UNITED STATES OF AMERICA 

U.S. DEPARTMENT OF HOMELAND SECURITY 

UNITED STATES COAST GUARD 

UNITED STATES COAST GUARD 

Complainant 

vs. 

STEVEN MARCUS CALHOUN 

Respondent. 

Docket Number: CG S&R 04-0225 

CG Case No. 2047648 

DECISION AND ORDER 

Issued: December 13, 2004 

Issued by: Jeffie J. Massey, Administrative Law Judge 

Appearances: 

For Complainant 

Lt. Timothy Tilghman 

CWO Jason Boyer 

U.S. Coast Guard 

MSO Morgan City 

800 David Drive 

Morgan City, La 70380 

For Respondent 

Steven Marcus Calhoun, pro se 
PRELIMINARY STATEMENT 

On April 27, 2004, the United States Coast Guard (''USCG" herein) initiated an 

administrative proceeding against credentials issued to Steven Marcus Calhoun by the USCG. 

Specifically, it was alleged that, while acting under the authority of his Coast Guard issued 

credentials on AprilS, 2004, the Respondent committed an: act ofMisconduct by submitting a 

urine sample that did not fall within the temperature limit for human urine; then, he refused to 

submit another urine specimen, all within the course of a periodic/random drug screen. 

On July 13, 2004, Respondent's Answer was received by the Docketing Center. In his 

Answer Respondent denied all of the allegations and requested to be heard on the proposed 

order. 

A hearing was duly scheduled and convened in Houma, Louisiana on December 2, 2004 

(after two continued hearing dates). The USCG called the following witnesses: Gary Gros, 

Melanie Callahan, Beth Caro, and Todd Albert. Eleven exhibits were admitted for evidentiary 

purposes; one exhibit was retained for record purposes only. The R~spondent testified in his 

own behal£ 

At the end of the testimony, the evidentiary record was closed. Both sides waived the 

filing of written proposed findings of fact and conclusions oflaw, and the filing of post-hearing 

briefs. The undersigned then announced her decision on the record. Further, the undersigned 

informed the parties that this written rendition of the findings of fact and conclusions of law 

announced on the record would be issued as soon as possible. This document constitutes said 

issuance. 

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FINDINGS OF FACT 

1. On and about April 8, 2004, the Respondent was employed by Offshore Specialty 

Fabricators, Inc. and was serving aboard the Crewboat TYPHOON EXPRESS. 

2. While serving aboard the Crewboat TYPHOON EXPRESS, the Respondent was 

acting under the authority of credentials issued to him by the USCG. 

3. On and about April 8, 2004, Respondent's employer instituted a random drug screen 

for all crewmembers aboard the TYPHOON EXPRESS. 

4. The first urine specimen submitted by the Respondent, pursuant to the random drug 

screen collection process, was outside of the acceptable temperature range. 

5. The Respondent was informed that his first specimen was outside of the acceptable 

temperature range, and was asked to submit a second specimen under direct 

observation. 

6. After being asked to submit a second specimen under direct observation, the 

Respondent refused to submit a second specimen. 

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 AP A only authorizes sanctions to 

be imposed if, upon consideration 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 (TOMBARI) (1998). The burden of proving a claim by a preponderance of the 

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evidence "simply requires the trier of fact 'to believe that the existence of a fact is more probable 

than its nonexistence before [he] may fmd in favor of the party who has the burden to persuade 

the [judge] of the fact's existence."' Concrete Pipe and Products of California, Inc. v. 

Construction Laborers Pension Trust for Southern California, 508 U.S. 602, 622 (1993)(citing In 

re Winship, 397 U.S. 358, 371-72 (1970)(Harlan, J., concurring)(brackets in original)). Under 

Coast Guard procedural regulations, the Coast Guard bears the burden of proving the charges by 

a preponderance of the evidence. 33 CFR 20.701, 20.702(a). 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, or merchant 

mariner's document may be suspended or revoked if the holder when acting under the authority 

of his license, certificate, or document has committed an act of incompetence, misconduct, or 

negligence. "Misconduct" is partly defined as human behavior that violates some formal, duly 

established rule, and such rules are found in, among 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 employed in the service of a vessel is considered to be acting under the 

authority of his/her 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). Iflaw, 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 §5.57(a) 

over the alleged violation oflaw. See Appeal Decision 2620 (COX) (2001). Therefore, the 

Coast Guard must prove Respondent was employed in the service of a vessel when he committed 

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a violation oflaw and Respondent's merchant mariner's credentials were either (1) required by 

law or regulation or (2) as a condition ofhis employment. 

