Taxi & Limousine Comm n v. Khan OATH Index No. 1720/13 (July 26, 2013)

Transcription

1 Taxi & Limousine Comm n v. Khan OATH Index No. 1720/13 (July 26, 2013) Evidence proved that respondent tested positive for cocaine use. Revocation of taxicab driver s license recommended. NEW YORK CITY OFFICE OF ADMINISTRATIVE TRIALS AND HEARINGS In the Matter of TAXI AND LIMOUSINE COMMISSION Petitioner -against- MUHAMMAD ARIF KHAN Respondent REPORT AND RECOMMENDATION KEVIN F. CASEY, Administrative Law Judge Petitioner, Taxi and Limousine Commission, brought this proceeding against taxicab driver Muhammad Arif Khan, under the Administrative Code and the Taxi and Limousine Commission Rules. Admin. Code (a) (Lexis 2013); 35 RCNY 54-14(c), (Lexis 2012). Petitioner alleged that respondent was unfit to retain his taxicab driver s license because he tested positive for cocaine use. Respondent denied using cocaine and challenged the reliability of petitioner s evidence. A hearing was scheduled for March 28, 2013, and repeatedly adjourned at respondent s request, with petitioner s consent, to enable respondent to investigate the test results and conduct additional testing. At the hearing on July 8, 2013, petitioner relied upon documentary evidence. Respondent testified in his own behalf and also offered documentary evidence. For the reasons below, I find petitioner s evidence sufficient to prove that respondent tested positive for cocaine use and recommend revocation of his taxicab driver s license. ANALYSIS Taxicab drivers are required to submit to annual drug testing. 35 RCNY 54-14(c)(2). A positive drug test may result in revocation of a taxicab driver s license. 35 RCNY 54-

2 - 2-14(c)(3). Here, the evidence demonstrated that on March 5, 2013, respondent submitted a urine specimen that tested positive for the presence of cocaine metabolite (Pet. Ex. 1). Petitioner presented an affidavit from Nataliya Krainyk, an employee of Laboratory Corporation of America Holdings ( LabCorp ) and supporting documentation (Pet. Ex. 1). In her affidavit, Ms. Krainyk summarized the chain of custody and drug testing procedures used by LabCorp (Pet. Ex. 1). The chain of custody form signed by respondent indicated that the specimen was assigned an identification number and it was sealed in his presence. LabCorp received the sealed sample the next day and initial screening tests were positive for cocaine metabolite. Gas chromatography/mass spectrometry ( GC/MS ) testing confirmed the presence of cocaine metabolite at a level of 375 nanograms per milliliter, more than triple the cutoff of 100 nanograms per milliliter (Pet. Ex. 1). The identification number on the LabCorp s final report matched the number on the chain of custody form signed by respondent. Positive samples are frozen and maintained for one year. Respondent s sample is available, upon request for retesting (Pet. Ex. 1). Medical review officer, Neil J. Dash, M.D., certified the positive test results (Pet. Ex. 1). In his signed report, Dr. Dash confirmed that he was provided with a copy of the chain of custody form for respondent's specimen and that it was checked for accuracy. Dr. Dash verified that (1) respondent's signature appeared on the form; (2) if an interview was conducted, the date of birth and license numbers were verified; (3) the chain of custody form control number was compared to the reported result; and (4) the specimen identification number assigned by the laboratory was matched to the reported result. Petitioner also introduced a photograph of the specimen bottle with a bar code, identification number, respondent s handwritten initials, and the date the sample was submitted (Pet. Ex. 3). Sonia Casillas, a certified collector employed by LabCorp for seven years, submitted an affidavit stating that respondent s sample was collected in compliance with federal regulations at the LabCorp collection facility on Steinway Street, Queens, and she did not remove specimens from the presence of donors until the specimens were sealed (Pet. Ex. 4). Respondent denied using cocaine (Tr. 33). As a practicing Muslim, it was against his religion to use alcohol or illegal drugs (Tr. 34). He did not recall using Tylenol with codeine or other stronger medicine in the past year (Tr. 38). Respondent has been licensed to drive taxicabs since 2001 and he routinely submitted to annual drug testing (Tr. 28).

3 - 3 - He asserted that regular testing procedures were not followed this time (Tr ). In the past, he signed a document before entering a restroom to provide a urine sample and when he returned from the restroom the specimen bottle was signed and sealed in his presence, in an adjacent room (Tr. 28, 33). This year the procedures were different (Tr. 30). Respondent testified that he signed or initialed two papers when he first arrived at the testing site, twenty-five minutes before he went to the restroom to submit a sample (Tr ). When he came out of the restroom, there was nobody in the adjacent room (Tr ). A woman arrived and asked him what he was doing (Tr. 30). Respondent told her that he had his sample and she told him to put it on the desk and leave (Tr. 30). Respondent placed the sample on a desk and left (Tr. 31). Neither respondent nor the specimen collector signed respondent s copy of the chain of custody form, labeled COPY 3 - DONOR, which respondent offered in evidence (Tr. 32; Resp. Ex. A). The woman, who appeared to be the only person working at the testing site that day, accompanied respondent out of the room and went to the front of the facility (Tr. 31, 35). Respondent noted that at the same time when I was leaving the room another man walked out of the restroom with a specimen bottle (Tr. 31). Respondent conceded that his signature and initials were on the chain of custody form, labeled COPY 1 - LABORATORY, which petitioner offered in evidence (Tr. 36; Pet. Ex. 1). His initials were also on a label on the side of the specimen bottle shown in the photograph presented by petitioner (Tr. 37; Pet. Ex. 3). Respondent claimed that he signed the label before it was affixed to the specimen bottle and he signed the custody form and the label before he went to the restroom to provide a urine sample (Tr ). One month after this drug test, respondent submitted a hair follicle sample to LabCorp for further testing (Tr. 34). He said that the hair follicle tested negative for cocaine and other illegal drugs (Tr. 34). Respondent presented a report from LabCorp, dated April 27, 2013, indicating that the hair sample tested negative for cocaine or other illegal drug use and a printout from LabCorp s web site, indicating that a hair sample can detect drug use up to 60 days prior to testing (Resp. Exs. G, H). He also presented chain of custody forms from his 2010 drug test and from other taxicab drivers, each containing the signature of the collector and the driver. A letter from an imam, attesting to respondent s excellent character and lack of drug use was also introduced (Resp. Ex. F).

