UNITED STATES OF AMERICA

U.S. DEPARTMENT OF HOMELAND SECURITY

UNITED STATES COAST GUARD

_________________________________

UNITED STATES COAST GUARD

Complainant

vs.

AUSTIN PETER PELUCHETTE 

Respondent

_________________________________

Docket Number 2011-0219

Enforcement Activity No. 3980504

DECISION AND ORDER

Date Issued: December 29, 2011

Issued By: Honorable Bruce Tucker Smith

 Administrative Law Judge

Appearances:

For the Complainant

LT Michael Novak

U.S. Coast Guard Marine Safety Detachment Fort Myers

For the Respondent

Michael J. Pascucci, Esq.

Hayes G. Wood, Esq.

Wood, Pascucci & Mordes
I. PRELIMINARY STATEMENT

The United States Coast Guard U.S. Coast Guard Marine Safety Detachment Fort Myers, 

Florida (Coast Guard) initiated the instant administrative action seeking revocation of Austin 

Peter Peluchette‘s (Respondent) Coast Guard-issued Merchant Mariner‘s License (credential). 

The instant action is brought pursuant to the legal authority codified in the Administrative 

Procedure Act (APA), 5 USC §§551-59, the Coast Guard procedural regulations codified at 33 

CFR Part 20 and by the authority contained in 46 USC §7703(1)(B) and 46 CFR §5.27. 

On May 13, 2011, the Coast Guard filed an original Complaint alleging that on or about 

March 3, 2011, Respondent committed Misconduct pursuant to 46 CFR §5.27 by wrongfully 

failing to submit to a chemical drug test following a Serious Marine Incident (SMI) in violation 

of 46 CFR §4.06-5.

On June 3, 2011, Respondent filed his Answer to the Complaint, denying paragraphs 4, 5 

and 6 of the Complaint. Respondent denied that the vessel he commanded allided with a 

mangrove tree and denied that a passenger was injured as a result thereof. Moreover, Respondent 

denied that he was ordered to take a post accident chemical test and further denied that he 

wrongfully failed to submit to such a test.

On November 3, 2011, this matter came on for hearing in the United States Courtroom, 

Claude Pepper Federal Building in Miami, Florida. Coast Guard Investigating Officers (IO) LT 

Michael Novak, U.S. Coast Guard Marine Safety Detachment Fort Myers, and Mr. Brian Knapp 

from Coast Guard Sector St. Petersburg, Florida, represented the Coast Guard. Michael J. 

Pascucci, Esq. and Hayes G. Wood, Esq., of Wood, Pascucci & Mordes represented Respondent.

Both parties appeared, presented their respective cases, and rested. Three witnesses 

testified as part of the Coast Guard‘s case-in-chief. The Coast Guard offered four exhibits into 

evidence, all of which were admitted. Respondent testified on his own behalf and offered 
thirteen exhibits into evidence, all of which were admitted.1 Upon motion, the court took official 

notice of two pertinent provisions from the Code of Federal Regulations.

Prior to adjourning the hearing, the court asked the Coast Guard to obtain additional 

documentary evidence, specifically, a laboratory/litigation report from Respondent‘s drug test, 

and further announced that it would afford the parties an opportunity to submit briefs in support 

of their respective legal positions upon receipt of the lab report. The court received the 

laboratory/litigation report (ALJ Ex. III) and subsequently entered an Order setting deadlines for 

the submission of post-hearing arguments and briefs by the parties.

In its post-hearing submission, the Coast Guard submitted twenty-two proposed Findings 

of Fact (FoF) and Conclusions of Law (CoL), some of which are referenced, below. By 

referencing each such FoF or CoL, the court does not necessarily adopt the Coast Guard‘s entire 

reasoning or interpretation of the evidence described in the FoF or CoL.2

II. FINDINGS OF FACT

 The Findings of Fact are based on a thorough and careful analysis of the documentary 

evidence, testimony of witnesses and the entire record taken as a whole, including party 

stipulations. 

1. At all relevant times mentioned herein Respondent Austin Peter Peluchette 

was the holder of a Coast Guard-issued Merchant Mariner‘s License; 

specifically, an Operator of Uninspected Passenger Vessels License or ―6-

pack.‖ (Credential)(CG FoF 1). 

