', 

UNITED STATES OF AMERICA 

U.S. DEPARTMENT OF TRANSPORTATION 

U.S. COAST GUARD 

UNITED STATES COAST GUARD ) 

Complainant ) 

) 

vs. ) Docket Number: 00-0460 

) PA Number: 00001213 

LAWRENCE P. ABA TIE ) 

Respondent ) 

) 

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Administrative Law Judge 

DECISION & ORDER 

At the hearing held at the port of Honolulu, Hawaii, on 08 September 2000, the 

U.S. Coast Guard was represented by the Chief oflnvestigations (and Senior 

Investigating Officer), Lieutenant Commander Craig A. Petersen, and Investigating 

Officer William N. DeLuca, Lieutenant Junior Grade, both at the time stationed at the 

Marine Safety Office Honolulu, Hawaii. 

The Respondent was present throughout the hearing and was represented by his 

chosen attorney at law, Ramon J. Ferrer of 1975 Vineyard, Suite 405, Wailuku, Hawaii 

96793. 

This matter commenced with the service of a Complaint upon the Respondent by 

Investigating Officer W. N. DeLuca, which stated jurisdictional allegations that 

Respondent's address is P.O. Box 11851, Lahaina, Hawaii 96761, with U.S. Coast 

Guard-issued credentials including license number 779158. 

The Coast Guard's factual allegations stated "Use of or Addiction to the Use of 

Dangerous Drugs." The Coast Guard alleged further that: 

1. On 26 June 2000, the Respondent took a reasonable suspicion/cause drug test. 
2. A urine specimen was collected by West Maui Health care Center of Lahaina, 

Hawaii. 

3. The Respondent signed a "Federal Drug Testing Custody and Control Form." 

4. The urine specimen was analyzed by Quest Diagnostics using Enzyme 

Immunoassay and/or Gas Chromatography/Mass Spectrometry procedures approved by 

the U.S. Department of Transportation. 

5. That specimen subsequently tested positive for THC (marijuana). 

6. The Medical Review Officer (MRO), Dr. Ben K. Azman, ofWest Maui 

Healthcare Center, interviewed the Respondent on 02 July 2000. The MRO determined 

the test to be a valid test for THC (marijuana). 

The second set of factual allegations stated "Violation of Law or Regulation." 

The Coast Guard alleged further that: 

1. On 21 June 2000 (Wednesday), the Respondent was directed by a Coast 

Guard law enforcement officer to undergo a chemical test for reasonable cause as soon 

as practicable. 

2. The Respondent violated federal regulations by failing to comply with the 

Coast Guard's order to test unti126 June 2000 (Monday). 

The third set of factual allegations alleged "Violation of Law or Regulation." The 

Coast Guard alleged that: 

1. On 02 July 2000, the Respondent was informed by the MRO, Dr. Ben K. 

Azman, that the test was detennined to be a valid test for THC (marijuana). 

2. The Respondent violated federal regulations by continuing to work under the 

authority of his Coast Guard license until13 July 2000. 

Respondent filed his Answer with the Administrative Law Judge Docketing 

Center on 01 August 2000, in which he admitted all jurisdiction allegations. Respondent 

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admitted in his Answer to all of the allegations regarding use of a dangerous drug and 

failure of a drug test. 

With regard to the allegations of a violation of a law or regulation, he denied all, 

and the Respondent requested a hearing before an Administrative Law Judge. With 

regard to the factual allegations, the Respondent did admit that on 02 July 2000, 

Respondent was infonned by the MRO, Dr. Ben K. Azman, that the test was determined 

to be a valid test for THC (marijuana). 

The Investigating Officers alleged that the captioned Respondent did commit acts, 

which violated federal chemical testing regulations. Although the Respondent admitted 

to testing positive for marijuana during a U.S. Department of Transportation urinalysis 

drug test in which he submitted a urine specimen on Monday, 26 June 2000, in Hawaii, 

certain aggravating charges remained in dispute. 

It was proved that on Wednesday, 21 June 2000, Respondent was orally directed 

by Investigating Officer, Lieutenant Michael Simbulan of Coast Guard Marine Safety 

Office Honolulu to undergo a chemical test for reasonable cause as soon as practicable by 

providing a urine specimen. Respondent did not comply with this order to test until 

Monday, 26 June 2000, five days after the order was orally given. Respondent admitted 

that on 02 July 2000, the MRO, Dr. Ben K. Azman, informed Respondent that the 

certified laboratory test was determined to result in a positive test for marijuana. 

However, Respondent continued to work under the authority of his Coast Guard license 

until 13 July 2000. 

