UNITED STATES OF AMERICA

U.S. DEPARTMENT OF HOMELAND SECURITY

UNITED STATES COAST GUARD

_________________________________

UNITED STATES COAST GUARD

Complainant

vs.

EVERARDO GARCIA, JR.

Respondent

_________________________________

Docket Number 2010-0264

Enforcement Activity No. 3762979

DECISION AND ORDER

Issued: October 14, 2011

By Administrative Law Judge: Honorable Dean C. Metry

Appearances:

LT Nephtwim Rosario and

CPO Patricia A. Murphy

Sector Corpus Christi

For the Coast Guard

Alejandro Dominguez, Esq.

For the Respondent
PRELIMINARY STATEMENT

Pursuant to 46 U.S.C. § 7703(2), and its underlying regulations found at 33 C.F.R. Part 

20 and 46 C.F.R. Part 5, the United States Coast Guard (Coast Guard) initiated this 

administrative action seeking outright suspension of Everardo Garcia Jr.’s (Respondent) 

Merchant Mariner’s License (MML) for twelve (12) months.

The Coast Guard issued its Complaint on June 10, 2010, charging Respondent with a 

“Conviction that would preclude the issuance of MMC” in violation of 46 U.S.C. § 7703(2). 

Specifically, the Coast Guard alleges that on December 2, 2009, Respondent was convicted of 

Assault by the City of South Padre Municipal Court. In his Answer, Respondent denied the 

jurisdictional and factual allegations contained in the Complaint, and requested a hearing in the 

matter. 

Prior to the hearing, on November 10, 2010, the Coast Guard filed a Motion for Summary 

Decision, alleging that, on the basis of Respondent’s conviction and the fact that the Chief of the 

Safety and Suitability Evaluations Branch (SSEB) of the National Maritime Center (NMC) 

issued a Memorandum of Determination finding Respondent’s conviction and related sentence 

would prevent the issuance of a merchant mariner’s credential (MMC), no genuine issue of 

material fact existed. On December 17, 2010, Respondent filed an Objection to Motion for 

Summary Decision and Countermotion for Summary Decision alleging that the memorandum 

was intended more as “legal guidance,” and that the Coast Guard mischaracterized Respondent’s 

assault charge. On March 30, 2011, the undersigned issued an Order Granting Coast Guard’s 

Motion for Summary Decision - In Part, finding that while Respondent was convicted of an 

offense that would prevent the issuance or renewal of his MMC, Respondent was nonetheless 

entitled to a hearing on the issue of sanction. 

The parties and the undersigned conducted a hearing on August 4, 2011 in Harlingen, 

Texas. Lieutenant Nephtwim Rosario and Chief Patricia Murphy represented the Coast Guard. 
Alejandro Dominguez, Esquire, of Brownsville, Texas appeared on behalf of Respondent. The 

Coast Guard introduced seven (7) exhibits, six (6) of which were admitted into the record1. 

Respondent presented testimony on his own behalf, and introduced three (3) exhibits, all of 

which were admitted into the record. The witness and exhibit lists are contained in Attachment 

A. 

Having already found that the Coast Guard PROVED that Respondent’s conviction of 

Assault in violation of Texas Penal Code Section 22.01(a)(3) is an offense that would preclude 

the issuance of an MMC pursuant to 46 U.S.C. § 7703(2), the undersigned must now determine 

an appropriate sanction in the matter. 

FINDINGS OF FACT

1. At all relevant times mentioned herein, Respondent Everardo Garcia, Jr. was the 

holder of Coast Guard Merchant Mariner License Number 1191616. (See CG Ex. 

5).2

 

1 At the hearing, the Coast Guard sought to introduce evidence of a subsequent assault charge yet to be adjudicated. 

To this end, the Coast Guard offered CG Ex. 7, and elicited testimony from Respondent regarding the incident. (See

Tr. at 28-29, 75). At the hearing, the undersigned ultimately deferred ruling on the admissibility of both the exhibit 

and the line of questioning regarding the subsequent charge. (Tr. at 75-76). Upon review of the record and the 

applicable regulations, the undersigned finds that neither the exhibit nor the testimony regarding the incident should 

be considered for purposes of this proceeding. 

Pursuant to 33 C.F.R. § 20.802(a), the ALJ “may admit any relevant oral, documentary, or demonstrative evidence, 

unless privileged.” However, the ALJ “...may exclude evidence if its probative value is substantially outweighed 

by the danger of prejudice...”. 33 C.F.R. § 20.802(b). In the instant case, the undersigned finds that the danger of 

prejudice would substantially outweigh any probative value that the unproven assault charge may have. 

