Dep't of Correction v



Taxi & Limousine Comm’n v. Kurate

OATH Index No. 638/08 (Dec. 11, 2007)

Petitioner proved that respondent’s drug test was positive for marijuana. Judge recommends revocation of license.

______________________________________________________

NEW YORK CITY OFFICE OF

ADMINISTRATIVE TRIALS AND HEARINGS

In the Matter of

TAXI AND LIMOUSINE COMMISSION

Petitioner

- against -

DEREJE KURATE

Respondent

______________________________________________________

REPORT AND RECOMMENDATION

JOAN R. SALZMAN, Administrative Law Judge

This license revocation proceeding was referred by petitioner, the Taxi and Limousine Commission (“TLC”), pursuant to the New York City Administrative Code and the Taxi and Limousine Commission’s Taxicab Drivers Rules. Respondent Dereje Kurate, a licensed taxicab driver, is charged with being unfit to maintain his license because he underwent a drug test, the results of which were positive for the presence of marijuana in his system. A hearing was held on October 18 and November 29, 2007, to determine respondent’s fitness to maintain his taxicab license, pursuant to Commission rule 8-15 and Administrative Code section 19-512.1 (ALJ Ex. 1).

The agency submitted only documentary evidence at the first hearing session on October 18, 2007. Respondent appeared with counsel and was the only witness at that time. Respondent moved to dismiss the matter for insufficient proof and the Commission opposed the motion. I gave the parties an opportunity to brief the issue of the sufficiency of the proofs and they did so on November 1 and 8, 2007. Respondent’s counsel raised an issue about the indication of two dates for the certification of the drug test results on the Chain of Custody Form by Joseph P. Watson, Forensic Toxicology Manager, Occupational Testing Services, Laboratory Corporation of America Holdings (known as LabCorp). At the close of the hearing session on October 18, 2007, I gave petitioner’s counsel an opportunity to inquire of Mr. Watson about the import of the apparent anomaly, and petitioner’s counsel indicated that he would reach out to Mr. Watson and try to report back that day (Tr. 23-24). Respondent’s counsel stated that she would accept an affidavit of Mr. Watson as admissible, though she reserved the right to object that the toxicologist should be subject to cross-examination if a mere e-mail were submitted (Tr. 24-25). However, petitioner submitted no affidavit of Mr. Watson. When petitioner’s briefing did not supply any explanation of Mr. Watson’s signature and the two certification dates, I sent an e-mail on November 9, 2007, to both counsel to inquire about the status of the inquiry to Mr. Watson. Instead of submitting an affidavit of Mr. Watson, petitioner forwarded an e-mail message from Mr. Watson that raised a host of questions about the dates he certified the test results, as respondent’s counsel objected in her e-mail of November 10, 2007 (ALJ Ex. 2). I determined that these questions must be explored by cross-examination of Mr. Watson. Thus, I sustained respondent’s objections to the e-mail being considered without cross-examination. On November 14, 2007, upon considering the arguments of counsel for both sides in a set of e-mails on this point, and after affording petitioner a full opportunity to submit additional material from Mr. Watson and also on the integrity check of the test results by Doctors Review Service (DRS), an independent entity, I reopened the record give both parties an opportunity to address, through testimony of Mr. Watson and any additional witnesses they might wish to call, the unresolved factual issue relating to the apparent peculiarity in the dates of certification on the Chain of Custody Form in the laboratory packet concerning the drug test in this case (Pet. Ex. 1; ALJ Ex. 2).[1] A continued hearing for purposes of taking the testimony of Mr. Watson about the nature, extent, and significance, if any, of the admitted anomaly on the LabCorp Chain of Custody Form (namely, the two certification dates) (ALJ Ex. 2), was conducted and concluded on November 29, 2007.[2] The record was closed on November 30, 2007, when respondent’s counsel submitted the missing attachments to her brief.

For the reasons set forth below, the motion to dismiss is denied. I find that the Commission has met its burden of proof, and I recommend that respondent’s license be revoked because his drug test was positive for marijuana.

ANALYSIS

Taxicab drivers must 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 showed that on August 23, 2007, respondent submitted a urine specimen that was shown by scientific testing to contain the metabolite for marijuana. Commission rule 2-19 requires annual testing of its licensed taxicab drivers “for drugs or controlled substances, as set forth in § 3306 of the Public Health Law.” 35 RCNY § 2-19(b)(1) (Lexis 2007). Public Health Law section 3306 includes marijuana as a controlled substance. Public Health Law § 3306, Schedule I(d)(13) (Lexis 2007).

