UNITED STATES OF AMERICA 

U.S. DEPARTMENT OF HOMELAND SECURITY 

UNITED STATES COAST GUARD 

UNITED STATES COAST GUARD 

Complainant 

vs. 

WIL1,IE JAMES HUBBARD 

Respondent. 

Docket Number CG S&R 06-01 79 

CG Case No. 2610332 

DECISION AND ORDER 

Issued: October 17,2007 

Issued by: Thomas E. P. McElligott. Administrative Law Judge 

Appearances: 

Lieutenant Jerry D. Butwid and 

Chief Marine Science Technician Steven D. Stapleton, 

of the U.S. Coast Guard Marine Safety Unit Galveston, 

P.O. Box 0149, Galveston, Texas 77553 

For the Coast Guard 

Witlie James Flubbard, pro se. 

For the Respondent 
PRELIMEVARY STATEMENT 

The Investigating OEcers ("10s") of the U.S. Coast Guard ("Coast Guard') 

Marine Safety Unit Galveston initiated this administrative action seeking revocation of 

the Merchant Mariner's Document and any other credentials issued by the Coast Guard to 

the captioned Respondent, William James Hubbard ("Respondent"). The Coast Guard 

issued a Complaint to the Respondent pursuant to the legal authority contained in 46 U.S. 

Code ("USC") 7704(c) and its underlying regulations contained in 46 Code of Federal 

Regulations ("CFR") Part 5, including 46 CFR 5.35. 

The Respondent holds a U.S. Merchant Mariner's Document ("MMD) issued to 

him by the U.S. Coast Guard Regional Examination Center, in the Port of Houston, 

Texas. This MMD was identified and the Respondent admitted to it in Respondent's 

Answer to the Complaint. 

There are five (5) factual allegations in the Complaint served by certified mail on 

Respondent and the Respondent only denied the last one. The Respondent admitted to 

the following four (4) Factual Allegations-Use of or Addiction to the Use of Dangerous 

Drugs that the Coast Guard alleged: 

1. On 03/09/2006 Respondent took a random drug test. 

2. A urine specimen was collected by Tom Halcomb of Chem Chek, Inc. 

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

4. The urine specimen was collected and analyzed by using procedures approved 

by the Department of Transpofiation, 

A11 of the above four (4) allegations were admitted to by the Respondent in his 

Answer to this Complaint that was dated April It, 2006. The Complaint was so dated by 
the Investigating OEcer. The Respondent denied that Respondent's urine specimen 

subsequently tested positive for Cocaine Metabolites. 

The proposed order by the Coast Guard was revocation if they proved their case. 

Respondent admitted that he holds the identified Coast Guard issued credential. The 

Coast Guard offered three (3) witnesses who testified credibly under oath and eight (8) 

exhibits were admitted into evidence by the undersigned Judge. 

10's Exhibit 1 is a certified copy of Respondent's "Application for License as an 

Officer, Staff Officer, or Operator and for Merchant Mariner's Document". 

10's Exhibit 2 is a certified copy of the Urine Sample Collector, Tom Halcomb's 

credentials. 

10's Exhibit 3 is the Collector's copy of the "Federal Drug Testing Custody and 

Control Form" used on March 09,2006 and signed by Respondent. 

10's Exhibit 4 is an extract from the U.S. Federal Register dated March 7,2006, 

showing that the certified laboratory, Quest Diagnostics, Inc., of Irving, Texas, is 

certified by the U.S. agency, Substance Abuse and Mental Health Services 

Administration ('"SAMHSW. 

10's Exhibit 5 is the Litigation Package, also called the "Documentation 

Package", from Quest Diagnostics, Inc., of Irving, Texas, the scientific laboratory that 

analyzed the urine specimen donated by the Respondent on the date in question. 

10's Exhibit 6 is a certified copy of the Medical Review Officer ("MRO), Dr. 

William G. Franklin's credentials. 

10's Exhibit 7 is the MRO's copy of the "Federal Drug Testing Custody and 

Control Form". 

10's Exhibit 8 is the test results reported Erom the MRO to Respondent's marine 

employer reporting that Respondent had a positive test for cocaine metabolites. After the 
drug test was performed, it w-as found positive for cocaine metabolites in Respondent's 

urine sample. Respondent was and is employed by the Galveston Ferry System, by the 

State of Texas, Department of Transportation. 

