UNITED STATES OF AMERICA 

DEPARTMENT OF TRANSPORTATION 

UNITED STATES COAST GUARD 

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UNITED STATES OF AMERICA * 

UNITED STATES COAST GUARD * Docket No. 00~0829 

vs. 

ANDRE BENNETT 

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Case Number PA00001894 

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DECISION AND ORDER 

PETER A. FITZPATRICK 

Administrative Law Judge 

APPEARANCES 

FOR THE COAST GUARD 

L T Jacqueline M. Twomey 

CWO John Gonzales 

United States Coast Guard 

Marine Safety Office Hampton Roads 

200 Granby Street, Room 700 

Norfolk, VA 23510 

FOR THE RESPONDENT 

Andre Bennett, Pro Se 
I. 

PRELIMINARY STATEMENT 

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

Respondent Andre Betmett, holder of Merchant Mariner's Document Number 231-72-

3256 on November 29, 2000 under the statutory authority contained in 46 U.S.C. § 7704. 

In the Complaint, the Coast Guard alleged that Mr. Bennett took a pre-employment drug 

test on September 11, 2000; that it was collected by Cecelia Pretlow of Internal Medical 

Specialists; that it was tested by Quest Diagnostics, Inc.; and that it tested positive for 

marijuana metabolite. The Investigating Officer sought the Revocation of Mr. Merchant 

Mariner's Document in accord with 46 U.S.C. § 7704. 

Mr. Bennett filed a timely Answer to the Complaint on December 19, 2000. The 

Answer admitted all Jurisdictional Allegations. He also Admitted all Factual Allegations 

except No. 5 (that the specimen tested positive for marijuana metabolite). The 

Respondent indicated that he wished to be heard on the proposed Order. 

A hearing was scheduled for March, 2, 2001 at Norfolk, VA. Approximately two 

weeks beforehand, on February 15, 2001, a Pre-Hearing Conference was held to review 

the requests of the parties. Both sides participated and an Order was issued describing 

the matters discussed. (See Order dated February 26, 2001 ). 

The hearing was conducted as scheduled and the Investigating Officers and Mr. 

Bennett appeared. The Respondent was not represented by counsel although he had been 

advised of his right to retain an attorney at the Pre-Hearing conference. Mr. Bennett 

affirmed his Answers to the Complaint and emphasized again he was not a user of 

marijuana or any other illegal drug. 

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The Coast Guard presented the following witnesses: Cecelia Pretlow, Internal 

Medical Specialists Site Person; James Callies, Scientific Director, Quest Diagnostics 

Substance Abuse Testing Laboratory, San Diego, CA; and George M. Ellis, President 

Greystone Health Sciences Corporation. The documentary evidence submitted included 

copies of the Drug Testing Custody and Control Form, the Quest Diagnostics Litigation 

Package, the Medical Review Officer's letter to the Coast Guard with attachments; and 

the Federal Register listing of approved testing laboratories. Appendix B hereto contains 

a complete listing of the evidence submitted. 

Mr. Bennett did not testify and did not present any documentary evidence. After 

all the evidence was submitted and both sides presented closing statements, I ruled that 

the Coast Guard had presented sufficient evidence to establish a prima facie case raising 

the presumption of use set out at 46 CFR § 16.20l(b). Mr. Bennett did not present any 

evidence to rebut that presumption other than his argument, not made under oath, that he 

did not use marijuana. Accordingly, the Jurisdictional and Factual Allegations of the 

Complaint were found PROVED. 

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II. 

STATUTES AND REGULATIONS INVOLVED 

A. Procedural Matters 

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

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

§ 7702. Administrative procedure 

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

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

document. 

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

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

pertinent part: 

§ 7704. Dangerous drugs as grounds for revocation 

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

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

document shall be revoked unless the holder provides satisfactory proof 

that the holder is cured. 

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

by the United States Department of Transportation are codified at 49 CFR § 40. The 

specimen collection procedures are set out at 49 CFR § 40.25. 

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

46 CFR § 16. Specifically, 46 CFR § 16.201(b) provides that: 

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Subpart B- Required Chemical Testing 

§ 16.201 Application. 

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

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

5. The Rules of Practice, and Evidence, for Fonnal Administrative Proceedings of the Coast 

Guard which apply to this proceeding are codified at 33 CFR § 20. 

III. 

FINDINGS OF FACT 

A. Jurisdictional Allegations Admitted by the Respondent 

1. The Respondent is the holder of Merchant Mariner's Document Number 231-72-3256. 

B. Factual Allegations Admitted by the Respondent 

1. On September 11, 2000 Respondent took a pre-employment drug test. 

2. A urine specimen was collected by Cecelia Pretlow of Internal Medical Specialists .. 

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

4. The urine specimen was collected and analyzed by Quest Diagnostics, Inc. using procedures 

approved by the Department of Transportation. 

C. Factual Allegation Not Admitted by the Respondent 

5. That specimen subsequently tested positive for marijuana metabolite. 

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IV. 

OPINION 

A. General 

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

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

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

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

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

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

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

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

U.S. 91, 100-103 (1981). It is now well established that the Investigating Officer must prove 

three elements to meet this burden as set out in Appeal Decision 2583 (WRIGHT) (p. 

