Volume 41 [2006–07]

› news@sfbg.com

In 1997, Dirk, a taxi driver of 20 years, was stabbed in the neck by a hitchhiker he picked up after his last shift. Ten years later, blind and brain damaged because of the loss of blood, he still receives income of roughly $1,800 a month from his taxi medallion.

Under city law, he’s supposed to be driving.

Medallions are among the most prized — and disputed — permits in town. The city owns all 1,381 of the medallions, which allow the holders to operate taxis. But under a 1978 law known as Proposition K, only active drivers — later defined as people who put in an annual minimum of 800 hours behind the wheel — are eligible to hold the permits.

The medallion holders have a lucrative deal: when they aren’t driving, they can lease out the permits to other drivers. And since a lot of cabs are on the road 24 hours a day 365 days a year, those lease fees can add up.

Not surprisingly, there’s been some abuse over the years. You get a permit by putting your name on a list and waiting as long as 15 years. Some people who haven’t driven in years — people who don’t even live in the area — have risen to the top of the list, seized medallions, and pocketed the cash, hoping nobody would notice.

Recently, though, the city’s Taxicab Commission has been cracking down — and that has put people like Dirk in limbo and raised a series of political and legal questions that go to the heart of the city’s cab-permit system:

Does a disabled driver have a right to keep his or her medallion? Is it cruel to simply yank the permit — and the income — from somebody who may have been injured in the line of work? Or is allowing nondrivers to keep their medallions unfair to the thousands of working cabbies who are paying $91.50 a shift to lease a permitted cab and waiting in line for a permit to open up?

What right should someone who gets a valuable city permit, at no cost, have to keep using that permit to earn income when he or she no longer meets the permit requirements?

Taxicab Commission executive director Heidi Machen says the answers are straightforward. "Permit holders who are not meeting their requirements are abusing a public permit," she told the Guardian. "Proposition K was never set up as a retirement plan."

Joe Breall and Elliot Myles disagree — and they’re taking the issue to court in a case that could have lasting implications for the city’s taxicab industry, medallion holders, and other drivers.

The two Bay Area lawyers filed a class action lawsuit against the Taxicab Commission on June 25 on behalf of an estimated 150 disabled drivers who hold taxi medallions in the city. They argue that the driving requirement violates the 1990 Americans with Disabilities Act.

"These are long-term drivers who have a disability that simply does not allow them to drive now," said Breall, who represents National Cab Co.

One of the case’s two named plaintiffs, William Slone, is a medallion holder with a lung disease that requires him to be hooked up to an oxygen tank 24 hours a day. The other, Michael Merrithew, has a physical disability so severe that he cannot operate his taxi.

Machen has hired two investigators to crack down on medallion holders who are not fulfilling their requirements — whether a scofflaw is a healthy 30-year-old woman living in Hawaii but reaping her medallion’s profits or an elderly man who must use a wheelchair but is still using the medallion as his source of income.

"The ADA does not require a public agency to waive an essential eligibility requirement for a government program or benefit," Machen wrote in a memo dated Feb. 16, 2006.

The Taxicab Commission isn’t just yanking permits from anyone who gets hurt. Under its current policy, temporarily disabled medallion holders can apply to take one year off every five years and receive a 120-day driving exemption in each of the three years following that disability leave.

But the lawsuit argues that this policy "effectively sanctions all taxicab permit/medallion holders with disabilities other than temporary illness that prevent or substantially limit their ability to drive taxi cabs personally."

The lawsuit argues that disabled permit holders, under the ADA, should be relieved of the full-time driving requirement until their disabilities are medically resolved. In the case of some drivers, that could effectively give them use of city-owned medallions free, for life.

TRICKY ENFORCEMENT

Prop. K was written by recently retired San Mateo Superior Court judge Quentin Kopp, who was then a city supervisor. Kopp told us that permits were being bought and sold for hundreds of thousands of dollars and working drivers couldn’t afford them. The system, which is fairly unusual, was designed to ensure that cabbies — not investors, corporations, or speculators — got the benefits of the city-owned permits.

So Prop. K required that a permit be returned to city and passed on to the next person on the long waiting list if the holder stops driving. Other large cities, such as New York, still maintain a system in which permits may be auctioned off instead of being publicly owned.

The 941 post–<\d>Prop. K medallion holders, Machen said, can receive $1,800 to $3,000 a month for leasing their permits. There are roughly 6,000 taxi drivers in the city; a full-time cab driver makes about $24,000 a year, but those full-timers with permits can add another $20,000 or more to their income by leasing.

"It’s a city permit. If someone stops using it, it reverts to the city," Kopp told us. "There’s no provision for a grace period or something of that sort. Seven times voters rejected efforts to appeal or change it."

In fact, in 2003 voters overwhelmingly rejected a measure that would have allowed disabled drivers to keep their permits.

Elliott Myles of Oakland’s Myles Law Firm, which handles disability cases, told us that Prop. K is "irrelevant."

"The obligation to modify or waive comes from the ADA, a federal law binding on the commission," he wrote in an e-mail.

Although Kopp says Prop. K was intended to ensure that only active drivers get permits, the 800-hours-a-year rule isn’t in the law. Specific driving rules were added to the city’s Police Code in 1988.