The Affidavit of Kamlesh Patel, a toxicologist employed by LabCorp, sworn to September 24, 2007, established that LabCorp is licensed and certified by the New York State Department of Health to perform forensic urine drug testing, and is accredited by the U.S. Department of Health and Human Services Substance Abuse and Mental Health Services Administration as required by the Mandatory Guidelines for Federal Workplace Drug Testing Programs (Patel Aff. ¶ 10). The Patel Affidavit and the Chain of Custody Form (Pet. Ex. 1, page 06), which respondent signed, indicates that respondent provided a urine specimen on August 23, 2007, at LabCorp’s West 23rd Street location in Manhattan. The sample was sealed in a container with a tamper-proof seal and assigned an identification number and bar code, which linked the specimen to the form and also appeared on the Final Report of the drug tests completed (Pet. Ex. 1, page 07). The same day, the LabCorp’s Collector, D. Ramh Augta, released the secured specimen to the lab’s delivery service. LabCorp’s laboratory “Accessioner” in Raritan, New Jersey, stamped and signed the Chain of Custody Form to show that the lab received it intact the next day. The test results showed that the sample contained 35 nanograms per milliliter of marijuana metabolite, more than twice the cut-off level in federal government drug test guidelines invoked by the Commission (15 nanograms [ng] per milliliter) (Pet. Ex. 1). The specimen first underwent an immunoassay testing screen for controlled substances and was shown to have a presumptive positive result for marijuana metabolite. The specimen was next subjected to a confirmatory process known as gas chromatography/mass spectrometry (GC/MS) testing, which showed the 35 ng positive result for the marijuana metabolite (Patel Aff. ¶¶ 3-7).

Petitioner submitted both a Chain of Custody Form and documents from DRS certifying the positive test and indicating that DRS performed a check to rule out a false positive, following its protocol. Neil J. Dash, M.D., the Certifying Medical Review Officer (“MRO”) of DRS (Pet. Ex. 2), located in Massapequa, New York (Pet. Ex. 1, page 06), signed and certified this independent review on a document that demonstrates that Dr. Dash was provided with a copy of a complete Chain of Custody Form for respondent’s specimen (Resp. Ex. A). According to Dr. Dash’s signed certification, he verified, according to DRS protocol, the accuracy of the Chain of Custody Form as follows: (1) respondent’s signature appeared on the form; (2) if an interview was conducted, the date of birth and license (hack) numbers were verified; (3) the Chain of Custody Form control number was compared to the reported result; and (4) the specimen identification assigned by the laboratory was verified to the reported result. Dr. Dash also certified that “[a] facsimile of the custody and control form (CCF) was received by [him] over a secure fax line;” and he certified the positive test result and notified the Commission (Pet. Ex. 1, at page 04). Mr. Patel also certified the results in a letter to petitioner’s counsel by a signed letter dated September 11, 2007 (Pet. Ex. 1, at page 02; Pet. Ex. 2).

I find that DRS made an inquiry of respondent to determine whether he was taking prescription drugs or whether some medical or other condition could account for the positive test. This process uncovered no information indicating a false positive (Pet. Exs. 1, 2). Indeed, respondent himself corroborated on direct examination by his own attorney the information in the DRS forms that showed that a Medical Review Officer from DRS called him to verify the validity of the test:

Q. Okay. And it came up, tell the Judge what happened.

A. Well, I received a phone call in my house, a message I should call to doctor, he mentioned, I don’t know. So I have to call them the next day. They ask me a few question [sic] if I am taking a prescription. I say no. They say you gonna get a letter or something from TLC and they hung up.

Q. Did they tell you what your test was positive for?

A. They said positive for marijuana, yes.

(Tr. 27).

Apart from respondent’s blanket denial that he ever used marijuana, the only factual dispute in this matter centered on the Chain of Custody Form and the question of why the test result was certified on two dates, August 25 and 30, 2007, by toxicologist Joseph P. Watson on a LabCorp photocopy of the form. Given the opportunity to inquire of Mr. Watson, petitioner’s counsel, on November 9, 2007, forwarded to respondent’s counsel and me Mr. Watson’s unsworn e-mail. Mr. Watson wrote:

I pulled a copy of the package and I recall this specimen.  I had

originally reviewed and certified the data/result on August 25, 2007.

At that time, I had omitted applying the certification sticker/label to

our copy of the external chain of custody form.  When this was brought

to my attention a few days later (on August 30), I re-reviewed the data

and applied a sticker to a new copy of the external form.  I applied the

original date that I had reviewed and certified the data/result, as well

as the actual date that I applied the certification sticker to the

form.

(ALJ Ex. 2).

Petitioner submitted two versions of the Chain of Custody Form (Pet. Ex. 1; ALJ Ex. 2; Resp. Ex. A). Because of the questions raised by respondent about the Chain of Custody Form and the importance of understanding whether proper procedure was followed here after respondent came forward with this challenge, I reopened the record on November 14, 2007 -- the day before the decision of the First Department in Matter of Fung v. Daus, 2007 N.Y. Slip Op. 8863, 2007 N.Y. App. Div. LEXIS 11774 (1st Dep’t Nov. 15, 2007). I required the testimony of Mr. Watson so that he could answer questions about the discrepancy on this form. Thus, the motion to dismiss on the basis that no witness was called to explain the lab packet was rendered moot in this case because the witness sought by respondent, Mr. Watson, appeared and testified, and was subjected to a vigorous cross-examination.[3]