The Coast Guard proposed revocation of Respondent's license issued by the U.S. 

Coast Guard. 

The Coast Guard listed and called Lieutenant Michael Simbulan as a witness and 

Mr. David Hudson, the captain and owner of the corporation, Finest Kind Inc., which 

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corporation was Mr. Abatie's marine employer. (Appendix A, List ofWitnesses and 

Exhibits) 

Lieutenant Simbulan testified that he verbally ordered Respondent to take a 

urinalysis drug test for dangerous drugs on Wednesday, 21 June 2000, by Respondent 

providing a urine specimen. 

A third witness was called to testify for the Coast Guard at the hearing, Dr. 

Anthony D'Addario, Ph.D., Director ofthe Quest Diagnostics Laboratory in San Diego, 

California. His testimony proved that this certified laboratory followed all required steps 

and procedures and found a positive for marijuana use. 

Coast Guard's exhibits included: 

IO's Exhibit 1 is a written order for reasonable cause drug test dated Wednesday, 

21 June 2000, but the Respondent filed with it a post office stamped envelope in which it 

arrived to them date stamped Friday, 23 June 2000. The Respondent stated he did not 

receive it until the following Saturday, 24 June 2000. 

IO's Exhibit 2 is MRO's documents #1, original positive test notification. 

IO's Exhibit 3 is MRO's documents #2, MRO's file on test sample of26 June 

2000, Department of Transportation (DOT) test positive for THC. 

IO's Exhibit 4 is the litigation package supplied by the certified drug-testing 

laboratory, Quest Diagnostics Laboratory of California. 

IO's Exhibit 5 is Hudson Subpoena #1 for employment records. 

IO's Exhibit 6 is Hudson Subpoena #2 for testimony and original employment 

records. 

IO's Exhibit 7 are employment records of Abatie, Lawrence P., Respondent. 

Respondent's witness list included Respondent Lawrence P. Abatie and David 

Hudson, captain and owner of the corporation and fishing vessel FINEST KIND. 

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Respondent Abatie offered into evidence seven (7) exhibits, which were admitted 

into evidence by the Judge. 

Respondent's Exhibit 1, also marked Exhibit A, is a letter from the Coast Guard 

and its envelope that was date stamped by the post office on Friday, 23 June 2000, in 

which it was sent, and responses sent by Mr. Hudson, Respondent's marine employer. 

The letter was dated Wednesday, 21 June 2000, but the envelope showed the date stamp 

by the post office of Friday, 23 June 2000. 

Respondent's Exhibit 2, also marked Exhibit B, is the notice sent to Dr. Azman to 

have Mr. Abatie take a drug test by providing a urine sample. 

Respondent's Exhibit 3, also marked Exhibit C, are negative chemical later test 

results taken of Lawrence P. Abatie. Respondent gave subsequent urine samples on 25 

July 2000 and 09 February 2000 which were tested and reported as negative. However, it 

is well known that the human body flushes marijuana eventually out of the body. 

Respondent's Exhibit 4, also marked Exhibit D, is an article from a local 

magazine, Hawaii Fishing News, in which Respondent is discussed in the September 

2000 issue as a leading fish captain in the area. 

Respondent's Exhibit 5, also marked Exhibit E, is a worksheet for Respondent 

showing that employer Mr. Hudson took Respondent off the schedule until a meeting was 

held with the Coast Guard regarding drug testing upon discovering that there was a 

problem. 

Respondent's Exhibit 6, also marked Exhibit F, is a letter dated 20 July 2000, by 

the Chief of the Investigations Department, Lieutenant Commander Craig A. Petersen, to 

David Hudson of Finest Kind, Inc. 

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Respondent's Exhibit 7, also marked Exhibit G, is a report from West Maui 

Healthcare Center of Lahaina, Hawaii, signed by Dr. Ben K. Azman, M.D., MRO, who is 

a board certified MRO by the A.A.M.R.O. Organization. 

Respondent's attorney and the Respondent requested that he be allowed to submit 

late documents in support of his case and a late witness list because Respondent did not 

obtain legal representation until after the fifteen (15) day deadline prior to the hearing to 

submit said documents. Respondent's attorney argued that Mr. Abatie did not know how 

to proceed in this matter until after Mr. Abatie obtained legal counsel. This was allowed. 

They also argued that Respondent tested negative in a couple of tests that he had 

taken recently, much later than the specimen provided on the date in question, Monday, 

26 June 2000. 

It was established at the hearing, and is a well-known fact, that once a mariner or 

human being stops taking drugs such as marijuana, he can test negative forever once the 

marijuana has been flushed out, so to speak, of his system or his body. This does not 

prove that on 26 June 2000, he did not have marijuana in detectable amounts in his 

urinary system. 

