## ..

SERVED: MAY 29, 2012

UNITED STATESDEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS WASHINGTON, D.C.

) FEDERAL AVIATION ADMINISTRATION, ) ) Complainant, ) ) 

### v. ) ) AIR Z FLYING SERVICE, INC. ) ) Respondent. )



# ___________________________) FAA DOCKET No. CP10SW0010 (Civil Penalty Action)

OMS No. FAA-2010-0974

INITIAL DECISION OF ADMINISTRATIVE LAWJUDGE RICHARD C. GOODWIN 

## .Em!ru!: Complainantdid not prove the alleged violation. The Complaint is dismissed.



### I. Background
The FederalAviation**Regulatio~s** ("FARs") prohibit Part 135 operators from employing anyindividual performing a "safety-sensitive" function unless the operator has first received for thatpersori a verified negative drug test result. RespondentAir ZFlying Service, Inc. ("Respondent" or "Air Z"), ofWilloughby, OH, as a certificated operator under Part 119 authorized to conduct operations under Part 135, is required to comply with this rule. ComplainantFederalAviation Administration ("Complainant," "FAA," or "the agency'') asserts thatAir Z stands in violation: the carrier allowed an individual, the agency says, to perform maintenance duties

- safety-sensitive functions -priorto receiving for that person a verified negative drug test result.
Certain underlying facts are not disputed. The parties agree that Ritch Kovacic ("Mr. Kovacic" or "the employee") was given a pre-employment drug test on behalfofAir Z on May 28, 2008. It also is undisputed that Mr. Kovacic performed safety-sensitive duties on anAir Z air<iraft onJune 6, 2008.1 Air Z,**th~** parties also agree, did receive the employee's verified negative drug testresult; they differ as to

1Exh. C-8; Exh. R-D; Tr. 32. Complainant's exhibits are referred to by "C" followed bythe exhibit number; Respondent's exhibits are designated "R" followed by a letter. See Tr. 54.2

when. Resolution ofthis question will determine the outcome ofthe case 

### (see Tr. 18- 19). Complainant contends that Air Z did not receive a verified negative test result for Mr. Kovacic until July 17, 2008 (Tr. 37-38). As such, it concludes that Respondent violated the former 14 C.F.R. §135.251(a). 2 Complainant asks for a civil penalty in the amount of$7,700.
Air Z claims that it received the required notification onJune 6, 2008. The employee first performed a safety-sensitive function, the carrier continues, later that day 

### (seeTr. 22-24). Air Z denies the agency's allegation.
The burden ofproofrests with the agency. To prevailit must establish proof ofthe charge.by a preponderance ofthe reliable, probative, and substantial evidence. 14 C.F.R. §§13.223 and 13.224; 

### Toyota MotorSales, FAA OrderNo. 94-28, pp. 6-7, 1994 FAA Lexis 275, p. 10 (September 30, 1994).
A hearing was held in Cleveland, OH on January 18, 2012. I determined that a written decision was appropriate (Tr. 235-38). Briefs have been filed and the matter is ready for decision.



### II. Discussion and Findings Amy Frankelwas the FAA's first witness. Ms. Frankelhadbeen a branch managerin the DrugAbatementDivision ofthe agency's Office ofAviation Medicine at the time ofthe alleged infraction. She supervised an FAA team which inspected Air Z's drug program onJuly 23, 2008 (Tr. 27, 39). The inspection made findings which led to the charge before us today.
Ms. Frankelexplainedthe duties ofPart 135 carriers. She testified that an employee (including a prospective employee) may notperform a safety-sensitive task unless and until 1) a pre-employment drug testis conducted prior to an offer of employment; 2) the test resultis negative; 3) the resultis verified by a Medical Review Officer ("MRO"); and 4) the resultis transmittedto the prospective> employer's 'DesignatedEmployee Representative ("DER"). Transmission may be effected by e-mail, fax, or a telephone call, as well as by regularmail (Exh. C-3; Tr. 26-33, 86-87, 111).
The Department's regulations governing drug and alcohol testing procedures, found at 49 C.F.R. §40, further describe the process. First the prospective employer, inthis case Air Z, selects a "collection site." This is where the "employee" (including individuals subject to pre-employmenttesting) presents himself/herselffor testing. A "collector" at the collection site receives the specimen andinitiates and completes

