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Taxi & Limousine Comm’n v. Duran

OATH Index No. 1149/08 (Dec. 3, 2007)

For-hire vehicle licensee, who tested positive for marijuana use, failed to appear for fitness proceeding. Revocation of respondent’s license recommended.

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NEW YORK CITY OFFICE OF

ADMINISTRATIVE TRIALS AND HEARINGS

In the Matter of

TAXI AND LIMOUSINE COMMISSION

Petitioner

-against-

JUAN DURAN

Respondent

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REPORT AND RECOMMENDATION

INGRID M. ADDISON, Administrative Law Judge

The Taxi and Limousine Commission brought this proceeding against Juan Duran, 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 alleged that respondent is unfit to retain his license because he tested positive for marijuana use.

Respondent failed to appear for a hearing which was scheduled for November 30, 2007. Petitioner submitted proof of service sufficient to show that the petition and notice of suspension and hearing were sent to respondent at the address that he provided to the Commission (Pet. Exs. 1, 2). Based upon this evidence, respondent was found in default and the hearing continued in his absence. At the hearing, petitioner relied upon documentary evidence.

For the reasons below, I find the evidence sufficient to establish that respondent tested positive for marijuana use and recommend revocation of his FHV driver’s license.

ANALYSIS

Taxicab drivers are required to undergo annual drug testing. FHV drivers are required to undergo annual drug testing. 35 RCNY § 6-16(v)(1). A positive drug test may result in revocation of a FHV driver’s license following a hearing. 35 RCNY § 6-16(v)(2). Here, the evidence demonstrated that on November 1, 2007, respondent submitted a urine specimen that tested positive for the presence of marijuana metabolite.

At the hearing, petitioner relied upon an affidavit from Kamlesh Patel, an employee of Laboratory Corporation of America Holdings (“LabCorp”), and an underlying laboratory report (Pet. Ex. 3). In his affidavit, Mr. Patel summarized the chain of custody and drug testing procedures employed by LabCorp.

The chain of custody form (“CCF”) signed by respondent indicates that respondent’s urine specimen was sealed in his presence and assigned an identification number. LabCorp received the sealed sample 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 18 nanograms per milliliter (“ng/mL”), above the federally recognized cutoff level of 15 ng/mL. The identification number on LabCorp’s final report matched the number on the chain of custody form signed by respondent. Mr. Patel also noted that positive samples are frozen and maintained for one year and are available, upon request, for retesting (Pet. Ex. 3).

In addition, petitioner submitted into evidence a document from Neil J. Dash, M.D., a Medical Review Officer (Pet. Ex. 4), in which Dr. Dash states that he was provided with a copy of the CCF for respondent’s specimen. According to Dr. Dash, the following protocol was 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 id assigned by the laboratory was verified to the reported result. Dr. Dash certified the positive test result and notified the Commission.

In the petition and notice of hearing, respondent was given an opportunity to provide copies of prescriptions for any medications that could have caused the positive result. Petitioner also advised respondent of his right to have the specimen that he submitted re-tested, at his expense, at a certified laboratory of his choosing (Pet. Ex. 1).

Petitioner’s unrebutted evidence established, therefore, that respondent tested positive for use of a controlled substance in violation of the Commission’s rules. 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). Marijuana is classified as a controlled substance under the New York Public Health Law, section 3306 schedule I (d)(13) (Lexis 2007). Commission rules specifically authorize the revocation of a FHV driver’s license, after a hearing, when a driver tests positive on an annual drug test. SeeTaxi & Limousine Comm’n v. Mahmood, OATH Index No. 852/08, mem. dec. at 2 (Nov. 5, 2007) (revocation of license where unrebutted evidence showed that driver tested positive for use of a controlled substance). Absent evidence of lawful possession, there is a statutory presumption that the possession of a controlled substance is illegal. People v. Garthaffner, 103 Misc. 2d 671, 426 N.Y.S.2d. 955 (Crim. Ct. N.Y. Co. 1980), aff’d, 115 Misc. 2d 93, 454 N.Y.S.2d 583 (App. Term 1st Dep’t 1982).

FINDING AND CONCLUSION

  1. Petitioner properly served respondent with the petition and notice of hearing.
  1. Petitioner proved that respondent tested positive for use of a controlled substance.

RECOMMENDATION

Petitioner seeks revocation of respondent’s FHV driver’s license. That request is appropriate because use of a controlled substance is fundamentally incompatible with driving a vehicle and poses a threat to public safety. 35 RCNY §§ 6-16(v), 8-15(a); Admin. Code § 19-512.1. Accordingly, I recommend revocation of respondent’s FHV driver’s license.

Ingrid M. Addison

December 3, 2007Administrative Law Judge

SUBMITTED TO:

MATTHEW W. DAUS

Commissioner

APPEARANCES:

MARC T. HARDEKOPF, ESQ.

Attorney for Petitioner

No Appearance by Respondent