UNITED STATES OF AMERICA

U.S. DEPARTMENT OF HOMELAND SECURITY

UNITED STATES COAST GUARD

_________________________________

UNITED STATES COAST GUARD

Complainant

vs.

JUSTIN SCOTT ROBERTS 

Respondent

_________________________________

Docket Number 2011-0300

Enforcement Activity No. 4048000

DECISION AND ORDER

Date Issued: January 09, 2012

Issued by: Hon. Bruce Tucker Smith

 Administrative Law Judge

Appearances:

For the Coast Guard;

CWO Quinn D. Quaglino, IO 

LT Parris Stratton, IO 

U.S. Coast Guard Sector New Orleans

For the Respondent;

Justin Scott Roberts, Pro se
I. PRELIMINARY STATEMENT

The United States Coast Guard Sector New Orleans (Coast Guard) initiated the instant 

administrative action seeking revocation of Respondent Justin Scott Robert‘s (Respondent) Coast 

Guard-issued Merchant Mariner‘s Credential (MMC). The instant action is brought pursuant to the legal 

authority codified at 46 USC §7703(1)(B) and 46 CFR §5.27 (Misconduct). 

On June 30, 2011, the Coast Guard filed an original Complaint alleging that on May 26, 2011, 

Respondent was directed by his then employer, John W. Stone Oil Distributor, LLC to submit to a 

reasonable cause drug test by providing a urine specimen. The Coast Guard further alleged Respondent 

failed to provide the requisite amount of urine, as specified by 49 CFR Part 40, and that Respondent was 

not afflicted with any valid medical condition that would warrant his inability to produce urine. 

According to the Coast Guard‘s specifications, ―Respondent‘s failure to provide a specimen of adequate 

quantity without a valid medical condition is a  ̳refusal to test‘ by 49 CFR [§]40.191(a)(5).  ̳Refusal to 

test‘ is an act of Misconduct. . . .‖ Based upon the foregoing allegations, the Coast Guard sought 

revocation of Respondent‘s credential as an appropriate sanction. 

On November 9, 2011, this matter came on for hearing in New Orleans, Louisiana, in the ALJ 

Courtroom, Hale Boggs Federal Building. The proceeding was conducted in accordance with the 

Administrative Procedure Act (APA), as amended and codified at 5 USC §§551-59, and the Coast 

Guard procedural regulations set forth at 33 CFR Part 20. Coast Guard Investigating Officers (IOs) 

CWO Quinn D. Quaglino and LT Parris Stratton appeared on behalf of the Coast Guard; Respondent 

appeared on his own behalf.1 

Both parties appeared, presented their respective cases, and rested. Seven witnesses testified as 

part of the Coast Guard‘s case-in-chief and the Coast Guard offered 33 exhibits into evidence, 22 of 

 

1 The court would note that its staff attempted to communicate with Respondent on numerous occasions before the 

hearing; however, Respondent failed to return court staff‘s messages. Notably, court staff sought to provide 

Respondent with the opportunity to engage pro bono, i.e. free, legal counsel. Despite court staff‘s multiple offers, 

Respondent failed to take advantage of this opportunity. 
which were admitted. Respondent testified on his own behalf and offered two exhibits into evidence, 

both of which were admitted.2

The parties were afforded the opportunity to make closing arguments; thereafter, the court closed 

the administrative record. 

II. FINDINGS OF FACT/CONCLUSIONS OF LAW

 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 Justin Scott Roberts was the 

holder of, and acting under the authority of, a Coast Guard-issued Merchant 

Mariner‘s Credential (credential). (CG Ex. 1).

2. On or about May 26, 2011, Respondent Justin Scott Roberts was employed by, and 

was on duty on behalf of, John W. Stone Oil Distributor, LLC as a Tankerman. (CG 

Ex. 18). 

3. At all relevant times mentioned herein, John W. Stone Oil Distributor, LLC was a 

marine employer. 46 CFR §16.105. 