2 See Tr. 18-19,21. Atthe time ofthe alleged infraction, the FAA's drug and alcohol regulations were found in 14 C.P.R. Part 121, Appendices I and J. Theyhave since beenrecodified. Effective July 13, 2009, they are found in Part 120, subparts E andF. See Final Rule, 74 Fed.Reg. 22649 (May 14, 2009). The Initial Decision ("I.D.") will refer to the then-current sections. The regulation assertedly violated, §135.251(a), also was found in Part 121, Appendix I, §V.A.l. It is now §120.109(a)(1).3

the Federal Drug Testing Custody and ControlForm ("CCF"). 

### See49 C.F.R. §40.3. (defining, among other things, "collection site," "collector," and "employee"). The collector then ships or hand-delivers the specimen to a Department ofHealth and Human Services ("HHS")-certified laboratory ("the lab"). §§40.73, 40.81. The collector also transmits from the collection site (preferably byfax) four copies ofthe CCF: one, along with the specimen, goes to the lab; theothers are sentto the Medical Review Officer ("MRO"), the DER, and the employee. §§40.73(a)(4), (5), and (9); §40.97(b); 

### seealsowww.dot.gov/odapc/documents/part40guestions.pdf(answers to frequently asked questions). The MRO, a physician, obtains the specimen from the lab -the lab and the MRO are always different

-- andreviews the lab results. §§40.3 (defined) and 40.121;see

### alsoTr. 183. (The entity on whose behalfthe MRO reviews the results also is referred to as the MRO.) When the lab result is negative, as in this case, itis the MRO's responsibility to verify the result and then release his or herfindings to the DER. §§40.127, 40.165(a). The DERis anindividual at the prospective employer designated as the person responsible for receiving specimens from MROs. No one other than the DER mayreceive the test result onbehalfofthe prospective employer. This protocolis designed to respect the confidential nature of the testingprocess and the DER's expertise (Tr. 30, 33-34, 52, 104-07, 125).
The prospective employer may use an intermediaryin this process. The intermediaryis sometimes referred to as a service agent. A service agent provides services such as collection, laboratory analysis, and third-party administration. Third-party administrators typically perform administrative tasks. They are neither employers nor employees. 49 C.F.R. §40.3.
The agency's investigation ofAir Z turned up a document issuedby ChoicePoint Medical Review Services ("ChoicePoint") entitled Controlled Substance Test Report (''Test Report"). ChoicePoint.was identified as the MRO entity. The TestReport showedthat Mr. Kovacic hadpresen:ted himselffor a pre-employment drug test at a collection site identified as Concentra Medical Center ("Concentra") (Exh. C-1). Concentra, Ms. Frankeltestified, is a service agent as well as a collection site, providing specimen collection throughout the country (Tr. 41). This collection site was inWilloughby, OH, and is sometimes identified as "Concentra Willoughby." Kovacic's sp-ecimen was transmittedfrom Concentra Willoughby to the lab, Advanced Toxicology Network ("ATN"), onMay 28, 2008 (Exh. C-7). MaryAnn Newton (formerly MaryAnn Peltier, 

### seeExh. C-7, p. 2) is an MRO manager at ChoicePoint (itselfa unit ofLexis-Nexis). She testified that the specimen ofthe donor, identifiedinits records as Rich Favacic [sic], had been collected onMay 28, 2008. 3 While ChoicePointdocuments also indicate that the

· specimen was tested atATN on July 16, 2008--:- sixweeks after the lab received it

--

3 Exh. C-1; Tr. 183. There is no doubtthatthe donor was in fact Mr. Kovacic. "RichFavacic" 's social security number, used as a personal identifier inthis process, is the same as Mr. Kovacic's. Additionally, a second identifier, known as the specimen ID, is the same nine-digitmimber (105602188) as in ChoicePoint's TestReport. I findthatthe name simply is a misspelling.

