UNITED STATES OF AMERICA 

U.S. DEPARTMENT OF TRANSPORTATION 

UNITED STATES COAST GUARD 

UNITED STATES COAST GUARD 

Complainant 

vs. 

VERONICA BARRETTA, 

Respondent. 

Docket Number CG S&R 01-0582 

PA No. 01001577 

DECISION AND ORDER 

Issued : June 18, 2002 

Issued by: Peter A. Fitzpatrick, Administrative Law Judge 

APPEARANCES 

FOR THE COAST GUARD 

L T Louis Luba 

L T Timothy W. Pavilonis 

LT Andrea Katsenes 

LT Joshua Pennington 

United States Coast Guard 

Marine Safety Office 

20 Risho A venue 

East Providence, Rhode Island 02914-1208 

FOR THE RESPONDENT 

Christopher J. Snow, Esq. 

Law Office of Snow & Snow 

90 Harry Kemp Way 

P.O. Box 291 

Provincetown, MA 02657 
I. 

PRELIMINARY STATEMENT 

This case began when the United States Coast Guard filed a Complaint against the 

Respondent, Veronica A. Barretta, holder of License Number 788553 on August 23, 2001 under 

the statutory authority contained in 46 U.S.C. § 7704 and the Coast Guard regulation codified at 

46 CFR 5.35. In the Complaint, the Coast Guard alleged that Mrs. Barretta tested positive for 

marijuana metabolite on a random drug test administered on June 8, 2001. 

Mrs. Barretta filed a timely Answer to the Complaint on October 2, 2001. The Answer 

admitted all jurisdictional allegations. With respect to the factual allegations, Respondent 

admitted numbers 1-3 and denied numbers 4 and 5. In the Complaint, the Investigating Officer 

sought the revocation of Mrs. Barretta's Coast Guard License under 46 U.S. C. § 7704. 

On October 9, 2001 the case was assigned to this Judge and the hearing was set for 

February 12, 2002 by Order dated October 29, 2001. Next, the Coast Guard requested a 

continuance and absent opposition from the Respondent, it was granted. The hearing was 

rescheduled for April 24, 2002 at Providence, Rhode Island. 

A Pre-Hearing conference was conducted on March 19, 2002 and an Order containing 

rulings on various motions was issued that same day. 

The hearing commenced as rescheduled and the Investigating Officers, the Respondent 

and her counsel were present. At the outset, the Complaint and the Answer were reviewed. 

At that point, counsel requested a conference in chambers prior to the presentation of the 

evidence. That request was granted and a conference was conducted with the Coast Guard 

representatives and counsel for approximately 30 minutes. The substance of those discussions 

was placed on the record once the hearing reconvened. See Transcript (Tr.) at pages 42-49. 

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Thereafter, Respondent's counsel stated that Mrs. Barretta admitted the facts showing 

I 

that the drug test involved was accurate and that she did not contest any aspect of the test and 

would stipulate to that effect. (Tr. 46). Additionally, counsel asserted that the Respondent did 

not contest the Medical Review Officer's conclusion, the test conducted by the laboratory, or the 

collection process. (I d.) He continued that no witnesses would be required to substantiate the 

validity of the drug test" ... inasmuch as we agreed to the --that aspect of the [G]ovemment's 

case." (Id.). At that point, the three witnesses who were available (Marie Weber, Dr. Louis 

Jambor, and Dr. Susan Green) were not required to testify since the substance of their testimony 

was stipulated by the Respondent. (Tr. 46-47). 

Respondent's counsel urged that Mrs. Barretta had entered a drug counseling program 

and she wished to pursue the so called "Sweeney" cure option. She was willing to complete the 

necessary requirements of the program and a long suspension of her license if she would be 

allowed to work for two months as operator of a launch only for the Provincetown Marina 

carrying passengers from the moorings there to and from the marina. 

Mrs. Barretta testified to this effect and admitted that she used marijuana before the drug 

test here. (Tr. 54-55, 93-94, 99). 

