::PAF\Tt,i1ENT OF ... ;. ' 1 "' fY"R."'"A'l'!f'!'· I : i··"{l\f\ ~) · lJ t I . .J \ U.S. Department 

of Transportation 

Federal Aviation 

Administration 

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Office of the Chief Counsel 

Enforcement Division _ S 

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October 4, 2012 

CERTIFIED 

Hearing Docket 

Federal Aviation Administration 

800 Independence Avenue, S. W. 

Washington, DC 20591 

Attn: Hearing Docket Clerk 

AGC-430, Wilber Wright Building 

Suite 2Wl 000 

800 Independence Ave., SW. 

Washington, DC 20591 

Area Code 202 267-7100 

RECEIVED 

OCT 0 5 2012 

HEARING DOCKET 

Re: Magorien Honing & Hydralics /FOm.S d.._O(O\..- 0 qn 7 

FAA Case No.: 2011 WP910318 J-ot;)-Fl WA -.e..,.(>p-1 1-fl-f</ 0 

Enclosed herewith please find a copy of a request for hearing and the original and one copy of 

the Complaint in the above-referenced proceeding. 

The FAA requests that the hearing in this matter be held in Los Angeles, CA, and expects that 

the hearing will last one day. 

Please address all communications for the FAA to the undersigned at: 

Office ofthe Chief Counsel 

800 Independence Avenue, S.W. 

Washington, D.C. 20591 

Ph: 202-267-7100 

Fax: 202-267-5106 

E-mail: michael.f.mckinley@faa.gov 

Enclosures: Request for Hearing 

Complaint 

cc: Respondent (w/copy of Complaint) 

Sincerely, 

1!£~~ Senior Attorney 
CERTIFICATE OF SERVICE 

I hereby certify that I have, this date, served the foregoing Complaint by mailing the following 

copies, Certified Mail (Return Receipt Requested): 

Original and 1 Copy: 

One Copy: 

Dated this 4th day of October, 2012. 

Hearing Docket 

Federal Aviation Administration 

800 Independence A venue, S. W. 

Washington, DC 20591 

Attn: Hearing Docket Clerk 

AGC-430, Wilber Wright Building 

Suite 2W1000 

Dave Magorien 

Magorien Honing & Hydraulics 

1212 South Vail Avenue 

Montenbello, CA 90640 
U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, D.C. 

IN THE MATTER OF 

MAGORIEN HONING & HYDRAULICS 

FAA DOCKET NO. (not assigned) 

(Civil Penalty Action) 

FDMSNO.FAA 

FAA CASE NO. 2011WP910318 

COMPLAINT 

OCT 0 5 2012 

HEARING DOCKET 

The Federal Aviation Administration (FAA), by counsel, hereby files its Complaint, 

pursuant to Rule 208 of the Rules of Practice (14 C.P.R. 13.208), and states as follows: 

I 

1. On September 10, 2012, Magorien Honing & Hydraulics (Respondent) was advised 

by a Final Notice of Proposed Civil Penalty that the FAA proposed to assess a civil 

penalty in the amount of$40,000.00. On September 25,2012, Respondent submitted a 

written request for a hearing. 

2. On all dates relevant herein, Respondent was a non-certificated company providing 

contract maintenance functions under contractor registration number CONN062C. 

3. On all dates relevant herein, Respondent was required to comply with the requirements of 

14 C.P.R. part 120 and 49 C.P.R. part 40 for its Drug and Alcohol Testing Program. 
4. On June 24, 2011, the FAA conducted an inspection of Respondent's Antidrug and 

Alcohol Misuse Prevention Program. 

