UNITED STATES OF AMERICA 

U.S. DEPARTMENT OF HOMELAND SECURITY 

UNITED STATES COAST GUARD 

_______________________________ 

UNITED STATES COAST GUARD 

Complainant 

vs. 

MARK WILLIAM FISCHER 

Respondent. 

______________________________ Docket Number: CG S&R 04-0654 

CG Case No. 2247032

 

ORDER

Issued: April 25, 2005

Issued by: Walter J. Brudzinski, Administrative Law Judge

 This Order is issued in accordance with 33 CFR 20.902 ( c ) in that the undersigned 

rendered his initial decision orally from the bench at the close of the hearing on April 19, 2005 in 

New York, NY. 

Respondent pro se is charged with one count of Use of or Addiction to the Use of 

Dangerous Drugs in that his drug screen specimen tested positive for marijuana metabolites, in 

violation of 46 U.S.C. 7704( c ) and 46 CFR 5.35. In his timely answer to the Complaint, 

Respondent pro se admitted all factual allegations with the exception that the drug test was not a 

periodic test but was a pre-employment drug test. Further, Respondent pro se asserted as an 

affirmative defense that had been taking hemp seed oil along with other supplements to control 

his obesity and that he had no idea that one could test positive for marijuana metabolites by 

ingesting hemp seed oil. 

The matter was assigned to the undersigned Administrative Law Judge on January 15, 

2005 for adjudication and on January 24, 2005 the matter was set down for hearing to be held on 

April 19, 2005. The Coast Guard, through its Investigating Officer (I/O), LT Richard Gonzales, 

USCG, had previously offered Respondent a cure settlement but Respondent did not wish to 

enter into such an agreement claiming that the positive test result was due to ingestion of hemp 

seed oil and that he did not use marijuana. As the result of Respondent’s inquiries to the 

undersigned’s assistant and the fact that he chose to represent himself, the undersigned called for 

all to participate in a pre-hearing conference call during which the undersigned explained the 

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state of the law to Respondent pro se that if the Coast Guard proves its case at the hearing, the 

only sanction is revocation unless he provides satisfactory proof of cure. After the I/O provided 

Respondent with yet additional time to reconsider the Coast Guard’s offer of a cure settlement, 

the Respondent advised that he still refuses a settlement and wishes to go forward with the 

hearing. A memorandum of that pre-hearing conference call is marked as ALJ - I. 

At the hearing on April 19, 2005 in New York, NY, the Coast Guard was represented by 

the I/O, LT Richard Gonzalez, USCG and LT Robert D. Mutto, USCG. The Respondent 

deposited his Merchant Mariner’s Document with the undersigned for the duration of the 

hearing. The Coast Guard’s motion in the nature of amending the Complaint to reflect preemployment drug test versus periodic drug test was granted and was made part of the record as 

ALJ - II. Prior to taking evidence, Respondent pro se motioned to have spectators who were 

sitting in the hearing room excluded because their facial expressions or reactions might unduly 

influence the Administrative Law Judge. The undersigned denied the motion holding that Coast 

Guard Suspension and Revocation hearings are open to the public, and, in the absence of security 

concerns, there is no good cause to clear the courtroom. Further, many of the spectators were 

Coast Guard military members and employees, all in civilian clothes, and were present to 

observe how the hearing process works. 

Respondent also expressed concern that there was an armed guard present. The 

undersigned advised that security is a routine, but important consideration and that the other 

courtrooms in the same building as the Coast Guard Hearing Room also had armed Federal 

Marshals. 

