Taxi & Limousine Comm n v. Delorbe OATH Index No. 887/16 (Feb. 11, 2016)

Transcription

1 Taxi & Limousine Comm n v. Delorbe OATH Index No. 887/16 (Feb. 11, 2016) In a fitness proceeding, petitioner proved that respondent tested positive for cocaine use. Respondent s denial of illegal drug use insufficient to rebut the scientific evidence of a positive result for cocaine. Revocation of respondent s for-hire vehicle driver s license recommended. NEW YORK CITY OFFICE OF ADMINISTRATIVE TRIALS AND HEARINGS In the Matter of TAXI AND LIMOUSINE COMMISSION Petitioner -against- MARIO DELORBE Respondent REPORT AND RECOMMENDATION NOEL R. GARCIA, Administrative Law Judge Petitioner, Taxi and Limousine Commission ( TLC or Commission ), commenced this proceeding against for-hire vehicle driver Mario Delorbe, License No , pursuant to Administrative Code section and Title 35 of the Rules of the City of New York ( RCNY ) sections 55-14(e) and 68-14(a)(4). Petitioner alleged that respondent was unfit to retain his for-hire vehicle driver s license because he tested positive for cocaine use (ALJ Ex. 1). A hearing was scheduled for January 26, Respondent appeared without counsel. I explained to respondent his right to be represented by an attorney and the nature and procedural aspects of the hearing. Respondent declared himself ready to proceed without an attorney (Tr. 9-14). At the hearing, petitioner relied upon documentary evidence. Respondent testified on his own behalf and submitted supporting documentation. For the reasons provided below, I find petitioner s evidence sufficient to prove that respondent tested positive for cocaine and recommend revocation of his for-hire vehicle driver s license.

2 - 2 - ANALYSIS For-hire vehicle drivers are required to undergo annual drug testing. 35 RCNY 55-14(d)(1). A positive drug test may result in revocation of a for-hire vehicle driver s license following a hearing. 35 RCNY 55-14(e). Drugs mean any drug or other substance defined as a controlled substance in 3306 of the Public Health Law. 35 RCNY (Lexis 2015). Public Health Law section 3306 classifies cocaine as a controlled substance. Pub. Health Law 3306, Schedule II(b)(4) (Lexis 2015). At the hearing, petitioner relied upon an affidavit from Nataliya Krainyk, a toxicologist with Laboratory Corporation of America Holdings ( LabCorp ), and an underlying laboratory report (Pet. Ex. 1). These documents establish that on October 23, 2015, respondent submitted a urine sample for testing. 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 the following day and initial screening tests were positive for cocaine. Gas chromatography/mass spectrometry ( GC/MS ) testing confirmed the presence of cocaine and indicated that the level was 228 nanograms per milliliter ( ng/ml ), which exceeds the federally recognized cutoff level of 100 ng/ml. The identification number on LabCorp s final report matched the number on the CCF signed by respondent. Ms. Krainyk noted that positive samples are frozen and maintained for one year (Pet. Ex. 1). Petitioner also submitted a document from Dr. Frantz Michel, a medical review officer (Pet. Ex. 2). This document establishes that Dr. Michel was provided with a copy of the chain of custody form for respondent s specimen and that it was checked for accuracy. Specifically, Dr. Michel 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 verified against the reported result. Accordingly, petitioner s evidence is sufficient to establish its prima facie case that on October 23, 2015, respondent submitted a urine specimen for his required annual drug testing that proved positive for the presence of cocaine (Pet. Exs. 1-3). Respondent adamantly denied using cocaine or any illegal drugs (Tr , 40-41), and submitted medical records in support of his testimony (Resp. Exs. A-C). By way of background,

3 - 3 - respondent testified that he has been a TLC licensee for 17 years, has never previously tested positive for drugs, and has never had any significant issues in the past (Tr. 40, 42-43). Respondent further testified that he is a family man, that he has personal and medical problems, but no drug problems, and that he was demanding that he be allowed to repeat the drug test (Tr. 28, 40-41). Lastly, respondent argued that something could have happened to his urine sample during transport to the laboratory facilities (Tr ). Respondent failed to establish a meritorious defense. Respondent submitted medical records establishing that on December 17, 2015, and on January 15, 2016, he provided urine samples for testing to two different medical facilities (Resp. Exs. A, B). The results were negative for the presence of cocaine, or any other drug (Resp. Exs. A, B). However, these additional tests were performed approximately two and three months after the drug test at issue. Further, the cut-off level for confirming the presence of cocaine on the December and January tests was 300 ng/ml, and not the federally recognized cutoff level of 100 ng/ml that is used by the TLC (Resp. Exs. A, B). The December and January test results did not specify if cocaine was present at any level, even if below 300 ng/ml. Accordingly, the December and January results have little bearing on the validity of respondent s positive cocaine test result from October, and respondent did not provide expert testimony to find otherwise. Additionally, respondent submitted medical records establishing he attended a doctor s appointment on October 22, 2015, the day before he submitted the urine sample at issue (Resp. Ex. C). Under the heading of Present Visit History, the doctor s notes from that day state that the history was obtained from the patient (Resp. Ex. C). Under the same heading, the notes state that respondent did not have a substance abuse problem (Resp. Ex. C). The doctor ultimately concluded that respondent s general health was good (Resp. Ex. C). A fair interpretation of the notes is that the doctor conducted a medical history review with respondent, and that during the review respondent denied having a substance abuse problem. However, there is no indication that during the visit, the doctor ordered or conducted any laboratory testing for respondent. Therefore, respondent s general statement to his doctor that he does not have a substance abuse problem is, by itself, insufficient to rebut petitioner s scientific evidence of a positive test result from a urine sample respondent provided the next day. Respondent briefly argued that something could have happened on the way to his urine sample during transport to the laboratory facilities (Tr ). Such argument, devoid of any

4 - 4 - facts, is pure speculation, and does not rebut petitioner s chain of custody procedures outlined in Ms. Krainyk s affidavit and supporting laboratory documents (Pet. Exs. 1-3). Also, respondent s demand that he repeat the drug test is denied, as this tribunal has no authority to grant any additional testing. Respondent did have the option of retesting the original sample to check the accuracy of the reported positive cocaine results, and was notified that the sample is available for retesting for up to ninety days from the date of the failed drug test, but there is no record respondent opted to do so (ALJ Ex. 1). In sum, petitioner s scientific evidence was sufficient to prove that respondent tested positive for the use of a controlled substance, cocaine, and that he was therefore unfit to continue to hold a for-hire vehicle driver s license. 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 2-3 (July 13, 2011). FINDING AND CONCLUSION Petitioner established that respondent tested positive for use of a controlled substance, cocaine, and was thus unfit to hold a for-hire vehicle driver s license. RECOMMENDATION Petitioner seeks revocation of respondent s for-hire vehicle driver s license. That request is appropriate. Respondent s illegal use of cocaine is fundamentally incompatible with driving a for-hire vehicle and poses a threat to public safety. Taxi & Limousine Comm n v. Masso, OATH Index No. 2638/11 at 3 (July 6, 2011); 35 RCNY 55-14(e); Admin. Code Accordingly, I recommend revocation of respondent s for-hire driver s license. February 11, 2016 Noel R. Garcia Administrative Law Judge SUBMITTED TO: MEERA JOSHI Commissioner/Chair

5 - 5 - APPEARANCES: LEANDRA EUSTACHE, ESQ. Attorney for Petitioner MARIO DELORBE Self-Represented