UNITED STATES OF AMERICA 

DEPARTMENT OF TRANSPORTATION 

UNITED STATES COAST GUARD 

UNITED STATES OF AMERICA : DECISION OF THE 

UNITED STATES COAST GUARD : 

: VICE COMMANDANT 

 : 

 : ON APPEAL 

 vs. : 

 : NO. 2634 

 : 

 : 

 : 

LICENSE NO. 788553 : 

 : 

Issued to: Veronica A. Barretta : 

 This appeal is taken in accordance with 46 U.S.C. 7702, 46 U.S.C. 7704(c), 

46 C.F.R. 5.701, and the procedures in 33 C.F.R. Part 20. 

 By a Decision and Order (D&O) dated June 18, 2002, an Administrative Law 

Judge (ALJ) of the United States Coast Guard at Norfolk, Virginia, revoked on a 

conditional basis the Respondent’s above captioned license. The Respondent was 

charged under 46 U.S.C. 7704(c) with the use of a dangerous drug in a single 

specification based on a positive test for marijuana and the charge and specification were 

found proved by the ALJ. The ALJ, in issuing his conditional revocation, ordered the 

Coast Guard to temporarily return the Respondent’s license for two months (July and 

August 2002) to allow the Respondent to work under the license providing launch service 

at a marina in Provincetown, Rhode, Island. [D&O at 10] The D&O allowed 

Respondent, during July and August 2002, to provide “launch service at Provincetown to 

and from the dock at Provincetown Marina.” [D&O at 10] Pursuant to the conditional 
BARRETTA NO. 2634 

revocation, the Respondent would continue with her drug rehabilitation program during 

and beyond this two-month period in order to prove she was cured in accordance with 46 

U.S.C. 7704(c) and my decision in Appeal Decision 2546 (SWEENEY). The 

Respondent was also required to participate in a “random, unannounced drug-testing 

program for a minimum of one year following completion of the rehabilitation program” 

and be “subject to increased unannounced testing for up to 60 months.” [D&O at 8-9] 

 The D&O was served on the Respondent and the Coast Guard on June 18, 2002. 

The Coast Guard filed its appeal on June 26, 2002. In its appeal, the Coast Guard 

requested a stay of the D&O that I granted on June 28, 2002. The Coast Guard also 

requested a modification of the D&O to require outright and unconditional revocation of 

Respondent’s license. Respondent did not file a reply brief in this matter. 

APPEARANCES: Christopher J. Snow, Esq., 90 Harry Kemp Way, 

Provincetown, Massachusetts 02657 for Respondent. The Coast Guard Investigating 

Officer was Lieutenant (Junior Grade) Joshua Pennington, stationed at Marine Safety 

Office Providence, 20 Risho Avenue, East Providence, Rhode Island 02914. 

 

 FACTS 

 At all relevant times, Respondent held the above captioned license. On June 8, 

2001, Respondent submitted to random urinalysis testing. [IO Exhibit A] Outer Cape 

Health Services of Provincetown, Massachusetts, collected her sample in accordance with 

Department of Transportation regulations. [IO Exhibit A] Respondent signed a federal 

Drug Testing Custody and Control Form in the presence of the collector. [Tr. at 13] Her 

sample was analyzed by SmithKline/Quest Diagnostics in Van Nuys, California, in 

2
BARRETTA NO. 2634 

accordance with Department of Transportation procedures and tested positive for 

marijuana metabolite. [IO Exhibit A] 

 At the hearing on April 24, 2002, at Providence, Rhode, Island, the Respondent 

did not challenge the test conducted by the laboratory, the Medical Review Officer’s 

(MRO) verification of a positive test result, or the collection process. [Tr. at 46] 

Respondent stipulated that the drug test was accurate and that the Coast Guard would not 

be required to prove the validity of the drug test. [Tr. at 46] Respondent admitted at the 

hearing to using marijuana prior to submitting to the random urinalysis test at which she 

tested positive. [Tr. at 55] Respondent admitted to smoking marijuana at a party. [Tr. at 

