UKITED STATES OF AMERICA 

U.S. DEPARTMENT OF HOMELAND SECURITY 

UNITED STATES COAST GUARD 

UNITED STATES COAST GUARI) 

Complainant 

VS. 

JOEY R. BROUSSARD 

> Respondent. -4 ryr- L 

-. ...A 

:< 

.. ." 

Docket Number: CG S&R 06-0009 2 

CG Case No. 2554787 id - 

3 

DECISION AND ORDER - - - . . 

- .- 

cJ7 -3 

Issued: April 13.2007 

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

Apoearances: 

For Complainant 

LT John Luff and LTJG Andrew Preston, both stationed at the time at the U.S. Coast Guard 

Marine Safety Unit Morgan City, 800 David Drive, Morgan City, Louisiana 70380 

For Respondent 

Captain Joey R. Broussard, pro se 
PmLPMINARY STATEMENT 

The United States Coast Guard ("Coast Guard") initiated this administrative action 

seeking revocation of the merchant mariner's document and license issued to Joey R. Broussard. 

the respondent in this case ('Xespondent"). In a complaint dated January 5.2006, the Coast 

Guard alleged that Respondent committed Misconduct in violation of 46 U.S. Code ("U.S.C.'", 

7703(l)(b) and 46 Code of Federal Regulations ("CFR") 5,27, by refusing to take a reasonable 

suspicion drug test requested by his marine employer. The complaint was served personally 

upon the Respondent by one of the Investigating Officers ("10s") stationed at the same office in 

Morgan City, Louisiana. The complaint alleged that Respondent is the holder of a Merchant 

Mariner's License and Document. The factual allegations for Misconduct read as follows: 

"1. On 03 December 2005, Respondent was employed by International Boats, LLC. 

"2. A REASONABLE SUSPICION DRUG 1 ALCOHOL SCREEN WAS REQUESTED 

BY INTERNATIONAL BOATS, LLC ON 03 DECEMBER 2005. 

"3. The Respondent REFUSED to submit the requested sample." 

On January 6,2006, Respondent submitted a handwritten Answer to the complaint 

wherein he admitted the jurisdictional allegation, and denied the factual allegations stating "DID 

NOT REFUSE DRUGIALCOHOI, SCREEN". Respondent, in his signed Answer to the 

complaint, also checked the box indicating that he wished to be heard on the proposed order. 

An evidentiary hearing was held on September 27, 2006 at the United States Coast Guard 

Marine Safety Office in Morgan City, Louisiana. At the hearing, the Coast Guard offered the 

following exhibits which were admitted into evidence by the Administrative Law Judge: 

Investigating Officer's (10) Exhibit 1 is a letter from International Boats, LLC, of P.O. 

Box 1580, Larose, Louisiana 70373, dated December 15,2005. The letter was addressed to the 

Marine Safety Office (MSO) Morgan City, at 800 David Drive, Room 243, Morgan City, 
Louisiana 70380-1304, to rhe attention of the investigations Department. ir srates 1n paragraph 

one, ''Pursuant to provisions of 46 CFR, Parts 4,5, and 16, International Boats, LLC hereby 

notifies you that Joey Broussard . . . failed to show up to be tested for probable cause on 

December 3.2005 in accordance with the standard set forth in 49 CFR 40." The letter also gave 

Respondent's last known address and phone number and was signed by Kathy Dueene, HR / 

HSS&E Manager. 

I0 Exhibit 2 is a document entitled "SEPARATION NOTICE ALLEGING 

DISQUALIFICATION of Joey Broussard, with separation date of December 9,2005, date 

hired June 8,2004, and date last worked December 3,2005. The reason for leaving was checked 

"Discharge, (Fired)" and the explanation was "Broke company policy". The document is dated 

December 9,2005 and signed by a manager for the employer company. 

I0 Exhibit 3 consists of three (3) pages of the "MASTER BOAT LOGS" for the vessel 

involved. 

