UNITED STATES OF AMERICA 

U.S. DEPARTMENT OF HOMELAND SECURITY 

UNITED STATES COAST GUARD 

_______________________________ 

UNITED STATES COAST GUARD 

Complainant 

vs. 

CHRISTOPHER J. DRESSER 

Respondent 

______________________________ 

Docket Number: CG S&R 08-0062-ARB-98 

CG Case No. PA98000494/dbc

 

DECISION AND ORDER

Issued: June 14, 2005

Issued by: Walter J. Brudzinski, Administrative Law Judge

Appearances:

For Complainant 

LCDR Shannon Gilbreath 

LT Boris Towns 

U.S. Coast Guard 

MSO New Orleans 

For Respondent 

J. Mac Morgan, Esq. 

879 Robert E. Lee Blvd. 

New Orleans, LA 70124 

 
2

Table of Contents

PRELIMINARY STATEMENT .................................................................................................... 3 

Pre-Hearing Motions................................................................................................................... 4 

Coast Guard’s Motion to Stand on the Record & Respondent’s Motions for a De Novo 

Hearing.................................................................................................................................... 5 

Motion for Return and Renewal of Coast Guard License and Document .............................. 6 

Motion for Supplementary Oral Testimony and Offer Additional Exhibits into Evidence.... 7 

Motions to Disqualify the Administrative Law Judge............................................................ 8 

First Motion to Disqualify the ALJ..................................................................................... 8 

Second Motion to Disqualify the ALJ................................................................................ 8 

Third Motion to Disqualify the ALJ ................................................................................... 8 

Denial of Respondent’s Three Motions to Disqualify the ALJ .......................................... 8 

Remanded Hearing.................................................................................................................... 10 

FINDINGS OF FACT................................................................................................................... 10 

ULTIMATE FINDINGS OF FACT AND CONCLUSIONS OF LAW ...................................... 18 

DISCUSSION............................................................................................................................... 19 

Jurisdiction & Burden of Proof................................................................................................. 19 

Presumption of Drug Use.......................................................................................................... 20 

Respondent’s Use of Hemp Seed Oil........................................................................................ 22 

Analysis..................................................................................................................................... 26 

SANCTION .................................................................................................................................. 29 

ORDER......................................................................................................................................... 30 

ATTACHMENT A....................................................................................................................... 31 

NOTICE OF ADMINISTRATIVE APPEAL RIGHTS........................................................... 31 

ATTACHMENT B ....................................................................................................................... 33 

WITNESS AND EXHIBIT LISTS........................................................................................... 33 

ATTACHMENT C ....................................................................................................................... 37 

MOTIONS, RESPONSES AND ORDERS FOR REMANDED HEARING .......................... 37 

ATTACHMENT D....................................................................................................................... 39 

RULINGS ON PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW......... 39 

Coast Guard’s Proposed Findings of Fact ............................................................................ 39 

Coast Guard’s Proposed Conclusions of Law ...................................................................... 53 

Respondent’s Proposed Findings of Fact and Conclusions of Law...................................... 54 
3

PRELIMINARY STATEMENT

Background 

The United States Coast Guard (Coast Guard) initiated this administrative action seeking 

revocation of the Coast Guard license and Merchant Mariner’s Document (MMD) issued to 

Respondent, Christopher J. Dresser. The purpose of Coast Guard Suspension and Revocation 

proceedings is to ensure the safety of life and property at sea. 46 U.S.C. 7701(a). This 

administrative action was brought pursuant to 46 U.S.C. 7704, as codified in 46 CFR Part 5.1 

On March 23, 1998, the Coast Guard Marine Safety Office (MSO) Tampa, Florida, 

issued a Charge Sheet against Respondent alleging use of dangerous drugs. If the charge is 

found proved and Respondent is unable to show sufficient evidence of cure, Respondent’s 

license must be revoked. 46 U.S.C. 7704(c). The Charge Sheet specified that Respondent was 

the holder of Coast Guard issued License No. 764137 and a Merchant Mariner’s Document 

(MMD), and charged Respondent as a user of dangerous drugs after he tested positive for the use 

of marijuana. Because this incident occurred in 1997, the substantive rules in 46 CFR Part 5 

from that year apply.2

 As indicated in my Order of May 7, 2004, 46 CFR Part 5 (1997) applies 

substantively and 33 CFR Part 20 (2004) applies procedurally. 

Pursuant to Respondent’s motion, the initial hearing was held in New Orleans, Louisiana 

on April 29, June 11, 12, and 24, 1998, before The Honorable Archie R. Boggs, Administrative 

 

1

 During the pendency of this case, the U.S. Coast Guard transferred from the Department of 

Transportation to the Department of Homeland Security. Pursuant to the Savings Provision of 

5005 Section 1512 (PL 107-296), pending proceedings are continued notwithstanding the 

transfer of the agency. 

2

 In an effort to promote efficiency and eliminate unnecessary procedures from suspension and 

revocation proceedings, the Coast Guard revised its rules of practice, procedure, and evidence for 

administrative proceedings in 1999. Rules of Practice, Procedure, and Evidence for 

Administrative Proceedings of the Coast Guard, 64 Fed. Reg. 28,054-01, (May 24, 1999). 

Specifically, certain sections of 46 CFR Part 5 were revised and moved to 33 CFR Part 20 to 

reflect the new procedural rules now contained therein. Id. 
4

Law Judge (ALJ), now retired. Appeal Decision 2626 (DRESSER) (2001). Judge Boggs found 

the charge proved. Id. Respondent appealed the decision alleging several errors, including an ex 

parte statement based on a conversation between the judge and his son, a New Orleans lawyer, 

that took place after the hearing but before a decision was rendered. Id. The Commandant found 

that the ALJ rightfully disclosed the communication and did not allow it to impact his decision. 

Appeal Decision 2626 (DRESSER); see also, Dresser v. Ohio Hempery, 2000 WL 235242, 6 

(E.D. La.) (2000) (“[T]he entire proceeding took place before the ALJ learned of his son's 

representation of the insurer of a hemp seed oil company. This Court finds no evidence that the 

conversations at issue biased the ALJ, or that the administrative proceeding was unfair.”). Next, 

Respondent appealed the Commandant’s decision to the National Transportation Safety Board 

(NTSB). The NTSB found that the ALJ should have recused himself despite his disclosure and 

the advice received from Coast Guard counsel permitting the judge to remain on the case. 

Commandant v. Dresser, NTSB Order No. EM-195 (2003). As a result, the NTSB remanded the 

case to be heard by a different ALJ. Id. After the NTSB remand, Respondent petitioned the U.S. 

Circuit Court of Appeals for the D.C. Circuit. The court denied the petition because the NTSB 

remand is not considered “final agency action.” Dresser v. NTSB, No. 03-1169, slip op. (D.C. 

Cir. Oct. 1, 2003). As a result, the Undersigned was assigned to preside over the remanded 

hearing. 

Pre-Hearing Motions 

After the reassignment, the Coast Guard filed one Motion to Stand on the Record and 

Respondent filed numerous pre-hearing motions. The eight significant motions filed by 

Respondent are: one Motion Opposing the Coast Guard’s Motion to Stand on the Record; one 

Motion for Dismissal; one Motion for a De Novo Hearing or Alternative Motion for 
5

Reconsideration of the Administrative Law Judge’s Ruling on the Coast Guard’s Motion to 

Stand on the Record; one Motion for Return of License and Document and for an Order 

Directing the Coast Guard’s Regional Examination Center to Permit Respondent to Renew His 

License and Document; one Motion for Supplementary Oral Testimony and Offer Additional 

Exhibits into Evidence; and three Motions to Disqualify the Administrative Law Judge. The 

Coast Guard had the opportunity to reply to each motion.

Motion to Dismiss 

On March 4, 2004 and March 11, 2004, Respondent filed a Motion to Dismiss and a 

Supplemental Memorandum, respectively, claiming that the delay in decision-making from the 

original hearing to the remanded action amounted to a denial of due process. Respondent argued 

that the changes in Coast Guard regulations since 1998 resulted in a “heightened burden of proof 

. . . [that] did not exist when the suspension and revocation action was first prosecuted by the 

Coast Guard.” Respondent’s Supplemental Memorandum in Support of Motion to Dismiss, J. 

Mac Morgan, Esq., March 11, 2004. On May 4, 2004, the Undersigned issued the Order 

Denying Respondent’s Motion for Dismissal, pointing out that any change in the law after the 

date of the incident was not applicable in the remanded hearing.

Coast Guard’s Motion to Stand on the Record & Respondent’s Motions for a De 

Novo Hearing 

On April 22, 2004, Respondent filed a motion opposing the Coast Guard’s prior motion 

to stand on record at the remanded hearing and moved for a de novo hearing. On May 7, 2004, 

the Undersigned issued the Order Granting the Coast Guard’s Motion to Stand on the Record and 

Denying Respondent Dresser’s Motion for De Novo Hearing. The Undersigned issued this order 

partly because “[t]o require all witnesses to testify again when there are no conflicts in the 
6

testimony to be resolved, creates ‘unduly repetitious evidence’ because the original record would 

still be part of the new record that the fact finder must consider.” Order Granting the Coast 

Guard’s Motion to Stand on the Record and Denying Respondent Dresser’s Motion for De Novo

Hearing, ALJ Brudzinski, May 7, 2004 (citing 33 CFR 20.902). In this same order, the 

Undersigned ruled that the substantive portion of the hearing would be governed by 46 CFR Part 

5 and the procedural portion would be governed by 33 CFR Part 20. 

Respondent filed his Motion for De Novo Hearing or Alternative Motion for 

Reconsideration of the Administrative Law Judge’s Ruling on the Coast Guard’s Motion to 

Stand on the Record on May 10, 2004. In his motion, Respondent asked the ALJ to reconsider 

and rule on all of the objections raised at the 1998 hearing. The Undersigned responded in his 

June 7, 2004 Order Denying Respondent Dresser’s Motion for De Novo Hearing or Alternative 

Motion for Reconsideration of the Administrative Law Judge’s Ruling on the Coast Guard’s 

Motion to Stand on the Record by stating that neither the Commandant nor the NTSB found 

anything wrong with the rulings made at the 1998 hearing. The only reason cited by the NTSB 

for remanding the case was because the previous ALJ did not recuse himself once he became 

involved in a conversation that could be considered ex parte. 

Motion for Return and Renewal of Coast Guard License and Document 

On May 6, 2004, Respondent filed his Motion for Return of License and Document and 

for an Order Directing the Coast Guard’s Regional Examination Center to Permit Respondent to 

Renew His License and Document, contending that the NTSB vacated the decision by the ALJ 

and Respondent’s license expired while it was in Coast Guard custody. On June 4, 2004, the 

Undersigned issued an Order Denying Respondent Dresser’s Motion for Return of License and 

Document and for Order Directing the CG Regional Exam Center to Permit Respondent to 
7

Renew his License and Document. The Order stated that Coast Guard administrative law judges 

do not have jurisdictional authority to direct the Regional Exam Centers to process renewal 

applications. Additionally, as noted in the Order, Respondent could have filed an application for 

document renewal after it expired or for a new document; neither the ALJ nor the Coast Guard 

have the authority to block application renewal despite the pending case because the regulations 

provide for it. 46 CFR 10.209(e)(1); 46 CFR Part 5.901. It was Respondent’s choice not to 

apply for renewal at the proper time. 

Motion for Supplementary Oral Testimony and Offer Additional Exhibits into 

Evidence 

On May 8, 2004, Respondent moved for the ALJ to reconsider his order to allow the 

Coast Guard to stand on the record, and filed his Motion for Supplementary Oral Testimony and 

Offer Additional Exhibits into Evidence. In the June 7, 2004, Order to Stay Respondent’s 

Motion for Supplemental Oral Testimony and Offer of Additional Exhibits into Evidence and 

Order for Discovery, the Undersigned stayed Respondent’s motion pending the completion of 

discovery. The Order specified that within ten days of its receipt, the parties would make 

available to the ALJ and each other: (1) the witnesses that they intended to call at the hearing, a 

summary of each witness’ testimony, and the amount of time for examination of each witness; 

and (2) a list of exhibits that, pursuant to section 556(d) of the Administrative Procedure Act, 

included an explanation of why “each exhibit is not irrelevant, immaterial, or unduly repetitious 

of what is contained in the existing record.” After compliance with items (1) and (2), the parties 

had ten days to file any objections. 
8

Motions to Disqualify the Administrative Law Judge 

At three different times over a seven-week period, Respondent moved to disqualify the 

Undersigned ALJ. 

