12/06/2012 17:19 FAX 2024935142 FAA

U.S. Department of Transportation Federal Aviation Adminimation Oclober4, 2012 Office ofthe Chief CoonSel ':·c· •. "l Enforcement Division..
. . ._ ·, '**~** OMS lii!001/013



### I

# s aoo IndependenceAve
.. SW. Washington, DC 20591 Area Code 202 267-7100 CF.R'llFlED 

# RECEIVED Hearing Docket Federal Aviation Administrat1on 800 Independence Avenue, S. W. Washington, DC 20591 Attn: Hearing Docket Clerk AGC-430, Wilber Wright Building 

### Suite 2Wl000 

## OCT 052012 

## HEARING DOCKET

Enclo.sed herewithplease find a copy ofa request for hearing and the original and one copyof 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 

### comn1Unications for the FJ\A to the undersigned at: 

### Otl1cc ofthe 

### ChiefCounsel 800 Independence Avenue, S.W. Washington, D.C. 20591 Ph: 202-267·7100 Fax: 202-267-5106 

### E-mail: michael.[mckinley@faa.gov

Enclosures: Request for Hearing Complaint
cc: Respondent (w/copy ofComplaint) Michael F. McKinley Senior

### Attorney12/0B/2012 17:19 FAX 2024935142 FAA**~** OMS**~002/013**

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 I Co:Qx:

One Copy;

Dated this 4th day ofOctober, 2012. Hearing Docket Federal Aviation Administration 800 Independence Avenue, S. W. Washington, DC 20591 Attn: Hearing Docket Clerk AGC-430, Wilber Wright Building Suite 2W1 000

Dave Magorien Magoricn Honing & Hydraulics 1212 South Vail Avenue Montenbello, CA 9064012/08/2012 17:18 FAX 2024835142 FAA -> OMS

U.S.**DEIJARTMI~:NT** OJ:I' TRANSPORTATION 

### OFFICE OF HEARINGS

WASHINGTON, D.C. Ill 003/013

IN THE MATTER OF 

### Mj\GORIEN HONING & 

### HYDRAliLICS 

# RECEIVED FAA DOCKET NO. (not assigned) (Civil Penalty Acti011) FDMSNO. FAA FAA CASE NO. 2011WP910318

COMPLAINT 

### OCT 

### 05 2012 

## HEARING 

# DOCKET

The Federal Aviation Admjnistration (FAA), 

### by coul"ISel, hereby files its 

### Complaint, pursuant to Rule 208 

### ofthe Rules 

### ofPractice (14 C
..F.R. 13.208), and states as foll()ws: I 1. On September 10, 2012, Magorien Honing & Hydraulics (Respondent) was advised by a Final Notice ofProposed Civil Penalty thatthe FAA proposed to assess a civil penalty in the 

### am.ount of$40,000.00. On September 25, 2012, Respondent submitted a written 

### request tor a hearing.
2. On all dales relevant herein, Respondent was a non·certificated company providing contract maintenance functions under contractorregistration number CONN062C. 3. On aU dates relevant herein, Respondent was required to comply with the requirements of 14 C.F.R. part 120 and 49 C.F.R. part40 fhr its Drug and Alcohol Testing Program.12/08/2012 17:20 FAX 2024935142 FAA**~** OMS**~004/013**

······
4. OnJune 24, 2011, the FAA conducted an inspection 

### ofRespondent's Antidrug and 

### Alcohol Misuse

### Prevention Program. 5. 1\s 

### a result ofthe inspection. the following 

### was discovered:
a. Respondent hired employee Doylc 

### House on May 14, 1984 and employee Douglas Godown on October 11. 1988; 

### 2

b. On March 18,2010, Respondent was approvedfor a contractorregistration number and began performing safety-sensitive 

### work on aircrafl. 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. aircrall parts, despite not subjecting Mr. House to a pre-employment drug 