And enforcement of the law has changed in the past few years. When the Taxicab Commission revoked the medallion of disabled driver Querida Mia Rivera in 2003, the decision was overturned by the Board of Appeals on the grounds that it violated the rights of Rivera — who had driven for 35 years before needing a wheelchair and becoming legally blind — under the ADA.

In response to the reversal, then-director Naomi Little implemented a policy to accommodate both temporarily and permanently disabled medallion holders, which paralleled the city’s catastrophic-injury program. This meant the modification or waiver of the 800 hours was overseen by the Department of Public Health.

"A disabled permit holder may apply for a waiver or reduction of the driving requirement, and the waiver or reduction, in appropriate cases, may be renewed on a yearly basis," Little wrote in a memorandum to Sup. Jake McGoldrick on July 30, 2003.

But in February 2006 the Taxicab Commission adopted Resolution 2006-28, which returned the city to the policy of strictly following the letter of Prop. K (although the panel allows temporary reprieves for people who are injured but could return to driving).

Michael Kwok, a former commission staffer who oversaw disability requests, said such a policy allows the permit waiting line to move faster.

Allowing a permanently disabled person to retain his or her permit is "not fair to the public," said Kwok, who uses a wheelchair. "It’s case by case."

The result is an enforcement process that can be tricky, to say the least.

On Aug. 17, 2004, for example, a physician wrote to the commission arguing that a disabled driver who was "suffering from failing eyesight and dizziness" and occasional arthritis in his hands should be taken off the road. "Please release him from taxi driving effective immediately for public safety," the doctor wrote. "He is advised not to drive a taxi as soon as possible."

Commission staffer Tristan Bettencourt, who was overseeing ADA compliance at the time, responded by reducing the driver’s yearly driving requirement to 400 hours, or 78 four-hour shifts, over the next year.

That could have left an unsafe driver on the road, Myles said.

"I find this reprehensible," he told us. "In most medical-injury suits, evidence of medical condition can only be given by qualified health care professionals."

Bettencourt, who left his job last year, said the Taxicab Commission shouldn’t be deciding whether someone is fit to drive or not. "We didn’t give out driver’s licenses," he told us. "If you hold a driver’s license, someone from the Department of Motor Vehicles has certified you."

According to Jan Mendoza, a public information officer at the DMV, a license needs to be renewed every five years — a process that can take place online if a person has a clean record. People over the age of 70, however, have to visit the office in person to take both a vision and a driving test.

Taxi drivers should not have any guarantee of lifetime entitlement, Bettencourt said. He added that the lack of a safety net for people who lose their means of employment is not something a San Francisco taxi regulator can solve; it’s a national problem.

EXIT STRATEGY?

Thomas George-Williams, who chairs the United Taxicab Workers, looks at the issue from the perspective of drivers who don’t have permits — the ones he considers second-class citizens in a two-tier system.

All San Francisco cab drivers are effectively independent contractors who are responsible for their own disability and retirement funds. And the drivers who don’t have permits get no benefits from the system at all.

Medallion holders "use the income of their medallions for disability insurance," George-Williams told us. "We need an exit strategy for all drivers, including medallion holders, and we don’t have that."

Charles Rathbone, a driver for 30 years and a medallion holder for 10, points to the harsh truth: there’s a key difference between the two cabbie classifications. "For drivers without medallions, there’s nothing to revoke," he told us.

Rathbone, a member of the Medallion Holders Association, spoke at the Taxicab Commission meeting July 13 to lay out two steps he felt the city should take before revoking a permit. He asked for two weeks’ advance warning and an appeals process.

"When I become disabled, I don’t want my only exit strategy to be a kick in the ass from the taxi commission," Rathbone later told us.

His speech was spurred by the June suicide of Lindsey Welcome, a 61-year-old medallion holder of 10 years who had not driven for seven of those years due to severe muscular dystrophy. Welcome’s medallion, which she leased out through Luxor Cabs, was scheduled to be revoked at the Taxicab Commission’s June 26 meeting.

"Her medallion was her only means of support," Kathleen Young, Welcome’s friend of 30 years, told us.

Rathbone feels many disabled medallion holders hide their disabilities for fear of the consequences, endangering themselves and the public.

One of the more severe recent taxi incidents happened March 26, 2003, when a 68-year-old permit holder crashed into a Market Street ATM, badly injuring a pedestrian and immobilizing two others.

"Too many people are driving when they shouldn’t be," said Bettina Cohen, Rathbone’s wife and editor of the MHA newsletter, which publicized the pending disability lawsuit on its front page last month.

Allowing disabled drivers to keep their permits may have its own downside: Carl Macmurdo, president of the MHA, acknowledged that the long waiting line for medallions means people will acquire them later in life and so will often be able to fully enjoy them for only a short time.

"[The city’s] giving permits to 70-year-olds and then taking them back," Macmurdo, who waited 13 years to get his permit, said.

Myles shared similar sentiments. "Every permit holder, just like every person, runs the risk of disability," he told us. "This question [of the disabled holding on to their permits] affects not only every current permit holder but every driver who is waiting in line to get a permit in the future."<\!s>*