4 - 4 - This tribunal has rejected drug test results where the evidence showed that there were material errors in paperwork or testing procedures. See, e.g., Dep t of Sanitation v. W.J., OATH Index No. 401/12 at 9, 14 (Jan. 19, 2012), adopted, Comm r Dec. (Mar. 15, 2012) (dismissing drug test results because of multiple errors in paperwork and failure to follow proper procedures); Dep t of Sanitation v. Anonymous, OATH Index No. 765/11 at 7-9 (Dec. 1, 2010), adopted, Comm r Dec. (Feb. 17, 2011) (rejecting drug test results where required procedures were not followed). However, challenges to drug tests have been rejected where the errors in paperwork were minor and there was no credible evidence that the errors had any impact on the reliability of the test results. See Taxi & Limousine Comm n v. Lorinz, OATH Index No. 2169/13 at 3-4 (July 9, 2013) (rejecting challenge to drug test results where licensee claimed, among other things, that collector failed to ask for his telephone number and the testing site was crowded and dirty); Dep t of Correction v. Gray, OATH Index No. 930/03 at (May 29, 2003) (rejecting challenge to drug test result based on two discrepancies in dates on paperwork). Here, petitioner presented credible documentary evidence from disinterested witnesses establishing that respondent s sample tested positive for drug use. Respondent conceded that his signature and initials were on the chain of custody form introduced by petitioner. The signature and initials appear directly below the line which states that the sample was labeled and sealed in respondent s presence (Pet. Ex. 1). Petitioner also provided a photocopy of the specimen bottle which showed respondent s initials on an identification label (Pet. Ex. 3). This evidence sufficed to prove that the specimen bottle was sealed and initialed in respondent s presence. The lack of signatures on one copy of a chain of custody form, introduced by respondent, is not enough to undermine the test results. Respondent may have obtained his copy of the form before the sample was sealed or it may be that the signatures did not come through on his copy, which appears to be the third part of a three-part form (Resp. Ex. A). More importantly, the laboratory s copy of the chain of custody form, which contained the signatures of respondent and the collector, accompanied the sample throughout the testing process (Pet. Ex. 1). Respondent s testimony was unpersuasive. He offered inconsistent explanations of how the testing procedure ended. At first, respondent claimed that, before leaving the room, he asked the collector whether there were any further procedures, she told him no, and he left (Tr. 30). Then he claimed that, instead of merely inquiring, he affirmatively told the collector, No, there is a next procedure (Tr. 31). He also made the improbable claim that, while his sample

5 - 5 - remained unlabeled and unsealed on a desk top, someone else happened to walk out of the restroom with another urine sample (Tr. 31). To credit respondent s testimony would mean that an experienced certified collector ignored basic testing procedures, left at least two samples unsealed, and respondent s sample somehow became switched with the other sample, which coincidentally tested positive for the presence of cocaine. That is not the most likely explanation for what occurred. The more likely explanation confirmed by the collector s affidavit, respondent s signature and initials on petitioner s custody form, and respondent s initials on the specimen bottle is that respondent s sample was labeled and sealed in his presence, and it tested positive for cocaine use. The results of the hair follicle test did not rebut petitioner s case. According to the report, the sample was collected on April 24, 2013, by a Dr. Farooki, but there was no reliable evidence to show that respondent was the person who provided the hair sample that was tested. Indeed, on the form introduced by respondent it clearly states, This is a courtesy copy of a laboratory report, No chain of custody established, and Not for forensic use (Resp. Ex. G). In sum, petitioner s evidence was sufficient to prove that respondent tested positive for the use of cocaine, a controlled substance. See Fung v. Daus, 45 A.D.3d 392 (1st Dep't 2007); see also Taxi & Limousine Comm'n v. Hinton, OATH Index No. 2683/11 at 2 (July 13, 2011). FINDING AND CONCLUSION 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. Respondent s illegal use of cocaine is fundamentally incompatible with driving a taxicab and poses a threat to public safety. Taxi & Limousine Comm n v. Rivera, OATH Index No. 335/12 at 2-3 (Aug. 30, 2011); 35 RCNY 54-14(c); Admin. Code Accordingly, I recommend revocation of respondent s taxicab driver s license. July 26, 2013 Kevin F. Casey Administrative Law Judge

6 - 6 - SUBMITTED TO: DAVID YASSKY Commissioner/Chair APPEARANCES: ALLISON GREEN, ESQ. Attorney for Petitioner KATZ LAWYERS, P.C. Attorneys for Respondent BY: KATE McGAULEY, ESQ.