Taxi & Limousine Comm’n v. Proano OATH Index No. 234/14 (Sept. 18, 2013)

In a fitness proceeding, for-hire vehicle driver found to have tested positive for use. Respondent unable to establish innocent ingestion defense that de tea caused the positive test result. Revocation of license recommended. ______

NEW YORK CITY OFFICE OF ADMINISTRATIVE TRIALS AND HEARINGS

In the Matter of TAXI AND LIMOUSINE COMMISSION Petitioner -against- LUIS PROANO Respondent ______REPORT AND RECOMMENDATION JOAN R. SALZMAN, Administrative Law Judge This is a proceeding commenced by the Taxi and Limousine Commission (“TLC” or the “Commission”) against respondent, a for-hire vehicle (“FHV”) driver, pursuant to Administrative Code Section 19-512.1 and the Taxi and Limousine Commission Rules, Title 35, Chapters 55 and 68. Admin. Code §§ 19-505(l); 19-512.1(a) (Lexis 2013); 35 RCNY §§ 68-20, 55-14(e) (Lexis 2013). Petitioner alleges that respondent is unfit to retain his FHV driver’s license because he tested positive for cocaine use. At a hearing before me on August 7, 2013, both sides were represented by counsel. Petitioner relied upon documentary evidence. Respondent testified at the hearing, as did his son- in-law, and also presented documentary evidence. Because respondent’s first language is Spanish, the hearing proceeded with the aid of Spanish language interpreters (Tr. 5; 22-23). For the reasons set forth below, I find that respondent tested positive for cocaine and recommend revocation of his TLC license. - 2 -

ANALYSIS For-hire vehicle drivers must take and pass annual tests for controlled substances. 35 RCNY § 55-14(e) (Lexis 2013).1 A positive drug test may result in revocation of an FHV driver’s license following a hearing. 35 RCNY § 55-14(e); 68-20(f); 68-03(d); (Lexis 2013); Admin. Code § 19-505(l); 19-512.1(a) (Lexis 2013). “Drugs mean any drug or other substance defined as a controlled substance in § 3306 of the Public Health Law.” 35 RCNY § 51-03 (Lexis 2013). The Public Health Law classifies cocaine as a controlled substance. Pub. Health Law § 3306, Schedule II(b)(4) (Lexis 2013). It was undisputed that in his annual drug test, respondent tested positive for cocaine in the amount of 3,220 nanograms per milliliter (above the federal cutoff level of 100 nanograms per milliliter) (Pet. Ex. 2). Respondent did not challenge the accuracy of the drug test (Tr. 57-58, 60- 61). Petitioner submitted an affidavit from Nataliya Krainik, a toxicologist employed by Laboratory Corporation of America Holdings (“LabCorp”), and an accompanying toxicology report (Pet. Ex. 2), which were sufficient to establish that respondent tested positive for cocaine use after a drug test administered on July 2, 2013, at a drug testing site in Astoria, New York. The chain of custody form, signed by respondent, indicated that he provided a urine specimen in a container, which was sealed in his presence with a tamper-proof seal. Respondent’s signature affirmed that the information provided on the chain of custody form and label on the specimen container were correct. The following day, a courier transported the urine specimen and chain of custody form to the LabCorp laboratory in Raritan, New Jersey. The specimen initially underwent an immunoassay test to screen for any controlled substance, which revealed a presumptive positive result for the cocaine metabolite. The specimen was then subjected to a gas chromatography/mass spectrometry (“GCMS”) test, and tested positive for cocaine metabolite. The identification number on LabCorp’s final report matched the number on the chain of custody form signed by respondent (Pet. Ex. 2). Petitioner also introduced a signed statement by Neil J. Dash, M.D., Chief Medical Review Officer of the Doctors Review Service, who examined the controlled substance test result and verified the accuracy of the chain of custody form (Pet. Ex. 3).

