Taxi & Limousine Comm'n v Fuentes



Taxi & Limousine Comm’n v. Mercedes

OATH Index No. 1706/08 (Mar. 6, 2008), rev’d, Comm’r/Chair’s Decision (Apr. 7, 2008), appended

Petitioner failed to prove that respondent is unfit to retain his license to drive for-hire vehicles. Evidence established that respondent’s positive drug test resulted from his ingestion of prescription medication.

The Commissioner/Chair adhered to Commission precedent holding its rules do not provide for innocent ingestion defense. Re-asserting the Commission’s long standing zero-tolerance prohibition against illegal drug use, the Commissioner/Chair imposed the penalty of license revocation.

______________________________________________________

NEW YORK CITY OFFICE OF

ADMINISTRATIVE TRIALS AND HEARINGS

In the Matter of

TAXI AND LIMOUSINE COMMISSION

Petitioner

-against-

SAMUEL MERCEDES

Respondent

______________________________________________________

REPORT AND RECOMMENDATION

INGRID M. ADDISON, Administrative Law Judge

The Taxi and Limousine Commission brought this proceeding against respondent, a licensed driver of for-hire vehicles, under its rules and New York City’s Administrative Code. 35 RCNY §§ 6-16(v), 8-15(a), Admin. Code § 19-512.1 (Lexis 2008). Petitioner alleged that respondent is unfit to retain his license because he tested positive for the use of codeine and morphine.

At a hearing before me on February 25, 2008, petitioner relied on documentary evidence. Respondent appeared with counsel, testified on his own behalf, and produced a witness and documentary evidence to support his testimony.

For the reasons below, I find that respondent is fit to maintain his license to drive for-hire vehicles.

ANALYSIS

Drivers of for-hire vehicles must undergo annual drug testing. 35 RCNY § 6-16(v)(1). A positive drug test may result in revocation of a license to drive for-hire vehicles. 35 RCNY § 6-16(v)(2). There is no dispute that respondent submitted a urine sample that tested positive for codeine and morphine (Pet. Ex. 1). In fact, respondent stipulated to the test results, which reflected the presence of codeine and morphine well above the federally recognized cutoff levels. However, the evidence at the hearing demonstrated that respondent’s positive drug test was the result of his ingestion of prescription medicine.

Through a translator, respondent testified that he had contracted the flu virus and ingested his daughter’s cough medication to counteract its effect. He stated that he took the medication from on or around January 15th, until February 5th or February 6th. He was so sick that, according to supporting documentation from his employer, he missed approximately two weeks of work, from January 20th through February 6th (Resp. Ex. A). On January 25th, while he was out sick, respondent submitted a urine sample for drug testing.

Respondent, whom I found to be extremely credible, is a mature, older person, in his late fifties. There was nothing in his testimony that was inconsistent or appeared rehearsed. Respondent’s testimony was buttressed by a CVS pharmacy printout for prescriptions dispensed to his daughter (Resp. Ex. B). The printout reflected that prescriptions for promethazine/codeine syrup were filled on November 26, 2007, and January 15 and 27, 2008. In addition, respondent produced an empty bottle of the medication that he had taken, which had been filled on January 27th. Respondent submitted a printout from an internet encyclopedia indicating that morphine is used to make codeine by methylation, hence the positive test for morphine, as well as codeine (Resp. Ex. E). There was nothing in respondent’s testimony to convince me that he consciously ingested medication with the knowledge that it contained a controlled substance that could have caused a positive result. Respondent further revealed that he has no health insurance.

Respondent’s daughter, who was genuinely distressed by her father’s predicament, and whom I also found to be credible, corroborated her father’s testimony. She testified that her father had called her on January 15th, complaining that he was not feeling well. She recognized that her father was experiencing symptoms identical to what she had experienced a couple of months earlier. She invited her father to come to her home. On the same day, she called her doctor and requested a renewed prescription for the cough syrup which had worked for her. She submitted a letter from her doctor, which indicated that the doctor had called in the prescription to the pharmacy by telephone on January 15th (Resp. Ex. C). She further testified that she gave respondent the medication and instructed him to take the prescribed dosage every four hours. Respondent stayed with her for about ten days, during which time he did not work. In an impassioned statement, respondent’s daughter noted that her father had emigrated to this country because of her and she felt responsible for him. It is this responsibility that prompted her to give him her medication because she could not have her father “die” from his illness. She described a reciprocal relationship in which they both help each other. She stated that he had never done anything illegal in his life and that driving was his only means of livelihood, because he lacks a formal education. Accordingly, she made a fervent plea that he not be punished for her mistake. Her willingness to accept responsibility for her wrongdoing lent credence to her testimony.

Petitioner did not challenge the credibility of respondent or his daughter. Rather, it deferred to this tribunal.