The hearing was held on Tuesday, April 03,2007, commencing at 9:30 a.m., at 

the Houston trial-type Hearing Room. The Respondent was present together with his 

wffe and his other witnesses. These included the Reverend Charles Edward Wheat, as a 

character witness; his wife, Lillie Huhbard; and at least one more character witness. The 

Respondent did not submit his lists of witnesses and exhibits until Friday, March 30, 

2007. 

Respondent's Exhibit 1 is a letter of recommendation by Guy M. Moore MA. 

LPC, dated May 04,2006, regarding Willie Hubbard. The letter stated that he had the 

opportunity to meet with Mr. Hubbard in the counseling setting on two occasions and in 

addition to speaking with and meeting his wife, as well as talking to other persons 

involved in Mr. Hubbard's life regarding the likelihood of his dangerous drug use. From 

his opinion, Respondent has too much to lose to even consider dangerous drug use. 

Respondent's Exhibit 2 is a "Driver's Record Check Report - Summary". 

Respondent's Exhibit 3 is a letter from the University of Texas Medical Branch, 

in Galveston, Texas, stating Mr. Hubbard was treated for an Upper Respiratory Infection 

on March 07,2006, and was given a prescription for Tussionex which contains Codeine. 

This does not contain cocaine. 

Respondent's Exhibit 4 is a brief note of recommendation by friend John R. 

Shaw. 

Respondent's Exhibit 5 is a statement by Christine Rmirez-Mendoza, LCDC 

#8098, Substance Abuse Professional #0189. 
Respondent's Exhibit 6 is a list signed by the Respondent of a couple of 

medicines that Respondent took or were prescribed to him, Levaquin 500 mg tablet MCN 

and Tussionex Pennkinetic Susp MPI, and were filled on February 28,2006. The list was 

signed "Willie Hubbard". 

Respondent's Exhibit 7's first page is a photocopy of a pill bottle from a 

pharmacy. without stating the name of the medicine, but it shows it was issued to Willie 

Hubbard. The second page is another photocopy of something similar. The third page is 

another photocopy of a medicine bottle that partially reads ".. .PENNKTNETIC SUSP 

MPI". 

Respondent's Exhibit 8 is his leave record as of February 28,2006, from his 

employer. 

Respondent's Exhibit 9 is a photocopy of an A&A Drug & Alcohol Education. 

Texas Drug Offender Education Program Certificate of Completion for Respondent 

Willie J. Hubbard. 

Respondent's Exhibit 10 is a Texas Department of Transportation form signed by 

the Respondent and a Substance Control Officer on March 15,2006. The subject is 

"Request for retest of the donor urine specimen". 

Respondent's Exhibit 11 consists of fourteen (14) pages for Willie Hubbard, 

Galveston Crewmember, showing Respondent had negative drug tests starting back in 

July 21,1993 through January 30,2007, but he did have a positive drug test of cocaine 

use on the date in question, Mach 09,2006. afier a random drug test. This was the only 

positive of several drug tests that he had passed otherwise but this was the one in his own 

records that shows he was found to have a positive of his urine specimen taken on March 

09,2006, the date in question. The pages are Respondent's record of drug tests with his 
Galveston Ferry Boat's employer showing he did have a positive for cocaine use &er a 

random drug test, on the test date of March 09,2006. 

Respondent's Exhibit 12 is Respondent's positive drug test from Respondent's 

urine collected on March 09, 2006. 'I'he positive results were reviewed by Dr. William 

Franklin, the Medical Review Officer ("MRO). The MRO received date was March 13, 

2006 and the MRO reporting date was March 15,2006. The urine specimen was tested 

by Quest IG Scientific Laboratory. The laboratory received date was March 11,2006 and 

the lab reported date was March 12,2006 for accession number 587898D. The date 

tested was March 12,2006. The date scheduled was March 09,2006. The dated 

collected was March 09,2006. The date tested was March 12,2006. The date reviewed 

was March 15,2006 with results positive for cocaine use by Respondent. 