I0 Exhibit 4 consists of six (6) forms. The first page is the document entitled 

"ALCOHOL AND CONTROLLED SUBSTANCE TEST CONSENT", signed by the 

Respondent, applicant and employee, with his printed name, Joey Broussard, dated June 8,2004 

and witnessed by someone at the company for International Boat Rentals, Inc. The first 

paragraph of this document states, "I understand that as a condition of employment, I must 

voluntarily consent to and satisfactorily complete urine screening tests to determine the presence 

of certain substances and/or a breath, blood alcohol test to determine the presence of alcohol." 

The second paragraph states, "As a candidate for employment, I understand that the presence of 

unauthorized drugsimedications will disqualify me from further consideration from 

employment." 
The second page of 10 Exhibit 4 is entiried '"SUBSTANCE ABUSE POLICY. Again, it 

IS signed by the Respondent on June 8.2004. The first paragraph states. "INTERNATIONAL 

BOAT RENTALS, INC. strictly forbids the use of mood altering substances by employees while 

on the job. This includes the property of INTERNATIONAL BOAT KENTAI,S, INC. any of its 

customers, and any &ansportallon to or &om the job stte." 

The third page of I0 Exhibit 4 is entitled "ACKNOWLEDGEMENT FORM, and it is 

signed by Respondent Joey Broussard, with his printed name, a company representative's 

signature and dated June 8,2004, It states, "1 HAVE READ OR HAVE HAD READ TO ME 

THE CONTENTS OF THE COMPANY POLICY ON DRUGS AND ALCOHOL MISUSE 

PREVENTION. I FULLY UNDERSTAND AND FURTHER AGEE TO ABIDE BY THESE 

POLICIES AND PROCEDURES. I FURTHER UNDERSTAND DISCIPLINARY ACTION, 

UP TO AND INCLUDING TERMINATION, WILL BE TAKEN IF I AM FOUND TO BE IN 

VIOLATION OF THIS POLICY." 

The fourth page of 10 Exhibit 4 is entitled "APPENDIX A EMPLOYEE CERTIFICATE 

OF UNDERSTANDING AND AGREEMENT", signed by Respondent Joey Broussard, on June 

8,2004, containing Respondent's signature and printed name. The first paragraph states, "I, the 

undersigned, cedi& that I have read and understand INTERNATIONAL BOAT RENTALS, 

DIG. Policy Statement regarding Alcohol and drug Use and have received a copy of that policy." 

The fifth page of 10 Exhibit 4 is entitled "ACKNOWLEDGEMENT USCG AND NOTDOT POLICY". It is signed by Respondent Joey Broussard and a supervisor or witness on June 

8,2004. It reads: 

"By my signature below, I, (please print) hereby 

acknowledge that I have read (or it has been read to me) and understand the guidelines 

regarding compliance with the Department of Transportation U.S. Coast Guard 46 CFR 
Parts 4,5, 16 and Compliance with Dmg Free Act of 1988,41 U.S.C. 701 ET. SEQ. 1 

also understand that these policies wilt be left on display for any future references. 

"I agree to cooperate and abide by those policies and understand that any failure to do so 

on my pan may be grounds for removal from safety sensitive positions and/or 

termination." 

The sixth and last page of 10 Exhibit 4 is entitled ""ACICNOWLEDGMENT & 

CONSENT". It again shows the Respondent's signature and printed name, dated June 8, 2004. 

On the bottom of that form it reads, "Consent and authorization for disclosure to ExxonMobil of 

alcohol and drug test results and related information." 

I0 Exhibit 5 is entitled "International Boat Rentals, Inc. Safetv Orientation" This page 

has the personnel name written on top, Joey Broussard, and signed by Joey Broussard and dated 

June 8,2004. At the bottom it reads, "I hereby acknowledge that International Boat Rentals, Inc. 

office personnel have informed me of the following information." 

All five (5) of these exhibits were admitted into evidence by the U.S. Administrative Law 

Judge presiding at the trial-type hearing. 