In Fung, the First Department defined the contours of due process in a case involving drug testing of a licensed New York City taxicab driver. The court ruled that a witness is not required in all drug test cases where the Commission submits sufficient and reliable documentation of laboratory testing for the presence of illegal drugs. 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 court rejected the assertion that the Commission must provide at least one witness for cross-examination, citing the Court of Appeals decision in Gordon v. Brown, 84 N.Y.2d 574, 578-79, 620 N.Y.S.2d 749, 751 (1994), and also found the DRS documentation of the check on the results, the same type of data submitted here (Pet. Exs. 1, 2), sufficient to prove a positive drug test. The court found that the driver had failed to demonstrate how he was prejudiced by irregularities, such as “evidence purportedly omitted from the record.” The court expressly found the same types of certification by Dr. Dash as Medical Review Officer of DRS and the Chain of Custody Form together constituted “substantial evidence,” noting that the documents included “the TLC’s outline of the protocol followed by the Doctors Review Service after a sample tests positive for the use of drugs.” Moreover, the court upheld the administrative law judge’s ruling that the Commission was not obliged to produce a witness concerning the driver’s positive drug test and ruled that the judge had not erred when he found the same types of documents presented here competent, despite objections that they lacked foundation, and when he determined that respondent had failed to rebut this evidence.

The decision in Fung is in harmony with decisions of the New York courts that have held that the burden is on the respondent to show a defect in a certified lab report in a drug testing case before a witness to the chemical testing process is needed. See, e.g., Layne v. New York State Bd. of Parole, 256 A.D.2d 990, 684 N.Y.S.2d 4 (3d Dep’t 1998), appeal dismissed, 93 N.Y.2d 886, 689 N.Y.S.2d 427 (1999), appeal denied, 93 N.Y.2d 1000, 695 N.Y.S.2d 746 (1999). In Layne, the court held that in determining whether due process requires a witness from a laboratory to certify toxicology reports, an administrative hearing officer may admit a toxicology report into evidence without requiring testimony of a witness from the lab where the report is certified to ensure reliability: “It has been well established that in challenging a parole revocation based upon a claim that the chain of custody of a urine specimen was flawed, the petitioner bears the burden of proving that such defect occurred . . . . Additionally, it is also well established that minor flaws or incomplete forms only go to the weight of the evidence and not to its admissibility.” Id., 256 A.D.2d at 991-92, 684 N.Y.S.2d at 6. Accord Prodromidis v. McCoy, 292 A.D.2d 769, 738 N.Y.S.2d 630 (4th Dep’t 2002) (same); In re Kevin G, 80 Misc. 2d 517, 363 N.Y.S.2d 999 (Family Ct. N.Y. Co. 1975) (chemist’s appearance unnecessary in juvenile delinquency proceeding based on positive drug test); Griffin v. Long Island R.R., 1998 U.S. Dist. LEXIS 19336, at 25 (E.D.NY. June 5, 1998) (procedural due process rights attached to property interest in plaintiff’s job in drug test case did not require live testimony where there was an independent lab report and the hearing officer afforded plaintiff the opportunity to call lab witnesses, but plaintiff then failed to arrange for their appearance; “[d]ue process does not require that in every case of a positive test result the employer produce at its own expense the individuals responsible for overseeing and administering the drug testing program” where no general problems regarding the trustworthiness of the testing program or particular errors in the collection, handling or testing of the sample were asserted). See also 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) (lab witness called to give testimony after respondent alleged that specimen was dropped in toilet and had become tainted; administrative law judge’s fact finding that respondent was more credible than the lab technician was overturned by the Commissioner, whose decision to revoke driver’s taxicab license was affirmed by the court).[4]

With respect to chain of custody of a urine sample in a drug test case, it is axiomatic that all that is required are “reasonable assurances” of the identity of and unchanged condition of the evidence. See 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) (drugs seized in criminal matter), cited in Dep’t of Correction v. Thomas, OATH Index No. 303/83, at 23 (Feb. 16, 1984) (drug test in administrative proceeding); Dep’t of Correction v. Irwin, OATH Index No. 217/84, at 6 (Aug. 15, 1984) (same). The agency has met that standard here. Unlike the respondent in Milano, respondent here is not claiming that his specimen was adulterated or subjected to tampering; nor can he claim that the chain of custody was actually broken at the lab. I credit the testimony of Mr. Watson, who clearly stated that he had properly certified the sample. When presented, likely by a subordinate whom he supervises at LabCorp, with a photocopy of the form without the certification sticker on it, Mr. Watson rechecked his data and conscientiously placed a sticker on that photocopy showing both the date of his original certification, August 25, 2007, and the date that he rechecked the data, August 30, 2007 (Pet. Ex. 1). He affixed this certification sticker to the center of the page. His certainty that there was only one test on the sample at issue here could not be shaken by the intensive cross-examination to which he was subjected by respondent’s counsel.