4. As a ―marine employer‖ John W. Stone Oil Distributor, LLC was obliged to ―require 

any crewmember engaged or employed on board a vessel owned in the United States 

that is required by law or regulation to engage, employ or be operated by an 

individual holding a credential issued under this subchapter, who is reasonably 

suspected of using a dangerous drug to be chemically tested for dangerous drugs.‖ 46 

CFR §16.250(a). 

5. John W. Stone Oil Distributor, LLC‘s decision to drug test Respondent Justin Scott 

Roberts was ―based on a reasonable and articulable belief that the individual has used 

a dangerous drug based on direct observation of specific, contemporaneous physical, 

behavioral, or performance indicators of probable use.‖ This belief was based upon 

the observations of the individual by two John W. Stone Oil Distributor, LLC 

employees, Ben A. Sasso and Chester ―Chip‖ Brewer 46 CFR §16.250(b). (Tr. at 125 

– 150). 

6. On or about May 26, 2011, two John W. Stone Oil Distributor, LLC employees, Ben 

A. Sasso and Chester ―Chip‖ Brewer, personally observed Respondent Justin Scott 

Roberts ―talking faster than normal . . . excited‖ and acting ―very hyper,‖ which was 

 

2 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.).
atypical of the behavior they normally witnessed of Respondent Justin Scott Roberts. 

(Tr. at 125, 150). 

7. On or about May 26, 2011, two John W. Stone Oil Distributor, LLC employees, Ben 

A. Sasso and Chester ―Chip‖ Brewer, personally observed that two of the water tanks 

that Respondent was charged with maintaining were filled to the point of overflowing 

such that they could not approach the dock. (Tr. at 121, 149). 

8. Respondent‘s marine employer, John W. Stone Oil Distributor, LLC, possessed a 

reasonable and articulable belief that Respondent has used a dangerous drug(s) on or 

about May 26, 2011. This belief was based on direct, personal observation, by 

through the persons of Ben A. Sasso and Chester ―Chip‖ Brewer, of specific, 

contemporaneous physical, behavioral, or performance indicators of probable drug 

use by Respondent Justin Scott Roberts.

9. On or about May 26, 2011, Respondent Justin Scott Roberts was properly directed by 

his marine employer, John W. Stone Oil Distributor, LLC, to submit to a reasonable 

cause or reasonable suspicion drug test on the basis of two eyewitness accounts, by 

Ben A. Sasso and Chester ―Chip‖ Brewer. (Tr. 173-174; CG Ex. 14, 29, 30). 

10. On or about May 26, 2011, Respondent Justin Scott Roberts was permitted to drink 

up to forty ounces of liquid in order to stimulate his ability to produce a quantity of 

urine sufficient for testing. (Tr. at 185-86; CG Ex. 31, 32).

11. On or about May 26, 2011, Respondent Justin Scott Roberts was afforded four 

opportunities to submit a urine specimen to Glen Zetsch, a duly qualified and certified 

collection agent. (Tr. 185-87; CG Ex. 14, 31, 32). 

12. On or about May 26, 2011, Respondent Justin Scott Roberts was unable to produce 

any urine during four separate attempts to do so within the allotted time. (Tr. 185-87; 

CG Ex. 31, 32).

13. As a marine employee, Respondent Justin Scott Roberts is deemed to have ―refused 

to take a drug test‖ because of his failure to provide a urine specimen and/or failure to 

provide a sufficient specimen of urine without an adequate medical explanation for 

such failure. 49 CFR § 40.191(a)(5). 

14. Use of over-the-counter decongestants was not an acceptable medical reason for 

Respondent Justin Scott Roberts‘ inability to produce urine pursuant to the American 

Association of Medical Review Officers/ DOT guidelines. (Tr. at 212-213).

15. Respondent Justin Scott Roberts failed to provide an adequate medical explanation 

for his inability to submit to chemical testing on May 26, 2011. (Tr. at 196-214; CG 

Ex. 33). 

