                               STATE OF WEST VIRGINIA

                             SUPREME COURT OF APPEALS


Lonnie Dean,
Respondent Below, Petitioner                                                        FILED
                                                                                 June 21, 2016
vs) No. 15-0724 (Kanawha County 15-AA-33)                                         RORY L. PERRY II, CLERK
                                                                               SUPREME COURT OF APPEALS
                                                                                    OF WEST VIRGINIA
West Virginia Office of Miners’ Health, Safety, and Training,
Petitioner Below, Respondent


                                MEMORANDUM DECISION
        Petitioner Lonnie Dean, by counsel Susan J. Van Zant, appeals the Circuit Court of
Kanawha County’s July 8, 2015, order reversing the West Virginia Coal Mine Safety Board of
Appeals (“Board”) decision that in which petitioner challenged the permanent revocation of his
mining certifications. Respondent, the West Virginia Office of Miners’ Health, Safety, and
Training (“OMHST”), by counsel Jack M. Rife, filed a response in support of the circuit court’s
order and a supplemental appendix.1 On appeal, petitioner argues that the circuit court erred in
reversing the Board’s decision denying a petition for the permanent revocation of his mining
certifications.

        This Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these
reasons, a memorandum decision affirming the circuit court’s order is appropriate under Rule 21
of the Rules of Appellate Procedure.

       In October of 2014, respondent issued petitioner two mining certifications, one for
surface coal truck driving and one for surface coal mining. Thereafter, petitioner failed a drug
screen for marijuana during a pre-employment substance abuse screening. As a result,
respondent immediately and temporarily suspended his mining certifications by letter dated
October 18, 2014.

       In April of 2014, petitioner entered into an agreement with the Board and successfully
completed a sanctioned substance abuse treatment program. As such, his mining certifications
were reinstated on May 13, 2014. Thereafter, in December of 2014, petitioner failed his second
drug screen and, on January 8, 2015, respondent petitioned the Board to permanently revoke his
mining certifications.



       1
           Respondent also filed a corrected response.
                                                         1


         In February of 2015, the Board conducted a hearing on respondent’s petition. Respondent
presented evidence establishing that petitioner failed two pre-employment drug screens, to which
petitioner admitted. Petitioner testified, however, that the second drug screen failure was due to
circumstances outside of his control. Petitioner’s testimony was corroborated by a witness who
testified that petitioner consumed marijuana brownies that he prepared, unbeknownst to
petitioner. The Board found that petitioner established a plausible explanation of why he failed
the second pre-employment drug screen and concluded that he mistakenly and involuntarily
consumed marijuana. The Board held that, in order to permanently revoke petitioner’s mining
certifications, respondent must prove that petitioner failed the substance abuse screen and he had
the intent to consume the prohibited substance.2 Thereafter, respondent appealed the Board’s
decision to the Circuit Court of Kanawha County.

        Following a review of the petition, briefs, and the record, the circuit court reversed the
Board’s decision by order dated July 8, 2015, concluding that, the Board’s administrative order
relied upon erroneous interpretations of the law. The circuit court found that petitioner failed two
pre-employment drug screens in violation of West Virginia Code § 22A-1A-1(a)(1) and the West
Virginia Code of State Rules § 56-19-6.4.1 and that the Board erred in finding that intent is an
element pursuant to West Virginia Code §22A-1A-1 et seq and the West Virginia Code of State
Rules § 56-19-1 et seq. The circuit court also found that, pursuant to West Virginia Code § 22A­
1A-1 and the West Virginia Code of State Rules § 56-19-1, respondent simply needed to show
that a certified individual, like petitioner, failed a substance abuse screen and is subject to
decertification. The circuit court also determined that there are no recognized defenses to West
Virginia Code § 22A-1A-1 et seq or the West Virginia Code of State Rules § 56-19-1 et seq,
beyond a direct challenge to the results of the screen.

       We have previously established the following standard of review:

               [o]n appeal of an administrative order from a circuit court, this Court is
       bound by the statutory standards contained in [West Virginia] Code §29A-5-4(a)
       and reviews questions of law presented de novo; findings of fact by the
       administrative officer are accorded deference unless the reviewing court believes
       the findings to be clearly wrong.

Syl. Pt.1, Muscatell v. Cline, 196 W.Va. 588, 474 S.E.2d 518 (1996). Upon review of the record
submitted on appeal, we find no error in the circuit court’s decision below.

        On appeal, petitioner argues that the circuit court erred in reversing the Board’s decision
denying the permanent revocation of his mining certifications. Specifically, petitioner contends
that there was evidence to negate his intent to ingest marijuana and there was no evidence that
the Board’s findings were clearly wrong. Upon our review and consideration of the circuit
court’s order, the parties’ arguments, and the record submitted on appeal, we find that the circuit
court did not abuse its discretion in reversing the Board’s ruling below.
       2
        The Board’s administrative order did not refer to any provision or rule contained in West
Virginia Code §22A-1A-1 et seq or the West Virginia Code of State Rules § 56-19-1 et seq on
which it relied to determine that the permanent revocation of mining certifications require the
element of intent.
                                                     2


        Petitioner argues that the West Virginia legislature gave the Board the “power to evaluate
the charges and determine whether or not all of the elements of the violation exist” and it was
within the Board’s discretion to make a determination that respondent failed to “prove each and
every element of the case as charged” because he did not intend to ingest marijuana. We
disagree.

       Pursuant to West Virginia Code § 22A-1A-1(a)(1),

       [e]very employer of certified persons, as defined in section two, article one of this
       chapter, shall implement a substance abuse screening policy and program that
       shall, at a minimum, include: A [pre-employment], ten-panel urine test for the
       following and any other substances as set out in rules adopted by the Office of
       Miners' Health, Safety and Training: (A) Amphetamines; (B) Cannabinoids/THC;
       (C) Cocaine; (D) Opiates; (E) Phencyclidine (PCP); (F) Benzodiazepines; (G)
       Propoxyphene; (H) Methadone; (I) Barbiturates; and (J) Synthetic narcotics.

Additionally, West Virginia Code of State Rules §56-19-6.4.1 provides that if a “person tests
positive on a urine test for any of the ten substances identified in Subsection 5.3 of this rule then
he or she is deemed to have failed the test by the medical review officer.” It is clear from the
language of the rule that the only relevant inquiry is whether the certified individual tested
positive for a prohibited substance. Neither the statute nor the rule require respondent to prove
intentional consumption of marijuana. It is also clear from the record that the Board’s
administrative order did not refer to which provision in the West Virginia Code or the West
Virginia Code of State Rules it relied on in making its determination that the rules required proof
of intent to violate the statutes or rules. As such, we find that the circuit court did not abuse its
discretion in reversing the Board’s ruling below.

        Our review of the record supports the circuit court’s decision to reverse the Board’s
ruling based upon the specific finding that the Board erred in finding that intent was an element
that respondent must prove in order to revoke petitioner’s mining certifications. It is clear from
the record that petitioner admitted to failing two drug screens, did not challenge the results of
those drug screens, and respondent established that petitioner was subject to decertification
pursuant to petitioner’s violations of West Virginia Code § 22A-1A-1(a)(1) an West Virginia
Code of State Rules §56-19-6.4.1. Accordingly, we find no error in the circuit court’ decision to
reverse the Board’s ruling.

       For the foregoing reasons, we affirm.


                                                                                          Affirmed.
ISSUED: June 21, 2016

CONCURRED IN BY:

Chief Justice Menis E. Ketchum

                                                     3


Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Margaret L. Workman
Justice Allen H. Loughry II




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