The only other witness who testified was Lt. Kallen and her testimony was related to the 

service of a number of exhibits on Respondent's counsel. Mr. Snow objected to the admission of 

IO Exhibits No. 1-4, 6, 8, 9 and 10 on the grounds that they had not been served. (Tr. 197). I 

admitted Exhibits 5, 7, 11 and 12 and reserved a ruling on the others pending a further search by 

counsel of his records. This matter was resolved when Mr. Snow found the records after the 

hearing as is described in his letter of April 24, 2002. Accordingly, the exhibits which were 

reserved at the hearing are now admitted. 

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Additionally, the Respondent's four exhibits (Respondent A-D) were admitted. (Tr. 62, 

197). A list of all exhibits is attached hereto as Attachment A. At the conclusion of the hearing, 

T agreed to allow Mrs. Barretta to continue the Sweeney cure process as described in the Opinion 

section hereof. 

II. 

STATUTES AND REGULATIONS INVOLVED 

A. Procedural Matters 

1. This proceeding is governed by the Administrative Procedure Act , which is incorporated 

into these proceedings under 46 U.S.C. 7702, which reads: 

§ 7702. Administrative procedure 

(a) Sections 551-559 of title 5 apply to each hearing under this chapter about 

suspending or revoking a license, certificate of registry, or merchant mariner's 

document. 

2. 46 U.S.C.§§ 7701-7705 sets out the general procedures governing the suspension and 

revocation of merchant mariners' licenses and documents. 46 U.S.C. § 7704 provides in 

pertinent part: 

§ 7704. Dangerous drugs as grounds for revocation 

(c) If it is shown that a holder has been a user of, or addicted to, a 

dangerous drug, the license, certificate of registry, or merchant mariner's 

document shall be revoked unless the holder provides satisfactory proof 

that the holder is cured. 

3. The regulations governing the performance of chemical tests for dangerous drugs adopted by 

the United States Department of Transportation are codified at 49 CPR§ 40. The specimen 

collection procedures are set out at 49 CPR§ 40.25. 

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4. The Coast Guard regulations governing chemical testing for dangerous drugs are codified at 

46 CPR§ 16. Specifically, 46 CPR§ 16.20l(b) provides that: 

Subpart B- Required Chemical Testing 

§ 16.201 Application. 

(b) If an individual fails a chemical test for dangerous drugs under this 

part, the individual will be presumed to be a user of dangerous drugs. 

5. The Coast Guard Rules of Practice which apply to this proceeding are codified at 33 CPR§ 

20. 

III. 

FINDINGS OF FACT 

A. Jurisdictional Allegations Admitted by the Respondent 

1. The Respondent is the holder of License No. 788553. 

B. Factual Allegations Admitted by the Respondent 

At the hearing the Respondent admitted all factual allegation of the complaint. (Tr. 46-48, 

54-55, 93-94, 99). 

1. On June 8, 2001 Respondent took a random drug test. 

2. A urine specimen was collected by Marie Weber of Outer Cape Health Services, 

Provincetown, MA 02657. 

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

4. The urine specimen was collected and analyzed by SmithKline/Quest Diagnostics, Van 

Nuys, CA 91405 using procedures approved by the Department of Transportation 

5. That specimen subsequently tested positive for Marijuana Metabolite. 

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IV. 

ULTIMATE FINDINGS 

1. The Coast Guard has jurisdiction over Respondent and this matter pursuant to 46 U.S.C. 

7704, which states that "if it is shown that a holder has been a user of, or addicted to, a 

dangerous drug, the license, certificate of registry, or merchant mariner's document shall be 

revoked unless the holder provides satisfactory proof that the holder is cured." The Coast 

Guard has the burden of proving the charge and its supporting specification by a 

preponderance of the evidence or ''by substantial, reliable and probative evidence." 46 

C.F.R. § 5.539; 46 C.F.R. § 5.63; Appeal Decision No. 2603 (HACKSTAFF) (1998); See 

also, Dept. ofLabor v. Greenwich Colleries, 512 U.S. 267 (1994); Steadman v. SEC, 450 

U.S. 91, 100-103 (1981). The proceeding is conducted under the provisions in 46 C.F.R. Part 

5, 33 C.F.R. Part 20, and the Administrative Procedure Act, 5 U.S.C. § 551 et seq. 

