UNITED STATES OF AMERICA

U.S. DEPARTMENT OF HOMELAND SECURITY 

UNITED STATES COAST GUARD 

_______________________________ 

UNITED STATES COAST GUARD 

Complainant 

v. 

LARRY GEORGE PEARCE 

Respondent 

_______________________ 

Docket No: 09-0299 

CG Enforcement Activity No: 3540597 

DECISION & ORDER

Date Issued: February 24, 2010 

Issued by: HON. BRUCE TUCKER SMITH 

 Administrative Law Judge 

Appearances:

For Complainant: 

LT Michelle Schopp, IO 

LT Eric Rivera, IO 

USCG Sector Miami 

For Respondent: 

Larry George Pearce, pro se 
I. PRELIMINARY STATEMENT 

The United States Coast Guard Sector Miami (Coast Guard) initiated the instant 

administrative action seeking revocation of Respondent Larry George Pearce’s (Respondent) 

Coast Guard-issued Merchant Mariner’s License (MML). The instant action is brought pursuant 

to the legal authority codified at 46 U.S.C. §7704 and the underlying regulations set forth in 46 

C.F.R. Part 5. 

On July 23, 2009, the Coast Guard filed an original Complaint alleging that on June 3, 

2009, Respondent submitted to a random drug test that subsequently tested positive for cocaine 

metabolites, in violation of 46 U.S.C. §7704(c) and 46 C.F.R. §5.35. Service was attempted 

upon Respondent via express courier service. On August 10, 2009, the Coast Guard filed an 

Amended Complaint correcting Respondent’s home address and Respondent was personally 

served with the Amended Complaint that same day. On August 28, 2009, Respondent filed an 

Answer denying all jurisdictional and factual allegations asserted in the Amended Complaint. 

Additionally, Respondent included the following handwritten notation as an alternative 

affirmative defense “Do not do drug did not know I was taking anything.” 

On September 1, 2009, the instant matter was assigned by the Chief Administrative Law 

Judge (CALJ) to the undersigned Administrative Law Judge (ALJ) for adjudication. On October 

1, 2009, the parties participated in a pre-hearing telephone conference during which time 

preliminary matters were discussed.1

 

On December 15, 2009, this matter came on for hearing at the U.S. Tax Court, located in 

the Claude Pepper Federal Building, in Miami, Florida. The proceeding was conducted in 

 

1

 Initially, the court announced the hearing would be held in Fort Myers, Florida, on December 15, 2009. On 

November 9, 2009, the parties filed a Joint Motion for Change of Venue requesting the court set the hearing in a 

more convenient location. On November 10, 2009, the court denied the Joint Motion for Change of Venue as 

suitable courtroom space was not readily available in the greater Miami-area. However, the court subsequently 

located a suitable courtroom in the Claude Pepper Federal Building in downtown Miami and the hearing was 

thereupon relocated. 
accordance with the Administrative Procedure Act (APA), as amended and codified at 5 U.S.C. 

§§551-59 and the Coast Guard procedural regulations located set forth at 33 C.F.R. Part 20. 

Coast Guard Investigating Officers (IOs) LT Michelle M. Schopp and LT Eric Rivera of Sector 

Miami appeared on behalf of the Coast Guard; Respondent appeared on his own behalf. 

Both parties appeared, presented their respective cases and rested. Three (3) witnesses 

testified as part of the Coast Guard’s case-in-chief and the Coast Guard offered twelve (12) 

exhibits into evidence, all of which were admitted. Although Respondent was afforded to 

opportunity to cross-examine all witnesses called by the Coast Guard, Respondent declined. 

Respondent did not call any witnesses to testify on his behalf; however, Respondent did take the 

stand and offer his own testimony. Respondent offered three (3) exhibits into evidence, all of 

which were admitted.2

At the conclusion of the December 15, 2009, hearing, the court permitted the parties to 

present their respective closing arguments prior to closing the administrative record. 

II. FINDINGS OF FACT 

 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 Larry George Pearce 

(Respondent) was the holder of a Coast Guard-issued Merchant Mariner’s 

License (MML). (CG Ex. 1). 

2. On or about June 2, 2009, Respondent was directed by his employer, IDIVE, 

Inc., to submit to a random drug screen. (Tr. p. 118). 

3. On or about June 3, 2009, Respondent presented to Quest Diagnostics in Del 

Ray Beach, Florida, a urine specimen collection facility, and submitted a urine 

specimen. (Tr. at 109; CG Ex. 4). 

 

2

 Citations referencing the transcript are as follows: Transcript followed by the volume number and page number 

(Tr. at __ ). Citations referring to Agency Exhibits are as follows: Investigation Officer followed by the exhibit 

number (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.). 
4. On or about June 3, 2009, LaSonya Miller, an employee of Quest Diagnostics, 

collected Respondent’s urine specimen. (Tr. at p. 22-23; CG Ex. 4). 

