UNITED STATES OF AMERICA 

DEPARTMENT OF TRANSPORTATION 

UNITED STATES COAST GUARD 

UNITED STATES OF AMERICA 

UNITED STATES COAST GUARD, 

Complainant, 

vs. 

DONALD W. SINCLAIR, III, 

Respondent 

Docl{et Number: 

Case Number: 

DECISION AND ORDER 

BEFORE: THOMAS E. P. McELLIGOTT 

ADMINISTRATIVE LAW JUDGE 

Representing the U.S. Coast Guard: 

00-0383 

PA00001049 

/ 

Lieutenant Derek A. D'ORAZIO, Attorney, Investigating Officer, and 

Lieutenant Commander Elmer EMERIC, Senior Investigating Officer, 

both stationed at the Marine Safety Office for Houston and Galveston, Texas 

at 9640 Clinton Drive, Houston, Texas 77029. 

Representing the Respondent: 

Truett B. AKIN, IV, Attorney, 440 Louisiana, Suite 1600, Houston, Texas 77002 
CONTENTS: 

I. PRELIMINARY STATEMENT Page 3 

II. FINDINGS OF FACT BASED UPON THE 

ENTIRE RECORD CONSIDERED AS A WHOLE Page 7 

III. ULTIMATE FINDINGS OF FACT AND 

CONCLUSIONS OF LAW Page 43 

IV. OPINION Page 44 

I. THE CLAIMED USE OF HEMP OIL CONTAINED 

IN FOOD PRODUCTS AND SOAP IS NOT A VALID 

REASON TO CANCEL OR NEGATE THREE 

POSITIVE CERTIFIED LABORATORY CHEMICAL 

URINALYSIS TEST RESULTS BY TWO CERTIFIED 

LABORATORIES, SUPPORTED BY TWO CREDIBLE 

CERTIFIED SCIENTISTS AND TWO CREDIBLE 

MEDICAL REVIEW OFFICERS (MROs) AND 

TWENTY -NINE (29) I.O. EXHIBITS Page 47 

II. THE USE OF SUBSEQUENT DRUG TESTING, 

PARTICULARLY HAIR ANALYSIS, CAN NOT 

BE USED TO CANCEL OR NEGATE THE PRIOR 

THREE POSITIVE FOR MARIJUANA CHEMICAL 

URINALYSIS TEST RESULTS BY TWO CERTIFIED 

LABORATORIES Page 54 

III. MINOR DOCUMENTATION AND PROCEDURAL 

CLAIMED IRREGULARITIES DO NOT REACH THE 

LEVEL OF A FATAL ERROR THAT WOULD RENDER 

VOID THE THREE LABORATORY POSITIVE TEST 

RESULTS OF THE RESPONDENT'S MARCH 20, 2000 

URINALYSIS SPECIMEN SUPPORTED BY TWO 

CREDIBLE CERTIFIED SCIENTISTS AND MEDICAL 

REVIEW OFFICERS (MROs) Page 58 

V. CONCLUSION Page 63 

VI. ORDER Page 64 

2 
I. PRELIMINARY STATEMENT 

This adversary hearing before the above Administrative Law Judge is brought 

pursuant to the legal authority contained in 46 U.S.C. Chapter 77, specifically§§ 

7701-04 (West Supp. 2000); the U.S. Administrative Procedure Act, 5 U.S.C. §§ 551-

59 (West Supp. 2000); Rules of Practice, Procedure, and Evidence for Fonnal 

Administrative Proceedings of the Coast Guard, 33 C.F.R. Part 20 (2000); Marine 

Investigation Regulations - Personnel Action, 46 C.F.R. Part 5 (1999); Chemical 

Testing, 46 C.F.R. Part 16 (1999); and Procedures for Transportation Workplace 

Drug Testing Programs, 49 C.F.R. Part 40 (1999). 

On August 23 through 25, 2000, a hearing before the Judge for the above 

captioned matter convened as scheduled in the hearing room located in Houston, 

Texas. This administrative proceeding was commenced on June 7, 2000 against 

Donald W. Sinclair, III., (Respondent) through personal service of a Complaint by the 

Attorney, Investigating Officer (I.O.), Lieutenant Derek A. D'Orazio. The Complaint 

alleges a statutory violation charging the Respondent with the Use of or Addiction to 

the Use of Dangerous Drugs in violation of 46 U.S.C. § 7704 (c) (West Supp. 2000). 

The Complaint seeks the revocation of the Respondent's U.S. Coast Guard issued 

Merchant Mariner's Document, (MMD), Number 217-76-0656 and License, Number 

831351. 

The Coast Guard's Complaint alleges the following Factual Allegations: 

1. On [March 20, 2000,] the Respondent took a Post Accident 

drug test. 

3 
2. A urine specimen was collected by Perry Proter1 of Marine 

Medical, Inc. 

3. The Respondent signed the Federal Drug Testing Custody and 

Control Form. 

4. The urine sample was collected and analyzed by SmithKline 

Beecham Clinical Laboratories (now part of Quest Diagnostics) 

using procedures approved by the Depatiment of Transportation. 

5. That specimen subsequently tested positive for Marijuana Metabolite. 

The Respondent acknowledged personal service and receipt of the Complaint 

signified by his signature on page two (2) of the Complaint. On June 26, 2000, the 

Respondent through the appearance of his attorney, Truett B. Akin, IV., Esq. of 

Houston, Texas, filed a timely written fonnal Answer to the Complaint admitting to 

all Jurisdictional Allegations.2 The Respondent denied all Factual Allegations with 

the exception of allegation Number Two (2), in which the Respondent admits urine 

collector Mr. Perry Porter of Marine Medical, Inc. collected the Respondent's urine 

sample on Monday, March 20, 2000. In his Answer, the Respondent req~ested a 

hearing before an Administrative Law Judge and affirmatively alleged that his drug 

test sample was "Tainted/Contaminated." Respondent's Answer at 2. 

The Complaint and Respondent's written Answer were filed with the U.S. 

Coast Guard, Administrative Law Judge Docketing Center and this matter was 

assigned to the undersigned Judge on June 27, 2000. On July 7, 2000, a Scheduling 

Order was issued by this Judge that scheduled the hearing to commence August 2, 

2000 at 09:00a.m. at the Hearing Room, 8876 Gulf Freeway, Room 370, Houston, 

Texas 77017~6542. On July 13, 2000, the Respondent's attorney filed an unopposed 

Motion, "Respondent's Agreed Motion to Continue" where he moved to continue the 

1 The collector's name, Mr. Perry Porter, was a typographic error reversing two letters in the 

name Porter. 

4 
hearing until August 23rd due to the unavailability of a material witness for the 

August 2nd hearing date. On July 17, 2000, the undersigned approved the 

Respondent's Motion to Continue and set the hearing date to commence on 

August 23, 2000 at 09:00a.m. until completed at the same location. 

On July 25, 2000, the Respondent filed a Motion for Discovery seeking 

responses to interrogatories and the production of named documents from the U.S. 

Coast Guard. On July 31, 2000, the Respondent filed a Motion for Summary 

Decision. On August 1, 2000, a Notice to the Coast Guard was issued by the 

undersigned to allow written response to the Respondent's Summary Decision 

Motion. However, upon review of the Respondent's Summary Decision Motion, it 

was evident that genuine issues of material fact would remain and therefore, on 

August 4, 2000, the undersigned issued an Order denying the Respondent's Motion 

for Summary Decision. On the day that the Order was issued denying the 

Respondent's Summary Dismissal Motion, the undersigned received a Supplemental 

Brief for the Respondent's Summary Decision Motion. Given that the filing of the 

Respondent's Supplemental Briefwas filed contemporaneously with the 

undersigned's Order denying Respondent's Summary Decision Motion, the 

undersigned considered the Supplemental Brief as timely. Upon consideration of the 

Respondent's Supplemental Brief, the undersigned on August 10, 2000 issued an 

Order sustaining his denial of the Respondent's Summary Decision Motion. 

On August 23, 2000, prior to the 09:00a.m. commencement of the three-day 

hearing, the undersigned Judge held a pre-hearing conference with all representatives 

z The Coast Guard's Complaint listed the Respondent's address and his Merchant Mariner's 

Document and License Numbers as jurisdictional allegations. 

5 
present. At the pre-hearing conference the parties stipulated to the admission of all 

exhibits with the exception ofl.O. Ex. No. 27 and Respondent's Ex. No.'s 15 and 16.3 

At the conclusion of the hearing, the Respondent withdrew several exhibits, Resp't 

Ex. No. 12, 15 and 16. However, the Respondent maintained his objection to the 

admittance ofl.O. Ex. No. 27 citing 33 C.P.R. § 20.808 (2000) that states: 

The ALJ may enter into the record the written testimony of a witness. 

The witness shall be, or have been available for oral cross-examination. 

The statement must be sworn to, or affirmed, under penalty of perjury. 

At the hearing, the undersigned reserved ruling on the Respondent's objection 

to I.O. Ex. No. 27 and now rules the Respondent's objection is SUSTAINED. 

Investigating Officer Ex. No. 27 is not admitted into evidence as it contains unsworn, 

unaffirmed written testimony by two individuals who provided "statements" of 

findings and conclusions that specifically address issues in this matter. Neither of the 

individuals listed in I.O. Ex. No. 27 has been or was made available for oral crossexamination to the Respondent's attorney. THEREFORE, the Respondent's Exhibits 

No.'s 1-20, with the exception of numbers 12, 15 and16 are admitted into evidence. 

The Investigating Officer's Exhibits No.'s 1-30, with the exception ofNo. 27, are 

admitted into evidence. 

At the hearing eleven (11) witnesses testified. The Investigating Officer 

presented six (6) witnesses who testified under oath. The Respondent presented five 

(5) witnesses, including himself, who testified under oath. Initially about fifty (50) 

exhibits were listed. Forty-six ( 46) were admitted into evidence by the Judge. A 

3 The exhibits will be numerically identified as "I.O. Ex. No." for the Coast Guard and 

"Resp't. Ex. No." for the Respondent. All citations to the official transcript will be designated 

by"TR." 

6 
complete list of witnesses and exhibits is contained in Appendix A, List ofWitnesses 

and Exhibits. The parties' proposed findings of fact and conclusion oflaw and the 

undersigned's rulings are contained in Appendix B. These were recently filed and the 

matter is now ready for the Decision and Order. 

II. FINDINGS OF FACT BASED UPON THE ENTIRE RECORD 

CONSIDERED AS A WHOLE 

1. At all relevant times herein mentioned and specifically on and before August 23, 

2000, the Respondent, Donald W. Sinclair, III., was a holder in possession of a 

U.S. Coast Guard issued, Merchant Mariner's Document, Number 217-76-0656 

and License, Number 831351. 

2. On March 20, 2000, the Respondent served as a deputy pilot for the Houston 

Pilots Association of Houston, Texas. A deputy pilot is the title given by the 

Houston Pilots Association to those persons enrolled in their pilot training or 

apprentice program. TR. 36-37. As a deputy pilot for the Houston Pilots 

Association, the Respondent was required to complete specific qualification 

requirements that involved the piloting of vessels in and out of the Houston, 

Texas Ship Channel. It is a very busy fifty-mile navigable waterway between the 

port-city of Houston, Texas and the port-city of Galveston, Texas with several 

additional ports along this route. It is regarded as the fourth largest port complex 

in the U.S.A. when measured by the amount of cargo shipped in and out; 365 days 

per year and 24 hours per day. There is no stoppage for ice as in many ports in 

7 
the U.S.A. during winter. The Respondent performed these "qualification 

requirements" under the supervision of an experienced and qualified pilot of the . 

Houston Pilots Association. TR. 37-40. The Respondent served under the 

authority of his U.S. Coast Guard Merchant Mariner's Document and License as a 

deputy pilot of the Houston Pilots Association. 

3. On March 20, 2000, the Respondent, under the supervision of Master or Senior 

Pilot/Captain Robert Bratcher, completed a qualification requirement for the 

Houston Pilots Association by piloting of the vessel named TMM OAXACA on 

its outbound transit on the Houston Ship Channel, Texas. TR. 44. After the 

vessel was piloted to its designated marker or place, the Respondent and Captain 

Bratcher disembarked the TMM OAXACA to return home. TR. 51-55. 

However, at or near his home, the Respondent received a telephone call from 

Pilot/Captain Bratcher stating that the vessel they had been piloting, TMM 

OAXACA, was reported to have nm aground and that Pilot Bratcher was going 

out on another vessel to that vessel to investigate. TR. 63, 886-87. A short time 

later, Captain Bratcher called the Respondent and informed him that the vessel 

TMM OAXACA was not aground or no longer aground and that it was, in fact, 

underway and proceeding outbound. TR. 63, 888. Not knowing exactly as to 

what events had just transpired or what damages had been done involving the 

ves~el TMM OAXACA or its cargoes, Captain Bratcher decided as a 

precautionary measure to take a chemical urinalysis drug test by providing his 

own urine sample that same afternoon or evening. TR. 63, 95-96, 886-887, 892. 