### test; d. On April 1, 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 dmg

### testing pool;


### e. On

### April 1, 201 0, TAG/ AMS, Inc. subjected Doyle House 

### to apreemployment drug test; 

### C On

### AprilS, 2010, 

### TAG/AMS, Inc.**su~jectcd** Douglas 

### Godown 

### to a preemployment drug test; g. OnApril 7, 2010, the result ofDoyle House's drug test was vcriiicd as NEGATIVE;12/06/2012 17:20 FAX 2024935142 FAA**~** OMS**~005/013**



### h. On April 9, 2010, Douglas Godown and Doyle House were added to Lhe TAG/AMS, 

### Inc. random testing pool; i. 

### On or about Apri1 9, 2010, Respondent allowed**Dougla~** 

### Godown to perform 

### safety-sensitive maintenance work, despite not having a

### verified NEGATIVE drug 

### test result; j. On April 14, 201 0, Douglas Godown's drug test result was 

### verified as POSITIVE for marijuana; 3



### k. Afterreceiving a verified POSITIVE drug 

### test result for Douglas Godown
on Aprill4, 2010, Respondent allowed him to continue pertorming 

### safetysensitive maintenance work. and kept him in 

### therandom te!>ting pool through Februa1y 

### 2, 201 1; 1. On December 6, 2010, Respondent subjected Douglas Godown 

### t<? a second random drug test, which was verified as POSITIVE for marijuana
on December 13,2010, and reconfirmed as POSITIVE on December 21, 20 10, afterthe split specimen was sent to Central Drug System for reconfirmation testing;
m. Rcspondentallowed

### Mr. Godown to continue perfonning safety-sensitive maintenance duties, despite the second veritled 

### POSITIVE drug test result:
n. Douglas Godown

### remained 

### in the random testing pool through February 2, 2011, continued to be available to perform safety-sensitivemaintenance duties, 

### and never completed the return-to-duty process outlined in 

### 49 C.F.R. 

### pt. 40, subpart 

### 0;12/06/2012 17:20 FAX 2024935142 FAA + OMS**~** 006/013
4

o. On Pebruary 2, 2011, Respondent contacted TAG/AMS and terminated their relationship, which caused Respondent's safety-sensitive employees to no longerbe subject to random drug and alcohol testing; p. Afterterminating theirrelationship with TAG/ AMS, Respondent continued to pcrlorm. safety-sensitive work for American Airlines, 

### Inc.; q. On April 13, 2011, TAG/AMS made a random selection from their consortium random pool and none ofRespondent'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 pa<;;ttwo years, they had tested positive or refused to test on any pre-employment drug or alcohol tests administeredby an employer to which they had applied for, but did not obtain,**safety-~ensitive** work covered by 

### the Department ofTransportation drug and alcohol test1ng rules; 

### b. Respondent did not distribute informational materials on drug 

### use and abuse to all covered employees, including Doyle House, D()uglas Godown, and Conrad Y u; c. Respondent did not distribute the cornpany's policy regarding drug use )n the workplace 10 all covered employees, including Doyle House, Douglas Godown, and Conrad Yu;12/08/2012 17:20 FAX 2024935142 FAA -+ OMS 141007/013



### d. Respondent 

### did 

### not implement any type ofinitial drug training 

### for any of its employees, and did 

### not document whether supervisory 

### pers,onnel had completed the required dmg usc training;


### e. 

### Respondent failed to 

### follow the detailed information which 

### TAG/AMS, Inc. sent the company 

### ina 2-pagc document entitled, "What 

### to 

### do 

### ifyou 

### have a POSITIVE for 

### drug or

### alcohol te$t result"; f. 

### Respondent did 

### not

### maintain two 

### years of

### documentation shovving 

### they trained their 

### supervisors to make 

### adctcnnination, based 

### on reasonable suspicion, that

### an employee needed 

### alcohol testing. 11 By

### reason ofthe 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 trait1ing 

### status, who performs a safety-sensitive function listed in this section directly 

### or by 

### contract (including by subcontract 

### at any 

### tier) tor an 

### employer as detined 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 ofthe degree ofsupervision. The**safety~sensitive** 

### functions are: (e) Aircraft maintenance and preventive maintenance duties. 512/08/2012 17:20 FAX 2024835142 FAA**~** OMS 141008/013

b. 14**c~F.R.** 

### § 

### 12(U09: .Each employer 

### shall C<,:mduct the types 

### oftesting described 

### in this section in accordance 

### with the procedures 

### sei f()rth in this 

### subpart. and the 

### DOT "Procedures for 

### Transportation Workplace Drug 

### Testing Programs'' (49 CPR part40). 

### 6

c. 

