UNITED STATES OF AMERICA 

DEP ARMENT OF TRANSPORTATION 

UNITED STATES COAST GUARD 

UNITED STATES OF AMERICA 

UNITED STATES COAST GUARD 

vs. 

License No. 779158 

LAWRENCE P. ABATIE 

BEFORE: 

ARCHIE R. BOGGS 

Administrative Law Judge 

Eighth Coast Guard District 

APPEARANCES: 

Res ondent 

FOR THE COAST GUARD 

LTJG WilliamN. DeLuca, and 

L T Michael J. Simbulan 

United States Coast Guard 

Marine Safety Office Honolulu 

433 Ala Moana Boulevard, Room 1 

Honolulu, Hawaii 96813-4909 

FOR THE RESPONDENT 

Ramon J. Ferrer, Esquire 

Suite 405 

1975 Vineyard 

Wailuku, Hawaii 96793 

Docket No. CG S&R 01-0028 

Case No. PA00001793 

DECISION AND ORDER 
ABA TIE 2 

PRELIMINARY STATEMENT 

In discharge of its duty to promote safety of life and property at sea, the United 

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

revocation of Merchant Mariner's License number 779158 issued to Respondent 

Lawrence P. Abatie. 

This action is brought pursuant to the legal authority contained in 46 U.S. Code 

Chapter 77 and its underlying regulations codified at 46 C.F.R Parts 5 and 10. In a 

complaint dated Januaryll, 2001, the Coast Guard charged Respondent with being 

convicted of an offense that would prevent the issuance or renewal of a license in 

violation of 46 U.S.C. § 7703(2) and Misconduct under 46 C.F.R § 5.27. As additional 

regulatory support for the complaint, the Coast Guard cited 46 C.F.R § 5.61(b ), and 46 

C.F.R §§ 10.201(i)(3). 

The factual allegations in the complaint are: 

"On September 21, 2000, the Respondent was convicted of Driving under the 

Influence of an Intoxicating Substance by the Hawaii District Court of the Second 

Circuit." 

The Respondent filed an answer admitting the jurisdictional and factual 

allegations, and requested a hearing on the proposed sanction. Attached to 

Respondent's answer was a supplemental document entitled "Defenses to the 

Complaint" in which he asserted eight (8) claims in support of a sanction of less than 

revocation. In support of his claim he stated: 

1. The intoxicating substance was alcohol, and he objects to the Coast Guard's 

characterization in the complaint that Respondent was driving under the 
ABA TIE 

influence of an "intoxicating substance" since the conviction resulted from 

driving under the influence of alcohol. 

2. The conviction represents misconduct as defined in 46 C.P.R. § 5.27. 

3. The complaint does not state grounds upon which relief may be granted. 

3 

4. Since Respondent was not operating a vessel at the time of the arrest, nor was 

he scheduled to operate a vessel, he did not engage in misconduct 

detrimental to the operation of a vesseL 

5. 46 C.P.R. § 5.61 does not include being under the influence of alcohol as an 

act for which revocation is sought. 

6. Respondent's current enrollment in an alcohol or drug abuse rehabilitation 

program should serve as a mitigating factor under 46 C.P.R. § 10.20l(i), if 

applicable, that would prevent revocation of his license. 

7. Commandant Decision on Appeal No. 2535 (SWEENEY), which sets out the 

standard for cure, should apply since the violations are similar. 

8. The predecessor to 46 U.S.C. § 7703 was remedial, not penal in nature and so 

Respondent's case should be treated as one requiring remedial measures, 

such as SWEENEY cure rather than punishment through revocation. 

A hearing was conducted on March 1, 2001 in Maalaea, Maui, Hawaii, in accord 

with the Administrative Procedure Act, as amended and codified at 5 U.S.C. § § 551-

559, and Coast Guard procedural regulations, 33 C.P.R. Part 20. 

Lieutenant (junior grade) William N. DeLuca and Lieutenant Michael J. Simbulan 

entered appearances on behalf of the Coast Guard. Mr. Abatie was represented by 

professional counsel, Ramon J. Ferrer. 

· After opening statements by both sides, the Coast Guard submitted two (2) 

exhibits: 

IO Exhibit 1 -a Hawaiian Second Circuit District Court calendar 

memorializingthe motor vehicle violation hearing 
ABA TIE 

IO Exhibit 2- an ALJ Decision by Thomas E. McElligott, USCG v. Lawrence P. 

Abatie, Docket No. 00-0460, issued October 31, 2000, requiring Respondent to 

comply with SWEENEY guidelines or otherwise his license would be revoked. 