Captain Bratcher stated this position to the Respondent, whereupon the 

8 
Respondent decided to do the same and also provide his urine sample for drug 

testing, as is often done after such maritime accidents or incidents by those who 

had been controlling the vessel's route and navigation. Both Captain Bratcher 

and the Respondent proceeded separately to Marine Medical, Inc. and submitted 

to a chemical urinalysis drug screen by each providing his own urine sample. 

TR. 892-96. Captain Bratcher arrived first and then left. Marine Medical, Inc. is 

the designated or contracted for urine collection facility for drug testing of pilots 

for the Houston Pilots Association. It is the usual routine urine specimen 

collector for the Houston Pilots Association, both deputy pilots and fully qualified 

pilots or master pilots. Collector Mr. Perry Porter completely finished his urine 

sample collection from Pilot Bratcher before he started the urine collection 

process from Respondent Sinclair. Respondent's urine sample was the only other 

urine collection Porter performed after Pilot Bratcher had already given his urine 

sample and left that day. 

4. Collector Perry Porter is employed by Marine Medical, Inc. and is a trained and 

experienced urine specimen collector. TR. 892. Mr. Porter personally testified in 

this matter when called or subpoenaed as an I.O. witness who testified under oath. 

Mr. Porter is and was the urine specimen collector for the Respondent's March 

20, 2000 urine sample. Id. Mr. Porter did the same earlier for the Master Pilot 

Bratcher during that same evening or late afternoon on Monday, March 20, 2000. 

Pilot Bratcher's two urine tests by the same original certified laboratory were 

clear or negative for the usual five drugs tested for. Experienced collector Porter 

testified credibly that the toilets had blueing in the water and that Respondent 

9 
Sinclair did wash his hands before giving his mine sample. Respondent said he 

did not wash his own hands and saw no blueing in the toilet water. 

5. Captain and Pilot Bratcher did not testify that he Bratcher was not reminded to 

wash his hands before giving his urine sample. Also, Captain Bratcher did not 

complain or testify that he did not see blueing in the toilet waters that same 

afternoon or evening when he gave his urine sample just before Respondent 

Sinclair did it. Captain/Pilot Bratcher was found negative or clear from the use of 

marijuana or other drugs by the first certified laboratory. 

6. Even though Mr. Porter had performed numerous urine specimen collections and 

is familiar with U.S. Department of Transportation (DOT) rules and regulations 

governing the collection of urine specimens, he had developed certain procedural 

techniques in the collection process. Mr. Porter testified that he used the 

following procedural techniques in the collection ofthe Respondent's March 20, 

2000 urine specimen: 

a. Mr. Porter checked the block on the Respondent's Drug Testing Custody 

and Control Form (DTCCF) indicating that the Respondent's urine 

specimen was in the proper· temperature range just before the Respondent 

submitted his urine specimen. TR. 127-29. Mr. Porter testified that if an 

individual's urine specimen was, within the required four minutes of 

donation, found to be out of normal temperature range, collector Porter 

would start over using a new fom1. TR. 129. 

10 
b. Mr. Porter asked the Respondent to fill out and sign the DTCCF collection 

fonn just before the Respondent submitted his mine specimen. TR. 134-

35, 164-65. 

c. Mr. Pmier recorded the results of the Respondent's alcohol breathalyzer 

test in the "remarks" section of copy four ( 4) on the collection report form 

DTCCF rather than complete a separate DOT Breath Alcohol Testing 

fonn. TR. 138-40, 352. 

d. Mr. Porter had the Respondent initial the seals for his split urine specimen 

bottles just prior to actually placing the two (2) seals on the two (2) 

bottles. TR. 161-62. 

7. The Respondent's urine sample was collected as a DOT split specimen analysis 

whereby Mr. Porter provided the Respondent with two (2) clean and split 

specimen containers or bottles for the collection of Respondent's urine sample. 

The Respondent then provided at least the required amount of urine sample for 

both split specimen containers. The split specimen containers are designated as 

"A" for the primary sample and "B" for the confinnatory or additional urine 

sample. 

8. The Respondent has given numerous urine samples for such drug testing down 

through the years in the maritime industry, so Respondent knew he should wash 

his hands before giving his urine sample. The Respondent claimed that he did not 

wash his hands prior to giving his urine sample. TR. 892. Mr. Porter testified 

Respondent did wash Respondent's hands. The Respondent did admit, however, 

that he was familiar with the urine collection process and that during his thilieen 

11 
(13) to fourteen (14) years in the maritime industry, Respondent had been told by 

"some" urine collectors that he should wash his hands before providing a urine 

specimen. TR. 935-36. There was a sink provided nearby where Respondent 

could have easily and quickly washed his hands. In addition, the Respondent 

contends that the toilet at the urine collection facility lacked a water blueing 

agent; and that Mr. Porter did not give him an option to void his urine directly 

into a single, larger collection container rather than directly into the two split 

specimen containers or bottles ("A" and "B" split specimen containers) provided 

to him by collector Porter. TR. 897, 892. The purpose of the blueing is to 

prevent a urine donor from diluting his own urine specimen with toilet water. 

This could cause tests resulting in numbers too low for a positive. The blueing 

would be visible through the sides ofthe "A" and "B" containers or bottles to the 

collector and to the certified laboratory's scientists. Neither reported blueing, so 

it is of no consequence in this case. Especially since the three certified laboratory 

tests all resulted in three positives above the minimum numbers for a positive for 

man Juana. 

9. It is of no consequence that Respondent put his urine sample directly into the "A" 

and "B" containers. It saved a step. If he filled a third separate container, it 

would only have to be poured from it into the "A" and "B" containers anyway. 

10. Upon receipt of the Respondent's urine specimen, Mr. Porter continued the initial 

chain of custody by sealing both of the Respondent's split specimen urine 

containers ("A" and "B" containers) in the Respondent's presence on that same 

date, during the same collection. TR. 175-78, 189. Mr. Porter then placed the 

12 
two sealed split specimen "A" and "B" mine containers into a shipment plastic 

bag that was again sealed in the presence of the Respondent. TR. 175-78, 189. 

While Mr. Porter may have performed certain steps possibly out of sequence, the 

Respondent nonetheless signed his collection form or report DTCCF in the 

presence of Mr. Porter and in the proper place signifying that his "A" and "B" 

split specimen containers were sealed and dated in his presence at the date and 

time of the collection. I.O. Ex. No.6. 

11. Due to the time, late on Monday, March 20, 2000, at which the Respondent's 

urine specimen was collected, the Respondent's sealed split specimen shipment 

bag was initially stored in the refrigerator at the Marine Medical Facility until it 

was picked up for shipment to the first certified laboratory. TR. 178. The 

Respondent's split specimen shipment bag was as usual later delivered to the first 

of two certified DOT testing laboratories, Quest Diagnostics, Inc. of Dallas, 

Texas, (formerly SmithKline Beecham Bio-Science Laboratories) for analysis of 

Respondent's urine sample. I.O. Ex. No.6, TR. 198-99. 

12. Quest Diagnostics, Inc. carefully performed in accordance with the rules the 

analytical testing by the two required tests on portions or aliquots from the 

Respondent's "A" split specimen and finally determined by both tests that it was 

positive for the presence of marijuana metabolites. I.O. Ex. No.6. This result 

was sent to the Medical Review Officer's (MRO's) office in California and 

assigned to Dr. Suzanne Sergile, M.D. and MRO, who reviewed the collection 

and laboratory report and first notified and interviewed the Respondent on 

March 23, 2000, reporting to Respondent that his March 20, 2000 urine sample 

13 
was found positive for the use of marijuana. MRO Sergile also asked ifhe had 

any doctor's prescription for marijuana. Respondent replied no he did not. TR. 

471-607, I.O. Ex. No.8. At that point the Respondent requested that a second 

laboratory test his "B" split specimen. I.O. Ex. No.9. Quest Diagnostics 

properly transferred directly the Respondent's "B" split specimen to another 

second certified laboratory, LabOne, Inc. ofLenexa, Kansas, for an additional 

third testing and analysis. I.O. Ex. No. 10. LabOne, Inc. performed the 

confirmatory testing analysis for the Respondent's "B" split specimen by the 

confirmatory test known as gas chromatography/mass spectrometry (GC/MS). It 

confirmed the positive test result of the first certified laboratory, Quest 

Diagnostics, Inc., establishing that the Respondent's March 20, 2000 urine 

specimen was positive for marijuana. I.O. Ex. No. 13. The confirmatory positive 

result from the second laboratory, LabOne, Inc., was again sent to the same MRO 

office or company. The Respondent was again notified, by the same MRO, 

Dr. Suzanne Sergile, of this third test result of a positive for marijuana use, on 

April 5, 2000. I.O. Ex. No. 14. Therefore, the two tests by the first certified 

laboratory and the third test by the second certified laboratory all resulted in 

positives, finding marijuana in Respondent's urine samples. The combining of 

these three tests is regarded as extremely reliable state of the art of testing by the 

legal, medical and scientific communities in the U.S.A. The two said laboratory 

certifying scientists and two MROs, who all testified credibly, found these results 

were a definite positive for marijuana in Respondent's urine samples "A" and 

"B," both collected on the same date, March 20, 2000. 

14 
13. The DTCCF, collection and report form, for the Respondent's March 20, 2000 

urine specimen is identified on the form by two identifying numbers, a unique 

printed number, 8362248, and by Respondent's Social Security Number. I.O. Ex. 

No.6. The DTCCF is designed to document separate chains of custody and 

analysis for the Respondent's two split specimens and has designated pages 

labeled as 8362248-A, for the "A" split specimen and 8362248-B, for the "B" 

split specimen. I.O. Ex. No.6, 13, TR. 215. Quest Diagnostics, Inc. used the 

"8362248-A" fonn to document its test result and chain of custody for the 

Respondent's "A" split urine specimen. I.O. Ex. No. 6. The "8362248-B" form 

was used by the second or confi1mation laboratory, LabOne, Inc., to document its 

test result and chain of custody for the Respondent's "B" split specimen. I.O. Ex. 

No. 13, TR. 215-17. 

14. Quest Diagnostics, Inc. and the second laboratory were inspected and approved 

by the U.S. Department of Health and Human Services as certified laboratories. 

Quest was contracted with by the Houston Pilots Association to analyze the 

Respondent's and all their pilots' urine specimens. I.O. Ex. No.3, TR. 208. The 

certifying scientist at the first certified laboratory, Quest Diagnostics, Inc., for the 

Respondent's primary or "A" split mine specimen and their two required tests is 

Dr. Mary Hightower, Ph.D. TR. 199. 

15. Dr. Hightower testified credibly under oath at the hearing. I find her testimony to 

be reliable, including the receipt, custody and analytical testing of the 

Respondent's "A" split specimen. TR. 194-338. As the certifying scientist, 

Dr. Hightower, Ph.D. reviewed all the documentation ofthe Respondent's "A" 

15 
split specimen and verified that "the requisition, the report, the pending high sheet 

all agree that [the Respondent] was positive and ... that these numbers all 

match." TR. 224-25. In addition, Dr. Hightower properly identified the 

Respondent's "A" and "B" split specimen by its unique specimen identification 

number and by the Respondent's social security number as shown on the DTCCF. 

TR. 211-22. The external chain of custody showing the collection and receipt of 

both of the Respondent's split specimens "A" and "B" to the first certified 

laboratory, Quest Diagnostics, Inc., is valid and proper. 

16. The external chain of custody for the Respondent's "A" and "B" split specimen 

was initiated when Mr. Peny Porter, the collector, signed the transfer of the 

Respondent's "A" and "B" split specimen to the courier who delivered it to the 

specimen processor at the first certified laboratory, Quest Diagnostics, Inc. I.O. 

Ex. No.6, TR. 213-14. Upon receipt at Quest Diagnostics, the specimen 

processor verified the integrity of the sealed shipment bag and the additional seals 

on the Respondent's "A" and "B" split specimen containers. TR. 214, 217-18. 

The laboratory's specimen processor verified that the Respondent's "A" and "B" 

split specimen identification numbers listed on the DTCCF match the 

identification numbers on the Respondent's sealed "A" and "B" split specimen 

containers. I.O. Ex. No.6, TR. 214. 

17. The Respondent's "A" split specimen was further assigned an additional third 

unique identifying number, an internal laboratory accession number (010039X), 

that is and was used by Quest Diagnostics, Inc. as an additional third unique 

internal chain of custody and control number. I.O. Ex. No.6, TR. 219. 

16 
18. The Respondent's "A" split specimen was initially screened or tested for the 

presence of drugs as required by DOT screening guidelines using an 

immunoassay screening analysis or test. TR. 223, 247. The Respondent's initial 

immunoassay screening analysis test detected the presence of marijuana related 

compounds at "almost two times the [DOT mandated] cut-offlevel" or minimum 

level for a positive of fifty (50) or more nanograms per milliliter. I.O. Ex. No. 6 

at 12, TR. 253, 262-64. 

19. The first immunoassay screening analysis or test is designed to detect the various 

compounds in human urine associated with the ingestion or smoking of 

matijuana. TR. 254. However, other compounds may be present which could 

contribute to a positive immunoassay screening test result. TR. 254. Therefore, 

federal guidelines and DOT regulations require that a positive immunoassay 

screening test result be also confinned by the second test, a more specific and 

highly accurate gas chromatography/mass spectrometry (GC/MS) analysis or test. 