5. As a result of the inspection, the following was discovered: 

a. Respondent hired employee Doyle House on May 14, 1984 and employee 

Douglas Godown on October 11, 1988; 

2 

b. On March 18, 2010, Respondent was approved for a contractor registration 

number and began performing safety-sensitive work on aircraft parts 

belonging to American Airlines, Inc.; 

c. On March 18,2010, Respondent authorized employee Doyle House to 

perform safety-sensitive maintenance work on American Airlines, Inc. 

aircraft parts, despite not subjecting, Mr. House to a pre-employment drug 

test; 

d. On April I, 2010, TAG/AMS, Inc., the consortium/third party drug test 

administrator for Respondent, completed an "Add and Delete Form" to 

have employees Doyle House and Douglas Godown added to the random 

drug testing pool; 

e. On April I, 2010, TAG/AMS, Inc. subjected Doyle House to a preemployment drug test; 

f. On AprilS, 2010, TAG/AMS, Inc. subjected Douglas Godown to a preemployment drug test; 

g. On April 7, 2010, the result of Doyle House's drug test was verified as 

NEGATIVE; 
h. On April9, 2010, Douglas Godown and Doyle House were added to the 

TAG/ AMS, Inc. random testing pool; 

1. On or about April9, 2010, Respondent allowed Douglas Godown to 

perform safety-sensitive maintenance work, despite not having a verified 

NEGATIVE drug test result; 

J. On April14, 2010, Douglas Godown's drug test result was verified as 

POSITIVE for marijuana; 

3 

k. After receiving a verified POSITIVE drug test result for Douglas Godown 

on April14, 2010, Respondent allowed him to continue performing safetysensitive maintenance work, and kept him in the random testing pool 

through February 2, 2011; 

1. On December 6, 2010, Respondent subjected Douglas Godown to a 

second random drug test, which was verified as POSITIVE for marijuana 

on December 13, 2010, and reconfirmed as POSITIVE on December 21, 

2010, after the split specimen was sent to Central Drug System for 

· reconfirmation testing; 

m. Respondent allowed Mr. Godown to continue performing safety-sensitive 

maintenance duties, despite the second verified POSITIVE drug test result; 

n. Douglas Godown remained in the random testing pool through February 2, 

2011, continued to be available to perform safety-sensitive maintenance 

duties, and never completed the return-to-duty process outlined in 49 

C.P.R. pt. 40, subpart 0; 
4 

o. On February 2, 2011, Respondent contacted TAG/AMS and terminated 

their relationship, which caused Respondent's safety-sensitive employees 

to no longer be subject to random drug and alcohol testing; 

p. After terminating their relationship with TAG/ AMS, Respondent 

continued to perform safety-sensitive work for American Airlines, Inc.; 

q. On April13, 2011, TAG/AMS made a random selection from their 

consortium random pool and none of Respondent's safety-sensitive 

employees had a chance ofbeing selected. 

6. In addition to the foregoing, the FAA inspection also revealed the following: 

a. Respondent did not ask safety-sensitive employees Doyle House, Douglas 

Godown, and Conrad Yu, if, during the past two years, they had tested 

positive or refused to test on any pre-employment drug or alcohol tests 

administered by an employer to which they had applied for, but did not 

obtain, safety-sensitive work covered by the Department of Transportation 

drug and alcohol testing rules; 

b. Respondent did not distribute informational materials on drug use and 

abuse to all covered employees, including Doyle House, Douglas Godown, 

and Conrad Yu; 

c. Respondent did not distribute the company's policy regarding drug use in 

the workplace to all covered employees, including Doyle House, Douglas 

Godown, and Conrad Yu; 
d. Respondent did not implement any type of initial drug training for any of 

its employees, and did not document whether supervisory personnel had 

completed the required drug use training; 

e. Respondent failed to follow the detailed information which TAG/AMS, 

Inc. sent the company in a 2-page document entitled, "What to do if you 

have a POSITIVE for drug or alcohol test result"; 

f. Respondent did not maintain two years of documentation showing they 

trained their supervisors to make a determination, based on reasonable 

suspicion, that an employee needed alcohol testing. 