5. At all relevant times mentioned herein, LaSonya Miller was properly trained 

and certified as a urine specimen collector for substance abuse testing in 

accordance with Department of Transportation (DOT) rules and regulations. 

(Tr. at p. 14-16; CG Ex. 3). 

6. On or about June 3, 2009, Ms. Miller, properly collected a urine specimen 

from Respondent, separated the specimen into two (2) samples, packaged the 

samples, and then placed the packaged samples for pickup by courier. (CG 

Ex. 3). 

7. At the time Ms. Miller collected Respondent’s urine specimen, each step of 

the collection process was recorded upon a Federal Drug Testing Custody and 

Control form. The Federal Drug Testing Custody and Control form assigned 

the unique specimen identification number of 6179642 to Respondent’s 

sample. (Tr. 22-25; CG Ex. 4). 

8. On or about June 3, 2009, Respondent signed the Federal Drug Testing 

Custody and Control Form certifying the urine specimen he submitted was 

unadulterated. (CG Ex. 4). 

9. The chain of custody of Respondent’s urine specimen was properly 

maintained from the time of collection to analysis. (Tr. at 64, 90; CG Ex. 7, 

8). 

10. The urine specimen submitted by Respondent was received for analysis by 

Quest Diagnostics, Incorporated, in Atlanta, Georgia, Department of Health 

and Human Services, Substance Abuse and Mental Health Services 

Administration (SAMHSA) approved laboratory facility. (CG Ex. 5; CG Ex. 

7). 

11. The urine specimen submitted by Respondent was subsequently analyzed by 

Quest Diagnostics in Atlanta, Georgia, using procedures approved by the 

Department of Transportation. (CG Ex. 7). 

12. Lennox B. Abbott, Ph.D., director of laboratory operations for the forensics 

laboratory in Quest Diagnostics, Incorporated in Atlanta, Georgia, and boardcertified by the American Association of Clinical Chemistry, is an expert 

witness in the field of forensic toxicology. (Tr. at 56; CG Ex. 6). 

13. Results of the initial screen of Respondent’s specimen indicated a positive 

result for cocaine metabolites. (Tr. at 68-69; CG Ex. 7 at p. 26). 

14. Respondent’s specimen was submitted for to confirmatory testing by gas 

chromatography/mass spectrometry (GC/MS). Confirmatory testing revealed 

Respondent’s specimen indicated the presence of cocaine metabolites at a 
level of 309.34 nanograms per milliliter (ng/ml); well above the DOTspecified cutoff level of 150 ng/ml. (Tr. at 70; CG Ex. 7 at p. 61). 

15. James M. Vanderploeg, M.D., is certified as a Medical Review Officer 

(MRO) by the Medical Review Office Certification Council and the American 

Association of Medical Review Officers. (Tr. at 81; CG Ex. 9). 

16. On or about June 5, 2009, in his capacity as MRO, Dr. Vanderploeg informed 

Respondent via telephone the certified, positive test results. (Tr. at 88-89). 

Respondent offered no reason why his specimen had tested positive for 

cocaine metabolites. (Id.). 

17. Upon notification of the positive test result, Respondent requested his split 

urine specimen tested at a separate laboratory. (Tr. at 89). 

18. On or about June 10, 2009, Quest Diagnostics shipped Respondent’s split 

urine specimen to the Minneapolis Veterans’ Affairs Medical Center for 

testing. (CG Ex. 7). The Minneapolis Veterans’ Affairs Medical Center 

laboratory is approved by the Department of Health and Human Services, 

Substance Abuse and Mental Health Services Administration (SAMHSA). 

(CG Ex. 5). 

19. Confirmatory testing of the split sample verified the positive test results for 

cocaine metabolites previously yielded. (CG Ex. 8). 

20. Dr. Vanderploeg subsequently reviewed the results of the testing performed 

on the split specimen and properly completed step 7 of the Federal Drug 

Testing Custody and Control Form, copy 2. (Tr. at 93; CG Ex. 12). 

21. In his capacity as MRO, on June 6, 2009, Dr. Vanderploeg notified the maritime 

consortium responsible for managing Respondent’s maritime employer’s drug testing 

programs by letter of the results of Respondent’s drug test (Tr. 90-91; CG Ex. 11). 

Dr. Vanderploeg again notified the maritime consortium by letter on June 17, 2009, 

of the results of Respondent’s drug test on the split specimen. (Tr. 93-94; CG Ex. 

12). 

22. On or about June 17, 2009, the results of the split sample testing were reported 

to Respondent via telephone. (CG. Ex. 10). 