 

1 Citations referencing the transcript are as follows: Transcript followed by the volume number and page number 

(Tr. at __). Citations referring to Coast Guard Exhibits are as follows: Coast Guard followed by the exhibit number 

(i.e., CG Ex. 1, etc.); Respondent‘s Exhibits are as follows: Respondent followed by the exhibit letter (Resp. Ex. A, 

etc.); ALJ Exhibits are as follows: ALJ followed by the exhibit Roman numeral (ALJ Ex. I, etc.).

2

The majority of the Coast Guard‘s proposed Findings of Fact and Conclusions of Law are actually neither. They 

are either in the form of argument or deal with matters which are legally irrelevant. For example, proposed FoF 5 

says ―Respondent failed to make contact with the Marine Employer to advise that the testing facility was not 

performing drug tests...‖ Even if true, that statement is irrelevant to Respondent‘s duty to comply with the 

employer‘ order. Likewise, proposed FoF 9 says ―Cellular phones are not a reliable means of communicating in 

Everglades City due to poor service...‖ There was neither probative evidence in this regard nor is such a finding 

relevant to the legal issues before the court. Likewise, the Coast Guard‘s proposed Conclusions of Law are largely 

argumentative and not in a proper form to constitute cognizable CoL.
2. On March 3, 2011, between 12:15 p.m. and 12:45 p.m., Respondent Austin 

Peter Peluchette was in direct navigational control of an airboat when that 

vessel suffered a steering arm mechanical failure resulting in an allision 

between that vessel and a mangrove tree. (Tr. at 29-30, CG Ex. 6).

3. The March 3, 2011 allision resulted in property damage and personal injury; 

thus the incident was properly categorized as a Serious Marine Incident (SMI) 

per 46 CFR §4.03-2. (CG FoF 1). 

4. Respondent Austin Peter Peluchette was ―an individual directly involved in a 

serious marine incident‖ per 46 CFR §4.03-4. 

5. On Thursday, March 3, 2011, Mr. Phillip Todd Johnson, Respondent‘s 

maritime employer, ordered Respondent Austin Peter Peluchette to submit to 

chemical drug testing. (Tr. at 83)(CG FoF 2,3). 

6. As a maritime employer, Mr. Johnson was obliged to order Respondent 

Austin Peter Peluchette to submit a drug-test specimen within thirty-two hours 

of the SMI, per the provisions of 46 CFR §4.06-3(CG FoF 2,3). 

7. At approximately 3:35 p.m., on Thursday, March 3, 2011, Respondent Austin Peter 

Peluchette presented himself for testing at the LabCorp DSI facility, 40 Heathwood 

Drive, Marco Island, Florida. (Tr. at 174-75). 

8. LabCorp DSI is a certified drug testing facility appropriate for a mariner to submit a 

urine specimen for chemical drug testing. (Tr. at 127). 

9. Between 3:30 – 3:35 p.m., on Thursday, March 3, 2011, personnel at the LabCorp 

DSI facility, 40 Heathwood Drive, Marco Island, Florida, refused to collect a urine 

specimen from Respondent Austin Peter Peluchette because the facility had ceased 

collecting specimens for the day. (Tr. at 177, 203-204, Resp. Ex. C-1, Resp. Ex. C2)(CG FoF 4).

10. Thereafter, from March 3 to March 5, 2011, Respondent Austin Peter Peluchette

unsuccessfully attempted to provide a urine specimen at a variety of times and 

locations. (Tr. at 179-194). 

11. Respondent Austin Peter Peluchette ultimately submitted a urine specimen for 

testing at approximately 11:50 a.m. on Saturday, March 5, 2011, more than 

forty hours after the SMI. (Tr. at 215). 

12. The LabCorp DSI facility located at 311 Ninth Street, near Tamiami Trail 

Road, Naples, Florida collected Respondent Austin Peter Peluchette‘s 

specimen. (Tr. at 196, CG Ex. 9, Resp. Ex. A, Resp. Ex. B).