The testimony of Todd Albert, Health, Safety, and Environmental Administrator for 

Offshore Specialty Fabricators, Inc. (sometimes referred to herein as "OSFI"), established that 

the Respondent was, on April 8, 2004, an employee of OSFI, and that he was employed in a 

capacity that both required him to hold Coast Guard issued credentials and be subject to random 

drug testing. (Respondent's own testimony was consistent with these facts as well.) Mr. Albert 

was a participant in the testing process on April 8, 2004, once it had reached the point where 

Respondent was told he needed to submit a second urine specimen under direct observation. It 

was Mr. Albert's testimony that Respondent discussed his options for a considerable length of 

time with him, and with Mr. Gros, the certified specimen collector employed by OSFI on a fulltime basis. Mr. Albert further testified that during this process the Respondent indicated to him 

and Mr. Gros that he knew he was "dirty." 

Mr. Gros' testimony was consistent with Mr. Albert's on this last point. Mr. Gros 

provided detailed testimony about the testing process that occurred aboard the TYPHOON 

EXPRESS on April 8, 2004, including his observation that the first specimen given to him by the 

Respondent was out of the acceptable temperature range. While Mr. Gros was unable to produce 

the Federal Drug Testing Custody and Control Form (referred to herein as the "CCF" or the 

''DOT Form") upon which he could have noted that the first specimen was outside of the 

acceptable temperature range, his testimony clearly explained the procedures he followed on 

April8, 2004. Specifically, his testimony credibly explained that immediately upon observing 

that the Respondent's specimen was out ofthe acceptable temperature range, and at his first 

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opportunity (when the collection process was completed for the remaining crewmembers), he 

took the Respondent to a location where an observed specimen could be collected.1 

The Respondent chose to testify in his own behalf He adamantly denied having told Mr. 

Albert and Mr. Gros that he knew he was "dirty'', but he was unable to supply a motive for either 

witness to lie about what he said to them. The Respondent took issue with the procedures 

followed on April8, 2004, saying that they were "different" than other procedures followed 

during other drug tests he had taken. However, on cross examination he was unable to provide 

any information which, in the opinion of the undersigned, amounted to a legally defensible 

abnormality in the testing process. In fact, he attempted to feign ignorance about what drugs the 

test would be screening for. Only after being pointedly questioned by the undersigned did he 

capitulate that he was aware what types of drugs were tested for during random drug screens. 

Ultimately, it was clear from the testimony of Mr. Albert, Mr. Gros, and the Respondent 

that, on April8, 2004, the Respondent refused to submit a second urine specimen after being told 

he was required to do so. Similarly, it was clear that when he signed the ''refusal form" utilized 

by OSFI to document refusals, the Respondent knew that he was refusing to participate in a drug 

screen required by his employer and the regulations that governed the terms of his Coast Guard 

issued credentials. In other words, he was fully aware of the grave consequences ofhis refusal. 

Other witnesses by the USCG testified about two "sea letters" that were issued to the 

Respondent by OSFI, subsequent to his dismissal on April8, 2004, the first of which mistakenly 

1 49 CFR §40.65(b)(4) contemplates that the collector will note the exact temperature of the outof-range specimen in the ''remarks" line of the CCF. The CCF would only be needed later if an 

employee provided a second specimen under direct observation (because the out-of-range 

specimen is transported for testing with the original CCF, and the second specimen is transported 

for testing with a new CCF). Once an employee refuses to provide a second specimen under 

direct observation, the first specimen (the out-of-range one) is discarded, and the first CCF 

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indicated he had not failed a drug test or refused to participate in a drug test while an employee 

ofOSFI. A considerable amount of testimony was also elicited about the forms that the 

Respondent signed at some point in time, forms that advised Respondent ofthe policies ofOSFI 

with respect to drug testing, etc. On the record as a whole, there is slight disagreement about 

when these forms were actually signed by the Respondent. However, when these forms were 

signed has no significance with respect to whether or not what happened on April 8, 2004 

constituted proper procedures under Part 40 of Title 49. There is sufficient testimony in this 

record for me to find that the procedures followed on April 8, 2004 were substantively sufficient, 

and that the Respondent refused to participate in a random drug screen without considering the 

testimony and documents connected with the orientation or hiring process at OSFI? 

In these proceedings, the Administrative Law Judge is vested with broad discretion to 

determine witness credibility and resolve inconsistencies in the evidence, and the findings of the 

Administrative Law Judge are not required to be consistent with all the evidence in the record as 

long as there is sufficient evidence to justify the finding. Appeal Decision 2639 (HAUCK) 

(2003). As I noted on the record after the close ofthe evidence, I find the testimony of Mr. Gros 

and Mr. Albert to be entirely credible. Any minor technical flaws in the documentation process 

of the procedures followed on April8, 2004 in no way taint the validity and integrity of the 

testing process itself. There is substantial testimony in this record to support the finding that the 

Respondent first submitted a urine specimen which was out of the acceptable temperature range, 

and-after being given ample opportunity to submit a second specimen under direct 

serves no further purposes in the testing process (because the testing process is terminated by the 

refusal to provide the second specimen.) 

2 "Refuse to Test" means a person refuses to take a drug test as set out in 49 CFR §40.191. See 

46 CFR § 16.105. Part 40 of Title 19 does not place any particular burden on an employer with 

respect to employee orientation procedures. 