The I0 called two witnesses who testified under oath. The first witness was Ms. Kathy 

Dufrene, a Human Resources/Safety Manager for International Boats, LLC, of Larose, 

Louisiana. She testified that the Respondent was presented with the company's drug and alcohol 

policies upon initial employment and that he signed the acknowledgement forms then indicating 

that be had read and understood the policy and would abide by its provisions as a condition of 

employment. She further testified that the Respondent violated the company's written drug and 

alcohol policies on December 03,2005 and that his employment was terminated as a result. 

The second witness was the Personnel Coordinator for International Boats, LLC, of 

Larose, Louisiana. Mr. Kelly Loupe. He testified that as the Respondent's Supervisor, he 

directed the Respondent to submit to chemical testing on December 03,2005 and that the 
Respondent d~d not comply ~7th this direction He further testified that the Respondent was 

employed as a Master of the Motor Vessel (MN) TIU'T'L COMMANDER, on December 03, 

2005. 

Respondent offered two exhibits which were admitted into evidence by the undersigned 

judge. 

Respondent Exhibit 1 is on the letterhead of Gulf Resource Management, a marine 

transportation company. It is entitled "Release of Information Form - 49 CFR Part 40 Drug and 

Alcohol Testing". The employer is International Boats Rentals, of Larose, Louisiana 70373, 

phone number 985-798-7066 and fax number 985-798-7619. 

Respondent Exhibit 2 is the same type of document from Gulf Resource Management, 

containing Respondent's signature and dated December 06,2005. Respondent Exhibit 2 states in 

the lower paragraph 3, "Did the employee refuse to be tested?" The answer is circled as "Yes". 

FINDINGS OF FACT 

1. At all relevant times herein mentioned and specifically on or about December 03,2005, 

Respondent was a holder in possession of a U.S. Coast Guard issued Merchant Mariner's 

Document and License Number 1013725 authorizing him to serve as a master of steam or 

motor vessels. (Tr 7-1 0). 

2. At all relevant times, Respondent was employed by International Boats, LLC, 

("International Boats" or "company") of Larose, Louisiana 70373. (I0 Ex 1, 3). 

3. International Boats operates the MN INIT COMMANDER, which bears official number 

601846. That vessel is required to have a licensed master and mate on board. (Tr 55- 

56). 
3. Milien Respondent was first hired by Inten~ationd Boats on or about Jme 8,2004, he 

signed the company's: a) Alcohol and Controlled Substance Test Consent form; b) 

Substance Abuse Policy; c) Acknowledgeinent Form; d) Appendix A: Employee 

Certificate of Undersanding and Agreement; e) Acknon~ledgemenr: USCC and NonDOT Policy; and fi the Acbowledgement and Consent form (collecti~~ely referred to as 

'-International Boats Substance Abuse Policy Agreements". (10 Ex. 4). 

5. By signing International Boats Substance Abuse Policy Agreements on June 8,2004, 

Respondent certified that he read, understood, and received a copy of company's drug 

and alcohol policy; agreed to submit to drug and alcohol testing (including random 

testing); and acknowledged that he understood that disciplinary action, including possible 

termination, could result if the presence of prohibited drugs or alcohol is detected 

following urine, breath, or blood alcohol screening or testing. (a,; Tr. 29-35). 

6. Ms. Cathy Dufrene, human resources and safety manager for International Boats went 

over the company's drug and alcohol policy with Respondent when he was first hired, on 

or about June 8,2004. (10 Ex. 5; Tr. 36-38). 

7. In late 2005, International Boats received two separate reports of Respondent's alleged 

drug use or abuse: one report was received from an employee working on the vessel and 

the other report was received from a customer. (Tr. 44-41, 52-54, 57, 66-67). 

8. At some point in time in December 2005, Mr. Jared Chaisson, personnel manager for 

International Boats, confronted Respondent and Respondent opted to be relieved of duty. 

(Tr. 54, 57-58). 

