Taxi & Limousine Comm N V

Taxi & Limousine Comm’n v. Ahmed OATH Index No. 962/08 (Dec. 20, 2007)

Petitioner proved that respondent’s urine tested positive for marijuana. Revocation of respondent’s for-hire vehicle license recommended. ______

NEW YORK CITY OFFICE OF ADMINISTRATIVE TRIALS AND HEARINGS

In the Matter of TAXI AND LIMOUSINE COMMISSION Petitioner -against- ASSAM AHMED Respondent ______

REPORT AND RECOMMENDATION INGRID M. ADDISON, Administrative Law Judge Petitioner, the Taxi and Limousine Commission (“TLC” or “Commission”), commenced this fitness proceeding against respondent, Assam Ahmed, a for-hire vehicle (“FHV”) licensee, under its rules and New York City’s Administrative Code. 35 RCNY §§ 6-16(v), 8-15(a); Admin. Code § 19-512.1 (Lexis 2007). Petitioner alleges that respondent is unfit to retain his license based on a positive drug test for marijuana. A hearing was held before me on December 12, 2007. Petitioner relied on documentary evidence. Respondent appeared with counsel, testified on his own behalf and challenged the test results. For the following reasons, I find petitioner’s evidence sufficient to sustain its charges and recommend that respondent’s taxicab license be revoked.

ANALYSIS The Commission’s rules require TLC licensees to undergo annual testing for drugs and controlled substances as defined by section 3306 of the Public Health Law. If a driver tests positive, his license may be revoked. 35 RCNY §§ 6-16(v)(1), (2) (Lexis 2007). Here, - 2 - petitioner seeks revocation of respondent’s FHV license because his urine sample, submitted on October 3, 2007, tested positive for marijuana. To support its charges, petitioner relied upon an affidavit from Joseph Watson, a toxicologist at Laboratory Corporation of America Holdings (“LabCorp”), and an underlying laboratory report (Pet. Ex. 1). According to Mr. Watson, LabCorp is licensed and certified by the New York State Department of Health to perform forensic urine drug testing. Specimen collection and testing are done in accordance with the requirements that pertain to maintaining the specimen’s chain-of-custody as set forth in the Urine Specimen Collection Handbook for Federal Agency Workplace Drug Testing Programs, published by the U.S. Department of Health and Human Services Substance Abuse and Mental Health Services Administration. Mr. Watson affirmed that LabCorp protects the integrity of its forensic data according to protocol. He summarized the chain of custody and drug testing procedures employed by LabCorp. Respondent signed the chain of custody form (“CCF”) at the time he submitted his specimen, acknowledging that his specimen container was sealed with a tamper-proof seal in his presence and that the information on the CCF and the label affixed to the specimen container was correct. The collector signed immediately beneath, certifying that the specimen identified on the form had been collected, labeled, and sealed in accordance with applicable requirements. The specimen was assigned an identification number upon receipt, and was transferred for testing the next day. Initial screening tests were positive for marijuana metabolite. Gas chromatography/mass spectrometry testing confirmed the presence of marijuana metabolite at a level of 45 nanograms per milliliter (“ng/mL”), well above the federally recognized cutoff level of 15 ng/mL. The identification number on LabCorp’s final report matched the number on the CCF signed by respondent. Mr. Watson noted that positive samples are frozen and maintained for one year and are available, upon request, for retesting. Petitioner also submitted a document from Neil J. Dash, M.D., a medical review officer from the Doctor’s Review Service, in which Dr. Dash states that he was provided with a copy of the CCF for respondent’s specimen (Pet. Ex. 2). Dr. Dash described the following protocol used to check the CCF’s accuracy: (1) respondent’s signature appeared on the CCF; (2) if an interview was conducted, the date of birth and license numbers were verified; (3) the CCF control number was compared to the reported result; (4) the specimen identification number assigned by the - 3 - laboratory was verified to the reported result. Dr. Dash certified the positive test results and notified the Commission. The Commission notified respondent of his positive test results on October 23, 2007, and advised him that it was seeking revocation of his license. The notice advised respondent that, if he was taking medication that could have caused the positive test result, he should forward copies of the prescription to the Doctors Review Service. He was also advised of his right to have the original specimen retested by another certified laboratory of his choice (ALJ Ex. 1). Respondent testified that he has been a TLC licensee for one year and this was his second drug test. He stated that he has never smoked marijuana but, prior to submission of his urine specimen at the collection facility, he had attended a party where people were smoking cigars and cigarettes. When asked whether there was marijuana smoking at the party, he reiterated that people were smoking cigars and cigarettes. Respondent’s counsel argues that petitioner’s submissions were flawed in that they contained several inconsistencies which made their integrity questionable. For instance, counsel questions Mr. Watson’s affidavit because the tiny print at the foot of the document indicates “Kamlesh Patel affidavit.” Counsel also notes that Dr. Dash’s document, which is undated, is not an affidavit and bears only a signature stamp. Counsel asserts that Dr. Dash cannot attest to what LabCorp does and points to the CCF, on which nothing was checked to indicate the type of test done. In light of this, counsel questions whether Dr. Dash’s affirmation of LabCorp’s testing protocol is in keeping with federal guidelines. Counsel further contends that, at the very least, petitioner should produce a witness to establish that the medical review officer did his job with respect to his chain of custody overview. Petitioner must establish its charges by a preponderance of the evidence. That includes establishing that the specimen that tested positive for marijuana belongs to respondent. To meet its burden, petitioner must provide “reasonable assurances of identity and unchanged condition.” See Dep’t of Correction v. Pizarro, OATH Index No. 834/91, at 10 (May 22, 1991) (quoting People v. Julian, 41 N.Y.2d 340, 343, 392 N.Y.S.2d 610, 613 (1977) (no evidence of tampering, adulteration or change of the physical evidence; no interruption in the chain of custody or brief interruptions from which no tampering can be implied; and maintenance of the evidence in accordance with reasonable procedures)). I find that it has. - 4 -