After I inquired whether this type of custody form and a DRS form showing DRS’ review of the test, the same kinds of forms that were before the court in Fung, existed in this case also, petitioner’s counsel responded that he had obtained and attached to his e-mail of November 21, 2007, a copy of the Chain of Custody Form from DRS with DRS’ own certification form (Pet. Exs. 1, 2; Resp. Ex. A; ALJ Ex. 2). It appears that DRS had another, non-identical copy of the Chain of Custody Form bearing what appears to be a fax date of August 27, 2007, at the top. The certification label on this DRS copy of the form is at the bottom of the page and bears a handwritten certification date which, while not entirely legible, appears to be August 25, 2007, next to Mr. Watson’s stamp and initials. Thus, I find that DRS had a complete Chain of Custody Form certified with a LabCorp label dated by Mr. Watson August 25, 2007. Mr. Watson, a forensic toxicologist at LabCorp who supervises drug testing for this certified lab (Pet. Ex. 1; Tr. 56), recalled that five days later, he placed a fresh sticker on a LabCorp photocopy of this form, which showed no certification sticker on it when shown to him by a subordinate on August 30th. He believed that it was probably one of his customer service staff members who brought that incomplete photocopy of the form to him, not DRS (Tr. 37-38, 55-58). He thought that his staff could have been filing the form, “post-faxing” to DRS, or possibly reacting to a call from DRS, and asked him to review a “blank” copy (showing no sticker) from within the lab (Tr. 56). The original document is on file at LabCorp (Tr. 56), but neither side asked to inspect it. Mr. Watson testified that “for certification purposes we work off of what we refer to as image copies of the primary document” (Tr. 56). Page 06 of Petitioner’s Exhibit 1 is indeed a photocopy of the original form (Tr. 56-58). He confirmed also that if he affixed two stickers in this case, once on August 25th, and again on August 30th, it is possible that he would not recall the first document without seeing all the papers (Resp. Ex. A; Tr. 59).

Asked to explain why there are two separate dates on Pet. Ex. 1, page 06, Mr. Watson testified:

A. Yes. It’s part of the final certification process, the certifying scientist, in this case it was me, okay, would affix a preprinted label to the copy of the document, and then sign and date in order to complete the clerical components of the process. At that point in time, the certification of the result and records had occurred on Saturday, August 25. I simply omitted affixing the label to the documents. When it was brought to my attention several days later, and that would have been on August 30th, I simply re-reviewed the entire data package, okay, applied the certification label to the document, and I affixed both dates. The date that I actually applied the label to a copy, which was August 30th, as well as the date that I had originally reviewed and certified the data, just so that there was no question as to, you know, the fact that yes, this was indeed applied after the normal certification. . . . Hence the confusion for which I do apologize . . . .

Q. Did this at all change the indication that there was a positive test result?

A. No, it did not, counselor.

(Tr. 36-38). On cross-examination, Mr. Watson was asked “[i]f there are irregularities and omissions on the Chain of Custody form, doesn’t that go directly to the heart of the integrity of the testing in and of itself?” He answered, “Yes, it would, counselor, if there was [sic] irregularities with regards to either the temperature status or an issue with regards to a collector signature or name or date, yes it would . . . I refer to a collection date or signature . . . That is what I associate with chain of custody” (Tr. 59) (emphasis supplied). There were no such issues raised here. According to this testimony, which I credit fully, the kind of re-certification that occurred here does not go to the integrity and reliability of the testing and it would be unproductive to pursue further every aspect of the documentation of this certification and re-certification, after both sides could have called for these papers.

Mr. Watson also testified that no other person affixes his stamp and sticker to drug test results and he did this himself (Tr. 59). Mr. Watson explained that he may apply a sticker either to the bottom or the center of the form, being careful not to obstruct other information on the form, and that without having Respondent’s Exhibit A before him, he could not explain that copy of the form: “I can only testify to what I have in front of me” (Tr. 53-55). Neither side chose to show him a copy of Respondent’s Exhibit A (the DRS copy showing his certification on August 25, 2007) in advance of his telephone testimony, so he was unable to see it during his testimony. That certainly would have made matters clearer had either side made that preparation. Mr. Watson did testify on cross-examination that he did apply a label originally and that he re-applied a new label to the middle of a lab copy of the form that showed no label: “It may indeed be where I had applied it originally, but a copy I had in the laboratory did not have it, hence when I re-applied it on the 30th to a blank copy, that may explain the difference” (Tr. 55). Given his testimony that he alone affixes such certification stickers bearing his stamp, and the undisputed fact that petitioner’s counsel obtained Respondent’s Exhibit A from DRS, I find it highly likely that DRS had received a properly completed, certified Chain of Custody Form from LabCorp, dated August 25, 2007, in the first place, when Mr. Watson first certified the positive test result, that another copy of the form as it looked before he certified the results was presented thereafter to Mr. Watson at the lab, and that upon seeing the form in that condition, he repeated his work.

Respondent made much of Mr. Watson’s inability to recall every piece of paper on file. But in fairness, despite the ample advance notice of the reopened hearing, neither side chose to ask that Mr. Watson make a search of the lab’s files for all papers on respondent[5] and I do not find that his inability to recall papers that were not placed before him diminished his credibility one iota. On the contrary, he was able to explain what he knew in a professional manner and sufficiently explained his actions in preparing the forms. He could not be expected to recall all the details of every one of what must be thousands of drug tests each year. As the Court of Appeals noted in Gordon v. Brown, 84 N.Y.2d at 579, 620 N.Y.S.2d at 751 (1994), where a laboratory supervisor was subject to vigorous cross-examination, without the need for other technicians’ testimony, “the utility of cross-examination would have been limited by the fact that the technicians are unlikely to recall petitioner’s urine specimen, which, like the 50,000 other specimens tested annually, was identified only by number. . . .”[6]

