Taxi & Limousine Comm’n v



Taxi & Limousine Comm’n v. Shirzad

OATH Index No. 916/08 (Dec. 18, 2007)

Taxicab vehicle licensee, who tested positive for marijuana use, failed to establish collection mishandling. Revocation of respondent’s license recommended.

____________________________________________________

NEW YORK CITY OFFICE OF

ADMINISTRATIVE TRIALS AND HEARINGS

In the Matter of

TAXI AND LIMOUSINE COMMISSION

Petitioner

-against-

MIRWAIS SHIRZAD

Respondent

_____________________________________________________

REPORT AND RECOMMENDATION

INGRID M. ADDISON, Administrative Law Judge

Petitioner, the Taxi and Limousine Commission (“TLC” or “Commission”), commenced this fitness proceeding against respondent, Mirwais Shirzad, a TLC licensee, pursuant to the Commission’s rules, title 35 of the Rules of the City of New York (RCNY), and the New York City Administrative Code. See 35 RCNY § 8-15(a); Admin. Code § 19-512.1(a) (Lexis 2007). Petitioner alleges that respondent is unfit to retain his license based on a positive drug test for marijuana.

A hearing was held before me on December 7, 2007. Petitioner relied on documentary evidence. Respondent appeared with counsel, testified on his own behalf and challenged the collection of his urine sample. For the following reasons, I find petitioner’s evidence sufficient to sustain its charges and recommend that respondent’s taxicab license be revoked.

ANALYSIS

The Commission’s rules require that drivers undergo annual testing for drugs and controlled substances as defined by section 3306 of the Public Health Law. If a driver tests positive, his license may be revoked. 35 RCNY § 2-19(b)(1), (2) (Lexis 2007). Here, petitioner seeks revocation of respondent’s hack license because his drug test was positive.

To support its charges, petitioner relied upon an affidavit from Joseph Watson, a toxicologist at Laboratory Corporation of America Holdings (“LabCorp”), and an underlying laboratory report (Pet. Ex. 3). According to Mr. Watson, LabCorp is licensed and certified by the New York State Department of Health to perform forensic urine drug testing. Specimen collection and testing begin at one of LabCorp’s collection sites and are done “in accordance with the requirements that pertain to maintaining the specimen’s chain-of-custody as set forth in the Urine Specimen Collection Handbook for Federal Agency Workplace Drug Testing Programs” published by the U.S. Department of Health and Human Services Substance Abuse and Mental Health Services Administration. Mr. Watson affirmed that LabCorp protects the integrity of its forensic data, from the collection of the specimen through an extensive chain-of-custody program. He summarized the chain of custody and drug testing procedures employed by LabCorp.

Respondent signed the chain of custody form (“CCF”) at the time he submitted his specimen. Immediately above his signature is an authorization and acknowledgement that the specimen container was sealed with a tamper-proof seal in respondent’s presence and that the information on the CCF and the label affixed to the specimen container was correct. The collector signed immediately beneath, certifying that the specimen identified on the form had been collected, labeled and sealed in accordance with applicable requirements.[1] The specimen was assigned an identification number upon receipt, and was transferred for testing 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 55 nanograms per milliliter (“ng/mL”), well above the federally recognized cutoff level of 15 ng/mL. The identification number on LabCorp’s final report matched the number on the CCF signed by respondent. Mr. Watson noted that positive samples are frozen and maintained for one year and are available, upon request, for retesting.

Petitioner also submitted a document from Neil J. Dash, M.D., a Medical Review Officer (Pet. Ex. 2), in which Dr. Dash states that he was provided with a copy of the CCF for respondent’s specimen. Dr. Dash described the following protocol 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 identification number assigned by the laboratory was verified to the reported result. Dr. Dash certified the positive test results and notified the Commission.

The Commission notified respondent of his positive test results on October 26, 2007, and advised him that it was seeking revocation of his license (ALJ Ex. 1).

Respondent does not challenge the results of the test. Instead, he challenges the collection of his specimen.

Respondent testified that he has been a yellow cab driver for two years and that this was not his first drug test. According to him, when he arrived at the testing facility in Bayside, Queens, on September 21, 2007, it was not yet open and there were five or six people waiting. When it opened, they all rushed in. The sole attendant called two people at a time to produce urine samples. While handing over his sample, he observed three unsealed samples on the table. He claims that he did not observe his sample being sealed. Nonetheless, he handed it in and signed the form as instructed by the attendant. Respondent stated that, despite his signature on the CCF, he had not read the authorization and acknowledgement.

Petitioner must establish its charges by a preponderance of the evidence. Here, that includes establishing that the specimen that tested positive for marijuana belongs to respondent. To meet its burden, petitioner must provide “reasonable assurances of identity and unchanged condition.” See Dep’t of Correction v. Pizarro, OATH Index No. 834/91, at 10 (May 22, 1991) (quoting People v. Julian, 41 N.Y.2d 340, 343, 392 N.Y.S.2d 610, 613 (1977)) (no evidence of tampering, adulteration or change of the physical evidence; no interruption in the chain of custody or brief interruptions from which no tampering can be implied; and maintenance of the evidence in accordance with reasonable procedures). I find that it has.