### 14 C.F.R. § 

### 120.109(a)(2): No employer may 

### allow an individual to transJcrfrom
a nonsafety-sensitivc

### to a safety-sensitive function unless 

### the employer first conducts a pre-employmenttest and receives a verified negative dn1g testresult 

### for the individual.'' d. 

### 14 C.lf.R, § 120.109(b)(6)(i)(B), which states, in pertinentpart, only safetysensitive 

### employees arc to be in 

### an employer's randomtesting pool, 

### and all safetysensitive employees must be in therandom

### pool.
e. 14 C.F.R. 

### § 120.215(a): 

### Each employee, including any assistant, helper, 

### or individual 

### in a training status, 

### who performs a satcty-scnsitivc 1llnctionlisted inthis section directly 

### or by contract (including 

### by subcontract at any 

### tier) for an 

### employer as deHned in this 

### subpart must be subjectto alcohol testing under an

### alcoholtesting program implemented 

### in accordance with this subpart. This includes full-time, part-time, temporary, and intennittentemployees regardless ofthe degree ofsupervision. The safety-sensitive functions 

### are: (5) 

### Aircraft maintenance 

### orpreventative 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 tesling pool, and all safetysensitive 

### employees must be in the random pool. g. 49 C.F.R. 

### § 40.23(a): As an employerwho receives a veri1ied positive drug 

### test result, you must immediately remove the employee involved from per1orming 

### safetysensitive functions. You musttake this action upon receiving 

### the initial 

### report ofthe12/08/2012 17:20 FAX 2024935142 FAA "' OMS**~009/013** 7 verified positive test result. Do notwait to receive the written report or the result ofa split specimen test. 

### h_ 49 C.F.R.**~** 

### 40.23(d): As an employer. when an employee 

### has a verified positive, adulterated, or substitutedtest result, orhas otherwise violated a DOT agency drug and alcohol regulation, you must notreturn the employee to the performance ofsafety· sensitive functions untjl orunless the employee successfully completes the return-to-duty process ofSubpart 0 ofthis 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, orrefused to test, on any pre-employment drug or alcoh<)l test administered by 

### an employer to which the employee applied for, but did not obtain, safcty·:sensitive transportation work covered by 

### DOT agency 

### drug and alcohol testing rules during the past two years. Ifthe employee admits that he or she had a positivetest or
a refusal to test, you must not use the employeeto perfonn safety-sensitive functions for you, until and unless the employee documents**succ~ssful** completion

## orthe return-to-duty process. J. 14 

### C.F.R. § 120.219(a)(2)(ii)(F): Employers must maintain two years documentation ofcompliance with the requirements of 14 C.F.R. § l20.223(a). ln summary, 14 C.F.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 oftraining p1-ovided to supervisors for the purpose ofqualifying the12/06/2012 17:20 FAX 2024935142 FAA + OMS f41010/013



### supervisors to make a 

### detennination concerning the need for alcohol testing based on reasonable suspicion. L 14 C.F.R. § 120.l15(b)(1)(ii): 

### An employer's EAP education program must indude displaying and distributing a community service hot·Iine telephone number for employee assistance;


### m. .14 

### C.F.R. § 120.115(b)(l)(iii): 

### An employer's 

### EAP education program 

### must 8



### include displaying and distributing the employer's policy regarding dmg use in the office;
n. 14 C.F.R. § 120.115(c)(l): 

### Rach employer shall implement a reasonable prograp:1 ofinitial training for employees. The employee training program must include at least the following elements: (i) 

### The eftects and consequences ofdrug use on individual health, safety, and work environment; (ii) 

### The manifestations and behavioral cues that may indicate drug usc and abuse; and (iii) 

### Documentation oftraining given to employees and employer's supervisory personnel.

Pursuantto Title 49 ofthe United States Code, Section 4630I, 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.12/08/2012 17:20 FAX 2024835142 FAA -+ OMS