9. international Boats believed that request was for temporary relief of duties. (Tr. 579. 
10 On December 03,2005, Respondent was servmg as master on board the MiV miT 

COMMANDER. (I0 Ex 3). 

l I. On or about December 03,2005, upon his supervisor's request, Mr. Kelly Loupe, 

personnel coordinator for International Boats talked to Respondent on the telephone, he 

directed Respondent to come directly to the office Erom the vessel, MN INIT 

COMMANDER, and he directed Respondent to undergo a urine drug screen test to 

alleviate the company's concerns regarding Respondent's alleged hg use. (Tr. 50, 58- 

61, 66). 

12. Respondent agreed to come in to speak with International Boats personnel and submit to 

drug testing but he never showed up at the office on December 03,2005. (Tr. 42, 61). 

13. On December 04,2005, Respondent telephoned International Boats and provided the 

company his notice of termination. (g.). 

14. On December 06,2005, Respondent accepted employment with Gulf Resource 

Management, which is a company that is located closer to his home and which offers a 

better salary than International Boats. (Resp't Ex. 1, 2; Tr. 70-71, 76-77). 

15. In a Gulf Resource Management drug and alcohol testing release form dated December 

06,2006 in Section 1, Respondent authorized release of information from his Department 

of Transportation regulated drug and alcohol testing records from his previous employer, 

International Boats. (Resp 't Ex. I, 2). 

16. On December 07,2005 at 1351 local time, International Boats faxed the drug and 

alcohol testing release form to Gulf Resource Management. In Section 2.A. of the form, 

International Boats circled '%on in response to question 3 which stated in the two years 
to the date of the employee's signature (in Section I), for DOT regulated testing 'Did the 

employee refuse to be tested?" (Resp'i Ex. i; Tr 78-79). 

17. Approximately one hour later, at approximately 14:52 on December 07,2005, 

International Boats faxed a second drug and alcohol release form to Gulf Resource 

Managem&. In Section 2.A of the second form, the response to question 3 (Did the 

employee refuse to be tested?) was changed from "No" to "Yes." 

18. Except for the different response to question 3 of Item 2.A, the two forms appear to be 

identical. (Compcire Resp't Ex. 1 and 2). However, the Coast Guard argues that the two 

forms are not identical, one deals with alcohol and the other deals with drugs. (Tr. 91- 

92). 

19. On or about December 09,2005, International Boats discharged Respondent for breaking 

company policy. (I0 Ex. 2). 

DISCUSSION 

The U.S. Administrative Procedure Act (APA), 5 USC 551-559, governs Coast Guard 

suspension and revocation trial-type hearings. 46 USC 7702(a). The APA only authorizes 

sanctions to be imposed if upon consideration of the entire record considered as a whole the 

charges are proved and supported by reliable, probative, and substantial evidence. 5 USC 

556(d). "The term substantial evidence is synonymous with preponderance of the evidence as 

defined by the W.S.1 Supreme Court." Avueal Decision 2477 (TOMBAUJ (1988). The burden 

of establishing or proving something 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 

be] may find in favor of the party who has the burden to persuade the [Judge] of the fact's 

existence."' Concrete Pipe and Products of California, Inc. v. Construction Laborers Pension 
Trust for Southern California, 508 U.S. 602,622 (1993) (citing in re Wins& 397 US. 358, 

371-372 (1970). (Harian, J., concdng) (brackets in original)). Under the APA and Coast 

Guard regulations, the Coast Guard Investigating Officers representing the Coast Guard at the 

hearing bear the burden of proving the charges by a preponderance of the evidence. 33 CFR 

20.701,20.702(a), Therefore, to prevail, the Coast Guard Investigating Officers must prove with 

reliable and probative evidence that Respondent more likely than not committed the violations 

charged. In this case, the Coast Guard's Complaint alleged that Respondent committed 

Misconduct in violation of 46 U.S.C. 7703(1)(b) and 46 CFR 5.27 by refusing to take drug and 

alcohol screen tests. 

