UNITED STATES OF AMERICA 

U.S. DEPARTMENT OF HOMELAND SECURITY 

UNITED STATES COAST GUARD 

UNITED STATES COAST GU* 

Complainant 

VS. 

ALDO R LOYAL 

Respondent. 

Docket Number: CG S&R 07-0007 

CG Cape No. 2855751 . , 

DECISION AND ORDER 

Issued: Febmarv 23.2007 

Issued by: Thomas E. P. McEllieott. U.S. Administrative Law Judee 

Lt. Robert S. Butts and 

YNI Seth Dugan 

U.S. Coast Ouard 

Commander St. Petersburg 

155 Columbia Drive 

Tampa, FL 33594 

For tbe Coast Guard 

Eric C. Thiel, Esq. 

Fowler White Boggs Banker, PA 

P.O. Box 1438 

Tampa, FL 33601 

For the Respondent 
PRELIMINARY STATEMENT 

This is an expedited proceeding, including expedited hearings and decision and order, 

and U.S. Coast Guard Investigating Officers seeking revocation of the Merchant Mariner's 

License (license) issued by U.S. Coast Guard to Aldo R Loyal, the respondent in this case 

(Respondent). This action was brought pursuant to 46 U.S.C. 7702(d), 33 CFR Part 20, Subpart 

L and 46 CFR Part 5. 

On Sunday, January 14,2007, the United States Coast Guard Investigating Officers 

(Coast Guard or Agency) sewed a complaint personally on Respondent. The complaint states 

that on Saturday, January 13,2007, the Coast Guard temporarily suspended and took possession 

of the Respondent's license. The jurisdictional allegations of the complaint state that 

Respondent is the holder of license number 1010870, he performed a safety sensitive function 

when acting under the authority of that license by serving as master aboard the fishing vessel 

SI.IARK, and there is probable cause to believe that Respondent has performed the safety 

sensitive function in violation of law or regulation regarding the use of alcohol or dangerous 

drugs. The factual allegations of the complaint state: 

1. On 13 January 2007, the Respondent was operating the uninspected 

passenger vessel (UPV) SHARK. 

2. Respondent was acting under the authority of U.S. Merchant Mariner 

license 1010870 as required by law or regulation. 

3. Respondent performed his duties in a manner causing passengers to fear 

for their personal safety. 

4. Respondent was subject to search and was found to be in possession of a 

syringe, drug paraphernalia and an unknown substance. 

5. On 13 January 2007, Respondent was taken to Health works Medical 

Group drug/alcohol testing facility and pmvided a urine sample. - 

On January 16,2007, this case was assigned to the U.S. Administrative Law Judge 

Thomas E. P. McEUigon for adjudication. The expedited proceeding was conducted in 

accordance with 33 CFR Part 20 and the U.S. Administrative Procedure Act, codified in 5 U.S.C. 

§§551-59. 

Pursuant to 33 CFR 20.1206, a prehearing telephone conference was scheduled and held 

on January 19,2007. Lieutenant (G) Robert S. Sutts; Respondent Aldo Loyal, and his father, 

Respondent's employer and vessel owner Gus Loyal, all participated in the ~rehearine. 

conierence. ~oll~wi& thepxhearing conference, the alkgations containdin the co;hplaint 

were found proved based on Reswndent's admission of use of cocaine on Friday. January 12, 

2007. &peal Decision 2556 (NEESEN). The Respondent further admitti-that he still felt 

the effects of the cocaine use the next momincr. Saturdav. Janm . 13.2007. when he reported for . duty about 7:00 a.m. local or Eastern Time asihe only lidensed master and captain on bbard the 

UPV SHARK. Thus, the remaining issue concerned the sanction and whether the Coast Guard 
On February, 7,2007, Respondent sought issuance of a subpoena to secure the testimony 

of a substance abuse professional. The subpoena was signed by the Chief Administrative Law 

Judge for the United States Coast ~uard.' 

A aid-type evidentiary hearing was held by U.S. Adminisfrative Law Judge, Thomas E. 

P. McElligott on February 8,2007 in the R. L. Timberlake, Jr. Federal Building in Tampa, FL as 

scheduled. The Coast Guard appeared at the hearing represented by Lt. Rob& S. Butts and 

Yeoman First Class (YN1) Seth Dugau. Respondent also appeared at the hearing together with 

his attorney, Mr. Eric C. Thiel. Eight (8) witnesses testified at the hearing and a total of thirteen 

(13) exhibits were admitted into evidence by the judge. The witness and exhibit lists are found 

in Attachment A. 

FINDINGS OF FACT 

1. Respondent Aldo R. Loyal was the holder of U.S. merchant mariner license number 

1010870 (Issue Number 2) that was issued by the Coast Guard on April 19,2002 and 

expires on April 19,2007. (Coast Gurud Exhibit (CG Ex.) 1). 

2. The license authorizes Respondent to serve as an ''Operator of uninspected passenger 

vessels as defined in 46 U.S.C. 2101(42) upon near coastal waters not more than 100 

miles offshore for domestic voyages only." s.).~ 

3. On January 13,2007, Respondent served as the only captain and master on board the 

UPV SHARK, chartered by Joseph Walter Capstick and John Thomas (Tom) Bums 

who invited four (4) clients from Georgia on a fishing trip in watexs about sixty-five 

(65) miles off the coast of Sarasota, Florida in the Gulf of Mexico (Gulf). 