Mr. Kovacic's social security number, as well as other personal identifying information, has beenredacted from all documents because ofprivacy and identity-theft concerns. See, e.g., Tr. 56-57.4

Ms. Newton explained that July 16 actually is the date that ATN sentthe specimen, orits results, to ChoicePoint. At that point ChoicePoint became the MRO entity.
ChoicePoint was familiar withAir Z. The carrierhad an existing account withit. But the six-week gap betweenMr. Kovacic's drug test and the lab's submission to ChoicePoint for verification was not normal, Ms. Newton said. Further, she did not know how ChoicePoint had obtained the test result. Such a scenario occurs less than one percent ofthe time, she said. Butbecause the specimen had come from an existing client, ChoicePoint proceeded with its normal protocol (Tr. 184-86, 190-96, 199; Exh. C-7).
Concentra official Deborah Joy testified that Concentra next sentMr. Kovacic's CCF to ChoicePoint in response to a request from AirZ's DER. ChoicePoint hadreceived the CCF on July 17, 2008. That same dayMr. Kovacic's test was verified as negative by ChoicePoint's individualphysician-MRO. On that day ChoicePoint also faxed the results to AirZ through the carrier's DER. Air Z's DER was identified as Mr. Bradley ("Brad") Rohl. Ms. Frankel added that her investigators failed to find any evidence thatAir Z had received Mr. Kovacic's test results prior to July 17, 2008 (Exh. C-"1; Exh. C-3; Tr. 31-33, 37, 40-42, 65-75, 78-79, 90, 96, 104, 109).

· Ritch Kovacic, as we have seen, performed a safety-sensitive function for Air Z on June 6, 2008. That was prior to the date that Complainant contends that Respondent received the employee's verified negative drug test result

-- July 17, 2008. The agency concluded thatAir Z hadhiredMr. Kovacic and hadpermitted him to perform a safety-sensitive taskprior to receiving a verified negative preemployment drug test result for him. Those circumstances make out a violation of §135.251(a) (now §120.109(a)) and are the basis ofthe FAA's Complaint. 

### SeeCompl. Br., pp. 4-11.
Butevidence in the case also suggested that a different MRO entity, Alternative Safety and Testing Solutions ("ASTS"), ofWyoming, MI, was involved in Mr. Kovacic's testing, and thatASTS may have transmitted a negative drug test result to Air Z on June 6,··2008, coincident with the day Kovacic first performed a safety-sensitive task.
A document issuedbyASTS entitled "DOT Result" records a pre-employment drug testfor "Ritch**Kova~k"** [sic] onMay 28, 2008 atthe Concentra Willoughby collection site. (As with ChoicePoint's Test Report, the identifiers used for the donor show beyond doubt that the donor was Mr. Kovacic. 

### Seen. 3 on p. 3 ). The DOT Result shows that the specimen was transmitted to the ATN laboratory. To this point the process appears identical to the process described by which ChoicePoint hadbecome the MRO entity. The CCF, which is attached to the document, confirms this. Butthe CCF also shows that on May 28, 2008, a copy was faxed to ASTS. The specimen was sent to ASTS as well. Finally, the DOT Result records that ASTS' individualMRO, Dr. Norman Weber, "verified" the negative test result under date of June 6, 2008 (Exh. R-A; Exh. R-B, p. 3; Tr. 56-58, 60, 75, 80, 89, 108).•

5

The agency's investigators, who uncovered the drug-testing trail suggesting that ChoicePoint was the MRO and had transmittedMr. Kovacic's results on July 17, 2008, stated that they had been unaware ofthe ASTS-generated DOT Result (Tr. 56, 81). Investigators hadknown ofASTS. FAA supervisoryinvestigator Frankel had contactedASTS' MRO officials, Dr. Weber and his assistant,Jan Garza. But she had never spoken toASTS' President, Mr. Lavern ("Vern") Jones. Nor had she visitedASTS (Tr. 48, 54, 66; Exh. C-3). She believed thatDr. Weber, ASTS' MRO, had not beeninvolved in Mr. Kovacic's test (Tr. 48). Complainant nonetheless was able to cast doubt on whetherAir Z actually had obtained the results ofMr. Kovacic's drug test from ASTS on June 6. According to Ms. Frankel, neitherDr. Weber nor Dr. Weber's assistant, Ms. Garza- the person who typically contacted the DER with negative test results- notified Air Z ofthe test's outcome. Garza told Frankel thatASTS' computer program failed to document the release ofany drug-test result to Air Z. Garza pointed out thatAirZ had not been an existing client ofASTS (Exh. C-3; Tr. 48-53, 60, 65-68, 75).
Vern Jones, the President ofASTS, also testified. Initially he provided additional background about the drug-testingprocess. Mr. Jones stated.thatASTS was the "preferred" MRO for Concentra, the collection site

