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Taxi & Limousine Comm’n v. Williams

OATH Index No. 1869/08(Mar. 18,2008)

Taxicab driver, who tested positive for cocaine use, failed to appear for fitness proceeding. Revocation of taxicab driver’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-

EARL WILLIAMS

Respondent

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REPORT AND RECOMMENDATION

JOHN B. SPOONER,Administrative Law Judge

The Taxi and Limousine Commissionbrought this proceeding against taxicab driver Earl Williams under its rules and New York City’s Administrative Code. 35 RCNY §§2-19(b) and 8-15 (Lexis 2008);Admin. Code § 19-512.1 (Lexis 2008). Petitioner alleged that respondent is unfit to retain his license because he tested positive for cocaine.

Respondent failed to appear for a hearing which was scheduled for March 14, 2008. 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 and 2). Based upon this evidence, respondent was found in default and the hearing proceeded in his absence. At the hearing, petitioner presented documentary evidence of the positive drug test.

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

ANALYSIS

Commission rules require that all taxicab drivers undergo annual drug testing. 35 RCNY § 2-19(b)(1). A positive drug test may result in revocation of a taxicab driver’s license following a hearing. 35 RCNY § 2-19(b)(2). Here, the evidence demonstrated that on February 13, 2008,respondent submitted a urine specimen that tested positive for the presence of cocaine metabolite.

At the hearing, petitioner relied upon an affidavit from Kamlesh Patel, an employee of Laboratory Corporation of America Holdings (“LabCorp”), and other supporting documentation (Pet. Ex. 4). In his affidavit, Mr. Patel summarized the chain of custody and drug testing procedures employed by LabCorp. Attached to the Patel affidavit is a chain of custody form, signed by respondent, which indicates that respondent’s urine specimen was collected on February 13, 2008, sealed in respondent’s presence, and assigned a unique identification number. LabCorp received the sealed sample the next day. The initial immunoassay screening testwas positive for cocaine metabolite. The follow-up gas chromatography/mass spectrometry testing confirmed thepresence of cocaine metabolite at a level of 1,395 nanograms per milliliter, nearly ten times the federally recognized cutoff level of 150 nanograms per mililiter. The identification number on LabCorp’s final report matched the number on the chain of custody form signed by respondent.

Petitioner’s evidence was sufficient to prove that respondent tested positive for use of a controlled substance. 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); see also Taxi & Limousine Comm’n v. Rodriguez, OATH Index No. 950/08 (Nov. 19, 2007) (revocation of license where driver defaulted and unrebutted evidence demonstrated that driver tested positive for cocaine).

FINDING AND CONCLUSION

  1. Petitioner properly served respondent with the petition and notice of hearing and his nonappearance at the hearing of March 14, 2008, was unexcused.
  1. The allegation of unfitness should be sustained in that petitioner’s proof demonstrated that respondent tested positive for use of cocaine.

RECOMMENDATION

Petitioner seeks revocation of respondent’s taxicab driver’slicense. That request is appropriate because cocaine use is fundamentally incompatible with driving a taxicab and poses a threat to the public safety. 35 RCNY § 2-19(b)(2); Admin. Code § 19-512.1. Accordingly, I recommend revocation of respondent’s taxicab driver’s license.

John B. Spooner

Administrative Law Judge

March 18, 2008

SUBMITTED TO:

MATTHEW W. DAUS

Commissioner

APPEARANCES:

MARC T. HARDEKOPF, ESQ.

Attorney for Petitioner

No Appearance by Respondent