4. In addition to Respondent and his unlicensed mateldeckhand, Thomas (Tom) Ryan 

Weller, there were a total of six (6) passengers on board the UPV SHARK on Saturday, 

Janmy 13,2007. - 

2 On February 7,2007, the day before the hearing date, Respondent filed a motion for a subpoena of Betty Dominic, 

the substance abuse professional. Tne subpoena was signed by the Hon. Joseph N. Ingolia, Chief Adminishative 

Law Judge because the unddgned judge was Qaveling hn Houston, Texas to Tampa, Florida en routeto tbe 

bearing and was unavailable to sign this subpoena 

3 'I'itle 42 U.S.C. 2101142) defines 'Wispected passenger vessel" as follows: 

(42) "uniqwted passenger vessel" means an uninspected vessel-- 

(A) of at least 100 gross tons as measured under section 14502 of this title, or an alternate tonnage 

measured under secIion 14302 of this title as prescribedby the Secretary under section 14104 ofthis title- 

(i) cawing not more than 12 pasengem, including at I& one pasmger for hire; or 

(ii) that is chartered with the crew provided or specified by the owner or the owner's representative and 

canymg not more than 12 passengers; and 

(B) of less than 100 gmss tons as meamred under section 14502 of this title, or an alternate tonnage 

measured under section 14302 of this title as prescribed by the Secretary under section 14104 of this title- 

(i) canying not more than 6 passengers, including at least one passenger for hire; or 

(ui tbat is chartered with the crew provided or specified by the owner or the owner's representative and 

carrying not more than 6 passengers. 
5. The UPV SHARK is a forty-one (41) foot uninspected six (6) passenger vessel owned 

by Respondent's father, Giustino (Gus) Loyal. (CG Ex. 2 and5A). 

6. The UPV SHARK is required by law to have a Coast Guard licensed master on board 

when operating or navigating at sea or in bay waters. 46 U.S.C. 8301(a)(1). 

7. The UPV SHARK departed from Sarasota, Florida aro~~l~d 715 A.M. on Saturday, 

January 13,2007. The vessel operated only under Respondent's direction and control. 

8. Immediately after departing port, the UPV SHARK went for fuel and then went only 

bait fishing in the Bay in accordance with customary practice. 

9. Around 8:00 A.M. on Satwlay, January 13,2007, the UPV SHARK got underway and 

headed for the Gulf at a slow rate of speed of approximately four (4) knots. 

10. Shortly after getting underway, Mr. Weller (Respondent's deckhand and mate) noticed 

Respondent falling asleep in the captain's chair behind the controls and wheel of the 

vessel, located on the roof of the vessel's only cabin. 

11. Mr. Weller attempted to wake up Respondent, who would stay awake for 

approximately five (5) minutes and then nod off to sleep again. 

12. The passengers observed Mr. Weller attempting to wake Respondent, and asked Mr. 

Weller what was going on. 

13. Mr. Weller indicated Respondent was "out of it." 

14. At one point in time, Respondent directed Mr. Weller to bait the rods. Mr. Weller 

found this request to be quite und because the UPV SHARK was only 

approximately three (3) miles off the coast of Sarasota, Florida. 

IS. When the passengers asked Respondent what was going on, Respondent expressed a 

reluctance to speak and when he did speak Respondent's speech was slurred. 

16. Sometime between 9:00 A.M. and 10:OO A.M., Mr. Weller used a passenger's cellular 

telephone to contact Gus Loyal and inform him that there was a problem on board the 

UPV SHARK, with Respondent, his son. 

17. Gus Loyal also spoke with passenger Tom Bums, who expressed concern because the 

UPV SHARK was just drifting aimlessly off the coast of Sarasota and the passengers 

were not deep sea fishing. 

18. Gus Loyal then called the ship-to-shore telephone and spoke with his son, the 

Respondent. 

19. The passengers overheard Respondent tell his father that the UPV SHARK was 65 

miles off shme when, in fact, the vessel was approximately five (5) to seven (7) miles 
UZi23/2UU7 15:52 i:iiY i139183372 ALJ BOOSTO.?: 

offshore. The shore was easily visible to the passengers and their phones worked. 

Usually after 12 miles or more from shore, the cell phones do not operate. 

20. Gus Loyal decided to refund the passengers' money for the charter and asked his son, 

the Respondent, to return the vessel to port. Respondent did not comply with this 

request. 

21. During another telephone conversation, upon the passengers' request, owner Gus Loyal 

asked seaman Mr. Weller to return the vessel to port even though he was fully aware 

that M. Wetler does not hold any Coast Guard license and he was not qualified to 

navigate and operate the UPV SHARK. 

22. Respondent refused to relinquish control of the vessel to Mr. Weller. 

23. The passengers became concerned about their safety and about what might happen if 

they proceeded further out to sea. Consequently, as a precautionary measure, the 

passengers called the Coast Guard via cellular telephone. 

24. When the passengers received the local Coast Guard's telephone answering machine, 

they called 91 1 and the attendant placed them in direct contact with the U.S. Coast 

Guard. 

25. Petty Officer (PO) Glenn Janzer of the United States Coast Guard received the call on 

Saturday, January 13,2007 around 11:OO am, and organized a boarding team of about 4 

U.S. Coast Guard personnel to go out to the UPV SHARK. 