TR. 255. As a result, the Respondent's positive immunoassay screening analysis 

was considered by the first testing laboratory to be "pending positive or pending 

high" until confirmed by the second test called the GC/MS analysis or test. TR. 

255-56, 266-67. 

20. The GC/MS analysis test is a specific, highly accurate, scientifically and legally 

reliable analysis designed to show the presence of a specific ion associated with 

the use of marijuana. TR. 333-37. The specific ion establishing the use of 

marijuana under DOT regulations is called "11 nor-delta 9 carboxy THC" or 

"carboxy-THC." TR. 333 -34. The GC/MS analysis identifies "carboxy-THC" at 

17 
its atomic level and essentially results in "a molecular fingerprint" for the 

presence of marijuana in the Respondent's urine specimen. TR. 333-34. The 

GC/MS analysis is considered to be the "gold standard in the industry" or the.best 

and is a completely separate test from the initial screening analysis performed by 

immunoassay testing. TR. 332, 404. 

21. The Respondent's "A" split specimen was then analyzed by GC/MS analysis as 

the second test. It confhmed the first test result of the Respondent's "positive" 

immunoassay screening analysis or test at the first certified laboratory. I.O. Ex. 

No. 1. The second GC/MS analysis test showed the Respondent's urine specimen 

contained seventeen point nine (17.9) nanograms per milliliter of the specific 

·marijuana metabolite "carboxy THC." TR. 288-89, 307, and Quest's Laboratory 

Litigation Package pages 37 and 38, I.O. Ex. No.6. The DOT mandated 

minimum level for this specific metabolite is fifteen (15) nanograms per milliliter 

of marijuana or more. TR. 290, 322. The 17.9 nanograms per milliliter was then 

"rounded off' to 17 nanograms per milliliter. However, the scientific GC/MS test 

result and finding was 17.9 (or 17 and 9/10ths) nanograms per milliliter. I.O. Ex. 

No.6, pages 37 and 38. 

22. DOT rules and regulations test for the specific marijuana metabolite, "11 nordelta 9 carboxy THC" or "carboxy-THC" to detennine whether a person has used 

marijuana. This is because "carboxy THC" is only produced internally by the 

human body, primarily by the liver and kidneys when the human body 

metabolizes or processes the active ingredients of marijuana. TR. 308. The 

marijuana plant does not contain the "carboxy-THC" metabolite. TR. 308. It 

18 
develops in the human body after the body metabolizes or processes the 

marijuana. Futiher, the GC/MS analysis is designed and calibrated to only detect 

the specific metabolite, "carboxy THC" (or marijuana). TR. 308. Moreover, 

DOT rules and regulations mandate a minimum level for the GC/MS analysis of 

at least 15 or more nanograms per milliJiter to eliminate any "false positive" test 

result based on a person's exposure to what is commonly referred to as "second 

hand" marijuana smoke, or soap possibly containing marijuana. TR. 326-328, 

I.O. Ex. No.6, Litigation Package. 

23. Dr. Hightower, Ph.D. testifying credibly for the first certified laboratory, Quest, 

reviewed with great detail the Respondent's chain of custody, the immunoassay 

screening analysis and the GC/MS analysis test results. TR. 330-31. She testified 

the Respondent's "A" split urine specimen was "POSITIVE, for the following: 

CANNABINOIDS as carboxy- THC" (marijuana) at a concentration above the 

established DOT mandated minimum reporting levels. I.O. Ex. No.6. 

24. The completed positive test results from both the first immunoassay screening test 

and the second GC/MS analysis test were sent by Quest Diagnostics, Inc., the first 

laboratory, to the name and office address of the Medical Review Officer (MRO), 

Dr. Murry Lappe (as listed on the DTCCF). I.O. Ex. No.6 at 1-2, TR. 295. On 

Thursday, March 23, 2000, the Respondent was notified by the MRO assigned to 

handle Respondent's case as the MRO by Dr. Suzanne Sergile, M.D., also 

employed as an MRO by Dr. M. Lappe and his corporation, that Respondent's 

March 20, 2000 urine specimen tested at the laboratory as positive for marijuana 

use. The MRO Dr. S. Sergile, M.D. then also asked Respondent ifhe had any 

19 
doctor's prescription for marijuana use. Respondent admitted he did not. 

Following this, the Respondent, as provided by DOT regulations, requested that 

his "B" split specimen be also again tested or analyzed. I.O. Ex. No. 9, TR. 902. 

The Respondent's "B" split specimen was then packaged and shipped directly 

from the first certified laboratory, Quest Diagnostics, Inc. in Dallas, Texas, to the 

second certified laboratory, LabOne, Inc. in Lenexa, Kansas. I.O. Ex. No. 13, TR. 

297-300. Dr. Hightower, Ph.D. verified the chain of custody for the shipment of 

the Respondent's "B" split specimen from Quest Diagnostics, Inc. to Airborne 

Express for delivery to LabOne, Inc. I.O. Ex. No. 11, TR. 298. In most cases, the 

specimen donors accept the findings of the first laboratory's two tests, and this is 

often accepted by judges as adequate legal proof of a positive, especially when 

supported by credible testimony from one credible collector, one laboratory 

representative and one MRO. Here, in Respondent Sinclair's case, we have three 

laboratory tests positive, supported by two certifying scientists and two MROs, 

who testified credibly and supported by twenty-nine (29) I.O. Exhibits. 

25. LabOne, Inc. in Lenexa, Kansas is certified and inspected, by the U.S. 

Department of Health and Human Services, as a certified drug testing laboratory, 

as is the first laboratory. I.O. Ex. No. 12, TR. 374, 383. 

26. Mr. John Joseph Skuban, Jr. is employed by the second certified laboratory, 

LabOne, Inc., and is a "Positive Certifying Scientist" who personally prepared 

and credibly testified about LabOne, Inc.'s testing and litigation package for the 

confirmation analysis test of the Respondent's "B" split urine specimen also 

donated at the same time on March 20, 2000. I.O. Ex. No. 13, TR. 375, 379, 390-

20 
92. The actual certifying scientist who first perfonned the review of the 

Respondent's "B" split specimen testing was Dr. Carrie Strumpf, Ph.D. TR. 394. 

Dr. Strumpfwas unavailable to testify at this hearing. TR. 394. Therefore, 

Mr. Skuban, using standard LabOne, Inc. procedures, again reviewed and 

prepared the litigation package identified and admitted as I.O. Ex. No. 13. He is 

familiar with all LabOne, Inc. procedures, tests and importantly, with the persons, 

their signatures, initials, and qualifications who were involved in the analysis and 

third test of the Respondent's "B" split specimen by this second certified 

laboratory. TR. 392-96, 398-99,412-15. 

27. On April3, 2000, the Respondent's "B" split specimen donated by Respondent on 

March 20, 2000 was received by the specimen processor at LabOne, Inc. who 

signed for its receipt from the courier or carrier and verified the integrity of the 

shipment bag, the "B" split specimen bottle and all seals. I.O. Ex. No. 13 at 3, 

TR. 396-98, 401. Upon receipt at LabOne, Inc., the specimen processor assigned 

an additional internal and unique laboratory accession third number to the 

Respondent's "B" split specimen and designated the "B" specimen as a "retest 

confirmation" sample. TR. 3 96-99, 403. 

28. The Respondent's "B" split specimen is not required under the rules and 

regulations to be re-screened or re-tested by immunoassay screening analysis 

(first test). The reanalysis request form, as provided by Quest Diagnostics, Inc., 

reported that the initial or "A" split specimen immunoassay screening analysis 

resulted in a positive for the presence of marijuana compounds. I.O. Ex. No. 13 at 

4, TR. 403-04. Therefore, pursuant to the usual and acceptable DOT rules and 

21 
regulations, the Respondent's "B" split specimen is only required to be tested for 

a third time by the second laboratory, LabOne, Inc., using the extremely reliable 

GC/MS analysis testing to either confirm or deny the initial laboratory's (Quest 

Diagnostics, Inc.) final GC/MS analytical test results. TR. 404. 

29. Further, the GC/MS analysis performed by LabOne, Inc. is a.confirmatory 

analysis and test used to verify the test result of Quest Diagnostics, Inc. and as 

such, under DOT regulations, LabOne, Inc. is not required to use the standard 

minimum of 15 nanograms per milliliter cut-off level for "carboxy- THC." TR. 

423. As long as the second laboratory, LabOne, Inc., is able to detect the 

presence of "carboxy-THC" (marijuana) in the Respondent's "B" split urine 

specimen at a concentration above its GC/MS equipment's lower limit of 

detection, the confirmatory analysis will again positively confinn the first 

laboratory, Quest Diagnostics, Inc., positive test result of the Respondent's "A" 

split urine specimen. TR. 423-26. 

30. The second laboratory was testing for a positive of 3 or more nanograms per 

milliliter. The Respondent's "B" split specimen analyzed by GC/MS analysis at 

the second laboratory, LabOne, Inc., yielded a test result of 14 nanograms per 

milliliter of"carboxy THC" (marijuana). TR. 422, 433-35. The lower limit of 

detection for the LabOne, Inc. GC/MS equipment that was used to analyze the 

Respondent's "B" split specimen is three (3) nanograms per milliliter. Thus, a 

positive of 3 or more nanograms would result in a third positive test. The final 

third test result was 14 nanograms per milliliter, more than sufficient for a third 

positive test of finding marijuana. Tr. 425-26. 

22 
31. While the third confinnatory test result of Lab One, Inc. yielded a value of 

14 nanograms per milliliter, which is below the 17.9 nanograms per milliliter 

reported by Quest Diagnostics, Inc., it is still considered by the laboratory 

scientists and MD-MROs to be within the normal parameters or limits of a 

definite positive for marijuana under DOT regulations. TR. 423-26. LabOne's 

confirmatory test result simply reflects a certain expected level of degradation or 

dropping of the number of nanograms of the Respondent's "B" split.specimen 

over time and days, including shipment and storage. The more time, the lesser the 

numbers. TR. 423-26. 

32. LabOne, Inc. positively confirmed Quest Diagnostics, Inc. GC/MS analysis of the 

Respondent's "A" split specimen and verified the presence of"carboxy-THC" 

proving the use of marijuana by the Respondent on or before March 20, 2000. 

I.O. Ex. No. 13. LabOne, Inc. reported its confirmatory third test result for the 

Respondent's "B" split specimen on the DTCCF as "Reconfirmed for the 

following- Cannabinoids as Carboxy- THC" (marijuana). I.O. Ex. No. 13 at 1. 

The confirmation third test result by Lab One, Inc. and a copy of the Respondent's 

"B" split specimen DTCCF report was again sent to the Medical Review Officers 

(MROs), Dr. Suzanne L. Sergile, M.D. and Dr. Murray I. Lappe, M.D., using 

electronic download over a secure network. TR. 428. 

33. Dr. Suzanne Sergile, M.D. and Dr. Murray Lappe, M.D. both testified at the 

hearing and are certified Medical Review Officers employed at or by National 

Medical Review Offices, Inc. ("NMRO"). Dr. Sergile works on a part time basis 

and reviews and interprets confirmed positive chemical urinalysis test results and 

23 
also interviews donors or respondents. I.O. Ex. No.7, TR. 471, 478-82. The 

NMRO corporation is owned by MRO, Dr. Murray Lappe, M.D., who also 

testified in person at this hearing. TR. 608. Dr. Suzanne Sergile, M.D. is the 

MRO who reviewed or studied the collection documents and test results by both 

laboratories for the Respondent's "A" and "B" split specimens and performed the 

two required notifications to Respondent and conducted the two telephone 

interviews of the Respondent after the three positive tests by the two certified 

laboratories. TR. 483, 486. 

34. On March 23, 2000, Dr. Sergile conducted the first telephone interview with the 

Respondent after she received the positive test result from the first certified 

laboratory, Quest Diagnostics Inc., for the Respondent's "A" split specimen. I.O. 

Ex. No. 8. During that first interview, Dr. Sergile inquired if the Respondent was 

taking or had a doctor's prescription for Marinol. TR. 489, 532. Marinol is the 

only valid medical prescription under DOT rules that can be used to explain and 

thus negate, positive test results for the use of marijuana. TR. 489, 532. The 

Respondent admitted to Dr. Sergile, M.D. and MRO that he was not taking 

Marinol, nor did he have a medical doctor's prescription for Mminol. TR. 489. 

Dr. Sergile therefore reported the result on the NMRO's Marine Result 

Vetification Fonn that the Respondent was "POSITIVE" for "THC" (marijuana). 

I.O. Ex. No.8, TR. 489-90. At this point, Dr. Sergile had yet to personally verify 

the Respondent's chain of custody but had relied on NMRO's administrative staff 

to have conducted the necessary reviews and if relevant, transferred any 

24 
information onto NMRO's Marine Result Verification Form. I.O. Ex. No.8, TR. 

566-67. 