I. Amendment of the Jurisdictional Allegations in the Complaint 

As a preliminary matter, the complaint appears to be defective on its face. In paragraph 2 

of the jurisdictional allegations of the complaint, the Coast Guard only alleges that "Respondent 

holds the following Coast Guard issued eredential(s): CG License 1013725 and CG Merchant 

Mariners Document." The Coast Guard failed to allege that Respondent was acting under the 

authority of his license and document while serving as master on board the MN INIT 

COMMANDER. However, this defect does not demand dismissal of the case. This is especially 

true given the fact that the jurisdictional issues were fully litigated at the hearing and Respondent 

had an opportunity to cross-examine witness on this particular issue. Accordingly, the 

jurisdictional allegation is amended to conform to the evidence and proof. 

- Sua amendments by the judge after the conclusion of a hearing are not unheard of 

in these administrative proceedings. Awpeal Decision 2630 (BAARSVIK) (2002); 

Decision 2393 (STEU'ART) (1982). The test of whether a pleading may he amended is not 

based on timing of the amendment. Rather, it is based on whether there has been actual notice 
and opportunity to litigate the amended allegation. BAAWSVIM (citing Kuhn v. Civil 

Aeronautics Board, 183 F.2d 839,841 (D.C. Cir. 1950)). In m, the court stated that ""[]he 

whole thrust of modem pleading is towards fulfillment of a notice-giving function. . . [and] [ilt 

is now generally accepted that there may be no subsequent challenge of issues which were 

actually litigated, if there has been actual notice and adequate opport-unity to cure surprise." 183 

F.2d at 841-42. In Apveal Decision 1792 (PHILLIPS) (1970), the Commandant relied on the 

Kuhn decision in finding that the ALJ has authority to make necessary amendments to conform 

specifications to the proof. Consistent with m, 33 CFR 20.305 states: 

" ... no amendment or supplement may broaden the issues without an opportunity 

for any other party or interested person both to reply to it and to prepare for the 

broadened issues." 

The Kuhn doctrine is recognized as an effective administrative tool when used to make 

amendments to pleadings to avoid unreasonable delay in proceedings and unnecessary dismissal 

of charges. See Appeal Decision 2326 (MCDERMOTT) (1983); PHILLIPS. However, where 

the amendment constitutes a substantial change of the pleading or there is sufficient reason to 

believe that all of the issues surrounding the change might not have been raised at hearing, the 

Commandant has held that it is inappropriate to invoke the Kuhn doctrine. See BAARSVIK, 

Apveal Decision 2326 (MCDERMOTT) (1983). Appeal Decision 1956 (HANSON) (1973). 

In the case sub judice, the defect in the jurisdictional allegations of the complaint was 

cured by the evidence that showed that a U.S. Coast Guard issued licensed master and mate was 

required on board the MN MI? COMMANDER. Respondent was given an opportunity to 

cross-examine witnesses on this particular issue. Accordingly, I find it appropriate to sua sponte 

invoke the doctrine and amend the complaint to conform to the proof. 
BE. The Coast Gtnasd Proved hbu~sdictioa 

Past Commandant Decisions on Appeal state that jurisdiction is critical to the validity of 

a proceeding. A~peal Decision 2656 (JORDAN) (2006). To establish jurisdiction for a 

Misconduct case, 46 U.S.C. 7703(l)(b) requires the misconduct to haye been comined while 

the holder was -'acting under the authority of' the bolder's merchast mariner credential. The 

term '.acting under the authority" is defined 46 CFR 5.57. The regulatory definition includes 

situations when the holding of a U.S. Cost Guard issued license or document is "[rlequired by an 

employer as a condition for employment." 46 CFR 5.57. 

The record evidence shows that Respondent was acting under the authority of his U.S. 

Coast Guard issued license andlor document on December 03,2005. Personnel from 

Respondent's former employer, International Boats, specifically testified under oath that a 

licensed master and mate were required on the MN INfT COMMANDER. (I0 Ex 3; Tr. 55- 

56). Therefore, jurisdiction is sufficiently established. 