3)(1997): 

To meet this burden, as applied to the specification at hand, the 

Investigating Officer must prove three elements: 1) that the respondent 

was the individual that was tested for dangerous drugs; 2) that the 

respondent failed the test; and 3) that the test was conducted in accordance 

with 46 C.P.R Part 16. Appeal Decisions 2379 (DRUM), 2279 (LEWIS). 

See also Appeal Decision 2584 (SHAKESPEARE) (1997). 

It should also be noted that this proceeding is conducted under the provisions in 46 

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

seq. 

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2. Cecelia Pretlow testified that she was the collector at Internal Medical Specialists on 

September 11, 2000 when Mr. Bennett provided his urine sample in connection with a preemployment chemical test for dangerous drugs. She described the procedure in detail which 

was followed. At the hearing she demonstrated it with examples of the urine collection kit 

used. She stated that Mr. Bennett was identified before he was allowed to participate; that 

she completed one collection at a time; and that the completed collection specimen was 

secured until it was picked up by the courier service for shipment to the testing laboratory in 

the afternoon. She affirmed that she made many of the entries on the Drug Testing Custody 

and Control Form and signed the certification thereon as follows (Exhibit I0-2): 

I certify that the specimen identified on this form is the specimen 

presented to me by the donor providing the certification on Copy 4 of this 

form, that it bears the same specimen identification number as that set 

forth above, and that it has been collected, labeled and sealed as in 

accordance with applicable Federal requirements. 

She testifed too that Mr. Bennett signed that same form in her presence. He certified as 

follows (Exhibit I0-2): 

I certify that I provided my urine specimen to the collector; that I have not 

adulterated it in any manner, that each specimen bottle used was sealed 

with a tamper-evident seal in my presence and that the information 

provided on this form and on the label affixed to each bottle is correct. 

Ms. Pretlow was a very credible witness and she exhibited a thorough knowledge of the 

procedures to be followed in a Department of Transportation urine specimen collection. I 

believe her testimony and found it to be probative. Indeed, Mr. Bennett did not point out any 

specific aspect of the collection here which was alleged to be improper. 

Accordingly, there is no question on this record that Mr. Bennett was the donor of the 

sample collected by Ms. Cecelia Pretlow. 

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3. James Callies testified regarding the testing procedures at Quest Diagnostics. That 

laboratory held and still holds a current certification from the U.S. Department of Health and 

Human Services to meet the standard for Mandatory Guidelines for Federal Workplace Drug 

Testing Programs (Exhibit I0-3). The Scientific Director testified that an internal chain of 

custody was established to track the sample at the laboratory; that it was subjected to both 

initial and confinnatory tests; that the latter was a gas chromatography and mass 

spectrometry analysis; and that the results revealed the presence of marijuana metabolite 

above the established federal threshold level. 

I believe Mr. Callies was a very credible witness and his testimony and the laboratory's 

"Litigation Package" (Exhibit I0-4) firmly supports the conclusion that the actual testing of 

Mr. Bennett's specimen was accomplished in accord with the Department of Transportation 

and Coast Guard regulations. 

4. The final witness who testified at the hearing was George Ellis, President of Greystone 

Health Sciences Corporation. He described the Medical Review Officer's role in the drug 

testing program and stated that Dr. Plander, the MRO in this case, was employed by 

Greystone. Mr. Ellis testified that Dr. Plander interviewed Mr. Bennett and concluded that 

there was no reasonable medical explanation for the presence of marijuana metabolite in the 

Respondent's system. Accordingly, the Doctor signed the DTCCF and found the test to be 

"POSITIVE." (Exhibit I0-2). 

Mr. Ellis also discussed Mr. Bennett's claim brought up at the hearing that the mariner 

may have inhaled marijuana smoke of others on a recent occasion prior to the preemployment drug screen here. Mr. Ellis stated that the Federal cut offlevels for marijuana 

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were established to eliminate that possibility and that clinical trials had shown that such 

passive exposure would not cause a mariner to have a positive result on the test. 

Mr. Bennett elected not to testify so the record is devoid of detailed evidence of the 

exact circumstances under which the alleged exposure was made. Moreover, Mr. Bennett did 

not present any witnesses or evidence to substantiate this claim. 

Reviewing this evidence as a whole, I am persuaded that the chemical test here was 

conducted in accordance with the applicable regulations. The collector, the testing 

laboratory, and the Medical Review Officer performed their respective functions properly. 

Thus, the result of the test here is valid. The Investigating Officer successfully raised the 

presumption of use set out in the regulations. See 46 CFR § 16.201. 

No evidence was presented by the Respondent so the presumption has not been 

rebutted. 

5. Accordingly, I am of the opinion that Mr. Bennett is the user of dangerous drugs (marijuana) 

within the meaning of the statute (46 U.S.C. § 7704(c)). Since there has been no showing 

that Mr. Bennett has been "cured" of his drug use, I am compelled to REVOKE his 

Merchant Mariner's Document in accord with the statutory mandate. 

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v. 

ORDER 

For all of the foregoing reasons, IT IS ORDERED THAT the Merchant Mariner's 

Document issued to Andre Bennett by the U.S. Coast Guard is hereby REVOKED. 

~ 4-/l~ a· ,' /J /J (k_~~Lt__, 

PETER A. FITZP 

c.-e. 

ATRIQ! 

t?'.h · . ~ 

. 

Administrative Law Judge 

United States Coast Guard 

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Done and dated this /6 of March, 2001 at 

Norfolk, Virginia 

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