UNITED STATES OF AMERICA 

U.S. DEPARTMENT OF HOMELAND SECURITY 

UNITED STATES COAST GUARD 

UNITED STATES COAST GUARD 

Complainant 

vs. 

CLAYTON S. LORE, 

Respondent. 

Docket Number CG S&R 02-0402 

CG Case No. 1611457 

DECISION AND ORDER 

Issued: August 12, 2003 

Issued by: JOSEPH N. INGOLIA, Chief Administrative Law Judge 

APPEARANCES 

FOR THE COAST GUARD 

LCDR Mark Hammond 

LTJG Scott Baranowski 

U.S. Coast Guard Activities Baltimore 

2401 Hawkins Road 

Baltimore, Maryland, 21226 

FOR THE RESPONDENT 

Julian J. Izydore, Esq. 

Law Office of Dorsey & Associates 

22835 Washington Street 

PO Box 530 

Leonardtown, Maryland 20650 
I. PRELIMINARY STATEMENT 

The United States Coast Guard (Coast Guard) initiated this administrative 

proceeding1 seeking to revoke the Coast Guard issued License, Number 867246, issued to 

Clayton S. Lore (Respondent). This administrative action was brought pursuant to the 

legal authority contained in 46 USC Chapter 77, § 7703 (1)(B) and (2), the 

Administrative Procedure Act, 5 USC§§ 551-59; the Rules of Practice, Procedure, and 

Evidence for Formal Administrative Proceedings of the Coast Guard, 33 CPR Part 20, 

and Marine Investigation Regulations - Personnel Action, 46 CPR Part 5. 

On June 20, 2002, the Coast Guard filed a Complaint against the Respondent alleging 

two (2) Factual Allegations. The first Factual Allegation charged the Respondent under 

the statutory authority of 46 USC 7703 (1)(B) with Misconduct alleging that the 

Respondent: 

wrongfully falsified his (renewal) application for a merchant 

mariner's license by certifying (in Section VI) that he had not 

been convicted by any court for an offense other than a minor 

traffic violation after having plead (sic) guilty to second degree 

assault in Maryland District Court on January 9th of that same year. 

The second Factual Allegation charged the Respondent under the statutory 

authority of 46 USC 7703(2) with conviction of an offense that would prevent the 

issuance or renewal of a license, certificate of registry, or merchant mariner's 

document. The Coast Guard alleges that: 

(1) the Respondent was arrested on 6/14/98, 5/12/99, and 10/6/99 

for second degree assault, 

(2) that he pled guilty to the 6/14/98 arrest in which he violated the 

terms of probation and served ninety (90) days in jail, and 

(3) was "convicted of second degree assault in conjunction with each 

1 This proceeding was commenced when the Coast Guard was formerly in the Department Of 

Transportation. Pursuant to the savings provisions under HR 5005, the Coast Guard's authority remains 

unchanged with respect to its transition to the Department of Homeland Security. 

2 
ofthe 5/12/99 and 10/6/99 arrests and sentenced to two concurrent 

sentences of3 years in jail (all but 6 months suspended) with an 

additional 2 years probation." 

The Respondent did not file an Answer to the Coast Guard's Complaint until January 

24, 2003. In his Answer, the Respondent admitted to all Jurisdictional Allegations and 

denied all Factual Allegations stating, "he intends to contest all factual allegations set 

forth in the Complaint." On January 28, 2003, this matter was assigned to the 

undersigned Chief Judge. On January 31, 2003, a Scheduling Order was issued setting 

the hearing for May 6, 2003 at the U.S. Coast Guard Courtroom, U.S. Customs House, 40 

S. Gay Street, Baltimore, Maryland 21202. 

On May 6, 2003, the hearing convened, as scheduled, with the Coast Guard 

represented by LCDR Mark Hammond and LTJG Scott Baranowski. The Respondent 

was present and represented by his Attorney, Mr. Julian J. Izydore, Esq. At the beginning 

of the hearing the Respondent presented his Merchant Mariner's License and was advised 

of his legal rights, including notice that this hearing was an administrative proceeding 

directed only against his Coast Guard issued Merchant Mariner's License and was neither 

a criminal action involving imprisonment, nor a civil action involving fines. 

Prior to opening statements, the Investigating Officer (10) made a Motion to amend 

the Complaint for the Misconduct allegation requesting to change the January 9, 1999 

date to January 7, 1999. The Respondent did not object and the Motion was GRANTED. 

The hearing proceeded with the Investigating Officer calling one witness and introducing 

four (4) exhibits. All of the exhibits were admitted into evidence noting the 

Respondent's objections to the admission of Coast Guard Exhibits 2, 3 and 4 arguing that 

certain statements constituted hearsay and double-hearsay. The Respondent's objections 

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were overruled given that hearsay evidence is admissible in Coast Guard Suspension and 

Revocation proceedings (33 CFR 20.803) and that proper due weight would be given to 

the exhibits with respect to the case and record taken as a whole. The Respondent 

testified on his own behalf and did not introduce any exhibits into evidence. A list of 

witnesses and exhibits is provided in Attachment A. 

At the conclusion of the hearing, the record clearly demonstrated that the Coast 

Guard had met its burden of proof. The preponderance of reliable and credible evidence 

supported its charges in the Complaint. The record demonstrated that on April 9, 1999, 

the Respondent falsified his Merchant Mariner's License renewal application and that the 

Respondent had previously been criminally convicted by the District Court of St. Mary's 

County, Maryland for Second Degree Assault. Based on the record, the Respondent's 

Merchant Mariner's License, Number 867246 was REVOKED and deposited with the 

Coast Guard. The Respondent was given instructions that he could petition to reopen his 

case under 33 CFR 20.904 but in no circumstances in less than a one (1) year period of 

time. 