Notably, 33 C.F.R. § 20.1307 “Use of judgments of conviction,” refers specifically to “judgment[s] of conviction,” 

and does not discuss admissibility of pending charges. Further, 33 C.F.R. § 20.1315, “Submission of prior records 

and evidence in aggravation or mitigation” discusses the prior disciplinary record of a respondent, but is silent as to 

subsequent infractions. See 33 C.F.R. § 20.1315 (a). However, the section makes clear that a prior disciplinary 

record is comprised of, in part, “[a]ny final judgment of conviction in Federal or State Courts,” and does not include 

any pending charges against a respondent. 33 C.F.R. § 20.1315(a)(4). Accordingly, even if the undersigned were to 

consider Respondent’s subsequent disciplinary record, the subsequent assault charge should not be considered 

absent a final judgment. Notably, documents submitted post-hearing indicate that the Cameron County District 

Attorney’s Office has not yet reviewed the case to determine whether it will “...be dismissed or presented to the 

grand jury, reduced, etc.” 

2 Citations referencing the transcript are depicted as follows: (Tr. at __). Citations referring to Coast Guard Exhibits 

are depicted as follows: (CG Ex. __). Respondent’s Exhibits are depicted as follows: (Resp. Ex. __). 
2. Respondent works for Tex-Mex Tours at Osprey Fishing Trips, where he has worked 

for eleven (11) years and been a captain for nearly five (5) years. (Tr. at 23). 

3. Respondent has never had any safety incidents on his boat or complaints regarding 

his ability as a captain. (Tr. at 23). 

4. On November 26, 2009, Respondent made unwanted physical contact with a female 

acquaintance, touching her on her bottom. (See CG Ex. 6, Tr. at 21-22). 

5. Respondent characterized his relationship with the female victim as “flirtatious, 

maybe just friendly.” (Tr. at 19).

6. Respondent testified that he may have been misreading the victim’s friendliness, but 

acknowledged that he “made a mistake.” (Tr. at 26-27). 

7. At the time of the assault, Respondent had been drinking. (Tr. at 19).

8. Respondent testified that his drinking “might have” impaired his judgment at the time 

of the incident. (Tr. at 19). 

9. On December 2, 2009, Respondent pled guilty to assault and was assessed a $365.00 

fine for the November 26, 2009 incident. (See CG Ex. 3, CG Ex. 4). 

10. The NMC determined that Respondent was convicted of simple assault, and, as a 

result of this conviction, would not be issued an MMC for at least one year from the 

date of his conviction. (See CG Ex. 2). 

11. Prior to his December 2, 2009 conviction for Simple Assault, Respondent was 

charged with Public Intoxication on March 22, 2001 for which he pled “No Contest.” 

(CG Ex. 1). 

DISCUSSION

The purpose of Coast Guard Suspension and Revocation proceedings is to promote safety 

at sea. 46 U.S.C. § 7701(a). Title 46 C.F.R. § 5.19 gives Administrative Law Judges (ALJs) 

authority to suspend or revoke MMCs for violations arising under 46 U.S.C. § 7703. If an MMC 
holder is convicted of an offense that would prevent the issuance or renewal of an MMC, his or 

her MMC may be suspended or revoked. 46 U.S.C. § 7703(2). 

ULTIMATE FINDINGS OF FACT AND CONCLUSIONS OF LAW

1. Respondent and the subject matter of this hearing are properly within the jurisdiction 

vested in the Coast Guard under 46 U.S.C. § 7703(2); 46 C.F.R. Part 5; 33 C.F.R.

Part 20; and the Administrative Procedure Act codified at 5 U.S.C. 551-59. 

2. The Coast Guard PROVED and the undersigned has previously found by the 

preponderance of reliable, probative, and credible evidence that Assault in violation 

of Texas Penal Code Section 22.01(a)(3) is analogous to “Assault (simple)” which is 

listed under “Crimes Against Persons” in the 46 C.F.R. § 10.211(g) Table. 

3. “Assault (simple)” is an offense that would prevent the issue or renewal of a merchant 

mariner’s credential.

4. The Coast Guard PROVED and the undersigned has previously found by the 

preponderance of reliable, probative, and credible evidence that Respondent’s 

conviction of Assault in violation of Texas Penal Code Section 22.01(a)(3) is an 

offense that would prevent the issue or renewal of an MMC. 

SANCTION

The authority to impose sanctions at the conclusion of a case is exclusive to the ALJ. 

Appeal Decision 2362 (ARNOLD) (1984). Title 46 U.S.C. § 7703 allows suspension or 

revocation of a mariner’s credential for conviction of an offense that would prevent the issue or 

renewal of mariner’s credential. Title 46 C.F.R. § 5.567(a) provides for admonition, suspension 

with or without probation, or revocation. 