Respondent's attorney argued that Mr. Abatie took the test as soon as was 

practicable, pursuant to 33 Code of Federal Regulations (CFR) Section 95.035(b). They 

argued that the Coast Guard sent the original notice by facsimile to a person who is not a 

supervisory personnel for Finest Kind, Inc., the business that Mr. Abatie does contract 

work for as a fishing vessel captain. They argued that Mr. David Hudson, the supervisor 

(and chief executive officer) of Finest Kind, Inc., did not receive a letter from the Coast 

Guard until Saturday, 24 June 2000, and the earliest a test could be arranged was 

Monday, 26 June 2000. 

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They also argued that Respondent was not on duty at the time the alleged incident 

took place. Finest Kind, Inc. donated a vessel for a funeral service on that date. There 

was no money involved. There were two other captains on board who for some reason 

did not get reported as being seen using marijuana. 

They further argued that the Respondent was under the impression that he could 

continue working until instructed to stop by the Coast Guard or Finest Kind, Inc. 

They also argued there were mitigating circumstances. The Respondent is an 

excellent and dependable captain, as Mr. Hudson testified to. Captain Abatie has a good 

reputation as a charter boat fishing captain, as can be observed in one of the exhibits. Mr. 

Abatie has continued to voluntarily take chemical tests. 

FINDINGS OF FACT BASED UPON 

THE ENTIRE RECORD CONSIDERED AS A WHOLE 

1. It has been established and proven by the Investigating Officers in this case 

that the Respondent's mailing address is P.O. Box 11851, Lahaina, Hawaii 96761 and the 

Respondent holds the following Coast Guard-issued credentials, namely U.S. Coast 

Guard-issued license number 779158. 

2. It was alleged and proven that there was use of a dangerous drug. The Coast 

Guard alleged and proved that on Monday, 26 June 2000, the Respondent gave a urine 

sample and thereby took a reasonable suspicion/cause drug test due to reports by some 

people that he was seen smoking marijuana on a vessel. 

3. A urine specimen was collected from Respondent by the West Maui 

Healthcare Center of Lahaina, Hawaii, on Monday, 26 June 2000. Respondent during 

the collection signed a "Federal Drug Testing Custody and Control Form" on Monday, 

26 June 2000. The urine specimen was analyzed by a certified laboratory known as 

Quest Diagnostics Laboratory of San Diego, California, using the Enzyme Immunoassay 

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test and the Gas Chromatography/Mass Spectrometry (GC/MS) confirmatory test and 

procedures approved by the U.S. Department of Transportation and the U.S. Coast 

Guard. 

4. Respondent's specimen collected on 26 June 2000 subsequently tested 

positive for THC (marijuana) by this said certified laboratory. 

5. The MRO, Dr. Ben K. Azman, of West Maui Healthcare Center of Lahaina, 

Hawaii, interviewed the Respondent on or about Sunday, 02 July 2000. The MRO then 

detennined that the test was a valid test for THC (marijuana) and reported the positive. 

6. It was further proven that on Wednesday, 21 June 2000, Respondent was 

orally directed by a Coast Guard law enforcement officer, an investigating officer, to 

undergo a chemical test for reasonable cause testing as soon as practicable. The 

Respondent violated federal regulations by failing to comply with the Coast Guard's 

order to provide a urine specimen for the test until Monday, 26 June 2000. It was 

important to test as soon as possible because Respondent was reported to have been seen 

using marijuana on or about 11 June 2000. It was further important because as was 

testified to at the hearing and is well known that the human body flushes, so to speak, 

marijuana out of the urinary system and body at a rather rapid rate. Once it is 

completely flushed out, it will not register in the numbers looked for in these urine tests 

of the urine specimen. The tested person, if they no longer take marijuana, can test 

negative forever, no matter how many more tests they take, as long as they stay away 

from marijuana and any other drugs being tested for. This does not prove that on the 

date in question, Monday, 26 June 2000, Respondent did not have THC or marijuana in 

his urinary system. The laboratory tested and certified by the U.S. Government found a 

positive after providing both the Enzyme Immunoassay test and the confirmatory Gas 

Chromatography/Mass Spectrometry (GC/MS) test. A combination ofboth of these 

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tests is considered state of the art and most extremely accurate by the medical, scientific 

and legal communities in the United States. 