55] 

 Respondent, through counsel, advised the ALJ that she had entered a drug 

counseling program one week prior to the hearing and wished to pursue cure in 

accordance with Appeal Decision 2546 (SWEENEY). Respondent advised the ALJ that 

she “was willing to complete the necessary requirements of the cure program and a long 

suspension of her license if she would be allowed to work for two months as operator of a 

launch only for the Provincetown Marina carrying passengers from the mooring there to 

and from the marina.” [D&O at 3] 

The ALJ found the charge and specification proved and revoked Respondent’s 

license. The ALJ established a period from April 24, 2002, to June 30, 2003, with the 

exception of the months of July and August 2002, in which the Respondent could not 

serve under the authority of the license. [D&O at 7] When deciding to allow this 

deviation from the normal cure process the ALJ considered the limited work Respondent 

expected to do in July and August 2002. Respondent said she would be operating a 

3
BARRETTA NO. 2634 

launch only in protected waters. [D&O at 6] The ALJ also considered the fact that the 

Respondent had enrolled in an intensive outpatient substance abuse program and had 

been removed from her position as a launch operator in June 2001 following the positive 

test result and had not served under the authority of her license since then. [D&O at 6] 

The ALJ explained that the suspension period cited above was longer than the usual 12-

month period required in Appeal Decision 2546 (SWEENEY). 

BASIS OF APPEAL

 

 The Coast Guard appealed, arguing that the ALJ abused his discretion in ordering 

the conditional revocation of Respondent’s license after finding a charge of use of a 

dangerous drug proven under 46 U.S.C. 7704(c). The Coast Guard asserts that the ALJ 

was statutorily required to revoke the Respondent’s license unless the Respondent could 

sufficiently demonstrate “cure” as defined by Appeal Decision 2546 (SWEENEY). 

 

 OPINION

 The purpose of suspension and revocation proceedings is to promote safety at 

sea. 46 U.S.C. 7701. Revocation of a merchant mariner’s credentials is required when 

the holder has been shown to be a user of, or addicted to a dangerous drug, unless the 

mariner successfully demonstrates cure. 46 U.S.C. 7704(c). Congress enacted 

46 U.S.C. 7704 with the express purpose of removing those individuals possessing and 

using drugs from service in the United States merchant marine. House Report No. 338, 

98th Cong., 1st Sess. 177 (1983). 

 The Commandant has been delegated the authority to promulgate regulations to 

carry out suspension and revocation hearings at 49 C.F.R. 1.46. Under that delegation, 

4
BARRETTA NO. 2634 

the Commandant promulgated 46 C.F.R. 5.59 which provides, in pertinent part, for 

revocation of licenses, certificates or documents where “the respondent has been a user 

of, or addicted to the use of, a dangerous drug.” 46 C.F.R. 5.59(b). 

 The burden of establishing “cure” is on the Respondent. Appeal Decision 2526 

(WILCOX). In establishing cure under 46 U.S.C. 7704(c), the mariner must: 

(1) successfully complete a bona fide drug abuse rehabilitation program, and 

(2) demonstrate a complete non-association with drugs for a minimum of one year 

following the successful completion of the drug abuse program. Appeal Decision 2546

(SWEENEY). I reaffirmed and clarified these principles in Commandant Decision on 

Review #18 (CLAY), which is discussed below. In addition, Coast Guard regulations 

also require an MRO to verify that the mariner is drug-free and that the risk of subsequent 

use of dangerous drugs by that mariner is sufficiently low to justify his return to work 

before a mariner may return to work aboard a vessel. 46 C.F.R. 16.201(f). 