Respondent's Exhibit 13 is emails between 10 LT Jerry D. Butwid and Joe 

Lindsey, of the Texas Department of Transportation, concerning the "MRO Retum to 

Work Letter". 

I find the three (3) Investigating Officer's witnesses who testified under oath to be 

credible. Namely the Specimen Collector, Mr. Tom Halcomb, in that he attested to a 

proper collection of Respondent's urine sample and a chain of custody as well as 

adherence to 49 CFR Part 40, in regards to the Respondent's urine sample collection 

procedures. 

The Lab Director, Harold H. Miller, of Quest Diagnostics, Inc., credibly verified 

the lab's U.S. SAMHSA certification, as well as the testingas chain of custody and the 

carehl adherence to the applicable laws including 49 CFR Part 40, in regards to urine 

testing procedures. 

The MRO, Dr. William G. Franklin, attested to the proper chain of custody and 

the accuracy of the lab tests results. Dr. Franklin reported a positive test, as well as did 
the laboratory. This was after this Medical Review Officer reviewed and examined the 

urine specimen collection documents and the laboratory's documents and final results. 

FINDINGS OF FACT 

The Findings of Fact are based upon a thorough and careful analysis of the entire 

hearing record considered as a wl~ole, including documentary evidence and witnesses' 

testimonies. 

1. At all relevant times herein mentioned and specifically on or about the date of the 

Respondent's urine sample collection, March 09,2006, Respondent was the 

holder of a U.S. Coast Guard issued MMD, a U.S. Merchant Mariner's 

Document, issued to him by the U.S. Coast Guard. Respondent served in the U.S. 

Merchant Marine and was employed by the Ferry System, in the Galveston area, 

by the State of Texas Department of Transportation and had been working for 

them for many years. (Respondent's testimony and exhibits). 

2. The Respondent's urine sample collection process begins with the integrity of the 

collection site where the sink and toilet are separate. There is bluing of the toilet 

water to eliminate or make obvious to a trained collector's eyes any sources of 

contarnination of Respondent's wine sample. Tbe collector requested from this 

donor of the urine specimen a valid photo identification and social security 

number. The Respondent then chooses a cup for his urine sample and is 

instructed to remove extra clothing that may contain an adulterant, such as in a 
vial or bottle. Afterwards the collector writes the Respondent's social securitl 

number on the "Custody Collection and Control Form" and secures and seals the 

Respondent's urine specimen cups with tamperproof evidence tape. 

3. Each "Custody and Control Fond' contains a unique identification number, which 

is recorded on the tamperproof tape. The Respondent was directed to write the 

date of collection and Respondent's initials on the tape on both bottles of his urine 

samples. 

4. After the Respondent gave the urine sample to the trained samples collector, the 

collector checks the temperature of the specimen to ensure that the sample is 

between 90" and 120" degrees Fahrenheit. This is the normal temperature range 

for human urine when measured within four (4) minutes of its production. Once 

the collector determines the sample is within the accepted normal temperature 

range, the specimen is "split" or divided into two (2) containers or bottles. 

Sometimes this is referred to as a "split sample". Both sealed urine containers of 

Respondent's urine sample were placed into a transport bag for direct delivery to 

the certified testing laboratory. 

5. The Lab Director for Quest Diagnostics, Inc. is Dr. Harold Miller, the Director for 

this inspected and certified testing laboratory for many years. Dr. Miller offered 

credible sworn expert testimony regarding laboratory procedures performed on 

Respondent's mine sampie or specimen in accordance with the applicable statutes 

and reguiations ~ncluding 49 CFR Part 40, the drug testing rules and regulations. 

6. Quest Diagnostics, Inc. is a tested, certified and registered laboratory with the 

U.S. Department of Health and Human Services and its subsidiary U.S. agency, 
I:' 

%, ,.,, .. 

U.S. Substance Abuse and Mental Health Services Administration ("SAMHSA") 

certified, as evidenced in the publication of the U.S. Federal Register. 

7. At the drug testing laboratory, the urine specimens were kept in a secured 

environment, accessed only by a special key card, in a locked refrigerator. 

8. The said laboratory's first or initial test of the Respondent's urine specimen is 

often called or referred to as an imunoacsay test (semi-quantitative result 

concluding whether specimen is positive or negative for drugs) performed on a 

spectrometer that is calibrated on each day of use. 