1 The parties stipulated to a correction of the Petition to cite the correct section of the rules applicable to for-hire vehicle drivers, 35 RCNY § 55-14(e) (Tr. 14-15). - 3 -

Respondent, a resident of Queens, is 61 years old and has three grown children (Tr. 24- 25; Pet. Ex. 1). He has had a TLC license since 1999 and has taken a drug test each year and has not previously failed one (Tr. 25; Pet. Ex. 1). He claimed that the positive drug test was a direct result of innocent ingestion of a tea he purchased in and that he had no intention of ingesting any illegal substance (Tr. 9). Respondent testified that on April 27, 2013, he took a trip to Lima, Peru to visit his mother (Tr. 25). In Lima, on May 9th, respondent testified, he bought in a supermarket called Wong (E. Wong S.A.) and brought back to New York City three different kinds of tea (Tr. 28-29, 33; Resp. Ex. B). Respondent compared Wong to Whole Foods or Fairway stores in New York (Tr. 27-28). He kept the receipt for the purchase of three kinds of tea, mate de coca tea, chamomile, sunka tea, and vanilla cookies (Tr. 28, 32-33). The coca tea he bought cost about $2.85 expressed in U.S. dollars for a box of 100 tea bags (Tr. 28-29). Respondent did not drink any of these teas in Peru (Tr. 29). He stated that he returned to the United States on May 11, 2013, and submitted a copy of a page of a passport in evidence showing stamps on the travel dates he described (Resp. Ex. A; Tr. 27). Respondent submitted into evidence the box of coca tea. The box is printed with information in both English and Spanish. It says: “Delisse;” “MATE DE COCA” in bold capital letters; “Coca Tea” in bold italics; “100% Natural;” “Product of Peru.” The box indicates the contents: “Erythroxylon Coca leaves 100%” (Resp. Ex. C). Asked by his attorney on direct why he bought the three kinds of tea, respondent answered: Chamomile because my wife has asked for it. . . . Sunka tea because I read it was very good for the prostate swollenness. . . . And the mate de coca because it drew attention to me and I have never bought this kind of tea. Overall, the name mate drew attention to me. I got that name related with . In Argentina, they always use that kind of name. That’s why I bought it.

(Tr. 33.) Asked what “mate” means, respondent explained that mate is “the same as tea and I just knew that” (Tr. 33). Respondent brought the teas to the United States in their boxes in his suitcase on May 11, 2013 (Tr. 33-34). Upon his return, he testified, he drank these teas (Tr. 33- 34). Respondent described his tea-drinking habits. He rises at 4 a.m. and drinks the mate de coca tea before going to work in the morning (Tr. 34). He said he can mix it with sunka and other things. He then goes to work at 4:35 a.m. (Tr. 34). Thereafter, he returns home about 8 a.m. and has breakfast with his wife; he eats bread and drinks coffee with milk (Tr. 34-35, 39- - 4 -

40). He then takes his wife to work and he returns to work (Tr. 35). Respondent stated that he repeated this tea and breakfast ritual six days a week from May 11th through July 2nd, the day he took the drug test (Tr. 35). He also sometimes drank the mate de coca again in the afternoon (Tr. 39). Respondent works until 5 p.m. with breaks, six days a week. When respondent received the positive drug test results, he “thought it could have been the tea because it says coca” (Tr. 36). He called his daughter and asked her if the mate de coca caused this and she went on the internet and read that mate de coca tea could cause a positive drug test for cocaine (Tr. 36). Respondent then stopped using the tea (Tr. 36). Respondent testified that when he bought the tea in Peru, it did not occur to him that mate de coca tea was an illegal substance (Tr. 36). Asked what the mate de coca tea did for him, he testified: “I didn’t notice it. . . . I didn’t feel like it was anything different . . . . And I wasn’t expecting anything. I didn’t have to expect anything” (Tr. 37). He denied that it affected his sleep habits or ability to work longer hours: “Asolutely nothing. I didn’t notice anything” (Tr. 37). He likened the tea to lemon juice or water (Tr. 38). He denied that the coca tea had any effect on his work. Nobody else in his household drank the mate de coca (Tr. 39-40). On cross-examination, respondent testified that he bought the tea specifically to take it back home with him, but when asked what he knew about the tea before he bought it, he claimed, somewhat inconsistently, that he knew “[a]bsolutely nothing” (Tr. 40). He said he knew the name “mate”: “In Argentina, they speak about mate. There is publicity that speak about mate. Everywhere they speak about mate” (Tr. 41). Asked “what about coco [sic]?,” respondent twice answered, “Coco [sic], I don’t know” (Tr. 41). I have considered the remote possibility that respondent might have understood the question to be about “cocoa” because counsel pronounced the word with a long “o.” Respondent did not contend that he thought he was being asked about cocoa. The context was clear and he seemed to understand the import of the question being about “coca,” and claimed he had no idea about the coca content of the tea. Either way, he avoided any explanation of his understanding of the contents of the tea and the defense that respondent had absolutely no idea what was in the tea was not entirely credible. Asked what he thought mate de coca was, respondent said only that it was “a tea, but I got it related with Argentina, mate” (Tr. 41). He denied reading the ingredients, and testified that he saw only the picture of a tea cup and a glass of iced tea on the box (Tr. 41; Resp. Ex. C). - 5 -