 An ALJ may grant a continuance to the hearing if the Respondent has 

demonstrated substantial involvement in the cure process by proof of enrollment in 

an acceptable rehabilitation program. Appeal Decision 2546 (SWEENEY). This 

continuance permits the ALJ to stay the revocation of a license, certificate or 

document while the Respondent completes the cure process. 

 The issue of whether an ALJ can permit a Respondent to retain possession of a 

license or document pending completion of cure was squarely addressed in Commandant

Decision on Review #18 (CLAY). In that case, I held that once a prima facie case of 

illegal drug use is established to the satisfaction of the ALJ, the mariner poses a 

danger to public safety such that sufficient cause exists to withhold the license or 

5
BARRETTA NO. 2634 

document until cure is complete. The CLAY decision recognized that once the 

Coast Guard has proven that a mariner used an illegal drug, his license or document must 

be revoked, or, in the alternative, the license or, withheld until the Respondent proves that 

he or she is cured. In this case, Respondent requested that the ALJ return her license 

during the process of cure. It is unclear from the record whether Respondent would still 

have been in the drug abuse rehabilitation program when her license was to be returned 

or whether she would have been in the post-treatment one-year non-association period. 

But, the distinction is unimportant. As was clearly explained in Commandant Decision 

on Review #18 (CLAY), “cure” is a two-step process and a mariner is deemed not to 

have attained “cure” until both steps have been completed. In this case, returning 

Respondent’s license before she completed both the drug abuse rehabilitation program 

and the one-year non-association period following the rehabilitation program was not 

appropriate. 

 I have stated in the past that an ALJ in a suspension and revocation proceeding 

involving illegal drug use is without discretion to issue an order less than 

revocation unless the Respondent had proven to the ALJ’s satisfaction that he is cured 

of drug use. Appeal Decisions 2476 (BLAKE); 2504 (GRACE); Commandant 

Decision on Review #5 (CUFFIE). 

 The ALJ is not authorized to permit a mariner to sail under the authority of the 

mariner’s credential until all the requirements of cure have been met. The ALJ can only 

find that cure has been established after the mariner has successfully completed a bona 

fide drug rehabilitation program, demonstrated a complete non-association with drugs for 

one year following completion of the drug rehabilitation program, and the MRO has 

6
BARRETTA NO. 2634 

made a determination in accordance with 46 C.F.R. 16.201(f) that the mariner is drugfree and his risk of use of illegal drug use again is sufficiently low. During the period of 

cure, the ALJ may stay the order of revocation and continue the hearing to allow cure, but 

the ALJ cannot allow the mariner to work under the authority of the mariner’s credential. 

 In the present case, I find that the ALJ erred in three instances. First, by 

revoking the Respondent’s license on a “conditional basis,” the ALJ recognized a 

sanction other than revocation. Second, he permitted Respondent to serve under the 

authority of her license during the period of cure rather than after cure had been 

completed. Third, he ignored the mandate of 46 C.F.R 16.201(f) by ordering 

Respondent’s license returned before the MRO determined Respondent was drug-free 

and that the risk of subsequent drug use was sufficiently low to justify her return to work 

in the maritime industry. 

CONCLUSION

 I find that the ALJ improperly permitted Respondent to impose conditions upon 

her entrance into the cure program and the resulting conditional revocation in the D&O 

was not in accordance with law or precedent. While the ALJ properly granted a 

continuance to enable Respondent to complete cure, the D&O should not have allowed 

Respondent to serve under the authority of her license during the cure process and before 

a determination was made by the MRO concerning her suitability to return to work in the 

maritime industry. 

7
BARRETTA NO. 2634 

8

ORDER

 The Administrative Law Judge’s Decision and Order dated June 18, 2002, is 

MODIFIED consistent with the above opinion and conclusion. Respondent will be 

permitted to prove cure but will not be allowed to serve under the authority of her license 

during the cure process. 

 //S// 

T. J. BARRETT 

 Vice Commandant 

Signed at Washington, D.C., this 6TH day of September, 2002.