35. Dr. S. Sergile, M.D. and MRO further testified that: 

a. the fact that "post accident" was checked as the reason for the Respondent's 

urine tests was inelevant to her determination after notifying Respondent and 

interviewing Respondent that the Respondent's "A" split specimen tested 

positive for the use of marijuana in the first certified laboratory and that 

Respondent had no proper medical excuse, TR. 498-501, 600, 

b. the fact that the collector had also recorded the alcohol breathalyzer test result 

of negative or clear for alcohol use by Respondent in the "remarks" section of 

the Respondent's DTCCF report had no influence on her detennination that 

the Respondent's "A" split specimen tested positive in the first certified 

laboratory for marijuana; and she found no proper medical excuse or reason to 

not confirm the laboratories' findings, TR. 503-04, 

c. the fact that subsequent tests taken by the Respondent were negative for 

marijuana use had no influence on her determination that the Respondent's 

March 20, 2000 "A" split specimen tested positive for marijuana, TR. 504-06, 

d. the fact that the Respondent claims to have used soap on his skin or ingested 

food or other products that contained some hemp oil are inelevant under DOT 

rules and guidelines when considering whether a medical explanation or 

excuse is present for positive laboratory test results for the use of marijuana, 

TR. 506-08, and 

25 
e. the fact that allegations or arguments were made by Respondent concerning 

irregularities in the collection process consisting of: (1) failure by the 

Respondent to wash his hands (denied by the collector), (2) failure by the 

collector to use a toilet blueing agent at the collection facility (denied by the 

collector), and (3) the lack of an option to void his urine into a single 

collection cup or container versus the two split specimen containers had no 

importance and influence on her final determination that the Respondent's 

"A" split urine specimen still tested positive in the first laboratory for 

marijuana and Respondent had no doctor's prescription for Marinol or other 

medical proper excuse. TR. 508-10, 540-43. 

36. During the March 23, 2000 first telephone interview, Dr. S. Sergile, MRO-MD 

also informed the Respondent that he could request to have his March 20, 2000 

urine specimen re-tested within the next seventy-two hours. TR. 489, 511. 

Dr. Sergile then transferred the Respondent to their office's recorded message 

providing the specific detailed instmctions on how Respondent could request a 

retest. TR. 489, 511. The Respondent subsequently properly requested that an 

independent confirmatory second laboratory retest his "B" split urine specimen 

collected on March 20, 2000. I.O. Ex. No.9. In addition, the Respondent 

requested on March 23, 2000 that he be sent a written copy ofhis March 20, 2000 

positive urinalysis test results of his "A" split specimen by the first laboratory and 

the MRO. I.O. Ex. No.9. 

3 7. On March 27, 2000, four days after her first telephone interview of the 

Respondent, Dr. Sergile MRO signed the Respondent's original report form 

26 
DTCCF. She detennined, signed and reported that the Respondent's first 

laboratory analysis for his "A" split urine specimen was· "Positive" after her first 

notification and interview of Respondent. LO. Ex. No. 1. Pdor to signing the 

DTCCF, Dr. Sergile personally reviewed the Respondent's chain of custody and 

the first laboratory's reports and found them to be proper and in full compliance. 

LO. Ex. No. 1, TR. 495-98, 566-67. Further, Dr. Sergile MRO expressed 

certainty that the Respondent's "A" split specimen tested positive for the use of 

madjuana and that the Respondent had no proper medical excuse and indeed used 

madjuana on or before March 20,2000. TR. 601, 603. 

38. As a result ofthe Respondent's request to have his "B" split specimen tested by a 

confirmatory laboratory, Quest Diagnostics, Inc. sent the Respondent's "B" split 

urine specimen directly to LabOne, Inc. for confirmatory analysis. The third test 

result of the LabOne, Inc. confirmation analysis for the Respondent's "B" split 

specimen was also positive for marijuana use. It confirmed by the third test that 

the Respondent had used marijuana on or before March 20, 2000. LO. Ex. No. 

13. The confirmation third test results ofLabOne, Inc. for the Respondent's "B" 

split urine specimen was sent to Dr. Sergile on April4, 2000. LO. Ex. No. 14. 

On April 5, 2000, Dr. Sergile notified the Respondent that his "B" split specimen 

test result was also positive and it confinned the test results of his "A" split 

specimen proving his use of marijuana on or before Monday, March 20, 2000 

without any medical prescription or excuse for use ofmadjuana. I.O. Ex. No.1, 

14, TR. 512. 

27 
39. When the Respondent was initially notified by Dr. Sergile on March 23, 2000 that 

his March 20, 2000 "A" urine sample and urinalysis test were positive for 

marijuana use, the Respondent submitted to another chemical urinalysis test. TR. 

904~05. This second urinalysis specimen was provided by the Respondent during 

the evening of March 23, 2000 and was again collected by Mr. Perry Porter. TR. 

905~06. One Source Toxicology Laboratory, Inc. analyzed only by the first test 

immunoassay the Respondent's March 23, 2000 urine specimen. Resp't Ex. No. 

1. Dr. Jack Zaun, a certifYing scientist at One Source Toxicology Laboratory, 

Inc., reported the Respondent's second urine sample from Thursday, March 23, 

2000 was "negative" on March 29, 2000. Resp't Ex. 1. 

40. On April20, 2000, the Respondent's then named first attorney, Mr. E. Burbock, 

Esq., made a request to Dr. Murray Lappe, the president and owner ofNMRO, 

that he provide a "safe to return to work letter" for the Respondent in order that 

the Respondent would not be placed in a position where he would be unable to 

work for two (2) years. TR. 643~47. Dr. Lappe is a certified and qualified MRO 

and is accepted as an expert witness in this matter. TR. 608~21. Dr. Lappe 

testified that Attorney Burbock attempted to get him to agree that the 

Respondent's March 20, 2000 urinalysis was "incorrect." TR. 648. However, 

Dr. Lappe MRO reviewed the Respondent's entire case file and told Attorney 

Burbock that the Respondent's test results from the Respondent's urine samples 

of March 20, 2000 were a definite positive for marijuana use and that Dr. Lappe 

MRO would not cancel or overh1rn the positive test result. TR. 648. 

Nevertheless, Dr. Lappe testified that he stayed late that evening and conducted a 

28 
review of Coast Guard regulations to determine if he could "assist in some way" 

this Pilot Respondent. TR. 649-51. Dr. Lappe decided that he could write a "safe 

to return to work letter" because the Respondent Pilot did not have any prior 

history and subsequent tests showed negative results indicating that the 

Respondent had a "relatively low risk ofrecurrence." TR. 650-51. Dr. Lappe 

based his decision using Coast Guard regulations that allow an MRO to detennine 

when an individual may return to work following a positive drug test. TR. 649-

50; see also 46 C.P.R.§ 16.370 (d) (1999). 

41. On April 20, 2000, Dr. Lappe signed for the Respondent a "safe to return to work 

letter." I. 0. Ex. No. 16. The letter stated that upon review of the "appropriate 

documents and subsequent test results," the Respondent is now "drug free and the 

risk of subsequent use of dangerous drugs by Captain Sinclair is sufficiently low 

to justify his return to work." Id. Further, Dr. Lappe directed that the Respondent 

"must be subject to increased, unannounced testing for a period of Sixty (60) 

months." I d.; TR. 649-51. This 60 months o.f extra drug testing of Respondent is 

the maximum Dr. Murray Lappe MRO could give a Respondent under 46 C.F .R. 

§ 16.370(d). In addition, Dr. Lappe has maintained his position that the 

Respondent still tested positive for the use of marijuana on Respondent's 

March 20, 2000 urine sample and that under no conditions was Dr. Lappe MRO 

changing the final test result certified positive by Dr. S. Sergile MRO. TR. 651. 

In providing the "safe to return to work letter" requested by the Respondent Pilot, 

Dr. Lappe was simply stating that the Respondent was now a "relatively low risk 

of [drug use] recurrence." I.O. Ex. No. 16, TR. 643-652. Coast Guard 

29 
regulations state that "[b ]efore an individual who has failed a required chemical 

test for dangerous drugs may return to work aboard a vessel, the MRO shall 

determine that the individual is drug free" and a "low risk" to return to drug use. 

46 C.F.R. § 16.370 (d) (1999). 

42. At the hearing, the Respondent raised an issue that Dr. M. Lappe and his 

corporation's office address were initially pre-printed or stamped on the 

Respondent's collection form DTCCF as the MRO, but it was Dr. S. Sergile MRO 

who actually performed that function and signed as the MRO for the 

Respondent's DTCCF. Dr. Lappe testified that the Respondent's DTCCF, as well 

as all of the DTCCFs used by collectors or facilities doing business with his 

corporation NMRO, lists just Dr. M. Lappe as the MRO. TR. 638. Dr. Lappe 

testified that his name and company address are pre-printed on millions· of such 

collection forms that are used by NMRO clients and collectors each year. TR. 

638. The fact that Dr. M. Lappe's name and company address appear on the top 

of the Respondent's DTCCF and the fact that Dr. S. Sergile MRO personally 

served as the Respondent's MRO and is the MRO who signed the Respondent's 

positive report on the DTCCF are normal and proper procedures. Dr. Suzanne 

Sergile, M.D. and MRO is another MRO properly and legally employed by 

Dr. Lappe and the NMRO corporation to work with Dr. Lappe and other MROs 

there to handle a large volume of MRO duties. 

43. Further, Dr. Lappe MRO personally reviewed Dr. Sergile MRO's work in this 

matter and testified he agreed with her final determination that the Respondent's 

"A" and "B" split specimens both tested positive for marijuana by three certified 

30 
laboratory tests and that the Respondent, did in fact, use marijuana on or before 

March 20, 2000. These two MROs found no medical excuse for these three 

positive test findings by the two certified laboratories. TR. 642-43, 651. 

44. Dr. Lappe further testified that according to the Operating Guidance for DOT 

Mandated Drug Testing Programs, MROs should only cancel positive certified 

laboratory test results when these two following fatal flaws exist: 

a. the donor's signature fails to appear on the DTCCF at step 4 and no comment 

is made that the donor refused to sign; (The donor's signature does so appear 

at step 4.) and 

b. the certifying scientist's signature is missing on the laboratory copy of the 

DTCCF. (The certifying scientists' signatures were both present.) 

There were no such flaws in this case. I.O. Ex. No. 25, TR. 653-655. 

45. Dr. Lappe, M.D. and MRO reviewed the Respondent's three laboratory test 

results and testified that the Respondent's test results contained no fatal flaws and 

further: 

a. the failure to use a toilet blueing agent is not a fatal flaw requiring 

cancellation of the Respondent's test, TR. 656, 

b. the failure of the collector to provide the Respondent with the option to void 

into a single collection cup versus the two split specimen containers is not a 

fatal flaw requiring cancellation of the Respondent's test, TR. 656, 

c. the fact that a different MRO's pre-printed name, Dr. Murray Lappe, appears 

on the collection form than the MRO, Dr. Suzanne Sergile, M.D., who 

actually works for and with Dr. Murray Lappe and reviewed the collection 

31 
and two laboratories' results, interviewed Respondent twice and signed the 

positive final report as the MRO in this case is not a fatal flaw requiring 

cancellation of the Respondent's test, TR. 656, 

d. the fact that the collector also recorded the Respondent's alcohol breathalyzer 

test result in the "remarks" section on the DTCCF urine collection form is not 

a fatal flaw requiring cancellation of the Respondent's test, TR. 656, 

e. the fact that he, Dr. Lappe, wrote a "safe to return to work" letter is not a fatal 

flaw requiring cancellation of the Respondent's test and at worst, the "safe to 

return to work" letter would only be considered invalid, if so determined, TR. 

657-59, and 

f. the fact that "post-accident" may arguably have been wrongly checked as the 

reason for the Respondent's test and that the Respondent may have even 

volunteered to provide the urine specimen at issue is not a fatal flaw requiring 

cancellation of the Respondent's positive for marijuana use test. TR. 660-61. 

46. Dr. Lappe MRO testified there are only two valid reasons to overturn a positive 

test result for the use of marijuana and that neither reason exists in this case: 

a. the Respondent had a doctor's prescription for the use ofMarinol, TR. 663, 

and 

b. the reconfinnation analysis of the split sample, the Respondent's "B" split 

specimen failed to reconfirm the presence of marijuana. TR. 664. 

47. Dr. Lappe MRO testified that current DOT policy written guidance states: "MROs 

must never accept an assertion of consumption of a hemp food product as a basis 

for verifying a marijuana test negative." " ... consuming a hemp food product is 

32 
not a legitimate medical explanation for prohibited substance or metabolite [of 

marijuana] in an individual specimen." I.O. Ex. No. 21, TR. 662. 

48. Dr. Lappe testified that the alleged use ofhemp oil soap products while showering 

or bathing by the Respondent is not a basis to overturn a positive urine test result 

for marijuana use. TR. 665. Dr. Lappe reiterated that DOT drug testing 

procedures specifically analyze for the presence of"carboxy THC" (marijuana) 

and that this specific metabolite is only formed when the human liver metabolizes 

marijuana present in the human body which is then excreted into an individual's 

urine. TR. 675-76. Dr. Lappe stressed that the marijuana product must pass 

internally through the human body to produce the specific metabolite "carboxyTHC" and it cannot be spontaneously converted in the mine without passing 

through the body. TR. 676. 