Pressed to say what he had heard about mate de coca in Argentina, respondent answered, “I’ve always heard about mate. When I was in Argentina . . . 30 years ago, with the manager that I traveled with, we were at a café where they serve mate de coca. They serve it in a special cup” (Tr. 41). Asked to admit that he knew what was in mate de coca from 30 years ago, respondent conceded only that he knew it “[l]ike mate” (Tr. 41). Having lived in the United States for 15 years, respondent said, he never tried to get mate de coca here (Tr. 42). Although he knew that chamomile tea is good for digestion (Tr. 42), he had no explanation of what he thought the utility of mate de coca tea was. His daughter is a teacher of young children with special needs (Tr. 43-44). There was no indication that she is a scientist or expert of any kind in toxicology or drug testing. Respondent denied knowing that he could obtain mate de coca tea only in Peru: “No, because I bought it when I just saw it for first time in Peru” (Tr. 46). Respondent denied that he ever used heroin, cocaine, marijuana, or any other illegal drugs (Tr. 35, 40). He testified that he never knowingly used any derivative of cocaine (Tr. 40). Respondent’s son-in-law, John Coughlin, a commodities trader, likewise testified that he did not know respondent to be an illegal drug user and never saw him under the influence of any illegal substance in the eight years he has known him (Tr. 47-49, 51). Mr. Coughlin testified that his father-in-law is a man of “very high character” (Tr. 48). He stated that he knows respondent well and sees him regularly at family gatherings (Tr. 48-49). Mr. Coughlin took part of his vacation with his wife (respondent’s daughter) and with respondent and his family in Peru in 2013 (Tr. 49). In daily interactions in Peru, Mr. Coughlin observed no difference between respondent’s behavior in Peru and his behavior in New York (Tr. 51). Mr. Coughlin does not live with respondent (Tr. 53). This tribunal has recommended license revocation where petitioner’s evidence was sufficient to prove that respondent had tested positive for the controlled substance of cocaine. See, e.g., Taxi & Limousine Comm’n v. Anonymous, OATH Index No. 2389/13 (Aug. 28, 2013); Taxi & Limousine Comm’n v. Leiva, OATH Index No. 1524/09 (Nov. 24, 2008), adopted, Comm’r Dec. (Jan. 5, 2009); Taxi and Limousine Comm’n v. Castillo, OATH Index No. 641/08 (Dec. 18, 2007), adopted, Comm’r Dec. (Jan. 11, 2008). The courts have affirmed revocation in such circumstances. See, e.g., Fung v. Daus, 45 A.D.3d 392 (1st Dep’t 2007). A licensee may, however, interpose an affirmative defense of innocent ingestion of a controlled substance by presenting sufficient credible evidence in support. Taxi & Limousine - 6 -