2. There are no material issues of fact in dispute in this case. The remaining controversy is 

whether the Respondent should be afforded the opportunity to demonstrate "cure" under the 

well-known "Sweeney" line of cases while being allowed to serve under her license during a 

two-month period in the summer. I am of the opinion that due to the limited service involved 

and the length of the suspension period, justice is served by allowing this modification of the 

Sweeney principals. 

Here, Mrs. Barretta tested positive for marijuana metabolite on a chemical test for 

dangerous drugs on June 8, 2001. She was removed from her position as a launch operator 

for Provincetown Marina and had not served under that license up to the date of the hearing. 

She enrolled in an intensive outpatient program for substance abuse a week before the 

hearing (the Gosnold Program). That program includes three meetings per week (3 hours 

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each) over a three week period. (Tr. 61, 64-65) (Exhibit A). Thereafter, aftercare 

recommendations are made. Additionally, she has agreed to six random drug screens during 

the following 12 months. Also, and importantly, the Respondent agrees that the period of 

suspension involved here will encompass a longer period than the usual12 months as 

required by the Sweeney doctrine. The suspension will run from April 24, 2002 to June 30, 

2003 with the exception of the months of July and August 2002. Finally, Mrs. Barretta's 

service under her license during the July-August season will be limited to the operation ofthe 

launch at Provincetown Marina to and from the moorings in the harbor to the marina dock. If 

Mrs. Barretta completes the Gosnold Program, the required aftercare, the random drug 

testing requirements, and does not exceed the restrictions imposed on operations under her 

license, the conditional revocation of her license imposed here will be cancelled and the 

license will be returned to her at the conclusion of the entire suspension period. Mrs. 

Barretta will be required to submit appropriate documentation to show she has met the terms 

of this Order before this conditional revocation will be lifted. 

v. 

ORDER 

1. The Jurisdictional and Factual Allegations of the Complaint are Proved by the Answer and 

by the Admissions of the Respondent. 

2. Mrs. Barretta's License No. 788553 is hereby REVOKED subject to the following 

conditions: 

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a. Respondent will complete a drug rehabilitation program that establishes that the 

Respondent is drug-free and the risk of Respondent's subsequent use of 

dangerous drugs is sufficiently low to justify a return to work. 

b. Respondent will: 

1. Provide adequate evidence of successful completion of all elements of the 

rehabilitation and drug testing programs; 

ii. Complete the intensive out-patient substance abuse program in which she 

was enrolled at the date of the hearing (the Gosnold Program); 

iii. Enroll in a drug rehabilitation program certified by a governmental agency 

or accepted by an independent professional association; 

iv. Attend a substance abuse monitoring follow-up program for a minimum 

period of one-year following successful completion of the Gosnold 

program as specified by the substance abuse professional; 

v. Participate in a random, unannounced drug-testing program for a 

minimum period of one-year following successful completion of the 

rehabilitation program. During the drug-testing program, the Respondent 

must take at least 6 random drug tests conducted in accordance with 

Department of Transportation procedures found in Title 49 Code of 

Federal Regulations (CPR) Part 40. 

vi. File a copy of the Medical Review Officer's (MRO) determination that 

Respondent is drug-free and the risk of Respondent's subsequent use of 

dangerous drugs is sufficiently low to justify return to work. The MRO 

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who made the original positive detennination in this matter must sign this 

determination. The name and address of the MRO is as follows: 

