UN11-ED STATES OF AhlERlCA 

U.S. DEPARTMENT OF HOMELAND SECliRITY 

UKITED STATES COAST GUARD 

- 

UNITED STATES COAST GUARD 

Complainant 

VS . 

WILLIAM EVERETT PALMER 

Respondent. 

Docket Number: CG S&R 05-0172 

Case No. 2322238 

DECISION AND ORDER 

Issued: August 3,2005 

Issued bv: Jeffie J. Massev, Administrative Law Judge 

Appearances: 

For Complainant 

CWO Quinn Quaglino 

LT Kris Szczechowicz 

U.S. Coast Guard 

MSO New Orleails 

161 5 Poydras St 

New Orleans, LA 701 12 

For Respondent 

Will~m Elerett Palmer, pro sc 
PRELIhlINARY STATEMENT 

On March 30, 2005, the United States Coast Guard ("USGG herein) initiated a11 

administrative proceeding against credentials issued to William Everett Palmer by the 

USCG. Specifically, it was alleged that, \vhile a holder of Coast Guard issued credentials 

on March 28,2005, the Respondent refused to take a DOT certified drug screen when 

directed to do so by his employer. 

On May 4, 2005, Respondent's Answer was received by the Docketing Center. In 

his Answer, Respondent denied the factual allegations and requested to be heard on the 

proposed order. On May 16,2005, a Notice of Hearing was issued, scheduling a hearing 

for June 3,2005, in New Orleans, Louisiana. 

On May 20,2005, the USCG filed a Motion to Amend [the] Complaint, and an 

Amended Complairvt was filed with the Docketing Center. The Amended Complaint 

changed the statutory basis upon which the Complaint was filed, but did not materially 

change the factual allegations. 

The hearing was convened as scheduled in New Orleans, Louisiana.' The 

Respondent's rights were explained to him in some detail, and he indicated he was 

prepared to go forward without counsel. An Answer was obtained on the record, in 

response to the allegations in the Amended Complaint. The USCG called the followi~lg 

witnesses: Homer W. Cantrell, Sidney Snow, Albert Daigie, and Thomas Bmis. Six 

exhibits were admitted for evidentiary purposes on behalf of the USCG and three exhibits 

' 011 May 25,2005, the USCG tiled a Motion to Subpoena Witnesses After all the 

w~trresses deeined necessary by the USCG appeared w~thout subpoena on June 3,2005. 

the USCG ulthdrew its Motlon for Suhpne~las 
were admitted for evidentiary purposes on behalf of the Respondent. ?'he Respondent 

testified in his own behalf. 

At the end of the testimony, the evidentiary record was closed. The undersigned 

allowed forty-five days for the submission of briefs andlor proposed findings of fact and 

conelusio~ls of law. The USCG made their submission on July 18, 2005. The 

Respondent did not make a submission. 

FINDINGS OF FACT 

1. On and about Match 28,2005, the Respondent was employed by Daide 

Towing, LLC in a position that required him to possess USCG issued 

credentials. 

2. As an employee of Daigle Towing, LLC the Respondent was a holder of 

credentials issued to him by the USCG. 

3. On and about March 28, 2005, Respondent's employer requested that the 

Respondent submit to chen~ical testing baed upon a series of events that led 

the employer to believe the Respondent should be tested for controlled 

substances before being moved to another vessel. 

4. The employer's election to request that the Respondent submit to chemical 

testing was has4 on a series of events which had occurred aboard the M,li 

BAROID 1 11 and which had been directly observed by more tha11 two 

persons and said events involved the behavior and perfon~~ance of the 

Respondent. 
5. The Responder11 failed to make himself available for the requested chanical 

testing until approximately twenty-four hours after he had been requested to 

take the test by his employer. 

DISCUSSION 

The Administrative Procedure Act (APA), 5 U.S.C. 551-59, governs Coast 

Guard suspension and revocation hearings. 46 U.S.C. 7702(a). The APA only authorizes 

sanctions to be imposed if, upon cunsideration of the record as a whole, the charges are 

supported by reliable, probative, and substantial evidence. 5 U.S.C. 556(d). "The term 

substantial evidence is synonymous with preponderance of the evidence as defined by the 

Supreme Court." Appeal Decision 2477 (TOMBAM) (1998). The burden of proving a 

claim by a preponderance of the evidence "simply requires the hier of fact 'to believe 

that the existence of a fact is more probable than its nonexistence before [he] may find in 

favor of the party who has the burden to persuade the Oudge] of the fact's existence."' 