- meaning that on Concentra's generic CCFs, ASTS was listed as MR0. 4 But the aviation entity, Air Z, had not been anASTS client.
Concentra completes a "set-up sheet" when collecting for a new client, Mr. Jones explained. Customarilythe set-up sheetlists the name and address ofthe client (Air Zin this case), the identity ofits DER, andthe preferred method of communicating test results to the DER. Concentra forwards this information to the lab (ATN in this case) and to the MRO entity, ASTS. The lab processes the specimen and reports the result toASTS (Exh. R-C; Tr. 124).
The evidence showed that Concentra hadfaxed Mr. Kovacic's CCF toASTS under date ofMay 28, 2008. The CCF was directed toASTS' individualMRO, Dr. Weber, and named the client as Air Z (Exh. R-A; Exh. R-B, p. 3; Tr. 58, 60). But Concentrahad not sent

### Air Z's set-up sheet. ASTS contacted Concentra-11nd asked for the sheet, but did not receive it untilJuly 15, 2008. Itwas only then, Mr. Jones testified, that Jan Garza, the assistant to Dr. Weber, calledAir Z's DER, BradRohl, with the negative result. ASTS also mailedthe result (Tr. 122-37, 145, 150-51, 154, 163-65, 168; Exh. R-C; Exh. C-6).
Yetthe ASTS-generated document "DOT Result" stated that Mr. Kovacic's drug-testresult had been "verified" on June 6, 2008 (Exh. R-A; 

### seeI.D., p. 4). Didn't that mean that Kovacic's negative resulthadbeen reported to Air Z on that date? No, Mr. Jones stated. It meant only thatASTS hadperformed the process of verification on a negative test result

- that is, that ithad reviewed the CCF andlab testresult

- no later than that date. ASTS does not notify the aviation client, he

4 The Concentra official, Ms. Joy, agreed, testifYing thatASTS was Concentra's house, or default, MRO. Tr. 108.6
explained, untilit has "information that allows us to report the result." (Exh. R-C, p. 2). The critical information lacking was the identity ofAir Z's DER.
ASTS did not transmitMr. Kovacic's results to Air Z on June 6, Mr. Jones stressed. Insteadit moved the results from its active file to its "limbo" file. The results were to remain in limbo until ASTS received from Concentra the set-up sheet

-- and specifically the identity ofthe aviation entity's DER. Mr. Jones explained thatASTS would not attempt to learn directly from the aviation entitywho the DER was- even thoughAir Z's telephone number was listed on Concentra's CCF faxed to Dr. Weber onMay 28. Instead, ASTS contacts the collection site on a daily basis untilit obtains the set-up sheet. Concentra finally faxedASTS the set-up sheet on July 15, 2008. Later that day, Mr. Jones testified, ASTS telephoned the Air ZDER and informedhim of,Mr. Kovacic's negative test results. ASTS did notproduce a record ofthe telephone call (Tr. 133-36, 145-49, 154, 158-65; Exh. R-A; Exh. R-C, p. 2).
Brad Rohl, Air Z's DrugProgram Manager andits DERfor the previous ten years, was a witness for Respondent. He statedthathe sent Mr. Kovacic to Concentra, the collection site, for his**pre~employment** test. Mr. Rohl testified that he received a verbal negative on June 6, 2008. He then toldAir Z's director of maintenance that Mr. Kovacic was ready for work (Tr. 204-07, 213-14).
Mr. Rohl had written two statements afterhe hadpurportedly received Mr. Kovacic's verbalnegative. These statements came under examination. In the first ofthem, datedJuly 23, 2008, Rohl had written a short account ofhis role inMr. Kovacic's tests in connection with the agency's investigation ofthat date. Rohl wrote that he had not had any test results for Mr. Kovacic inJune of2008 and that he had requested an "additional copy" be faxed from the MRO entityto him. Rohl testified, however, thathis statement did not imply thathe had failed to receive a verbal negative test result. Investigators had askedhim only about any written approvals he mayhave been given; his statement addressed only the circumstances surrounding any written notification, he insisted (Exh. C-2; Tr. 42, 68, 215-16, 228).
Mr. Rohl's statementalso says thatMr. Kovacic had been available·forwork -safety-sensitive work-- on May 28, 2008 (Exh. C-2; 