III. SUMMARY OF DECISION 

The Coast Guard PROVED by a preponderance of reliable, probative, and credible 

evidence that Respondent is a user of, or addicted to the use of, dangerous drugs as contemplated 

by 46 U.S.C. §7704(c) and 46 C.F.R. §5.35. 
For the reasons set forth infra, the Merchant Mariner’s License, as well as any and all 

other credentials issued by the U.S. Coast Guard to Respondent are hereby REVOKED. 

IV. DISCUSSION 

A. General 

The purpose of Coast Guard suspension and revocation proceedings is to promote safety 

at sea. See 46 U.S.C. §7701. Title 46 CFR §5.19 gives Administrative Law Judges authority to 

suspend or revoke a license or certificate in a hearing for violations arising under 46 U.S.C. 

§7704. Under section 7704(c), a Coast Guard issued license or certificate shall be revoked if the 

holder of that license or certificate has been a user of or addicted to a dangerous drug, unless the 

holder provides satisfactory proof that the holder is cured. 46 U.S.C. §7704(c); Appeal Decisions 

2634 (BARRETTA) (2002); 2535 (SWEENEY) (1992) (rev’d on other grounds); 2546 

(SWEENEY) (1992) (aff’d on reh’g the definition of cure established in 2535 (SWEENEY)

(1992)). 

Coast Guard chemical drug testing laws and regulations require maritime 

employers to conduct pre-employment, periodic, random, serious marine incident and reasonable 

cause drug testing to minimize use of dangerous drugs by merchant mariners. 

A marine employer’s drug testing program must be in accordance with the applicable statutes, 

regulations and Appeal Decisions. See generally 49 C.F.R. Part 40 and 46 C.F.R. Part 16. If an 

employee fails a chemical test by testing positive for a dangerous drug, the individual is then 

presumed to be a user of dangerous drugs. 46 CFR §16.201(b); see Appeal Decisions 2662 

(VOORHEIS) (2007); 2667 THOMPSON (2006). 

In the instant matter, the Coast Guard has charged Respondent with use of, or addiction 

to the use of, dangerous drugs as a result of Respondent testing positive for cocaine metabolites 

in a random drug test taken on June 3, 2009. The Coast Guard seeks revocation of Respondent’s 

license in accordance with 46 CFR §5.35. For the reasons discussed infra, the court hereby finds 
that the Coast Guard has PROVEN the allegation that Respondent is a user of, or addicted to the 

use of, a dangerous drug as contemplated by 46 U.S.C. §7704(c) and 46 C.F.R. §5.35. 

B. Due Process Concerns 

 At the outset of hearing of this matter, the parties herein submitted a Joint Motion to 

Stipulate (Motion). Upon receipt of said Motion, the court inquired whether Respondent read the 

entire document prior to signing; whether Respondent understood the significance of signing the 

document; and whether Respondent understood the meaning and truth of the statements 

contained within the document. (Tr. at 10-11). Respondent answered in the affirmative to each 

inquiry posed. Accordingly, the Motion was entered into evidence as Coast Guard Exhibit 2. 

Although Coast Guard Exhibit 2 is a Joint Motion by the Parties and Respondent expressed his 

understanding of the significance of the Motion, the court is nonetheless reticent to assign 

controlling probative weight great deal of weight to this document. 

 During the course of the hearing, the court expressed concern with regard to 

Respondent’s due process rights vis à vis a Coast Guard witness. Specifically, the court was 

concerned with the issue of notice. The forensic scientist scheduled to testify was unable to 

appear telephonically due to an unforeseeable medical emergency. The Coast Guard arranged 

for the director of the lab to testify in the forensic scientist’s stead. The court explained to both 

parties that Respondent was entitled to know in advance who all of the witnesses are that will be 

testifying against him so that he may prepare his defense. (Tr. at 41). Accordingly, the court 

advised the parties that, “we’ve going to have to continue this case unless, Mr. Pearce, you are 

adamant that you want to proceed, that knowing this legal issue exists, and you want to waive it 

and move beyond it and keep going. If you want to do that, then we can proceed and take this 

doctor’s testimony. But I’ve identified for you the legal issue. If you want a continuance, I’ll 

grant it. If you want to proceed, we can do that as well.” (Tr. at 45). A brief recess was taken to 

allow Respondent to consider his options. Upon returning to the proceeding, Respondent 
advised he wished to waive his right to continue the case. The court found Respondent 

“knowingly, intelligently, and voluntarily waived his rights to continue this case if he so 

desires.” (Tr. at 47). 

C. 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. Id. 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 Decision 2425 (BUTTNER)

(1986). See, Appeal Decision 2025 (ARMSTRONG) (1975) (stating “jurisdiction must be 

affirmatively shown and will not be presumed”). 

