UNITED STATES OF AMERICA 

U.S. DEPARTMENT OF I-IOMELAND SECURITY 

UNITED STATES CO.4ST GUARD 

UNITED STATES COAST GUARD 

Cornpla~nant 

vs. 

THOMAS TIMOTHY McCANN 

Respondent 

Docket Number: CG S&R 07- 01 13 

CG Case No. 2882207 > 

z =: LZ 5 

P 0 

r L. ..a e -2 r;+ sn 

ORDER -- -5,' r 1 ,C3 

-~ "17 ir C ,.-- :.> c.: < ,* "m Issued bv: Walter J. Brudzinski, Administrative Law Judge 

- ,* ,= I, m 

.-'* Issued: May 11,2007 , 4 ;I 

-4 

V1 fT 

-9 73 

This Order is issued in accordance with 33 CFR Sections 20.710, 20.901, and 20.902(c) 

in that the parties waived submission of post-hearing proposed findings at a suspension and 

revocation conducted on May 8,2007 in Toledo, Ohio and the undersigned issued findings, 

conclusions, and sanction at the conclusion of the proceedings. Having found that the 

Respondent and the subject matter of this hearing within the jurisdiction vested in the Coast 

Guard under 46 U.S.C. 5 7703 and 46 CFR 5.27, I found that the Coast Guard proved the 

allegations in the Compla~nt by the preponderance of reliable, probat1.i~. and suhstant~ai 

evidence and revoked Respondent's document at the close of the hearing at which time 

Rcspondent's llcense was surrendered to the Coast Guard Investigating Officer 
Complaint 

On March 12,2007, the Coast Guard Investigating Officer, LTJG Joseph R. Reinhart, 

USCG, issued a one count Complaint of Misconduct as follows: 

1. On September 09, 2005, Newport Alliance Drug Consortium issued a random drug test 

notification letter to respondent. 

2. Respondent failed to take the random drug test. 

3. On October 04, 2005, Newport AIiiailce Drug Consortium issued a failure to test 

notification letter to respondent. 

4. On November 07, 2005, Neuport Alliance Drug Consortium issued a final failure to test 

notification letter to respondent. 

5. On May 05,2006, Newport Alliance Drug Consortium issued a random drug test 

notification letter to respondent. 

6. Respondent failed to take the random drug test. 

7. 011 June 19,2006, Newport Alliance Drug Consortium, issued a failure to test 

notification letter to respondent. 

The Coast Guard proposed Revocation. 

Procedurg 

The Respondent timely filed his Answer admitting to the jurisdictional allegations and 

de~ying the factual aliegaiiorrs contained in the Complaint's paragraphs 1 through 4. Respondent 

raised "lack of organization" as an affirmative defense and requested a hearing. The Coast Guard 

proposed May 8; 2007 as one of the dates for hearing and the Respondent agreed. Therefore, the 

undersigned issued a Scheduling Order setting the hearing for Map 8,2007, in Toledo, Ohio. 
At the hearing, the Coast Guard prese~lted the testimony of two witnesses: Ms. Lori 

Anuda, the Newport Alliance Program Coordinator who manages the Respondent's drug 

program, and the Respondent, Thomas Timothy Mc~ann.' The Coast Guard also introduced 8 

exhibits. The Respondent presented his own testimony and introduced no exhibits. 

Ms. Arruda explained the Consortium's procedures to randomly select people for drug 

testing. She verified that Respondent's name was among those selected on those occasions listed 

in the Complaint and verified that the letters alluded to in the Complaint were sent to the 

Respondent. She also authenticated Coast Guard Exhibits 1 through 8. Finally, she testified that 

Respondent did not take the required chemical tests for dangerous drugs. 

Respondent testified that he did not open the initial notification letters until after the time 

selected for him to participate in the random test. He testified that he was busy with other matters 

associated with running his business and that he is basically disorganized. He does not deny 

receiving the notification letters; just that he did not take timely action on them. He also testified 

that he did not show up to take the required chemical test for dangerous drugs as alleged in 

parayaph 2. 

Concerning the notification on May 5,2006, Respondent testified that he did receive that 

letter. However, when he showed up at the coliection site, he was not permitted to provide a 

sample because he did not have a picture identification card with him, He testified further that he 

was too busy to obtain a picture ID and return to the lab as required. 