The Respondent testified in his own behalf and he introduced into evidence the 

4 

testimony of David W. Hudson, owner and sole shareholder in Finest Kind 

Sportsfishing, Inc., who attested to Respondent's good character and on-the-job 

performance. The Respondent also intr.oduced four (4) exhibits into evidence to 

support his claim for a less severe than revocation sanction. 

Those exhibits are as follows: 

Respondent Exhibit A- a "Top Lahina Captains" article Hawaii 

Fishing News September 2000. 

Respondent Exhibit B - a letter from the Hawaii State District Court 

for the Second Circuit concerning a rehabilitation program. 

Respondent Exhibit C- a restored driver's dicense issued to Lawrence 

P. Abatie. 

Respondent Exhibit D- a letter from a substance abuse counselor 

concerning Mr. Abatie's participation in Alcoholics Anonymous. 

After careful review of the facts and applicable law the allegations are found· 

proved based on Respondent's admission and the reliable and credible evidence 

adduced at the hearing. However, for reasons stated herein, I decline to revoke 

Respondent's license. Instead, his license will be suspended outright for an additional 

six (6) months following completion of the SWEENEY cure process ordered in United 

States Coast Guard v. Lawrence P. Abatie, Docket No. 00-460, issued on October 31, 

2000. Respondent will also be required to show successful completion of a bona fide 
ABA TIE 

alcohol abuse rehabilitation program and active and continued participation in such a 

program. 

FINDINGS OF FACT 

1. Respondent Lawrence P. Abatie is a charter boat fishing captain who has held a 

Coast Guard license for approximately nine and a half (9 1/2) years during which 

time he has never been involved in any marine related accidents resulting in 

personal injury or property damage. (Transcript 39-42). 

2. Respondent is the holder of license number 779158, which is currently on good 

faith deposit with the Coast Guard pending completion of the SWEENEY cure 

process ordered in United States Coast Guard v. Lawrence P. Abatie, Docket No. 

00-460, on October 31, 2000. In that case, the presiding administrative law judge 

found that Respondent violated 46 U.S.C. § 7704(c) by testing positive for 

marijuana during a reasonable cause drug test performed on June 26, 2000. The 

judge ordered the Respondent to notify the Coast Guard of his enrollment in an 

approved drug rehabilitation program in accordance with SWEENEY guidelines 

within thirty (30) days from receipt of the decision and order or otherwise his 

license would be revoked. (IO Exhibit 2). 

3. In November 2000, Respondent attempted to comply with the order issued in 

Abatie case docket number 00-460 by enrolling in a drug rehabilitation program 

with Hina Mauka. However, upon the Coast Guard's review of the program it 

was determined that Hina Mauka does not satisfy the SWEENEY requirements. 

5 
ABA TIE 

Consequently, Respondent did not enroll in a Coast Guard approved drug 

rehabilitation program until January 31, 2001. (Transcript 26). 

4. While the Abatie case docket number 00-460 was pending adjudication and prior 

6 

to the issuance of the judge's order requiring SWEENEY cure, Respondent was 

charged with driving under the influence of an intoxicating substance (DUI) (i.e., 

alcohol) to which he entered a plea of "no contest." Based on his plea, the 

Respondent was convicted by the District Court of the Second Circuit, State of 

Hawaii, on September 21, 2000 ... ]!1-e cour_t imposed a $25 fine and suspended 

Respondent's driving privileges for 30 days, during which time he was required to 

undergo a complete psychological examination, attend seven (7) Alcoholics 

Anonymous (AA) or Narcotics Anonymous (NA) one hour meetings, and attend 

seven (7) driver's education classes. (IO Exhibit 1; Respondent's Exhibit B; Transcript 

17-19, 47). 

5. Upon complying with the Hawaii District Court's order, the Respondent's driving 

privileges were restored and his driver's license was renewed. (Respondent's 

Exhibit C). 

6. The Respondent testified that the September 21,2000 conviction was his first DUI 

offense. 

7. At the time of the hearing the Respondent was in the process of completing the 

SWEENEY cure process ordered by the administrative law judge in the prior case. 