 First Motion to Disqualify the ALJ 

The first Motion to Disqualify the Administrative Law Judge was filed on March 26, 

2004. Respondent claimed that since the new ALJ read the entire record, he could not be a fair 

and impartial adjudicator of the law because he was predisposed to the facts and law. 

Respondent asserted that an ALJ must be disqualified if he had the opportunity to review the 

evidence in the case. 

 Second Motion to Disqualify the ALJ 

Respondent’s Second Verified Motion for Disqualification was filed on May 6, 2004. 

Respondent argued that in an October 22, 2001 memo by the Chief Administrative Law Judge 

addressed to “All Field ALJ’s” Respondent Dresser was “labeled . . . an unbelievable witness.” 

As a result, Respondent continued, it would be impossible for the newly assigned judge to be 

impartial, and therefore the ALJ should be disqualified. 

 Third Motion to Disqualify the ALJ 

On May 8, 2004, Respondent filed his Third Verified Motion for Disqualification. 

Respondent argued that the Chief ALJ’s October 22, 2001, memo stating that “hemp oil should 

not be accepted as a defense to the charge of use of a dangerous drug . . .” by definition makes 

the ALJ partial and therefore should be disqualified. 

 Denial of Respondent’s Three Motions to Disqualify the ALJ 

Respondent’s first Motion to Disqualify the ALJ was denied on April 21, 2004, because 

the presumption of a judge’s impartiality is not rebutted by considerable pre-hearing knowledge 
9

of the facts of the case. “[A]dministrative tribunals must be presumed honest and that 

presumption can only be overcome by facts showing a ‘risk of actual bias or prejudgment.’” 

Order Denying Motion to Disqualify the Administrative Law Judge, ALJ Brudzinski, April 21, 

2004 (citing Withrow v. Larkin, 421 U.S. 35, 95 S.Ct. 1465 (1975)). The Undersigned’s mere 

review of the record does not rebut the established presumption of impartiality. Order Denying 

Motion to Disqualify the Administrative Law Judge, ALJ Brudzinski, April 21, 2004. 

The Undersigned denied Respondent’s second and third motions for disqualification by 

Order dated June 3, 2004. Order Denying Respondent Dresser’s Second and Third Motions for 

Disqualification of the Administrative Law Judge, ALJ Brudzinski, at 2, June 3, 2004. In the 

Second Verified Motion for Disqualification, Respondent argued that the Chief ALJ’s memo 

would improperly influence the Undersigned because the memo “labeled [R]espondent as an 

unbelievable witness.” Id. Respondent’s assertion that the Chief ALJ’s memo created a stigma 

was a “hasty generalization” because Respondent’s case was merely used as an example, and 

other similar decisions were also cited.3

 Respondent’s Third Verified Motion for 

Disqualification argued that the Undersigned would be unduly influenced by instructions from 

the Chief ALJ stating that “hemp [seed] oil should not be accepted as a defense to the charge of 

use of dangerous drugs.” Order Denying Respondent Dresser’s Second and Third Motions for 

Disqualification of the Administrative Law Judge, ALJ Brudzinski at 2, June 3, 2004. As stated 

 

3

 The Chief ALJ’s memo stated that 

. . . accidental or inadvertent ingestion of a food product containing THC will 

only serve as a valid defense to a charge of use of dangerous drug if the 

Respondent produces reliable and credible evidence. For instance, in Dresser, 

Docket No. 08-0062-ARB-98, ALJ Boggs rejected the Respondent’s hemp seed 

oil defense to a charge of use of dangerous drugs where the only evidence that he 

used hemp oil and the product was innocently ingested was the Respondent’s own 

self-serving testimony. 

Memorandum from the Chief ALJ, USCG, regarding Hemp Oil Cases, to All Field ALJ’s 2 (Oct. 

22, 2001) (on file with USCG Docketing Center, Baltimore, MD). 
10

in the Order, Respondent’s third motion is without merit because the Chief ALJ’s memo was 

issued after Respondent’s 1998 hearing, and therefore does not apply to Respondent’s remanded 

case. Id. at 3. Only those laws and recommendations in effect at the time of the incident are 

applicable to the remanded hearing. Id. 

Remanded Hearing 

The remanded hearing was held as scheduled on December 7, 2004, in New Orleans, 

Louisiana, and both parties had the opportunity to introduce exhibits and witness testimony. The 

Coast Guard introduced one (1) exhibit into evidence, and called one (1) witness to the stand. 

Attachment B. The Respondent introduced eleven (11) exhibits into evidence and called three 

(3) witnesses to the stand. Id. 

After the hearing, both parties filed post-hearing briefs in lieu of oral closing arguments. 

Attachment D. After careful review of the facts and applicable law in this case, the Undersigned 

finds that the Coast Guard established by “reliable, probative, and substantial evidence” that 

Respondent is a user of dangerous drugs. 46 CFR 5.63 (“In proceedings conducted pursuant to 

this part, findings must be supported by and in accordance with the reliable, probative, and 

substantial evidence. By this is meant evidence of such probative value as a reasonable, prudent 

and responsible person is accustomed to rely upon when making decisions in important 

matters.”).

FINDINGS OF FACT

 The Findings of Fact are based on a thorough and careful analysis of the entire record 

established from the 1998 hearing through the appellate levels to the U.S. Circuit Court of 
11

Appeals for the D.C. Circuit, and the 2004 remanded hearing. The record includes, but is not 

limited to documentary evidence, witness testimony, and hearing transcripts. 

1. At all relevant times, Respondent was the holder of Coast Guard issued License No. 

764137 and a Merchant Mariner’s Document (MMD). Tr. Vol. 1 at 9-10 (1998).

Procedural History

2. The ALJ revoked Respondent’s License and MMD on February 4, 1999, after 

finding, at a hearing held in New Orleans, Louisiana on April 29, 1998, and June 11, 

12, and 24, 1998, that Respondent was a user of dangerous drugs. Appeal Decision 

2626 (DRESSER) (2001).

3. On appeal, the Commandant affirmed the ALJ’s decision based on Respondent’s 

failure “to meet his burden of proof to establish that the ALJ had a personal bias in 

this matter or prejudged the case.” Id.

4. Respondent appealed to the National Transportation Safety Board (NTSB). 

5. On June 11, 2003, the NTSB remanded the case for reassignment to a different ALJ. 

Dresser, NTSB Order No. EM-195. The NTSB based its decision on the appearance 

of impropriety, not the actual existence of bias by the ALJ. Id. 

6. The NTSB denied Respondent’s motion to stay its June 11, 2003 Order while 

Respondent appealed to the U.S. Circuit Court of Appeals for the D.C. Circuit. 

Dresser, NTSB Order No. ME-173.

7. The Circuit Court denied Respondent’s petition because the NTSB remand is not 

considered “final agency action.“ Dresser v. NTSB, No. 03-1169, slip op. (D.C. Cir. 

Oct. 1, 2003).
12

Respondent’s Drug Test & Notification of Results

8. On November 13, 1997, Respondent submitted to a pre-employment drug test in 

accordance with 46 CFR Part 16. Tr. Vol. 1 at 13, 86-88. 

9. Ms. Carolyn Watson, Medical Technician with Shore Works, Easton Memorial 

Hospital, Easton, Maryland, collected Respondent’s urine sample in compliance 

with Coast Guard procedure and regulations. Respondent’s signature appears in 

Step No. 4 on the Medical Review Officer’s copy of the Drug Testing Custody and 

Control form under a printed statement certifying that he provided a urine specimen 

to the collector and the specimen was sealed with a tamper evidence seal in his 

presence. Tr. Vol. 1 at 26-44; IO Exhibit 1. 

10. The specimen was delivered to Quest Diagnostics, Inc., a Substance Abuse and 

Mental Health Services Administration certified laboratory. Tr. Vol. 1 at 42, 45, 50-

51; IO Exhibit 2. 

11. Mr. James A. Callies, Scientific Director, Quest Diagnostics Substance Abuse 

Testing Laboratory, San Diego, California, and Dr. Donald Shu, Lab Technician, 

Quest Diagnostics testified that the chain of custody was maintained in accordance 

with 49 CFR Part 40. Tr. Vol. 1 at 49-54, 187-91; IO Exhibit 2. 

12. At Quest Diagnostics, Inc., the sample was initially tested by enzyme immunoassay 

for a range of drugs. Tr. Vol. 1 at 51-52; IO Exhibit 2. The test indicated the 

presence of tetrahydrocannabinol (THC) (i.e., marijuana metabolite) in the 

specimen. Tr. Vol. 1 at 54; IO Exhibit 2. 

13. Following the Department of Health and Human Services guidelines and the usual 

laboratory procedures, the sample was then tested again by gas 
13

chromatography/mass spectrometry (GC/MS) to confirm or refute the initial screen 

results. The confirmatory test, performed by Dr. Donald Shu, certifying scientist for 

Quest Diagnostics, Inc., was also positive for marijuana/THC metabolite. The final 

laboratory report concluding that Respondent’s sample was positive for 

marijuana/THC metabolite was dated November 18, 1997. Tr. Vol. 1 at 52-53, 60-

63, 191; IO Exhibit 2. 

14. Dr. Shu certified the test results. All testing was conducted in accordance with 

standard procedures, which Dr. Shu and Mr. James Callies, described in detail. Tr. 

Vol. 1 at 50-54; IO Exhibit 2. Quest Diagnostics sent Respondent’s positive drug 

test results to the Medical Review Officer at Marine Engineers Beneficial 

Association Engineering School (“MEBA”) District I. Tr. Vol. 1 at 53, 73-74, 92-

93; IO Exhibit 6. 

15. Mr. George Ellis, President, Greystone Health Sciences Corporation, supervisor of 

all Medical Review Officers (“MRO”) at Greystone Health Sciences Corporation, 

reviewed the documents regarding Respondent’s drug test and the testing of his 

specimen. Tr. Vol. 1 at 78, 97. He concluded that there were no breaks in the chain 

of custody. Tr. Vol. 1 at 97. 

16. Mr. Ellis sent a letter from Greystone to Dr. Steven Oppenheim, an MRO with 

Greystone, stating that Respondent’s specimen tested positive for the use of 

marijuana. Tr. Vol. 1 at 78-80; Tr. Vol. 2 at 18; IO Exhibit 4. 

17. Dr. Oppenheim testified that there are no false positives because drug usage is 

presumed if there is no medical explanation for a positive drug test. Tr. Vol. 2 at 19-

24. (“[A]n allegation of consuming any hemp food product is not considered a 
14

legitimate medical explanation for a prohibited substance or metabolite in an 

individual specimen, and . . . when a specimen is positive for THC, the only 

legitimate medical explanation for its presence is a prescription for Marinol.”). 

18. Ms. Elaine Bradley, Senior Vice President, Greystone Health Sciences Corporation, 

made multiple attempts to contact Respondent. On different dates and at different 

times, Ms. Bradley left five different messages on Respondent’s telephone 

answering machine at the MEBA School in Easton, Maryland, and at his home in 

Clearwater, Florida. Tr. Vol. 1 at 170-75. Respondent did not return her calls. Tr. 

Vol. 1 at 176. The messages she left stated that he should contact the MRO, but did 

not reveal that he tested positive for drug use. Tr. Vol. 1 at 171-72. 

19. According to Mr. Ellis’ testimony, the “fourteen day rule” gives the MRO fourteen 

(14) days to contact the test subject whose specimen tested positive, but if the 

individual cannot be reached for an interview within that time, then the MRO can 

declare the test positive without having spoken to the individual. Tr. Vol. 1 at 81-

83; 49 CFR 40.33(C)(5)(ii). 

20. On December 15, 1997, twenty-five (25) days after Ms. Bradley first attempted to 

contact Respondent, Dr. Steven Oppenheim made a final positive determination that 

the specimen, furnished by Respondent on November 13, 1997, was positive for the 

THC/marijuana metabolites. Dr. Oppenheim reasoned that over a twenty-five day 

period, reasonable attempts had been made to contact Respondent at both phone 

numbers provided. He determined that Respondent failed to return the phone calls. 

Tr. Vol. 2 at 15-16, 19, 30-31; IO Exhibit 4. 
15

 

21. On December 15, 1997, Greystone Health Sciences sent written notification to the 

Coast Guard at Marine Safety Office, Baltimore, Maryland, regarding Respondent’s 

positive drug test. Tr. Vol. 1 at 92-94, 116; Tr. Vol. 2 at 38; IO Exhibits 4 & 6. 