9. Respondent's urine drug test resulted in a positive for cocaine metabolites on the 

Respondent's urine sample collected on March 09,2006. Respondent's urine 

specimen samples tested positive for cocaine metabolites by both required tests, 

including the second required test, the Gas Chromatography, Mass Spectrometry 

test. The positive results and documents were then forwarded to the Medical 

Review Officer ("MRO). 

10. Wben the initial test was positive for cocaine metabolites, a second confirmatory 

test, also known as the Gas Chromatography, Mass Spectrometry ("GCIMS") test 

is and was performed, and also resulted in a positive result for cocaine use by 

Respondent. 

I 1. The confirmatory test cutoff measurement for a negative test is fifteen (15) 

nanograms per milliliter. 

12 The second confirmatory test also confirmed the presence of cocaine metabolites 

in Respondent's urine sample, which exceeded the minimum of the fifteen (15) 

nanograms per rnitliliter needed for a positive test. 
13. The five (5) dangerous drugs usually tested for are marijuana metabolites, cocaine 

metabolites, amphetamine, opiate metabolites and phencyclidine. See 49 CFR 

40.85. 

14. The MRO is this case is Dr. William G. Franklin, from Victory Medical Go., 

Austin, Texas, who testified credibly to the chain of custody and accuracy of the 

lab test results. 

15. Respondent testified in his own behalf and called his wife, Lillie Hubbard, to 

testify in his behalf. He also had two (2) other character witnesses, the Reverend 

Charles Wheat and Zeltee Gamble. None of these witnesses testified credibly that 

they were always with Respondent twenty-four (24) hours and seven (7) days 

every week. 

16. The testimony and the evidence provided at the hearing and admitted into 

evidence by the Judge proved by a preponderance of the credible, substantial and 

probative evidence that the Respondent, Mr. Willie Hubbard, was a user of a 

dangerous drug, namely cocaine, in accordance with 46 CFR Part 16, including 

Part 16.201(b), on and about the day he was tested by giving his urine samples or 

specimens. 

17. The Respondent did not provide any convincing or credible evidence to show that 

his tests of his urine samples were not a positive test for cocaine. Respondent 

claims that he was under medication: however, there ~ias no credible medical 

evidence or testimony to prove that the medications he listed as taking would test 

positive for cocaine use. The Medical Review Officer did not rule or testify that 

these medications would produce a positive cocaine test. 
18. The Respondent's witnesses testified to his character; however, none of them 

claimed to being around Respondent twenty-four (24) hours a day, seven (7) days 

a week, continuously. 

19. It was proven by the 10s that Respondent took a random drug test. The 

Respondent's urine specimen was collected by a certified and experienced urine 

specimen collector. The Respondent and Collector signed and dated the proper 

"Federal Drug Testing Custody and Control Form". The Respondent's urine 

specimen was properly collected and analyzed by procedures approved by the 

U.S. Department of Transportation, at the tested and certified laboratory. The 

Respondent's urine specimen or sample subsequently tested positive for cocaine 

used by the Respondent. The laboratory's finds were supported by the Medical 

Review Officer's credible testimony. 

20. The 10s called to testify three (3) qualified, credible witnesses that testified that 

the chain of custody was proper and not broken and that the regulations 

mentioned in 49 CFR Part 40 were followed carefully at all times. The I0 stated 

that the government was seeking revocation of Respondent's U.S. Coast Guard 

issued U.S. Merchant Mariner's Document (or "MML)"), in accordance with 46 

USC Section 7704, especially including Section 7704(c). Official notice was 

requested by the 10s and was taken by the Judge of the Commandant's Appeal 

Decision 2617 ITURBEVILLE). 
ULTIMATE FINDINGS OF FACT AND CONCLUSIONS OF LAW 

1. At all relevant times, the captioned Respondent was the holder of a U.S. Coast Guard 

issued U.S. Merchant Mariner's Document, which Respondent admitted to in his 

Answer to the Investigating Officer's ("10's") Complaint. 