49. Dr. Lappe MRO confinned that the Respondent's March 20, 2000 chemical 

urinalysis test was positive for the use of marijuana based on the double test 

results of Quest Diagnostics, Inc. of Dallas, Texas ("A" split specimen) and that it 

was positively confinned by LabOne, Inc. of Lenexa, Kansas ("B" split specimen) 

regardless of the fact that the Respondent subsequently tested negative only by 

chemical urinalysis screening on March 23, 2000 and had two (2) hair analyses 

performed (April 7, 2000, April 20, 2000) that indicated "negative" again only by 

immunoassay screening. TR. 713. 

50. At the hearing, the Respondent introduced a duplicate copy ofDTCCF copy 4 for 

the Respondent that was signed by Respondent and Dr. Lappe creating the 

appearance that two MROs had signed for the Respondent's "A" split specimen 

33 
drug test. Resp't Ex. No. 21, I.O. Ex. No. 1, TR. 677~80. The only apparent 

difference between the two DTCCFs was that Dr. Lappe MRO signed this copy of 

the fonn instead of Dr. Sergile MRO and that the copy signed by Dr. Sergile as an 

MRO positive contained a stamped and signed attestation signifying that it was a 

certified and true copy of the original of copy 4. Resp't Ex. No. 21, I.O. Ex. No. 

1. Both copies, however, more importantly, again established that the 

Respondent's March 20, 2000 urine samples and later urinalysis test results were 

positive for marijuana. Resp't Ex. No.21, I.O. Ex. No.1. Dr. Lappe MRO 

explained it was NMRO's or his company's policy to early after receipt from the 

laboratory at his company to scan a Respondent's DTCCF copy 4 into its 

computer system. TR. 695. This allows NMRO the capability to print out a 

scanned copy of the Respondent's DTCCF ~ 4 to anyone who requests it and 

that it would not always contain an MRO's signature. However, the original did 

and does contain an MRO's signature by Dr. Sergile, M.D. reporting a positiveof 

marijuana. TR. 695~96, 701. 

Dr. Lappe explained that if a party requested a copy of the DTCCF copy 4, it was 

NMRO's normal policy to print out the scanned copy and then sign the scanned 

version of a Respondent's DTCCF copy 4 using the infonnation provided on the 

original copy 4 that was signed by the actual MRO reviewing the case. TR. 694-

98, 701. In this instance, by request of the Respondent, Dr. Lappe provided a 

signed and dated copy of the Respondent's DTCCF copy 4 using the specific date 

and infonnation contained on MRO Dr. Sergile's original DTCCF fom1 copy 4. 

Resp't Ex. No. 21, TR. 702, 710. Dr. Lappe relied on the original DTCCF and 

34 
did not review the case file nor contact the Respondent prior to signing the 

scanned DTCCF copy 4. TR. 701-05. Dr. Lappe MRO signed the scanned copy 

or version using the same date that Dr. Sergile MRO had signed on the original 

DTCCF, even though this was effectively days later. TR. 701-05. 

Even though Dr. Lappe did not personally review nor strictly comply with the 

written statement contained on the DTCCF copy 4 that states the MRO signing 

this fonn has "reviewed the laboratory results," it is nevertheless tme, that both 

signed versions reported the Respondent's test result as "positive." Resp't Ex. 

No. 21, I.O. Ex. No. 1. Moreover, to clear up any confusion, the Respondent's 

original DTCCF copy 4 that was signed positive by Dr. Suzarine Sergile, M.D. 

and assigned MRO on March 27,2000 was Federal Expressed overnight and 

admitted into evidence at this hearing as I.O. Ex. No. 30 by Judge T. McElligott. 

51. In the later pmi of April 2000, the Respondent sought the consultation of Dr. Eric 

Comstock concerning his March 20, 2000 urine samples' positive urinalysis test 

result. TR. 726. Dr. Comstock is a board certified medical doctor in the area of 

medical toxicology and is admitted as an expert witness in that field. TR. 718-23. 

Dr. Comstock, however, is not, nor has he ever been, a Medical Review Officer 

(MRO). TR. 787. 

52. Dr. Comstock, Respondent's own witness, testified and admitted that the 

Respondent's March 20, 2000 urine samples and laboratories urinalysis 

"positively identified the presence of a derivative of marijuana." TR. 762. 

However, it is Dr. Comstock's opinion or theory after review of the Respondent's 

two (2) urinalysis tests (March 20, 2000 and March 23, 2000) and the 

35 
Respondent's April 20, 2000 hair analysis test, that the Respondent's 

March 20, 2000 positive urinalysis test result was due to the "use of hemp 

products contaminated with marijuana." TR. 784,800,1015. 

53. It was Dr. Comstock who advised the Respondent to have a hair analysis 

perfmmed to determine if the Respondent's hair samples would detect the 

presence of drugs. TR. 726-27. As a result, the Respondent asserted that he 

submitted two (2) hair specimens, the first on April 7, 2000 and the second on 

April20, 2000. Resp't Ex. No.2, 3. 

54. Dr. Comstock, Respondent's own witness, discounted completely the 

Respondent's April 7, 2000 first hair sample and analysis as irrelevant and placed 

no confidence in it "[b ]ecause the hair had not grown out" sufficiently to reflect 

the time period surrounding the Respondent's March 20, 2000 positive chemical 

urinalysis test result. TR. 744, 794-96. Dr. Comstock does consider the 

Respondent's second later hair sample (April20, 2000) to be a valid negative 

representative of whether or not the Respondent used drugs on or about March 20, 

2000. TR. 797. The Respondent's April20, 2000 hair analysis test result was 

said to be negative as analyzed only by immunoassay screening analysis for 

cannabinoids. Resp't Ex. No.3. It is important and significant that the 

Respondent's April20, 2000 second hair analysis was not analyzed by the highly 

specific and accurate GC/MS analysis hair test, but rather by the less accurate and 

more generalized immunoassay screening analysis. Resp't Ex. No.3, TR. 798-

800. 

36 
55. Dr. Comstock's opinion that the Respondent's March 20, 2000 chemical 

laboratories three urinalysis test results are a "false positive" test result is based in 

part on the subsequent drug tests taken by the Respondent following his 

March 20, 2000 positive urinalysis test result. TR. 792, 800. Dr. Comstock is 

aware that MROs are not allowed to take into account or consider subsequent or 

later drug tests (urine or hair) pursuant to the carefully considered and established 

guidelines of the MRO handbook when detem1ining the validity of a positive 

chemical urinalysis drug test result. One of the reasons for this stated policy is 

that once a urine donor completely stops using the drug and it flushes out of his 

body, he can then pass hundreds oflater or subsequent tests. I.O. Ex. No. 18, TR. 

791-92; Judicial Notice, Fed. Rules of Evidence and Official Notice;-33 C.F.R. 

Part 20; TR. 241-458. This does not disprove that on March 20,2000, there were 

marijuana metabolites in Respondent's urine. 

56. Dr. Comstock further acknowledged that such hair testing for drug use is not U.S. 

DOT approved nor is it even approved by the U.S. Food and Drug Administration 

(FDA). TR. 791. Dr. Comstock admitted that hair analysis drug testing is not 

FDA approved because "it has not been around and in use long enough to be 

subject to the very prolonged tedious evaluation procedures used to achieve FDA 

approval." TR. 1022. One ofthe standards established in Daubert v. Merrill Dow 

Pharmaceuticals, 509 U.S. 579, by the U.S. Supreme Court requires scientific 

evidence to be reliable and accepted by the scientific community. The scientific 

community relies on and accepts these certified laboratory urine tests not later 

urine and hair tests. 

37 
57. Moreover, Respondent's Dr. Comstock testified and admitted that hair analysis 

drug testing is probably "not as sensitive as the urine test" even though he thinks 

or believes that a single use of marijuana would be detectable in the "pi co gram 

quantities" as indicated by hair analysis drug testing. TR. 1027-28. It is clear that 

hair analysis used in workplace drug detection programs utilizes a different 

standard in analyzing and reporting test results. TR. 1029. Hair analysis test 

results are quantified in "picograms per gram" rather than "nanograms per 

milliliter" as analyzed and reported under DOT approved procedures. TR. 1029. 

While clearly, a picogram represents a smaller unit of measurement than a 

nanogram, it is noteworthy that the Respondent's April 20, 2000 hair analysis was 

not tested by the very reliable GC/MS analysis tests, but was only screened by 

immunoassay screening analysis and yielded only a negative, non-quantifiable 

test result. Resp't Ex. No. 3, TR. 798. 

58. In addition to relying on the Respondent's subsequent drug tests, Dr. Comstock 

believes that the Respondent's March 20, 2000 positive urinalysis test result was 

"not evidence of illegal [drug] use, [but] was the result of a legal product 

containing traces of marijuana." TR. 800. 

59. However, in formulating his opinion, Dr. Comstock had no specific knowledge of 

what hemp oil related products were actually used by the Respondent nor did he 

have any knowledge as to what amount or concentration ofTHC (marijuana) was 

or was not present in the hemp oil products claimed to have been used by the 

Respondent. TR. 804. Dr. Comstock relied entirely upon the truthfulness of 

statements of the Respondent and his wife that they used hemp oil related food 

38 
products and soap in their home. TR. 803. Finally, it is Dr. Comstock's opinion 

that the Respondent's claimed use ofhemp oil products is only a "possible 

explanation" for the Respondent's March 20, 2000 positive urinalysis test result. 

TR. 1021, 1023. 

60. While maintaining this position, Dr. Comstock testified that the "possibility" 

exists that "THC under a variety of conditions spontaneously oxidizes without the 

necessity ofbeing in the body" and that hemp oil could possibly be absorbed into 

the body "through the skin." TR. 1018-19. Dr. Comstock did agree, however, 

that ifTHC (marijuana) levels are kept below a certain threshold level in legally 

purchased hemp oil products then a "false positive" chemical urinalysis drug test 

result should not occur. TR. 1014. 

61. The Respondent introduced Dr. Head to testify as an expert witness as a qualified 

MRO. TR. 961-67. Dr. Head is an Assistant Professor ofintemal Medicine at 

the University of Texas Medical Branch, in Galveston, Texas. Resp't Ex. No. 13, 

TR. 964. While Dr. Head is cetiifi~d as an MRO, he devotes the majority of his 

time to his medical practice and academic work. TR. 968-69. Moreover, since 

1997, Dr. Head has only served as an expert witness once. TR. 967-968. Based 

on the above, the Coast Guard objected to Dr. Head being admitted as an expeti 

witness and the undersigned Judge sustained that objection as to an expert 

witness, but Dr. Head was permitted to testify. TR. 967-976. Dr. Head is mainly 

in the general practice of medicine. 

62. Dr. Head presented a somewhat confused opinion or theory as he testified 

telephonically from his home regarding the applicability and definitions contained 

39 
in 49 C.F.R. Part 40 and 46 C.F.R. Part 16 as they apply to DOT chemical 

urinalysis drug testing. TR. 976-84. On one hand, Dr. Head testified that 

subsequent hair analysis testing results could be taken into consideration if 49 

C.F.R. "Part 40 did not apply," but it definitely does apply; and that he would 

cancel the Respondent's March 20, 2000 positive test result. TR. 984-986. 

However, more impmiantly, Dr. Head, Respondent's own witness, later 

contradicted his own prior testimony; and admitted that using existing DOT rules 

and regulations for the Respondent's case, he would not negate nor cancel the 

Respondent's March 20, 2000 positive for marijuana test results. TR. 1003. 

63. Dr. Head for Respondent further testified that: 

a. the fact that Dr. M. Lappe's MRO name appeared printed on top of the 

DTCCF as the MRO's name and office address when MRO Dr. Suzanne 

Sergile, M.D. actually reviewed Respondent's data and signed the positive as 

the actual MRO assigned as MRO to Respondent's case was not a fatal flaw in 

the urinalysis testing process, TR. 1000-01; 

b. the fact that a person did not wash their hands prior to giving a urine sample 

was not a fatal flaw in the urinalysis testing process, TR. 1001; 

c. the failure to use a toilet blueing agent at the collection facility was not a fatal 

·flaw in the urinalysis testing process, TR. 1001. The urine collector, Perry 

Porter, testified they did have blueing in the toilet in the men's room or 

bathroom where Respondent donated his "A" and "B" urine samples on 

March 20,2000, TR. 157; 

40 
d. Respondent voiding his urine into one container versus directly into two "A" 

and "B" containers or bottles was not a fatal flaw in the urinalysis testing 

process, TR. 100 1-02; collector Porter testified that Respondent chose to void 

directly into the two containers rather than into one collection cup to be later 

poured into the "A" and "B" containers, TR. 150-160; there were two {2) 

sinks readily available for hand washing by Respondent, TR. 150-160; 

e. the possible wrong reason for taking the drug test being checked on the 

DTCCF was not a fatal flaw in the two laboratories' urinalysis testing process, 

TR. 1002; 

f. the fact that the Respondent's clear alcohol breathalyzer test result was also 

recorded by the collector in the "remarks section" on the DTCCF was not a 

fatal flaw in the urinalysis testing process, TR. 1002; and 

g. that under current U.S. Department ofTransportation (DOT) rules regarding 

the MROs consideration of subsequent drug test analysis, the Respondent's 

March 20, 2000 positive drug test results would not be negated or cancelled, 

but would be respected. TR. 1003. 