22. Respondent is a member of the MEBA District I union, but MEBA does not handle 

positive drug tests on behalf of its union members. Although Greystone Health 

Sciences Corporation is the Medical Review Officer employed by MEBA, positive 

test results are sent to the Coast Guard only. Consequently, there is no “designated 

employer representative” as described in 49 CFR 40.33 for Respondent. Tr. Vol. 1 

at 180-81; IO Exhibit 6. 

23. Prior to receiving notification from the MRO that his drug test was positive, on or 

about, December 20, 1997, Respondent contacted MEBA to request an attorney. Tr. 

Vol. 2 at 317-19. 

24. On January 15, 1998, Respondent’s attorney requested that an aliquot from 

Respondent’s specimen be sent for confirmation to Northwest Toxicology, in Salt 

Lake City, Utah. Tr. Vol. 1 at 108-09, 111-12; Tr. Vol. 3 at 15-16. 

25. Northwest Toxicology, a Substance Abuse and Mental Health Services 

Administration certified laboratory, reconfirmed the positive drug test on 

Respondent’s aliquot sample as positive for cannabinoids/THC4

. Tr. Vol. 1 at 113; 

IO Exhibit 4. 

26. On January 6, 1998, Marine Safety Office Baltimore sent the positive drug test 

notification to MSO Tampa, Florida for action because Respondent lived near that 

office. Tr. Vol. 2 at 37-41; Tr. Vol. 4 at 30-31; IO Exhibit 6. 

4

 “Δ9-Tetrahydrocannabinol (THC) is the major pharmacologically active component of the 

marijuana plant (Cannabis sativa).” Respondent Exhibit B. 
16

27. LT Warren W. Weedon, USCG, Investigating Officer, U.S. Coast Guard MSO, 

Tampa, Florida, did not contact Respondent regarding his positive drug test until 

February 10, 1998, and at that time LT Weedon was directed to speak with 

Respondent’s attorney. Tr. Vol. 4 at 30, 36. 

28. On March 23, 1998, the Coast Guard charged Respondent with use of dangerous 

drugs. This was the first official notification Respondent received regarding his 

positive drug test. Tr. Vol. 4 at 35-38; IO Exhibit 13. 

Hemp Seed Oil

29. Respondent raised the affirmative defense of hemp seed oil usage to rebut the 

presumption of drug use. Tr. Vol. 1 at 15-16. 

30. Respondent offered two empty hemp seed oil containers as evidence of his 

consumption prior to the November 13, 1997 test. The Hemp Liquid Gold bottle, by 

Health from the Sun, was dated March 1997. Spectrum Naturals’ cold pressed 

liquid hemp oil container was dated October 7, 1996. Both were eight ounce bottles. 

Id. at 221-23; Respondent’s Exhibits G & H. 

31. Mr. Don Wirtshafter, owner of the Ohio Hempery and board member of the 

National Organization for the Reformation of Marijuana Laws (NORML), testified 

that all hemp seed oil products contain some level of THC. The specific amount of 

THC varies by manufacturer. Products from the Ohio Hempery contained some of 

the lowest levels of THC on the market at that time. Tr. Vol. 4 at 18-19, 25-26. 

Concentrations of THC within hemp seed oil products vary regardless of whether 

they are produced by the same company or from the same seed lot. Tr. at 198-204, 

207-20. 
17

32. Mr. Wirtshafter also testified that on December 5, 1997, a catalog order was 

recorded with the delivery address of Respondent’s home in Clearwater, Florida. 

Tr. Vol. 4 at 17-18. The catalog was delivered on or about December 5, 1997 to the 

given delivery address. Tr. Vol. 4 at 16-18. 

33. Mr. Fred Kulow, president of Health From the Sun, testified that the company 

produces more than fifty fatty oil products, including hemp seed oil. The company 

began marketing hemp seed oil in liquid and capsule form in 1995 but discontinued 

the liquid form, Hemp Liquid Gold, in 1997 because of low demand and lack of use 

in the medical community. Tr. Vol. 3 at 97-105. 

34. Mr. Kulow also testified that after being made aware that Hemp Liquid Gold could 

result in positive drug tests, his company tested people who had taken the product 

and found no THC present. Tr. Vol. 3 at 115-16. 

35. Ms. Dana Purdy, a licensed dietician and nutritionist, testified regarding general 

practices for good nutrition. She stated that she would not recommend hemp seed 

oil as a dietary supplement for increasing one’s fatty acids because the acids can be 

consumed by adhering to a specific diet that includes oils, e.g. olive oil, canola oil 

and sunflower oil. Tr. Vol. 3 at 63-67, 81-83. 

36. Hemp seed oil is not a mainstream dietary supplement. Its sales are small in 

comparison to other dietary supplements containing the same essential fatty acids. 

Hemp seed oil is also very expensive in comparison to other dietary supplements 

that contain essential fatty acids. Tr. Vol. 3 at 63-67, 97-103. 
18

37. LT Weedon testified to the locations of two different health food stores within 

twenty (20) miles of Respondent’s Florida home, and both stores carried other fatty 

acid products in addition to hemp seed oil. Id. at 39-45. 

38. On December 24, 1997, Respondent ordered Health from the Sun’s Hemp Liquid 

Gold from the Nature’s Food Patch, a health food store located a half of a mile from 

his home. Tr. Vol. 4 at 39-43. 

MEBA School

39. Ms. Shirley Shelton, Office Manager and Registrar, MEBA Engineering School, 

testified that Respondent was a student at MEBA from October 27, 1997 through 

November 21, 1997. Tr. Vol. 4 at 50. 

40. The rooms at MEBA were not equipped with refrigerators, but refrigerators were 

available upon request. Id. at 51. 

41. Respondent did not request a refrigerator before arriving at MEBA, despite his 

testimony that he would keep an open bottle of hemp seed oil in a refrigerator or 

cooler. Tr. Vol. 2 at 313-14; Tr. Vol. 4 at 51. 

42. The telephones at MEBA had the technology for Respondent to check his phone 

messages from a remote location, if he chose to do so. Id. at 52. 

ULTIMATE FINDINGS OF FACT AND CONCLUSIONS OF LAW

1. Respondent Christopher J. Dresser and the subject matter of this hearing are properly 

within the jurisdiction of the United States Coast Guard and the Administrative Law 

Judge in accordance with 46 U.S.C. 7704; 46 CFR Part 5 (1997); and 33 CFR Part 20 

(2004). 
19

2. At all relevant times, Respondent was the holder of Coast Guard issued License No. 

764137 and a Merchant Mariner’s Document (MMD). 

3. Respondent tested positive for the use of marijuana in a pre-employment drug test on 

November 13, 1997 in violation of 46 CFR 16.201. 

4. Respondent failed to rebut the presumption provided by 46 CFR 16.201(b), that he is 

a user of dangerous drugs. 

DISCUSSION

Jurisdiction & Burden of Proof 

In the Code of Federal Regulations, the Commandant delegated to administrative law 

judges the authority to suspend or revoke a license or certificate for a violation arising under 46 

U.S.C. 7704. 46 CFR 5.19. A mariner’s license, certificate of registry, or merchant mariner’s 

document is subject to revocation upon a showing that the holder of such credentials has been a 

user of or addicted to the use of a dangerous drug. 46 U.S.C. 7704(c). The evidentiary standard 

in Coast Guard suspension and revocation hearings is “reliable, probative, and substantial 

evidence.” 46 CFR 5.63; see also Appeal Decision 2570 HARRIS (1995). “This standard is 

equated to the American judicial system ‘preponderance of evidence’ standard of proof.” Id. 

(citing Steadman v. S.E.C., 450 U.S. 91 (1981)). The Coast Guard has jurisdiction over this case 

because it retains jurisdiction over Coast Guard issued licenses/documents, and the NTSB 

remanded the case back to the hearing level. Tr. 10-11 (2004). As directed by the NTSB, a 

different ALJ was assigned to hear the case. Id. at 7, 10. 

A marine employer is responsible for establishing a drug testing program in accordance 

with 49 CFR Part 40. Coast Guard chemical drug testing regulations authorize marine 
20

employers to conduct pre-employment, periodic, random, serious marine incident, and 

reasonable cause drug testing. 46 CFR Part 16, Subpart B. 

If an employee fails the chemical drug test for dangerous drugs, the individual 

will be presumed to be a user of dangerous drugs. See 46 CFR 16.201(b); 

Appeal Decision 2529 (WILLIAMS) [(1991)]. To prove the specification, the 

Coast Guard must establish a prima facie case of use of a dangerous drug. See

46 CFR 5.539; Appeal Decision 2379 (DRUM) [(1995)]; Appeal Decision 2282 

(LITTLEFIELD) [(1982)]. The Coast Guard may establish a prima facie case by 

showing [(1)] that the respondent was tested for a dangerous drug, [(2)] that the 

respondent tested positive for a dangerous drug, and [(3)] that the test was 

conducted in accordance with 46 CFR Part 16. If the Coast Guard establishes a 

prima facie case, then the burden shifts to the respondent who must produce 

persuasive evidence to rebut this presumption. See Appeal Decision 2379 

(DRUM) [(1995)]. If respondent produces no persuasive rebuttal evidence, the 

Administrative Law Judge, on the basis of the presumption alone, may find the 

charge proved. See Appeal Decision 2266 (BRENNER) [(1981)]; See Appeal 

Decision 2174 (TINGLEY) [(1980)]. 

Appeal Decision 2584 (SHAKESPEARE) (1997). 

Presumption of Drug Use 

Coast Guard policy at the time of both hearings reflects that if an individual fails a 

properly conducted chemical drug test, then the presumption arises that the respondent is a user 

of dangerous drugs. 46 CFR 16.201(b). Here, Respondent tested positive for drug use in a preemployment drug test, and was therefore presumed a user of dangerous drugs. Tr. Vol. 1 at 12-

13; IO Exhibit 13. The drug testing procedure was conducted in accordance with Coast Guard 

regulations. Tr. Vol. 1 at 35-39, 49-54, 97-98; IO Exhibits 1 & 2. After the Coast Guard 

established its prima facie case and the presumption of drug use, it became Respondent’s 

responsibility to rebut the presumption because he raised the affirmative defense of hemp seed 

oil usage. 

THC and THC metabolites are two distinctly different chemical compounds. Tr. Vol. 2 

at 139-46. Dr. Mahmoud Elsohly, the Coast Guard’s expert witness on rebuttal in 1998 and 
21

again in 2004, testified in 2004 that the level of THC in the subject’s urine may change 

depending on many variables involved in the absorption process, e.g. weight and contents in an 

individual’s stomach, among other things. Tr. 196-205 (2004). Respondent failed to introduce 

any evidence of his own metabolism rate, absorption rate, excretion rate, or potential for dilution 

of his urine at the time of the urinalysis. Tr. Vol. 1-4 (1998); Tr. (2004). 

Dr. Elsohly also opined at the 2004 hearing that the tests conducted by Respondent’s 

expert witness, Dr. Luis Remus were flawed because THC is a chemical and THC metabolites 

are produced after the body has metabolized the chemical. Id. at 139-40. Dr. Elsohly went on to 

say that it would be impossible to find the metabolite without the drug being metabolized by the 

body. Id. at 141-45. Since the hemp seed oil did not go through the body before the urine was 

tested for THC in Dr. Remus’ study, infra at 24 - 25, it was impossible for any metabolites to be 

found. Tr. Vol. 3 at 139-57. Dr. Elsohly also testified that the test conducted by Mr. Richard 

Struempler was invalid because consuming the substance yourself does not make for a true 

clinical study. Id. Dr. Elsohly further disproved Mr. Struempler’s study, infra at 25 - 26, when 

he testified that THC comes from the outside of the hemp seed, and “by definition, is a variable 

process” because the level of THC depends on whether the seeds rubbed against the leaves, and 

which batch is accepted into production. Tr. at 213-19 (2004). As a result, all hemp seeds 

become contaminated during the pressing process from marijuana leaves. Tr. 215-19 (2004). 

Therefore, concentrations of THC within hemp seed oil products vary regardless of whether they 

are produced by the same company or from the same seed lot. Tr. at 198-204, 207-20. Dr. 

Elsohly’s education and work experiences both privately and for the U.S. Government allowed 

the Undersigned to place controlling weight on his credible testimony regarding hemp seed oil 

and its effect on urine for the purpose of drug testing. 
22

Respondent’s Use of Hemp Seed Oil 

Mr. Christopher J. Dresser, Respondent, testified regarding his time at the MEBA School 

and on the vessel the Green Wave. Tr. Vol. 2 at 204-11. He was not subjected to random drug 

testing for a period of more than sixty (60) consecutive days during the previous one hundred 

and eighty-five (185) days. Tr. Vol. 2 at 213. Respondent also testified that within sixty (60) 

days prior to the drug test, he had not smoked marijuana, but had ingested liquid hemp seed oil 

about four (4) times a week. Id. at 215-17. Respondent stated that he voluntarily took the preemployment drug test because, “I knew I was clean. I had nothing to hide.” Tr. Vol. 2 at 214. 