Comm’n v. Kyei, OATH Index No. 1793/12 (Aug. 27, 2012), adopted, Comm’r Dec. (Dec. 19, 2012) (respondent credibly established that he unknowingly ingested an illegal substance that caused the positive result on his drug test). The licensee bears the burden of proving the affirmative defense of innocent ingestion by a preponderance of the evidence. Taxi and Limousine Comm’n v. Hussain, OATH Index No. 787/08 at 2 (Oct. 12, 2007), adopted, Comm’r Dec. (Nov. 15, 2007); Transit Auth. v. Coleman, OATH Index No. 455/92 at 37 (Mar. 12, 1992), adopted, Auth. Dec. (Apr. 1, 1992), aff’d, 198 A.D.2d (1st Dep’t 1993), leave to appeal denied, 84 N.Y.2d 801 (1994); Prince, Richardson on Evidence § 3-206 (Lexis 2008) (burden of persuading the trier of fact that the existence of a fact is more probable than not). We have noted that “the New York courts have long recognized that innocent or unknowing ingestion is a defense to a positive drug test.” Taxi and Limousine Comm’n v. Bah, OATH Index No. 3047/09 at 5 (June 11, 2009), adopted, Comm’r Dec. (June 29, 2009). See Gaudioso v. Schembri, 221 A.D.2d 165 (1st Dep’t 1995) (administrative law judge was in the best position to ascertain the credibility of correction officer’s testimony that he had unknowingly ingested marijuana by eating a piece of cake); Chiofalo v. Kelly, 70 A.D.3d 423 (1st Dep’t 2010) (secondary marijuana smoke inhalation and contaminated food); Connor v. N.Y.C. Police Dep’t, 22 A.D.3d 425 (1st Dep’t 2005) (innocent ingestion was a credibility question); Jackson v. Safir, 261 A.D.2d 348 (1st Dep’t 1999) (same); McGovern v. Safir, 266 A.D.2d 107 (1st Dep’t 1999) (same).2 In keeping with New York law, the Commission in Kyei recently recognized the innocent ingestion defense when it held that its rules imply “that those licensees who unwittingly ingest illegal substances should not be penalized for such innocent ingestion.” Kyei, Comm’r Dec. (Dec. 19, 2012), adopting, OATH 1793/12. The defense was upheld on the “unique” circumstances presented in Kyei. Cf. Taxi and Limousine Comm’n v. Ahsan, Comm’r Dec. (Oct. 22, 2009), rejecting OATH Index No. 287/10 (Aug. 21, 2009) (rejecting defense sustained by

2 See also Taxi and Limousine Comm’n v. Kurate, OATH Index No. 638/08 at 16 (Dec. 11, 2007), adopted, Comm’r Dec. (Jan. 16, 2008) (rejecting secondary marijuana smoke inhalation defense as equivocal, self-serving and doubtful; noting respondent’s hesitation and discomfort in describing parties he attended where marijuana might have been smoked by others; answers were tentative and vague); Taxi and Limousine Comm’n v. Petrone, OATH Index No. 640/08 (Oct. 22, 2007), adopted, Comm’r Dec. (Nov. 28, 2007) (defense that stranger must have put cocaine in drink at a bar found incredible); Taxi and Limousine Comm’n v. Hussain, OATH Index No. 787/08 (Oct. 12, 2007), adopted, Comm’r Dec. (Nov. 15, 2007) (rejecting defense that respondent did not know what he was smoking at hookah bar, though he knew there was hasheesh in the bowl, but claimed that he was only smoking a “flavor”).

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administrative law judge); Taxi and Limousine Comm’n v. Mercedes, Comm’r Dec. (Apr. 7, 2008), rejecting OATH Index No. 1706/08 (Mar. 6, 2008) (same); Taxi and Limousine Comm’n v. Acevedo, Comm’r Dec. (Feb. 14, 2008), rejecting OATH Index No. 946/08 (Jan. 7, 2008) (same). A respondent may also present expert testimony or other scientific evidence as a defense to the charge that a positive drug test resulted from the ingestion of a controlled substance. Dep’t of Sanitation v. Hernandez, OATH Index No. 125/03 (July 8, 2003), adopted, Comm’r Dec. (Aug. 19, 2003) (expert testimony of toxicologist and three scientific studies showed, contrary to agency’s expert opinion, that positive test for marijuana resulted from previous use of the drug that was already the subject of discipline). No scientific proof was offered by respondent here, though I do not find that lacuna fatal to the defense. I find that applying the applicable law to the facts before me, the innocent ingestion defense is implausible and must be rejected. This is not the first case in which this tribunal has considered the defense that innocent ingestion of mate de coca tea should negate a positive drug test for cocaine. In Department of Correction v. Caamano, OATH Index No. 326/05 at 6 (June 16, 2005), adopted, Comm’r Dec. (Aug. 9, 2005), Judge Donna R. Merris held: Where, as here, the Department has established evidence of the positive drug test results, the burden shifts to respondent to establish his affirmative defense that the false positive test results were due to the ingestion of the . The respondent must show: (1) he actually drank the tea; (2) the tea actually contained cocaine; and, (3) the ingestion of the tea, in the quantities alleged, would account for the positive test results obtained by the laboratory. Dep’t of Correction v. McGroarty, OATH Index No. 273/85 (Oct. 24, 1986).