26. The passengers notified Respondent that the Coast Guard was on its way. 

27. Upon being notifiedthat the Coast Guard was on its way, Respondent agreed to return 

the UPV SHARK to port. 

28. Respondent then ordered his mateldeckhand, Mr. Weller, to puli up the anchor when, in 

fact, the anchor had not been dropped. 

29. Respondent also asked Mr. Weller how many fish were in the vessel's box, which is 

unusual because the only thing they had in the box was bait because they had not gone 

fishing. 

30. Without warning, on two sepantle occasions, Respondent threw the vessels controls 

into full throttle or speed almost causing two passengers to fall off the vessel into the 

water. 

3 1. One passenger, who had a tracheotomy, grabbed a life jacket. ' 

A "tracheotomy" is a surgical proccdwe performed on a buman being's neck tn open a direct ainvay through an 

incision in the throat and bachea (the windpipe). S=e htDD://cn.wikipediaore/wiMTracbeoromy (downloaded on 

U1312O07) 
32. The passengers eventually managed to push Respondent out of the way, take control of 

the vessel, and take the keys out of the ignition while Mr. Weller placed the vessel's 

electronics ofnine. 

33. The passengers provided via cell phones the Coast Guard with the position and 

coordinates of the UPV SHARKL 

34. Respondent retired to the head or bathroom in the lower cabin. 

35. Upon Respondent's request, Mr. Weller retrieved Respondent's blue bag (re: contents 

in exhibits) and gave it to Respondent in the lower cabin where the vessel's head or 

bathroom was located. 

36. Respondent then remained down in the lower cabin's head or bathroom until the Coast 

Guard anived. 

37. Sometime between 11:30 A.M. and 12:OO noon on Saturday, January 13,2007, the 

Coast Guard boarding team boarded the UPV SHARK. 

38. The Coast Guard performed a routine vessel inspection 

39. During the investigation, PO Janzer leamed that Respondent claimed he was Yeeling 

under the weather," he suffered hm a previous injury from an accident not related to 

this case, and he was taking pain medication. 

40. An alcohol field sobriety test was performed. Respondent successfully passed the 

sobriety test. 

41. About ten (10) to fifteen (15) minutes after the Coast Guard's arrival. Res~ondent's 

father, Gus Loyal, arrived &d the Coast Guard permitted him to board anh take control 

of the WV SHARK, 

42. Respondent was taken aboard the Coast Guard's vessel, and the Coast Guard followed 

closely behind the UPV SHARK as it approached Marina Jacks in Sarasota, Florida 

where the Coast Guard's investigation continued. (CG Ex. 3 md 4). 

43. Coast Guard Investigating Oficer, Lt. Robert S. Buds interviewed Respondent and 

directed him to submit to required chemical testing for dangerous drugs (drug test). 

Ed.). 

44. Respondent agreed to submit to drug testing and went to the WV SHARK to retrieve 

his blue bag and its many contents from the lower cabin. (CG Ex. 4). 

45. Lt. Robert S. Butts observed Respondent take something out of Respondent's blue bag 

and place it in his front left pants pocket. (CGEK. 3 and 4). Investigating Officer Butts 

requested a body search of Respondent. 
46. Respondent then consented to a body search before being transported to the drug testing 

facility. 

47. The Sarasota, Florida Police Department assisted the Coast Guard in the investigation 

and while searching Respondent located a syringe and a bottle cap containing a small 

piece of white material enclosed in a cellophane bag in Respondent's fiont left pants 

pocket. (CG Ex 3, 4, and 5C). 

48. Respondent disputes that the bottle cap contained cocaine. (See CG B. 3 (stating that 

Respondent admined rhat the bortie cap contained cocaine); & Transcript of 

Telephonic Prehearina Conference Schedulina Order daredJan. 19,2007 (Jan. 19, 

ZOO? reheari in^ ~eleihon; Confrence Tr,), 2 25 (denying that the bottle'cap 

containedcocaine); Respondent's Brief on Availability ofSWEENEY Cure (Resp 

Bried dated Feb. 5, 2007, at I (denying the misconduct allegation bared on 

Respondent's possession of cocaine). 

49. At the January 19,2007 preheating telephone confaence, Respondent stated that the 

bottle cap contained "spit" out of his mouth, and his "spit" might have contained 

residual cocaine from his prior use or from rubbing cocaine on his gums but 

Respondent denied possessing any cocaine in the bottle cap. (Jrm. 19,2007 Preheuring 

Telephone Conference Tr. at 24-25). 

50. Police Officer Todd Tschetter of the Sarasota Police Department who formerly handled 

drug sniffing dogs, testified that a field test was performed on the white material that 

was found in the bottle cap, and the white material tested positive for cocaine. (CG &. 

3 and 4). As a result, the Sarasota Police Department arrested Respondent and charged 

him criminally with possession of cocaine and drug paraphernalia. @.). The 

possession of cocaine criminal charge was subsequently dropped by the Sarasota Police 

Department because the cellophane bag containing the bottle cap and cocaine was 

inadvertently discarded after being in the Sarasota, Florida Police Department's 

possession as their exhibits. 

51. Respondent also authorized the police and the Coast Guard to search his blue carrying 

bag. (CGEX. 4). 