13. Respondent Austin Peter Peluchette‘s urine specimen subsequently tested 

negative for nine selected illicit drugs, per Department of Transportation 
(DOT) and Substance Abuse and Mental Health Services Administration 

protocols. (Resp. Ex. B).

14. On Friday, March 4, 2011, Respondent Austin Peter Peluchette could have 

returned to the LabCorp DSI facility, 40 Heathwood Drive, Marco Island, 

Florida, to provide a urine specimen for testing. However, he did not. (Tr. at 

222)(CG FoF 6,7).

15. Respondent Austin Peter Peluchette‘s failure to return to the LabCorp DSI 

facility, 40 Heathwood Drive, Marco Island, Florida, on the morning of 

Friday, March 4, 2011 and his failure to provide a urine specimen for testing 

on that day and time constituted Misconduct in violation of 49 CFR 

§40.191(a)(1) and 46 CFR §5.27. 

III. SUMMARY OF DECISION

For the reasons discussed herein, the Coast Guard PROVED by a preponderance of 

reliable, probative and credible evidence that Respondent failed to provide a urine specimen for 

chemical drug testing within a reasonable time, as required by 49 CFR §40.191(a)(1) and 46 

CFR §5.27. 

IV. DISCUSSION

A. General

The purpose of Coast Guard suspension and revocation proceedings is to promote safety 

at sea. See 46 USC §7701. Pursuant to 46 CFR §5.19, an ALJ holds the authority to suspend or 

revoke a license or certificate in a hearing for violations arising under 46 USC §7703. 

Determining the weight of the evidence and making credibility determinations as to the 

evidence is within the sole purview of the ALJ. See Appeal Decision 2640 (PASSARO) (2003).3 

Additionally, the ALJ is vested with broad discretion in resolving inconsistencies in the 

evidence, and findings do not need to be consistent with all of the evidence in the record as long 

as there is sufficient evidence to reasonably justify the findings reached. Id.; Appeal Decision 

2639 (HAUCK) (2003).
B. Jurisdiction 

―The jurisdiction of administrative bodies is dependent upon the validity and the terms of 

the statutes reposing power in them.‖ Appeal Decision 2620 (COX) (2001) (quoting Appeal 

Decision 2025 (ARMSTRONG) (1975)). ―Where an Administrative forum acts without 

jurisdiction its orders are void.” Appeal Decision 2025 (ARMSTRONG) (1975). Therefore, 

establishing jurisdiction is critical to the validity of a proceeding. Appeal Decisions 2677 

(WALKER) (2008); 2656 (JORDAN) (2006). Jurisdiction is a question of fact that must be 

proven. Appeal Decisions 2620 (COX) (2001); 2425 (BUTTNER) (1986); 2025 

(ARMSTRONG) (1975) (stating ―jurisdiction must be affirmatively shown and will not be 

presumed”). 

In the instant case, the Respondent admitted the jurisdictional allegations contained in 

the Complaint; namely, that on or about March 3, 3011, he acted under the authority of his 

mariner’s credential by serving as Master aboard vessel FL3859KB as required by law or 

regulation. (See Answer).

C. Burden of Proof

In this case, like all suspension and revocation cases, the Coast Guard bears the burden of 

proof to establish the requisite facts mandated by the organic statute, 46 USC §7703, and the 

implementing regulations, 46 CFR Part 5; Part 10, Subpart B; 33 CFR Part 20. The 

Administrative Procedure Act, 5 USC §§551-559, applies to Coast Guard Suspension and 

Revocation hearings before United States ALJs. The APA authorizes imposition of sanctions if, 

upon consideration of the entire record as a whole, the charges are supported by reliable, 

probative and substantial evidence. See 5 USC §556(d). The Coast Guard bears the burden of 

proof to establish the charges are supported by a preponderance of the evidence. 33 CFR 

§§20.701, 20.702(a). Similarly, a respondent bears the burden of proof in asserting his 

 

3

Pursuant to 46 CFR §5.65, ―[t]he decisions of the Commandant in cases of appeal . . . are officially noticed and the 

principals and policies enunciated therein are binding upon all Administrative Law Judges.‖
affirmative defense by a preponderance of the evidence. 33 CFR §§20.701, 20.702; Appeal 