The Coast Guard offered stipulations previously agreed to with Respondent pro se. The 

stipulations were accepted and now re-marked as ALJ - III. The stipulations provide that the 

Respondent was the holder of a U.S. Merchant Mariner’s Document bearing his Social Security 

account number, and that on November 8, 2004 he provided a urine sample for a preemployment drug test. The sample was properly collected, transported, and subsequently 

determined to test positive for marijuana metabolites. Therefore, I found that the Respondent 

and the subject matter of this hearing are within the jurisdiction vested in the Coast Guard under 

46 U.S.C. 7704. 

The Coast Guard presented five witnesses, including Respondent, and five exhibits. Two 

witnesses, including Respondent, testified at the hearing in person, and three witnesses testified 

telephonically pursuant to the Coast Guard’s Motion for Telephonic Testimony, ALJ - IV, and 

my Order Granting Coast Guard’s Request for Telephonic Testimony, ALJ - V. The Coast 

Guard’s five exhibits are so numbered and are included in the file under “Amended Exhibit 

List.” 

Respondent pro se testified under oath on his own behalf and offered one exhibit 

comprised of five pages and marked as Respondent’s Exhibit “A.” That exhibit contains 

abstracts of articles concerning hemp seed oil ingestion resulting in positive urine tests. The 

exhibit also contains summaries of articles discussing how a hemp seed oil ingestion defense in 

military courts martial resulted in an acquittal. 

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At the conclusion of the evidence, the undersigned asked the parties to conference in 

chambers. During the conference, and in an effort to continually explain to Respondent pro se

the nature of the proceedings and his due process rights, I advise the parties that I find that the 

Coast Guard had proved its case. I reminded Respondent pro se of our discussions during the 

pre-hearing conference call that when an individual fails a chemical drug test for dangerous 

drugs, that individual is presumed to be a user of dangerous drugs. 46 CFR 16.201. That 

presumption can be rebutted as Respondent has attempted to do in asserting his affirmative 

defense of hemp seed oil ingestion. However, after hearing Respondent pro se’s testimony and 

reviewing his exhibits, I was not convinced that the mere assertion of hemp seed oil ingestion, 

absent additional evidence and expert testimony, was sufficiently convincing for me to find it 

was the sole cause of the positive drug test result, thereby excluding illegal drug use. 

I explained that the articles concerning the hemp seed oil defense resulting in an acquittal 

dealt with raising “reasonable doubt” in a criminal proceeding. A criminal proceeding is much 

different from the instant proceedings in which the affirmative defense must be convincing 

enough to rebut the presumption of illegal drug use. In a drug charge criminal proceeding, there 

is no presumption of illegal drug use that the defendant must rebut. Therefore, I found that the 

presumption of illegal drug use still stands and by the preponderance of reliable, probative, and 

substantial evidence, the Coast Guard proved its case. I further explained that under 46 U.S.C. 

7704( c ) I will have no choice but to revoke Respondent’s document in the absence of cure as 

previously discussed in the pre-hearing teleconference. Respondent advised that he was not 

going to “cop a plea” and wanted to “get it over with.” 

The parties were informed that the usual procedure was thirty days after receipt of the 

hearing transcript they would have an opportunity to submit proposed findings and conclusions. I 

also advised the parties that as per 33 CFR 20.710(b) they could waive that right and the judge 

could issue an oral decision from the bench at the close of the hearing. That oral decision would 

be followed up with a written Order as per 33 CFR 20.902( c ). Both parties agreed to waive 

their right to submit post hearing findings and conclusions and both parties favored rendering an 

oral decision from the bench. The undersigned also agreed and stated that the foregoing 

discussion would be placed on the record upon return to the hearing room. 

Upon return to the hearing room and when questioned, both parties restated the 

foregoing, waiving their right to submit post-hearing findings and requesting that the initial 

decision be rendered from the bench orally. I then announced my findings essentially restating 

the elements of the charge as listed in the Complaint and finding that the Coast Guard’s 

witnesses were credible. I discussed the issue of presumption of dangerous drug use and why 

Respondent pro se’s hemp seed oil ingestion affirmative defense was not sufficient to rebut the 

presumption of dangerous drug use, previously noted above. As a conclusion of law, I found that 

by the preponderance of reliable, probative, and substantial evidence the Coast Guard proved 

that Respondent pro se violated 46 U.S.C. 7704( c ) and 46 CFR 5.35 and that under 46 U.S.C. 

