| Matter of Wai Lun Fung v Daus |
| 2007 NY Slip Op 08863 [45 AD3d 392] |
| November 15, 2007 |
| Appellate Division, First Department |
| In the Matter of Wai Lun Fung, Petitioner, v MatthewDaus, as Chair of the New York City Taxi and Limousine Commission,Respondent. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York (Julian L. Kalkstein of counsel), forrespondent.
Determination of respondent Taxi and Limousine Commission (TLC), dated August 29,2006, which, after a hearing, revoked petitioner's license to operate a taxicab based on positivedrug testing, unanimously confirmed, the petition denied and this proceeding (transferred to thisCourt by order of Supreme Court, New York County [Lewis Bart Stone, J.], entered December18, 2006), dismissed, without costs.
Respondent's finding that petitioner had used an illegal substance was supported bysubstantial evidence, which included, inter alia, the TLC's outline of the protocol followed by theDoctors Review Service after a sample tests positive for the use of drugs, and a chain of custodyform regarding the sample submitted. The administrative law judge's finding that petitioner'stestimony regarding his defense of passive smoke inhalation lacked credibility was entitled togreat weight (see Matter of CaféLa China Corp. v New York State Liq. Auth., 43 AD3d 280, 281 [2007]). In addition,petitioner has failed to demonstrate how he was prejudiced by other irregularities (Matter ofFama v Mann, 196 AD2d 919, 920 [1993]), such as evidence purportedly omitted from therecord. There is no basis for petitioner's claims that the TLC should have provided at least onewitness for cross-examination, or that the administrative law judge should have compelledcompliance with his subpoenas (see Matter of Gordon v Brown, 84 NY2d 574, 578-579[1994]), or that the administrative law judge was biased.
Nor did the administrative law judge improperly shift the burden of proof to petitioner at thefitness hearing. Section 2-19 (b) (2) of 35 RCNY, which provides that a positive drug test maylead to revocation of a taxi license, clearly puts a licensee on notice that he is required to take anannual drug test, and that upon failing such a test, his license may be revoked.
We further reject petitioner's claim that pursuant to New York City Administrative Code§ 19-512.1 (a), he was entitled to a hearing before the full nine-member TLC, or in front ofa competent administrative tribunal. The "construction given statutes and regulations by theagency responsible for their administration, if not irrational or unreasonable, should be upheld"(Matter of Howard v Wyman, 28 NY2d 434, 438 [1971]). A plain reading and commonsense [*2]suggest that the drafters of section 19-512.1 (a) did notmean "full commission" every time the term "commission" is used throughout this chapter of theAdministrative Code. Nor has petitioner provided any legal authority to support his contentionthat an administrative law judge is not a competent arbiter.
Under these circumstances, it cannot be concluded that the penalty of revocation imposed byrespondent shocks the judicial conscience (Matter of Milano v New York City Taxi &Limousine Commn., 305 AD2d 326 [2003], lv denied 5 NY3d 707 [2005];Matter of Hassan v New York City Taxi & Limousine Commn., 287 AD2d 715 [2001]).Concur—Friedman, J.P., Sullivan, Buckley and Malone, JJ.