Decisions 2640 (PASSARO) (2003); 2637 (TURBEVILLE) (2003). ―The term substantial 

evidence is synonymous with preponderance of the evidence as defined by the U.S. Supreme 

Court.‖ Appeal Decision 2477 (TOMBARI) (1988) (citing Steadman v. SEC, 450 U.S. 91, 107 

(1981)). The burden of proving a fact by a preponderance of the evidence ―simply requires the 

trier of fact  ̳to believe that the existence of a fact is more probable than its nonexistence before 

[he] may find in favor of the party who has the burden to persuade the [judge] of the fact‘s 

existence.‘‖ Concrete Pipe & Products of Cal., Inc. v. Constr. Laborers Pension Trust for S. Cal., 

508 U.S. 602, 622 (1993) (quoting In re Winship, 397 U.S. 358, 371-72 (1970) (Harlan, J., 

concurring) (brackets in original)).

In this case, the Coast Guard alleges Respondent committed ―Misconduct,‖ 46 CFR 

§5.27, by failing to submit to a post-SMI chemical drug test. Title 46 CFR §5.27 defines 

―misconduct‖ as:

[H]uman behavior which violates some formal, duly established 

rule. Such rules are found in, among other places, statutes, 

regulations, the common law, the general maritime law, a ship‘s 

regulation or order, or shipping articles and similar sources. It is an 

act which is forbidden or a failure to do that which is required.

Here, the requisite formal, duly established rule is contained in a reading of certain 

provisions of 46 CFR Subpart 4.06 and 49 CFR Part 40 which require a mariner to submit to a 

post-SMI drug test within a reasonable time. ―Reasonableness‖ is determined by the facts and 

circumstances of a particular case. Go-Bart Importing Co. v. United States, 282 U.S. 344, 357 

(1931); Appeal Decision 2098 (CORDISH)(1977). Accordingly, the Coast Guard must prove by 

a preponderance of the evidence that Respondent failed to submit to a post-SMI test within a 

reasonable period of time. 

D. The Evidence
At the hearing, the parties orally stipulated to the underlying facts which gave rise to the 

instant Complaint. The parties stipulated that on March 3, 2011, between 12:15 p.m. and 12:45 

p.m., Respondent was in direct navigational control of an airboat when that vessel suffered a 

steering arm malfunction, resulting in an allision between that vessel and a mangrove tree. (Tr. at 

29-30, CG Ex. 6). The Coast Guard did not charge, nor was there any evidence to suggest, that 

Respondent was negligent in the operation of the vessel. However, because the allision resulted 

in property damage and personal injury, the incident was properly categorized as an SMI. 46 

CFR §4.03-2. Thus, Respondent was ―an individual directly involved in a serious marine 

incident‖ per 46 CFR §4.03-4. 

The Coast Guard presented the testimony of Phillip Todd Johnson, President and partowner of ―Speedy‘s Airboat Tours‖ of Everglades City, Florida, Respondent‘s employer at the 

time of the Thursday, March 3, 2011 allision. Mr. Johnson testified that at approximately 2:30 –

3:00 p.m. on Thursday, March 3, 2011, he ordered Respondent to submit to chemical drug 

testing. (Tr. at 83, 89). As a maritime employer, per 46 CFR §4.06-3, Mr. Johnson was obliged 

to order Respondent to submit a drug-test specimen within thirty-two hours of the SMI. 

The court notes that the Coast Guard‘s Complaint improperly alleged that Respondent 

―wrongfully failed to submit to a post accident chemical drug test within thirty-two hours of a 

serious marine incident, a direct violation of 46 CFR4.06-5.‖ (Sic) Title 46 CFR 4.06-5, which 

governs the conduct of an ―individual directly involved‖ in a SMI, required Respondent to 

―provide a blood, breath, saliva, or urine specimen for chemical testing when directed to do so by 

the marine employer.‖ However, the regulation does NOT impose a thirty-two hour requirement 

upon a mariner. Rather, per 46 CFR §4.06-3(b), the thirty-two hour requirement is an obligation 
imposed upon the maritime employer. As the Commandant has previously ruled, a mariner 

cannot violate a regulation which merely prescribes procedures for his employer to follow.4

At the hearing, the Coast Guard conceded that the Complaint was inartfully drafted and 

that 46 CFR §4.06-5 does not impose a thirty-two hour deadline upon a mariner after an SMI. 