2. Respondent and the subject matter of this hearing are properly within the jurisdiction 

vested in the U.S. Coast Guard under 46 USC Chapter 77; 46 USC 7704(c); 46 CFR 

Parts 5 and 15; 33 CFR Part 20; and the U.S. Administrative Procedure Act, 5 USC 

551-559. 

3. On March 09,2006, Respondent participated in a drug test in which he provided his 

urine sample which was tested and proved positive for cocaine metabolites. 

4. Respondent's positive drug test created the proper and logical conclusion that 

Respondent is a user of a dangerous drug, namely cocaine. 46 CFR 16.201(b). 

5. Respondent failed to rebut the findings and conclusions that Respondent is a user of a 

dangerous drug, namely cocaine. 

6. The 10s proved by a preponderance of reliable, probative, substantial and credible 

evidence that Respondent was a user of or addicted to the use of a dangerous drug, 

namely cocaine. 

DISCUSSION 

A major purpose of Coast Guard Suspension and Revocation trial-type 

hearings is to promote safety of lives and properties at sea and in ports. 46 USC 7701. 

These hearings are remedial in nature and do not aEx criminal or civil liability. §&g 45 
CFR 5.5; Anpeal Decision 2639 IHAUCK) (2003). The U.S. Coast Guard Commandant 

delegated to U.S. Administrative Law Judges the authority to hear at trial-type hearings 

these cases and decide to dismiss or suspend or revoke a U.S. issued license, certificate or 

merchant mariner's document for proved violations arising under 46 USC 7703 and 

7704; 46 CFR Part 5. 

A U.S. Merchant Mariner's U.S. Coast Guard issued Merchant Mariner's License, 

Certificate of Regism, or Merchant Mariner's Document is subject to revocation upon 

proof to a U.S. Administrative Law Judge that the holder of such a document is a user of, 

or addicted to the use of a dangerous drug such as cocaine. 46 USC7704(c). See also 

Aoneal Decision 2634 (BARRETTA) (2002). "Congress enacted 46 U.S. Code 7704 

with the express purpose of removing those individuals possessing and using [dangerous] 

drugs from service in the United States merchant marine." Id. (Citing U.S. House 

Report No. 338,98" Cong., 1' Sess. 177 (1983)). 

To eliminate or minimize the use of dangerous drugs by U.S. merchant mariners, 

the Coast Guard chemical drug testing laws, regulations and mles require maritime 

employers to conduct drug testing, including pre-employment, periodic, random, serious 

marine incident and reasonable cause drug testing. See 46 CFR Part 16. The type of 

testing at issue in this trial-type hearing is a random drug test. Under the laws and rules, 

a marine employer must subject prospective employees and present employees to 

chemical drug testing prior to employment and also while employed. 46 CFR Part 16. 

Further, the marine employer's chemical drug testing program must be conducted in 

accordance uith applicable laws, statutes and regulations and Appeal Decisions. See 

generally 49 GFR Part 40; 46 GFR Part 16, including Section 16.11 3. If an employee 
fails the chemical drug test by testing positive for dangerous drugs, the individual is then 

presumed to be a user of a dangerous drug. 46 CFR 16.201Cb). See also Apned Decision 

2584 (SHAKESPEARE) (1997). Moreover, the maritime employer is then required to 

remove the employee from duties that directly affect the safe operation of the vessels and 

must quickly report the positive drug test results to the nearest U.S. Coast Guard Officer 

in Charge of a Coast Guard Marine Inspection Office or Marine Safety Office. 46 CFR 

16.201(c). 

Here, the 10s charged Respondent with use of or addiction to the use of a 

dangerous drug, namely cocaine, because he tested positive for cocaine metabolites in an 

employment sponsored drug test. They alleged Respondent violated 46 USC 7704(c) and 

its underlying regulations codified at 46 CFR Part 5. The Coast Guard 10s seek 

revocation of Respondent's U.S. Coast Guard issued MMD in accordance with 46 CFR 

5.569. A major issue for determination by the Undersigned Judge in this case is whether 

Respondent's positive drug test is the result of dangerous drug use of cocaine or innocent 

ingestion of cocaine. 