Dr. Susan M. Green, MD, MPH 

Newport Hospital Occupational Health/Newport Alliance 

Borden Carey Building, Suite G-40 

19 Friendship Street 

Newport RI 02840 

Another MRO can not be used in this matter unless the substitute MRO is 

agreeable to both the Respondent and the USCG; 

vu. Be subject to increased, unannounced testing for a period of up to 60 

months in accordance with 46 CFR 16.370(d). The MRO will determine 

the period and frequency of testing; 

vu1. Pay the expenses for this rehabilitation program; 

ix. Deposit all Coast Guard-issued licenses, certificates, and/or documents 

with Marine Safety Office Providence for the duration of the entire 

rehabilitation program except as provided below; 

x. Advise the Coast Guard Investigations Department at Providence of any 

change of address and/or telephone number by mail; and 

x1. Submit evidence of successful completion to the Judge and the 

Investigating Officer at the following addresses: 

Judge Peter Fitzpatrick 

Norfolk Federal Building 

200 Granby Street, Room 602 

Norfolk, VA 23510 

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Commanding Officer 

U.S. Coast Guard Marine Safety Office Providence 

20 Risho A venue 

East Providence, RI 02914-1208 

xii. The Respondent's license will be temporarily returned to her for two 

months during the summer, 2002 (July and August). Service under that 

license is limited to providing launch service at Provincetown to and from 

the moorings and the dock at the Provincetown Marina. The license is to 

be returned to the Investigating Officer at Providence Marine Safety 

Office immediately thereafter. 

xiii. If the Respondent satisfactorily meets the conditions set out in this Order, 

her license will be returned to her at the end of the suspension period or by 

June 30,2003. Otherwise, her license will be REVOKED. 

Done and dated June 18, 2002 at 

Norfolk, Virginia 

Administrative Law Judge 

United States Coast Guard 

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10 Exhibits 

1. Drug Testing Control Fonn 

2. Certification/Dr. Green 

3. Curriculum Vitae, Dr. Green 

4. Custody Control Form 

5. Laboratory Test Results 

6. MRO Checklist 

7. Controlled Substance Test Result 

8. Newport Alliance Letter 

9. Litigation Package 

10. Exhibit List 

11. Letter, March 28, 2002 

12. Letter, Aprilll, 2002 

Respondent's Exhibits 

A. Gosnold Letter 

B. Newport Alliance Test 

C. Townsend Letter 

D. Cabral Letter 

APPENDIX A 

Exhibits 

11 
CERTIFICATE OF SERVICE 

I hereby certify that I have served the foregoing DECISION AND ORDER upon the 

following parties to this proceeding at the address indicated by federal express: 

LTJG Joshua Pennington 

Marine Safety Office Providence 

20 Risho A venue 

East Providence, RI 02914-1208 

Telephone: 401-435-2331 

Christopher J. Snow, Esq. 

90 Harry Kemp Way 

Provincetown, MA 02657 

Telephone: 508-487-1160 

~#.~Jr, CcA 

Done and dated June 18, 2002 at 

Norfolk, Virginia 

Lucinda H. Shinault, CLA 

Legal Assistant to the Administrative Law Judge 

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§ 20.1.001 GeneraL 

33 C.F.R. PART 20 

SUBPARTJ 

APPEALS 

(a) Any party may appeal the AU's decision by filing a notice of appeal. The party shall 

file the notice with the U. S. Coa,st 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 oflaw accords with applicable law, precedent, and pu,blic 

policy. 

(3) Wbether 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 

§ 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 mil 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. 

§ 20.1003 Procedures for appeal. 

(a) Each party appealing the AU's decision or ruling shall file an appellate brief with the 

Commandant at the following address: U.S. Coast Gmrd 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. 
(I) 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 recordl the appellate brief 

mu~t 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 

author:rzed in writing by the Docketing Center, the brief will be untimely. 

(b) Any party may file a reply brief with the Docketing Center 35 day~ 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 petitioneO. 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 ~ decision. 

§ 20.1004 Decision~ on appeal. 

(a) The Commandant shall review the record on appeal to detennine·whether the AU 

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

modify, or reverse the ALn decision or should remand the case for further proceedings. 

(b) The Commandant shall·issue a decision on every appeal in writing and tShall serve a copy 

of the decision on each party and interested person.