7704( c ) and the regulations, the only sanction is Revocation. 

 After rendering the oral decision from the bench, I tendered Respondent pro se’s

Merchant Mariner’s Document to the Coast Guard Investigating Officer and then closed the 

hearing. 

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ORDER

IT IS HEREBY ORDERED that Respondent’s U.S. Merchant Mariner’s Document 

bearing his Social Security account number, and now in the possession of the Coast Guard, is 

REVOKED. 

IT IS FURTHER ORDERED that the effective date of REVOCATION is hearing date, 

April 19, 2005. 

Done and dated April 25, 2005. 

New York, New York 

____________________________________ 

WALTER J. BRUDZINSKI 

ADMINISTRATIVE LAW JUDGE 

U.S. COAST GUARD 

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ATTACHMENT A

NOTICE OF ADMINISTRATIVE APPEAL RIGHTS

33 CFR 20.1001 General. 

(a) Any party may appeal the ALJ's decision by filing a notice of appeal. The party 

shall file the notice with the U. S. Coast Guard Administrative Law Judge Docketing 

Center; Attention: Hearing Docket Clerk; Room 412; 40 S. Gay Street; Baltimore, 

MD 21201-4022. The party shall file the notice 30 days or less after issuance of the 

decision, and shall serve a copy of it on the other party and each interested person. 

(b) No party may appeal except on the following issues: 

(1) Whether each finding of fact is supported by substantial evidence. 

(2) Whether each conclusion of law accords with applicable law, precedent, and 

public policy. 

(3) Whether the ALJ abused his or her discretion. 

(4) The ALJ's denial of a motion for disqualification. 

(c) No interested person may appeal a summary decision except on the issue that no 

hearing was held or that in the issuance of the decision the ALJ did not consider 

evidence that that person would have presented. 

(d) The appeal must follow the procedural requirements of this subpart. 

33 CFR 20.1002 Records on appeal. 

(a) The record of the proceeding constitutes the record for decision on appeal. 

(b) If the respondent requests a copy of the transcript of the hearing as part of the record 

of proceeding, then, -- 

(1) If the hearing was recorded at Federal expense, the Coast Guard will provide 

the transcript on payment of the fees prescribed in 49 CFR 7.45; but, 

(2) If the hearing was recorded by a Federal contractor, the contractor will 

provide the transcript on the terms prescribed in 49 CFR 7.45. 

33 CFR 20.1003 Procedures for appeal. 

(a) Each party appealing the ALJ's decision or ruling shall file an appellate brief with the 

Commandant at the following address: U.S. Coast Guard Administrative Law Judge 

Docketing Center; Attention: Hearing Docket Clerk; Room 412; 40 S. Gay Street; 

Baltimore, MD 21201-4022, and shall serve a copy of the brief on every other party. 

(1) The appellate brief must set forth the appellant's specific objections to the 

decision or ruling. The brief must set forth, in detail, the -- 

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(i) Basis for the appeal; 

(ii) Reasons supporting the appeal; and 

(iii) Relief requested in the appeal. 

(2) When the appellant relies on material contained in the record, the appellate 

brief must specifically refer to the pertinent parts of the record. 

(3) The appellate brief must reach the Docketing Center 60 days or less after 

service of the ALJ's decision. Unless filed within this time, or within another 

time period authorized in writing by the Docketing Center, the brief will be 

untimely. 

(b) Any party may file a reply brief with the Docketing Center 35 days or less after 

service of the appellate brief. Each such party shall serve a copy on every other party. 

If the party filing the reply brief relies on evidence contained in the record for the 

appeal, that brief must specifically refer to the pertinent parts of the record. 