16. By virtue of Respondent‘s refusal to submit a urine specimen when lawfully directed 

by his marine employer, Respondent committed an act of Misconduct. 46 CFR §5.27.
III. SUMMARY OF DECISION

The instant matter is governed by the interplay of 46 USC §7703(1)(B), 46 CFR §5.27 

(Misconduct) and 46 CFR Part 16, Subpart B. The statute provides that a mariner‘s document may be 

suspended or revoked if that mariner has committed an act of Misconduct. The regulation, in turn, 

defines ―Misconduct‖ as ―human behavior which violates some formal, duly established rule. Such rules 

are found in, among other places, statutes, regulations . . . . It is an act which is forbidden or a failure to 

do that which is required.‖ 46 CFR §5.27. Herein, Respondent is charged with refusing to test, an act of 

Misconduct, as a result of his alleged inability to produce a urine specimen for a reasonable suspicion 

drug test on May 26, 2011, which was lawfully ordered by his maritime employer pursuant to 46 CFR 

§16.250. 

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

probative and credible evidence that Respondent Justin Scott Roberts committed an act of Misconduct 

by his refusal to submit a urine specimen in response to his marine employer‘s lawful directive without 

an adequate medical explanation for such inability. 

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 

 

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.‖
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 Coast Guard proved that at all relevant times mentioned herein 

Respondent Justin Scott Roberts was the holder of a Coast Guard-issued Merchant Mariner‘s Credential 

(credential) and that he was acting under the authority of that credential when he was directed to submit 

to a reasonable suspicion drug test by his marine employer. 

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 

(APA), 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 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)).

D. Discussion of the Evidence

1. Marine Employer Had Reasonable Cause to Require Respondent to Submit to 

Chemical Testing

Pursuant to 46 CFR §16.250(a), a ―marine employer shall require any crewmember engaged or 

employed on board a vessel owned in the United States that is required by law or regulation to engage, 

employ or be operated by an individual holding a credential issued under this subchapter, who is 

reasonably suspected of using a dangerous drug to be chemically tested for dangerous drugs.‖ 

There is no dispute herein that John W. Stone Oil Distributor, LLC is a ―marine employer‖ as 

that term is defined at 46 CFR §16.105. Similarly, there is no dispute herein that on May 26, 2011, 

Respondent was a crewmember, specifically a Tankerman, assigned to the S-24 (vessel identification 

number 642522), an inspected tank barge. Further there is no dispute herein that Respondent held a 

Merchant Mariner‘s Credential (credential) as required to work as a Tankerman aboard the S-24. 

A marine employer‘s decision to conduct a reasonable suspicion or reasonable cause drug test 

―must be based on a reasonable and articulable belief that the individual has used a dangerous drug 

based on direct observation of specific, contemporaneous physical, behavioral, or performance 
indicators of probable use. Where practicable, this belief should be based on the observation of the 

individual by two persons in supervisory positions.‖ 46 CFR §16.250(b). 

The court finds the testimonies of Ben A. Sasso and Chester ―Chip‖ Brewer particularly 

persuasive, inasmuch as both personally witnessed Respondent‘s behavior and mannerisms on May 26, 

2011. The testimony of Chester ―Chip‖ Brewer, head of safety and security for Respondent‘s marine 

employer was of exceptional value to the court. (Tr. at 144). Brewer‘s prior work experience included 

multiple positions within uniformed law enforcement, including his service on a drug task force. (Id.). 

Brewer‘s educational background includes in excess of 160 hours of education and training in 

observation of individuals under the influence of drugs. (Tr. at 167-168). In addition to his education 

and training, Brewer has first-hand experience as a law enforcement officer interacting and observing 

individuals under the influence of both legal and illegal substances. (Tr. at 168). Thus, Brewer‘s 

observations and testimony were of particular value to the court.