7. Respondent was also proved to commit a violation of law and regulation in 

that it was proved by the Coast Guard Investigating Officers that around 02 July 2000, 

Respondent was informed by the MRO, Dr. Ben K. Azman, M.D., that the test was 

determined to be a valid test for marijuana (THC) and that he had failed it. The 

Respondent violated federal regulations by continuing to work under the authority of his 

Coast Guard license until 12 July 2000, as was established by the testimony of his 

marine employer and the employment records. 

ULTIMATE FINDINGS 

1. It was established and proved that the Respondent failed a chemical drug test 

for marijuana because marijuana was found in his urinary system from the urine sample 

and specimen taken from him on 26 June 2000 at the office of the MRO. Respondent 

was also guilty of delaying five (5) days before he provided the urine specimen on 

Monday, 26 June 2000 and by working from the dates of 02 July 2000 to 12 July 2000 

under his license after having been informed by the MRO that he had failed the drug test 

because marijuana was found in his urinary system and urine sample. 

OPINION 

One of the statutes passed by Congress and signed by the President involved in 

this case is 46 U.S. Code 7704(c), which reads: 

"If it is shown that a holder (of a license or document) has been a user of, or 

addicted to, a dangerous drug, the license, certificate of registry, or merchant 

mariner's document shall be revoked unless the holder provides satisfactory proof 

that the holder is cured." 

This statute first became public law on or about 26 August 1983 and has remained 

the law ever since, for approximately the past seventeen (17) years. 

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Subsequent to this statute, the Coast Guard stated its policy and gave guidelines of 

how the holder provides "satisfactory proof that the holder is cured" in one of the three 

Sweeney Appeal Decisions: Commandant's Appeal Decisions Numbers 2535 

(SWEENEY 1), 2546 (SWEENEY 2) and 2548 (SWEENEY 3) (1992). Commandant's 

Appeal Decision Number 2535 (SWEENEY 1), detailed the guidelines for how a mariner 

holder provides satisfactory proof that the holder is cured and stated as follows: 

"1. The respondent must have successfully completed a bonafide drug abuse 

rehabilitation program designed to eliminate physical and psychological dependence. 

This is interpreted to mean a program certified by a governmental agency, such as a state 

drug/alcohol abuse administration, or in the alternative, certified by an accepted 

independent professional association, such as the Joint Commission on Accreditation of 

Health Care Organizations (JCAHO). 

"2. The respondent must have successfully demonstrated a complete nonassociation with drugs for a minimum period of one year following successful 

completion of the rehabilitation program. This includes participation in an active drug 

abuse monitoring program which incorporates random, unannounced testing during that 

year." 

In light of these clear policy statements by the U.S. Congress, the President and 

the Commandant of the U.S. Coast Guard in the Sweeney Appeal Decision, which has 

also remained the policy of the Commandant ever since, Respondent's captioned Coast 

Guard-issued license; and any U.S. Merchant Mariner's Document (MMD) that he might 

possess from the U.S. Coast Guard, are REVOKED unless the Respondent within thirty 

(30) days of receipt of this Decision & Order by him or Respondent's attorney 

representing him at the hearing starts complying with the Sweeney guidelines above. 

Within thirty (30) days of receipt, a letter signed by a proper drug rehabilitation program 

representative, director or coordinator will be sent by them or Respondent to the Senior 

Investigating Officer at the Marine Safety Office Honolulu, Hawaii, whose address is: 

Commanding Officer, U.S. Coast Guard Marine Safety Office, Chief, Investigations 

Department, 433 Ala Moana Boulevard, Honolulu, Hawaii 96813-4909. 

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This report or letter by the drug rehabilitation program will state that the 

Respondent has started or at least enrolled to start drug rehabilitation within that thirty 

(30) day period ofreceipt of this Decision & Order. 

If the Respondent does not file such a letter with the Senior Investigating Officer 

in Honolulu, the Senior Investigating Officer, or an Investigating Officer under him, may 

file a motion requesting to invoke revocation of Respondent's captioned U.S. Coast 

Guard license due to failure to proceed immediately with the drug rehabilitation program 

by properly enrolling as soon as possible within the thirty (30) day period. 

--- " 

Dated: 3/ (}~ 

Copy: 

Lawrence P. Abatie, Respondent 

'2000 

~H .,_O_M_A_S ~. MCELL 

Administrative Law Judge 

U.S. Coast Guard 

Ramon J. Ferrer, Esq., Counsel for Respondent 

MSO Honolulu, Attn: LTJG DeLuca, 10 

CCGD14(m) 

ALJ Docketing Center, Baltimore 

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