64. The Respondent personally appeared and testified in this hearing. TR. 831-32. It 

is the Respondent's position that the cause ofhis March 20, 2000 positive 

urinalysis test results was due to the use of hemp oil soaps that he used in the 

normal ways of showering or bathing. TR. 956-57. The Respondent did not 

know how long he had been using hemp oil soaps and he testified that he did not 

knowingly ingest or drink any hemp oil related products prior to March 20, 2000. 

41 
TR. 956-57. Respondent and Respondent's wife did not know the amount, if any, 

of hemp oil in these products. TR. 937, 1040-1043. 

65. The Respondent's wife, Sandra Sinclair, testified that she had been purchasing 

natural or handmade products, like the hemp oil soaps presented in Resp't. Ex. 

No. 19, ever since she was nineteen years old. TR. 1039-41. While Mrs: Sinclair 

expressed a strong preference for purchasing or using natural or homemade 

products, neither she nor the Respondent paid any attention to the labels and thus 

did not know the actual ingredients or amount of ingredients contained in the 

products she purchased. Thus she and Respondent did not know of the amount, if 

any, of hemp oil in these products. TR. 93 7, 1040-43. Mrs. Sinclair further 

testified that she purchased lotions and oils, including salad oils containing hemp 

oil that were used in the home. TR. 1042. However, no evidence was introduced 

by the Respondent on what these products were and whether or not they actually 

contained hemp oil nor did they show any amounts ofhemp oil in any claimed 

products. TR. 1052-53. Mrs. Sinclair testified that she had purchased natural and 

homemade products throughout her twenty-year marriage with the Respondent. 

TR. 1041-46. However, Respondent testified that he passed several urine drug 

tests in the past fourteen (14) years in the U.S. Merchant Marines. So why did 

these hemp oil products not produce positive tests before? 

66. The Respondent did introduce an exhibit that purported to contain copies of three 

(3) labels for the hemp oil soap products that he used only on his skin in the 

normal manner ofbathing or showering. Resp't Ex. No. 19. 

42 
III. ULTIMATE FINDINGS OF FACT AND CONCLUSIONS OF LAW 

1. Respondent Donald W. Sinclair, III., and the subject matter of this hearing are 

clearly and properly within the jurisdiction of the United States Coast Guard and 

the Administrative Law Judge in accordance with 46 U.S. Code Chapter 77, 

including, 46 U.S.C. § 7704 (West Supp. 2000); U.S. Department of 

Transportation's (DOT's) 49 C.P.R. Part 40 (1999); and the U.S. Coast Guard's 

(USCG's) 46 C.P.R. Parts 5 and 16, (1999), 33 C.P.R. Part 20 (2000), and 33 

C.P.R. Part 95. 

2. At all relevant times, the Respondent was the holder of and acted under the 

authority of his U.S. Coast Guard issued Merchant Mariner's Document, No. 217-

76-0656 and License, No. 831351 while serving as a deputy pilot or trainee pilot 

for the Houston Pilots Association of the Houston Ship Channel and Houston, 

Texas. 

3. The chemical urinalysis drug tests on the two urine samples submitted by 

Respondent Donald W. Sinclair, III. on March 20, 2000, were satisfactorily 

performed without any fatal errors in substantial compliance with DOT and 

USCG chemical urinalysis drug testing rules including, 46 C.P.R. Part 16 (1999), 

49 C.P.R. Pati 40 (1999). They were supported and determined by three drug 

tests supported by two qualified and certified drug testing laboratories, two 

certifying scientists, and two certified and qualified Medical Doctors/Medical 

Review Officers, to be POSITIVE for marijuana, proving the use of a dangerous 

drug, namely marijuana, by the Respondent, on or before March 20, 2000. 

43 
4. The Complaint "USE OF OR ADDICTION TO THE USE OF DANGEROUS 

DRUGS" is found PROVED by a preponderance of the reliable, probative, 

substantial and credible evidence as taken from the entire hearing record 

considered as a whole. 

IV. OPINION 

Some major purposes of Coast Guard suspension and revocation proceedings 

and hearings before Administrative Law Judges are to promote safety at sea and in 

our nations ship channels, port cities and navigable waterways. See 46 U.S.C. § 7701 

(West Supp. 2000). "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." 46 U.S.C. § 7704 (c) (2000); see also COMMANDANT'S APPEAL 

DECISION 2535 (SWEENEY). "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." 46 C.P.R.§ 16.201 (b) (2000). 

On March 20, 2000, the Respondent submitted his urine specimen for 

chemical urinalysis drug testing that was analyzed by two different approved test 

methods by two federally approved, tested and certified testing laboratories that 

finally reported the Respondent's urine specimen to be "positive" for the presence of 

marijuana. The Respondent later requested a confirmation analysis of this same urine 

specimen by an independent second certified laboratory as provided under Coast 

44 
Guard rules. An independent federally approved, tested and certified laboratory 

performed a confirmation analysis GC/MS test of the Respondent's March 20, 2000 

urine specimen. The confirmation laboratory verified the initial laboratory's two test 

results and reported the Respondent's March 20, 2000 urine specimen as 

"reconfirmed" by a third laboratory test for the presence of marijuana. The 

Respondent's urine specimen had a verified unbroken chain of custody for both the 

initial and confirmatory laboratories. The complete test results from the two certified 

laboratories were carefully reviewed and supported in testimony by two certifying 

scientists and two qualified and certified Medical Review Officers (MROs) who 

testified credibly that the Respondent's March 20, 2000 urine specimen was positive 

and that the Respondent had used marijuana on or before March 20, 2000. The 

Investigating Officer presented by the preponderance of the evidence, including 

credible and reliable testimony and documentary exhibits that proved the Respondent 

did use a dangerous drug on or before March 20, 2000. The statutory wording of 46 

U.S.C. § 7704 (c) (2000) clearly shows that even a one time use of a dangerous drug 

constitutes grounds for revocation unless the mariner shows satisfactory proof that he 

is cured. See 46 U.S.C. § 7704 (c); see also APPEAL DECISION 2535 

(SWEENEY). 

The Investigating Officer has the burden of proof in a Coast Guard suspension 

and revocation proceeding to establish a prima facie case by the preponderance of the 

evidence that the Respondent is a user of or is addicted to the use of a dangerous 

drug. See 46 U.S.C. § 7704; 33 C.F.R. § 20.701-02 (2000); see also APPEAL - --

DECISION 2379 (DRUM) (stating U.S. Coast Guard has burden of proof to establish 

45 
drug use). The Respondent submitted a urine specimen to a chemical urinalysis drug 

test on March 20, 2000 that was tested, analyzed and confirmed by three tests by two 

independent, approved and certified laboratories that resulted in a positive test result 

three times for the presence of marijuana. Two laboratory scientists and two MROs 

testified credibly to support these positive results. The Respondent's March 20, 2000 

positive urinalysis three test results created the presumption and more that he used a 

dangerous drug on or before March 20,2000. See 46 C.F.R. § 16.201(b) (1999). The 

Respondent's evidence did not properly persuade nor rebut the Investigating Officers' 

strong evidence. 

The Respondent argued inter alia that his March 20, 2000 positive urinalysis 

drug test was due to the use of legally obtained hemp oil products, especially hemp 

oil soaps used in the normal manner ofbathing or showering. The Respondent's 

witness, Dr. Comstock, testified that the Respondent's claimed use ofhemp oil 

bathing soaps used in the nonnal course of bathing "could" be a "possible 

explanation" for the Respondent's March 20, 2000 positive urinalysis test results. 

Respondent's other medical witness, Dr. Head, contradicted this as did the four expert 

witnesses and numerous exhibits of the Investigating Officer. The Respondent has 

further raised arguments or issues concerning his March 20, 2000 positive urinalysis 

three test results. 

46 
I. The Claimed Use of Hemp Oil Contained in Food Products and Soap is Not a 

Valid Reason to Cancel or Negate Three Positive Certified Laboratory 

Chemical Urinalysis Test Results by Two Certified Laboratories, Supported 

by Two Credible Certified Scientists and Two Credible Medical Review 

Officers (MROs) and Twenty-nine (29) I.O. Exhibits 

The Respondent claimed that his March 20, 2000 positive chemical urinalysis 

drug test result was due to the use oflegally obtained hemp oil bathing soaps that he 

used in the normal manner of showering or bathing. The soaps containing hemp oil 

were either purchased by the Respondent's wife or given to the family as gifts. The 

Respondent and his wife testified that they did not read the product labels or 

ingredients for the hemp oil soaps and that they were unaware that any hemp oil 

products were used in their home. The Respondent's wife testified that it was only 

after the Respondent had tested positive for marijuana use on March 20, 2000 that 

they learned that hemp oil products might possibly cause a positive urinalysis test 

result. The Respondent's wife asserted that it was only at that time, they attempted to 

determine what hemp oil products were present in their home and then realized that 

many of their household products did not have labels. However, the Respondent was 

able to argue that the showering or bathing soaps he was using contained hemp oil 

and submitted an exhibit containing a copy of three (3) soap labels. The Respondent 

testified that as a deputy pilot his work schedule revolved around the various anival 

and departure times for the numerous vessels moving in and out of the approximately 

47 
50 mile Houston Ship Channel. This created a highly varied work schedule where the 

Respondent would shower sometimes multiple times a day. 

The Respondent's witness, Dr. Comstock, testified that external exposure to 

hemp oil soap products "could" be a "possible explanation" for the Respondent's 

March 20, 2000 positive test result. Dr. Comstock testified that the active ingredient 

in marijuana (THC) is an oil-based product that could be absorbed into the body and 

metabolized as "carboxy- THC." As previously stated, "carboxy-THC" is the 

marijuana metabolite that is analyzed by DOT chemical urinalysis drug testing 

procedures to detennine whether a person has used marijuana. Further, 

Dr. Comstock testified that the hemp oil contained in the bathing soaps could be 

externally retained by the Respondent's body and may have externally contaminated 

the Respondent's March 20, 2000 urinalysis specimen. The Respondent testified that 

although he has given many urine samples over the prior 14 years, he failed to wash 

his hands this one time when he provided his March 20, 2000 urine specimen. 

Respondent argues that soap products from under his fingernails or residual to his 

skin could possibly have contaminated his urine specimen. However, if it came from 

his fingers, it would not contain the marijuana metabolites found by the laboratories 

in his urine sample. Metabolites only come from being processed through the human 

body. Collector Porter testified there were two sinks for hand washing readily 

available to Respondent on the evening of collection about 7 p.m. to 8 p.m. on March 

20, 2000. TR. 150-160. He testified Respondent did wash his hands. 

Dr. Comstock follows that claim that the Respondent's contaminated urine 

specimen could contain the active ingredient of marijuana (THC) which could 

48 
somehow "spontaneously metabolize" in the Respondent's urine specimen without 

ever passing regularly through the human body and produce the "carboxy-THC" 

metabolite analyzed by DOT dn1g analysis. The Respondent further asserts that his 

frequent and repeated use ofhemp oil bathing soaps allowed for the absorption of the 

active ingredient of marijuana (THC) through his skin into his body which was then 

somehow metabolized into his March 20, 2000 urine specimen. 

For the following reasons, the undersigned finds the Respondent's explanation 

and the testimony of Dr. Comstock improbable and unreliable when weighed against 

the preponderance of reliable and credible evidence introduced at this hearing that 

supports the finding that the Respondent used a dangerous drug on or before March 

20, 2000 as proved by his three positive chemical urinalysis test results. 

The Respondent's March 20, 2000 urinalysis specimen was collected and 

analyzed by trained, experienced and qualified persons using DOT, Department of 

Health and Human Services and U.S. Coast Guard carefully approved procedures and 

rules that govern chemical urinalysis drug testing. Respondent's own witness, 

Dr. Comstock, testified and even admitted that upon review of the Respondent's 

March 20, 2000 positive test results that the Respondent's urine specimen did, in fact, 

contain the specific metabolite, "carboxy-THC" (marijuana). However, it is 

Dr. Comstock's opinion that the source ofthe "carboxy-THC" found in the 

Respondent's March 20, 2000 urine specimen was not due to the illegal use of 

marijuana but by the use of and subsequent contamination caused by the 

Respondent's hemp oil bathing or showering or eaten products. 

49 
The Respondent testified that he could bathe or shower numerous times a day 

while he was waiting for the arrival and departure times of the vessels he would assist 

in navigating up and down the Houston Ship Channel. The Respondent testified that 

he showered and rinsed as any nonnal person would in the normal course of 

showering and did not knowingly ingest or eat any part of the soap products. It is 

from this scenario that the Respondent and his expert witness formulate their 

hypothesis that the hemp oil contained in the bathing soaps somehow contaminated 

and/or resulted in his March 20, 2000 three positive urinalysis test results. The 

undersigned Judge finds it highly improbable that a sufficient amount of soap could 

be retained on the skin or under the fingernails of the Respondent that could 

contaminate his March 20, 2000 urine specimen to the high level that would cause 

three positive urinalysis test results. This finding is based in part on the fact that 

DOT regulations have established a minimum cut-off level for determining a positive 

chemical urinalysis test result whose purpose is to insure that "false positive" results 

do not occur. Further, it is noted that Dr. Comstock's opinion that the active 

ingredient in marijuana (THC), that may or may not have been present in sufficient 

quantities in the hemp oil soap products used by the Respondent could 

"spontaneously metabolize" was refuted by the testimony of several witnesses, 

including the testimony of an expert opinion introduced by the Investigating Officer. 