Jurisdiction in proceedings alleging the use of, or addiction to the use of, dangerous drugs 

is established by a Respondent’s status as a holder of a Coast Guard-issued credential and not his 

status aboard a vessel. Appeal Decisions 2668 (MERRILL) (2007); 2560 (CLIFTON) (1995), 

appeal dismissed sub. nom. Robert E. Kramek v. Richard W. Clifton, NTSB Order No. EM-180 

(1995). Coast Guard Exhibit 1 establishes Respondent is the holder of a Coast Guard-issued 

credential—more specifically, a Merchant Mariner’s License. Therefore, because the instant 

case was taken pursuant to 46 U.S.C. §7704(c) and the Coast Guard properly charged 

Respondent with “use of or addiction to the use of dangerous drugs,” Respondent's status as the 

holder of the above-captioned mariner credentials, in and of itself, affords the Coast Guard 

jurisdiction to institute the instant suspension and revocation proceeding. 

D. Burden of Proof 

The Administrative Procedure Act (APA), 5 U.S.C. §§551-559, applies to Coast Guard 

Suspension and Revocation trial-type hearings before United States Administrative Law Judges. 
46 U.S.C. §7702(a). 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. 5 U.S.C. §556(d). Under Coast Guard procedural rules and regulations, the burden of 

proof is upon the Investigating Officer to prove 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 C.F.R. §§701; 702; 

Appeal Decisions 2640 (PASSARO) (2003); 2637 (TURBEVILLE) (2003). “[T]he term 

‘substantial evidence’ is synonymous with ‘preponderance-of-the-evidence’ as defined by the 

Supreme Court.” Appeal Decision 2477 (TOMBARI) (1988). The burden of proving a fact by a 

preponderance of the evidence “simply requires the trier of fact ‘to believe that the existence of a 

fact is more probable than its nonexistence before [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). Therefore, the Coast 

Guard must prove by credible, reliable, probative, and substantial evidence that Respondent 

more-likely-than-not committed the violation charged. 

“Congress enacted 46 U.S.C. §7704 with the express purpose of removing those 

individuals possessing or using drugs from service in the United States Merchant Marine.” 

Appeal Decision 2638 (PASQUARELLA) (2003). If it is shown at a hearing that a holder of a 

merchant mariner’s document has been a user of a dangerous drug, the merchant mariner’s 

document shall be revoked unless the holder provides satisfactory proof that the holder is cured. 

46 U.S.C. §7704. 

The law is well settled that in order “to prove use of a dangerous drug, the Coast Guard 

must establish a prima facie case of drug use by the mariner.” Appeal Decisions 2668 

(MERRILL) (2007); 2662 (VOORHEIS) (2007); 2657 (BARNETT) (2006); 2632 (WHITE)
(2002); 2592 (MASON) (1997); 2589 (MEYER) (1997); 2584 (SHAKESPEARE) (1996); 2583 

(WRIGHT) (1995); 2529 (WILLIAMS) (1991); 2379 (DRUM) (1985); and 2282 

(LITTLEFIELD) (1982). 

The Coast Guard may establish a prima facie case of dangerous drug use by showing 

that: (1) Respondent was tested for a dangerous drug, (2) Respondent tested positive for a 

dangerous drug, and (3) the test was conducted in accordance with 49 C.F.R. Part 40. Appeal 

Decisions 2668 (MERRILL) (2007); 2633 (MERRILL) (2002); 2632 (WHITE) (2002). In 

considering proof of these elements, minor technical infractions of the regulations do not violate 

due process unless the infraction breaches the chain of custody or violates the specimen’s 

integrity. Id. 

Proof of these three prongs will result in the creation of a presumption illegal drug use 

and shifts to the Respondent the burden to rebut the presumption by producing persuasive 

evidence. Appeal Decision 2632 (WHITE) (2002); 2591 (WYNN) (1997). However, such a 

presumption of dangerous drug use is not an irrebuttable presumption. A respondent may rebut 

the presumption by producing evidence that: (1) calls into question any elements of the prima 

facie case; (2) indicates an alternative medical explanation for the positive test result; or (3) 

indicates the use was not wrongful or not knowing. 46 CFR § 16.201(b); Appeal Decision 2560 

(CLIFTON) (1995), appeal dismissed sub. nom. Robert E. Kramek v. Richard W. Clifton, NTSB 

Order No. EM-180 (1995). Otherwise, the individual will be presumed to be a user of dangerous 

drugs. Id. If a respondent produces no evidence in rebuttal, the presiding Administrative Law 

Judge may find the allegation of dangerous drug use proved on the basis of the presumption 

alone. Id. A fortiori, if the Coast Guard does not prove a prima facie case of illegal drug use, no 

presumption arises – and Respondent is relieved of his burden of rebuttal. 

