five years, correct? >> that is correct. >> which standard you believe is applicable? >> because the application came out in 2008, i think the 2008 standard is appropriate. he did not meet either one.

>> you have not had an opportunity to review 2009 or this last year? >> we have not reviewed since 2005 or 2010. -- or 2005 o20109 -- 2009 or 20. president peterson: thank you. >> madam president, commissioners. as has already been discussed somewhat, largely in this case, it is whether open entry or proof of driving are different manifestations of the same regulatory and 10 or whether they are as they appear to be,

how to very different things. and that is not the way i understand it. here is why. he began driving a taxi at the age of 25. he is now 41. he has an unblemished record, and it is exactly the kind of applicant that wanted to open up the industry to people that wanted to be drivers. like many of the 8000 drivers that scramble the approximately 3000 shift available, he drives wherever he can. even if you drive all the time, and ordinary taxi driver barely

makes minimum wage. the medallion is key because it is a step up for making a living and it is extremely important because you only get one shot at it under most circumstances. in his case, at the most unfortunate time. he was pulled out of the country because of a family emergency. it was hotly disputed that his prior hearing, but in 2008, he is capable of doing a lot of driving in a very short time. in his case, in 2011, he would have four out of five years. he produced a tax records and testimony of a very credible member of the industry.

other car robert of evidence can be considered. there are also little disputes of the company or where he claimed to be driving, openly defiant of the police. this comes through in the minutes i provided you. this matter got sent over to the mta. it would be great if they could work out some resolution of this thing. when he put his name on the list and paid his fees, there was no prior driving requirement. if you read the language, there is no driving requirement and that ordinance. it was a global preference that

had been stalled by the board of supervisors in 1980, 25 years after prop k. the board of supervisors through the roadblock by requiring proof of extensive driving. when i first looked at it, i thought i was just the way it was. when he came back to me after a time, i thought about it and realized it was within the context of a voter initiative. prop k specifically addresses the issue of prior driving. for the first two years only, we will give a sort of a kickoff preference to get the program started. there was no prior driving

requirement or prior driving preference. the board of supervisors tried to regain control of taxi regulation and was shot down so they passed this one-your preference that was a fairly low bar. it defines the scope of qualification. if you are of good moral character and you promised to be a full time driver, you are eligible for a medallion. it could be a first timer looking to start. you could come from another career entirely and apply under the open injury feature and become a medallion holder. it left no room for future

requirements to address the issue. the people were not careless or negligent. they were very politically aware, and it was their intention to take a taxi regulation away from the board of supervisors. they simply are deplored the injury and thought it would be more feared it to award a career drivers. it would shut out entirely anybody that would otherwise qualify. otherwise, qualified drivers would be required to improve up to five years of prior driving. that is the very definition of voter initiatives. it might be a bad idea. they aren't asking for special treatment, the board of

supervisors in this board permits them to receive a medallion before this amendment into this conflict in provision. it was installed against all the safeguards. you don't need to void the statute, he does have to find it as it was intended. the question was raised, as i said -- [chime] he would have operated for out of five years. commissioner fung: has your position on mta statutes and other supervise oriole

legislation's -- supervisorial legislations -- >> i want to be clear when i answer your question. have legislative amendments been tested? commissioner fung: the ones that you say do not conform to prop k, have any of those been tested in a court of law? >> not of my knowledge. commissioner garcia: if this were to be heard in 2011, your client would qualify? you don't have to go through it with me, just tell me that positively you think he would qualify or you can go back to answer that you think he would. >> i am basing it on the information that has been given to me.

my belief is that based on what would otherwise be privileged attorney-client communication, that he would qualify. >> commissioner garcia did not want you to go through it. he would get what? >> the rule is bell for out of every five years. -- four out of every five years. if it were heard or floated and continued into 2011, he would either get to make the 800 hours or prorate the hours.

>> if it were to be heard today, it would not? >> and the rule just changed two weeks ago. it is a moving target. if it were today, he would only have a,, and sen. you have three out of four under the old rules, but 4 of 5 he would not have. president peterson: is there any public comment on this item? please step forward. >> president peterson? >> you have two minutes, sir. >> are you hired by an

associated with the party? you testified previously as a member of the public, but are you hired by the party? >> absolutely not. >> how many are attending to speak of this -- intending to speak on this? commissioner garcia: we might end up asking you some questions. >> he came into our office and explained his problems with the american cattle, and it rang a very loud bell for everything i knew about this company. i asked him what prove he had that he drove, he mentions some way bills and other documents. he said it wasn't enough. he said he had tax records.

he brings in these tax records, i looked at them, and this was absolutely persuasive proof that he had been the driving because people do not claim in come that they haven't made. if you look at the end, and you look at the lease fees and the gas that he says he paid for, he had to have driven them out. not only that, all of this was inconsistent. it made sense. commissioner garcia: do we know for sure that the tax returns that you saw were actually filed? >> they were filed and debated in the year 2005-2006. the second was returned when he came back from ethiopia.

that was filed late. the second return was filed after his medallion became available. the first return was filed while before he finally knew when he was coming close to getting it. commissioner garcia: this might sound like a statement, but it will be a question. it seems like there is something wrong with a system where the driver has to keep a record for three or four years. and then prove it. let's say there is a fire or something is lost or stolen, basically, it would seem that the tax commission is going to tell someone that you can't get a medallion. our taxi drivers working on some better system for record keeping

than currently exists? >> honda has been a lot of discussion. it has gotten lost somehow in the mix about the fact that drivers are at the mercy of cab companies in terms of the record keeping. it seems impractical to make a copy of your way bill. you have to turn in -- >> you can make a copy, as you drive, you are able to make a copy. >> i am not aware of any cab company that does that. commissioner garcia: absolutely, you are dependent on the cab company. >> there are drivers that keep carbon copies. at our company, and disperse and comes up to the office and we

will make copies after the fact. >> you have all these years in the industry, there years you have worked. you are not thinking that that would come up. >> new might be denied a medallion if you don't keep records. >> i have been here for a little

over 11 years. as far as i'm concerned, he has been driving for 11 years. i'm here to vouch for him as a friend and as a working colleague.

>> i know all of these years that he is a hard-working man and has two kids. everyone in this industry knows him. he is a very hard-working man and he just went back to ethiopia in 2007. he resumed working until the present time. my brother worked for him and my brother has and medallion now.

thank you very much. >> when did your brother receive his medallion? >> 2008. >> did he have any issues? >> know. >> so he was able to produce -- >> yes. my