A. Burden of Proof 

The U.S. Administrative Procedure Act ("APA"), 5 USC 551-559, applies to 

Coast Guard Suspension and Revocation trial-type hearings before U.S. Administrative 

Law Judges. 46 USC 7702ja). The APA authorizes imposition of sanctions if, upon 

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

reliable, probative and substantial evidence. APA and 5 USC 556(d). Under Coast 

Guard procedural rules and regdations, the burden of proof is on the 10s. to prove the 
charges are supported by a preponderance of the evidence. 33 CFR 20.701,20.702(a). 

"The term substantial evidence is synony~nous with preponderance of the evidence as 

defined by the U.S. Supreme Court." Ap~eal Decision 2477 (TOMBARI) (1988). 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 

fhe] may fmd in favor of the party who has the burden to persuade the ljudge] of the 

fact's existence."' Concrete Pipe and Products of California. Inc. v. Construction 

Laborers Pension Trusi for Southern California, 508 U.S. 602,622 (1993) (citing & 

Winshio, 397 U.S. 358,371-72 (1970). (Harlan, J., concurring) (brackets in original)). 

Therefore, the 10s must prove by credible, reliable, probative and substantial evidence 

that Respondent more likely than not committed the violation charged. 

B. Prima Facie Case of Use of a Dangerous Drug, COCAINE 

The I0 must establish a prima facie case to prove the allegation of use of a 

dangerous drug. Apveal Decision 2603 (HACKSTAFF) (1993). First, the I0 must prove 

that respondent was the individual tested for dangerous drugs. Second, a showing must 

be made that respondent tested positive for dangerous drugs by a certified laboratory and 

contirrned by a Medical Review Officer ("MRO), thus failing the drug test. Third, the 

10 must prove the drug test was conducted in substantial compliance with 46 CFR Part 

16, @. Once these requirements are satisfied, the bwrcien of proof shifts to the 

Respondent who must produce persuasive evidence to rebut the positive drug test 

evidence. Id. If the respondent fails to rebut the evidence, the Administrative Law Judge 
must find the charges proved based upon the substantial evidence and the presumption. 

- Id. -- See also Appeal Decision 2592 (MASON) (1997). 

Here, the first test or the initial immunoassay test by the tested and certified 

laboratory concluded the Respondent's urine specimen was positive for cocaine 

metabolites. Moreover, the second or confirmatory test, known as the "Gas 

ChromatographyhMass Spectrometry ('GCIMS') test", also confirmed the presence of 

cocaine metabolites which tested positive. This was well above the minimum positive of 

fifteen (15) nanograms per milliliter. These two tests when combined are substantial 

evidence of the tested and certified laboratory's findings. The Laboratory Director, Dr. 

Hal Miller, testified that the amount of cocaine metabolites exceeded the cutoff or 

minimum level established in 49 CFR Part 40. The Medical Review Officer. Dr. William 

Franklin, received and verified the laboratory's initial two test results and confirmed the 

findings of the laboratofy. The MRO testified credibly that the medications that the 

Respondent was taking would not result in a positive for cocaine metabolites. The MRO 

did not discover any satisfactory medical explanation for the Respondent's positive drug 

test for cocaine metabolites. The laboratory's two tests and the MRO's testimony all 

reported positive findings of cocaine use by the Respondent on the day Respondent 

provided urine samples to be tested for his marine employer, the State of Texas and the 

Galveston Ferries System. 

It is found that the Coat Guard 10s did establish and prove a prima facie case of 

dangerous drug use of cocaine. Respondent, identified by his signature on the ''Drug 

Testing and Control Form'' with his date of birth, social security number, lab accession 

number, initials and date evidenced on the "Custody and Control Form" in accordme 
with 46 CFR Part 40 was the individual who provided the urine specimen or sample 

tested for drugs in this case. Furthermore, Respondent did not dispute that he was the 

individual who participated in this drug test at issue in this matter. 'fie urine collected 

subsequently tested positive for cocaine metabolites; thus Respondent failed the drug test. 

This included two (2) positive drug tests by the certified laboratory, and its Dr. Hal 

Miller, and was confirmed by the Medical Review Officer, Dr. William Franklin. 

SANCTION 

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

U.S. Administrative Law Judge ("ALP). A- (1984). 