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observation-he refused to do so. His motivation for submitting a specimen the undersigned can 

reasonably conclude was an adulterated specimen in the first place, and then refusing to submit a 

second specimen under direct observation is relevant only to my decision to revoke his 

credentials, not to the question of whether or not he committed an act of Misconduct. To the 

extent that inconsistencies exist between the testimony of Mr. Albert and Mr. Gros versus the 

testimony of the Respondent, I resolve those inconsistencies against the Respondent, as I find 

him to be less than credible. 

ULTIMATE FINDINGS OF FACT AND CONCLUSIONS OF LAW 

1. On and about April 8, 2004, Respondent was employed with Offshore Specialty 

Fabricators, Inc., at which time he was acting under the authority of credentials issued 

bytheUSCG. 

2. On and about AprilS, 2004, Offshore Specialty Fabricators, Inc., initiated a drug 

screen procedure for all crewmembers ofthe TYPHOON EXPRESS, the Crewboat 

upon which Respondent was....s.encin'4gl,.----------------------

3. Respondent submitted a urine specimen which was out of the acceptable temperature 

range, then refused to submit a second urine specimen under direct observation. 

4. As an employee of Offshore Specialty Fabricators, Inc., and as a person who held 

credentials issued by the USCG, Respondent was required by law to submit an 

acceptable urine specimen during this random drug screen. 

5. Failure on the part of the Respondent to submit a valid urine specimen on AprilS, 

2004, constituted a refusal to take a chemical test and, thus an act of Misconduct 

pursuant to 46 USC §7703 and 46 CPR §5.27. 

s 
6. The USCG proved by a preponderance of the evidence that sanctions are warranted 

against Respondent's Coast Guard issued credential(s) under 46 U.S.C. §7703, 

because the evidence proved an act of Misconduct by the Respondent on and about 

April 8, 2004. 

7. Pursuant to the provisions of 46 USC § 7703(1 )(B), the evidentiary record supports a 

revocation of all credentials issued to the Respondent by the USCG. 

SANCTION 

Under the provisions of 46 USC §7703, it is within my discretion to suspend or 

revoke the credentials issued to the Respondent by the USCG. Based upon the record as 

a whole in this proceeding, and as I announced on the record, I have concluded that 

revocation is the appropriate sanction. Based on the record as a whole, the Respondent 

was, in the opinion of the undersigned, not truthful during his testimony. He attempted to 

offer every conceivable excuse for his conduct on April8, 2004, all of which left him 

blameless and without responsibility for his refusal to provide a viable urine specimen to 

his employer for testing. He attempted to convince the undersigned that the random 

testing procedures were faulty, that his employer had failed to provide him sufficient 

orientation as a new employee, that his overall conditions of employment were so 

unpleasant that he was forced to refuse the test as a vehicle that would result in his being 

frred from his job, and that two witnesses had misrepresented to the undersigned what he 

had said on April 8, 2004. 

Ironically, a document the Respondent voluntarily provided to the USCG-a 

document that otherwise would never have been discovered during this proceeding9 
demonstrated to the undersigned how far the Respondent was willing to go to mask his 

deceit. This document, a job application filled out a mere twelve days after his discharge 

from OSFI, asked the Respondent to list his last three jobs (See Exhibit I0-12). The 

Respondent should have listed his employment at OSFI, but he omitted it. When asked 

to explain this, he testified that he knew OSFI would not give him a good reference, so he 

didn't list them. He maintained that OSFI would give him a bad reference, not because 

he had refused to participate in a drug test, but because of "other" things. 

Whatever the reason for this material omission, it indicates a clear intent on the part of 

the Respondent to manipulate the system-he was apparently determined to find other 

employment in the maritime industry based on lies about his drug testing history. That is 

exactly the kind of manipulative conduct that undermines the legitimate purposes of the 

drug testing regulations. 3 The Respondent's action on AprilS, 2004 constituted a 

circumvention ofthe drug testing program, and his conduct on April12, 2004 (the date of 

the job application) demonstrated that he was perfectly willing to perpetuate a pattern of. 

deceptive conduct to hide his unwillingness to participate in the testing program of the 

USCG. 

3 Per 46 CPR § 16.101, the purpose of the chemical testing regulations is to ''provide a means to 

minimize the use of intoxicants by merchant marine personnel and to promote a drug free and 

safe work environment." Employers have a right to know the drug testing history of job 

applicants so that they can make informed decisions that maintain a drug free and safe work 

environment for other employees. 

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ORDER 

IT IS HEREBY ORDERED that all credentials issued to the Respondent by the United 

States Coast Guard, including but not necessarily limited to License Number 1015696 are hereby 

REVOKED. 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 and/or parties' 

representative(s) serves as notice of appeal rights set forth in 33 CFR 20.1001-20.1004. 

(Attachment A). 

Done and dated December 13,2004. 

New Orleans, Louisiana 

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