Section 19-512.1(a) of the Administrative Code confers broad authority on the Commission to protect the public. It permits the Commission to suspend a taxicab or for-hire vehicle license “for good cause shown relating to a threat to the public health, or safety and prior to giving notice and an opportunity for a hearing.” The Commission may also direct a licensee to appear for a fitness hearing if it believes that the licensee no longer meets licensing qualifications. 35 RCNY § 8-15(a). The Commission characterized this proceeding as a fitness hearing, but articulated that its main concern was the threat that respondent presented to the public health and safety through his ingestion of a controlled substance that resulted in his positive drug test results. This tribunal has previously ruled that “protection against a threat to public health or safety and the fitness requirement are not mutually exclusive.” Taxi & Limousine Comm’n v. Corrales, OATH Index No. 259/08, at 3 (Aug. 24, 2007). Therefore, the Commission may proceed under either or both provisions.

Section 19-512.1(a) of the Administrative Code was added by the City Council in 1999, with the intent to eliminate disciplinary measures that may be imposed against taxicab and for-hire vehicle drivers and owners, which the Council found to be onerous.[1] The notes to the section articulate the Council’s view that the bill that introduced the law, established “a superior balancing of the concern for safe and high quality service with the need for fair treatment of an industry important to New York City.” Id.

It is undisputed that the Commission’s for-hire vehicle rules provide for revocation after a hearing, if the driver tests positive for drugs. 35 RCNY § 6-16(v)(2). Undoubtedly, the Commission is motivated by its mandate to protect the public. However, failure to give weight to credible, mitigating circumstances, would render a hearing, such as this, meaningless. It would also ignore the Council’s concern for fair treatment. The New York courts have recognized that innocent or unknowing ingestion is a defense to a positive drug test result. See Connor v. New York City Police Dep’t, 22 A.D.3d 425, 802 N.Y.S.2d 683 (1st Dep’t 2005) (affirming respondent’s rejection of petitioner’s claim that he innocently ingested cocaine, based in part upon the hearing officer’s evaluation of petitioner’s credibility); Gaudioso v. Schembri, 221 A.D.2d 165, 633 N.Y.S.2d 142 (1st Dep’t 1995) (finding that the Administrative Law Judge was in the best position to ascertain the credibility of petitioner’s testimony that he had unknowingly ingested marijuana); Green v. Sielaff, 198 A.D.2d 113, 603 N.Y.S.2d 156 (1st Dep’t 1993) (affirming dismissal of correction officer, where hearing officer rejected the affirmative defense of unknowing ingestion of cocaine because petitioner failed to meet his burden of persuasion).

Accordingly, this tribunal has held that, where credible, innocent ingestion of a controlled substance is an affirmative defense. Taxi & Limousine Comm’n v. Acevedo, OATH Index No. 946/08, at 3 (Jan. 7, 2008) rev’d, Comm’r/Chair’s Decision (Feb. 14, 2008); Taxi & Limousine Comm’n v. Hussain, OATH Index No. 787/08, at 2-3 (Oct. 12, 2007). We have also acknowledged that such a defense is rarely successful because respondents are usually unable to meet their burden with credible corroboration or other reliable evidence. Taxi & Limousine Comm’n v. Moatassim, OATH Index No. 643/08 (Oct. 29, 2007) (defense rejected where licensee offered no details to support his vague claim that he innocently ingested marijuana smoke while on vacation to Morocco); Taxi & Limousine Comm’n v. Petrone, OATH Index 640/08, at 2-3 (Oct. 22, 2007) (innocent ingestion not shown based upon licensee’s unsupported claim that someone at a bar must have laced his drink with cocaine).

Acevedo represented one of those rare instances in which the driver met her burden with credible corroboration and other reliable evidence. There, respondent’s daughter credibly testified that she had administered her father’s prescription medication of Tylenol with codeine to her mother, the respondent, to alleviate pain and flu symptoms. Neither daughter nor mother realized that the medication contained a controlled substance. Thus, respondent’s annual drug test, which was done while respondent was using the medication, was positive. Under those circumstances, our recommendation that respondent was fit to maintain her license was justified, because there was no basis to conclude that her continued licensure posed a danger to the public. A contrary finding would have realized the Council’s fears concerning the arbitrary and unfair treatment of drivers. Nonetheless, the Commissioner/Chair declined to consider the innocent ingestion defense on the premise that the Commission’s rules do not provide for such a defense. Yet, the Commission itself has not treated its rule as a zero-tolerance prohibition. Rather, the Commission’s petition and notice of hearing instructs a driver whose drug test was positive, as follows: “If you were taking medication that could have caused the positive result, please send Doctors Review Service copies from your pharmacy or physician of your prescriptions.” In essence, if drivers use controlled drugs that were prescribed to them, which cause positive results, they are not considered a threat to the public health and safety and their licenses are not revoked. This consideration was not available to respondent because the medication that he ingested was not his own. See Acevedo, OATH Index No. 946/08, at 3 (petitioner conceded that submission of the prescription medication to its designated laboratory for testing would not have changed the test results, because the laboratory would not compare another person’s prescription medication to respondent’s urine sample). The issue, therefore, is whether a driver’s ingestion of a family member’s medication, because he was genuinely ill, makes him a greater threat to the public health and safety, than had he ingested his own medication. In this regard, the for-hire vehicle rules are silent, and I decline to make such a finding.