Neither the Respondent nor his witness, Dr. Comstock, offered any credible, 

convincing and persuasive evidence or scientific study or literature to support or 

corroborate their arguments or theory. Whereas the Investigating Officer introduced 

convincing, persuasive, reliable and credible evidence including expert witness 

50 
testimony from two laboratory certifying scientists and two medical doctors who 

were also Medical Review Officers (MROs) and twenty-nine (29) I.O. Exhibits to 

clearly support the finding that the Respondent used a dangerous drug on or before 

March 20, 2000. 

Both the Respondent and his wife testified that they had been unaware of 

using hemp oil related products prior to learning of the Respondent's March 20, 2000 

positive urinalysis drug test results. The Respondent's wife testified that she 

purchased, with the exception of one of the bathing soaps gifted to them, all of the 

hemp oil bathing soaps and household products used by the Respondent. She testified 

that over the course of their twenty-year marriage, she had always looked for and 

purchased homemade or natural products. Her testimony suggests a high degree of 

preference to the use of natural or homemade products. However, her testimony 

regarding this preference is not consistent or congruent with her testimony that she 

never looked at product labels. One would necessarily conclude that a person 

interested in purchasing those type products would also be very interested in the 

ingredients they contain. It is interesting to note that importantly Respondent is not 

reported to have failed prior urine tests for drugs during prior tests during fourteen 

(14) years in the U.S. Merchant Marine industry, although they claim such use of 

products in the prior twenty (20) years. 

However that may be, most telling are the opinions and testimony given by 

the Investigating Officers' two certifying scientists and two Medical Doctors/MROs 

and Respondent's own witness, Dr. Comstock. Dr. Comstock clearly acknowledged 

and admitted that the Respondent's March 20, 2000 urine specimen tested positive for 

51 
"carboxy-THC" (marijuana). Moreover, Dr. Comstock merely concludes that his 

theory or opinion is only a "possible cause" as to why the Respondent's March 20, 

2000 urinalysis test was positive for marijuana by the three usual and required type 

laboratory tests. Dr. Comstock did not offer into the record any medical toxicology 

documentation, scientific study or literature to support or corroborate his theory or 

opinions in this area. This is of particular concern given the facts that the 

Investigating Officer introduced contradictory testimony from four other witnesses, 

including expert witness testimony and I.O. Exhibits 24, 25, and 26 that directly 

contradicts Dr. Comstock's theories. Moreover, Dr. Comstock never investigated nor 

inquired into what specific products or amounts the Respondent used, or whether or 

not they actually contained any hemp oil and to what degree or concentration ofTHC 

(marijuana) may have been present in the hemp oil bathing soaps. Dr. Comstock's 

opinion in this area may speculate a "possible reason" as to why the Respondent 

tested positive, but it does not rebut the conclusion that the Respondent used 

marijuana on or before March 20, 2000 as proved by his three positive urinalysis drug 

test results supported by two certified laboratories, supported by credible testimony of 

two certifying scientists and confirmed by two Medical Review Officers: Dr. S. 

Sergile, M.D. and Dr. M. Lappe, M.D. and twenty-nine (29) I.O. Exhibits. The 

Respondent failed to introduce sufficient convincing evidence to show that his use of 

hemp oil products or soaps used in the normal course of showering or bathing could 

result in a positive urinalysis test result for marijuana. I do not find Dr. Comstock's 

or Dr. Head's testimony convincing when compared with the credible, convincing 

testimony of two scientific experts from the two certified laboratories, the two 

52 
Medical Review Officers and the twenty-nine (29) I.O. 's documentary exhibits 

admitted into evidence. 

Since 1 997, DOT policy regarding MRO evaluations concerning claims of 

hemp oil use by Respondents is strong and clear, "MROs must never accept an 

assertion of consumption of a hemp food product as a basis for verifYing a marijuana 

test as negative. Whatever else it may be, consuming a hemp food product is not a 

legitimate medical explanation for a prohibited substance or metabolite in an 

individual's specimen." I.O. Ex. No. 23. Emphasis added. The MRO guidebook 

further supports the testimony and evidence introduced by the Investigating Officer 

against the speculative and tenuous nature of the Respondent's arguments that his 

positive drug test result was only due to using hemp oil products especially by 

· showering or bathing soaps. 

Given all the above, the Respondent's arguments falls short to rebut the proof, 

presumption and findings that the Respondent used a dangerous drug (marijuana) on 

or before March 20,. 2000 as proved by the three positive test results by the two 

certified laboratories of his chemical urinalysis drug tests and also supported by the 

two certifYing scientists and the findings by the two Medical Review Officers, Dr. S. 

Sergile, M.D. and Dr. M. Lappe, M.D. "The unrebutted presumption is sufficient to 

find a charge and specification alleging use of a dangerous drug proved." APPEAL 

DECISION 2555 (LA V ALLAIS). 

53 
II. The Use of Subsequent Drug Testing, Particularly Hair Analysis, Can Not be 

Used to Cancel or Negate the Prior Three Positive for Marijuana Chemical 

Urinalysis Test Results by Two Certified Laboratories 

It is a well known scientific and medical fact that once a mariner or specimen 

donor completely stops taking or using drugs such as marijuana, that since the human 

body continually flushes out the drug or marijuana, that shortly afterward all his or 

her tests will then be clear or negative, or at least below the levels for positive tests. I 

am taking judicial notice of these facts in accord with Federal Rule ofEvidence, 201, 

Uniform Rule 12, and McCormick on Evidence, Sec. 330, p. 712. 

The Respondent submitted to three (3) subsequent drug analyses following the 

first notification to Respondent by the MRO, Dr. S. Sergile, M.D., that his March 20, 

2000 urine sample "A" that underwent two laboratory urinalysis tests was positive for 

marijuana use. The first later analysis by Respondent was a chemical urinalysis drug 

test submitted by Respondent days later. The second later analysis by Respondent 

was a hair analysis drug test on some hair submitted on April 7, 2000. The third later 

analysis by Respondent was also a hair analysis drug test on some hair submitted on 

April 20, 2000. The test results from all three (3) subsequent drug analyses by 

Respondent were reportedly "negative" but were analyzed only by immunoassay 

screening analysis. Only the extremely reliable GC/MS tests provide the specific 

amount of marijuana found by the tests and this GC/MS test was not used on any of 

Respondent's later or subsequent tests. 

54 
As for any assessment that could possibly be considered, the Respondent's 

April 7, 2000 first hair analysis drug test is totally irrelevant and disregarded in this 

case. Even Respondent's own witness, Dr. Comstock, testified and admitted that the 

Respondent's first April 7, 2000 hair specimen test cannot be considered for any 

reliable and representative testing purpose in this proceeding. Nevertheless, the 

Respondent seeks to use the remaining two drug test results to support his arguments 

that his March 20, 2000 three positive laboratory urinalysis drug tests could have only 

been caused by specimen contamination or hemp oil soap use. However, the 

undersigned finds that the Respondent's subsequent drug test analysis cannot be used 

to .cancel or negate the Respondent's March 20, 2000 three positive urinalysis test 

results supported by two certified laboratories, two credible certifying scientists and 

two credible MROs, Dr. Suzanne Sergile, M.D. and Dr. Murray Lappe, M.D. and the 

numerous Investigating Officers' documentary exhibits admitted into evidence. 

DOT and Coast Guard policy and regulations provide that MROs are not to 

consider the test results of subsequent drug test analysis when determining whether or 

not a positive drug test result is valid. Specifically, "The MRO shall not, however, . 

consider the results or (of sic) urine samples that are not obtained or processed in 

accordance with this part." 49 C.P.R. Part 40, § 40.33 (b) (3) (2000). The Coast 

Guard regulations and procedures used to conduct workplace drug testing as 

mandated by 46 U.S. Code Chapter 77 and the U.S. Department of Transportation 

require the use of, and in fact, only recognize chemical urinalysis drug testing by 

certified and inspected laboratories as the only proper analysis used for workplace 

drug testing. See 49 C.P.R. Subpart B (2000). Further, the Medical Review Officers 

55 
Handbook, I.O. Exhibit 18, serves to provide direct guidance on this very issue and 

states in section 196: 

In no circumstance may the MRO consider the analysis of any 

specimen other than the original specimen (or its split specimen) 

in determining whether a particular result is positive or negative. 

This means that iftwo.separate specimens (not a split specimen) 

are collected from a donor at a given time or at two different times, 

the result of one specimen has absolutely no bearing on the result 

of the other. 

This regulatory prohibition also serves an important role in preventing 

individuals with positive tests from having additional uncontrolled 

tests performed and submitting the ''negative" findings to confound 

the MRO verification process. Hair, blood and additional urine tests 

have all been proffered by individuals as "proof' that the controlled 

test was wrong. This information can certainly be the basis for retesting 

an aliquot [portion of the original specimen] or reviewing the first test, 

but it cannot and should not be used to reverse a positive test. 

1.0. Ex. No. 18. Emphasis added. 

Some of the reasons for this handbook guidance for MROs is that once a 

respondent or mariner completely stops using a drug such as marUuana, and the 

human body flushes out what they previously used, they will then continuously test 

negative or clear by all later tests. These subsequent tests do not disprove that on 

March 20, 2000 Respondent's urine sample tested positive three times. This does not 

convincingly contradict the three certified laboratory test findings supported by the 

credible testimony of two certifying scientists and two MROs and 29 1.0. Exhibits. 

TR. 324,241-459,471-718, 729-732 and exhibits cited herein. 

Moreover, the Respondent's own witness, Dr. Comstock, testified that the 

Respondent's March 20, 2000 three certified laboratory positive urinalysis test results 

validly proved the presence of "carboxy-THC" (marijuana) in the Respondent's urine 

specimen given on March 20, 2000. Even though Dr. Comstock theorizes that hair 

56 
analysis testing is sensitive enough to detect a single, one time use of marijuana, his 

proposition concerning the accuracy of the Respondent's hair an~lysis cannot be 

reconciled and is self-contradictory with his opinion that the Respondent's March 20, 

2000 three laboratory urinalysis test results were also V.f.Llid. Further, Dr. Comstock 

testified and admitted further that hair analysis drug testing is "probably is not as 

sensitive as the urine test." TR. 1027. Dr. Comstock's opinion regarding the 

accuracy of hair analysis drug testing to detect a single or brief use of marijuana was 

not corroborated or supported by any scientific study or literature in contrast to the 

credible and convincing testimony and numerous exhibits that were received into 

evidence in disagreement with Respondent's theory or opinion. Not only did the 

Investigating Officer introduce expe1i witness testimony, including a summary from a 

scientific study countering Dr. Comstock's opinion, I.O. Exhibit 26, Dr. Comstock 

himself testified that his opinion was in opposition to the person who actually signed 

the hair analysis test results for the Respondent. 

Given DOT's and the Coast Guard's policy, rules and regulations governing 

the reliable strict control of workplace drug testing programs and procedures, the 

Respondent has not demonstrated with any persuasive validity, any "alternate medical 

explanations for [his] positive test result." 49 C.P.R. § 40.33 (3) (2000). In reaching 

this conclusion, the undersigned makes no specific ruling regarding the overall 

validity or acceptance of hair analysis drug testing when used for workplace drug 

testing programs except in specifically finding: · 

(1) DOT regulations only recognize and use chemical urinalysis drug testing 

for workplace drug testing up to the time of this hearing; and 

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(2) subsequent drug tests yielding a negative test result cannot by themselves 

rebut the presumption that the Respondent used a dangerous drug when 

the Respondent has tested positive for marijuana, when tested by two 

certified laboratories and confirmed by two Medical Review Officers. 

Further, the undersigned allowed the novel evidentiary issues surrounding the 

introduction and admittance of hair analysis drug testing and finds that the 

Respondent's hair analysis test results are relevant to this proceeding in consideration 

of the record as a whole to ascertain the credibility and weight to be given to the 

testimony of the Respondent and his witnesses and the Investigating Officers' 

witnesses and all exhibits. See APPEAL DECISION 2575 (WILLIAMS). 