52. Respondent's blue carrying bag contained among other things, a syringe, a prescription 

bottle, an Advil bottle, an Everglades Seasoning container that was duct taped on both 

ends, and a clear Ziploc bag that contained several pills that were later identified as 

oxycodone, hydrodone, and one other prescription medication. (CG Ex. 4 and 54. 

53. The following items were found in the Everglades Seasoning container: 1) a pair of 

tweezers; 2) a Crest bottle Nled with liquid; 3) a white water bottle filled with liquid; 

4) a metal container fiUed with liquid, and 5) a syringe stmounded by a paper towel 

liner. (CG Er. SF and5G). Respondent admitted to using a syringe to help inject 

himself with cocaine about midnight, Friday, February 12,2007. 

54. Before being arrested, Respondent provided a urine sample for drug testing on 

Saturday, January 13,2007. (CG Elr. 3 and 4). This drug test by a certified laboratory 
and a Medical Review Officer showed a high positive for cocaine use by Respondent 

within three days prior to Respondent giving his urine sample for drug testing on 

Saturday, January 13,2007. 

55. During the prehearing telephone conference conducted on January 19,2007 in this 

expedited administrative proceeding, Respondent admitted to using cocaine late Friday 

night about midnight on the 12& of January 2007. (Jrm. 19, 2007 Prehearing 

Telephone Coqerence Tr. at 3-5, 7). Respondent further admitted that he could still 

feel the effects of the cocaine on the morning of Saturday, January 13,2007 when he 

assumed command of the passenger fishing vessel UPV SHARK. &I. at 7). 

56. Respondent is currently enrolled in a bona fide substance and drug abuse treatment 

program. (Resp 2 Es. 1 and 2). Respondent enrolled following the incidents of January 

12- 13,2007. 

ULTIMATE FINDINGS OF FACT AND CONCLUSIONS OF LAW 

1. Respondent Aldo R Loyal and the subject matter of this proceeding fall witbin the 

jurisdiction vested in the Coast Guard under 46 U.S.C. 7702(d). 

2. The Coast Guard proved by a preponderance of reliable, probative, substantial and 

credible evidence that on Saturday, January 13,2007, Respondent was a merchant 

mariner license holder performing in a safety sensitive function while acting under the 

authority of tbat license by serving as a the only licensed master on board the UPV 

SHARK; and there is probable cause to believe that Respondent performed those safety 

sensitive function in violation of law or regulation regdig the use of alcohol or 

dangerous drugs. 

3. The Coast Gwd's use of dangerous drugs allegation is proved based on Respondent's 

admission of use of cocaine. A~~eal Decision 2559 CNEILSEN). 

4. The Coast Gwd's misconduct allegation based on Respondent's wrongful possession 

of a dangerous drug (to wit cocaine) and paraphemalia is proved by a preponderance of 

the evidence. 

5. The mere fact that the Sarasota Police Department dropped the criminal drug 

possession charge because the evidence supporting the charge was inadvertently 

discarded does not vitiate the Coast Guard's misconduct allegation. See ~enerally 

A~wal Decision 2331 CELLIOTD (1983). 

6. The Coast Guard's negligence allegation is proved by a preponderance of the evidence. 

7. Under 46 CFR 5.59(a), the only appropriate sanction is revocation. 
-. -. .- . I J.<O~U.)J~L ALJ tlUl!SrON @011,'.022 

i 

DISCUSSION 

In these proceedings, the burden of proof is on the Coast Guard to prove the allegations 

contained in the complaint by a preponderance of the evidence. &g 33 CFR 20.702(a); 5 U.S.C. 

556(d); An~eal Decision 2573 (JONES) (1996) (citing Steadman v. Securities Exch Comm'n, 

450 U.S. 91 (1981)). The term "preponderance of the evidence" is synonymous with substantial 

evidence. Appeal Decision 247ffT0IvlBARQ (1988). ~reponder&ce of the evidence is the 

standard of proof enunciated in the U.S. Administrative Procedure Act ("MA"), 5 U.S.C. 551- 

59. It is the standard of proof which governs Coast Guard suspension and revocation trial-type 

hearings and proceedings. 46 U.S.C. 7702(a) (adopting the APA for Coast Guard 

suspension and revocation hearings). 

Under the MA, sanctions may only be imposed if upon consideration of the record as a 

whole the allegations are supported by ''reliable, probative, and substantial evidence." 5 U,S.C. 

556(d). This simply reqnires the Coast Guard to establish to the trier of fact "that the existence 

of a fact is more probable than its nonexistence . . . " Concrete Pioe and Products of California, 

Inc. v. Comiruction Laborers Pension Trust for Southern California, 508 U.S. 602,622 (1993) 

(citing In re Wil~hi~, 397 U.S. 358,371-372 (1970). (Harlan. J.. concurrina) &rackets in 

original>. In doing so, the Coast ~uard may ;ely on dither dire& or circum-&&itid evidence, or 

both. &e Simkins v. R.L. Monison & Sons, 107 F.2d 121, 122 (5" Cir. 1939) (holding that, in 

the absence of proof to the contrary, the circumstances show that the fire onboard the tug 

SALLE was the result of respondent's negligence); United States v. Bethlehem Steel Co., 302 F. 

Supp. 600,604 (D. Md. 1969)(ruling that "the government's case may bc proved by 

circumstantial as well as &it evidence"); pe6ens Shivvards. Inc. v.-~&e ~ndus., Inc., 234 F. 