Respondent signed the CCF, certifying that his specimen was sealed with a tamper-proof seal in his presence and the collector certified that the specimen was labeled and sealed in accordance with applicable requirements. Moreover, I am satisfied with the chain of custody outlined in Mr. Watson’s affidavit and Dr. Dash’s confirmation of the protocol that was followed in the chain of custody for the specimen. 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) (the same type of documentation was found to constitute substantial evidence of reliable laboratory testing for the presence of illegal drugs).

Consideration of respondent’s challenge to the collection of his specimen requires an evaluation of his credibility. In making credibility determinations, this tribunal has often considered “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.” Taxi & Limousine Comm’n v. Martinez, OATH Index No. 1183/07, mem. dec. at 4 (Apr. 11, 2007) (quoting Dep’t of Sanitation v. Menzies, OATH Index No. 678/98, at 2-3 (Feb. 4, 1998), aff’d, NYC Civ. Serv. Comm’n Item No. CD 98-101-A (Sept. 9, 1998)).

There was nothing in respondent’s testimony to convince me that there were flaws in the process at the collection facility that had compromised his specimen and corrupted the integrity of the results. The drug test to which respondent submitted is an annual one. Respondent admitted that this was not his first test. It was his third. As such, this was not the first CCF that he had signed, acknowledging that the label on his specimen was accurate and that the specimen had been sealed in his presence. The acknowledgement was prominently located immediately above his signature to avoid being inadvertently overlooked. Even though respondent testified that English is not his first language, I found him to be extremely fluent and proficient. He did not claim an inability to read or understand. In fact, he confirmed that he is fluent in English. Therefore, I find his disclaimer as to what he had signed to be disingenuous.

Further, a party’s failure to read a document before executing it cannot be used to avoid its effect. See Pressley v. Rochester City School Board, 234 A.D.2d 998, 652 N.Y.S.2d 191 (4th Dep’t 1996) (plaintiff’s release of defendants’ liability could not be voided by her assertion that she had not read it before execution).

Moreover, respondent was aware that a positive drug test could result in the revocation of his license. The Commission’s rule 2-19 makes this quite clear. Therefore, his testimony that he observed three unsealed urine samples when he handed over his is incredible and self-serving. Respondent’s significant stake in the outcome of the test is the retention of his license, which he claims to be his only source of income. As such, it does not comport with common sense that respondent would have observed unsealed samples and fail to remark on them or wait to confirm that his specimen was appropriately labeled and sealed.

Accordingly, respondent has failed to convince me that the collection center mislabeled his specimen and that it was not his specimen on which the positive result was based. I therefore conclude that petitioner’s evidence is sufficient to sustain its charge that respondent submitted to a drug test on September 21, 2007, and that his sample tested positive for marijuana, which is classified as a controlled substance under the New York Public Health Law, section 3306 schedule I (d)(13) (Lexis 2007).

FINDINGS AND CONCLUSIONS

1. Petitioner established that respondent’s urine sample submitted on September 21, 2007, tested positive for marijuana, a controlled substance.

2. Respondent’s use of a controlled substance is in violation of Commission rule 2-19 (b)(1) and Administrative Code section 19-512(1).

3. Respondent is unfit to retain a TLC license.

RECOMMENDATION

Petitioner’s unrebutted evidence established that respondent tested positive for use of a controlled substance in violation of the Commission’s rules. See Fung, 2007 N.Y. Slip Op. 8863, 2007 N.Y. App. Div. LEXIS 11774. Marijuana is classified as a controlled substance under the New York Public Health Law, section 3306 schedule I (d)(13) (Lexis 2007). The ingestion of any controlled substance is incompatible with driving a taxicab and, in taking such a drug, respondent poses a threat to public safety. See, e.g., Fung, 2007 N.Y. Slip Op. 8863 at 2, 2007 N.Y. App. Div. LEXIS 11774 at 3 (“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); Hassan v. N.Y. City Taxi & Limousine Comm’n, 287 A.D.2d 715, 732 N.Y.S.2d 52 (2d Dep’t 2001).

Commission rules specifically authorize the revocation of a driver’s license, after a hearing, when a driver tests positive on an annual drug test. See Taxi & 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).

Accordingly, pursuant to Commission rules 2-19 and 8-15 and Administrative Code section 19-512.1, I recommend that respondent’s license be revoked.

Ingrid M. Addison

Administrative Law Judge

December 18, 2007

SUBMITTED TO:

MATTHEW W. DAUS

Commissioner

APPEARANCES:

MARC T. HARDEKOPF, ESQ.

Attorney for Petitioner

MICHAEL SPEVACK, ESQ.

Attorney for Respondent

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[1] Part of the certification was unreadable because a cash sale receipt that had been placed over that section.

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