Both Sasso and Brewer testified that on May 26, 2011, they were present at a John W. Stone Oil 

Distributor, LLC facility in Davant, Louisiana. Both men testified that they each observed Respondent, 

―talking faster than normal . . . excited‖ and ―very hyper,‖ which was atypical of the behavior they 

normally witnessed of Respondent. (Tr. at 125, 150). 

Additionally, Sasso and Brewer testified that upon their arrival to the facility, two of the water 

tanks that Respondent was charged with maintaining, were filled to the point of overflowing such that 

the men could not approach the dock.4 The flooded tanks strongly suggest Respondent‘s inattentiveness 

to the matters under his care.

Both witnesses also described Respondent‘s bizarre behavior involving his incessant and 

inappropriate use of bug spray. (Tr. at 150 – 151, 125 – 126). 

 

4 Brewer further testified he found Respondent‘s behavior to be out of character given, ―the water overflowing, the way 

[Respondent] was acting . . . , wouldn‘t make eye contact with me that much, very, very nervous, very hyper and [the two 

different barrels of oil for a customer].‖ (Tr. at 153). 
Brewer testified that he based his decision to direct Respondent to submit to a reasonable 

suspicion drug test upon the totality of Respondent‘s actions. (Tr. at 171, 173). In accordance with 46 

CFR §16.250(c), Brewer, on behalf of the marine employer, then properly directed Respondent to 

submit to drug testing and informed him that he needed to submit a specimen within the next three 

hours. (Tr. at 173-174).

In Suspension and Revocation administrative matters, ―the determination as to whether 

reasonable suspicion or reasonable cause exists to support a request for the administration of 

chemical testing [of a marine employee] is a factual determination [to be] made by the ALJ 

based upon all the evidence available.‖ Appeal Decision 2672 MARSHALL (2007) (citing 

Appeal Decisions 2625 ROBERTSON (2002); 2624 DOWNS (2001)). 

―Articulating precisely what  ̳reasonable suspicion‘ . . . mean[s] is not possible. [It is a] 

commonsense, nontechnical conception[] that deal[s] with  ̳the factual and practical 

considerations of everyday life on which reasonable and prudent men, not legal technicians, 

act.‘‖ Ornelas v. U.S., 517 U.S. 690, 696 (1996) (quoting Illinois v. Gates, 462 U.S. 213, 

231(1983) (internal citations omitted)). Reasonable suspicion is a ―fluid concept . . . that takes 

[its] substantive content from the particular context . . . in which [it is] being assessed. Id. (citing 

Gates, supra at 232.)

Therefore, based upon all of the available evidence and circumstances, the court specifically 

finds that Respondent‘s marine employer, through the direct, personal observations of Messrs. Sasso and 

Brewer, had reasonable cause to direct Respondent to submit to chemical testing and so ordered him to 

comply. 

2. Respondent’s Refusal to Test

Pursuant to 49 CFR § 40.191, a marine employee is deemed to have ―refused to take a drug test‖ 

for a variety of reasons, including failure to provide a urine specimen and/or failure to provide a 

sufficient specimen of urine without an adequate medical explanation for such failure. 
Glenn Sidney Zetsch, a certified Department of Transportation collector and employed by West 

Jeff Industrial Medicine Professional Drug Screening, testified that on May 26, 2011, he was called to 

conduct a reasonable suspicion drug test at the John W. Stone Oil Distriubtors, LLC facility in Davant, 

Louisiana. (Tr. 178-185). Zetsch testified that he arrived at the Davant facility at approximately 2:15 

p.m., whereupon he witnessed Brewer direct Respondent to submit to a drug screen. Upon entering the 

outbuilding aboard the dock, Respondent told Zetsch ―I just went to the bathroom. So, it‘s going to be 

awhile.‖ (Tr. at 185). Zetsch explained to Respondent that he could drink up to forty ounces of water, 

but that Respondent needed to at least make an attempt at providing a urine specimen. 

The facts reveal that after drinking water, Respondent made four unsuccessful attempts to 

provide a urine specimen within the allotted three hours. (Tr. at 186-187).