I As per Respondent's iestimony, hi: is also known as limoihy 7nomas WcCaiin 
Respondent stated that he offered to take a test on subsequent occasions but was refused 

the opportunity to do so. He also stated that he does not use dangerous drugs. I reminded 

Respondent that there is no etidence that he is a user of dangerous drugs and that these 

proceedings are sintply to determine whether he refused to take a required chemical test. 

The Coast Guard cites 46 U.S.C. 57703(1)(B) and 46 CFR 5.27 as authority. Title 46 

U.S.C. 5 7703 reads as follows: 

Bases for suspension or revocation 

A license, certificate of registry, or merchant mariner's document 

issued by the Secretary may be suspended or revoked if the holder- 

(1) when acting under the authority of that license, certificate, or 

document-- 

(A) has violated or fails to comply with this subtitle, a regulation 

prescribed under this subtitle, or any other law or regulation 

intended to promote marine safety or to protect navigable waters; 

or 

(B) has committed an act of misconduct or negligence; 

(2) is convicted of an offense that would prevent the issuance or 

renewal of a license, certificate of registry, or merchant mariner's 

document; 

(3) within the 3-year period preceding the initiation of the 

suspension or revocation proceeding is convicted of an offense 

described in section 30304(a)(3)(A) or (B) of title 49; 

(4) has committed an act of incompetence relating to the operation 

of a vessel; or 

(5) is a security risk that poses a threat to the safety or security of a 

vessel or a public or commercial structure located within or 

adjacent to the marine environment. 
Title 46 CFR 5.27 reads as follows: 

8 5.27 Misconduct. 

Ivfiseonduct is human behavior which violates some formal, duly 

established rule. Such mles are found in, among other places, 

statues, re~~latiorts, the common law, the general maritime law, a 

ship's regulation or order, or shipping articles and similar sources. 

It is art act which is forbidden or a failure to do that which is 

required. 

Respondent was required to take a mandatory chemical test for dangerous dmgs under 46 

CFR Part 16 and 49 CFR Part 40. He failed to do so. Therefore, he failed to do that which is 

required. 

Title 46 CFR 5.57 reads as follows: 

5 5.57 Acting under authority of license, certification, or document. 

(a) A person employed in the service of a vessel is considered to 

be acting under the authority of a license, certificate or 

document when the holding of such license, certificate or 

document is: 

(1) Required by law or regulation; or 

(2) Required by an employer as a condition for employment. 

(b) A person is considered to be acting under the authority of the 

license, certificate or document while engaged in official 

matters regarding the license, certificate or document. This 

includes, but is not limited to, such acts as applying for renewal 

of a license, taking examination for upgrading or endorsement, 

requesting duplicate or replacenlent licenses, certificates or 

documents, or when appearing at a hearing under this part. 

(cj A person does not cease to act under the autlionty of a l~cense, 

cert~ficate or document whlle on author~zed or unauthoriied 

shore leave from the vessel. 
As s licensed merchant mariner, Respondent is subject to mandatory cheinical drug 

testing pursuant to 46 CFR Part 16 and 49 CFR Part 40. Mandatory chenlical drug testing. 

arnong other things, is considered an official matter regarding a license, certificate, or document. 

Therefore, the Respondent was acting under the authority of his license at all times relevant. 

Decision 

At the end of the heanng, I inquired of the parties whether they wished to submit post 

hearing proposed findings as provided for under 5 U.S.C. $ 557(c ) aud 33 CFR 20.710(b). I also 

advised that I was prepared to announce my findings, conclusions, and sanction from the bench 

to be followed by a written order. The parties waived submission of proposed findings and 

indicated their desire to have the decision and sanction rendered from the bench. I announced 

that I found the allegations contained in the complaint proved by the preponderance of reliable, 

probative, and substantial evidence. 

Sanction 

In announcing the Sanction, I Sound that the Table at 46 CFR 5.569 entitled "Suggested 

Range of an Appropriate Order" provided a range from 12 to 24 months for "Refusal to take 

chemical drug test." ibnoring the initial notification letter and the subsequent failure to test 

letters places this Resportdent at the upper end of the 12 to 24 inonth suspension range. However, 

Respondent also refused to test on the May 5; 2006 notification by failing to return to the test site 

with a photo ID. 