### seeTr. 217). In testimony, however, Rohl assertedthat the statement shouldhave read "not available" (Tr. 217· 18). Yet a photocopy ofKovacic's personnelfolder says that he was available for work onMay 29, 2008 <Exh. C-9; Tr. 220, 227).
In a second statement, written in the form ofa letter datedMay 10, 2011, Mr. Rohl set out to clarify his earlier statement. This letter was created after the enforcement action had begun and nearly two years after his initial statement. Rohl had written the earlier statement, he wrote, "in a hurried manner;" the dates noted there "are offby mistake." He had sentMr. Kovacic for his pre-employment drug test on May 28, 2008, the later statement says, andhadreceived a verbal negative "within the next couple [o£1 days." The MRO, ChoicePoint, had told him he would be getting a confirmatoryfax. Butin auditinghis records, he realized that he could not locate it. He had called ChoicePointfor an "additional copy." Rohl received the fax on July 17, 2008, the statement concludes (Exh. C-10).7
Why, then, is there no mention ofthe fax in Mr. Rohl's initial statement? That statementwas writtenjust six days after he said he had received it. The answer to that question is unclear. But other evidence shows that Rohl was truthful about the timeline. ChoicePoint records indicate that it had received a CCF request from Rohl on July 16, 2008 (Exh. C-7, p. 3; Tr. 109-110). ChoicePoint's Test Report shows thatAir Z's DERreceived a faxed result on July 17, 2008 (Tr. 230-33; Exh. C1; seel.D., p. 4) -the date Rohl cited in his later statement.



### III. Decision
I find and conclude that Complainant failed to prove the violation. The Complaint will be dismissed. Respondent submittedcredible evidence tending to.show thatAir Zhad been informedby June 6, 2008, andprior to Mr. Kovacic's employment, ofMr. Kovacic's verified negative drug test results. Mr. Rohl testified that he had received a verbal negative on that date; his statement ofMay 10, 2011 asserts that.he had received a verbal negative within a couple ofdays ofKovacic's May 28, 2008 test; and anASTS document showed thatASTS had "verified" Kovacic's sample on June 6, 2008. Complainant, as the partywith the burden ofproof, was duty-bound to overcome this evidence sufficiently to show the violation. It did not.
The agency also failed to adequatelyinvestigate the involvement ofASTS. The FAA's investigationhad determined that ChoicePoint was the MRO (Tr. 69, 72). And Complainant demonstrated that ChoicePoint did not transmit a verified negative for Mr. Kovacic before July 17, 2008. But only after she was shown evidence ofASTS' connection withMr. Kovacic's testing did the agency's supervisory investigator, Ms. Frankel, acknowledge ASTS' possible role (Tr. 80; Exh. R-A). Agency investigators, including Frankel, were unaware thatpre-employmentdrug specimens could be verified by two MROs (Tr. 95-96, 110). Neither hadASTS told Ms. Frankel thatit hadreleased any information to Air Z (Tr. 65-66)- which, as has been seen, it had. Because the agency's investigation failed to sufficiently explore ASTS' role in Mr. Kovacic's drug test, Complainant did not refute the evidence tendingto show thatASTS verified, andperhaps transmitted, Kovacic's negative results before the employee began safety-sensitive work. This gap in its probe created significant doubt in the proof.
Itis true thatASTS' Mr. Jones testified that verification, shown to be on June 6, did not necessarily mean thatAirZ's DER had been notified ofthe employee's**drug·t~st** result. Yet Mr. Kovacic first undertook safety-sensitive work for Air Z on that very day. Was thatjust a coincidence? (see Tr. 22, 85; Resp. Br., p. 8). Concentra's Ms. Joytestified that, assuming that the MRO has the DER information, reporting drug test results to the employer normally takes place right after verification-- generally the same day.5 Concentra had transmitted the CCF, which namedAirZ as the client, toASTS onMay 28, 2008, nine days prior to June