Concrete Pipe and Products of California. Inc. v. Construction Laborers Pension Tmst for 

Southern Califomia, 508 U.S. 602, 622 (1993)(citing In re Winship, 397 U.S. 358, 371- 

72 (1970)(HarIan, J., concumng)(brackets in original)). Under Coast Guard procedural 

regulations, the Coast Guard bears the burde~i of proving the chasges by a preponderance 

of the evidence. 33 CFR 20.701,20.702(aj. Therefore, the Coast Guard must prove with 

reliable and probative evidence that Respondent more likely than not committed the 

violations charged. 

Title 46 U.S.C. $7703(1)(B) provides that a license, certificate of registry, 01 

merchant manilcr's documeut may bc suspended or revoked if thc holder when actlng 
under the authority ofhis liccnse, certificate, or document bas committed an act of 

incompetence, misconduct, or negligence. "h.lisconduct" is partly defined as human 

behavior that violates some formal, duly established rule, arid such rules are found in, 

anlong other places, statutes, regulations, the common law, the general maritime law, a 

ship's regulation or order, or shipping articles and similar sources. See 46 CFR $5.27. 

A person eniployed in the service of a vessel is considered to be acting under the 

authority of hisher license, certificate, or MMD when the holding of that license, 

certificate, or MMD is required by law, regulation, or by the employer as a condition of 

employment. 46 CFR §5.57(a). If law, regulation, or condition of his employment did 

not require the Respondent to have a license or MMD, then the Coast Guard does not 

have jurisdiction under 46 CFR 55.57(a) over the alleged violation of law. See Appeal 

Decision 2620 (COX) (2001). Therefore, the Coast Guard must prove Respondent was 

employed in the service of a vessel when he committed a violation of law and 

Respondent's merchant marines's credentials were either (I) required by law or 

regulation or (2) as a condition of his employment. 

In this proceeding, the USCG has alleged that the Respondent refused to take a 

"reasonable cause" drug screen. Under the statutory scheme governing chemical testing, 

there are various classifications of chemical testing @re-employment, periodic, random, 

serious marine incident, and reasonable cause). See Parl 16 of Title 46 CFR. A 

reasonable cause test is appropriate when an employer "reasonably suspects" an 

employee tias been using a dangerous diug. A '"darigerous drug" is defined as "a narcotic 

drug, controlled substance, or a controlled substance aialog (as defined in section 102 of 

the Comprehensive I>nlg Abuse and Control Act of 1970)". 46 U.S.C. 2101(8a). 
Per the provisions of 46 CFR $16.250@): 

The marine en~ployer's decision to test must be based on a 

reasonable and articulahle beiiefthat the individual has 

used a dangerous drug based on direct observation of 

specific, contemporaneous physical, behavioral, or 

performance indicators of probable use. Where practicable, 

this belief should be based on the obsemation of the 

individual by two persons in supervisory positions. 

The first witness to testify for the USCG was Captain Thomas Barrois, presently 

employed as Captain of the hlN MORGAN RAY, prev~ously having been on board the 

RAROID 11 1 .2 He met the Respondent when working as a relief captain on the 

BAROID, probably in March 2005. They were working twelve hour shifts, so his direct 

contact with the Respondent was limited to the times he would wake the Respondeut up 

to take over kis shift. He related one incident where the deckhand went to wake up the 

Respondent, but when he didn't get up, Captain Barrois had to go and get the Respondent 

up to take over his shift. There was also one occasion when the Respondent was late for 

his shift, and he (the witness) had to work an extra six hours 

The witness related that the Respondent told him (more than once) that he was 

tired-he wasn't getting anylenough sleep. The witness related that other employees of 

the boat had told him on more than one occasion that they were afraid of Respondent 

being at the wheel. Captain Barrois was also told that the Respondent bad been 

"reckless" at the wheel, that he was falling asleep at the wheel, running into barges when 

he was supposed to be tying up to them. He was not aware of any damage reports that 

were made as a result of these incidcrlts he was told about. 