(Tr. at 143).5 Rather, the Coast Guard now contends that Respondent refused to take a DOT 

drug test within a ―reasonable time as determined by the employer, consistent with applicable 

DOT agency regulations, after being directed to do so by the employer‖ per the dictates of 49 

CFR §40.191(a)(1). It is upon that requirement that the Respondent‘s conduct is adjudicated.6 

For the purposes of this case, Respondent judged in light of the ―reasonable time‖ standard set 

forth by 49 CFR §40.191(a)(1). 

The parties agree, and there was no proof to the contrary, that Respondent submitted a 

urine specimen for testing at approximately 11:50 a.m. on March 5, 2011, more than forty hours 

after the SMI. (CG Ex. 9, Resp. Ex. A). Moreover, the parties agree, and there was no proof to 

the contrary, that Respondent‘s urine specimen tested negative for nine selected illicit drugs, per 

Department of Transportation (DOT) and Substance Abuse and Mental Health Services 

 

4

Appeal Decision 2578 (CALLAHAN)(1996). There, the Commandant explained: ―Appellant was charged with 

misconduct for  ̳wrongfully refus[ing] to provide a specimen for a required post accident chemical test ordered by 

your marine employer ... in accordance with 33 CFR 95.035(a)(1).‘ This specification implies that the Appellant 

was in violation of 33 C.F.R. 95.035, a regulation that establishes guidelines and procedures for reasonable cause 

drug testing by marine employers. An employee cannot violate a regulation which merely prescribes procedures for 

his employer to follow. [emphasis added]. Cf. Appeal Decision 2551 (LEVENE) (mariner cannot violate 33 C.F.R. 

95.040 which prescribes a rule of evidence). Therefore, a violation of 33 C.F.R. 95.035 cannot be the basis for 

Appellant's misconduct under the first specification.‖

5

The court specifically finds that despite the inartful allegation in the Complaint, Respondent was not prejudiced 

thereby. He was substantially on notice of the facts and allegations against him; he had an ample time to engage in 

pre-trial discovery; he did not raise an objection based upon either notice or any other Constitutional infirmity; the 

court was not misled by the allegation and the resolution of this matter was not contingent upon a factual finding 

necessitated by the allegation contained in the Complaint. Appeal Decision 1792(PHILLIPS)(1970); Appeal 

Decision 2422 (GIBBONS)(1986). 

6

The court takes notice of the repeated confusion among both mariners and the Coast Guard regarding the time 

within which a mariner is to be chemically tested after a Serious Marine Incident. This case highlights the confusion 

created by the regulations. Indeed, 46 CFR §4.06-3(b) directs a marine employer to ensure that a specimen be 

collected within thirty-two hours after an SMI. By contrast, 46 CFR §4.05(a) vaguely requires the mariner to 

provide a specimen ―when directed to do so.‖ To further confuse the matter, 49 CFR §40.191(a)(1) tells the mariner 

he/she must appear for a test [not actually submit a sample] ―within a reasonable time, as determined by the 

employer, consistent with applicable DOT agency regulations.‖ 
Administration protocols. (Resp. Ex. B). However, the issue herein is not whether Respondent 

was tested or the results of said test, but whether he provided a urine specimen within a 

―reasonable time.‖

The uncontroverted facts reveal that on Thursday, March 3, 2011, within four hours after 

the SMI, at approximately 2:30 – 3:00 p.m., Mr. Johnson directed Respondent to submit to a 

chemical drug test. (Tr. at 89). 

The undisputed testimony further reveals that almost immediately thereafter, at 

approximately 3:30 – 3:35 p.m., on Thursday, March 3, 2011, Respondent presented himself for 

testing at the LabCorp DSI facility, 40 Heathwood Drive, Marco Island, Florida. LabCorp DSI is 

a certified drug testing facility appropriate for a mariner to submit a specimen for drug testing. 

(Tr. at 127). 