I am satisfied with the chain of custody outlined in Mr. Watson’s affidavit and with Dr. Dash’s confirmation of the protocol that was followed in the chain of custody for the specimen. See Matter of Fung v. Daus, 2007 N.Y. Slip Op. 8863, 2007 N.Y. App. Div. LEXIS 11774 (1st Dep’t Nov. 15, 2007) (the same type of documentation found to constitute substantial evidence of reliable laboratory testing for the presence of illegal drugs). Further, I find no evidence of violation of federal regulations pertaining to chain of custody. See Taxi & Limousine Comm’n v. Kurate, OATH Index No. 638/08, at 12-13 (Dec. 11, 2007). I do not discount the legitimacy of respondent’s counsel’s arguments with respect to certain deficiencies in petitioner’s documents, which petitioner explains as clerical. While that may be so, it seems incumbent on petitioner to review the documents that it intends to submit to this tribunal, to alert LabCorp and Doctors Review Service as to inconsistencies, and to insist on accuracy, prior to the hearing. Having said that, I find the inconsistencies and/or omissions in Dr. Dash’s affirmation, Mr. Watson’s affidavit, and on the CCF, to be of form, not substance, which did not affect the integrity of the drug test. Id. at 13-14. Counsel’s argument that petitioner should have provided a witness was addressed in Fung, where the court ruled that a witness is not required in drug test cases where the Commission submits sufficient and reliable documentation of laboratory testing for the presence of illegal drugs. 2007 N.Y. Slip Op. 8863, 2007 N.Y. App. Div. LEXIS 11774. The court rejected the assertion that the Commission must provide at least one witness for cross- examination, citing the Court of Appeals decision in Gordon v. Brown, 84 N.Y.2d 574, 578-79, 620 N.Y.S.2d 749, 751 (1994). The court expressly found the same types of certification by Dr. Dash and the CCF together constituted “substantial evidence” and that the driver had failed to demonstrate how he was prejudiced by irregularities, such as “evidence purportedly omitted from the record.” As articulated in Kurate, the decision in Fung is in harmony with decisions of the New York courts that have held that the burden is on the respondent to show a defect in a certified lab report in a drug testing case before a witness to the chemical testing process is needed. Kurate, at 6; Taxi & Limousine Comm’n v. Moussa, OATH Index No. 786/08 (Dec. 14, 2007) (denying respondent’s motion to dismiss on grounds that petitioner failed to produce a witness concerning respondent’s positive drug test). Further, respondent’s testimony was unconvincing. In making credibility determinations, this tribunal has often considered “witness demeanor, consistency of a witness’ testimony, - 5 - supporting or corroborating evidence, witness motivation, bias or prejudice, and the degree to which a witness’ testimony comports with common sense and human experience.” Taxi & Limousine Comm’n v. Martinez, OATH Index No. 1183/07, mem. dec. at 4 (Apr. 11, 2007) (quoting Dep’t of Sanitation v. Menzies, OATH Index No. 678/98, at 2-3 (Feb. 4, 1998), aff’d, NYC Civ. Serv. Comm’n Item No. CD 98-101-A (Sept. 9, 1998)). Respondent failed to avail himself of the opportunity to have his specimen retested. Yet, with his license at stake, he offered nothing more than a self-serving denial that he had used marijuana. I am unclear whether respondent was attempting to raise a defense of innocent ingestion of marijuana when he claimed that, prior to submitting his specimen for testing, he had attended a party where people were smoking. Notably, when asked whether there was marijuana smoking at the party, he responded that people were smoking cigars and cigarettes. On the one hand, respondent’s testimony seems calculated to raise the possibility that he innocently ingested smoke from a marijuana cigarette at the party. On the other hand, his testimony, standing alone, offers no basis to conclude that respondent was exposed to marijuana smoke at this party or that his presence at the party could have accounted for the positive test result for marijuana metabolite at 45 nanograms per milliliter. In any event, there is nothing to indicate that respondent innocently ingested marijuana. I therefore conclude that petitioner’s evidence is sufficient to sustain its charge that respondent submitted to a drug test on October 3, 2007, and that his sample tested positive for marijuana, which is classified as a controlled substance under the New York Public Health Law, section 3306 schedule I (d)(13) (Lexis 2007).