### WHEREFORE, the Agency, by counsel, respectfully requests that the Administrative LawJudge emer an Order that Respondentbe assessed a civil penalty in the amount of $40,000.00.**R~spectfully** 

### submittedthis 4111 

### day ofOctober, 2012.

# Ji~!:.:i~r Senior All(>rney Otllce of

### the Chief

### Counsel 800 Independence 

### Avenue, S.W. Washington, D.C. 20591 Ph: 

### 202-267-7100 Fax: 

### 202-267-5106 E-mail: micha.eLf.mckinley@faa.gov @011/013
912/06/2012 17:20 FAX 2024935142 FAA -. OMS**~012/013** 10 

### CERTIFICATE OF SERVICE I hereby certify 

### that the foregoing Complaint

### has beenmailed thisdate by 

### Ccrtit1ed Mail, 

### Return Receipt Requested, to: Original and 

### One Copy:



### One Copy: 

### Hearing Docket Federal Aviation Administration 800 

### Independence Avenue, S. W. 

### Washington, DC 20591 Attn: Hearing Docket Clerk AGC.-430, 

### Wilber Wright 

### Building Suite 2Wl000



### Dave Magorien Magorien Honing & 

### Hydrau!lcs 1212 

### South Vail 

### Avenue Montenbell<>, CA 90640

Datedthis 4Lh 

### day of"October, 2012.12/08/2012 17:21 FAX 2024935142 FAA "' OMS @013/013**~""'""'".!...,...,I**

# ;:A;;.~~-~~

# M~~~~~ENHoning &

# Hvdraolics

.............

# --.

.

To: Federal Aviation Adminis:tration 600 )nde:pend@ncoe Ave, SW WilburWright !!.ulldlng -Suite 2W1000 Washington, DC 20S9l Attn: l-4carint; Ooell:et**Cler~,** AGC.43C
To whom it mayconcPrn, 1212Soutnvail Ave**MDnt~bflllo,** CA SIQ641l Till: 323-?23-1151 F.u: S23-W-1154 ......,....,map:orien• .::orn**~pte'Tiber** 2.5, 2012

We are formally requesting a hearing In regards to case No. :Z011WP910318. We feel thatthe penalty and ex:planation ofviolationswere excessive and not ;lccuratc. We have been unfairly issued a $40,000 penalty was forworkwe had done which totaled $1,200 worth ofgross sales for us. These happenedto be C.F.R. partsthat were given to us from one p:arth;;uldr customerwho is a licensed FAA repair station. The workthatwe c;gmpleted was in accordance with all FAA standards, and was cen:itied and passed by all entitiesinvolved and met :aU regulations and**req~irements** tlut were needed. The said FAA repair !ltation was required tg send thP.Ir Pl'lrts to a companythat was licensed to work on thc:>e**~aid** parts. It was not up tausto checkto see Ifthese parts were C.F.R. parts. We arejust asrnall honing shop and we do work farvilrious**companJ~s** Includingaerospace, automobile, machineshops, etc. We feel we have been harshly**p•nall~ed** dueto minor procEldure and semantics thatdid not pertainto our company. Many ofthe infractions thatwe have been accused ohnd penalized for, were lnaccuratf!!! and surely not worth a penalty l)f1/3ofouryearlyrevenue. We are in jeopardy ofgoing out of business due tothis penaltyand we are unableto paythis amountwhich wewill.!:hawwas**unf~ir** and inaecurate. TI'erefore we kindly request aformal hE!aring which we are to understand is a choir:E' that we were offl!red by the FMin regards to this case. Wealso requestthe hearing to be in the city ofLos Angeles, California since the said neoaltieswere in the state ofCalifornia and our**comp~11y** is Blso located here. We have neverconducted any**bu~lness** physically in Washington DC nor do we nave any customers thP.re. We thankyou f9ryourtime and look forward ro your**respons~** and the information needed for our hearing. ·

# ~ Neel Vlradia GeneralManager 

# RECEIVED ocr- 3 

## 2012 HEARING DOCKET