Respondent’s counsel’s argument that because her client adamantly denies ever using marijuana (Tr. 65-66), and because he must be believed, there must be some mistake and Mr. Watson’s repetition of his review of the test data must perforce negatively affect the integrity of the test is rejected as it is unsupported by the credible evidence. Mr. Watson testified that he could not attest to what DRS does because he has no direct involvement in or knowledge of their day-to-day procedures and “the medical review process is independent from the laboratory process” (Tr. 63). Indeed, Dr. Dash’s document is a signed, certified record that stands on its own (Pet. Ex. 2). Although I gave petitioner the opportunity to submit additional evidence of DRS procedure in the form of an affidavit from the Medical Review Officer (ALJ Ex. 2), he declined to submit more documentation than was before the First Department in Fung. There is no dispute that the DRS verification form (Pet. Ex. 2) is precisely the same type of form presented in that case and that the only other evidence submitted in Fung was the same type of Chain of Custody Form in the record here (Pet. Ex. 1 and Resp. Ex. A). A review of the record on appeal in Fung confirms this to be the case, as Judge Alessandra F. Zorgniotti found recently to be so in yet another matter, Taxi and Limousine Comm’n v. Shakoor, OATH Index No. 860/08, at 3 n. 1 (Nov. 30, 2007) (positive test for marijuana; license revocation recommended where no particular error in documentation was raised).

At the final hearing in this matter, I asked respondent’s counsel for specific citation to particular federal regulations governing the review process that she contends were violated here. These regulations that were to have been appended to respondent’s brief of November 1, 2007 (“Respondent’s Brief”), but had never been delivered, as noted in my e-mail of November 30, 2007, and at the second hearing session (Tr. 77; ALJ Ex. 2). On November 30, counsel served and filed Respondent’s Brief again, with attachments this time, including “The Medical Review Officer Manual for Federal Agency Workplace Drug Testing Programs” (the “Manual”) as a supplement to the “Mandatory Guidelines for Federal Workplace Drug Testing Programs,” published in the Federal Register on April 13, 2004 (69 F.R. 19644). This Manual is found on the internet at: 1_Pages/HHS%20MRO%20Manual%20(Effective%20November%201,%202004).aspx. Respondent’s counsel relies, in particular, on the Manual’s provision that the Medical Review Officer’s final review of results is “an essential component of any drug testing program,” and that the MRO must determine that the Chain of Custody Form “is correct and complete,” interview the donor when required, make a determination about the drug test results, report the drug test results, and maintain records and confidentiality. Manual, Chapter 1, pages 1-3. Accepting that this proposition is correct, I find that those processes were properly completed here by Neil J. Dash, M.D., the Certifying MRO of DRS (Pet. Exs. 1 and 2; Resp.’s Ex. A).

There is nothing in the record before me that indicates that the federal regulations and protocols invoked by both parties were violated here. None of the particulars on which respondent sought to construct a theory of testing error supported the conclusion that there was any real or substantial error here.[7] While respondent’s counsel attempted to magnify the recertification of results into a momentous error, and while there was surely some appeal to the argument that it would behoove the Commission to provide further explanation of all the details and transmittals (the paper trail of this Chain of Custody Form in all its versions), before taking away her client’s livelihood (Tr. 66), respondent never exercised his right under OATH rules, section 1-33, to demand from the Commission the production in advance of trial, of all documents showing the transmittal and filing of that form and all non-identical copies of it, and showing all communications within LabCorp and between LabCorp and DRS that would shed further light on the full history of the recertification of the test results. 48 RCNY § 1-33 (Lexis 2007). A demand for these kinds of documents could have been anticipated. Mr. Watson testified that there are indeed electronic communications between LabCorp and DRS, but he was not asked to review them for his testimony and would need them to recall all communications about his certification label (Tr. 47-50). I found his explanation both credible and sufficient to show that there was nothing nefarious about his reconstruction of his work, and that the lab test itself was unaffected by his second review and recertification. That he wrote both dates, his original certification date and the date of his re-check, tended to show that he was acting honestly and taking care to notate that actual review dates, not backdating or pretending that the second review replaced the first, or that he never re-checked his work. He had nothing to hide.

The question before me is whether petitioner has met its burden of proof by a preponderance of the credible evidence for purposes of these administrative hearings, where “[c]ompliance with technical rules of evidence, including hearsay rules, shall not necessarily be required.” 48 RCNY § 1-46(a) (Lexis 2007). See Taxi and Limousine Comm’n v. Hussain, OATH Index No. 787/08 (Oct. 12, 2007). Given ample opportunity to submit additional evidence, including a second opportunity for both sides to call additional witnesses after the first hearing session (ALJ Ex. 2), neither party elected to present more proof.

While respondent’s counsel argued that the irregularity here affected the integrity of the drug test result, I find no basis to conclude that it did. Mr. Watson testified to the contrary, that the certification sticker “is meant more as a courtesy to some of our clients who have gotten the service in the past, and if somebody would like it, we provide that. It adds little if anything to the integrity of the results . . . .” (Tr. 58) (emphasis supplied); “My omission of applying the certification label was not a reflection . . . nor did it involve any issue with chain of custody” (Tr. 51-52). Particular, potentially serious errors in the testing process, if challenged, could require a great deal more in the way of proof, but the irregularity here is not of that magnitude, particularly in this case, where respondent has not raised any specific error in the testing itself: there is no question that the specimen identification numbers and respondent’s identification were correct; respondent has declined to re-test his split urine sample by an independent lab; he has presented no expert of his own; and I find that his tentative and qualified denials of drug use were not credible.