Supp. 41 1,414 (D.C. SC 1964) (finding that the tug captain was negligent even though there was 

no direct evidence). 

In its brief dated February 1, 2007, the Coast Guard clarifies that the complaint fiicd on 

January 16,2007 is not exclusive to a use of a dangerous drug allegation. The Coast Guard 

alleges that Respondent committed three separate offenses: 1) Use of Dangerous Drugs; 2) 

Negligence; and 3) Misconduct. First, the Coast Guard alleges that while acting under the 

authority of his license by sewing as the only licensed Master aboard the UPV SHARK on 

January 13,2007, Respondent used a dangerous drug, cocaine,in violation of law and Federal 

regulation. Second, the Coast Guard alleges Respondent was negligent when he operated the 

UPV SHARK on January 13,2007 under the influence of a dangerous drug and he endangered 

the lives, Sibs and properties of others. Third, the Coast Guard alleges Respondent committed 

misconduct by possessimg a dangerous drug and drug paraphernalia on January 13,2007. After 

review of the facts and applicable law, all three allegations are found proved by the Coast - 

Guard Investigating Officers. 

I. Jurisdictional Aile~ations are Proved 

The Coast Guard is authorized under 46 U.S.C. 7702(d) to take possession and 

temporarily suspend a merchant mariner's credentials under certain circumstances. Section 

7702(d) provides in pertinent part as follows: 
(d)(l) The Secretary may temporarily, for not more than 45 days, suspend and 

take possession of the license, certificate of registry, or merchant mariner's 

document held by an individual if-- 

(A) that individual performs a safety sensitive function on a vessel, as determined 

by the Secretary; and 

(B) there is probable cause to believe that the individual-- 

(i) has, while acting under the authority of that license, certificate, or documenr, 

performed the safety sensitive function in violation of law or Federal regulation 

regarding use of alcohol or a dangerous drug . . . 

- See 46 U.S.C. 7702(d)(1). 

To prevail on the jurisdictional allegations, the Coast Guard must show: 1) Respondent 

possesses or holds Coast Guard issued credentials; 2) Respondent performs a safety sensitive 

function on a vessel; and 3) there is probable cause to believe that Respondent has, while acting 

under the authority of his Coast Ouard issued credentials, performed a safety sensitive function 

in violation of law or Federal regulation regarding use of alcohol or a dangerous drug. 

In this case, there is no dispute that Respondent holds a Coast Guard issued merchant 

mariner license that was issued by the Coast Guard on April 19,2002. (Cod Guard Exhibit 

(CG I&.) 1). There is also no dispute that, on Saturday, January 13,2007, Respondent was 

serving as the only licensed master or captain on board the UPV SHARK. (Entire 

Administrafive Record). The Commandant has long recognized the captain or master as the 

primary individual responsible for the safety of the vessel, its crew, and its passengers. &s 

Auueal Decision 2098 (CORDISH) (1977): ADD& Decision 976 WILLIAMS) (1957). 

Therefore, serving as a captain or master on board such a vessel is deemed and found to be a 

safety sensitive function. Consequently, the first and second elements of the jurisdictional 

allegations are found proved. 

The Coast Guard Investigating Officers have also proved and established by a 

preponderance of reliable, probative, substantial and credible evidence that, on January 13,2007, 

probable cause existed to believe that Respondent, while acting under the authority of his license, 

performed a safety sensitive fuaction by serviG as the only master on board the UPV SHARK in 

violation of law or Federal regulation regarding use of alwhol or a dangerous drug. A mariner is 

deemed to be "acting under the authority of his license" when the holding of such a license is 

required by law or as a condition of employment. 46 CFR 5.57(a). The UPV SHARK is a 

foq-one (41) foot uninspected six (6) passenger vessel, which is required under 46 U.S.C. 

8301(a)(l) to have a licensed master on board when navigating or operating on navigable waters. 

(CG Ex. 2 and 5A). There were a total of eight (8) people aboard on the date in question and 

more vessels and people nearby. 

The record evidence shows that the Coast Guard had probable cause to believe that 

Respondent was operating the UPV SHARK on January 13,2007 while impaired by alcohol or a 

dangerous drug. PO Janzer of the Coast Guard testified that a boarding team was organized after 

he received an emergency telephone call from passengers on the UPV SHARK who thought 

Respondent was operating the vessel under the influence of alcohol or a dangerous drug. 
Accordingly, the Coast Guard has established the jurisdictional allegations by a preponderance 

of reliable, probative, substantial and credible evidence. 

II. The Use of Dangerous Dm Alleeation is Proved bv Rescandent's Admission 

Now tuning to the Use of Dangerous Drug allegation, Congress enacted 46 U.S.C. 

Y704(c) wit. the express intent of removing those individuals using a dangerous drug from 

service on board United States vessels. House Rep. 338,98& Cong., 1" Sess. 177 (1983); 

-- see also A~ueal Decision 2634 IBARRETTA] (2002). Under 46 U.S.C. 7704(c), revocation of a 

merchant mariner's license is required when it is proved at a trial-type hearing before aU.S. 