Under 46 CFR $ S.S69(d) "[mlitigating or aggavating factors may make art order greater 

or less than the given range appropriate. Orders for repeat offenders will ordinarily be greater 

than those specified." Under Cfimmandantv. Moore, NTSB Ordcr No. EM-201 (2005), 
aggravating factors that would justify going beyond the sanction range listed in Table 5.569 must 

be separately listed or articulated. Therefore, in announcing the Sanction, I listed the followii~g 

as an Aggravating Factor: Haviilg previously failed to respond to the initial notification and 

two, subsequent failure to test notification letters on the first chemical test for dangerous drugs, 

Respondent was again notified on May 5, 2006 to take a second chemical test for dangerous 

drugs. Respondent showed up at the test site but was refused because he could not produce a 

photo ID. He subsequently failed to return to the test site with a photo ID as he was obligated to 

do. Therefore, he is found to have refused a chemical test for dangerous drugs twice. As such, he 

is a repeat offender, having been given chance after chance to take the first test. Respondent's 

claim of being preoccupied with the day to day tasks associated with running his business 

coupled with his claim of disorganization cannot he accepted as an excuse or mitigating factors 

for failure to comply with the law. 

WHEREFORE, 
ORDER 

IT IS HEREBY ORDERED that the allegations in the Cotnplaint dated March 12, 2007 

are found PROVED. 

IT IS FURTHER ORDERED that Respondent's Merchanl Mariner's license is 

REVOKED. 

IT IS FURTHER ORDERED that service of this Decision on the parties and/or parties' 

representative(s) scrves as notice of appeal rights set forth in 33 CFR 20.1 001 - 20.1004. 

(Attachment A) 

IT IS FURTHER ORDERED that since the undersigned previously announced findings 

and sanction at the close of hearing on May 8,2007, the 30 day time period for the parties to file 

notice of appeal pursuant to 33 CFR 20.1 001 (a) commences Tuesday, May 15, 2007. 

Done and dated May 11,2007 

New York, New York 

ADMI~~ISTRATIVE LAW JUDGE 

U.S. COAST GUARD 
ATTACHMENT A 

NOTICE OF 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 issuanee of the 

deeision, 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 rnotioii for disqualification. 

(c) No interested person may appeal a summary decision except on the issue that no 

hearing was held or that in the issuanee 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 terns 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 ihe 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 tn the record, the appcllate 

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 pasty may file a reply brief with the Docketing Center 35 days or less after 

serv~ce ofthe appellate brief Each such party shall serve a copy on every other party. 

If the party filing the reply brief relies 011 evidence contained in the record for the 

appeal, that brief must specifically refer to the pertinent parts of tlre 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 Coinrnandant shall review the record on appeal to detennine whether the ALJ 

committed error in the proceedings, and whether the Commandant should affirnt, 

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. 
ATTACIlRlENT B 

WITNESS AND EXHIBIT LISTS 

WITNESS LIST 

COAST GUARD'S WITNESSES 

1. Lori Arruda, Newport Alliance Progam Coordinator 

2. Thomas Timothy McCann, Respondent 

RESPONDENT'S WITNESSES 

1. Thomas Timothy McCann 

EXHIBIT LIST 

COAST GUARD'S EXHIBITS 

CG Ex. 1 - Letter form Newport Alliance to the Coast Guard dated March 8, 2007 

CG Ex. 2 - Newport Alliance Randomization Program 

CG Ex. 3 - Newport Alliance 2005 Random Drug testing pool schedule 

CG Ex. 4 - Newport Alliance 2006 Random drug testing pool schedule 

CG Ex. 5 - Newport Alliancc and Fisherman's Warf contract agreement for 2005-2006 

CG Ex. 6 - Newport Alliance and Fisherman's Warf contract agreement for 2006-2007 

CG Ex. 7 - Newport Alliance Random Selection list from September 9,2005 

CG Ex. 8 - Newport Alliance Random Selection list from May 3 1.2006 

RESPONDENTS EXHIBITS 

None