Respondent’s argument that there was no similar irregularity about DRS argued in Fung and no issue raised there at all about DRS was unsupported by reference to briefing papers in Fung, and petitioner’s counsel, Mr. Hardekopf, who participated in the legal work in that matter, disputed the point (Tr. 66-70, 73). Contrary to respondent’s claim that no issue was raised about DRS in Fung, the record on appeal in Fung, which I have scanned for purposes of discerning the issues before the court, does show that the DRS certification was challenged -- unsuccessfully --as insufficient without testimony, and this would explain why the First Department addressed the point. Respondent asks that I not apply Fung woodenly, without analysis, a fair request. I have considered this argument fully, and even considered whether to reopen the record again, but I believe, on reflection, based on the testimony, that even if I were to follow either of the two paths on which respondent’s counsel would lead me, the taking of more evidence about the recertification would be a dead end, and dismissal of the petition for insufficient or defective proof would be incorrect. Gordon v. Brown, 84 N.Y.2d at 579, 620 N.Y.S.2d at 751 (cross-examination of laboratory supervisor “yielded no evidence of a problem pointing to the need for further questioning of any employee”).

I find that Fung is distinguishable from this case, but for a wholly different reason from that suggested by respondent’s counsel. Distinguishing Fung provides no comfort for respondent because in the record before me there is so much more evidence to show a reliable drug test result than the two lone documents of record in Fung that were found sufficient, with a brief memorandum of Mr. Hardekopf, to prove a positive drug test result: Here, by contrast, we have Mr. Patel’s Affidavit attesting in detail to the protocols and procedures used, 45 pages of underlying laboratory data supporting the test, reasonable assurances based on those documents that the chain of custody was unbroken here, testimony of the supervising toxicologist, Mr. Watson, confirming that the dates of certification made no difference to the outcome of the test itself, and a full opportunity to cross-examine him about his work. In any event, even assuming that the driver in Fung did not argue the precise discrepancy respondent raises here,[8] there was no basis, on this record, to find, as respondent would have it, that because Mr. Watson redoubled his efforts and repeated his certification, that the DRS review must have been flawed. The evidence is to the contrary: DRS did properly perform its review, as corroborated by respondent’s own testimony that he did receive an inquiry about any prescriptions he might have taken (Pet. Exs. 1, 2; Resp. Ex. A; ALJ Ex. 2; Tr. 27).

I find that the LabCorp and DRS documentation, together with Mr. Watson’s explanation of the genesis of the double dates shows that there was no error in the underlying testing and that this irregularity was a minor correction of a LabCorp photocopy that made no difference to the integrity of the test or the DRS review process.

It is noteworthy that respondent was given clear notice in the Petition and Notice of Suspension and Hearing, dated September 21, 2007, of his rights to have his original urine specimen tested by DRS for $175 or to have the sample tested by a certified laboratory of his choice. LabCorp freezes all positive samples after testing and maintains them for one year in the original bottle, as are the “split” samples (Patel Aff. ¶ 9; Pet. Ex. 1, at page 02). Respondent was also notified in that document that he should send to DRS copies of any prescriptions he might have taken, and the name and telephone number of an individual he could call at DRS were provided. He was further notified that DRS would supply him with a list of certified laboratories authorized to perform a retest (ALJ Ex. 1). At the end of the hearing, respondent’s counsel asserted that the Department, in fairness, because of the irregularity shown here, should allow respondent to be re-tested (Tr. 71). But this argument is unpersuasive because respondent has had the opportunity, at a modest cost, throughout the proceedings, to have an independent laboratory test made of his split urine sample as a check on LabCorp’s work, but chose not to do so. Nor did he ever offer any prescription that could explain his positive drug test. At the time I reopened the record to take testimony from Mr. Watson, I also provided respondent an opportunity to call additional witnesses on his behalf, but he called none (e-mail of November 16, 2007, ALJ Ex. 2).

Respondent denied that he ever smoked marijuana in his life, but he equivocated. He stated that frequently in the summer of 2007, in July and August, he had attended parties where people smoked marijuana “maybe, maybe not. Because it’s a crowded place, so I can’t --.” He said: “Well, I do party like every couple of weeks. Whenever -- .” He could not remember anybody standing close to him with marijuana smoke. He knows the odor of marijuana, though he testified that he never intentionally smoked marijuana. He did not know and could not say whether he takes, ingests or inhales anything that could account for the positive drug test (Tr. 27-29). I did not find respondent’s testimony convincing at all, and this testimony suggested strongly that he often and regularly attends parties where marijuana may be used by others. With some hesitation and discomfort, respondent avoided saying that anyone with him at these frequent parties was in fact using the drug. Even if he had been attempting to make out the defense of “innocent ingestion” of marijuana, he bore the burden of proving it, and I found his tentative and vague answers unpersuasive and entirely insufficient to make out the defense of unknowing ingestion of the drug. See Taxi and Limousine Comm’n v. Petrone, OATH Index No. 640/08 (Oct. 22, 2007); Taxi and Limousine Comm’n v. Hussain, OATH Index No. 787/08 (Oct. 12, 2007), aff’d, Comm’r Dec. (November 15, 2007). At the reopened hearing, respondent’s attorney confirmed that she was not arguing passive inhalation (Tr. 64-65). His denials of marijuana use were self-serving and doubtful with respect to his reported social activities, and, therefore, unconvincing in the face of the hard scientific evidence against him.