In McGroarty, the innocent ingestion defense based on consumption of mate de coca tea was rejected where the respondent’s testimony was contradictory and confusing and respondent declined to call a number of independent witnesses who, he said, would have seen him frequently take the stimulant tea at work. OATH Index No. 273/85. In Coleman, OATH 455/92 at 40, the mate de coca innocent ingestion defense was found thoroughly incredible where respondent was evasive, never had the tea tested, and could not explain why he had kept a receipt for the tea two and-a-half months after the alleged purchase, a fact the administrative law judge found highly improbable. In the more recent case cited above, the mate de coca defense was sustained where a correction officer offered highly credible testimony corroborated by the person who served him the tea in a cup with a tea bag that looked like a common, every day tea bag. - 8 -

The officer never saw the box of tea or its label and his friend called it green tea when she served it to him; the tea was tested and experts agreed on its contents, the levels of cocaine in it, and the likely effect of the tea taken in small quantities on respondent’s behavior. Caamano, OATH 326/05. A finding of whether respondent actually drank the tea rests on a credibility determination. In making credibility findings, this tribunal has considered factors such as “witness demeanor, consistency of a witness’ testimony, supporting or corroborating evidence, witness motivation, bias or prejudice, and the degree to which a witness’ testimony comports with common sense and human experience.” Dep’t of Sanitation v. Menzies, OATH Index No. 678/98 at 2-3 (Feb. 4, 1998), adopted, Comm’r Dec. (Feb. 17, 1998), aff'd, NYC Civ. Serv. Comm’n Item No. CD 98-101-A (Sept. 9, 1998). Respondent had an interest in explaining away the positive cocaine test, but his purchase of the tea was supported by a receipt, consistent with a copy of a passport page showing a trip to Peru at the time of purchase, and by the box of tea corroborating his testimony.3 It is possible that he did drink mate de coca tea from May to July 2013 after his trip to Lima, although it was peculiar that he saved the receipt for two months for less than $3.00 worth of tea. Assuming that respondent did develop a habit of drinking mate de coca daily for nearly two months after he returned from his trip to Peru, once or twice a day, there were improbable aspects to the defense. Where the defense faltered was respondent’s denial that he knew anything about the contents of the tea, after having seen it served years ago in Argentina, and despite the clear markings on the box. Moreover, even if I fully credit respondent’s testimony that he drank mate de coca tea that he brought from Peru, the tea was not tested and there was no showing, scientific or otherwise, that the tea caused the test or that ingestion of the tea in the quantities alleged would account for the positive test results at the high level found. Ingestion of the tea did not preclude the use of cocaine. Although respondent presented himself as a serious, family man, I found his testimony sketchy when it came to why he bought the mate de coca tea and his understanding of its contents. His answers to questions about his knowledge of the coca in the tea seemed prepared and defensive, and were contradicted by the clear markings on the box. Indeed, the box of tea he

3 There is no name on the copied passport page. Respondent testified that he had the original passport at the hearing, but it was not offered into evidence (Tr. 26-27). - 9 -

