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Taxi & Limousine Comm’n v. Bernal
OATH Index No. 401/09 (Aug. 27, 2008)
Petitioner proved that respondent’s urine tested positive for cocaine metabolite. Revocation of respondent’s hack license recommended. ______
NEW YORK CITY OFFICE OF
ADMINISTRATIVE TRIALS AND HEARINGS
In the Matter of
TAXI AND LIMOUSINE COMMISSION
Petitioner
- against -
LUIS BERNAL
Respondent
______
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 taxicab driver, is charged with being unfit to maintain his hack license based on the results of a drug test that revealed the presence of cocaine metabolite in his urine (ALJ Ex. 1).
Respondent appeared for the hearing on August 1, 2008, without an attorney. After being advised of his rights, respondent decided to go forward with the hearing pro se.[1] Respondent denied ingesting cocaine.
I find petitioner’s documentary evidence sufficient to sustain the charge that respondent tested positive for cocaine metabolite and recommend revocation of his hack license.
ANALYSIS
Taxi and Limousine Commission rule 2-19 states in relevant part:
(b)(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 § 2-19(b)(1), (2) (Lexis 2008).
Petitioner’s proof consisted of an affidavit from Kamlesh Patel, a toxicologist employed by Laboratory Corporation of America Holdings (“LabCorp”) with an accompanying toxicology report and supporting documents. The affidavit of Mr. Patel and the accompanying documents demonstrate that respondent appeared for a drug test at a testing site in Jackson Heights on July 2, 2008. 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 cocaine metabolite. A gas chromography/mass spectrometry test performed on the specimen confirmed the presence of cocaine metabolite at 390 nanograms per milliliter, above the cut-off level of 150 nanograms per milliliter, established by federal government drug test guidelines (Pet. Ex. 3). Public Health Law section 3306 includes cocaine as a controlled substance. Pub. Health Law § 3306, Schedule II(b)(4) (Lexis 2008).
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 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). Respondent was also advised of his right to have the original specimen retested by another certified laboratory of his choice.
Respondent testified that he is 70 years old and is recovering from prostate cancer having recently undergone 44 days of radiation treatment. He denied ever ingesting cocaine and argued that doing so while on radiation treatment would have been foolish and detrimental to his health. Once respondent learned of the positive drug test, he requested that New York Methodist Hospital fax documents regarding the medication he was on to the Doctors Review Service on his behalf. Among the documents faxed were an appointment card for the department of radiation oncology and a letter stating that respondent was on Flomax while receiving radiation therapy (Resp. Ex. A). Respondent was not certain what if any other documents the hospital faxed to the Doctors Review Service.
Petitioner offered a document entitled “Doctors Review Service” which was signed by Dr. Dash. The document reads that:
We have received and reviewed documents pertaining to [Luis Bernal], pertinent to [his] drug test. The documentation was for drugs which were not consistent with the results of this donor’s drug test of cocaine (metab.)). [sic] Based on this review, there will be no change in the reported result. The result remains fail.”
(Pet. Ex. 3). Although the document does not indicate the specific documentation or drugs reviewed, the logical inference based on the evidence is that the Doctors Review Service at a minimum reviewed the effects, if any, that the ingestion of Flomax would have on respondent’s drug test results. Respondent did not challenge Dr. Dash’s conclusion that the medication submitted for review was not the cause of the positive drug test. Instead, respondent argued that the lab must have switched his urine specimen.
When asked to describe the specimen collection process and any irregularities that occurred during the collection, respondent testified that the technician did not return half of his urine sample to him as she did to the other donors. Respondent denied seeing the technician switch or otherwise tamper with his urine specimen.
Respondent’s testimony is insufficient to overcome the Commission’s evidence. Despite his assertions, respondent offered no credible evidence that his urine sample was switched, tampered with or adulterated or that there were any irregularities in the specimen collection process which could have tainted the drug test results. To the contrary, the uncontroverted evidence is that respondent’s urine specimen was sealed in a container with a tamper-proof seal and assigned a unique identification number and bar code. The specimen was received at the laboratory the following day with the seals intact and was tested. Respondent’s assertion that his urine sample must have been switched is mere conjecture stemming from his steadfast denial of ever using cocaine, not on actual evidence.
Accordingly, I find petitioner’s uncontroverted documentary evidence sufficient and reliable to establish a prima facie case that respondent’s urine tested positive for cocaine metabolite. See Matter of Fung v. Daus, 2007 45 A.D.3d 392, 846 N.Y.S.2d 104 (1st Dep’t 2007); see also Taxi & Limousine Comm’n v. Shakoor, OATH Index No. 860/08 (Nov. 30, 2007).
FINDINGS AND CONCLUSIONS
Petitioner proved that respondent’s urine sample tested positive for the presence of cocaine metabolite, a controlled substance, in the amount of 390 nanograms per milliliter, in excess of the 150 nanograms per milliliter cutoff established by federal government drug test guidelines and invoked by the Commission.
RECOMMENDATION
The Commission is seeking the revocation of respondent’s taxicab driver’s license. Commission rule 2-19(b)(2), authorizes the revocation of a driver’s hack license, after a hearing, when a driver tests positive on his/her annual drug test. See 35 RCNY §§ 2-19(b)(2) and 8-15 (Lexis 2008). The ingestion of cocaine undoubtedly is incompatible with driving a taxicab. In so doing, respondent poses a threat to public safety and is unfit to maintain his Commission license. See, e.g., Fung, 2007 45 A.D.3d at 393, 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), 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 (2nd Dep’t 2001) (same). “The riding public is entitled to expect when hailing TLC-licensed taxicabs that the cab drivers are free of illicit drugs.” Taxi & Limousine Comm’n v. Kurate, OATH Index No. 638/08, at 18 (Dec. 11, 2007).
Accordingly, pursuant to Commission rules 2-19 and 8-15 and Administrative Code section 19-512.1, I recommend that the Commission revoke respondent’s license.
Julio Rodriguez
Administrative Law Judge
August 27, 2008
SUBMITTED TO:
MATTHEW W. DAUS
Commissioner
APPEARANCES:
MARC T. HARDEKOPF, ESQ.
Attorney for Petitioner
LUIS BERNAL
Pro se
[1] Prior to commencing the hearing I informed respondent of his right to be represented by an attorney or any other person. I explained the charge to respondent, that the Commission was seeking to revoke his license and that he may benefit from having an attorney represent him. I informed respondent that I would adjourn the matter to give him an opportunity to retain counsel if he so desired. See, Rule 103(A)(8) of Appendix A to title 48 of the Rules of the City of New York, the Rules of Conduct for Administrative Law Judges and Hearing Officers of the City of New York.