"The evidence showed that these vessels were part of a small flect of tugboats owrred by 

Daiglc Towing, L,ILC, which was in turn owned by Albert rlaiglc. 
The next USCG witness was Captain Homer Cantrell, a former mployee and coworker of the Respondent at Daigle Towing. lie met the Respondent when be was 

assigned to work eight-hour shifts with him aboard the BAROID I 11 during the period of 

November 2001 until March 2005. He testified that on more than one occasion, the 

Respondent had to be roused more than once before he would actually get up so that he 

could start his shift. He would appear to be groggy when he got up. 

Over the course of working with the Respondent, the witness formed the opinion 

that the Respondent was "a bit rough" with the boat-he would use excessive speed when 

landing the boat-more often than most captains. One incident prompted the witness to 

leave the boat and speed up his ongoing search for other enlployment. During this 

incident, the Respondent made a landing with a barge that was so rough, the witness was 

ejected from his bunk. There was also damage to the television in the galley, and a 

deckhand was injured. Immediately after the incident, Captain Cantrell went to the 

wheelhouse where the Respondent looked "dazed" and said he couldn't stop the boat. 

When he was asked why he didn't use a headline, the Respondent said something to the 

effect that he didn't know they had any. The witness said that there was probably three 

hundred feet of headline in the hole, at that time. 

While the witness testified that he reported this last incident to Mr. Daigle, he 

could not recall if be had reported other incidents of concern to Mr. Daigle or not. On 

cross-examination by the undersigned, the witness said that he had never observed the 

Respondent using drugs, that he had never smelled burnt marijuana on hoard the vessel 

when the Respondent was present, nor had he ever observed an><hing on board the vessel 

that appeared to be controlled substances. 
The USCG's next witness was the Respondent's employer, Mr. Albert Daigle. 

He testified that the Respondent was a good captain, working 011 two or three different 

boats, with his last assignment being aboard the BAROID 11 I. More than once during 

his testimony, he indicated that he would be willing to hire the Respondent again as a 

Captain. 

Immediately preceding the witness' decision to ask the Respondent to take a 

chemical test, he had received conlplaints fiom the deckhands working with the 

Respondent. They claimed they were going to quit if Mr. Daigle did not "do something" 

about the Respondent. On the moming of March 28,2005, the witness met up with the 

Respondent, intending to move him to another boat. He said that before he placed him on 

a different boat, he thought he had better have the Respondent submit to a chemical 

test-because the Respondent had been acting "differently" for a month or so. 

The incident on the BAROlD 11 1 that caused Captain Cantrell to quit had taken 

place about amonth before the events of March 28. One moming a few days before 

Mar& 28, the witness testified that he had gone to the boat and found the Respondent 

asleep at the table in the galley, and he was told by the deckhand that he had been 

sleeping there since midnight. The deckhand had tried unsuccessfully to wake up the 

Respondent. 

The witness further testified that the Respondent had told him some time before 

that he was a diabetic, but they had never talked about any medications the Respondent 

was taking or supposed to be taking. When he told the Respondent he had to take a 

chemical test, he recalled that the Respondent stated he couldn't take a test because he 

couldn't pass it-that he had t,&en drugs a couple of days before. Later in his testimoily, 
the witness said that the Respondent had stated that he had "done drugs" with this girl he 

had been seeing. He denied that the Respondent had mentioned what kind of drugs were 

involved. The witness knew that the Kesponde~~t had recently been spending his off-shift 

time away from the boat (rather than sleeping on the boat when not on duty). 

The last witness for the lJSCG was Sidney Snow. This witness worked for Mr. 

Daigle and had been in the vicinity of Mr. Daigle's truck when Mr. Daigle had asked the 

Respondent to take a chemical test on March 28. He recalled that the Respondent had 

said he couldn't take a chemical test because he could not pass it. This witness testified 

that he had first met the Respondent in January and seen him a total of four or five times. 

He had never seen anything about the Respondent that would suggest he was using drugs. 