5 Tr. 116-17. DOT regulations state that transmission ofverifiedresults to the DERmusttake place so that the DERreceives it within two businessdays ofMRO verification. 49 C.F.R. §40.167(c). Directtelephone contact with the DER "is the preferred method ofimmediate reporting." §40.167(b)(1).8

6. Moreover, Jones' testimony asserting thatASTS customarily did not contact clients to obtainDER contactinformation was thrown into doubt by Concentra official Deborah Joy, who asserted thatindustry practice in fact is to initiate contact with a company to obtain such information (Tr. 115).
Under the circumstances described above, to make its case Complainant needed to show that the date thatAir Z had been initially notified by ASTS of Kovacic's negative drug testresult was later thanJune 6. ButMr. Jones did not produce telephone logs or any other evidence tending to show when this notification occurred. 

### SeeResp. Br., pp. 7, 8.
It also is true thatMr. Rohl's testimony containedinconsistencies. He was not able to indicate with certaintywhen he had determined that Mr. Kovacic was readyfor work. Mr. Rohl was, however, firm in assertingthat he had received an oral verified negative on June 6. He did not waver from that. His assertion, further, was supported by trustworthy evidence. I find that he was a credible and sincere witness. Rohl's credibility, moreover, was borne outin the controversy over his failure to mentionhis "additionalcopy'' from ChoicePoint in his statementwritten just six days after he had purportedlyreceived the copy
- after evidence showed that he hadin fact received the copy when he saidhe had 

### (see I.D., p. 6). I believe Rohl when he averredthathe had never authorized an employee to work in a safetyrelated function prior to receiving a negative report (Tr. 210). Mr. Rohl's chief offense was in makingandkeeping slapdash records.
Basedon the foregoing, I find and conclude that Complainant failed to prove a violation. The Complaint ishereby dismissed. 6

Attachment

- Service List

6Any appeal from the Initial Decisionto the Administrator mustbe in accordance with section 13.233 of the Rules ofPractice, which requires 1) that a notice ofappealbe filed no laterthan 10 days (plus an additional5 for mailing) from the date ofthis order and 2)that the appea1 be perfected with a written brief
ormemorandum not laterthan 50 days (plus 5 for mailing) from the date ofthis order. Each is to be sentto the Appellate Docket Clerk, Room 924-A, Federal Aviation Administration, 800 Independence Avenue, S.W., Washington, DC 20591, andto agency counsel. Service upon the presidingjudge is optional.j

FAADocketNo. CPIOSWOOIO (Civil Penalty Action) 

### CORRECTED SERVICE LIST
ORIGINAL & ONE COPY Federal Aviation Administration 800 Independence Avenue, S.W. Washington, DC 20591 Attention: Hearing Docket Clerk, AGC-430 WilburWright Building-Suite 2W1000 1


### ONE COPY
Laurence E. Rohl, 

### Respondent'sRepresentative President/Director ofOperations,

AirZ Flying Service, Inc., 

### Respondent 355 Richmond Rd., Hangar 5 · Richmond Heights, OH44143 TEL: 216-261-2992 FAX: 216-261-2993
Nicholas 

### R. Milliard, 

### Complainant's Counsel Attorney, Enforcement Division, AGC-300 Office ofthe ChiefCounsel Federal Aviation Administration 800 Independence Avenue, S.W. Washington, DC 20591 TEL: 202-267-3452 FAJ(: 202-267-5106
The Honorable Richard C. Gg,odwin,



### Administrative LawJudge U.S. Department ofTransportation Office ofHearings, M-20 1200 NewJersey Avenue, S.E.(E11-310) Washington, DC 20590 TEL: Attorney-Advisor 202-366-2139 StaffAssistant 202-366-5121 FAX: 202-366-7536

1 Service was by 

### U.S. Mail. For service inperson orby expedited courier, use the following address: Federal Aviation Administration, 600 Independence Avenue, S.W., WilburWright Building-Suite 2Wl000, Washington,

· DC 20591; Attention: Hearing Docket Clerk, AGC-430.