The testimony elicited at trial and the supporting documentation clearly indicate that respondent’s use of the medication prescribed to his daughter was not recreational. Moreover, he was at home for approximately two weeks. This confirms that respondent was either very ill or very responsible, or both, in choosing not to drive while using the medication. Thus, this case is even more compelling than Acevedo, where there was no indication that the driver had ceased work while using the medication. The record here reflects that respondent discontinued use of the medication and resumed work only when he felt better. Accordingly, it is clear to me that respondent was not, and is not, a threat to the public health and safety.

My finding in no way condones respondent’s daughter giving him her medication or him taking it. This tribunal has consistently acknowledged that 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). Garthaffner is distinguishable, in that the prescription there had been issued to defendant, who opted to sell the drugs thereby obtained for financial gain. Here, respondent’s daughter’s call to her doctor was prompted by her love for her father and her desire not to see him suffer or “die,” as she stated at the hearing. Moreover, her action was compelled by her father’s lack of health insurance coverage and the extreme expense he would consequently have had to incur by visiting a physician and filling a prescription. In spite of her motivation, respondent’s daughter’s action may have been in contravention of Article 33 of the New York Public Health Law (NY Pub. Health Law § 3302 (30) (Lexis 2008)), which authorizes only the ultimate user to obtain prescriptions, and which defines an ultimate user as one who lawfully obtains and possesses a controlled substance for his own use or the use by a member of his household. NY Pub. Health Law § 3302 (33) (Lexis 2008). Notwithstanding, respondent’s and his daughter’s actions must be viewed in their narrow factual context. There is no doubt that respondent was seriously ill. This was underscored by the number of days that he could not work. He was uninsured. Therefore, medical attention and medication would have been exorbitant. His daughter, however erroneous her actions might have been, sought to help her father by obtaining a prescription for medication which had worked for her but which also contained a controlled substance. Respondent used the medication only until he felt better. Thereafter, he discontinued its use and resumed work.

In sum, it does not follow that respondent’s action in taking a cough medicine demonstrates that he is a risk to the public health or safety, or is unfit to be a for-hire vehicle driver. Accordingly, there is no basis for revocation of his for-hire vehicle license.

FINDINGS AND CONCLUSIONS

1. Petitioner proved that respondent tested positive for codeine and morphine use.

2. Respondent proved that the positive drug test was the result of his ingestion of his daughter’s prescription medication.

RECOMMENDATION

I recommend that respondent be permitted to retain his license to drive for-hire vehicles.

Ingrid M. Addison

Administrative Law Judge

March 6, 2008

SUBMITTED TO:

MATTHEW W. DAUS

Commissioner

APPEARANCES:

MARC T. HARDEKOPF, ESQ.

Attorney for Petitioner

JOEL I. TANZER

Attorney for Respondent

NYC Taxi and Limousine Commission Comm’r/Chair’s Decision, April 7, 2008

_____________________________________

THE NEW YORK CITY

TAXI AND LIMOUSINE COMMISSION

Petitioner

- Against -

SAMUEL MERCEDES

Respondent

_____________________________________

MATTHEW W. DAUS, Commissioner/Chair

DECISION

A hearing was held on February 25, 2008, to determine the fitness of Respondent, Samuel Mercedes, to retain his Taxi and Limousine Commission (“TLC”) license in view of testing positive for use of an illegal substance. The presiding Administrative Law Judge (“ALJ”) recommended that Respondent be permitted to retain his For-Hire Vehicle Driver license.

I reviewed the letter, dated March 17, 2008, submitted by the New York State Federation of Drivers on Respondent’s behalf. While I respect the Federation’s opinion and input, which may have been an appropriate submission at an application hearing, there is no such discretion here based on TLC’s regulations. Instead, I accept the Doctor’s Review Service determination that Respondent tested positive for codeine, and must reject the proffered defense that he tested positive because he innocently ingested his daughter’s prescription medication.

ALJ Addison correctly observed that in accordance with the decision in TLC v. Acevedo,

OATH Index No. 946/08, the Commission’s rules do not provide for the defense of innocent ingestion. However, the ALJ erred in finding that the TLC does not maintain a zero-tolerance prohibition against the use of illegal drugs. In fact, the Commission has a long-standing zero-tolerance policy regarding illegal drug use by its licensed drivers, as was recently recognized in TLC v. Petrone, OATH Index No. 640/08: “The Commission has adopted a ‘zero tolerance’ attitude toward the use of illegal drugs by its licensees.”

Therefore, upon careful review of the record before me, I am compelled to reject the ALJ’s recommendation. In light of Respondent’s positive test result for codeine, I hereby revoke his TLC license.

MATTHEW W. DAUS, Commissioner/Chair, NYC Taxi and Limousine Commission

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[1] L.L. 20 of 1999, section 1, Legislative Intent and Findings, codified at NYC § 19-512.1, Notes (Lexis 2008).

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