Respondent stated that he started using hemp seed oil in an effort to improve his 

cardiovascular health because his father died from a heart attack. Tr. Vol. 2 at 306-09. 

Respondent’s concern was supported at the 2004 hearing when Mrs. Mary Dresser, Respondent’s 

mother, testified that Respondent told her “he was taking this substance because he was 

concerned about it happening to him.” Tr. 30-31 (2004). She also stated that on one occasion, 

prior to the drug test, she saw Respondent drink hemp seed oil directly from a bottle that he 

removed from her refrigerator. Id. at 27-28, 36-38. The Undersigned does not find Mrs. 

Dresser’s testimony credible. Although Mrs. Dresser did not testify during the original hearing 

in 1998, her one time observation, whether credible or not, does not establish as a fact that 

Respondent innocently ingested hemp seed oil to such an extent that it was the sole cause for the 

positive drug test. 

Respondent failed to remember whether he stored his hemp seed oil supply in an ice 

chest or refrigerator while attending MEBA, despite the hemp seed oil label stating that 

refrigeration was required. Tr. Vol. 2 at 314-40. Respondent claimed that he did not take hemp 

seed oil with him when he sailed because of the hassle in transporting it and because it was not 
23

readily available in foreign ports. Tr. Vol. 2 at 314-16. Further, he stated that he did not 

purchase any additional hemp seed oil products after December 16, 1997. However, rebuttal 

testimony by Mr. Donald Wirtshafter showed that Respondent placed an order for more hemp 

seed oil at a local store on December 24, 1997. Tr. Vol. 2 at 338-39. Respondent also testified 

that he was unaware of the MRO’s repeated attempts to contact him in accordance with the 

“fourteen day rule,” but when he did not receive a certificate in the mail stating that his drug test 

was negative, he reacted by contacting a lawyer. Tr. Vol. 2 at 15-16, 30-31; Tr. Vol. 3 at 6-19; 

IO Exhibit 4. 

Other aspects of Respondent’s testimony that cast doubt on his credibility include 

claiming to not check his answering machine remotely or use a telephone while on vacation from 

late November through early December. Tr. Vol. 2 at 333-38. Respondent’s testimony of lack 

of use of a telephone is doubtful because he placed a telephone call to the Ohio Hempery to order 

a catalog, presumably in order to purchase more hemp seed oil. Id. Respondent did not make 

any attempt to explain why he would choose to keep an ice chest, which required regular refills, 

in his room at MEBA, rather than requesting a refrigerator or using the refrigerator located down 

the hall from his room. He also did not provide any witnesses from school, his vacation, or 

during the six weeks prior to his drug test to attest to his ingesting of the hemp seed oil. Overall, 

Respondent did not provide any credible evidence that would disprove his use of marijuana.5

 

In an effort to explain to the court that Respondent’s ingestion of hemp seed oil was not 

the same as his participation in the use of a prohibited drug, Respondent called Mr. Julian 

 

5

 The Eastern District of Louisiana also supported ALJ Boggs’ finding that Respondent’s 

explanation of hemp seed oil usage was not enough to overcome the presumption of drug use. 

See Dresser, 2000 WL 235242, 9 (“That the ALJ simply did not believe Dresser's alternative 

explanation for his positive test result does not indicate that the procedures the ALJ employed in 

the hearing were unfair.”). 
24

Murray, Esq. to the stand in the 1998 hearing. Mr. Murray was admitted as an Expert in Federal 

Criminal Law and Federal Criminal Prosecution. He interpreted 12 U.S.C. Section 802.16, 

regarding whether hemp seed oil was a prohibited substance included in the definition of 

marijuana, and concluded that the oil from a hemp seed is excluded from the listed definition 

because it does not result in a euphoric or pharmacological effect. Tr. Vol. 2 at 49-52. “. . . 

[T]here could be small amounts of [a] controlled dangerous substance that might not give 

euphoric effect but yet it would still be prohibited because it would have the THC in it. . . . ” Id. 

at 63. Mr. Murray also testified to Congressional intent in outlawing any marijuana product, 

U.S. v. Walton, 514 F.2d 201 (discussing legislative intent in outlawing cannabis sativa), and 

statutory construction. Id. at 49- 115. While I do not find that Mr. Murray’s testimony 

incredible, I do not assign it any weight because it was not relevant to whether Respondent 

innocently ingested hemp seed oil, and, if so, whether that innocent ingestion was the sole cause 

of his positive drug test. 

Dr. Luis Remus, testified in 1998 and 2004 as an expert witness for Respondent. He 

testified at the 1998 hearing that he tested both types of hemp seed oil for THC by placing the 

product directly into the urine sample and then testing for the drug. Tr. Vol. 2 at 121, 141-43. 

He concluded that THC was not present in the urine. Id. at 143. Dr. Remus also testified to 

personally ingesting both hemp seed oil products and testing his own urine. Tr. Vol. 2 at 141-52. 

He stated that he did not test positive for THC metabolites after consuming the Health from the 

Sun gel caps, but did test positive for the metabolite after consuming Spectrum Essential’s Hemp 

Liquid Gold product. Id. at 146-52; Respondent’s Exhibit G. 

At the 2004 hearing, Dr. Remus testified that after the previous hearing, he conducted the 

gel cap test for a second time because the dosage contained in the gel caps differed from what an 
25

individual might consume in the liquid form. Tr. 48 (2004). He found that if the amount 

contained in the gel cap is ingested, either in liquid or gel cap form, then the individual will test 

positive for THC. Id. at 48-49, 49-62 (testimony regarding a blip in the testing measurements). 

He also stated that hemp seed oil has the potential to produce a false positive result in a drug test, 

similar to those produced by the ingestion of poppy seeds because there is no way to differentiate 

between a positive test for THC presence caused by marijuana or hemp seed oil. Id. at 67, 71. 

Although Dr. Remus’ testimony was credible, it does not deserve controlling weight when 

compared to the testimony of the Coast Guard’s expert witness, Dr. Mahmoud Elsohly. Supra at 

20-21. 

Dr. William J. George was admitted as Respondent’s Expert in Pharmacology, 

Toxicology, and Forensic Toxicology at the 1998 hearing. Dr. George defined the term 

“metabolite,” explained what an acceptable level of THC metabolite is under the 1997 

regulations, and stated that both smoking marijuana and/or taking hemp seed oil will lead to a 

positive drug test. Tr. Vol. 2 at 243-95. Dr. George testified to the possible lack of credibility in 

the testimony of Respondent’s other expert witness, Dr. Remus, because Dr. Remus ingested the 

hemp seed oil himself. Tr. Vol. 2 at 243-99. Dr. George also stated that there is no way to 

differentiate the test positive results of someone who smoked marijuana and someone who only 

took hemp seed oil. Id. He further testified that hemp seed oil is not a medical drug. Id. I find 

Dr. George’s testimony persuasive and give weight to his statements regarding the lack of 

credibility given to experiments performed with the scientist and subject being one in the same, 

and that hemp seed oil is not a medical drug. 

Mr. Richard Struempler was admitted as Respondent’s expert in drug testing at the 2004 

hearing. He testified that he conducted a study on the impact of hemp seed oil, specifically Hemp 
26

Liquid Gold, in workplace drug testing. Tr. 118-39 (2004); Respondent’s Exhibit B; 

Respondent’s Supp. Exhibit K. Mr. Struempler conducted the test by using himself as the test 

subject, ingesting the hemp seed oil, and testing his own urine for THC metabolites. Tr. 126-35 

(2004). He testified that if he drank “a higher amount of water prior to collecting” then the 

specimen would test negative for THC because it was diluted. Id. at 133. He concluded that by 

consuming Hemp Liquid Gold at the dosage suggested by Health From the Sun, a person could 

test positive for marijuana use in a workplace drug test. Id. Mr. Struempler also testified that the 

lot of hemp seeds comprising the 1995, 1996, and 1997 Hemp Liquid Gold product was a 

homogeneous mixture with the same amount of THC throughout. Id. at 142-43. 

Mr. Struempler essentially reiterated material published in his article. Since his test 

results varied simply by consuming an unspecified amount of water and he used himself as the 

test subject, this study was not considered credible in light of Dr. Elsohly’s testimony. 

Analysis 

Respondent’s arguments and evidence presented at the 1998 and 2004 hearings were not 

persuasive to overcome the presumption of drug use. Respondent testified that a single bottle of 

hemp seed oil would last him approximately two and one half weeks at a dosage rate of one 

“swig” taken four to five times a week. Tr. Vol. 2 at 217, 313-16. He did not follow the dosage 

instructions on the bottles. Id. at 217, 235-38. Based on Respondent’s testified usage rate of two 

and a half weeks per bottle, he would have exhausted his supply of hemp seed oil approximately 

one month prior to his submission of the drug test on November 13, 1997. Id. at 315. 

Respondent’s dosage amount and usage was irregular, and he did not present witnesses or 

documentation regarding his frequency or volume of consumption at any particular time. Tr. 

Vol. 2 at 216-17, 236-38. 
27

 

Even if I were to accept his testimony that he ingested hemp seed oil, I cannot jump to 

the conclusion that his irregular consumption of hemp seed oil was the sole cause of the positive 

drug test. This is especially true in the absence of information concerning his absorption rate, his 

physical attributes, the contents of his digestive system at the time of the test, his excretion rate, 

the relative dilution of his urine by water, and evidence of the last time he took hemp seed oil 

prior to the drug test. Further, Respondent failed to present credible evidence that would rule out 

the combined use of marijuana and hemp seed oil. He also failed to introduce any evidence 

indicating the possibility of an individual to test positive for THC metabolites one month after 

using a hemp seed oil product. Moreover, Respondent’s actions were not consistent with 

someone who is truly concerned about lowering his risk of heart disease because he did not 

consult a physician, change his diet, quit smoking, give up alcohol, or increase his exercise 

habits. Instead, Respondent sought out hemp seed oil when he was looking for a fatty acid 

supplement even though there are many others more readily available on the market. 

It is not unreasonable to infer that someone who was involved with marijuana previously6

would know that by ingesting a hemp product, his chances of getting THC in his system would 

be more likely than not. Viewing this in the context of Federal Rule of Evidence 404(b)7

, in that 

the prior drug test failure is admitted and considered solely for the purpose of lack of mistake, 

6

 On October 24, 1994, Respondent tested positive on a pre-employment drug test for marijuana 

metabolites, and completed the required Coast Guard rehabilitation program. Tr. Vol. 2 at 227-

32; Tr. Vol. 4 at 68-69; IO Exhibit 17; Respondent Exhibit J. 

7

 FEDERAL RULES OF EVIDENCE 404(b), entitled “Other crimes, wrongs, or acts” states 

that: 

[e]vidence of other crimes, wrongs, or acts is not admissible to prove the 

character of a person in order to show action in conformity therewith. It may, 

however, be admissible for other purposes, such as proof of motive, opportunity, 

intent, preparation, plan, knowledge, identity, or absence of mistake or 

accident, . . . 

(emphasis added) 
28

Respondent was on notice that a reasonably prudent person would stay away from hemp 

products. Additionally, it is not unreasonable to infer that he knew he could blame his positive 

drug test on hemp seed oil instead of illegal drug use. At a minimum, it was irresponsible of 

Respondent to ingest a product containing hemp, knowing it contained THC. 

It is also not unreasonable to expect that when Respondent learned he tested positive he 

should have immediately told the MRO about the hemp seed oil, rather than saying that he had 

already retained a lawyer. By not doing so, he created a negative inference to be considered 

along with his other actions or inactions, that his claim of hemp seed oil ingestion is a recent 

fabrication. Respondent knew something was wrong, and acted inconsistently with the way an 

innocent person would react upon being told that his entire career was at risk. Respondent’s 

testimony and the testimony of his witnesses, although credible at times, raised too much doubt 

to overcome the presumption of marijuana use. 