The evidence also revealed that at approximately 3:30 – 3:35 p.m., on Thursday, March 

3, 2011, personnel at the LabCorp DSI facility, 40 Heathwood Drive, Marco Island, Florida, 

refused to collect a urine specimen from Respondent because that facility had ceased collecting 

specimens for the day. (Tr. at 177, 203-204, Resp. Ex. C-1, Resp. Ex. C-2).

Clearly, Respondent presented himself in a timely manner for testing. However, the 

Coast Guard argued that because a specimen was not submitted in a timely manner, Respondent 

―refused‖ to take a DOT test per 49 CFR §40.191(a). The Coast Guard is only partially correct 

in that assertion, because 49 CFR §40.191(a) clearly states that a mariner has refused to take a 

drug test if [he/she] ―fails to appear for any test within a reasonable time, as determined by the 

employer...‖. (emphasis added). Here, it is uncontroverted that the Respondent did appear at the 

time and location specified by his employer—but was turned away by personnel at the testing 

facility. (Tr. at 177, 203-204). Hence, at least insofar as the events of Thursday, March 3, 2011, 

are concerned, Respondent did exactly as he was ordered and exactly as the regulations require –

he appeared at the testing facility for the ordered test within a reasonable time. However, since 
the testing facility was closed, the question remains, as to whether Respondent had an affirmative 

duty to ensure a specimen was collected in a timely manner. 

The evidence reveals that after his first attempt to provide a sample on March 3, 2011, 

Respondent attempted to provide a urine specimen at a variety of times and different locations 

before he successfully submitted a sample at approximately 11:50 a.m. on Saturday, March 5, 

2011. Respondent testified that on Friday, March 4, 2011, at approximately 1:00 p.m., and at the 

guidance and direction of his maritime employer, Respondent attempted to submit a specimen at 

the Advanced Medical Center on Pine Ridge Road, Naples, Florida. (Tr. at 218). However, 

Respondent was unable to provide a specimen at that location because his employer‘s insurance 

was not accepted there. (Tr. at 183).

Respondent further testified that, later that same day, he departed the Advanced Medical 

Center location and proceeded to what he believed to be another LabCorp DSI facility on 

Immokalee Road in Naples, Florida. However, he arrived at that location at approximately 2:30 

p.m. only to learn that the facility was an ―NCH Healthcare‖ clinic, not a certified specimencollection facility. Accordingly, he was also unable to submit a specimen at that facility. (Tr. at 

186, Resp. Ex. D-3). Respondent departed the ―NCH Healthcare‖ facility and went home. After 

doing some research on the Internet, Respondent drove to yet another LabCorp DSI facility, this 

one at 2330 Immokalee Road in Naples, Florida. He arrived there arrived at approximately 3:00 -

4:00 p.m., only to learn that he was, again, too late to submit a specimen. (Tr. at 186, 189-191).

The evidence reveals that the next day, Saturday, March 5, 2011, at approximately 10:00 

a.m., Respondent presented himself at the LabCorp DSI facility located at 311 Ninth Street, (near 

Tamiami Trail Road) in Naples, Florida. (Tr. at 196). There, Respondent provided a urine 

specimen for testing, which subsequently tested ―negative‖ for the presence of illicit drugs. (Tr. 

at 196, Resp. Ex. B).
While the record indicates that Respondent made efforts to be tested on March 3, 2011 

and March 4, 2011, it is unclear why Respondent failed to simply present himself to the LapCorp 

DSI facility in Marco Island, Florida on the morning of Friday, March 4, 2011, the same location 

where he was unable to submit the sample one day prior. 

Respondent testified that on the morning of Friday, March 4, 2011, from approximately 

8:00 a.m. to 12:00 p.m., he made repeated efforts to contact and communicate with his marine 

employer, Mr. Johnson, to arrange for a specimen collection. (Tr. at 204-205). It was during this 

four-hour period that Respondent could have—and should have—returned to the LabCorp DSI 

facility, 40 Heathwood Drive, Marco Island, Florida for testing. 

While it is true that 49 CFR §40.191(a)(1) does require a maritime employer to be 

directly involved in arranging the mariner‘s drug-testing, the mariner is not relieved of his 

independent obligation to be tested. In other words, the mariner cannot abandon his own 

judgment and resourcefulness in complying with a timely order to submit to a chemical drug test. 