It was undisputed that respondent has been driving a yellow cab for nine years and has not previously tested positive for illegal drugs; there was no showing that he has any marks on his record as a driver prior to this positive drug test (Tr. 26-27, 29).

I find that the chain of custody of the sample was intact, and there was no question about the qualifications of the toxicologist as an expert. Petitioner did not contend that respondent used marijuana while on duty as a driver, only that he failed a required drug test. Petitioner established that respondent’s drug test results were positive for the presence of marijuana in his system.

I have considered respondent’s remaining arguments and found them to be without merit. For all of the foregoing reasons, the motion to dismiss is denied and the petition is sustained.

FINDINGS AND CONCLUSIONS

1. Petitioner proved that on or about August 25, 2007, respondent’s urine was tested and the results of the toxicologists’ laboratory test were positive for the presence of the metabolite for marijuana in the amount of 35 nanograms per milliliter, above federal government drug test guidelines invoked by the Commission as the cut-off level (15 nanograms per milliliter) for marijuana.

2. Respondent is unfit to hold taxicab license number 0501627 and poses a threat to public safety.

RECOMMENDATION

Commission counsel is requesting revocation of respondent’s taxicab license.

I find that petitioner proved by a preponderance of the evidence that respondent is unfit to hold TLC license number 0501627, and that the defense of innocent ingestion of marijuana was not made out. Pursuant to Commission rule 2-19(b)(2), if the results of the annual drug test of a licensed taxicab driver are positive, the driver’s license may be revoked after a hearing held, like the one completed here, in accordance with rule 8-15. See 35 RCNY §§ 2-19(b)(2) and 8-15 (Lexis 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. The penalty of revocation based on a single, positive illegal drug test of a licensed cab driver has been upheld by the courts. See, e.g., 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) (“Revocation of a license to operate a taxicab based on a licensee’s positive test for use of illegal narcotics does not shock our sense of fairness”); 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).

Drug use is simply incompatible with driving a taxicab, and I find that respondent poses a threat to the public safety. Even if respondent was off-duty when he smoked marijuana, I find a strong and direct nexus between this off-duty conduct and the City-licensed job. The Commissioner stated, when rule 2-19 was amended in 2005, in the published Statement of Basis and Purpose, that the TLC “licenses and regulates over 50,000 vehicles and approximately 100,000 drivers each year. Each day taxicabs and for-hire vehicles transport approximately 900,000 passengers. The vast number of New Yorkers affected by the use of taxicabs and for-hire vehicles requires that drivers be fit to operate such vehicles. A drug-free driving force ensures the health and safety of passengers, other motorists and pedestrians in the City of New York.” The City Record, Nov. 21, 2005, at 4696.

Respondent’s use of the drug and denial of that usage reflect poorly on his judgment and ability to transport the public safely. The riding public is entitled to expect when hailing TLC-licensed taxicabs that the cab drivers are free of illicit drugs.

Joan R. Salzman

Administrative Law Judge

December 11, 2007

SUBMITTED TO:

MATTHEW W. DAUS

Commissioner

APPEARANCES:

MARC T. HARDEKOPF, ESQ.

Attorney for Petitioner

CYNTHIA D. FISHER, ESQ.

Attorney for Respondent

-----------------------

[1] I have included in the record the Petition as ALJ Exhibit 1; ALJ Exhibit 2 is a full set of e-mails I exchanged with counsel for the parties with respect to the clarification and reopening of the record in response to respondent’s challenges to the sufficiency of the documents. Apart from two additional documents from DRS, which petitioner submitted on November 21, 2007, petitioner declined in writing on November 16, 2007, the opportunity I provided to submit an affidavit of the Medical Review Officer of DRS or to call a witness from DRS, asserting that the existing documentation, Pet. Ex. 1, the lab packet, sufficed to support the case in chief (ALJ Ex. 2; Resp. Ex. A). Once a decision on point came down, 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), I requested via e-mail on November 20, 2007, that Marc T. Hardekopf, Esq., counsel for the Commission, clarify whether the lab packet included the same type of documentation as was before the court in Fung, and he responded on November 21, 2007, with an e-mail attaching documents from DRS, Petitioner’s Exhibit 2 (the DRS certification of its review of the test results), and Respondent’s Exhibit A, which Mr. Hardekopf stated was the same Chain of Custody Form that was included in the packet. However, it was a non-identical copy of the Chain of Custody form in the lab packet, with a different certification sticker, but the same test result, certified, as of a date that appears to be August 25, 2007. With his November 16, 2007 e-mail, Mr. Hardekopf also submitted an example of a DRS “Test Result Set Aside,” in another matter. That form is signed by Neil J. Dash, M.D., of DRS (the same Certifying Medical Review Officer, “MRO,” who signed the DRS certification here). The document was submitted as an example of a situation in which a licensee represented by the same attorney who represents respondent here submitted proof of a prescription drug before the scheduled hearing; in that case, Mr. Hardekopf represented, without contradiction, that the Commission withdrew its license revocation proceedings against that driver (ALJ Ex. 2). I have redacted the name of that driver in ALJ Exhibit 2.

