ALJDEC - Licensing

25A-101685-BUS · Department of Public Safety - Student Transportation · 2024-10-21

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

In the Matter of the Cancellation of the School Bus Driver Certificate of:

Eric Van Hook,

Certificate No. 64636,

Appellant.

No. 25A-101685-BUS

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: September 30, 2024.

APPEARANCES:

For Appellant: Eric Van Hook.

For Respondent: Assistant Attorney General Kenneth Hughes.

ADMINISTRATIVE LAW JUDGE: Samuel Fox

EVIDENCE: Department’s Exhibits 1 though 5.

_____________________________________________________________________

FINDINGS OF FACT

Eric Van Hook (Appellant) was the holder of Arizona School Bus Driver Certificate No. 64636 issued by the Arizona Department of Public Safety (Department).

On July 19, 2024, Appellant took an annual drug test, and the results came back positive for marijuana on July 23, 2024.

By letter dated July 24, 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 19, 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).

In a letter dated August 5, 2024, Josh Crosby, the Director of Transportation for the Higley Unified School District, recommended to the Department that Appellant be reinstated with additional drug testing (for a temporary period of time) and coaching on the use of supplements.

On September 3, 2024, the Department issued a Notice of Hearing setting the matter for hearing on at 10:00 AM on September 30, 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 testified credibly at hearing. Appellant was a retired police officer who had a Class A license so that he could move large vehicles during his police duties. Appellant was looking for pain management options as an alternative to daily use of Tylenol and Advil. He read that mushrooms could help some people, so he researched options, reviewing the ingredients for each option to ensure they did not contain problematic substances. He declined to purchase anything that included THC in the ingredients list. Appellant decided on binoid brand, Premium Mushroom Mixed Gummies, Euphorix Line, Microdose Gummies, which did not have THC in the ingredients. The bottle did say, in small print, at the bottom of the bottle that “[t]his product has been lab-tested for compliance and safety and does not contain more than 0.3% delta-9 THC.” Appellant did not see the small print disclosure.

Appellant testified that he consumed THC by mistake; he sought gummies that did not contain THC; he did not know these gummies contained THC; he would not have taken the gummies if he knew they contained THC; and that he stopped taking the gummies immediately upon finding out they contained THC on or about July 22, 2024.

Ms. Thomas testified that the applicable regulations allowed the Department to cancel Appellant’s certificate. She also testified that if Appellant had a prescription for THC, that would have impacted their analysis. 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 19, 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 is low risk and does 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 the supplement at issue, 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, October 21, 2024.

/s/ Samuel Fox

Administrative Law Judge

Transmitted by either mail, e-mail, or facsimile to:

Ken Hunter

Department of Public Safety - Student Transportation

Frank L. Milstead

Department of Public Safety

ATTN: Lieutenant Michael Lockhart

Kenneth Hughes

Arizona Attorney General Office

[email redacted]

Eric Van Hook

[email redacted]

By: OAH Staff