Nor must the marine employer hold the employee‘s hand or coerce him to be tested. Per 46 CFR 

§4.06-3, an employer‘s obligation under the regulations is satisfied when he gives a timely order 

to the mariner that he be tested. Respondent‘s marine employer properly discharged his duty 

when he directed Respondent to be tested.

Here, Respondent admitted that he could have returned to the LabCorp DSI facility on 

Heathwood Drive for testing on the morning of Friday, March 4, 2011. (Tr. at 222). When time 

limits for compliance are not clearly specified, as is the case, here, an employee subject to DOT 

drug-testing protocols must make a good-faith, (i.e., a reasonable) effort to comply with the 

regulations. Melman v. Metropolitan Government of Nashville, 2010 WL 3063805 

(M.D.Tenn.,2010).

Respondent admitted that on Friday, March 4, 2011, he could have gone to the same 

location where he had been the afternoon before; a properly-certified facility that he knew could 
collect his specimen. Clearly, Respondent could have and should have presented himself for 

testing the morning of March 4, 2011, (i.e., within a ―reasonable time‖) at the LabCorp DSI 

facility, 40 Heathwood Drive, Marco Island, Florida. His failure to do so constitutes misconduct 

pursuant to 49 CFR §40.191(a)(1). 

V. SANCTION 

The authority to impose sanctions at the conclusion of a case is exclusive to the 

Administrative Law Judge. 46 CFR §§5.567; 5.569(a); Appeal Decision 2362 (ARNOLD)

(1984). The nature of this non-penal administrative proceeding is to ―promote, foster, and 

maintain the safety of life and property at sea.‖ 46 USC §7701; 46 CFR §5.5; Appeal Decision 

1106 (LABELLE) (1959). 

The decision on an appropriate sanction is one of the most crucial aspects of a court‘s 

resolution of a Suspension and Revocation hearing. Too frequently, however, the parties fail to 

produce probative evidence in support of their respective positions on a sanction.

Guidance on whether a credential ought to be suspended or revoked is found in 46 CFR 

§5.569 and its attendant Table. The Table provides a ―Suggested Range of Appropriate Orders‖ 

for various offenses. The purpose of the Table is to provide guidance to the Administrative Law 

Judge and promote uniformity in orders rendered. 46 CFR §5.569(d); Appeal Decision 2628 

(VILAS) (2002), aff‘d by NTSB Docket ME-174. In this case, the Coast Guard sought 

revocation of Respondent‘s Merchant Mariner‘s License. 

In Coast Guard v. Moore, NTSB Order No. EM-201 (2005), an action was brought 

against a mariner for Misconduct, alleging his refusal to submit to a drug test. The NTSB 

disapproved of a license revocation order because the Coast Guard neither proved, nor did the 

Administrative Law Judge find, specific factors in aggravation sufficient to depart from the 

guidance provided in 46 CFR Table 5.569. The NTSB explained that the guidance contained in 
the Table is ―for the information and guidance of Administrative Law Judges and is intended to 

promote uniformity in orders rendered.‖ 

While it is true that 46 CFR §5.569(d) also explains that ―[the] table should not affect the 

fair and impartial adjudication of each case on its individual facts and merits,‖ it is not for the 

undersigned to speculate what those individual aggravating facts and merits are relative to this

Respondent, absent an evidentiary basis. 

In this case, Table 5.569 does not specifically enumerate the offense of failing to submit 

to a post-SMI chemical drug test. The Table does list ―Failure to obey a master‘s order‖ and 

―Failure to comply with U.S. law or regulation,‖ for which an outright suspension of one to three 

months is recommended. Read broadly, Respondent‘s failure might be characterized as either of 

those listed offenses. For the reasons set forth below, the court will abide by the guidance 

contained in Table 5.569.

In determining an appropriate sanction for offenses for which revocation is not 

mandatory, an Administrative Law Judge should consider: any remedial actions undertaken by a 

respondent; a respondent‘s prior records; and evidence of mitigation or aggravation. See 46 CFR 

§5.569(b)(1)-(3). 