FINDINGS AND CONCLUSIONS

1. Petitioner established that respondent’s urine sample submitted on October 3, 2007, 2007, tested positive for marijuana, a controlled substance.

2. Respondent’s use of a controlled substance is in violation of Commission rule 6-16(v) and Administrative Code section 19- 512(1).

3. Respondent is unfit to retain a TLC license.

RECOMMENDATION - 6 -

Petitioner’s unrebutted evidence established that respondent tested positive for use of a controlled substance in violation of the Commission’s rules. See Fung, 2007 N.Y. Slip Op. 8863, 2007 N.Y. App. Div. LEXIS 11774. Marijuana is classified as a controlled substance under the New York Public Health Law, section 3306 schedule I (d)(13) (Lexis 2007). The ingestion of any controlled substance is incompatible with driving a taxicab and, in taking such a drug, respondent poses a threat to public safety. See, e.g., Fung, 2007 N.Y. Slip Op. 8863 at 2, 2007 N.Y. App. Div. LEXIS 11774 at 3 (“it cannot be concluded that the penalty of revocation imposed by [the Commission] shocks the judicial conscience”); Milano v. N.Y. City Taxi & Limousine Comm’n, 305 A.D.2d 326, 327, 761 N.Y.S.2d 29, 30 (1st Dep’t 2003); Hassan v. N.Y. City Taxi & Limousine Comm’n, 287 A.D.2d 715, 732 N.Y.S.2d 52 (2d Dep’t 2001). Commission rules specifically authorize the revocation of a driver’s license, after a hearing, when a driver tests positive on an annual drug test. See Taxi & Limousine Comm’n v. Mahmood, OATH Index No. 852/08, at 2 (Nov. 5, 2007) (revocation of license where unrebutted evidence showed that driver tested positive for use of a controlled substance). Accordingly, pursuant to Commission rules 6-16(v) and 8-15(a) and Administrative Code section 19-512.1, I recommend that respondent’s license be revoked.

Ingrid M. Addison Administrative Law Judge December 20, 2007

SUBMITTED TO:

MATTHEW W. DAUS Commissioner

APPEARANCES:

MARC T. HARDEKOPF, ESQ. Attorney for Petitioner

CYNTHIA D. FISHER, ESQ. Attorney for Respondent