Administrative Law Judge that the merchant mariner is a user of, or addicted to, a dangerous 

drug such as cocaine unless the mariner provides satisfactory pof of cure. A "dangerous drug" 

is "anarcotic drug, a controlled substance, or a controlled-substance analog (as defined in section 

102 of the Comprehensive Drug Abuse and Control Act of 1970 (21 U.S.C. 802))." & 46 CFR 

16.105. By definition, cocaine is recognized as a "dangerous drug". &a; 21 U.S.C. 802(17). 

L)uring the prehearing telephone conference conducted on January 19,2007, Respondent 

admitted that he used cocaine between late Fri&v night and midnight Fridav on the 12& of 

January 2007. (Jan. 19, 2007 Prehearing ~ele~ephone~~onference 6. at 3-5,-7). Respondent not 

only admitted that he used cocaine urior to assuminn command of the UPV SHARK around 7:00 

A.M. on Saturday, January 13,2005, but he also described the manner in which the cocaine was 

injected by Respondent into his body. (Lp). 

Here, Respondent's admission is sufficient to support a finding that an allegation is 

proved. &g Auueal Decision 2559 MILSEN) (1995). Respondent's admission also obviates 

the need for the Coast Guard to otherwise prove or establish a prima facie case, and constitutes a 

waiver of all non- jurisdictional defects and defenses. generallv Awed Decision 2376 

PRANK1 (1985) (holding that a guilty plea obviates the requirement for otherwise establishing a 

prima facie case); Au~eal Decision 2385 (CAN) (1985). 

111. The Nedinence Allegation is Proved bva Prewnderance of the Evidence 

The Coast Guard's allegation of Negligence is also proved. In these proceedings, 

Negligence is defined as '"the commission of an act which a reasonable and prudent person of the 

same station, under the same circumstances, would not commit, or the failure to perform an act 

which a reasonable and prudent person of the same station, under the same circumstances, would 

not fail to perform." 46 CFR 5.29. Consequently, the breach of the standard of care alone 

constitutes Negligence. & Apoeal Decision 2395 KAMBERT) (1985). Contrary to the 

argument of Respondent's counsel actual damage or injury is not a ~eqnired element to be 

proved by the Coast Guard in these proceedings. Id. Likewise, causation is also not arequired 

element of negligence that the Coast Guard must prove in order to prevail. Id. To prevail, the 

Coast Guard need only show duty and breach of duty on the part of the respondent. See 

generallv ADD^?^ Decision 2599 (GUEST) (1998). 
As previously indicated a captain or a master on board and in charge of a vessel has a 

duty to ensure the safety of the vessel, its crew, and its passengers. &g Ao~eai Decision 2098 

(CORDISHI; Aaped Decision 976 (WILLIAMS). Operating a vessel under the influence of a 

dangerous drug (i.e., cocaine) constitutes a breach of the master's duty of care. generally 

 ADD^^ Decision 2098 (CORDISQ. A mariner is deemed to be operating 'fmder thz influence 

of a dangerous drug" when the individual is owrating any vessel and the effffit of the 

intoxicant(s) consumed by the individual on the person's manner, disposition, speech, muscular 

movement, general appearance or behavior is apparent by obsenation. 33 CFR 95.020(c). 

During the prehearing telephone conference conducted on January 19,2007, Respondent 

admitted that he could still feel the effects of the cocaine on the morning of Saturday, January 

13,2007 when he assumed command and control of the UPV SHARK. (Jan 19, 2007 

Preheuring Telephone Conference Tr, at 7). Further, at the trial-type evidentiary hearing held on 

February 8,2007, the witnesses all testified that, on January 13,2007, Respondent kept nodding 

off to sleep bebind the steering wheel and controls of the vessel, Respondent was non-responsive 

and, when he did speak, Respondent's speech was slurred. The witnesses also testified that 

Respondent did not know his vessel's location. This point is evidenced by the fact that the 

witnesses overheard Respondent tell his father, Gus Loyal, that the vessel was 65 miles offshore 

when, in fact, the vessel was only 5 to 7 miles offshore. This point is fuaher evidenced by the 

fact that Respondent thought the anchor had been dropped and he had taken the passengers 

fishing, when in fact the anchor had not been dropped and, except for only bait fishing in Tampa 

Bay, the passengers had not been taken deep sea fishing. These facts, viewed in totality, clearly 

prove and establish that Respondent operated the UPV SHARK under the influence of a 

dangerous drug on January 13,2007. Thus, the Coast Guard has proved Respondent's 

Negligence by a preponderance of reliable, probative, substantial and credible evidence. 

IV. The Misconduct Allegation was Proved bv a Pre~onderance of Reliable. Probative, 

Substantial and Credible Evidence 

Misconduct is defined in 46 CFR 5.27 as "human behavior which violates some formal, 

duly established rule." Such rules are found in. amoncr other olaces. statutes. renulations, the 

common law, the general maritime law, a shipfa regulkon or-order, or shipp~&gularticles Ad 

similar sources. 46 CFR 5.27. The Misconduct of which Respondent is charged in this case 

stems i7om his alleged wrongful possession of a dangerous drug p, cocaine) and drug 

paraphernalia in violation of Florida Statute 893.13 and 893.147. 

The record evidence clearly establishes Respondent possessed drug paraphernalia, 

including several syringes, in violation of Florida law. (CG Ex. 3, 4, 5 C, SF and SG). The 

ultimate question is whether the Coast Guard proved by a preponderance of the evidence that 

Respondent wrongfully possessed cocaine. 