The table at 46 C.F.R. § 10.211(g) prescribes minimum and maximum assessment 

periods of one (1) year to five (5) years for convictions of Assault (simple). Although it is one of 

many factors that may be taken into consideration, the assessment period is not used exclusively 
by the ALJ to determine the sanction in suspension and revocation cases. As explained above, 

the NMC applies the assessment periods to determine whether and when to issue or renew 

merchant mariner’s credentials of applicants with criminal convictions. 

The Suggested Range of Appropriate Orders Table at 46 C.F.R. § 5.569 (Table) lists 

sanctions for offenses committed while a respondent was a holder of or acting under the 

authority of his or her merchant mariner’s credential. While the instant offense is not 

specifically enumerated in that Table, the listed offenses that resemble Respondent’s conduct can 

be used as a framework to fashion an appropriate sanction in this case. Notably, for “Violent 

acts against other persons (without injury)” the suggested range of outright suspension is 2-6 

months.

Coast Guard’s Position

At the hearing, the Coast Guard proffered that Respondent exhibited a “...pattern of 

behavior...inconsistent with that expected of a Coast Guard credentialed professional 

mariner...”. (Tr. at 6). The Coast Guard further noted that Respondent’s offense would have 

precluded him from being issued a merchant mariner credential, and carries with it a minimum 

assessment period of one (1) year, and a maximum assessment period of five (5) years. 

Respondent’s offense has already been found proven, and the proposed order of twelve (12) 

months outright suspension is “consistent with the intent of the regulations.” (Tr. at 78). 

Respondent’s Position

At the hearing, Respondent proffered that “...what he thought was a consensual 

encounter with a friend turned into a misunderstanding, which he understands was wrong, [has 

accepted responsibility for, but that in no way] indicates any kind of pattern...”. (Tr. at 11). 

Instead, Respondent asserted that he merely pled guilty to Class C assault, for which he received 

only a fine, and no jail time. (Tr. at 78). The crime for which he was convicted carries a 
maximum punishment of a $500.00 fine, no jail time, and is “[t]he same level of offense as 

driving without a seatbelt, or speeding.” (Tr. at 78-79, See Resp. Ex. B). 

After the close of the hearing, the record was left open for thirty (30) days. During this 

time, Respondent submitted a letter from R. S. Tyler, President/Owner of Tex-Mex Tours. The 

letter conveys that Respondent has been employed by Tex-Mex Tours for “many years...[during 

which] time he has been dependable and hard working.” 

DISCUSSION

As discussed, the authority to impose sanctions at the conclusion of a case is exclusive to 

the ALJ assigned to the matter. Appeal Decision 2362 (ARNOLD) (1984). Notably, while title 

46 U.S.C. § 7703 allows suspension or revocation of a mariner’s credential for conviction of an 

offense that would prevent the issue or renewal of mariner’s credential, it does not require it. 

Title 46 C.F.R. § 5.567(a) provides generally for admonition, suspension with or without 

probation, or revocation. 

Administrative actions against respondents’ credentials are “remedial and not penal in 

nature . . . [and] are intended to help maintain standards for competence and conduct essential to 

the promotion of safety at sea.” 46 C.F.R. § 5.5. In the instant case, the provision on which the 

Coast Guard largely relies, 46 C.F.R. § 10.211, refers to a criminal record review conducted 

prior to the issuance of a merchant mariner’s credential. 

In the instant case, Respondent has been acting under the authority of an issued merchant 

mariner’s license for many years. No evidence in the record suggests that Respondent’s personal 

transgressions have impacted his maritime skill. In fact, Respondent testified that he has been 

working at the same company for eleven (11) years, without any safety incidents, and the 

President and Owner of the company he works for substantiates this claim, calling Respondent a 

“dependable” employee. As such, while 46 C.F.R. § 10.211 assesses suitability for a maritime 

credential ante factum, in the instant case, the undersigned need not speculate as to Respondent’s 
suitability to hold an MMC; Respondent has been successfully employed in the maritime 

industry in excess of eleven (11) years without incident. 

The 46 C.F.R. § 5.569 (Table), which examines suitability for MMCs post factum, 

suggests outright suspension of 2-6 months for “Violent acts against other persons (without 

injury).” Notably, the table “...should not affect the fair and impartial adjudication of each case 

on its individual facts and merits.” 46 C.F.R. § 5.569(d). Further, “...where there are mitigating 

factors, the regulation contemplates that the sanction be less severe than that suggested in the 

table.” Appeal Decision 2628 (VILAS) (2002). However, the ALJ must articulate the reasoning 

behind departure from the guidelines. See Commandant v. Moore, NTSB Order No. EM-201 

(2005). 