[2] A brief adjournment from November 27, 2007, was granted on consent to accommodate respondent’s counsel’s medical emergency on November 27th.

[3] Counsel for both parties stipulated to taking Mr. Watson’s testimony by telephone (ALJ Ex. 2).

[4] The administrative decision by Administrative Law Judge Carol Schechter, of March 21, 2001, in Milano was supplied on my request by the Commission. That decision indicates that the driver brought an Article 78 proceeding to annul the Commissioner’s revocation of his license based on a drug test. Hon. Joan A. Madden, J.S.C., of New York State Supreme Court, New York County, remanded the case for a hearing and held that the respondent claiming the sample was tainted had the right to cross-examine witnesses about the lab results, the chain of custody and medicines that could have an impact on the drug test results (ALJ Ex. 2).

[5] In my e-mail of November 14, 2007, I directed that “[i]f Mr. Watson reviewed documents other than those already in the record when he learned of the missing certification sticker,” petitioner’s counsel produce those documents to respondent’s counsel by November 21, 2007, and “have them ready for possible use at the continued hearing” (ALJ Ex. 2). Petitioner’s counsel wrote back that Mr. Watson would testify by phone and would have the lab report (Pet. Ex. 1) in front of him (ALJ Ex. 2). Respondent’s counsel at that point did not call for production of additional documents relevant to her assertion that the certification of results on two dates amounted to substantial error that affected the integrity of the drug test. Mr. Hardekopf wrote in his e-mail of November 16, 2007, that on my request, he had inquired of DRS as to whether it had documentation other than the papers filed in Petitioner’s Exhibit 1. He stated that he believed there were no such other documents, except internal computer records concerning DRS’ communications with licensees. On further request by me for clarification, he produced the DRS certification and the Chain of Custody Form from DRS (Pet. Ex. 2; Resp. Ex. A; ALJ Ex. 2).

[6] Although the parties did not ask Mr. Watson exactly how many drug tests LabCorp conducts each year, he answered credibly that he remembered this recertification sticker from among “thousands” because someone said, “hey Joe, you omitted to apply a label,” and he re-reviewed the documentation then and again when he received word of these proceedings (Tr. 52). The number of LabCorp drug tests must be in the thousands, possibly the tens of thousands, annually for TLC alone, based on the legislative history of Commission rule 2-19, assuming all licensed taxicab drivers must be tested annually. The City Record, Nov. 21, 2005, at 4696 (50,000 licensed vehicles and 100,000 licensed drivers, including taxicab and for-hire drivers).

[7] Respondent’s counsel’s effort through cross-examination of Mr. Watson to show error on the Chain of Custody Form because the six-digit code marked on the Chain of Custody Form, 708008 (checked off as a choice among three codes), differs from the code shown on the Final Report of drug tests performed, 788300, fails entirely. Mr. Watson clearly explained that the Final Report shows the same array or panel of drug tests performed in all taxi cases under protocol number 788300, and he was able to tell this by inspection of the Final Report (Pet. Ex. 1, at pages 06 and 07; Tr. 59-61). No additional testing was performed here and none was omitted (Tr. 60). The testing done for five drugs is a “default, hardwired into our computer system for this account” (Tr. 42). He indicated that he did not have a list of these two numbered protocols of the hundreds of protocols the lab uses (which protocols can be found on its computer system), but his curiosity was piqued by the questions and he said he would check those two particular codes after the hearing (Tr. 42-43, 61). He did so, and confirmed via e-mail the following day, November 30, 2007, that 708008 simply refers to the standard chain of custody protocol applied to all forensic specimens, and 788300 refers to the analytes for which the lab tests on a standard basis in taxi cases. The third code listed on the Chain of Custody Form, 070466, refers to the fact that the sample was collected at a LabCorp patient service center (ALJ Ex. 2). There simply was no error at all in the marking of code number 708008 on the Chain of Custody Form, and I reject the closing argument that Mr. Watson’s inability to state the content of these protocols extemporaneously, without having a list of them before him, rendered his testimony incredible in its entirety. In short, the code checked on the Chain of Custody Form showed no error at all.

[8] The Amended Verified Petition on file in the record on appeal in Fung, sworn to by Wai Lun Fung, September 7, 2006, shows that he argued, inter alia, that the record there, consisting of the same type of Chain of Custody Form and certification of Dr. Dash of DRS, were insufficient proof to support a positive test for marijuana without a witness. That pleading also confirms Mr. Hardekopf’s representation here that he, as Commission counsel, did not even appear personally at the administrative hearing and instead relied on the same kinds of documents submitted here (Tr. 73). Here, by contrast, the Commission has submitted Mr. Patel’s five-page Affidavit, with 45 pages of underlying data and certified explanations of the methods and procedures followed by LabCorp. According to Mr. Hardekopf, the Commission now pays $125 for every lab packet of this kind in its drug testing cases (Tr. 12).

................
................

In order to avoid copyright disputes, this page is only a partial summary.

Google Online Preview   Download