The instant case is based solely upon the results of a urinalysis test. The Coast Guard met 

its burden of proof and established all elements of the prima facie case. A presumption therefore 
arose that Respondent used or was addicted to the use of dangerous drugs and the burden of 

rebutting such presumption fell to Respondent. After careful consideration of the testimony at 

the hearing and of the entire record, the court finds that Respondent failed to rebut this 

presumption. With regard to Respondent’s affirmative defense, Respondent failed to adduce any 

credible evidence supporting his contention he unknowingly ingested cocaine. Accordingly, the 

charge that Respondent used, or was addicted to the use of, dangerous drugs is therefore found to 

be PROVED. 

E. Prima facie Case of Dangerous Drug Use Established by the Coast Guard 

As noted supra, the Coast Guard may establish a prima facie case of dangerous drug use 

by establishing the following three elements by a preponderance of the evidence: (1) 

Respondent was tested for a dangerous drug, (2) Respondent tested positive for a dangerous drug 

and (3) the test was conducted in accordance with 49 C.F.R. Part 40. Appeal Decision 2632 

(WHITE) (2002). 

Each of the three elements is discussed infra, as each relate to Respondent herein. 

1. Respondent was Tested for a Dangerous Drug 

The first prong of a prima facie case “necessarily involves proof of the identity of the 

person providing the specimen; proof of a link between the respondent and the sample number or 

Drug Testing Custody and Control number which is assigned to the sample and which identifies 

the sample throughout the chain of custody and testing process; and proof of the testing of that 

sample.” Appeal Decisions 2662 (VOORHEIS) (2007); 2603 (HACKSTAFF) (1998). 

The Coast Guard has alleged that on June 3, 2009, Respondent submitted to a random 

drug test. (Complaint, July 23, 2009). In support of this allegation, the Coast Guard produced 

Ms. LaSonya Miller, a properly trained and qualified urine specimen collector for substance 

abuse testing pursuant to guidelines set forth by the Department of Transportation. (CG Ex. 3). 

The Coast Guard elicited a broad swath of testimony from Ms. Miller concerning both general 
urine specimen collection procedures and her collection of Respondent’s urine specimen on June 

3, 2009. (Tr. at 18-29). Ms. Miller’s testimony regarding the collection of Respondent’s urine 

specimen was properly authenticated by personal identification of her signature in Block 4 of the 

Federal Drug Testing Custody and Control Form, copy 2. (Tr. at 17-18; CG Ex. 4). 

Respondent presented to the Quest Diagnostic facility in Del Ray Beach, Florida, on June 

3, 2009, for drug testing. As a certified and trained urine specimen collector, Ms. Miller was 

responsible for the proper collection of Respondent’s urine specimen. (Tr. at 22-23; CG Ex. 4) 

Respondent was assigned the unique specimen identification number 6179642, which identified 

the Respondent’s specimen throughout the chain of custody and testing process. (Tr. at 24; CG 

Ex. 4). 

Respondent provided one urine specimen to Ms. Miller, who verified the specimen was 

within the correct temperature range and then proceeded to split Respondent’s specimens into 

two (2) samples, sealed the split samples and properly shipped them to Quest Laboratories, a 

Department of Transportation (DOT)-approved laboratory. (Tr. at 18-29; CG Ex. 4, 5). Proof of 

testing Respondent’s specimen was established through the introduction of testimony by Lennox 

B. Abbott, Ph.D., as described more fully, infra and Coast Guard Exhibit 7, the Documentation 

Package, which details the chain of custody and testing of Respondent’s specimen. 

The regulations provide that a random drug test is a 46 C.F.R. Part 16 drug test. The 

documentary evidence admitted, as well as the testimony elicited at the hearing of this matter, 

confirms that Respondent submitted a urine specimen on June 3, 2009, for a random drug testing 

by a DOT-approved laboratory. Therefore, the Coast Guard proved by a preponderance of the 

evidence that Respondent was tested for a dangerous drug on June 3, 2009. 

2. Respondent Tested Positive for a Dangerous Drug 

The second prong requires proof that the respondent tested positive for a dangerous drug. 

Accordingly, this element of the prima facie case necessarily involves proof of the test results; 
proof of the MRO’s status and qualifications; proof of the test results reviewed by the MRO; and 

proof of the MRO’s report of the results as positive. Appeal Decision 2603 (HACKSTAFF)

(1998). Here, the Coast Guard offered sufficient evidence in the form of exhibits and oral 

testimony that the urine specimen submitted by Respondent tested positive for cocaine 

metabolites. 