II 

By reason of the foregoing facts and circumstances, Respondent violated the following 

Federal Aviation Regulations: 

a. 14 C.F.R. § 120.105: Each employee, including any assistant, helper, or 

individual in a training status, who performs a safety-sensitive function listed in this 

section directly or by contract (including by subcontract at any tier) for an employer as 

defined in this subpart must be subject to drug testing under a drug testing program 

implemented in accordance with this subpart. This includes full-time, part-time, 

temporary, and intermittent employees regardless of the degree of supervision. The 

safety-sensitive functions are: (e) Aircraft maintenance and preventive maintenance 

duties. 

5 
b. 14 C.F.R. § 120.109: Each employer shall conduct the types of testing described 

in this section in accordance with the procedures set forth in this subpart and the DOT 

"Procedures for Transportation Workplace Drug Testing Programs'' ( 49 CFR part 40). 

6 

c. 14 C.F.R. § 120.109(a)(2): No employer may allow an individual to transfer from 

a nonsafety-sensitive to a safety-sensitive function unless the employer first conducts a 

pre-employment test and receives a verified negative drug test result for the individual." 

d. 14 C.F.R. § 120.109(b)(6)(i)(B), which states, in pertinent part, only safetysensitive employees are to be in an employer's random testing pool, and all safetysensitive employees must be in the random pool. 

e. 14 C.F.R. § 120.215(a): Each employee, including any assistant, helper, or 

individual in a training status, who performs a safety-sensitive function listed in this 

section directly or by contract (including by subcontract at any tier) for an employer as 

defined in this subpart must be subject to alcohol testing under an alcohol testing program 

implemented in accordance with this subpart. This includes full-time, part-time, 

temporary, and intermittent employees regardless of the degree of supervision. The 

safety-sensitive functions are: (5) Aircraft maintenance or preventative maintenance 

duties. 

f. 14 C.F .R. § 120.217( c)(6)(i)(B), which states, in pertinent part, that only safetysensitive employees are to be in an employer's random testing pool, and all safetysensitive employees must be in the random pool. 

g. 49 C.F.R. § 40.23(a): As an employer who receives a verified positive drug test 

result, you must immediately remove the employee involved from performing safetysensitive functions. You must take this action upon receiving the initial report of the 
7 

verified positive test result. Do not wait to receive the written report or the result of a split 

specimen test. 

h. 49 C.F.R. § 40.23(d): As an employer, when an employee has a verified positive, 

adulterated, or substituted test result, or has otherwise violated a DOT agency drug and 

alcohol regulation, you must not return the employee to the performance of safetysensitive functions until or unless the employee successfully completes the return-to-duty 

process of Subpart 0 of this part. 

i. 49 C.F.R. § 40.25(j): As the employer, you must also ask the employee whether 

he or she has tested positive, or refused to test, on any pre-employment drug or alcohol 

test administered by an employer to which the employee applied for, but did not obtain, 

safety-sensitive transportation work covered by DOT agency drug and alcohol testing 

rules during the past two years. If the employee admits that he or she had a positive test or 

a refusal to test, you must not use the employee to perform safety-sensitive functions for 

you, until and unless the employee documents successful completion of the return-to-duty 

process. 

j. 14 C.F.R. § 120.219(a)(2)(ii)(F): Employers must maintain two years 

documentation of compliance with the requirements of 14 C.P.R.§ 120.223(a). In 

summary, 14 C.P.R.§ 120.223(a) states each employer shall provide educational 

materials that explain alcohol testing requirements and the employer's policies and 

procedures with respect to meeting those requirements. 

k. 14 C.F.R. § 120.219(a)(2)(ii)(G): Employers must maintain two years 

documentation of training provided to supervisors for the purpose of qualifying the 
supervisors to make a determination concerning the need for alcohol testing based on 

reasonable suspicion. 

1. 14 C.F.R. § 120.115(b)(1)(ii): An employer's EAP education program must 

include displaying and distributing a community service hot-line telephone number for 

employee assistance; 

m. 14 C.F.R. § 120.115(b)(1)(iii): An employer's EAP education program must 

8 

include displaying and distributing the employer's policy regarding drug use in the office; 

n. 14 C.F.R. § 120.115(c)(1): Each employer shall implement a reasonable program 

of initial training for employees. The employee training program must include at least the 

following elements: (i) The effects and consequences of drug use on individual health, 

safety, and work environment; (ii) The manifestations and behavioral cues that may 

indicate drug use and abuse; and (iii) Documentation of training given to employees and 

employer's supervisory personnel. 

