ALJDEC - Licensing
25A-101682-BUS · Department of Public Safety - Student Transportation · 2024-11-12
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
In the Matter of the Cancellation of the School Bus Driver Certificate of:
George J. Thomas
Certificate No. 64911,
Appellant.
No. 25A-101682-BUS
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: October 21, 2024.
APPEARANCES:
For Appellant: George J. Thomas.
For Respondent: Assistant Attorney General Kenneth Hughes.
ADMINISTRATIVE LAW JUDGE: Samuel Fox
EVIDENCE: Department’s Exhibits 1 through 3.
_____________________________________________________________________
FINDINGS OF FACT
George J. Thomas (Appellant) was the holder of Arizona School Bus Driver Certificate No. 64911 issued by the Arizona Department of Public Safety (Department).
On July 18, 2024, Appellant took an annual drug test, and the results were verified as positive for marijuana on July 22, 2024.
By letter dated July 23, 2024, the Department notified Appellant that his Arizona School Bus Driver Certificate had been cancelled effective immediately and that he would be eligible for reinstatement after July 18, 2025.
The Department cancelled Appellant’s certificate because it found that he had violated A.A.C. R13-13-102.K.1., R13-13-102.K.1(a), and R13-13-102.K.1(h).
Appellant appealed the 1 year cancellation on August 20, 20204.
On September 17, 2024, the Department issued a Notice of Hearing setting the matter for hearing on at 10:00 AM on October 21, 2024, at the Office of Administrative Hearings in Phoenix, Arizona.
At the hearing, the Department presented the testimony of Kimberly Thomas, and Appellant testified on his own behalf. Appellant also introduced the testimony of a character witness.
Appellant testified credibly at hearing. Appellant testified that he did not use drugs. He suffered from tinnitus, which prevented him from sleeping. Appellant’s son gave him three gummies in a plastic bag, stating that they might help him sleep. Appellant’s son said that the gummy did not contain THC. Appellant did not verify the brand of the gummy or its ingredients.
Appellant believed and argued that the gummies did not contain THC and that the drug test may have been a false positive. If the gummies contained THC, Appellant testified that his consumption of the THC was an accident and a mistake. He would not have taken the gummies if he knew they contained THC.
Ms. Thomas testified that the applicable regulations allowed the Department to cancel Appellant’s certificate. She testified that Appellant did not have any prior discipline on his license.
CONCLUSIONS OF LAW
The Department has jurisdiction.
The Department bears the burden of persuasion by a preponderance of the evidence, which is “evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.”
The Department alleged that Appellant violated A.A.C. R13-13-102.K, which states in relevant part:
Based on an assessment of the totality of the circumstances, the Department may deny a certificate to an applicant or may cancel or suspend a certificate of a school bus driver for: (a) [f]ailing to meet or comply with the requirements of this Article; . . . . [or] (h) Having a verified positive result to any controlled substance or alcohol test required by subsections (C)(1), (2), or (3), at any time.
Subsection C requires testing for marijuana and other substances.
The evidence established that Appellant had a verified positive result to a controlled substance test. Consequently, the Department established grounds under A.A.C. R13-13-102(K)(1)(a) to cancel or suspend Appellant’s Arizona School Bus Certificate.
The Department is required to inform a school bus driver whose certificate is cancelled of the amount of time that must elapse before that driver may reapply for certification. In determining the amount of time that must elapse before reapplication, the Department shall consider: (a) the seriousness of the offense leading to the cancellation; (b) the frequency with which the offense occurred; and (c) the amount of time required to correct the offense.
The Department cancelled Appellant’s license for about one year, informing him that he would be eligible for reinstatement after July 18, 2025.
License discipline should serve a purpose, such as deterrence (instilling fear in the individual or the public, thereby preventing certain behaviors), incapacitation (removing an individual’s capacity to engage in certain behaviors), rehabilitation (altering an individual’s behavior), or retribution (instituting societal vengeance for certain behaviors).
The Department was within its authority to cancel Appellant’s license for one year. However, the Tribunal’s recommendation is a one-semester suspension. That recommendation is predicated on the fact that Appellant credibly testified about the circumstances of the positive test. Appellant made an honest mistake. He relied on his son’s representation that the gummies did not contain THC. While the evidence did not support Appellant’s contention that the test was a false positive, Appellant was low risk and did not require deterrence, incapacitation, or rehabilitation; accordingly, a one-semester suspension is sufficient.
Consequently, Appellant’s appeal should be granted in part.
RECOMMENDED ORDER
IT IS ORDERED that Appellant’s appeal be granted in part. Appellant’s certificate should be suspended until January 1, 2025. Appellant should be subject to an immediate drug test, demonstrating he ceased using gummies containing THC, and in addition to the annual drug test, he should be subject to three additional random drug tests, at his expense, over the next 24 months.
Pursuant to A.R.S. § 41-1092.08(I), the licensee may accept the Administrative Law Judge Decision by advising the Office of Administrative Hearings in writing not more than ten (10) days after receiving the decision. If the licensee accepts the Administrative Law Judge Decision, the decision shall be certified as the final decision by the Office of Administrative Hearings.
In the event of certification of the Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be forty (40) days from the date of that certification.
Done this day, November 12, 2024.
/s/ Samuel Fox
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Ken Hunter
Frank L. Milstead
Department of Public Safety - Student Transportation
George J. Thomas
[email redacted]
Kenneth Hughes
Office of the Attorney General
[email redacted]
By: OAH Staff