Respondent questioned Zetsch about the consequences of his inability to produce a specimen. 

Zetsch responded, telling Respondent that he would need a valid medical reason, approved by a Medical 

Review Officer (MRO), explaining why he was unable to urinate. (Tr. 186). 

The Respondent then replied, ―my wife said she the thought I got a medical problem, I think I 

got a medical problem.‖ However, Respondent did not elaborate on his alleged medical problem. (Tr. at 

193). The court also notes Zetsch testified that he observed Respondent to be ―very jittery‖ throughout 

his encounter with Respondent. (Tr. at 190). 

It is undisputed that Respondent failed to provide a urine specimen when directed. (Tr. at 188; 

see Complaint and Answer). 

Accordingly, Respondent is deemed to have ―refused‖ to take the requested drug test.

3. No Adequate Medical Reason Exists to Support Respondent’s Failure to Provide a Urine 

Specimen on May 26, 2011

Respondent contends he was unable to comply with his marine employer‘s lawful order, because 

of the side-effects of over-the-counter sinus medications he had taken. (Tr. at 223-24). In support of his 

contention, Respondent produced a letter from a Dr. Imseis. (Resp. Ex. A). In that letter, Dr. Imseis 
generally opined that over-the-counter decongestants could render a person unable to urinate. Dr. Imseis 

did NOT say that over-the-counter decongestants rendered Respondent unable to provide a urine 

specimen. Dr. Imseis‘ letter is noteworthy, because there is no indication Dr. Imseis ever conducted a 

medical examination of Respondent or performed any tests to determine whether such medications had 

any effect on Respondent. The court regards Dr. Imseis‘ letter to be a general expression of the potential 

impact of over-the-counter decongestants on the general human population—and not a specific medical 

opinion concerning this Respondent.

By contrast, the Coast Guard presented the testimony of Brian Michael Bourgeios, M.D., a 

certified Medical Review Officer (MRO). Dr. Bourgeios was asked to review Dr. Imseis‘ suggestion 

that Respondent‘s inability to provide a specimen was due to ingestion of over-the-counter 

decongestants.

Dr. Bourgeios found Dr. Imseis‘ assessment to be medically unacceptable. According to Dr. 

Bougeios‘ testimony, ―medications are not going to produce sufficient physiologic changes that you 

cannot provide 45 cc‘s, which is a small volume, after three hours, and at a 1.2-liter challenge.‖ (Tr. at 

201). Dr. Bougeois further testified that there was no medical foundation or support for the belief that 

―over-the-counter decongestants would produce a severe urinary retention syndrome to the point where 

you couldn‘t void after a fluid challenge for three hours.‖ (Tr. 212). 

Moreover, Dr. Bougeios testified that use of over-the-counter decongestants was not an 

acceptable excuse for inability to produce urine pursuant to the American Association of Medical 

Review Officers/DOT guidelines. (Tr. at 212-213). 

The court specifically finds Dr. Bougeios more credible than Dr. Imseis in regard to the medical 

facts and circumstances of this case.

Accordingly, the court finds Dr. Imseis‘ letter (Resp. Ex. A), to be of no probative value. 

According to Respondent‘s own testimony, Dr. Imseis did not perform a physical examination nor did 

he perform any sort of lab work that would support a finding that Respondent‘s failure to provide a urine 
specimen was caused by ingestion of over-the-counter decongestant medication. (Tr. at 223-224). The 

MRO also noted that Dr. Imseis‘ opinion was lacking in medical support. (Tr. at 199, 212-213).

In further support of his defense that over-the-counter medicines caused his inability to urinate, 

Respondent offered pages one and three from a four-page Internet website, ―drugs.com,‖ regarding 

―Advil Cold and Sinus‖ medications. (Resp. Ex. B). 

The court finds that Respondent‘s own Exhibit B impugns both his affirmative defense and his 

credibility. 