submitted in evidence plainly stated in prominent, bold lettering: “MATE DE COCA” and “Coca Tea,” and gave the contents of 100% coca leaves in plain print in both Spanish and English (Resp. Ex. C). This tea had coca in it. Even if I fully credit respondent and his son-in- law, the defense that respondent innocently ingested a substance that could account for the positive cocaine test fell short because respondent did not drink this tea accidentally or inadvertently. He deliberately purchased it and he knowingly drank it. His denials of any understanding of the contents and purpose of the tea were pat answers. In comparison to his clear understanding of the properties of other teas he bought, his denials of any knowledge of the content or purpose of the coca tea were problematic. It is more likely that respondent had heard something about the properties of the tea, because he knew something about it relating to Argentina and saw it served in Argentina in a special cup years ago. As in Bah, OATH 3047/09, this is not a “classic” case of innocent ingestion “in which someone ingests a controlled substance without any knowledge of what they were taking, or reason to suspect they might be taking a controlled substance.” OATH 3047/09 at 6. In Bah, the taxicab driver knew he was taking the prescription Marinol (medical marijuana) of his fiancée’s relative. He was not duped into taking an illegal drug. Id. at 7. Cases in which the innocent ingestion defense has succeeded at this tribunal are distinguishable from the slim record here in that prevailing respondents have offered coherent explanations of why they had no reason to question the contents of the substance they were ingesting. See, e.g., Caamano, OATH Index No. 326/05 at 8 (friend of officer corroborated his testimony that he did not see or know what kind of tea she had served him at a social dinner or what was in it; “respondent had no reason to question the tea provided to him by [a friend] at a family dinner”); Kyei, OATH 1793/12 at 4 (alcoholic beverage had no list of ingredients on the bottle and respondent had no idea the drink contained hemp); Ahsan, OATH 287/10 (respondent’s wife gave him Tylenol pills for back pain, but he did not know they were her prescription Tylenol pills containing codeine); Mercedes, OATH 1706/08 (respondent’s daughter testified that she gave him her prescription cough syrup when he was very ill and had no health insurance, and he did not know the medication contained codeine); Acevedo, OATH 946/08 (adult daughter of driver gave her mother another family member’s prescription Tylenol; driver knew it was not her own prescription but believed the medication to be a more potent form of the over-the-counter medicine and daughter did not realize the medicine contained codeine). Thus, - 10 -

Acevedo and Mercedes, cited by respondent (Tr. 57; Resp. Exs. D and E), are based upon very different facts and are distinguishable. Here, by contrast, respondent had every reason to question the content of a tea that said “Coca” all over the box. Expert scientific proof is not always required to make out the defense of innocent ingestion if the defense is otherwise credible, see Kyei, OATH 1793/12 at 7; Dep’t of Correction v. Perpall, OATH Index No. 1146/98 at 6-7 (June 2, 1998), adopted, Comm’r Dec. (Aug. 7, 1998) (a musician at a club gave correction officer and other audience members individually wrapped cigars the officer did not know were laced with marijuana; two bouncers gave credible testimony corroborating respondent’s account that he angrily complained that “something was wrong” with his cigar after the cigar he smoked made him lightheaded). Here, I have found the defense that respondent had no idea what he was drinking incredible, irrespective of the absence of scientific proof. Compare Kyei, OATH 1793/12 (expert testimony was not required, but articles about marijuana in an alcoholic beverage called Atemuda later banned by the government of Ghana were submitted along with an editorial by a doctor stating that ingestion of hemp could cause a positive marijuana test), with Caamano, OATH Index No. 326/05 (extensive expert testimony from toxicologists called by both sides; tea was tested and opposing experts agreed that mate de coca caused a positive cocaine test at levels one-tenth of those in the instant case). Although respondent retained a number of the tea bags and his attorney emptied the box of them at the hearing to submit the box into evidence (Tr. 54-55), he did not have them tested in a laboratory and offered no scientific proof that the tea he drank could produce a positive cocaine test at the high level of his test, 30 times over the legal cut-off for a positive test. Nonetheless, a respondent may be able to make some scientific showing through published articles and documents without having to go to the expense of hiring an expert. This was not done here and I decline to import into this record the expert proof presented in prior mate de coca cases involving different amounts of tea, different factual scenarios, and tea that may not have the same content as the tea presented here. See Casado v. Kelly, 2011 N.Y. Misc. LEXIS 411, 2011 N.Y. Slip Op. 30376(U) (Sup. Ct. N.Y. Co. 2011) (noting in dicta that probationary police officer who also served as a senior airman in the Air National Guard (“ANG”) had convinced ANG of his innocent ingestion defense of consumption of mate de coca tea the day before the test by submitting reports and studies indicating that such tea may result in a positive test for cocaine, - 11 -