Lenox B. Abbott, Ph.D., director of laboratory operations for the Quest Diagnostics, Inc., 

forensic laboratory in Atlanta, Georgia, is an appropriately-trained and educated toxicologist and 

therefore was certified by the court as an expert witness in the field of forensic toxicology. (Tr. 

at 56; CG Ex. 6). Dr. Abbott’s testimony was based, in large part, upon his review of Coast 

Guard Exhibit 7, the Documentation Package provided by Quest Diagnostics. 

Dr. Abbott testified a five-panel DOT drug test was conducted on Respondent’s 

specimen, identified as specimen number 6179642. Dr. Abbott explained “[t]he five-drug panel 

include amphetamines; cocaine metabolites; marijuana; opiates; and phencyclidine, PCP.”3

 (Tr. 

at 66). Results of the initial screen indicated a positive result for cocaine metabolites. (Tr. at 68-

69; CG Ex. 7 at p. 26). Due to the positive results of the initial screen, Respondent’s specimen 

was subjected to confirmatory testing by gas chromatography/mass spectrometry (GC/MS). Dr. 

Abbott testified that the confirmatory testing revealed Respondent’s specimen indicated the 

presence of cocaine metabolites at a level of 309.34 nanograms per milliliter (ng/ml); well above 

the DOT-specified cutoff level of 150 ng/ml. (Tr. at 70; CG Ex. 7 at p. 61). Based on the 

foregoing, the court finds the Coast Guard has sufficiently established the test results at issue. 

The Coast Guard next offered the telephonic testimony of certified Medical Review 

Officer (MRO) James Vanderploeg, M.D. Proof of Dr. Vanderploeg’s MRO status and 

qualifications was appropriately established by the Coast Guard. (Tr. at 81-83; CG Ex. 9). In his 

capacity of a MRO, Dr. Vanderploeg testified that he personally reviews “every non-negative 
result, positive or invalid or otherwise and conducts an interview with the donor of that specimen 

to determine if there is any medical explanation for the test results.” (Tr. at 82). Dr. Vanderploeg 

testified custody and control forms concerning non-negative results are received from both the 

collection site and the analyzing laboratory. (Id.) Specimen identification numbers are matched 

with the test result received by the analyzing laboratory to ensure accurate review by the MRO. 

(Tr. at 83). Dr. Vanderploeg’s testimony regarding the receipt and review of Respondent’s 

results was properly authenticated by personal identification of his signature in Block 6 of the 

Federal Drug Testing Custody and Control Form, copy 2. (Tr. at 84-85; CG Ex. 4). 

In accordance with the dictates of 49 C.F.R. Part 40, Dr. Vanderploeg conducted a 

telephonic interview with Respondent and informed Respondent his urine specimen yielded a 

positive result for cocaine metabolites. Dr. Vanderploeg made a specific inquiry of Respondent 

whether there was any valid medical-legal reason for the positive result. However, Respondent 

was unable to provide a valid medical reason to Dr. Vanderploeg’s inquiry of Respondent. Dr. 

Vanderploeg then inquired “how long it had been since he had last used cocaine.” (Tr. at 88). 

Dr. Vanderploeg testified Respondent denied any recent use and advised it had been at least 15 

years since his last use. (Tr. at 88). 

Upon notification of the positive test result, Respondent requested his split urine 

specimen tested at a separate laboratory. (Tr. at 89). In support of his testimony, an “MRO 

Verification Worksheet” containing Dr. Vanderploeg’s notes related to results of Respondent’s 

drug test and his subsequent interview with Respondent was entered into evidence as Coast 

Guard Exhibit 10. 

On June 10, 2009, Quest Diagnostics shipped Respondent’s split urine specimen to the 

Minneapolis Veterans’ Affairs Medical Center for testing. Confirmatory testing verified the 

positive test results for cocaine metabolites previously yielded. Dr. Vanderploeg subsequently 

 

3

 The parameters of the five-panel test are set forth in 49 C.F.R. Part 40. 
reviewed the results of the testing performed on the split specimen and properly completed step 7 

of the Federal Drug Testing Custody and Control Form, copy 2. Based upon the foregoing, the 

Coast Guard has sufficiently proven the MRO reviewed the results of Respondent’s drug test as 

required by 49 C.F.R. Part 40. 

In his capacity as MRO, on June 6, 2009, Dr. Vanderploeg notified the maritime 

consortium responsible for managing Respondent’s maritime employer’s drug testing programs 

by letter of the results of Respondent’s drug test (Tr. 90-91; CG Ex. 11). Dr. Vanderploeg again 

notified the maritime consortium by letter on June 17, 2009, of the results of Respondent’s drug 

test on the split specimen. (Tr. 93-94; CG Ex. 12). 

Accordingly, the Coast Guard has established the second element of their prima facie

case. 