The credibility of the witnesses was a minimal factor considered in the decision-making 

process because the expert witnesses provided by Respondent addressed the hemp seed lots and 

the possible variation of THC in each lot, but none addressed Respondent’s consumption of the 

product. As the Coast Guard pointed out, the studies commissioned and reported on by 

Respondent were all done on individuals other than the Respondent, and no information was 

presented as to whether the physical characteristics of the test subjects were similar to 

Respondent. In Respondent’s Exhibit A only 42% of the individuals tested eight (8) hours after 

consumption tested at or above the Department of Transportation (DOT) cutoff. At the twentyfour hour mark only 57% tested above the DOT cutoff, and at the forty-eight hour mark only 

29% tested above the cutoff. In another test conducted in Respondent’s Exhibit C, the individual 

tested consumed a hemp seed oil product well above the recommended dosage and never tested 
29

above the DOT cutoff at any time. Tr. at 96-99, 198-204 (2004); Respondent’s Exhibits A & C. 

The hemp seed oil produced during the time frame that Respondent claims to have taken it does 

contain some amount of THC. However, consumption of hemp seed oil will only occasionally 

render a test result that would be above the DOT cutoff for THC metabolites. Tr. at 198-204, 

207-20; Respondent’s Exhibits A & C. The amount of hemp seed oil consumed varies between 

the studies submitted with some being significantly above the recommended dosage of the 

product. Tr. at 198-204, 207-20; Respondent’s Exhibits A & C. Respondent’s actions, lack of 

witnesses to testify to his actions, and expert witness testimony are not enough to overcome the 

presumption established by the Coast Guard that Respondent is a user of dangerous drugs. 

SANCTION

Respondent tested positive for marijuana metabolites in a pre-employment drug test. 

Since the established presumption of drug use has not been successfully rebutted, the appropriate 

sanction is revocation. 46 U.S.C. 7704(c). Respondent’s license and MMD expired during the 

1998 hearing, and despite a twelve month grace period during which Respondent could have 

applied for renewal under 46 CFR 10.209(e)(1), he failed to pursue such action until his Motion 

for Return of License and Document and for an Order Directing the Coast Guard’s Regional 

Examination Center to Permit Respondent to Renew His License and Document in the spring of 

2004. At the end of the 1998 hearing, the Coast Guard still had authority over Respondent’s 

expired document, and was therefore able to revoke it. Even though there is no physical 

document to revoke at this time, the Undersigned may revoke Respondent’s credentials at issue 

in this proceeding. 
ORDER

IT IS HEREBY ORDERED that U.S. Coast Guard license and Merchant Mariner’s 

Document at issue in this proceeding that were issued to Respondent Christopher J. Dresser are 

hereby REVOKED. 

PLEASE TAKE NOTICE that service of this Decision & Order 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 June 14, 2005 

New York, New York 

________________________________________ 

WALTER J. BRUDZINSKI 

ADMINISTRATIVE LAW JUDGE 

U.S. COAST GUARD 
31

ATTACHMENT A

NOTICE OF ADMINISTRATIVE APPEAL RIGHTS 

33 CFR 20.1001 General. 

(a) Any party may appeal the ALJ's decision by filing a notice of appeal. The party 

shall file the notice with the U. S. Coast Guard Administrative Law Judge Docketing 

Center; Attention: Hearing Docket Clerk; Room 412; 40 S. Gay Street; Baltimore, 

MD 21201-4022. The party shall file the notice 30 days or less after issuance of the 

decision, and shall serve a copy of it on the other party and each interested person. 

(b) No party may appeal except on the following issues: 

(1) Whether each finding of fact is supported by substantial evidence. 

(2) Whether each conclusion of law accords with applicable law, precedent, and 

public policy. 

(3) Whether the ALJ abused his or her discretion. 

(4) The ALJ's denial of a motion for disqualification. 

(c) No interested person may appeal a summary decision except on the issue that no 

hearing was held or that in the issuance of the decision the ALJ did not consider 

evidence that that person would have presented. 

(d) The appeal must follow the procedural requirements of this subpart. 

33 CFR 20.1002 Records on appeal. 

(a) The record of the proceeding constitutes the record for decision on appeal. 

(b) If the respondent requests a copy of the transcript of the hearing as part of the record 

of proceeding, then, -- 

(1) If the hearing was recorded at Federal expense, the Coast Guard will provide 

the transcript on payment of the fees prescribed in 49 CFR 7.45; but, 

(2) If the hearing was recorded by a Federal contractor, the contractor will 

provide the transcript on the terms prescribed in 49 CFR 7.45. 

33 CFR 20.1003 Procedures for appeal. 

(a) Each party appealing the ALJ's decision or ruling shall file an appellate brief with the 

Commandant at the following address: U.S. Coast Guard Administrative Law Judge 

Docketing Center; Attention: Hearing Docket Clerk; Room 412; 40 S. Gay Street; 

Baltimore, MD 21201-4022, and shall serve a copy of the brief on every other party. 

(1) The appellate brief must set forth the appellant's specific objections to the 

decision or ruling. The brief must set forth, in detail, the -- 
32

(i) Basis for the appeal; 

(ii) Reasons supporting the appeal; and 

(iii) Relief requested in the appeal. 

(2) When the appellant relies on material contained in the record, the appellate 

brief must specifically refer to the pertinent parts of the record. 

(3) The appellate brief must reach the Docketing Center 60 days or less after 

service of the ALJ's decision. Unless filed within this time, or within another 

time period authorized in writing by the Docketing Center, the brief will be 

untimely. 

(b) Any party may file a reply brief with the Docketing Center 35 days or less after 

service of the appellate brief. Each such party shall serve a copy on every other party. 

If the party filing the reply brief relies on evidence contained in the record for the 

appeal, that brief must specifically refer to the pertinent parts of the record. 

(c) No party may file more than one appellate brief or reply brief, unless -- 

(1) The party has petitioned the Commandant in writing; and 

(2) The Commandant has granted leave to file an added brief, in which event the 

Commandant will allow a reasonable time for the party to file that brief. 

(d) The Commandant may accept an amicus curiae brief from any person in an appeal of 

an ALJ's decision. 

33 CFR 20.1004 Decisions on appeal. 

(a) The Commandant shall review the record on appeal to determine whether the ALJ 

committed error in the proceedings, and whether the Commandant should affirm, 

modify, or reverse the ALJ's decision or should remand the case for further 

proceedings. 

(b) The Commandant shall issue a decision on every appeal in writing and shall serve a copy 

of the decision on each party and interested person. 
33

ATTACHMENT B

WITNESS AND EXHIBIT LISTS

COMPLAINANT’S WITNESSES (1998 Hearing) 

1. Carolyn Watson 

2. James Callies 

3. George Ellis 

4. Elaine Bradley 

5. Dr. Donald Shu 

6. Dr. Steven Oppenheim 

7. Dana Purdy 

8. Fredrick Kulow 

9. Dr. Mahmoud Elsohly 

10. Don Wirtshafter 

11. Warren Weedon 

12. Shirley Shelton 

COMPLAINANT’S WITNESSES (2004 Hearing) 

1. Dr. Mahmoud Elsohly 

RESPONDENT’S WITNESSES (1998 Hearing) 

1. Julian Murray 

2. Luis Remus 

3. Christopher Dresser 

4. Dr. William George 

RESPONDENT’S WITNESSES (2004 Hearing) 

1. Mary Dresser 

2. Dr. Remus 

3. Dr. Struempler 

COMPLAINANT’S EXHIBITS (1998 Hearing) 

- IO Exhibit 1 – Quest Diagnostics Collection Form 

- IO Exhibit 2 – Quest Diagnostics Litigation Package 

- IO Exhibit 3 – 49 CFR Part 40.33 

- IO Exhibit 4 – Greystone Health Sciences Corporation, Positive Drug Test Interview 

Form 
34

- IO Exhibit 5 - DOT Memorandum regarding the use of marijuana by DOT safetysensitive employees 

- IO Exhibit 6 – Documents regarding the procedure for drug test result notification 

- IO Exhibit 7 – List of U.S. Department of Health and Human Services certified 

laboratories 

- IO Exhibit 8 – Catalog from the Ohio Hempery 

- IO Exhibit 9 – Letter from Respondent’s sponsor stating that he is drug-free 

- IO Exhibit 10 – Resume of Dana Purdy 

- IO Exhibit 11 – Biographical Sketch of Mahmoud Elsohly 

- IO Exhibit 12 – NORML article - “Ingestion of Legal Hemp Seed Oil Can Cost You 

Your Job, Two Recent Studies Reveal” 

- IO Exhibit 13 – Coast Guard Charge Sheet, March 23, 1998 

- IO Exhibit 14 – Spectrum Naturals, Inc. document listing cases of Omega 3 and Hemp 

Oil sold by the company in 1997 

- IO Exhibit 15 – Information received from Dr. Remus regarding hemp seed oil product 

manufacturing and expiration 

- IO Exhibit 16 – MEBA Benefits Plan & Respondent’s employment history 

- IO Exhibit 17 – Drug Testing Custody & Control Forms (1994 drug test) 

- IO Exhibit 18 – New Hampshire Hemp Council, Inc. v. Constantine, Administrator, Drug 

Enforcement Agency – Defendant’s Memorandum of Points and Authorities in 

Opposition to Plaintiff’s Motion for a Preliminary Injunction 

- IO Exhibit 19 - New Hampshire Hemp Council, Inc. v. Constantine, Administrator, Drug 

Enforcement Agency –Report & Recommendation 

- IO Exhibit 20 – Curriculum Vita of George Ellis 

- IO Exhibit 21 – “Excretion patterns of cannabinoid metabolites after last use in a group 

of chronic users” by George Ellis, et. al. 

- IO Exhibit 22 – “Detection Times of Marijuana Metabolites in Urine by Immunoassay 

and GC-MS” by Huestis, Mitchell and Cone 

- IO Exhibit 23 – “Urinary Excretion Profiles of 11-Nor-9-Carboxy-Δ9-

Tetrahydrocannacinol in Humans after Single Smoked Doses of Marijuana” by Huestis, 

Mitchell and Cone 

RESPONDENT’S EXHIBITS (1998 Hearing) 

- Respondent’s Exhibit A – Article - “Hemp Oil Ingestion Causes Positive Urine Tests for 

Δ9-Tetrahydrocannabinol Carboxylic Acid” by Constantino, Schwartz and Kaplan 

- Respondent’s Exhibit B – Article – “Positive Cannabinoids Workplace Drug Test 

Following the Ingestion of Commercially Available Hemp Seed Oil” by Struempler 

- Respondent’s Exhibit C – Letter to the Editor – “A Positive THC Urinalysis From Hemp 

(Cannabis) Seed Oil” 

- Respondent’s Exhibit D – Resume of Luis Remus 

- Respondent’s Exhibit E – Tulane University Medical Center, results of test analyzing the 

effect of hemp oil upon urine 

- Respondent’s Exhibit F – Letter regarding Respondent’s performance on the Green Wave 

- Respondent’s Exhibit G – Empty bottle of “Spectrum Essentials Cold Pressed Hemp Oil” 
35

- Respondent’s Exhibit H – Empty bottle of “Health from the Sun Hemp Liquid Gold Cold 

Pressed Hemp Oil” 

- Respondent’s Exhibit I – Letter regarding Respondent’s completion of a drug 

dependency program 

- Respondent’s Exhibit J – Letter regarding Respondent’s 1995 surrender of his MMD 

because of a positive drug test 

- Respondent’s Exhibit K – USCG v. Dresser – 1995 Decision & Order 

- Respondent’s Exhibit L – Curriculum Vitae of William George 

- Respondent’s Exhibit M - Letter from Respondent’s sponsor stating that he is drug-free 

- Respondent’s Exhibit N – Biographical Sketch of Julian Murrary, Esq. 