111. The Coast Guard Proved Misconduct 

Misconduct is defined as the violation of some formal, duly established rule. 46 CFR 

5.27. These rules are found in statutes, regulations, the common law, a ship's regulations, and 

other similar sources. @. In this case, some of the applicable regulations are 49 CFR 40.191 and 

46 CFR 16.105. 

The term "rehal to submit" is defined as a refusal to take a drug test as set out in 49 

CFR 40.191. 46 CFR 16.105. Under 49 CFR 40.191(a), amariner refuses to take a drug test 

if the mariner, among other things: 

r Fails to remain at a testing site until the testing process is complete; 
5 Fails to provide a urine specimen for any dmg test required by any U.S. DOT agency 

regulations; or 

Fails to cooperate with any part of the testing process. 

Chemical testing for merchant marine personnel is governed by 46 CFR Part 10. 

Specifically, 46 CFR 16.250 describes the reasonable cause testing requirements. An employer 

shall require any crewmember that is reasonably suspected of using a dangerous drug to be 

chemically tested for dangerous drugs. 46 CFR 16.250(a). The employer's decision to test must 

be based on a reasonable and articulable belief that the individual used a dangerous drug. 46 

CFR 16.250(b). Also, the individual must be informed of the chemical test and directed to 

provide a urine sample. 46 CFR 16.250(c). 

A mariner's refusal or failure to submit to required dmg/alcohol testing constitutes 

Misconduct within the meaning of 46 CFR 5.27. generally Avveal Decision 2641 (JONES) 

(2003) (affirming judge's finding of Misconduct proved based on mariner's refusal to submit to 

drug testing ordered by employer); Apveal Decision 2615 (DALE) (2000); 46 CFR 5.569 

(listing refusal to take chemical drug test and required alcohol test as a "violation of regulation"). 

In this case. the employer's reasonable suspicion was based on two separate reports from 

an employee and customer that the Respondent was using or abusing drugs in a pill form and 

was acting as if he was under the influence of "something". (Tr. 440-41, 52-53, 57, 66-67). The 

issue in this case is whether Respondent's actions on December 03,2005 constitute a refusal to 

submit to drug testing within the meaning of 46 CFR 16.105 and 49 CFR 40.191. The parties 

presented conflicting testimony concerning Respondent's advance knowledge of the reasonable 

cause drug test on December 03,2005. Mr. Loupe, personnel coordinator for International 

Boats, testified on behalf of the Coast Guard that he spoke to Respondent on the telephone on 
December 03,2005 and told him to come directly to the office fm the Mili iiu'fi 

COMMANDER so that they could talk and Respondent could undergo a urine drug screen test to 

alleviate the company's concerns regarding Respondent's alleged drug use. (Tr. 50, 58-61, 66). 

Respondent disputes that: 1) he spoke to Mr. Loupe on December 03,2005; 2) he was placed on 

notice that he had to submit to drug testing: and 3) he refused to take a drug test. Therefore, it is 

necessary for the undersigned to assess the witnesses' conflicting testimony and determine 

credibility. 

In doing so, I am mindful that the judge is the finder of fact; therefore. witness credibility 

and assessment of evidence is best left to the determination of the presiding judge. 

Decision (2002); Avueal Decision 2632 (WHITE) (2002). "The nudge] is not 

bound by the witnesses' opinion, but must make his own determination based on the facts and 

the law." WHITE. When conflicting or inconsistent testimony is presented during an 

administrative law hearing, the judge is afforded broad discretion to determine the credibility of 

witnesses. A- (1 997). 

Here, Respondent's testimony that he only he spoke with Mr. Chaisson to arrange 

transportation from the vessel in Cameron to his home and Mr. Chaisson advised him to call 

back on the afternoon of Tuesday, December 06,2005 to advise Mr. Chaisson on how many 

days he wanted off is not deemed credible. This is especially true given the conflict within 

Respondent's own testimony. 

First, a review of Respondent's answer to the complaint reveals that he only denies 

refusing to take the drug test. He only raised lack of notice as a defense for the first time at the 

hearing. If Respondent did not receive notification as he now claims, it is believed that he would 

have raised that defense in his answer. 
Second, durlng the heanrig Respondent teseified &at he did not ieam about the refusal to 

take a drug test by providing a urme sample and blood test untll he was charged by the Coast 

Guard. (Tr 72-73). Then, almost in the same breath, Respondent testified he spoke with Mr. 