and an affidavit of a medical doctor stating the tea could have caused the positive test for cocaine metabolites at the concentration found). In the instant case, I have only the vague hearsay statement that respondent’s daughter, who is not a scientist, found something on the internet that linked mate de coca tea to positive cocaine tests, but no details and no documents from her web research were offered at the hearing. I am left with no reliable scientific data indicating whether the tea respondent had contained cocaine metabolite and at what levels, or that drinking this tea for two months once or twice a day had no effect on his ability to drive his licensed vehicle safely. On the other hand, the defense tended to prove that respondent knowingly ingested coca leaves, an illegal substance. Under the Public Health Law, coca leaves are a controlled substance: Schedule II (a) Schedule II shall consist of the drugs and other substances, by whatever official name, common or usual name, chemical name, or brand name designated, listed in this section. . . . (4) Coca leaves and any salt, compound, derivative, or preparation of coca leaves, and any salt, compound, derivative, or preparation thereof which is chemically equivalent or identical with any of these substances including cocaine and ecgonine, their salts, isomers, and salts of isomers, except that the substances shall not include decocainized coca leaves or extraction of coca leaves, which extractions do not contain cocaine or ecgonine.

Pub Health Law § 3306 Schedule II(b)(4) (Lexis 2013) (emphasis supplied). There was no proof that the coca leaves were decocainized. Unlike those who were given a drink or a medication by a friend or relative and had no reason to question the contents of the substance, respondent here knew he was buying and drinking mate de coca tea. Nobody slipped it to him. The tea box was clearly labeled. Accordingly, even though respondent asserted that he has never used cocaine, he has failed to submit evidence that would show that his positive drug test was attributable to unknowing ingestion of an illegal substance that would cause the high, positive drug test result here. Respondent’s evidence was insufficient to refute the proof of illegal drug use. Fung v. Daus, 45 A.D.3d at 392 (administrative law judge’s finding that defense of passive smoke inhalation lacked credibility “was entitled to great weight”). Thus, I find that respondent has tested positive for the use of a controlled substance in violation of the Commission’s rules. - 12 -

FINDINGS AND CONCLUSIONS 1. Petitioner proved that respondent tested positive for the use of a controlled substance.

2. Respondent failed to establish that the positive drug test was the result of innocent ingestion of mate de coca tea.

RECOMMENDATION Petitioner seeks revocation of respondent’s FHV driver’s license, asserting that respondent is unfit to retain his license because of his positive drug test for cocaine. That request is appropriate. See Fung 45 A.D.3d at 393 (“it cannot be concluded that the penalty of revocation imposed by [the Commission] shocks the judicial conscience”); Milano v. N.Y.C. Taxi & Limousine Comm’n, 305 A.D.2d 326, 327 (1st Dep’t 2003), appeal dismissed, 100 N.Y.2d 614 (2003), appeal denied, 5 N.Y.3d 707 (2005) (same); Hassan v. N.Y.C. Taxi & Limousine Comm’n, 287 A.D.2d 715, 716 (1st Dep’t 2001) (same). Even if respondent was off-duty when he ingested the controlled substance, I find a strong and direct nexus between this off-duty conduct and operating a taxicab. Respondent tested positive for the use of a controlled substance, and did not offer a credible defense. I am not unmindful that this positive drug test result was an aberration for respondent. I have considered his 14-year career, his maturity, and the fact that he is a family man. Regrettably, however, these mitigating facts are insufficient to overcome his knowing ingestion of an illegal substance. See Hussain, OATH 787/08 at 6 (15-year clean record of no positive drug tests; family man); Kurate, OATH 638/08 at 16 (nine-year record of no positive drug tests); Dep’t of Correction v. Tyson, OATH Index No. 1157/00 at 10 (June 19, 2000), adopted, Comm’r Dec. (July 19, 2000) (10-year clean record did not overcome positive cocaine test where innocent ingestion defense was incredible). The Commission has a significant interest in protecting the public at large from drivers who may be under the influence of illegal drugs, which could pose a threat to public safety. See Admin. Code § 19-512.1(a). In this case, respondent has not overcome these concerns. - 13 -

Accordingly, I recommend revocation of respondent’s FHV driver’s license.

Joan R. Salzman Supervising Administrative Law Judge

September 18, 2013

SUBMITTED TO:

DAVID YASSKY Commissioner/Chair

APPEARANCES:

ALLISON GREEN, ESQ. Attorney for Petitioner

RICHARD WEINBERG, ESQ. Attorney for Respondent