The facts reveal that Respondent was given a lawful directive by his marine employer to submit 

to a reasonable cause drug screen on May 26, 2011. 

At the hearing, Respondent testified that he didn‘t know that over-the-counter medications might 

affect his ability to provide a urine specimen until he went to see Dr. Imseis—after the May 26, 2011 

date when he failed to submit a urine specimen. (Tr. at 231). 

Respondent‘s Exhibit B, is, in fact, dated ―5/14/2011 8:58 AM,‖ -- twelve days before his May 

26, 2011 drug test. A portion of that Exhibit clearly reads: ―Side effects [of Advil Cold and Sinus] . . . 

such as: urinating less than usual or not at all.‖ Interestingly, Respondent had taken a pen and drawn a 

box around that language on the original copy of Respondent‘s Exhibit B. At the very least, 

Respondent‘s Exhibit B undercuts Respondent‘s assertion that he didn‘t know an over-the-counter 

medication might impair his ability to urinate until Dr. Imseis told him so—long after May 26, 2011.

Rather, the curious timing of these events raises the spectre that Respondent had a ―ready-made 

defense‖ in the event he was ever forced to submit to maritime drug testing. That Respondent 

coincidentally had a printed copy of a web page which discussed the potential side effects of an overthe-counter decongestant two weeks prior to his drug test, is entirely too convenient. These facts suggest 

Respondent may have knowingly used illegal substances and was prepared to assert a ―defense‖ well in 

advance of any drug test that he would have been subject to as a member of the maritime industry.
Based upon MRO/Dr. Bourgeois‘ highly credible testimony; Respondent‘s testimony and 

Respondent‘s own Exhibit B, the court finds Respondent‘s version of the facts to be lacking in veracity. 

Moreover, he has not sufficiently established an affirmative defense sufficient to overcome the Coast 

Guard‘s evidence. See 33 CFR §20.702. 

Accordingly, the court finds that Respondent failed to provide an adequate medical 

explanation for his failure to submit a urine specimen on May 26, 2011. 

4. Refusal to Submit a Urine Specimen for a Lawfully Directed Drug Screen 

Constitutes Misconduct

Pursuant to 46 CFR §5.27, ―Misconduct is human behavior which violates some formal, 

duly established rule. Such rules are found in, among other places, statutes [and] regulations, . . . 

. It is an act which is forbidden or a failure to do that which is required.‖ Id. By virtue of 

Respondent‘s refusal to submit a urine specimen, when lawfully directed to do so by his marine 

employer, Respondent committed an act of Misconduct. 

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 seeks 

revocation of Respondent‘s Merchant Mariner‘s credential. 

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, the Coast Guard seeks revocation, yet Table 5.569 lists the offense of 

―Refusal to Take Chemical Drug Test‖ and suggests a suspension of between twelve and twentyfour months. 

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 of Respondent‘s behavior vis this offense. 
Respondent’s Prior Records: The court notes that the Coast Guard did not produce any 

evidence that Respondent‘s credential had ever 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. However, the evidence, particularly Respondent‘s 

own testimony vis-à-vis the matters contained in his Exhibit B, strongly suggest Respondent‘s 

mendacity; that he may have been premeditating a ―defense‖ to mask illicit drug use long before 

the events of May 26, 2011. This evidence strongly suggests an aggravating factor of 

Respondent‘s Misconduct: premeditation. 

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 or fail to submit to chemical testing. In this case, the evidence suggests 

Respondent intentionally evaded providing a urine specimen when lawfully directed to do so.

The court finds that anything less than revocation herein would indeed encourage 

offenders to attempt to evade testing and would undermine the government‘s compelling interest 

in maintaining safety at sea. 

Accordingly, revocation of Respondent‘s credential is appropriate in this case.

VI. CONCLUSION

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

reliable, probative and credible evidence that Respondent Justin Scott Roberts committed an act 

of Misconduct by his refusal to submit a urine specimen in response to his marine employer‘s 

lawful directive and that he had no adequate medical explanation for such inability. 