- Respondent’s Exhibit 0-1 – USCG v. Dresser – Order Granting Change of Venue and 

Continuance (1998) 

- Respondent’s Exhibit 0-2 - USCG v. Dresser – Notice of Hearing Date, Time and 

Location 

- Respondent’s Exhibit 0-3 - USCG v. Dresser – Revised Notice of Hearing Time 

- Respondent’s Exhibit 0-4 - USCG v. Dresser – Revised Notice of Hearing Location 

- Respondent’s Exhibit 0-5 – Subpoena for the appearance of Ms. Shirley Shelton at 

Respondent’s 1998 hearing 

ADMINISTRATIVE LAW JUDGE’S EXHIBITS (1998 Hearing) 

- ALJ Exhibit I - USCG v. Dresser – Respondent’s Verified Motion for Disqualification of 

the Administrative Law Judge 

- ALJ Exhibit II - USCG v. Dresser – Coast Guard’s Verified Motion and Memorandum 

Against Disqualification of the Administrative Law Judge 

- ALJ Exhibit III - USCG v. Dresser – Respondent’s Verified Memorandum in Reply to 

the Coast Guard’s Memorandum in Opposition to the Respondent’s Motion for 

Disqualification of the Administrative Law Judge 

- ALJ Exhibit IV - USCG v. Dresser – Denial of Respondent’s Motion for Disqualification 

COMPLAINANT’S SUPPLEMENTAL EXHIBITS8 (2004 Hearing) 

- Supplemental Exhibit IO Ex. 1 – Curriculum Vitae of Dr. Elsohly 

RESPONDENT’S SUPPLEMENTAL EXHIBITS (2004 Hearing) 

- Respondent’s Supp. Ex. A - Health from the Sun/Oakmont, Interoffice Correspondence 

Dated 10/22/96 

- Respondent’s Supp. Ex. B - Health from the Sun/Oakmont, Interoffice Correspondence 

Dated 11/6/96 

 

8

 The 2004 exhibits are referred to as “supplemental” in order to differentiate them from those 

admitted in the 1998 hearing. 
36

- Respondent’s Supp. Ex. C - Health from the Sun/Oakmont, Interoffice Correspondence 

Dated 11/13/96 

- Respondent’s Supp. Ex. D - Health from the Sun/Oakmont, Interoffice Memo Dated 

11/11/96 

- Respondent’s Supp. Ex. E - Report of PharmChem Laboratories, to Health from the 

Sun/Oakmont Dated 2/23/98 

- Respondent’s Supp. Ex. F – Bioriginal Hemp Seed Oil Test Results for Health from the 

Sun/Oakmont 

- Respondent’s Supp. Ex. G – Promotional Literature on Hemp Seed Oil from Health from 

the Sun/Oakmont 

- Respondent’s Supp. Ex. H – (Proffered, but not Admitted) – Pages 55, 94, 100, 105 and 

106 of the 30(b)(6) deposition from Health from the Sun/Oakmont 

- Respondent’s Supp. Ex. I – USCG Hemp Oil Defense Elimination Memo 

- Respondent’s Supp. Ex. J – The official record of this action, including but not limited to 

all motions and attachments to motions and memorandum. 

- Respondent’s Supp. Ex. K – Curriculum Vitae for Mr. Richard R. Struempler 

 
37

ATTACHMENT C

MOTIONS, RESPONSES AND ORDERS FOR REMANDED HEARING

Document Name Date Issued

1. NTSB Appeal Decision June 11,2003 

2. United States Court of Appeals Order December 3, 2003 

3. Order Directing CG to File Response February 26, 2004 

4. Order Granting Extension of Time for CG March 3, 2004 

5. Respondent’s Motion to Dismiss and Supporting Memo March 4, 2004 

6. Supplemental Memo in Support of Motion to Dismiss March 11, 2004 

7. Order Granting Extension of Time to Respond March 22, 2004 

8. Respondent’s Motion to Disqualify ALJ and Supporting Memo March 26, 2004 

9. CG Response to Respondents Motion to Dismiss April 19, 2004 

10. CG Response to ALJ Orders April 19, 2004 

11. CG Response to Respondents Motion to Disqualify ALJ April 19, 2004 

12. Order Denying Motion to Disqualify ALJ April 21, 2004 

13. Respondents Memo in Opposition to CG Motion to Stand April 22, 2004 

on the Record 

14. Order Denying Respondent’s Motion to Dismiss May 4, 2004 

15. Respondents 2nd Motion to Disqualify ALJ; 2nd Motion to Dismiss; May 6, 2004 

Motion to Return License and Document 

16. Order Granting Motion to Stand on the Record May 7, 2004 

17. Respondents 3rd Motion to Disqualify ALJ; Motion for De Novo May 8, 2004 

Hearing; Motion for Supplemental Oral Testimony 

18. CG Motion for Extension of Time to Respond May 18, 2004 

19. Order Granting Motion for Extension of Time May 19, 2004 
38

20. CG Response to 2nd Motion to Disqualify May 28, 2004 

21. CG Response to Motion to Return License and Document May 28, 2004 

22. CG Response to 2nd Motion to Dismiss May 28, 2004 

23. CG Response to Motion for De Novo Hearing May 28, 2004 

24. CG Response to Motion for Supplemental Oral Testimony May 28, 2004 

25. Respondent’s Reply to the CG’s Response to Respondent’s May 31, 2004 

 Motion for Supplemental Oral Testimony 

26. Order Denying 2nd and 3rd Motions to Disqualify ALJ June 3, 2004 

27. Order Denying Motion to Return License and Document June 4, 2004 

28. Order Denying 2nd Motion to Dismiss June 4, 2004 

29. Order to Stay Motion for Supplemental Oral Testimony June 7, 2004 

30. Order Denying Respondents Motion for De Novo Hearing June 7, 2004 

31. CG Witness and Exhibit List June 17, 2004 

32. Respondent’s Submission in Compliance with the June 7, 2004 June 23, 2004 

 Order of the Administrative Law Judge 

33. United States Coast Guard’s Submission in Accordance with the June 28, 2004 

 June 7, 2004 Order Regarding Supplemental Testimony and Exhibits 

34. Respondent’s Objections to the Coast Guard’s List of Witnesses June 29, 2004 

 and Exhibits 

35. Respondent’s Reply to the Coast Guard’s Objections to the July 6, 2004 

 Respondent’s Submission in Compliance with the June 7, 2004 Order 

 Of the Administrative Law Judge 

36. Scheduling Order August 20, 2004 

37. Respondent’s Post-Hearing Memorandum February 3, 2005 

38. United States Coast Guard’s Submission of Argument, Proposed February 16, 2005 

 Finding of Fact and Proposed Conclusions of Law 
39

ATTACHMENT D

RULINGS ON PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW 

The Coast Guard submitted its Proposed Findings of Fact and Conclusions of Law with 

reference to testimony, but not specific pages. The Undersigned added transcript citations only 

for ease of reference and review. 

Coast Guard’s Proposed Findings of Fact

1. On November 13, 1997, Respondent was the holder of Coast Guard issued Merchant 

Mariner’s License Number 764137 and a Merchant Mariner’s Document. Tr. Vol. 1 

at 9-10 (1998). (Accepted and incorporated.) On that date, he provided a urine 

specimen for a pre-employment drug screen in compliance with federal drug testing 

regulations. Tr. Vol 1. at 30; IO Exhibit 1. (Accepted and incorporated.) 

2. The Respondent was required to take a pre-employment drug test prior to going 

back to work under the authority of his Merchant Mariner’s License or Document 

since he had not been subject to random drug testing for a period of more than sixty 

consecutive days during the previous one hundred and eighty-five days. 46 CFR 

Part 16.210; Tr. Vol. 2 at 213. (Accepted and incorporated.) 

3. Respondent reported to Easton Memorial Hospital, where he was directed by Ms. 

Carolyn Watson, certified collector, to furnish the specimen for the test. Tr. Vol. 1 

at 28, 30. (Accepted and incorporated.) 
40

4. Respondent furnished a sample of his urine in accord with standard procedures, 

which Ms. Watson described in detail. Id. at 35-39. (Accepted and incorporated). 

5. After Respondent provided the specimen, Ms. Watson performed the routine 

identification and sealing procedures in his presence. Id.; IO Exhibit 1. (Accepted 

and incorporated). 

6. Respondent’s signature appears in step No. 4 on the Medical Review Officer’s copy 

of the Drug Testing Custody and Control form under a printed statement, which 

certifies that he provided a urine specimen to the collector and the specimen was 

sealed with a tamper evident seal in his presence. Id.; IO Exhibit 1. (Accepted and 

incorporated). 

7. The specimen was then delivered to Quest Diagnostics, Inc., which was, and is, a 

Substance Abuse and Mental Health Services Administration (SAMSHA) certified 

laboratory. Tr. Vol. 1 at 42, 45, 50-51; IO Exhibit 2. (Accepted and incorporated). 

8. At Quest Diagnostics, Inc., the sample was initially tested by enzyme immunoassay 

for a range of drugs. Tr. Vol. 1 at 51-52; IO Exhibit 2. The test indicated the 

presence of THC in the specimen. Tr. Vol. 1 at 54; IO Exhibit 2. (Accepted and 

incorporated). 
41

9. Following the Department of Health and Human Services guidelines and the usual 

laboratory procedure, the sample was then tested again by gas chromatography/mass 

spectrometry (GC/MS) to confirm, or refute, the initial screen results. The 

confirmatory test was also positive for marijuana/THC metabolite. The final 

laboratory report concluding that Respondent’s sample was positive for 

marijuana/THC metabolite was dated November 18, 1997. Tr. Vol. 1 at 52-53, 60-

63; IO Exhibit 2. (Accepted and incorporated). 

10. The results were certified by Donald Shu, certifying scientist for Quest Diagnostics, 

Inc. All testing was conducted in accordance with standard procedures, which Mr. 

Donald Shu and Mr. James Callies, scientific director of the substance abuse testing 

laboratory, described in detail. Tr. Vol. 1 at 50-54; IO Exhibit 2. Quest Diagnostics 

sent the results of Respondent’s positive drug test to Greystone Health Sciences 

Corporation, the Medical Review Officer for MEBA District 1. Tr. Vol. 1 at 53, 73-

74, 92-93; IO Exhibit 6. (Accepted and incorporated). 

11. Ms. Elaine Bradley, Senior Vice President at Greystone Health Sciences, described 

her attempts to reach Respondent on behalf of the Medical Review Officer. Ms. 

Bradley left messages for Respondent at the MEBA School in Easton, Maryland, 

and at his home in Clearwater, Florida. The essence of those messages was for 

Respondent to contact the Medical Review Officer at 1-800-666-3791. Ms. Bradley 

left those messages on the following dates and times: November 21, 1997, 3:05 

P.M., November 25, 12:14 P.M., December 1, 9:38 A.M., December 8, 12:09 P.M., 
42

December 10, 1:16 P.M. Respondent never returned these phone calls. Tr. Vol. 1 at 

168-72, 174-76; IO Exhibit 4. (Accepted and incorporated). 

12. At no point did Ms. Bradley reveal the results of Respondent drug test as positive on 

any of the messages left. Respondent never returned the MRO’s phone calls. Id. 

(Accepted and incorporated). 

13. MEBA District I refuses to handle positive drug tests on behalf of its union 

members. Respondent is a member of the MEBA District I union. Although 

Greystone Health Sciences Corporation is the Medical Review Officer employed by 

MEBA, positive test results are sent to the Coast Guard only. Consequently, there is 

no “designated employer representative” as described in 49 CFR 40.33 for 

Respondent. Tr. Vol. 1 at 180-81; IO Exhibit 6. (Accepted and incorporated). 

14. On December 15, 1997, twenty-five (25) days after Ms. Bradley first attempted to 

contact Respondent, Dr. Steven Oppenheim, Medical Review Officer at Greystone 

Health Sciences, made a final positive determination that the specimen, furnished by 

Respondent on November 13, 1997, was positive for the THC/marijuana 

metabolites. Dr. Oppenheim reasoned that over a twenty-five day period, reasonable 

attempts had been made to contact Respondent at both phone numbers provided. He 

determined that Respondent had failed to return the phone calls. This conclusion 

was rendered in accord with 49 CFR 40.33(c)(5)(ii) commonly referred as the 
43

“fourteen-day rule.” Tr. Vol. 2 at 15-16, 30-31; IO Exhibit 4. (Accepted and 

incorporated). 

15. On December 15, 1997, Greystone Health Sciences sent written notification to the 

Coast Guard at Marine Safety Office Baltimore, Maryland, regarding Respondent’s 

positive test. Tr. Vol. 1 at 116; Tr. Vol. 2 at 38; IO Exhibits 4 & 6. (Accepted and 

incorporated). 

16. On January 6, 1997, MSO Baltimore forwarded the positive drug test notification to 

MSO Tampa for their action since Respondent resided in Clearwater, Florida, which 

is MSO Tampa’s area of responsibility. Tr. Vol. 4 at 30-31. (Accepted and 

incorporated). 

17. On January 15, 1998, Respondent’s attorney requested an aliquot be taken from 

Respondent’s specimen and sent to a referee lab of his choosing, which was 

Northwest Toxicology, in Salt Lake City, UT. IO Exhibit 4. (Accepted and 

incorporated). 

18. Northwest Toxicology, the SAMSHA certified referee lab, reconfirmed the positive 

drug test on Mr. Dresser’s aliquot sample as positive for cannabinoids/THC. IO 

Exhibit 4. (Accepted and incorporated). 
44

19. On March 23, 1997, Respondent was charged with use of a dangerous drug. Tr. 

Vol. 4 at 46; IO Exhibit 13. (Accepted and incorporated). 