(c) No party may file more than one appellate brief or reply brief, unless -- 

(1) The party has petitioned the Commandant in writing; and 

(2) The Commandant has granted leave to file an added brief, in which event the 

Commandant will allow a reasonable time for the party to file that brief. 

(d) The Commandant may accept an amicus curiae brief from any person in an appeal of 

an ALJ's decision. 

33 CFR 20.1004 Decisions on appeal. 

(a) The Commandant shall review the record on appeal to determine whether the ALJ 

committed error in the proceedings, and whether the Commandant should affirm, 

modify, or reverse the ALJ's decision or should remand the case for further 

proceedings. 

(b) The Commandant shall issue a decision on every appeal in writing and shall serve a 

copy of the decision on each party and interested person. 

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ATTACHMENT B

WITNESS AND EXHIBIT LISTS

WITNESS LIST

COMPLAINANT’S WITNESSES

1. Ms. Ada Stephens 

2. Mr. Dave Wallner 

3. Dr. Devin B. Edwards, M.D. 

4. Dr. John Womack, M.D. 

5. Mr. Mark W. Fischer, Respondent 

RESPONDENT’S WITNESSES

1. Mr. Mark W. Fischer 

EXHIBIT LIST

COMPLAINANT’S EXHIBITS

I/O Ex. 1 – Federal Drug Testing Custody and Control form for Specimen No. 3360442, signed 

by Respondent. 

I/O Ex. 2 – Federal Drug Testing Custody and Control Form for Specimen No. 3360442 dated 

Nov. 12, 2004. 

I/O Ex. 3 – First Advantage Corp. letter report dated Nov. 12, 2004, from Dr. John Womack, 

M.D., Medical Review Officer. 

I/O Ex. 4 – Federal Drug Testing Custody and Control Form Specimen No. 3360442, collector 

copy. 

I/O Ex. 5 – Application for License as an Officer, Staff Officer, or Operator and for Merchant 

Mariner’s Document submitted by Respondent, seeking endorsement of his MMD, to the 

Regional Exam Center, New York, NY on September 10, 2003. 

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RESPONDENT’S EXHIBITS

Resp’t Ex. A Assorted articles and abstracts dealing with hemp seed oil as a cause for positive 

test results and as a defense - comprised of 5 pages. 

JUDGE’S EXHIBITS

ALJ – I Memorandum Order of March 23, 2005 Pre-hearing Telephonic Conference, three 

pages. 

ALJ – II Motion to Strike and Replace Single Word from Existing Complaint (Drug Use), one 

page. 

ALJ – III Stipulations, one page. 

ALJ – IV Motion for Telephonic Testimony for Drs. Womack and Edwards, as well as for Mr. 

Wallner, five pages. 

ALJ – V Order Granting Coast Guard’s Request for Telephonic Testimony 

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CERTIFICATE OF SERVICE 

I, Shaniqua G. Jenkins, hereby certify that a true copy of the foregoing Order was sent to the 

below listed parties and to the ALJ Docketing Center by the means prescribed in Table 

20.304(D) of Title 33 CFR as follows: 

Coast Guard Activities New York 

Attn: LT Richard Gonzales, USCG 

LT Robert D. Mutto, USCG 

212 Coast Guard Drive 

Staten Island, NY 10305 

Phone: (718) 354-4224 

Telefax: (718) 354-4224 

(Via Telefax) 

Mr. Mark w. Fischer 

8503 Tamarron Drive 

Plainsboro, NJ 08536 

(Via First Class Mail) 

ALJ Docketing Center 

40 S. Gay Street, Room 412 

Baltimore, MD 21202 

Phone: (410) 962-7434 

Telefax: (410) 962-1746 

(Via Telefax) 

Done and dated April 25, 2005 

New York, NY 

 __________________________________ 

 Shaniqua G. Jenkins 

 Paralegal Specialist, Assistant to the 

 Administrative Law Judge 

 Phone: (212) 668-2970 

 Telefax: (212) 825-1230 

 

 

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