Pursuant to Title 49 of the United States Code, Section 46301, Respondent is subject to a 

civil penalty not to exceed $11 ,000 for each violation alleged. 

Under the facts and circumstances ofthis case, a civil penalty of$40,000.00 is 

appropriate. 
WHEREFORE, the Agency, by counsel, respectfully requests that the Administrative 

Law Judge enter an Order that Respondent be assessed a civil penalty in the amount of 

$40,000.00. 

Respectfully submitted this 4th day of October, 2012. 

Ji~LJi~ Senior Attorney 

Office of the Chief Counsel 

800 Independence A venue, S. W. 

Washington, D.C. 20591 

Ph: 202-267-7100 

Fax: 202-267-5106 

E-mail: michael.f.mckinley@faa.gov 

9 
10 

CERTIFICATE OF SERVICE 

I hereby certify that the foregoing Complaint has been mailed this date by Certified Mail, Return 

Receipt Requested, to: 

Original and One Copy: 

One Copy: 

Hearing Docket 

Federal Aviation Administration 

800 Independence A venue, S. W. 

Washington, DC 20591 

Attn: Hearing Docket Clerk 

AGC-430, Wilber Wright Building 

Suite 2Wl 000 

Dave Magorien 

Magorien Honing & Hydraulics 

1212 South Vail Avenue 

Montenbello, CA 90640 

Dated this 4th day of October, 2012. 
r1111 1gJ UU 1/VV I 

/---::-----~ ... , •''''-' ........ _,#, / "·'~:.;.;.:.>'!'\· £--~· ...... , 

M"GOB:IEN Honing & Hvdraulics 

-< ~ ~.,,, .. .,__._, .~··,··~)I .. ,...,.- "'-~ 0 --~~-· 

··--... "-~-

To: Federal Aviation Administration 

600 Independence Ave, SW 

Wilbur Wright Building- Suite 2W1000 

Washington, OC 20S9l 

Attn: Hearing Docket Clerk, AGC.430 

To whom it may concern, 

1212 South Vail Ave 

Montebello, CA 90640 

Tel: 323-723-1151 

Fax: 323-888-1154 

)!JWW.magorien.con, 

September 25, 2012 

We are formally requesting a hearing in regards to case No. 2011WP910318. We feel that the penalty 

and explanation of violations were excessive and not accurate. 

We have been unfairly issued a $40,000 penalty w;:~s for work we had done which totaled $1,200 worth of gross 

sales for us. These happened to be C. F-R. parts that were given to us from one particular customer who is a 

licensed FM repair station. The work that we completed was in accordance with all FAA standards, and was 

certified and passed by all entities involved and met all regulations and requirements that were needed. The said 

FAA repair station was required to send their parts to a company that was licensed to work on these said parts. It 

was not up to us to check to see If these parts were c.F.R. parts. We are just a small honing shop and we do work 

for various companies Including aerospace, automobile, machine shops, etc. 

We feel we have been harshly peni:ilized due to minor procedure and semantics that did not pertain to our 

company. Many of the infractions that we have been accused of and penalized for, were Inaccurate and surely not 

worth a penalty of 1/3 of our yearly revenue. we are in jeopardy of going out of business due to this penalty and 

we are unable to pay this amount which we will show was unfair and inaccurate. 

Therefore we kindly request a fo~:mal hearing which we are to understand is a choice that we were offered by the 

FAA in regards to this case. We also request the hearing to be in the city of Los Angeles, California since the said 

penalties were in the state of California and our company is also located here. We have never conducted any 

business physically in Washington DC nor do we have any customers there. We thank you for your time and look 

forward to your response and the information needed for our hearing. 

~ 

Sincerely, 

General Manager RECEIVED 

OCT ... 3 2012 

HEARING DOCKET