8. Respondent currently participates in AA and attends several meetings a week. 

(Transcript 37; Respondent's Exhibit D). 
ABA TIE 7 

OPINION 

The facts of this case are not in dispute. The Respondent admitted to being 

convicted of driving under the influence of an intoxicating substance (i.e., alcohol) by 

the Hawaii Court. This is sufficient to support a finding that the allegations in the 

complaint are proved. See Appeal Decision 2458 (GERMAN). The only issue of 

concern is the nature of the sanction to be imposed against Respondent's license. The 

Coast Guard urged that revocation is the most appropriate sanction and the fact that he 

is currently undergoing Sweeney cure pursuant to the prior decision serves as an 

aggravating factor. In response, the Respondent contended that a lesser sanction of not 

more than 4 months suspension should be imposed since: 

a) Except for undergoing SWEENEY cure and the DUI conviction, he has not 

been convicted or committed any offense involving alcohol or drugs; 

b) He is an outstanding captain with an excellent safety and employment 

record; 

c) He is currently enrolled in a rehabilitation course as required by SWEENEY, 

he regularly attends Alcoholics Anonymous meetings, and his driver's license 

privileges have been restored because he complied with all requirements 

following his DUI conviction; and 

d) He voluntarily deposited his license with the Coast Guard during the hearing 

in the prior case, and has not had use of the license for the past 8 months. 
ABA TIE 

The Respondent correctly notes that revocation is not mandatory under Section 

7703 of Title 46 of the United States Code, which provides: 

A [Coast Guard issued] license, certificate of registry, or merchant mariner's 

document issued by .the Secretary may be suspended or revoked if the holder--

* * * 

(2) is convicted of an offense that would prevent the issuance or renewal of a 

license, certificate of registry, or merchant mariner's document; or· 

8 

(3) within the 3-year period preceding the initiation of the suspension or 

revocation proceeding is convicted of an offense described in section 205(a)(3)(A) 

or (B) of the National Driver Register Act of 1982 (23 U.S.C. 401 note). 

In determining the appropriateness of a sanction, the administrative law judge 

has exclusive authority and discretion. See 46 C.P.R. § 5.569(a); see also Appeal 

Decision 2427 (JEFFRIES), Appeal Decision 2452 (MORGANDE). Except for acts or 

offenses for which revocation is mandatory, the presiding administrative law judge 

may consider aggravating or mitigating factors that include: 

1) Remedial actions which have been undertaken independently by the 

Respondent; 

2) Prior record of the Respondent, considering the period of time between prior 

acts and the act or offense for which presently charged is relevant; and 

3) Evidence of mitigation or aggravation. 

See 46 C.P.R. § 5.569(b). 

While Respondent's DUI conviction, which occurred while awaiting hearing for 

violating 7704 and for which he is currently completing cure pursuant to the order 

issued in the prior Abatie case serves as an aggravating factor. his license will not be 

revoked. The undersigned is not insensitive to the fact that this was Respondent's first 
ABA TIE 9 

DUI conviction, he has demonstrated substantial involvement in AA, and his driver's 

license has been returned. Accordingly, a less severe sanction will be issued and 

Respondent will be required to complete a Coast Guard approved alcohol abuse 

rehabilitation program and maintain active participation in a bona fide alcohol abuse 

monitoring program as required in 46 C.P.R. § 5.901(e). Enrollment in these two 

programs is subject to the Coast Guard's approval.! 

2. There is one further matter that should be addressed. The Coast Guard relies on 

46 U.S.C. § 7703(2) as statutory authority governing this case. Section 7703(2) of Title 46 

of the United States Code authorizes suspension or revocation of a Coast Guard issued 

license, certificate of registry, or merchant mariner's document if the holder of such 

credentials "is convicted of an offense that would prevent the issuance or renewal of 

[said credentials]." While a DUI conviction may preclude the issuance of a license, (46 

C.P.R. § 10.20l(i)(3) and (j)); the statutory authority, which is most appropriate given 

the facts and circumstances of this case, is subsection 3 of Section 7703. See generally 

Appeal Decision 2608 (SHEPHERD) (rejecting Respondent's argument that his DUI 

conviction cannot form the basis of a charge until he seeks to have his license and 

document renewed and holding that 46 U.S.C. § 7703(3) applies to the DUI conviction 

because the offense occurred within three-years preceding the suspension and 

revocation proceeding). 

1 Although 46 C.F.R. § 5.90 l(e) governs issuance of new licenses, certificates, or documents following revocation or 

surrender, it forms a sound and reasonable basis upon which to craft a viable order in this case. See generally Appeal 

Decision 2535 (1992), reversed on other grounds Kime v. Sweeney, NTSB Order No. EM-165 (1992),jollowed 

Appeal Decision No. 2546 (SWEENEY) ( 1992), appeal denied Kime v. Sweeney, NTSB Order No. EM-176 ( 1994). 
ABA TIE 10 

The plain language and legislative history of 46 U.S. C. § 7703 makes clear that 

subsection 3 was enacted to primarily deal with motor vehicle offenses (such as driving 

under the influence of alcohol) and subsection 2 was enacted to deal with other criminal 

offenses that may prevent the issuance of a license. See Oil Pollution Act of 1990 (OPA 