While the allegations against Respondent in the City of South Padre Police Report are 

distasteful, the undersigned notes that Respondent ultimately pled guilty to a Class C 

misdemeanor for which the maximum punishment was $500.00 and jail time could not have 

been assessed. As a mitigating factor, the undersigned notes that Respondent credibly 

characterized the incident as a misunderstanding on his part, noting that he may have misread his 

relationship with the victim.3 Respondent was ultimately assessed only a fine of $365.00 for his 

crime. The undersigned also notes that there is no evidence in the record to suggest that 

Respondent has any prior Coast Guard disciplinary record. The record does not establish a 

“pattern of behavior” on part of Respondent; to the contrary, the evidence indicates Respondent 

has been a dependable employee at the same company for eleven (11) years. 

While the undersigned does not dispute that the crime for which Respondent was 

convicted is properly classified as simple assault, the undersigned, unlike the NMC, recognizes 

 

3 The undersigned notes that the victim’s version of events is contained in CG Ex. 6. However, the undersigned 

notes that CG Ex. 6 is comprised of hearsay evidence. While the undersigned may consider hearsay evidence, 

“...[t]he ALJ may consider the fact that evidence is hearsay when determining its probative value.” 33 C.F.R. § 

20.803. For the record, the undersigned does not consider the fact that Respondent may have been under the 

influence of alcohol to be a mitigating factor.
varying degrees of simple assault. Here, the evidence in the record does not support suspending 

Respondent’s License for twelve (12) months, particularly when the State of Texas allowed 

Respondent to plead guilty to a Class C Misdemeanor and found a $365.00 fine appropriate to 

settle the matter. 

While Respondent undoubtedly broke the law and acknowledged he made a mistake, 

upon consideration of the mitigating factors, the suggested sanction of twelve (12) months 

outright suspension is not warranted by the evidence in the record. Nevertheless, it is also clear 

to the undersigned that Respondent should be held accountable for his illegal actions, and needs 

to address issues related to his personal life.4 

WHEREFORE,

ORDER

IT IS HEREBY ORDERED that Respondent, Everardo Garcia Jr.’s Merchant Mariner’s 

License Number 1191616 is hereby SUSPENDED outright for a period of six (6) months. 

However, the suspension is STAYED pending successful completion of a twelve (12) month 

probation period. The conditions of the probation are as follows:

a. Comply with all Federal, State, local laws and statutes for a period of twelve (12) 

months following the issue date of this decision. Respondent is required to report all 

violations to the Coast Guard. If Respondent reports any such violation, the matter 

will be referred to the undersigned to determine if said offense constitutes a violation 

of probation. 

 

4 At the close of the hearing, Respondent acknowledged that he could benefit from Alcoholics Anonymous or family 

counseling. (Tr. at 80).
b. Within thirty (30) days of issuance of this Decision and Order, begin attending 

Alcoholic Anonymous (AA) meetings twice monthly, and continue attending said 

meetings for a minimum period of twenty-six (26) weeks. 

c. If the undersigned determines that Respondent has violated any of the terms of his 

probation period, his Merchant Mariner’s License will be suspended outright for a 

period of six (6) months.

PLEASE TAKE NOTICE that service of this Decision on the parties and/or parties’ 

representative(s) serves as notice of appeal rights set forth in 33 C.F.R. 20.1001 – 20.1004. 

(Attachment B).

__________________________________________________

Dean C. Metry

U.S. Coast Guard Administrative Law Judge

Date: 

October 14, 2011
ATTACHMENT A

Coast Guard’s Exhibits:

1. Town of South Padre Island Report of Violations

2. National Maritime Center Memorandum

3. Arraignment Sheet

4. State of Texas vs. Everardo Garcia Citation 33213A

5. Screenshot Showing Everardo Garcia’s Merchant Mariner’s License Information

6. South Padre Island Police Department Offense/Incident Report

Respondent’s Exhibits:

A. Affidavit By Everardo Garcia

B. Texas Penal Code 

C. Criminal Jurisdiction of Texas Courts

Respondent’s Witnesses:

1. Everardo Garcia
ATTACHMENT B

TITLE 33 - NAVIGATION AND NAVIGABLE WATERS 

CODE OF FEDERAL REGULATIONS 

PART 20 RULES OF PRACTICE, PROCEDURE, AND EVIDENCE FOR FORMAL 

ADMINISTRATIVE PROCEEDINGS OF THE COAST GUARD

SUBPART J - APPEALS

§ 20.1001 General. 

(a) Any party may appeal the ALJ's 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 issuance 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 his or her discretion. 

(4) The ALJ's 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.

 

§ 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. 

§ 20.1003 Procedures for appeal. 

(a) Each party appealing the ALJ's decision or ruling 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 specific objections to the 

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

(i) Basis for the 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 ALJ's decision. Unless filed within this time, or within 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 filing 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 file 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. 

§ 20.1004 Decisions on appeal. 

(a) The Commandant shall review the record on appeal to determine whether the ALJ 

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. 

(b) 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.