20. On October 24, 1994, Respondent tested positive on a pre-employment drug test for 

marijuana metabolites, and completed the required Coast Guard rehabilitation 

program. Tr. Vol. 2 at 227; Tr. Vol. 4 at 68-69; IO Exhibit 17. (Accepted and 

incorporated). 

21. Respondent denied using marijuana and offered an affirmative defense claiming that 

his positive drug test was the result of consumption of two types of hemp seed oil, 

Hemp Liquid Gold, manufactured by Health from the Sun, and Spectrum Essentials, 

manufactured by Spectrum Naturals as a dietary supplement. Tr. Vol. 2 at 214-16, 

223-33. (Accepted and incorporated). 

22. Respondent offered the empty containers of the two products as evidence of his 

consumption prior to the November 13, 1997 test. Hemp Liquid Gold, by Health 

from the Sun was dated March 1997. Spectrum naturals cold pressed liquid hemp 

oil was dated October 7, 1996. Both were eight ounce bottles. Id. at 221-23; 

Respondent’s Exhibits G & H. (Accepted and incorporated). 

23. Respondent claimed to have been taking hemp seed oil to lower his risk of heart 

disease. Tr. Vol. 2 at 216-17. (Accepted and incorporated). 
45

24. Respondent did not consult a physician for cardiovascular advice. No physician told 

him that he had a cardiovascular problem. Tr. Vol. 2 at 307-08. (Accepted and 

incorporated). 

25. Respondent’s actions were not consistent with someone who is truly concerned 

about lowering his risk of heart disease because he did not change his diet, quit 

smoking, give up alcohol, and did not increase his exercise habits. Tr. Vol. 2 at 304-

08. (Accepted to the extent that Respondent’s concern over his cardiovascular 

health did not result in a change in diet, smoking habit, alcohol consumption or 

exercise habits. Rejected to the limited extent that the Coast Guard is voicing its 

opinion that Respondent’s actions were inconsistent with someone concerned with 

their health, when the record does not specifically state such a fact.) 

26. Hemp seed oil is not a mainstream dietary supplement. Hemp oil sales are small in 

comparison to other dietary supplements containing the same essential fatty acids as 

hemp oil. Hemp oil is also very expensive in comparison to other dietary 

supplements that contain essential fatty acids. Tr. Vol. 3 at 63-67, 97-103. 

(Accepted and incorporated). 

27. Essential Fatty Acids (EFA) are necessary to maintain good cardiovascular health. 

EFA’s can be obtained through healthy eating habits; ordinarily a dietary 

supplement is not necessary. A licensed physician or dietician usually makes the 

determination that a supplement is necessary. Id. (Accepted regarding EFA’s being 
46

essential to good cardiovascular health and that the substance is available in the 

form of a dietary supplement. Rejected to the limited extent that a licensed 

physician or dietician is necessary in making the decision to ingest a dietary 

supplement. There was no information presented stating that the majority of the 

population consult a dietician or physician before starting a regiment of dietary 

supplements, even though it might be the healthier thing to do.) 

28. Respondent did not follow the dosage instructions on the bottles. Tr. Vol. 2 at 217, 

235-38. (Accepted and incorporated). 

29. Hemp oil requires refrigeration. Tr. Vol. 2 at 314-16. (Accepted and incorporated). 

30. Respondent claimed that he did not take hemp seed oil with him when he sailed 

because of the hassle in transporting it and because it was not readily available in 

foreign ports. Id. (Accepted and incorporated). 

31. Based on an eight ounce bottle with an average consumption rate of one bottle every 

two and one half weeks, a twelve week supply would constitute only five bottles 

which could be transported with very little inconvenience and refrigeration would be 

available aboard the ship. Tr. Vol. 2 at 313-16, 342. (Accepted up to and including 

the word “bottles,” and rejected thereafter. Respondent stated that he did not bring 

the hemp oil bottles onboard the ship with him specifically because they needed to 
47

be refrigerated. The Coast Guard’s contention that bringing the bottles onboard the 

ship would result in “little inconvenience” is not supported by testimony.) 

32. Respondent testified that a single bottle would last him approximately two and one 

half weeks at a dosage rate of a “swig” taken four to five times a week. Tr. Vol. 2 at 

217, 313-16. (Accepted and incorporated). 

33. Between September 14, 1997 and leaving for the MEBA class in October of 1997 

Respondent claims to have purchased only two, eight ounce sized bottles of hemp 

seed oil. This constituted his total supply of hemp seed oil from the middle of 

September until the middle of December when he claims to have stopped using the 

product. Tr. Vol. 2 at 205-42, 303-80; Tr. Vol. 3 at 6-20. (Rejected. Respondent 

testified that the two bottles of hemp seed oil presented at the hearing were not the 

only bottles he consumed while at MEBA. Tr. Vol. 2 at 239.). 

34. Based on his testified usage rate of two and a half weeks per bottle Respondent 

would have exhausted his supply of hemp seed oil approximately one month prior to 

his submission of the drug test on November 13, 1997. Tr. Vol. 2 at 315. (Accepted 

and incorporated). 

35. Respondent has failed to introduce any evidence that indicates it is possible for an 

individual to test positive for the THC metabolite one month after using a hemp seed 

oil product. (Accepted as a conclusion rather than finding of a basic fact). 
48

36. Respondent introduced only one witness to corroborate his testimony that he used 

hemp seed oil and that was the Respondent’s own Mother, Mary Dresser. She 

testified to observing him consuming it only one time and this occurred at least six 

weeks prior to his failed drug test. Tr. at 27-28 (2004). (Accepted and 

incorporated). 

37. There were no witnesses presented that could corroborate the Respondent’s claim 

that he was taking hemp seed oil at any time within six weeks of his failed drug test. 

Tr. Vol. 1-4 (1998); Tr. (2004). (Accepted and incorporated). 

38. There were no witnesses presented that could corroborate the Respondent’s claim 

that he continued to use hemp seed oil until around the middle of December. Tr. 

Vol. 1-4 (1998); Tr. (2004). (Accepted and incorporated). 

39. Despite Respondent’s testimony, he received notification that he needed to contact 

the MRO prior to December 5, 1997. Tr. Vol. 2 at 317-18. (Accepted to the extent 

that he suspected something was wrong and that is the reason he hired a lawyer). 

40. On October 23, 1997, the National Organization for the Reform of Marijuana Laws 

(NORML) published a press release on the NORML’s web page site on the Internet 

titled, “Ingestion of Legal Hemp Seed Oil Can Cost You Your Job, Two Recent 

Studies Reveal.” The press release discussed the two studies published in The 
49

Journal of Analytical Toxicology, that the Respondent entered as evidence, and 

listed Mr. Wirtshafter, whom Respondent contacted for information on hemp oil, as 

a point of contact. His number of the Ohio Hempery was provided. (sic) The 

number was (614) 662-4367. Tr. Vol. 4 at 18-23; IO Exhibit 12; Respondent’s 

Exhibits A, B & C. (Accepted and incorporated). 

41. Respondent’s search for an affirmative defense led him to NORML’s press release. 

(Rejected. It is not known whether Respondent’s thoughts about hemp seed oil 

usage existed prior to reading the NORML article. The Coast Guard does not know 

for a fact that Respondent’s thoughts about claiming hemp oil usage as an 

affirmative defense did not exist prior to reading the NORML article). 

42. On or one day immediately prior to December 5, 1997, Respondent ordered the 

Ohio Hempery catalogue, which listed, for sale the Spectrum Naturals liquid hemp 

oil product. That phone call was made from Florida and by long distance. 

Respondent did not order any products from that catalogue. Tr. Vol. 4 at 16-18; IO 

Exhibit 8. (Accepted and incorporated). 

43. On December 24, 1997, Respondent ordered Health from the Sun’s Hemp Liquid 

Gold from the Nature’s Food Patch; a health food store located a half of a mile from 

his home. Tr. Vol. 4 at 39-43. (Accepted and incorporated). 
50

44. There are significant differences in how individuals process THC that effect the 

amount of metabolite found in a urine specimen. Tr. at 96-99, 198-204 (2004). 

(Accepted and incorporated). 

45. These variables include an individual’s metabolism rate, his absorption rate, which 

is also impacted by the contents of the stomach, his excretion rate and even the 

relative dilution of the urine by water. All of these variables impact how THC is 

processed and each individual processes it at a different rate. This is particularly 

evident when dealing with relatively small concentrations of THC. Id. (Accepted 

and incorporated). 

46. Respondent has failed to introduce any evidence of his own metabolism rate, 

absorption rate, excretion rate or potential for dilution of his urine at the time of the 

urinalysis. Tr. Vol. 1-4 (1998); Tr. (2004). (Accepted and incorporated). 

47. Testing for the THC metabolite at a concentration above the Department of 

Transportation (DOT) cutoff following consumption of hemp seed oil produces a 

wide variation of results between individuals. For example in Respondent’s Exhibit 

A only 42% of the individuals tested eight hours after consumption tested at a level 

above the DOT cutoff. At the twenty-four hour mark only 57% tested above the 

DOT cutoff and at the forty-eight hour mark only 29% tested above the cutoff. In 

another test conducted in Respondent’s Exhibit C the individual tested consumed a 

hemp seed oil product well above the recommended dosage and never tested above 
51

the DOT cutoff at any time. These variations highlight the differences in how 

individuals process the THC contained in hemp seed oil. Tr. at 96-99, 198-204 

(2004); Respondent’s Exhibits A & C. (Accepted and incorporated). 

48. The studies commissioned and reported on by Respondent were all done on 

individuals other than the Respondent and there has been no evidence submitted that 

these individuals’ physical characteristics are in any way similar to those of the 

respondent. (Accepted although this statement is more of a conclusion than a finding 

of a basic fact). 

49. The hemp seed oil produced during the time frame the Respondent claims to have 

taken it does contain some amount of THC. However, consumption of hemp seed 

oil will only occasionally render a test result that would be above the DOT cutoff for 

the THC metabolite. Tr. at 198-204, 207-20; Respondent’s Exhibits A & C. 

(Accepted and incorporated). 

50. Concentrations of THC within hemp seed oil products vary. This is true regardless 

of whether or not they are produced by the same company or from the same seed lot. 

Tr. at 198-204, 207-20. (Accepted and incorporated). 

51. THC is in hemp seed oil because of the debris (marijuana plant material) that is 

adsorbed on the surface of the seed and processed with the seed. Thus, the amount 
52

of THC within hemp seed oil product varies greatly due to the variability of the 

debris on the hemp seed. Tr. at 207-20. (Accepted and incorporated). 

52. Respondent failed to establish the actual THC concentration of the product in either 

bottle he claims to have taken. (Accepted although this is more of a conclusion than 

a finding of a basic fact). 

53. The amount of hemp seed oil consumed varies between the studies submitted with 

some being significantly above the recommended dosage of the product. Tr. at 198-

204, 207-20; Respondent’s Exhibits A & C. (Accepted as a conclusion). 

54. The actual amount of THC within the products studied was not determined and so 

that variable cannot be accurately compared between the studies submitted. 

(Accepted as a conclusion). 

55. The Respondent has failed to show that the material tested in the studies submitted is 

from the same batches of hemp seed oil he claims to have consumed. (Accepted as 

a conclusion). 

56. In addition to variations in the amount of hemp seed oil consumed in the studies 

submitted, there were also significant differences in the time between doses as well 

as the length times from the last dosage to when the urinalysis testing was 

conducted. (Accepted as a conclusion). 
53

57. Respondent has failed to establish a solid dosage rate and time between his last use 

of hemp seed oil and the actual urinalysis. (Accepted as a conclusion). 

Coast Guard’s Proposed Conclusions of Law

1. The United States Department of Transportation (DOT) and the Coast Guard is charged with 

enforcing United States dangerous drug laws against the holder of a license or merchant 

mariner's document, if the holder is found to have used a dangerous drug. 46 U.S.C. § 7704. 

(Accepted and incorporated). 

2. DOT/Coast Guard testing procedures test a mariner's urine for the presence of the marijuana 

metabolite in order to determine if an individual is a user of marijuana, which is a Schedule 

II Controlled Substance under the Comprehensive Drug Abuse Prevention and Control Act 

of 1970, 21 U.S.C. § 801, et seq., referred to as the Controlled Substance Act (CSA). 

(Accepted and incorporated). 