Ghasson at International Boats regarding his discharge on December 09,2005 for breaking 

company poltcy and Mr Chalsson advised Respondent that 11 was because Respondent refused a 

drug screen test. (Tr 73-74) It is also noted that one of Respondent's own exhibits (Resp 't Ex 

2) shows that Respondent's first employer company, International Boats, indicated that 

Respondent refused to be tested on one of the two drug and alcohol testing release forms faxed to 

Gulf Resource Management, Respondent's second employer, on December 07,2005. 

Based on the above, Respondent's testimony is not viewed or found as being credible. 

The fact that International Boats faxed two separate drug and alcohol testing release forms to 

Gulf Resource Management (one indicating that he did not refuse and the other indicating that he 

did refuse) does not lend further support to Respondent's testimony. The Coast Guard's 

argument that one form dealt with alcohol and the other deals with drugs is a reasonable 

explanation for the two separate forms. Finally, the fact that Respondent was offered 

employment at another company three days after being directed to undergo dmg testing is not 

viewed as a mere coincidence. Therefore, I find that the Coast Guard has proven by a 

preponderance of reliable and credible evidence that Respondent refused to take a reasonable 

cause drug test on December 03,2005, requested by his first employer company, International 

Boats.. 

ULTIMATE FINDINGS OF FACT AND CONCLUSIONS OF LAW 

1. The captioned Respondent's, Joey R. Broussard's, U.S. Coast Guard issued License and 

Merchant Mariner Document and the subject matter of this hearing are properly within the 
jurisdiction ofthe U.S. Coast Guard and the U.S. Administrative Law Judge in accordance 

with 46 U.S. Code Chapter 77, including section 4703 (West Supp. 1999), 46 CFR Part 5 and 

33 CFR Part 20. 

2. At all relevant times, the captioned Respondent was a licensed and merchant mariner 

document holder acting under the authofity of his U.S. Coast Guard issued Merchant 

Mariner's License and Document. 

3. The testimony of Respondent that he did not receive notice of the December 03,2005 drug 

test from Mr. Loupe is not deemed or found credible. 

4. The drug and alcohol tests were carefklly and satisfactory arranged for by Respondent's first 

marine employer following the chemical and drug testing rules, including 46 CFR Part 16. 

5. The allegations in the Complaint served upon the Respondent are found proved by a 

preponderance of the reliable, probative, substantial and credible evidence based on 

Respondent's admissions in the Answer to the Complaint and based upon the testimony of 

the two witnesses who were found very credible and including the five (5) exhibits offered 

into evidence by the 10s. 

SANCTION 

The selection of an appropriate order is the responsibility of the Administrative Law 

Judge. 46 CFR 5.569(a). The Investigating Officers and the Respondent may suggest an order 

and present evidence of mitigating or aggravating circumstances. 46 CFR 5.569(a). Since 

revocation is not necessarily mandatory for refusing to test. factors that may affect the order 

include: (1) any remedial actions independently undertaken by Respondent; (2) Respondent's 

prior record; and (3) evidence of mitigation or aggravation. 46 CFR 5.569(b). Since Respondent 

refused to take a drug and alcohol test under 49 CFR 40.191(b), 49 CFR 40.191(c) subjects 
Respondent to the guidance conmined in 40 CFR 5.569jci) which suggests (absent any mitigating 

or aggravating circumstances) a suspension of 12-24 months for only a simple violation of law 

based on refbsal to test for drugs. 

In this case. the Coast Guard Complaint states that the Coast Guard proposes revocation 

in accordance with 46 USG 7703. 

Respondent Joey R. Broussard testified in his own behalf under oath. 

As a witness testified on or about pages 66 and 67 of the hearing transcript, several 

customers and at least one or two crewmembers stated that it looked like the Respondent was 

under the influence of drugs or was taking drugs and they reported it to Respondent's first 

employer company. While Respondent was operating the vessel as Master and Captain of that 

vessel, there were four (4) crewmembers aboard that vessel, including Respondent Broussard. 

