Taxi & Limousine Comm'n v. Mirza

OATH Index No. 2753/08 (June 30, 2008)

Taxicab driver, who tested positive for use of marijuana 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 -

MOHAMMAD MIRZA

Respondent

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REPORT AND RECOMMENDATION

ALESSANDRA F. ZORGNIOTTI, Administrative Law Judge

Petitioner, Taxi and Limousine Commission, commenced this proceeding against taxicab driver Mohammad Mirza, pursuant to the New York City Administrative Code and the Taxicab Drivers Rules, title 35, chapter 8 of the Rules of the City of New York (RCNY). Admin. Code § 19-512.1(a); 35 RCNY § 8-15(a). Petitioner alleged that respondent was unfit to retain his taxicab driver's license because he tested positive for marijuana use (ALJ Ex. 1).

Respondent failed to appear for a hearing at this tribunal scheduled for June 25, 2008. Petitioner submitted proof of service sufficient to demonstrate that it sent the petition and notice of hearing to respondent at the address that he provided to the Commission (Pet. Exs. 1, 2). Such evidence established the jurisdictional prerequisite for finding respondent in default and the hearing proceeded in the form of an inquest. At the hearing, petitioner relied upon documentary evidence.

For the reasons provided below, I find the evidence sufficient to prove that respondent tested positive for marijuana use and recommend revocation of his taxicab driver's license.

-1-

ANALYSIS

Taxicab drivers are required to 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 May 28, 2008, respondent submitted a urine specimen that tested positive for the presence of marijuana metabolite.

At the hearing, petitioner relied upon an affidavit from Joseph Watson, an employee of Laboratory Corporation of America Holdings (“LabCorp”), and other supporting documentation (Pet. Ex. 3). In his affidavit, Mr. Watson summarized the chain of custody and drug testing procedures employed by LabCorp. The chain of custody form (“CCF”) signed by respondent indicates that the specimen was sealed in his presence and assigned an identification number. LabCorp received the sealed sample two days later. Initial screening tests were positive for marijuana metabolite. Gas chromatography/mass spectrometry testing confirmed the presence of marijuana metabolite and indicated that the level was 21 ng/mL. This is well 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.

Petitioner also submitted a document from Doctor Neil J. Dash, a medical review officer. This document established that Dr. Dash was provided with a copy of the CCF for respondent's specimen and that the CCF was checked for accuracy. Specifically, Dr. Dash verified that (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; and (4) the specimen identification number assigned by the laboratory was verified against the reported result. Based on this review, Dr. Dash certified the positive test result and notified the Commission (Pet. Ex. 4).

Petitioner’s unrebutted evidence established that respondent tested positive for use of a controlled substance in violation of the Commission’s rules. See Matter of Fung v. Daus, 45 A.D.3d 392, 846 N.Y.S.2d 104 (1st Dep’t 2007). Marijuana is classified as a controlled substance under the New York Public Health Law, section 3306 schedule I (d)(13) (Lexis 2008). Commission rules specifically authorize the revocation of a taxicab driver’s license, after a hearing, when a driver tests positive on an annual drug test. See 35 RCNY § 2-19(b)(2); Taxi & Limousine Comm’n v. Duteau, OATH Index No. 2436/08 (May 23, 2008). 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).

FINDINGS AND CONCLUSIONS

1.Respondent was properly served with the petition and notice of hearing.

2.Petitioner established that respondent tested positive for use of a controlled substance.

RECOMMENDATION

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

Alessandra F. Zorgniotti

Administrative Law Judge

June 30, 2008

SUBMITTED TO:

MATTHEW W. DAUS, ESQ.

Commissioner/Chair

APPEARANCES:

MARC T. HARDEKOPF, ESQ.

Attorney for Petitioner

No appearance for Respondent