3. The Drug Test was Conducted in Accordance with 49 C.F.R. Part 40 

Title 46 Code of Federal Regulations Section 16.201 states that all chemical testing must 

be conducted in accordance with 49 C.F.R. Part 40. Here, Respondent participated in a random 

drug test, as provided by 46 C.F.R. §16.203, by submitting a urine specimen. In order for 

Respondent’s drug test to be conducted in accordance with 46 C.F.R. Part 16, Respondent’s 

urine specimen must have been tested in accordance with the testing requirements found in 49 

C.F.R. Part 40. Accordingly, the third element of establishing a prima facie case requires the 

introduction of evidence involving the collection process; the chain of custody; how the 

specimen was handled and shipped to the testing facility; and proof of the qualifications of the 

laboratory. 

The Coast Guard offered meaningful proof that the test-at-issue was conducted in 

accordance with 49 C.F.R. Subpart f, §40.81, et. seq. through witness testimony and 

documentary evidence. 
Ms. Miller, a certified urine specimen collector, provided extensive testimony involving 

the collection process; chain of custody requirements; and how the specimen was handled and 

shipped to the testing facility. In support of Ms. Miller’s testimony, the Coast Guard introduced 

Coast Guard Exhibit 4, copy 2 of the Federal Drug Testing Custody and Control Form, which 

establishes proper collection; chain of custody from collection site to the analyzing laboratory; as 

well as handled and shipped to the analyzing laboratory. 

Dr. Abbott, director of laboratory operations for forensic laboratory of Quest Diagnostics, 

provided extensive testimony relating to the chain of custody of the specimen and the 

qualifications of the Quest laboratory. In support of Dr. Abbott’s testimony, the Coast Guard 

introduced Coast Guard Exhibit 7, the documentation package containing all documents 

generated relating to Respondent’s drug test of June 3, 2009. Dr. Abbott authenticated the 

documentation package reflected an accurate and secure chain of custody of Respondent’s 

specimen. (Tr. at 64; CG Ex. 7, 8). Proof of the analyzing laboratory’s qualifications was 

appropriately established by the introduction of Coast Guard Exhibit 5, a listing of laboratories 

meeting minimum standards required to engage in urine drug testing for federal agencies. The 

analyzing laboratory herein, Quest Diagnostics, Incorporated, is listed on page 3 as one of the 

approved laboratories. 

For these reasons, I conclude that the Coast Guard has proven that the drug test(s), herein, 

were conducted in accordance with the dictates 49 C.F.R. Part 40. 

A prima facie case of use of, or addiction to the use of, dangerous drugs having been 

established by the Coast Guard, thus the burden of persuasion shifted to Respondent. Here, 

Respondent testified he was “surprised” he tested positive for cocaine. (Tr. at 105). Respondent 

testified he thought about how cocaine could have been present in his system and admitted that 

“a friend of mine had given me some fish oil pills to take because he said it lowered the 

cholesterol. And the bottle that he had put the pills in actually had cocaine in it. . . . It was 
residue.” (Id.). In support of his testimony, Respondent produced a notarized letter from his 

friend who had given him the bottle. (Resp. Ex. A). The letter by Michael David Trujillo, 

purported friend of Respondent and signatory to Respondent’s Exhibit A, claims that cocaine 

powder had been in the same bottle that he gave to Respondent containing the fish oil capsules. 

It is highly unlikely that some cocaine residue in a bottle transferred to fish oil would result in a 

positive drug test as described herein. Respondent was unable to secure Mr. Trujillo’s presence 

at the hearing of this matter and the veracity of his written statements are highly suspect. 

Respondent also produced letters from his employer, IDIVE, Inc., and Palm Beach County Reef 

Rescue, attesting to his character. (Resp. Ex. B, C). These were of no probative value. The oral 

testimony and documentary evidence offered by Respondent is of de minimus value; Respondent 

failed successfully rebut the Coast Guard’s prima facie case. 

V. ULTIMATE FINDINGS OF FACT AND CONCLUSIONS OF LAW

1. At all relevant times herein, and specifically on June 3, 2009, Respondent Larry 

George Pearce was the holder of a Coast Guard-issued Merchant Mariner’s License. 

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

vested in the Coast Guard under 46 U.S.C. §7704(c); 46 C.F.R. Part 5; 33 C.F.R. Part 

20; and the APA as codified at 5 U.S.C. §§551-59. 

3. On June 3, 2009, Respondent, at the direction of his employer, participated in a 

random test for the use of dangerous drugs by submitting a urine specimen. 

4. The collection and testing performed by Quest Diagnostics, Incorporated upon 

Respondent’s urine specimen was in accordance with the dictates of 49 C.F.R. Part 40 

and 46 C.F.R. Part 16. 

5. Testing performed by the Minneapolis Veterans’ Affairs Medical Center upon 

Respondent’s split sample was in accordance with 49 C.F.R. Part 40. 