As shown on pages 74,75 and 76 of the transcript, the Investigating Officer stated that we have 

had testimony that a couple of crewmembers on Respondent's vessel and a customer 

representative told Respondent's supervisor that they felt Respondent was using drugs. The two 

(2) crewmembers and the customer representative testified that Respondent was taking pills and 

that Respondent Joey Broussard was "acting weird," while Respondent was supposed to be 

safely and carefully acting as master or captain of the vessel for the vessel and all people on 

board. 

The Coast Guard Investigating Officers are seeking revocation of Respondent's U.S. 

Coast Guard issued License and Merchant Mariner's Document. It is well within the authority of 

the ALJ to order any of a variety of sanctions, including revocation. See 46 CFR 5.569; see also 

Avlleal Decision 2569 (TAYLOR). The Table 5.569--Suggested Range of an Appropriate Order 

(Table) for various offenses can be found at Title 46 CFR Part 5.569. According to the table, 
eommlMing a simple ad of miscondilcr generdiy resuits in suspension of a mariner's document. 

See 46 CFR 5.569(dj. An ALJ, however, is not bound by this table and has discretion and 

authority to exceed the suggested range or reduce the sanction. Id. See also Auueal Decision 

2628 (VILAS). The purpose of the table is to provide guidance to the ALJs. For the purpose of 

deiemining the appropriate sanction, the ALJ may consider any remedial action taken by the 

Respondent, the Respondent's prior record and other mitigating or aggravating factors. 46 CFR 

Part 5.569(b). 

During summations, the Coast Guard Investigating Officers asked the undersigned judge 

to take official notice that Respondent's refusal to provide a urine sample for the purpose of 

taking a drug test and/or urine test for drugs and/or alcohol use is a violation of 49 CFR 

40.191(a). The Coast Guard Investigating Officers also asked the undersigned to take official 

notice of Auueal Decision 2578 (CALLAHAN1 wherein it states in clear language, revocation is 

the appropriate remedy to prevent such refusals in the future by other U.S. Merchant Mariners. 

ORDER 

IT IS HEREBY ORDERED that the U.S. Coast Guard Merchant Mariner's License and 

Merchant Mariner's Document issued to Respondent Joey R. Broussard are hereby 

SUSPENDED FOR EIGHTEEN (18) MONTHS OUTRIGHT. Respondent is ordered to 

immediately deliver by mail, certified mail return receipt requested; overnight express courier 

service such as FedEx: or deliver in person his U.S. Coast Guard issued License and Merchant 

Mariner's Document to the U.S. Coast Guard Marine Safety Unit, 800 David Drive, Room 232, 

Morgan City, Louisiana 70380. They should be delivered to the Commanding Officer or 

Assistant Senior Investigating Officer James Wilson, Esq., or any other Investigating Officer 
then stationed at the Marine Safety Unit Morgan City as soon as possible, if not already 

delivered to them. The eighteen (18) month suspension will start from the first day they are or 

were received by the said Marine Safety Unit, Morgan City, Louisiana. 

PLEASE TAKE NOTICE that service of this Decision on the parties and/or parties' 

representative(s) serves as notice of appeal rights set forth in 33 CFR 20.100 1 - 20.2 004. 

(Attachment A). 

c?, .";? t M 

Done and dated April 13,2007 

Houston, Texas I' ' -.- <4 

[/ ri 

THOMAS E. P. McELLIGOTT 

ADMINISTRATIVE LAW JUDGE 

U.S. COAST GUARD 
ATTACHMENT A 

NOTICE OF ADMmISTRATIVE APPEAL RIGHTS 

33 GFR 20,1Q01 Generat. 

(a) Any party may appeal the ALJ's decision by filing a notice of appeal. l'he 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 2 1201 -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 appeiiant's specific objections io the 

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

(i) Basis for th 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 

brief must specifically refer to the pertinent pms 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 -- 

(I) 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.