III. Minor Documentation and Procedural Claimed Irregularities Do Not Reach 

the Level of a Fatal Error That Would Render Void the Three Laboratory 

Positive Test Results of the Respondent's March 20, 2000 Urinalysis 

Specimen Supported by Two Credible Certified Scientists and Medical 

Review Officers (MROs) 

The Respondent has raised several arguments concerning the collection and 

analysis of his March 20, 2000 urine specimen. For all the reasons mentioned in this 

Decision as a whole and in consideration of the entire record as a whole, the 

undersigned finds that the claimed irregularities do not reach the level of a fatal flaw 

rendering void the Respondent's March 20, 2000 three laboratory positive urinalysis 

test results. Further, the undersigned finds that LabOne, Inc., the second certified 

laboratory, correctly and accurately confirmed the positive test results by the 

extremely reliable GC/MS test, thereby supporting Quest Diagnostics, Inc. which 

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found by both a screen test and a GC/MS test that the Respondent's March 20, 2000 

urine specimen contained the marijuana metabolite "carboxy-THC" establishing the 

Respondent's use of marijuana. These three certified laboratory findings of a positive 

for marijuana use were supported by credible hearing testimony of two certifying 

scientists, and by two MROs, Dr. Suzanne Sergile, M.D. and Dr. Murray Lappe, 

M.D., and twenty-nine (29) I.O. Exhibits. 

The integrity of the Coast Guard's drug testing program is ofparamount 

concern. It is highly important that the regulatory chain of custody, including the· 

integrity of the urine specimen be maintained. However, "a drug use charge may be 

found proved even when minor procedural errors not adversely affecting the actual 

chain of custody or specimen integrity exist." APPEAL DECISION 2555 

(LAVALLAIS); see also Gallagher v. NTSB, 953 F.2d 1214 (lOth Cir. 1992); 

APPEAL DECISION 2546 (SWEENEY); APPEAL DECISION 2541 (RAYMOND); 

APPEAL DECISION 2522 (JENKINS); APPEAL DECISION 2537 (CHATHAM). 

The Respondent does not specifically contend that chain of custody issues 

exist. Respondent argues that procedural errors occurred in the collection, analysis 

and reporting of the Respondent's March 20, 2000 positive urinalysis test result. It is 

clear from the Respondent's own testimony and that ofhis witnesses that the claimed 

or established procedural irregularities that have been noted in the Findings of Fact 

above would not reach the level of or constitute a fatal flaw requiring the cancellation 

ofhis March 20, 2000 urine analysis. The Respondent's reported and actual chain of 

custody, including the integrity of his March 20, 2000 urine specimens ("A" and "B" 

split specimens) have been clearly established by substantial and credible evidence 

59 
and are found to be valid and accurate. Even if the claimed irregularities as noted by 

the Respondent in the collection of his March 20, 2000 urine specimen are true, none 

of the issues raised would cause cancellation of his positive test result. While the 

Findings of Fact have disposed of the majority of the issues raised by the Respondent, 

several items require discussion. 

First, the fact that "post accident" was checked as a reason for conducting the 

March 20, 2000 urinalysis drug test is of no importance. It cannot be used to negate 

the Respondent's three laboratory positive test results nor can it be used to negate the 

applicability of the statutes, regulations and procedures used herein. The facts clearly 

establish and demonstrate that the Respondent submitted a urine sample on March 20, 

2000 to typical and usual chemical urinalysis drug tests that subsequently was 

analyzed and confirmed in three tests as positive by two independent ·and certified 

drug testing laboratories. The two laboratories and two certifying scientists testifying 

for the I.O. found that the Respondent's March 20, 2000 urine specimen was positive 

for the presence of marijuana. The fact that no definite proof was introduced on 

whether or not the vessel TMM OAXACA actually grounded as reported and then 

moved off this grounding which might give rise to a "serious marine incident" is of 

no importance in the outcome of the Respondent's positive urinalysis test results for 

the use of marijuana. See APPEAL DECISION 2226 (DAVIS). 

Secondly, however curt or brief the MRO, Dr. Suzanne L. Sergile, M.D., may 

have been when she properly conducted the two notices and two interviews of 

Respondent, when she notified the Respondent ofhis March 20, 2000 positive test 

results, this MRO acted properly and did not violate to any substantial degree the 

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review, reporting and interview requirements established under 49 C.P.R. Part 40 

(2000) that would mandate the cancellation of the Respondent's March 20, 2000 

positive urinalysis test result. The Respondent's own witness testified and admitted 

that an MRO's interview using the minimum requirements of inquiry, notification and 

interview under Coast Guard rules or regulations could in fact be "very brief." TR. 

997. It is found that MRO Dr. S. Sergile, M.D. did accomplish what was necessary to 

perform properly as an MRO in this case. Dr. Sergile MRO reviewed the collection 

and laboratory reports on two occasions, notified and interviewed Respondent on two 

occasions, properly and within the rules and guidelines. 

Finally, the Respondent has raised an issue concerning the validity of the 

confirmatory analysis performed by the second certified laboratory, LabOne, Inc. at 

Lenexa, Kansas. As previously stated, LabOne, Inc. is a designated federally 

inspected, approved and certified laboratory that conducted the confirmatory third test 

analysis of the Respondent's "B" split specimen donated by Respondent on 

March 20, 2000. At the hearing, the Respondent raised a concern that his "B" split 

specimen was not properly analyzed when LabOne's data sheet reported the test 

result of his "B" split specimen also contained a statement saying "Abort batch due to 

neg[ative] control failure." See I.O. Ex. No. 13 at 17. In addition to the "abort batch" 

statement, the Respondent also noted that another different particular urine specimen 

demonstrated divergent test results just prior to the "abort batch" statement contained 

in the data sheet. 

Mr. John Joseph Skuban, Jr. is board certified in four (scientific) disciplines, 

including clinical chemistry and toxicology. Mr. John Joseph Skuban, Jr. is the 

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"Positive Certifying Scientist" with eighteen (18) years overall experience who 

testified credibly for the second certified laboratory, LabOne, Inc. in Lenexa, Kansas. 

He is the person who supervised the preparing of the Respondent's "B" split 

specimen third urinalysis test report by GC/MS testing. Mr. Skuban testified at the 

hearing that the Respondent's batch report did contain one other urine specimen in a 

"batch" of several specimens that exhibited some type of problem. However, this one 

specimen was not the Respondent's urine specimen. TR. 375-459. Mr. Skuban 

further testified that the "abort batch" message was automatically generated by the 

computer system because a positive value (0.07) was recorded for the negative 

control standard used by the GC/MS equipment as a self check or calibration feature. 

Mr. Skuban testified that the Respondent's specimen was correctly analyzed and that 

all of the GC/MS self-calibration checks performed for the Respondent's urine 

sample batch were correctly performed. Mr. Skuban testified that the negative 

control test standard that generated the "abort batch" message "was not part of the 

original run" involving the Respondent's urine specimen. The "abort batch" message 

applied to a "re-injection run" that was created when another individual's urine 

specimen's test result appeared to fall outside of the normal limits or parameters 

required for a successful analysis. 

In reviewing the Lab One, Inc. confirmation report, the Respondent's witness, 

Dr. Comstock, argued that the entire batch should have been discarded. However, 

Dr. Comstock based his opinion on the fluctuating test results of another urine 

specimen that was not the Respondent's urine specimen and where the GC/MS 

analysis correctly recognized a "problem" specimen. Dr. Comstock is not a certifying 

62 
scientist for a certified laboratory as Mr. Skuban is, and his opinion, as such, is 

limited in this specific area. Moreover, Dr. Comstock did not recognize nor is he 

knowledgeable in the specific test controls utilized by the GC/MS analysis equipment 

as described by Mr. Skuban. The undersigned finds Mr. Skuban's testimony to be 

reliable and credible and that the Respondent's "B" split specimen was properly 

analyzed by the second certified laboratory when it confirmed the Respondent's 

March 20, 2000 sample third urinalysis test as again positive for marijuana. 

V. CONCLUSION 

The Investigating Officer has met his burden ofproofby proving his case by a 

preponderance of the reliable, probative and substantial evidence, including credible 

five (5) witnesses' testimony and twenty-nine (29) exhibits to support the findings by 

two laboratories' three tests of valid positive urinalysis drug test results that the 

Respondent used a dangerous drug, to wit, marijuana on or before March 20, 2000. 

I.O. witness, MRO Lappe, testified that the MRO found Respondent is a "safe 

risk" to be returned to duty as a pilot; and secondly that this MRO already signed a 

"back to work letter" pursuant to 46 C.F.R. 16.370(d) for Respondent. The 

Respondent makes an impression as an intelligent and knowledgeable mariner and 

does not appear to be addicted to a dangerous drug. Therefore, in light of MRO Dr. 

Lappe M.D.'s findings, letter and testimony, the undersigned will stay the order of 

revocation IF the Respondent gives written notification from a proper Drug 

Rehabilitation Program to the Coast Guard Senior Investigating Officer within thirty 

63 
(30) days upon receipt of this Decision and Order by Respondent or by Respondent's 

attorney that Respondent has emolled or entered into a Coast Guard approved drug 

rehabilitation program. Respondent will complete the requirements to establish cure 

as outlined by Commandant's Appeal Decision SWEENEY supra. It is also required 

that Respondent be random drug tested once per month during the rehabilitation 

program for the next thirteen (13) months, in accordance with MRO Lappe's 

requirements of additional testing and as required by MRO Lappe thereafter. 

THEREFORE, 

VI. ORDER 

IT IS HEREBY ORDERED that the Respondent's U.S. Merchant Mariner's 

Document, Number 217-76-0656 and License, Number 831351, all duplicates and all 

other valid unexpired Coast Guard documents, licenses, certificates and 

authorizations whatsoever, are hereby REVOKED. This revocation WILL BE 

STAYED upon showing by the Respondent within thirty (3 0) days after receipt of 

this Order that the Respondent has notified the Coast Guard Senior Investigating 

Officer at Marine Safety Office Houston-Galveston that he has emolled to enter or 

entered into a Coast Guard approved drug rehabilitation program with the specific 

intent to complete the requirements of cure, in accordance with 46 U.S. Code Section 

7704(c) and the Commandant's Appeal Decision SWEENEY, cited above. 

The Respondent's U.S. Merchant Mariner's License, Number 831351, all 

duplicates and all other Coast Guard licenses whatsoever will then be SUSPENDED 

64 
and deposited with the Senior Investigating Officer for a period of twelve (12) 

months to allow the Respondent time to complete the requirements of cure. 

Following Respondent's successful completion of cure, the Respondent's U.S. 

Merchant Mariner's Document, Number 217-76-0656 and License, Number 831351, 

all duplicates and all other Coast Guard documents, licenses, certificates and 

authorizations whatsoever shall be subject to a twelve (12) month probation period 

whereby no charge relating to drug possession or drug use under 46 U.S.C. § 7703 or 

§ 7704 can be proved against the Respondent without violating this probation 

resulting in Revocation of all Coast Guard issued credentials. 

OTHERWISE, if Respondent does not so enroll within thirty (30) days, the 

Respondent's U.S. Merchant Mariner's Document, Number 217-76-0656 and 

License, Number 831351, all duplicates and all other valid and unexpired Coast 

Guard documents, licenses, certificates and authorizations whatsoever are 

REVOKED OUTRIGHT. 

YOU ARE HEREBY NOTIFIED that any party may file a notice of appeal 

from this decision within thirty (30) days. If neither party files an appeal pursuant to 

33 C.F.R. Subpart J, this Decision and Order will constitute final Coast Guard action. 

An appeal notice, if any, shall be served on all parties and filed with: U.S. Coast 

Guard Administrative Law Judge Docketing Center; Attention: Hearing Docket 

Clerk; Room 412; 40 S. Gay Street, Baltimore, Maryland 21202-4022, phone number 

(410) 962-7434, fax number (410) 962-1742, AND with the undersigned Judge, U.S. 

Coast Guard, 8876 Gulf Freeway, Number 370, Houston, Texas, 77017-6542, fax 

number (713) 948-3372. See enclosure of33 C.F.R. Subpart J. 

65 
The rules and procedures for appellate review are found in 33 C.P.R. Part 20, 

Subpart J, specifically,§§ 20.1001-1103. A copy of Subpart J has been provided to 

the Respondent as part of the service ofthis order. 

Each party appealing this Decision and Order has sixty days (60) following 

the issuance of this decision or receipt of the transcript to file an appellate brief. An 

appellate brief shall be served on all parties and filed with: U.S. Coast Guard 

Administrative Law Judge Docketing Center; Attention: Hearing Docket Clerk; 

Room 412; 40 S. Gay Street, Baltimore, Maryland 21202-4022, phone number 

(410) 962-7434, fax number (410) 962-1742, AND with the undersigned Judge, U.S. 

Coast Guard, 8876 GulfPreeway, Number 370, Houston, Texas, 77017-6542, fax 

number (713) 948-3372. 

Procedures are provided by which a person, or Respondent, whose U.S. 

Merchant Mariner's License or Document has been revoked, may apply to any 

Commanding Officer of a Marine Safety Office of the U.S. Coast Guard for 

administrative clemency. This is known as applying to the Coast Guard 

"Administrative Clemency Review Board." These rules and conditions are found in 

46 C.P.R. Subpart L (46 C.P.R. 5.901, 5.903, and 5.905) entitled "Issuance ofNew 

Licenses, Certificates or Documents After Revocation or Surrender," and can be 

found in the U.S. Coast Guard Marine Safety Manual./ ~ , 

~p~~~ Thomas E. P. McEllig 

Administrative Law 6i:ictge 

U.S. Coast Guard 

Done and dated on this 11-dr ofPebruary, 2001 

Houston, Texas 

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