The Respondent decided to testify on his own behalf after having been advised 

that he was not required to take the stand. I-ie testified that on the morning of March 28 

when he met up with Mr. Daigle, he had been up for approximately 20 hours-having 

just finished his shift on the boat. He testified that he told Mr. Daigle that he "might not 

be able to pass" the test. He intended to go take the test when the facility opened up, but 

be~iuse itwas so early in the morning and he had been up for so long, he testified that he 

told Mr. Daigle he was going to go home and shower and then go take the test. He 

further testified that he went home, fell asleep on the couch, and woke up still dressed at 

four o'clock that afternoon. 

He said he went to the facility the next morning to take the test, but when the 

person there called Mr. Daigle, he told her that he (the Respondent) no longer needed to 

take a test. He produced a business card (Respondent's Exhibit 03) which indicated the 
Respondent had signed in at the facility at 8:28 a.m. on the morning of March 29,2005, 

but had to return to work (or home) "per Mr. Daiglc until further notice." 

The Respondent also provided documents which indicated he had taken alcohol 

and chemical tests on March 2,2005. (Exhibits 01 & 03) The alcotiol test was negative 

and the chemical test was presun~ably negative (because no positive result had been 

reported to him). 

On cross-examination, the Respondent indicated that he had made a "serious 

misjudgment" which caused him to hit a barge too hard. He further testified that he had 

seen a girl (a prostitute) w110 had been the one doing drugs in his presence (smoking 

marijuana), and it was because he had been around her while she was doing this that he 

figured he could not pass a chemical test 011 March 28. 

On further cross-examination, he testified that he had been taking medication for 

his diabetes for approximately 8 months. In March 2005, there were still days when he 

would forget to take it. He admitted that he had had problems-going back to before his 

diagnosis of diabetes-where he was falling asleep when he should not have been. He 

hrther testified that he was still having trouble with falling asleep when he shouldn't. 

ULTIMATE FINDINGS OF FACT AND CONCLUSIONS OF LAW 

1. On and about March 28, 2005, the Respondent was employed by Daigle Towing 

LL,C iii a position that required him to possess USCG issued crcdentiais. 

2. As an en~ployec of Daiglc Towing, LLC, the Respondent was a bolder of 

credentials issued to him by thc USCG. 
3. On and about March 28, 2005, Respondent's employer requested that the 

Respondent subinit to chemical testing hased upon a series of events that led the 

enlployer to believe the Respondent should be tested for controlled substances 

before being moved to another vessel. 

4. The employer's election to request that the Respondent submit to chemical testing 

was hased on a series of events which had occuned aboard the MN BAROID I I1 

and which had been directly observed by more than two persons and said events 

involved the behavior and performance of the Respondent. 

5. The Respondent failed to make himself available for the requested chemical 

testing until approximately twenty-four hours after he had been requested to take 

the test by his employer. 

6. Under the circumstances of this ease, it was not practicable for two persons in 

supervisory positions to observe the Respondent's behavior prior to the request 

that he take a chemical test. 

7. Under the circumstances of this case, the Respondent's employer, Mr. Daigle, 

acted reasonably and with legally sufficient cause, when he requested on March 

28,2005, that the Respondent submit to chemical testing. 

8. The offense of misconduct has been proven by a preponderance of the evidence. 

SANCTION 

Under the provisions of 46 CSC $5703(1)@), upon proof of an offense of 

n~isconduct, and order of revocation or ail order of suspension can be entered. Per the 

Tahlc found at 46 CFR $5,569, the rccomrncnded length of slispension for refusal to take 
a chemical test is 12-24 months. Per the regulations, as the ultimate arbiter of the 

sanction in this proceeding, the undersigned is directed to consider any "remedial actions 

which have been undertaken independently by the respondent," the prior record of the 

respondent (if any), and evidence of mitigation or aggravation. 

A review of the evidentiary record in this case indicates no evidence of 

aggravating factors. Specifically, there is no evidence in the record of historical drug use 

or recent observation of the Respondent using illegal drugs. The innuendo of the USCG's 

case was that the Respondent was guilty of using dangerous drugs or controlled 

~ubstances.~ However, there is no direct proof of this fact. One witness recalls that the 

Respondent said he had taken drugs, and that is why he could not pass a chemical test on 

March 28. The Respondent contradicted this testimony with his testimony that he had 

been with someone who had been smoking marijuana, and that was why he did not 

believe he could pass a chemical test on March 28. (He did pass one on March 2.) 