J Florida Statute 893.13 makes it unlawful for any person to possess, with the intmt to sell, a dangerous drug. An4 

Florida Statute 893.147 makes it unlawful for any penon to possess. with the intcnt to use, drug such 

as Respondent Posscsscd in his pan& andlor his bluc canvine - bae ". (see exhibits and colored ~ho~oera~hs in 

evidence) of th;; drug paraphernalia and syringe. ~e~okent admitted using a syringe to injest e&&e into his 

hand. 
Respondent disputes that the boffle cap contained cocaine. (Jan. I9, 2007Prehearing 

Telephone Conference Tr. at 25 (denying that the bottle cap contained cocaine); Rep. Brief at J 

(denying the misconduct allegation based on Respondent's possession of cocaine). At the 

January 19,2007 prehearing telephone conference, Respondent stated that the bottle cap 

contained "spit" from his mouth. (Jan. 19, 2007 Preheming Telephone Conference Tr, at 24- 

25). 

At the trial-type hearing conducted on February 8,2007, Police Officer Tschetter of the 

Sarasota, Florida Police Department testified that a field test was performed on the white 

material that was found in the bottle cap, and the white material tested positive for cocaine. (CG 

Ex. 3 and4). A field test is sufEcient to support a finding that the white material at issue in this 

case was cocaine. &g Auueal Decision 2525 (ADAMS) (1991). The simple fact the white 

material was inadvertently lost/discarded and the Sarasota, Florida Police Department dropped 

the criminal possession of cocaine charge do not give rise to a finding that the miswnduct 

allegation of this trial-type hearing is not proved. The amount or quantum of proof required in a 

criminal case is much higher and differs markedly from the amount or quantum of proof required 

in an administrative trial-type proceeding or hearing. A~~eal Decision 2254 (YOUNG) 

(1981); Apoeal Decision 2493 (KAAUA) (1989) (holding that proof beyond a 

reasonable doubt is not the standard to be applied in these administrative proceedings); 

Decision 2346 (WILLIAMS). The preponderance of the evidence is the standard of proof that 

must be met by the Coast Guard Investigating Officers in these trial-type hearings before U.S. 

Administrative Law Judges. 

Respondent's stated that the bottle cap contained "spit" &om his mouth and the "spit" 

might have contained residual amounts of cocaine. (Jan. 19, 2007 Prehearing Telephone 

Conference Tr. at24-23). This is especially true given the fact that Respondent possessed drug 

paraphernalia and, he admitted to using cocaine a mere 7 to 8 hours before assuming command 

of the UPV SHARK on January 13,2007. Accordingly, the Misconduct allegation is proved by 

the Coast Guard by a preponderance of reliable, probative, substantial and credible evidence. 

SANCTION 

The main purpose of suspension and revocation proceedings is to protect lives and 

property against actual and potential dangers and not to assess blame for casualties. 46 U.S.C. 

7701(a). The selection of an appropriate order is exclusively within the purview of the judge. 46 

CFR 5.569(a). Since this case involves wrond use and oossession of daneerous drugs. - the 7 

Coast Guard~orrectly points out that 46 CFR-5.59 is appli^cable. &g genen&v ~~oeal Decision 

2518 (HENNARD1 - -- (1991). Section 5.59 lists the offenses for which revocation of licenses. 

certificates of documents &e mandatory. &g 46 CFR 5.59. These offenses include "misconduct 

for wrongful possession, use, sale, or association with dangerous drugs." 46 CFR 5.59(a). This 

regulation also provides for revocation where "[tlhe respondent has been a user of, or addicted to 

the use of, a dangerous drug." 46 CFR 5.59@).- 

Where, as here, an allegation of misconduct based on possession of dangerous drugs is 

found proved, the judge is required to issue an order of revocation unless the dangerous drug is 

marijuana and the judge is satisfied that the possession was a result of experimentation by the 
respondent and the respondent has submitted satisfactory evidence of cure. 46 CFIZ 5.59(a); 

 ADD^ Decision 2476 (BLAKE) (1988); Apueal Decision 2471 (BARTLETT) (1988); ApDeal 

Decision 2121 (GIBBLE1(1978). la Ameal Decision 2535 (SWEENEY) (1992), the 

Commandant held that a mariner could establish proof of cure by showing that he had 

successNly completed a drug abuse rehabilitation program and that he had not had any 

associations with drugs for at least one year as evidenced by successN participation in an active 

drug abuse monitoring program which incorporates random, unannounced drug testing during 

that year. The Commandant has also held where a Respondent demonstrates "substantial 

involvement in the cure process by proof of enrollment in an accepted [drug] rehabilitation 

program," a judge may stay the revocation and continue the hewing. Avd Decision 2634 

BARRETTA) (2002); see also Commandant Review Decision 18 (CLAY). 

In this case, the Coast Guard proved that Respondent used and possessed cocaine, not 

marijuana. Therefore, the undersigned has no choice but to revoke under 46 CFR 5.59(a). 