WHEREFORE,
VII. ORDER

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

Complaint were PROVED and that Respondent‘s credential is REVOKED. The Coast Guard 

will undertake appropriate and timely measures to ensure retrieval of Respondent‘s credential. 

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

Administrative Law Judge

US Coast Guard

Date: 

January 09, 2012
ATTACHMENT A – EXHIBIT & WITNESS LIST

COAST GUARD EXHIBITS

1. Screen shot of Respondent Justin Scott Roberts‘ Coast Guard licensure records (1 page)

13. Certificate of Inspection issued to Tank Barge S-24 (3 pages)

14. Correspondence from Thomas J. Willis, Jr., Executive Vice-President of John W. Stone 

Oil Distributor, LLC, dated June 6, 2011 (1 page)

15. John W. Stone Oil Distributor, LLC Job Description for Tankerman, dated May 2003 (3 

pages)

16. John W. Stone Oil Distributor, LLC Drug and Alcohol Use & Testing, undated (2 pages)

17. John W. Stone Oil Distributor, LLC Employment Application number 2055 completed 

by Respondent Justin Scott Roberts, dated November 18, 2008 (2 pages)

18. Statement by Marisa Andrews of John W. Stone Oil Distributor, LLC, dated August 4, 

2011 (1 page) 

19. John W. Stone Oil Distributor, LLC Drug and Alcohol Policy-Other Substances, dated 

April 1, 2010, and signed by Respondent Justin Scott Roberts April 28, 2010 (1 page)

20. Employee Safety Incentive Guidelines dated January 1, 2011, and signed by Respondent 

Justin Scott Roberts January 18, 2011 (1 page)

21. Certificate of Completion of Drug and Alcohol Awareness Training issued to Respondent 

Justin Scott Roberts on March 24, 2010 (1 page)

22. Five question drug and alcohol awareness training quiz taken by Respondent Justin Scott 

Roberts on March 24, 2010 (1 page)

23. Color photograph of John W. Stone Oil Distributor, LLC Davant facility (1 page)

24. Color photograph of John W. Stone Oil Distributor, LLC Davant facility with walkway in 

foreground and office/berthing shown to the left (1 page)

25. Color photograph of John W. Stone Oil Distributor, LLC Davant facility with walkway in 

foreground and office/berthing shown to the left (1 page)

26. Color photograph of John W. Stone Oil Distributor, LLC Davant facility depicting 

potable water tank and entrance to office/berthing (1 page)

27. Color photograph of John W. Stone Oil Distributor, LLC Davant facility depicting 

switches to the potable water tank and deck of the S-24 (1 page)

28. Color photograph of John W. Stone Oil Distributor, LLC Davant facility depicting the 

deck of the S-24 (1 page)

29. Statement by Ben Sasso, dated June 10, 2011 (1 page) 

30. Statement by Chip Brewer, dated June 10, 2011 (1 page)

31. Statement by Glen Zetsch, West Jefferson Industrial Medicine, LLC, dated June 16, 2011 

(2 pages)

32. Copy 1 of the Federal Drug Testing Custody and Control Form completed on Respondent 

Justin Scott Roberts, dated May 26, 2011 (1 page)

33. Correspondence from Brian Bourgeois, M.D. to Tommy Willis of John W. Stone Oil 

Distributor, LLC, undated (1 page)

COAST GUARD WITNESSES 

1. Thomas J. Willis, Jr. 

2. Marisa Andrews

3. Susan Wheelis Oelkers

4. Ben Alexander Sasso 
5. Chester ―Chip‖ Brewer

6. Glen Zetsch

7. Brian Michael Bougeois, M.D. 

RESPONDENT EXHIBITS

A. Correspondence by Dr. Imseis

B. Print results from drugs.com on ―Advil Cold and Sinus‖ dated 5/14/2011 at 8:58 AM 

(2 pages)

RESPONDENT WITNESSES

A. Justin Scott Roberts
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.