3. Respondent failed a chemical test for dangerous drugs and is presumed to be a user of 

dangerous drugs under 46 C.F.R. § 16.201(b). The Coast Guard met its burden of proof by a

preponderance of the evidence by reliable, probative and substantial evidence as required 

under both 46 C.F.R. § 5.63 and 33 C.F.R. § 20.702, that the Respondent is a user of 

dangerous drugs; marijuana. (Accepted and incorporated to the extent that the Coast Guard 

met its burden by reliable, probative, and substantial evidence, the standard used at the time 

of the 1998 initial hearing.)
54

4. Respondent failed to prove his affirmative defense because he failed to prove that he used 

hemp seed oil and that the use of the hemp seed oil caused him to test above the DOT cutoff 

for the THC metabolite. (Accepted and incorporated to the extent that the hemp seed oil he 

consumed, if any, did not, by itself, cause Respondent to test above the DOT cutoff). 

5. The Coast Guard is seeking revocation of the Respondent's U.S. Coast Guard merchant 

mariner credentials, the only available sanction for dangerous drug use under 46 U.S.C. § 

7704 (c) and 46 C.F.R. § 5.59(b). Further, the Coast Guard is recommending that 

Respondent not be given the opportunity for administrative clemency or be allowed to apply 

for another U.S. Coast Guard merchant mariner credential. This is based on the Coast 

Guard’s previous finding of Respondent’s use of marijuana in October of 1994. (Accepted 

to the extent that revocation is the only sanction available for use of a dangerous drug. The 

Undersigned has no authority to bar further administrative action, including clemency). 

Respondent’s Proposed Findings of Fact and Conclusions of Law

Respondent’s counsel did not provide an enumerated list his proposed findings of fact 

and conclusions of law. Instead, he submitted twelve arguments. The arguments are 

summarized as follows: 

1. Respondent asserts that because the Undersigned did not conduct a de novo hearing, the 

Respondent’s affirmative defense involving the innocent ingestion of hemp seed oil must be 

accepted as a matter of law. (Respondent’s Post-Hearing Memorandum at 1-2). (Rejected. 

The Coast Guard’s motion to stand on the record was granted for the purpose of judicial 
55

economy, but at the remanded hearing both parties were permitted to present any witness 

testimony or evidence that they saw fit, so long as it was not unduly repetitious. Just because 

the Respondent’s testimony in the 1998 hearing was not rebutted by live testimony does not 

mean that the ALJ must find Respondent’s affirmative defense as factual as a matter of law. 

As stated above, even if I were to accept his testimony that he ingested hemp seed oil, I 

cannot jump to the conclusion that his irregular consumption of it at irregular intervals was 

the sole cause of the positive drug test in the absence of additional evidentiary considerations 

such as absorption rate, etc., as described by Dr. Elsohly. Further, there would have to be 

credible evidence that would rule out the use marijuana during the period of time while hemp 

seed oil was being ingested. Other than his own testimony, which I find not credible, 

Respondent presented no such evidence. Respondent’s affirmative defense of hemp seed oil 

consumption was not supported by his expert witnesses, and the Coast Guard produced 

expert witnesses in rebuttal. 

2. Respondent argues that the Coast Guard’s stipulation equates to an admission that 

Respondent innocently ingested hemp seed oil contaminated with THC. (Respondent’s PostHearing Memorandum at 2-3). (Rejected. The Coast Guard stipulated that Respondent 

claims he innocently ingested hemp seed oil all manufactured from the same seed lot; the 

Coast Guard does not stipulate that he actually ingested the substance. Tr. 87 (2004). A 

stipulation of what a witness claims does not equal a finding of fact. The Coast Guard also 

stipulated that hemp seed oil manufactured at the time of the incident contained some level 

of THC, but the actual amount is unknown. Tr. 88 (2004). There was no evidence presented 

to prove that the level of THC present in hemp seed oil was high enough to trigger a positive 
56

test. Nor was there any evidence presented that excluded the use of marijuana and that the 

hemp seed oil ingestion, if any, was the sole cause of Respondent’s positive drug test. Aside 

from Respondent’s mother’s testimony and his own testimony, there was no evidence that 

Respondent ingested hemp seed oil at all.) 

3. According to Respondent, the testimony of Dr. Remus combined with the stipulation that has 

already been rejected, establishes that there is no way to differentiate between someone who 

tests positive in a drug screen after ingesting hemp seed oil and someone who took 

marijuana. Respondent argues that without the ability to determine the reason for the 

positive drug test, the ALJ must find for Respondent. (Respondent’s Post-Hearing 

Memorandum at 3-4). (Rejected. The evidence provided by Respondent shows that it is 

impossible to determine whether Respondent’s positive drug test was caused by marijuana 

usage, hemp seed oil ingestion, or a combination of both. As a result, the evidence and 

witness testimony provided by Respondent is not sufficiently reliable, probative or 

substantial to rebut the presumption that by testing positive for marijuana metabolites, 

Respondent is a user of dangerous drugs. See supra at 20, 22, 27.) 

4. Respondent offers the testimony of Mr. Struempler and his tests on the effect of Hemp 

Liquid Gold on urine to prove that the level of THC present in hemp seed oil is sufficient to 

result in a positive test for marijuana metabolites in a drug screen. (Respondent’s PostHearing Memorandum at 4). (Accepted to the extent that Mr. Struempler is an expert in 

urine drug testing. He tested to the effect of hemp seed oil on urine, and that hemp seed oil 

contained THC. For the reasons cited by Dr. Elsohly, to whose opinion I accord controlling 
57

weight, I reject the argument that all hemp seed oil contains sufficient amounts of THC to 

result in a positive drug screen by all who submit specimens for testing after hemp oil 

ingestion. See supra at 21, 25-26.) 

5. The testimony of Mrs. Dresser, Respondent’s mother, was offered to corroborate 

Respondent’s 1998 testimony regarding his hemp oil ingestion, and that his purpose in taking 

it was for his cardiovascular health. (Respondent’s Post-Hearing Memorandum at 5). 

(Rejected. Mrs. Dresser’s testimony is not credible. As Respondent’s mother, it is difficult 

to consider her an objective and uninterested witness. Furthermore, Mrs. Dresser did not 

testify at the original hearing in 1998 but urges us to put weight on her testimony six years 

later, where she purports her memory to be fresh and accurate. Even if I were to accept Mrs. 

Dresser’s testimony, it would establish only that on one occasion, Respondent took a “swig” 

of hemp seed oil. It does not establish regular use of sufficient quantity, to the exclusion of 

marijuana use, that would be sufficient to cause a positive drug test. Therefore, no weight can 

be given to Mrs. Dresser’s testimony. See supra at 22.) 

6. Respondent asserts that Dr. Elsohly’s testimony established that hemp seeds contaminated 

with THC can result in a positive drug test result for marijuana metabolites. As a result of 

this testimony, Respondent argues that his innocent ingestion of hemp seed oil prior to a 

voluntary drug test should establish that the positive result was caused by hemp seed oil. 

(Respondent’s Post-Hearing Memorandum at 5-6). (Accepted to the limited extent that 

even if the absorption and amount of THC in the product is unknown, it would be possible 

for someone to consume hemp seed oil and test positive for marijuana metabolites. 
58

Respondent’s argument is otherwise rejected. The mere possibility that someone who 

consumes hemp seed oil might test positive for marijuana metabolites does not rebut the 

presumption of marijuana use. See supra at 19-21, 24-29.) 

7. Respondent argues that the testimony of Ms. Purdy, a licensed dietician nutritionist, should 

be disregarded because she could not testify to having any specific knowledge of him. 

(Respondent’s Post-Hearing Memorandum at 7). (Rejected. The testimony of Ms. Purdy 

was not intended to be specific to the Respondent; Ms. Purdy testified to general information 

regarding substances that people with heart conditions are advised to take or not take. 

Specifically, Ms. Purdy testified that hemp seed oil is not recommended to people with 

concerns about the condition of their heart because it contains fatty acids that can otherwise 

be obtained by eating a diet that includes oils. Tr. Vol. 3 at 63-67, 81-83. An expert witness 

testifying to good nutritional practices to avoid heart disease is necessary so that the fact 

finder may compare what the Respondent claims he did for good heart nutrition, here, 

ingesting only hemp seed oil, and what is the generally accepted practice. Actual knowledge 

of the Respondent is unnecessary when the witness is simply stating generally accepted 

principles. See supra at 17.) 

8. Respondent asserts that the testimony of Mr. Kulow, President, Oak Line Investment 

Company, Inc., parent company of Health from the Sun, should be disregarded because he 

committed perjury at the 1998 hearing. Respondent contends that Mr. Kulow had knowledge 

of the presence of THC in Health from the Sun’s hemp oil product, but testified that his 

product did not contain THC. (Respondent’s Post-Hearing Memorandum at 8). (Rejected. 
59

Respondent has not established that Mr. Kulow acknowledged or accepted as true and correct 

that the Health from the Sun hemp oil product contained THC prior to testifying at the initial 

hearing that it did not contain THC. It is possible that Mr. Kulow dismissed the contents of 

the 1996 memo because he thought Mr. Struempler was making a false accusation. Had Mr. 

Kulow previously testified under oath prior to the 1998 hearing that his hemp seed oil 

contained THC, Respondent might have a point. However, Mr. Kulow’s testimony is given 

little weight in the decision-making process because it is inconsistent with the testimony of 

Dr. Elsohly, whose testimony is accorded controlling weight in assessing scientific evidence. 

See supra p. 17.) 

9. Respondent asserts that the charges against him should be dismissed with prejudice because 

the Coast Guard failed to establish that Ms. Watson is properly trained in the collection of 

urine, and that by doing so, the Coast Guard failed to establish a prima facie case. 

(Respondent’s Post-Hearing Memorandum at 8-11). (Rejected. When reviewed in its 

entirety, the testimony of Ms. Watson establishes that she is properly trained in accordance 

with 49 CFR Part 40. Tr. Vol. 1 at 26-44. At a minimum, her testimony establishes that she 

was sufficiently trained by her employer, and that her laboratory conformed to the 

requirements of 46 CFR Part 40. Id. The fact that the Coast Guard did not establish the 

name of the videotape she watched pursuant to her training does not mean that her employer 

did not properly certify her as a trained collector. Supra at 12.) 

10. Respondent argues that telephonic testimony should not have been admitted in the 1998 

hearing because the Coast Guard did not move to have it admitted. (Respondent’s Post-
60

Hearing Memorandum at 11). Respondent asserts that all telephonic testimony should be 

stricken from the record and the charges against him dismissed. (Respondent’s Post-Hearing 

Memorandum at 12). (Rejected. On appeal, the Commandant addressed this issue and found 

that the ALJ had discretion to admit testimony via telephone when it would otherwise be 

taken by deposition. Appeal Decision 2626 Dresser (2001). The Commandant found that 

the ALJ properly allowed the Coast Guard’s witnesses to testify telephonically. Id. 

Telephonic testimony has long been permitted in Suspension and Revocation proceedings. It 

is consistent with the constitutional concept of due process and is sufficient to protect the 

legitimate interests of Respondent. Appeal Decision 2538 (SMALLWOOD) (1992). The 

reliance on telephonic testimony therefore does not establish a reversible error as Respondent 

would contend.) 

11. Respondent avers that hemp seed oil is not a dangerous drug for the purposes of U.S. Coast 

Guard regulations and therefore Respondent cannot be found to have violated Coast Guard 

regulations. (Respondent’s Post-Hearing Memorandum at 13-14). (Rejected. Without 

addressing the legislative background as discussed during the 1998 hearing, to accept this 

claim the Undersigned would have to conclude that Respondent’s ingestion of hemp seed oil, 

if any, was the sole cause of the positive drug test and rule out any use of marijuana. As 

discussed above, Respondent’s ingestion of hemp seed oil does not rebut the presumption of 

drug use established by his urine specimen testing positive for marijuana metabolites.) 

12. Respondent’s final argument is that the transcript was not certified properly and is therefore 

fraudulent. (Respondent’s Post-Hearing Memorandum at 14-15). (Rejected. A bare claim 
61

of fraud in the absence of credible evidence is without merit. The court reporter made a 

voice activated recording of the December 7, 2004 hearing. In this form, any court reporter 

can transcribe the recording and certify it as a true and accurate copy of what was heard on 

the sound recording. If Respondent thinks that there is a difference between the recording 

and the transcript, and the difference is material, the recording is available for him to 

examine and he can make the proper motions after he listens to the recording and compare it 

to the transcript. As for the certification, it is not fraudulent. Maryland Court Reporting’s 

first certification contained an error stating that the original court reporter transcribed the 

recording, when in fact she made only the voice recording. Tr. 261 (2004). After this error 

was brought to the company’s attention, it sent a corrected certification stating that the audio 

recording was made by the original court reporter, and a different court reporter with 

Maryland Court Reporting did the transcription. Tr. 262 (2004).)