While revocation is a severe order, it is not necessarily permanent. The undersigned 

judge recognizes that Respondent has taken appropriate early steps by enrolling in a bona fide 

drug rehabilitation program. (Resp. Ex. I and 2). Consequently, Respondent's attention is 

directed to 33 CFR 20.904(f), which allows a respondent, within three (3) years or less after his 

Coast Guard issued mariner license or document is revoked, to file a written motion to reopen 

this matter and seek modification of the order of revocation upon a showing that the order of 

revocation is no longer applicable and the issuance of a new license, certificate, or document is 

compatible with the requirement of good discipline and safety of lives and properties at sea. In 

cases involving wrongful use andlor possession of dangerous drugs, the revocation order may be 

modified upon a showing that the individual or Respondent: 

(1) Has successfully completed a bona fide drug abuse rehabilitation program; 

(2) Has demonstrated complete non-association with dangerous drugs for a minimum of 

one year following completion of a drug rehabilitation program and; 

(3) Is actively participating in a bona fide drug abuse monitoring or testing prom. 

- See generally 46 CFR 5.901. The drug abuse monitoring program must include random, 

unannounced testing during that year. A~~eal Decision 2535 (SWEENEY).~ 

WHEREFORE, 

6 After bee years, Respondent may apply dinctiy to the U.S. Coast Guard in Washington, DC, U.S. Coast Guard 

Headquarters, for issuance of a new license. -46 CFR 5.901 to 5.905, Subpart L. 
ORDER 

IT IS HEREBY ORDEIUCD that the Merchant Mariner's License issued to Respondent 

Aldo R. Loyal is REVOKED. 

PLEASE TAKE NOTICE that, within three (3) years or less, Mr. Loyal may file a 

motion to reopen this matter and seek modification of the order of revocation upon a showing 

that the order of revocation is no longer applicable and the issuance of a new license, certificate, 

or document is compatible with the requirement of good discipline and safety at sea The 

revocation order may be modified upon a showing that the individual: 

(1) Has successfully completed a bona fide drug abuse rehabilitation program; 

(2) Has demomtrated complete non-association with dangerous drugs for a minimum of 

one year following completion of the drug rehabilitation program; and 

(3) Is actively participating in a bona fide drug abuse monitoring and testing program. 

See generally 46 CFR 5.901. The drug abuse monitoling program must incorporate 

randomGannounced testing during that year. Apd Decision 2535 (SWENEW 

PLEASE TAKE FURTfIER NOTICE that the service of this Decision and Order on 

the Respondent's counsel serves as notice to the Respondent of his right to appeal, the 

procedures for which are set forth in 33 CFR 20.1001 through 20.1003. 

Done and dated February 23,2007 

Houston, Texas 

Thomas E.P. McElligott 

Administrative Law Judge 
-. , . I. IIJJ~~JJIL ALJ HOliSTO'L; @a18/or:! 

> . .. 

i 

j 

I 

ATTACHMENT A 

WITNESS AND EXHIBIT LISTS 

WITNESS LIST 

COAST GUARD'S WITNESSES 

1. Giustino (Gus) Loyal -Respondent's father, employer & owner of vessel FV SHARK 

2. Petty Officer Glenn Janzer, - USCG 

3. Thomas (Tom) Ryan Weller - mate aboard FV SHARK 

4. Joseph Walter Capstick - passenger 

5. John Thomas (Tom) Bums - passenger 

6. Howell Junior Edwards - passenger 

7. Police Officer Todd Tshetter - Sarasota, FL, Police Dept, formerly drug sniffing dog 

handler 

RESPONDENT'S WITNESSES 

1. Elizabeth "Betty" Dominic - Drug counselor for Respondent ALDO R LOYAL 

EXHIBIT LIST 

COAST GUARD'S EXHIBITS 

I0 Ex. 1 Merchant Mariner License issued to Aldo R Loyal, Respondent,by USCG 

I0 Ex. 2 Vessel Critical Profile for the UPV SHARK, passenger fishing vessel 

I0 Ex. 3 Sarasota County, FL Probable Cause Affidavit 

I0 Ex. 4 Sarasota, FL Police Department Incident Report 

10 Ex. 5A Color Photo of the UPV Shark, passenger fishing vessel 

I0 Ex. 5B Color Photo of Contents of Aldo R. Loyal's Blue traveling Bag - taken by 

Sarasota, FL Police 
,__ A-., *UVY I L ALJ HUU*lUh 

I0 Ex. 5C Color Photo of Syringes and Cellophane Bag fo~md in Respondent's possession 

I0 Ex. 5D Color Photo of Aldo R. Loyal's Blue Traveling Bag 

10 Ex. 5E Color Photo of Contents of Aldo R. Loyal's Blue Traveling Bag 

10 Ex. 5F Color Photo of Contents ofthe Everglade Seasoning Bottle 

10 Ex. 5G Color Photo of the Crest Bottle and White Bottle 

RESPONDENT'S EXHIBITS 

Resp't Ex. 1 Substance Abuse Pattioipation Plan 

Resp't Ex. 2 Verification of Enrollment in Coastal Behavioral Healthcare, Inc. Drug Treatment 

Program by Respondent Aldo R. Loyal after January 13,2007. 
- . , . . I ..IJSO~~,L ALJ HOLISTOK 

NOTICE OF APPEAL RIGHTS 

33 CFR 20.1001 General. 

(a) Any party may appeal the ALYs 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 issuaace 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 bis or her discretion. 

(4) The ALPS 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 ding 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 spec& objections to the 

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

(i) Basis forth e 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 &J's decision. Unless filed within this time, or withln 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 filimg 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 Ne 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 shaU review the record on appeal to determine whether the ACJ 

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. 

@) 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.