Ironically, if the Respondent believed he would have failed the test on March 28, the 

chances are very good he would have failed the March 29 test he attempted to take, as 

well. 

1 conclude that Mr. Daigle believed the Respondent said to him "I can't pass the 

test because I was doing drugs," or words to that effect. That conclusion means that I 

find Mr. Daigle's testimony to he credible. Ilowever, I also believe the Respondent's 

testimony that he believed he could not pass a drug test on March 28 because he had 

recently been around a prostitute whom had been smoking marijuana in his presence, and 

that was the reason be could not pass the test. Thus, with this direct conflict in testimony, 

' At page 3 of the USCG's post-hearing submission, it IS stated "The Coast Guard 

believes Capt. Palmer was a drug user who refused to take a drug screen." 
I cannot conclude that it is more likely than not that the Respondent was a user of illegal 

drugs sometime between March 2 and March 28. Such a conflict in evidence does not 

support the innuendo that the USCG wishes me to use to impose the maximurn sanction 

in this proceeding. 

Witnesses who had been in the Respondent's presence for weeks and months 

prior to March 28 could provide no evidence to support the suggestion that the 

Respondent had been using drugs. These witnesses are the very persons who were in the 

closest contact with the Respondent during the times he was exhibiting unusual behavior. 

In fad, Respondent's employer was willing to re-hire him at any point he could get his 

present difficulties with his license behind him. 

While it is more probable than not that the Respondent had been experiencing 

some problems with the quality of his work performance in the months leading up to 

March 28, it is more likely than not, based on the entire record before me, that 

Respondent's work-related performance issues are the result of health problemsspecifically his diabetic condition which he was attempting to manage with medication. 

While it is of paramount importance that the Respondent obtain control over his 

diabetes and successfully manage it in order to be able to maintain a satisfactory level of 

performance at work, the undersigned cannot translate the problems he was probably 

having as a result of his diabetic condition into aggravating factors with regards to the 

issue of an appropriate sanction. In other words, I cannot conclude on the record before 

me that the Respondent was using illegal drugs. The record simply docs not support that 

conclusion as being more likely than not. 
On the plus side, the Respondent did attempt to take a chemical test on March 29. 

In addition, he had tested negative just a few weeks before the March 28 request in 

random alcohol and chemical tests (as indicated by Respondent's Exhibits 01 & 02). On 

the whole, the record before me indicates a willingness to partleipate in testing, at least 

up until March 28. On the whole, I find the Respondent's testimony to be credible. 

Based on the record before me, I find no "excuse" for the Respondent's refusal to 

undergo a test on March 28. He hesitated in his testimony to out and out admit that his 

actions on March 28 constituted a refusal. I have found that his actions did constitute a 

refasal. But, 1 judge this refusal in the context of his having undergone recent testing, his 

attempt to be tested the next day, and the likelihood that his performance related 

problems were more likely than not the result of health problems instead of the result of 

illegal drug use. On the whole, the record before me justifies a downward departure from 

the suggested suspension range contained in the table at $5.569. 

Refusing to test remains a serious matter, however. As such, a suspension of six 

months of the Respondent's USCG issued credentials is appropriate, on the record before 

me, as a sanction in this proceeding. 
ORDER 

IT IS HEREBY ORDERED that all credentials Issued to the Respondent by the 

Umted States Coast Guard are hereby SUSPENDED FOR A PERIOD OF SIX 

RIONTHS, EFFECTIVE AS OF AUGUST 3,2005. You must immediately 

surrender all documents in your possession to the Coast Guard. If you knowingly 

continue to use your documents, you may be subject to criminal prosecution. 

PLEASE TAKE NOTICE that service of this Decision on the parties andlor 

parties' representative(s) serves as notice of appeal rights set forth in 33 CFR 20.1001 - 

20.1004. (Attachment A) 

Done and dated August 3,2005 

New Orleans, Louisiana