6. The positive results for the presence of cocaine in the samples tested by Quest 

Diagnostics and the Minneapolis Veterans’ Affairs Medical Center created the 

presumption that Respondent is the user of dangerous drugs. 

7. The Coast Guard established a prima facie case of dangerous drug use by 

Respondent. 
8. Respondent’s assertion that he was unaware he had innocently ingested cocaine is not 

credible. 

9. Respondent failed to rebut the presumption that he is a user of dangerous drugs. 

10. The factual allegation “use of, or addition to the use of, a dangerous drug” against 

Respondent is found PROVED by a preponderance of the reliable and credible 

evidence and testimony as taken from the record considered as a whole. 

VI. CONCLUSION 

For the foregoing reasons, I find the Coast Guard has PROVED its allegation that 

Respondent’s is a user of, or addicted to the use of, dangerous drugs. 

WHEREFORE, 
VII. ORDER 

IT IS HEREBY ORDERED, that the Merchant Mariner’s Documents, Merchant 

Mariner’s Licenses, and all other credentials issued by the U.S. Coast Guard to Larry George 

Pearce are REVOKED OUTRIGHT. 

IT IS FURTHER ORDERED, that Larry George Pearce shall immediately tender his 

Coast Guard-issued Merchant Mariner’s Documents, Merchant Mariner’s Licenses, and all other 

credentials to the nearest United States Coast Guard office or to United States Coast Guard, 

Sector Miami, Investigations Division, 100 MacArthur Causeway, Miami, Florida 33139. 

IT IS FURTHER ORDERED, that Larry George Pearce is hereby prohibited from 

serving aboard any vessel requiring a Merchant Mariner’s Document or Merchant Mariner’s 

License issued by the U.S. Coast Guard. 

PLEASE TAKE NOTE, that issuance of this Decision and Order serves as notice of the 

parties’ right to appeal under 33 C.F.R. Part 20, Subpart J. A copy of Subpart J is provided as 

Attachment B. 

__________________________________________________

Honorable Bruce Tucker Smith 

U.S. Coast Guard Administrative Law Judge

Date: February 24, 2010
ATTACHMENT A_ – EXHIBIT & WITNESS LIST

COAST GUARD EXHIBITS 

1. Certified copy of U.S. Coast Guard Merchant Mariner’s License issued to 

Respondent Larry George Pearce (2 pages) 

2. Joint Motion to Stipulate dated October 13, 2009 (3 pages)

3. Certificate of Completion and Certificate of Training issued by Quest Diagnostics to 

LaSonya Miller (2 pages) 

4. Federal Drug Testing Custody and Control Form Copy 2-Medical Review Officer 

Copy (1 page) 

5. Department of Health and Human Services: Substance Abuse and Mental Health 

Services Administration: Current List of Laboratories Which Meet Minimum 

Standards To Engage in Urine Drug Testing for Federal Agencies. Federal Register 

Online via GPO Access: June 16, 2009, Volume 74, Number 114, pages 28507-

28509 (4 pages)

6. Curriculum Vitae of Lenox B. Abbott, Ph.D., Quest Diagnostics Inc., Director of 

Laboratory Operations and National Standards (9 pages) 

7. Documentation Package, Quest Diagnostics, Inc. (85 pages) 

8. Federal Drug Testing Custody and Control Form Copy 1-Laborotary Copy (1 page) 

9. Medical Review Officer Certification Counsel certificate issued to James M. 

Vanderploeg, M.D., M.P.H.; American Association of Medical Review Officers 

verification of certification of good standing of James M. Vanderploeg, M.D. (2 

pages) 

10. MRO Verification Worksheet (1 page) 

11. Results of Controlled Substance Testing correspondence dated June 6, 2009, to The 

Maritime Consortium, Inc. (MARITIME) signed by James M. Vanderploeg, M.D. (1 

page) 

12. Correspondence dated June 17, 2009, to Heather Spurlock, The Maritime 

Consortium, Inc., signed by James M. Vanderploeg, M.D. (1 page) 

COAST GUARD WITNESSES 

1. LaSonya Miller 

2. Lenox B. Abbott, Ph.D. 

3. James M. Vanderploeg, M.D., M.P.H. 
RESPONDENT EXHIBITS 

A. Notarized letter dated November 11, 2009, signed by Michael David Trujillo (1 page) 

B. Letter dated October 9, 2009, signed by Craig Smart (1 page) 

C. Letter dated October 16, 2009, signed by Ed Tichenor, Director, Palm Beach County 

Rescue (1 page) 

RESPONDENT WITNESSES 

 

 1. Larry George Pearce 

ALJ EXHIBITS 

 None 

ALJ WITNESS LIST 

None