UNITED STATES OF AMERICA 

DEPARTMENT OF TRANSPORTATION 

UNITED STATES COAST GUARD 

********************************** 

UNITED STATES OF AMERICA * 

UNITED STATES COAST GUARD * 

* Docket No. 00-0704 

* Case No: PA00001906 

vs. * 

* 

IRA D. SPENCER, III * 

* 

********************************** 

DECISION AND ORDER 

1. On October 19, 2000 a Complaint was filed against Respondent Ira D. Spencer, Ill, alleging 

violation of 46 U.S.C. 7703 in that he wrongfully refused to submit to a random drug t.est. 

Specifically, it is allwged that" ... on August 1, 2000 at Manteo, NC the Respondent received 

a letter from the Maritime Consortium, Inc. which stated that the Respondent was required to 

report to the collection site for random drug testing within 24 hours of receipt of the letter." 

Mr. Spencer failed to do so and that failure is alleged to have constituted an act of 

Misconduct as defined in Coast Guard regulations codified at 46 CFR 5.27. 

2. The Respondent's Answer was submitted December 4, 2000. He admitted all the 

Jurisdictional Allegations of the Complaint. Also, he admitted the Factual Allegations except 

for paragraph number 2. That paragraph reads as follows: 

"2. The Respondent wrongfully refused to submit to the random drug test.'' 

3. A hearing was scheduled for January 25, 2001 at Norfolk, Virginia. The Investigating 

Officers appearing for the Coast Guard Marine Safety Office, Hampton Roads, were L T 
Jacqueline Twomey and L T Scott Higman. Mr. Spencer was represented by counsel, Donald 

Marcari, Esq., of Jones Marcari Russotto Walker & Spencer. 

4. At the hearing, the following witnesses testified for the Coast Guard: 

a. Tamarra Thomas 

b. Rebecca Norton 

c. Ira D. Spencer, Ill 

The Coast Guard submitted the following exhibits: 

I0-1 -The Maritime Consortium, Inc. Dmg Testing Handbook 

I0-2 - Copy ofThe Maritime Consortium, Inc. contract with Ira D. Spencer, III 

I0-3 - Copy of Random Test Notification dated 7/28/00 

I0-4 -Letter of911/00 from The Maritime Consortium notifying the. Coast Guard 

that Mr. Spencer failed to test. 

I0-5- The Maritime Consortium Inc., log oftelephone conversation between Mr. 

Spencer and Ms. Norton 

5. The Respondent testitl.ed on his own behalf. Essentially he stated that on August 1, 2000 he 

did receive a letter from The Maritime Consortium directing him to provide a urine sample 

for a chemical test for dangerous dmgs at a designated collection site at Manteo, NC within 

24 hours of receipt of the letter. Mr. Spencer is the operator of an uninspected tl.shing vessel 

providing half-day charter service for recreational fishennan. The vessel is moored at 

Oregon Inlet Fishing Center, )lorth Carolina. He further testi±led that moming and afternoon 

charters for out-of-town ±lshennen on August 2, 2000 had already been scheduled and could 

not be canceled. He contacted the collection site during the day and· was told that the facility 

closed drug testing at 1600. He also contacted The Maritime Consortium but was provided 

2 
no alternative testing site. After taking out the two charters, he completed the form 

accompanying the Consortium's directive where he explained why he was unable to take the 

drug test. 

6. The following witnesses testified on the Respondent's behalf: 

a. Judy Williams 

b. Michael (Sean) Hayes 

c. Jack Francis 

d. Billy Long 

e. Alfred Feickert 

f. Gerald Craddock 

g. Ira D. Spencer, III 

The Respondent submitted the following exhibits: 

RSP A- Affidavit of Lynn S. Bryant 

RSP B - Affidavit of Richard A. Johnson 

RSP C -Affidavit of Ricky M. Eaton 

RSP D- Affidavit of Thomas Robert Maher 

RSP E -Affidavit of Devin Cage 

RSP F- Affidavit of Roger W.R. Sears, D.D.S. 

RSP G- Affidavit of Jeffrey D. Jacobson 

RSP H- Letter from Walter L. Holton, M.D. 

7. A court reporter was retained to make a tape recording of the entire hearing. Under the Coast 

Guard contract requirements applicable at the time, she submitted the tape recordings to 

another court reporting firm with which the Service had a contract to develop transcripts. A 

3 
transcript was produced on February 27, 2001 but it is fraught with errors and omissions and 

does not include important portions _9f the hearing. For example, the entire testimony of two 

witnesses (Judy Williams and Michael Hayes) is missing. Additionally, the Respondent Mr. 

Spencer testified but cross- examination by Mr. Marcari and re~irect examination by L T 

Higman is not included. Also, the rulings on the admission of Respondent's exhibits are not 

in the transcript. Importantly, the Authentication of the Record where the reporter certifies, 

"This is to certify that the Testimony herein In the Matter of Perry Boyd, Respondent" is a 

certification from another case. No such authentication is made for the Spencer case. 

8. The state of the transcript in this proceeding is totally unacceptable and is so serious that the 

record is fatally defective. It is simply not possible to write a comprehensive decision. 

Fortunately, I announced my decision at the conclusion of the hearing. It is set out on pages 

180-183 of the transcript. That portion ofthe transcript appears to be accurate. Accordingly, 

that decision is hereby adopted as the Decision and Order in this case. It dismisses the 

Complaint. A copy of those pages is attached hereto as Attachment A. 

9. Attached hereto as Attachment B is a copy of a letter from the court reporter who was present 

at the hearing and who taped the proceeding. She highlights the inadequacies of the 

transcript created by the other firm. 

4 
ORDER 

It is hereby ORDERED that the Complaint issued against Ira D. Spencer, III is dismissed 

with prejudice. 

Done and Dated on April .9..._ 7 , 200 1 

Norfolk, Virginia 

~,f:~ {? ,%r!:t!:-"' {/ETER A. FITZPAT 

Administrative Law Ju ge 

5