Remedial Action: Neither party offered any evidence pertaining to Respondent‘s efforts 

at remediation. However, Respondent did offer evidence of his public service as a trained, 

volunteer firefighter and as an emergency medical technician. (Tr. at 164 – 165). This evidence 

suggests Respondent is an otherwise responsible and law-abiding citizen.

Respondent’s Prior Records: The court notes that the Respondent held an Operator of 

Uninspected Passenger Vessels License, or ―6-pack,‖ that has, apparently, never been the subject 

of any prior sanctions or disciplinary action.

Mitigation or Aggravation: The Coast Guard offered no evidence in aggravation and 

Respondent offered no evidence in mitigation. The Coast Guard‘s failure to substantiate its 
demand for revocation with evidence in aggravation weighs heavily in the court‘s decision to 

deny the requested revocation.

Normally, the holdings of Appeal Decisions 2578 (CALLAHAN) (1996 ) and 

2624(DOWNS) (2001), dictate that a person who evades a chemical drug test ought not suffer a 

lesser sanction than one who takes a chemical drug test and fails. The logic and import of 

CALLAHAN and DOWNS is that a lesser sanction for failure to submit to a chemical drug test 

would encourage offenders to evade testing. 

Given the unique facts and circumstances of this case, however, the rationale of 

CALLAHAN and DOWNS is inapplicable. Here, given the unique facts of this case and the 

Coast Guard‘s failure to substantiate its demand for revocation, a lesser sanction is appropriate. 

This is not a ―typical‖ refusal-to-test case. Respondent made one timely effort to be tested; he 

simply didn‘t make enough of a timely effort to be tested thereafter. Given that a Coast Guardissued credential is a professional license, it is incumbent upon a professional mariner to comply 

with both the letter and spirit of the law. A mariner should be as interested in protecting his 

credential and his good name by a drug test as are his employers and the Coast Guard.

In affixing an appropriate sanction, this court focuses upon the fact that Respondent did 

promptly attempt to comply with his employer‘s initial order to be tested; that his failure to be 

tested immediately was occasioned by the personnel at the testing facility; and that he eventually 

tested negative. The court notes that there was no evidence or any inference that Respondent was 

purposefully avoiding the test. Rather, Respondent‘s chief offense was one of poor judgment, by 

his admitted failure to return to the LabCorp DSI facility, 40 Heathwood Drive, Marco Island, 

Florida on the morning of March 4, 2011 for testing.

Accordingly, a suspension of one month, in accord with Table 5.569, is appropriate in 

this case.
VI. CONCLUSION

For the reasons discussed above, the Court finds the Coast Guard has PROVED by a 

preponderance of reliable, probative and credible evidence that Respondent failed to provide a 

urine specimen for chemical drug testing within a reasonable time, as required by 49 CFR 

§40.191(a)(1) and 46 CFR §5.27. 

WHEREFORE,

VII. ORDER

IT IS HEREBY ORDERED, that the allegations contained in the Coast Guard‘s 

Complaint were PROVED and that the Respondent‘s credential is hereby suspended outright for 

a period of one month.

PLEASE TAKE NOTE, that issuance of this Decision and Order serves as notice of the 

parties‘ right to appeal under 33 CFR Part 20, Subpart J. A copy of Subpart J is provided as 

Attachment B.

__________________________________________________

Bruce Tucker Smith

US Coast Guard Administrative Law Judge

Date: 

December 29, 2011
ATTACHMENT A – EXHIBIT LIST

COAST GUARD EXHIBITS

CG Ex. 05 Witness Statement

CG Ex. 06 Coast Guard accident report form

CG Ex. 08 Drug testing consent form

CG Ex. 09 Drug testing custody and control form

RESPONDENT’S EXHIBITS

Resp. Ex. A Drug testing custody and control form

Resp. Ex. B MRO Letter

Resp. Ex. C1 – C2 Photos

Resp. Ex. D1 – D8 Photos

Resp. Ex. H Marine Employers Drug Testing Guidance

ALJ EXHIBITS

ALJ Ex. I 46 CFR §4.06

ALJ Ex. II 49 CFR §40.191

ALJ Ex. III Lab Corp ―Litigation Package‖
ATTACHMENT B – 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 --

(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.