Dep't of Correction V s4
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Taxi & Limousine Comm’n v. Siegel
OATH Index No. 1271/08 (Jan. 2, 2008)
Petitioner proved that respondent’s urine tested positive for marijuana metabolite. Revocation of respondent’s license to drive for-hire vehicles recommended.
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NEW YORK CITY OFFICE OF
ADMINISTRATIVE TRIALS AND HEARINGS
In the Matter of
TAXI AND LIMOUSINE COMMISSION
Petitioner
- against -
NEAL SIEGEL
Respondent
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REPORT AND RECOMMENDATION
JULIO RODRIGUEZ, Administrative Law Judge
This proceeding was commenced by petitioner, the Taxi and Limousine Commission, pursuant to Commission rule 8-15 (35 RCNY § 8-15) and Administrative Code section 19-512.1 to determine respondent’s fitness to maintain his Commission license. Respondent, a licensed for-hire vehicle driver, is charged with being unfit to maintain his license based on the results of a drug test that revealed the presence of marijuana metabolite in his urine (ALJ Ex. 1).
Upon respondent’s failure to appear for the hearing December 27, 2007, petitioner submitted proof of service on respondent of the petition and notice of suspension and hearing at the address respondent provided to the Commission (Pet. Exs. 1 & 2). The evidence suffices to find respondent in default and the hearing proceeded in the form of an inquest.
I find petitioner’s documentary evidence sufficient to sustain the charge that respondent’s urine tested positive for marijuana metabolite and recommend revocation of his license to drive for-hire vehicles.
ANALYSIS
Taxi and Limousine Commission rule 6-16 states in relevant part:
(v)(1) [E]ach licensee . . . shall be tested annually, at the licensee’s expense, for drugs or controlled substances, as set forth in § 3306 of the Public Health Law . . . (2) If the results of said test are positive, the driver’s license may be revoked after a hearing in accordance with § 8-15 of this title.
35 RCNY § 6-16(v)(1), (2) (Lexis 2007).
Petitioner’s proof consisted of an affidavit from Joseph Watson, a toxicologist employed by Laboratory Corporation of America Holdings (“LabCorp”) with an accompanying toxicology report and supporting documents. The affidavit of Mr. Watson and the accompanying documents demonstrate that respondent appeared for a drug test at a testing site in Long Island City on November 26, 2007. The Chain of Custody Form (“CCF”), which respondent signed, indicates that he provided a urine specimen which was sealed in a container with a tamper-proof seal and assigned a unique identification number and bar code. The following day the specimen was received at a LabCorp laboratory in Raritan, New Jersey, with the seals intact. An immunoassay test performed on the specimen indicated the presence of marijuana metabolite. A gas chromography/mass spectrometry test performed on the specimen confirmed the presence of marijuana metabolite at 26 nanograms per milliliter, above the cut-off level of 15 nanograms per milliliter, established by federal government drug test guidelines (Pet. Ex. 3). Public Health Law section 3306 includes marijuana as a controlled substance. Pub. Health Law § 3306, Schedule I(d)(13) (Lexis 2007).
Petitioner also submitted a document from Neil J. Dash, M.D. a Medical Review Officer (Pet. Ex. 4). The document establishes that Dr. Dash was provided with a copy of the CCF for respondent’s specimen and that the CCF was checked for accuracy. Specifically, Dr. Dash verified that: (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; and (4) the specimen id assigned by the laboratory was verified to the reported result. Based on this review, Dr. Dash certified the positive test result and notified the Commission.
The petition and notice of suspension and hearing that the Commission served on respondent advised him that if he was taking medication that could have caused the positive test result, to forward copies of the prescription to the Doctors Review Service (Pet. Ex. 1). He was also advised of his right to have the original specimen retested by another certified laboratory of his choice. Respondent failed to appear for the hearing. As such, there is no evidence that respondent provided the Doctors Review Services with any prescriptions or that he sought to have the specimen retested.
I find petitioner’s uncontroverted documentary evidence sufficient and reliable to make a prima facie case that respondent’s urine tested positive for marijuana metabolite. See Matter of Fung v. Daus, 2007 N.Y. Slip Op. 8863, 846 N.Y.S.2d 104 (1st Dep’t Nov. 15, 2007); see also Taxi & Limousine Comm’n v. Shakoor, OATH Index No. 860/08 (Nov. 30, 2007); Taxi & Limousine Comm’n v. Mahmood, OATH Index No. 852/08 (Nov. 5, 2007).
FINDINGS AND CONCLUSIONS
1. Petitioner proved that respondent’s urine sample tested positive for the presence of marijuana metabolite, a controlled substance, in the amount of 26 nanograms per milliliter, in excess of the 15 nanograms per milliliter cutoff established by federal government drug test guidelines and invoked by the Commission.
2. Respondent is unfit to hold for-hire vehicle driver’s license number 5214967 and poses a threat to public safety.
RECOMMENDATION
The Commission is seeking the revocation of respondent’s license to drive for-hire vehicles. Commission rule 6-16(v)(2), authorizes the revocation of a driver’s for-hire vehicle license, after a hearing, when a driver tests positive on his/her annual drug test. See 35 RCNY §§ 6-16(v)(2) and 8-15 (Lexis 2007). The ingestion of marijuana undoubtedly is incompatible with driving a taxicab. By so doing, respondent poses a threat to public safety and is unfit to maintain his Commission license. See, e.g., Fung, 2007 N.Y. Slip Op. 8863 at *2, 846 N.Y.S.2d at 105 (“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), appeal dismissed, 100 N.Y.2d 614, 767 N.Y.S.2d 395 (2003), appeal denied, 5 N.Y.3d 707, 801 N.Y.S.2d 801 (2005) (same); Hassan v. N.Y. City Taxi & Limousine Comm’n, 287 A.D.2d 715, 732 N.Y.S.2d 52 (1st Dep’t 2001) (same). Accordingly, pursuant to Commission rules 6-16 and 8-15 and Administrative Code section 19-512.1, I recommend that the Commission revoke respondent’s license.
Julio Rodriguez
Administrative Law Judge
January 2, 2008
SUBMITTED TO:
MATTHEW W. DAUS
Commissioner
APPEARANCES:
MARC T. HARDEKOPF, ESQ.
Attorney for Petitioner
No appearance by or for Respondent.