Title 46 of the Code of Federal Regulations Part 5 Section 569 provides the Table of 

Suggested Range of Appropriate Orders ("Table") for various offenses. The purpose of 

the Table is to provide guidance to the ALJ and promote uniformity in orders rendered. 

Appeal Decision 2628 (VILAS) (2002), afd by National Transportation Safety Board 

Docket ME-1 74. 

Here, the Investigating Officers proved and the Undersigned Judge found that the 

Respondent used a dangerous drug. Furthermore, Respondent did not provide or 

demonstrate proof or evidence of cure of drug use by substantial involvement in the drug 

cure process or a drug cure program. Generally this would be done by Respondent's 

evidence of enrollment in an acceptable drug rehabilitation program acceptable to the 10s 

in the Galveston office, since this positive finding by the laboratory and by the Medical 
Review Officer. Therefore, I am precluded or prevented from issuing an order less than 

REVOCATION by the applicable law. 

ORDER 

IT IS HEREBY ORDERED that Respondent's said U.S. Merchant Mariner's 

Document, all duplicates and all other valid unexpired Coast Guard documents, licenses, 

certificates and authorizations whatsoever are hereby REVOKED. This revocation 

WILL BE STAYED OR DELAYED upon a filing by the Respondent within thirty (30) 

days after receipt of this Decision and Order by Respondent that the Respondent has 

notified LT Jerry Buhvid or the Investigating Officers at the U.S. Coast Guard Marine 

Safety Unit Galveston, P.O. Box 0149, Galveston, Texas 77553-0149, telephone: 409- 

766-541 1 and fax: 409-766-5420 that Respondent has enrolled to enter or entered into a 

Coast Guard Investigating Officers' approved drug rehabilitation program with the 

specific intent to complete the requirements of drug use cure, in accordance with 46 U.S. 

Code Section 7704(c) and the Appeal Decision 2535 (SWEENEY] (1992). 

The Respondent's U.S. Merchant Mariner's Document, all duplicates and all 

other Coast Guard licenses whatsoever will then be SUSPENDED and deposited with the 

Senior Investigating Officer at the US, Coast Guard Marine Safety Unit Galveston for a 

period of at least twelve (12) months. it is to be deposited for a period of at least twelve 

(12) months to allow the Respondent time to complete the requirements of drug use cure 

and rehabilitation. 
Following Respondent's successfhl completion of cure, the Respondent's U.S. 

Merchant Mariner's Document, all duplicates and all other Coast Guard documents, 

licenses, certificates and authorizations whatsoever shall be subject to a twelve (12) 

month probation period whereby no charge relating to dfug possession or drug use under 

46 U.S. Code $7703 or § 7704 can be proved against the Respondent without violating 

this probation resulting in Revocation of all Coast Guard issued credentials issued to 

Respondent. 

OTHERWISE, if Respondent does not so enroll in drug use rehabilitation within 

thirty (30) days after receipt of this Decision and Order by Respondent, the Respondent's 

U.S. Merchant Mariner's Document and all duplicates and all other valid and unexpired 

Coast Guard documents, licenses, certificates and authorizations whatsoever are 

REVOKED OUTRIGHT. 

PLEASE BE ADVISED that the service of this Decision on Respondent will 

serve as notice to Respondent of his right to appeal. The rules and procedures governing 

administrative appeals are set forth in 33 CFR 20.1001 - 20.1004. (Attachment A). 

Thomas E. P, McElligott 

U.S. Administrative Law Judge 

Done and dated on this 17' day of October, 2007 

Houston, Texas 
DOCKET NUMBER CG S&R 06-0179 

ATTACHMENT A 

33 C.F.R. PART 20 

SUBPART J 

APPEALS 

# 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 sww 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. 

3 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, -- 

(I) If the hearing ws 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. 

5 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 

Adrniniskative 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 fortb the appellant's specific objections to the 

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

(i) Basis forth e 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 

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

(3) The appellate hrief 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. 

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

after service of the appellate hrief. 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 hrief, 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. 

4 20.1004 Decisions on appeai. 

(a) The Commandanl shall review the record on appeal to deternine whether the 

AiJ committed error in the proceedings. and whether the Commandant should 

affirm, modify, or reverse the .&J'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 oftbe decision on each party and interested person,