90), H.R. Conf. Rep. No. 101-653, § 4103(1990), reprinted in 1990 U.S.C.C.A.N. 779; see 

also, OPA 90, S. Rep. No. 101-99, § 102 (1989), reprinted in 1990 U.S.C.C.A.N. 749 (stating 

that "Subsection (b) [authorizes suspension or revocation of Coast Guard credentials] if, 

among other conditions, the holder has been convicted of a serious criminal offense, or 

specified motor vehicle driving offenses ... "). To fall within the purview of subsection 

3, the offense for which Respondent is convicted need not be listed on the National 

Drivers Register (NDR), it need only be an offense that is described in section 

205(a)(3)(A) or (B) of the National Driver Register Act of 1982 (23 U.S.C. 401 note). 

A conviction for operating a motor vehicle under the influence of alcohol is an 

offense described under section 205(a)(3)(A) of the National Driver Register Act which 

requires a state to report to the Secretary of Transportation, 23 U.S.C. 401 note (Reports 

by Chief Driver Licensing Officials); 49 U.S.C. § 30304(a)(3)(A); Appeal Decision 2608. 

The mere fact that the State of Hawaii had not yet listed the offense on the NDR did not 

preclude the Coast Guard from appropriately citing 7703(3). This error, however, is 

harmless and any deficiencies in the Coast Guard pleadings were cured because 

Respondent had actual and adequate notice of the issues that were fully litigated. See 

generally Appeal Decision 2393 (STEWART). 
ABA TIE 11 

ULTIMATE FINDINGS2 

1. Respondent, Lawrence P. Abatie, and the subject matter of this hearing are within 

the jurisdiction of the United States Coast Guard in accordance with Title 46, 

United States Code 7703. 

2. At all relevant times on September 21,2000, Respondent Abatie was the holder of 

License Number 779158, which is currently on good faith deposit with the Coast 

Guard pending Respondent's completion of the SWEENEY cure process. 

3. Respondent Abatie admits that the Hawaii District Court of the Second Circuit 

convicted him on September 2t 2000 of driving under the influence of an 

intoxicating substance (i.e., alcohol). 

4. Although the Coast Guard should have relied on 46 U.S.C. § 7703(3) as the most 

appropriate statutory authority, the error is harmless because 46 C.P.R. § 10.201(b ), 

(i), and (j) establishes that a DUI conviction is an offense that may preclude the 

issuance or renewal of a license. 

CONCLUSION 

The Coast Guard has established through his admission that Lawrence P. Abatie, 

was convicted on September 21, 2000 of driving under the influence of an intoxicating 

substance by the Hawaii District Court of the Second Circuit. This constitutes a 

2 On March 26, 2001, Respondent, by and through counsel, filed a post-hearing brief, and the Coast Guard filed its 

proposed findings of fuct and conclusions of law on March 29, 2001. The Coast Guard only enumerated its proposed 

findings of fact, but failed to enumerate the proposed conclusions oflaw and Respondent failed to enumerate any of 

its proposed findings of fact and conclusions of law in its post-hearing brie£ As such, rulings are only made on 

proposed findings that were properly enumerated. Said rulings are attached to this decision. 
ABA TIE 12 

violation of 46 U.S.C. § 7703(2) and the underlying regulations. After careful review of 

the facts and circumstances of this case, it is determined that outright suspension 

coupled with Coast Guard approved alcohol rehabilitation and alcohol monitoring 

programs are the most appropriate order. 

ORDER 

License Number 779158 issued to you by the United States Coast Guard is 

hereby suspended outright for a period of six months commencing following your 

satisfactory compliance with the previous Order dated October 31, 2000, by 

Administrative Law Judge McElligott. During this period of suspension, your license 

will remain in the custody of the Coast Guard. Said license shall be returned to you no 

earlier than January 10, 2003, subject to the satisfactory completion of a Coast Guard 

approved alcohol abuse rehabilitation program and your continued participation in a 

Coast Guard approved alcohol abuse monitoring program. 

Failure to comply with this Order or subsequent violations of any law or 

regulation administered and enforced by the Coast Guard may result in your license 

being revoked. 

Delivery of this Decision and Order on you or your counsel will constitute 

service and will serve as notice to you of your right to appeal, the procedures for which 

are set forth in Attachment A and made part of this Order. 
ABA TIE 13 

Absent an appeal taken by either party, this decision shall become the final 

action of the Coast Guard 30 days after the date of issuance as provided in 33 C.P.R. § 

20.1101. 

Done and dated this 3o day of May, 2001, at New Orleans, Louisiana 

ARCHIE ~P.~ R. BOGGS · 

Administrative Law Judge