Following the conclusion of the hearing, the parties were afforded an opportunity 

to file Post Hearing Briefs due no later than the close ofbusiness on May 23, 2003. The 

Coast Guard 2 filed a Post-Hearing Brief. The Respondent did not file a Post-Hearing 

Brief. The transcript for this matter was ordered and received by the ALJ Docketing 

Center on June 5, 2003. 

On June 17, 2003, a Post-Hearing Telephone conference was convened with the 

Investigating Officer, LTJG Scott Baranowski and Mr. Shawn Moran, an attorney from 

2 The Coast Guard's Post Hearing Brief did not contain any enumerated proposed fmdings of fact or 

conclusions oflaw. 

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the Law Office of Dorsey and Associates, representing the Respondent. The purpose of 

the Post-Hearing Telephone conference was to allow the parties an opportunity to 

comment on whether or not the Coast Guard's Complaint was timely filed with respect to 

the time limitations under 46 CFR 5.55. 

The parties were provided a ten (10) day period of time to file additional briefs. 

On June 30, 2003, the Coast Guard filed its Second Post Hearing Brief and argued that 

the Misconduct allegation was not time barred under 46 CFR 5.55 due to the fact that the 

Respondent's ninety (90) day period of incarceration extending the applicable time 

limitation. The Respondent did not file a post hearing brief on this issue. 

II. FINDINGS OF FACT 

1. The Respondent, Clayton Slade Lore, is the holder of a United States Coast Guard 

issued License, Number 867246 issued on April 19, 2002 as "Master of Steam or 

Motor Vessels of not more than 50 gross tons upon inland waters, excepting 

waters subject to international regulations for preventing collisions at Sea, 1972." 

Res Merchant Mariner's License. 3 

2. The Respondent testified that he has been a fishing boat Captain since 1985, 

approximately eighteen (18) years. TR 52. 

3. On January 7, 1999, the Respondent pled "GUILTY" to the charge of ASSAULT 

-SEC DEGREE (Second Degree Assault) in the District Court of Maryland for 

Saint Mary's County. The Respondent was sentenced to ninety (90) days, with 

ninety (90) days suspended and unsupervised probation for 18 months. The 

Respondent was directed to pay criminal and court costs in the amount of fifty3 The following abbreviations are used in this Decision and Order: RES for Respondent, CG for Coast 

Guard, EX for Exhibit, FF for Findings of Fact, TR for Transcript. 

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five (55) dollars. The Respondent was given instructions as a condition of his 

probation to: "obey all laws", "pay court costs", and "complete anger 

management program at Walden Center." CG Ex 2, TR 53. 

4. On April8, 1999, the Respondent applied for renewal of his Merchant Mariner's 

License (Application for License as Officer, Staff Officer, Operator and Merchant 

Mariner's Document- CG Form 719B). On his renewal application, the 

Respondent initialed the block that corresponds to a "NO" response to the 

following question: 

Have you ever been convicted by any court - including military 

court- for an offense other than a minor traffic violation? 

(Conviction means found guilty by judgment or by plea and 

includes cases of deferred adjudication (nolo contendre, 

adjudication withheld, etc.) or where the court required you to 

attend classes, make contribution of time or money, receive 

treatment, submit to any manner of probation or supervision, or 

forgo appeal of a trial court finding. Expunged convictions must 

be reported unless the expungement was based upon a showing 

that the court's earlier conviction was in error. (If yes, attach 

statement). 

CG Ex 1. 

5. The Respondent admitted that he answered "NO" to the above question but 

testified that he doesn't know why he did so. CG EX 1, TR 53-54. 

6. On June 1, 1999, the State of Maryland filed a Motion to Violate Probation 

against the Respondent stating that "on May 12, 1999 the [Respondent] was again 

arrested and charged with Assault in the 2nd degree (case number 5Q12843)." CG 

EX2. 

7. On July 15, 1999, the District Court of Maryland for Saint Mary's County found 

the Respondent in violation of the terms ofhis probation. The District Court 

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revoked the Respondent's January 7, 1999 probational sentence and imposed the 

original sentence incarcerating the Respondent for a period of ninety (90) days. 

CGEX2. 

8. The Respondent's ninety (90) day period of incarceration occurred within the 

three (3) year time period for filing of the Coast Guard's Complaint staying the 

applicable period oftime under 46 CFR 5.55. CG EX 2, CG Complaint. 

9. On October 6, 1999, the Respondent was again arrested by the State of Maryland 

for ASSAULT- 2ND DEGREE. CG EX 4. 

10. On November 22, 1999, the Respondent pled GUILTY to the charges of 

ASSAULT- 2ND DEGREE in connection with the May 12, 1999 and October 6, 

1999 arrests and was sentenced to concurrent sentences of "3 years DOC 

suspended to Six months SMCDC with work release commencing 10-6-99. Upon 

release, the defendant is placed on 2 Years Supervised Probation with special 

conditions." "Court costs in the amount of$125.00 are to be paid within 30 

days." CG Ex 3, 4. 

11. The Respondent's criminal convictions for Second Degree Assault is classified by 

the Coast Guard as a "simple assault" under 46 CFR Part 10, Subpart B, table 

201(h). TR 16. The assessment time period for a simple assault is one to five 

years. TR 17, Table 10.201(h). 

12. Mr. John Cassidy, Chief of the Records Examination Center in Baltimore, 

Maryland provided credible testimony that had the Respondent been truthful on 

his Merchant Mariner's License renewal application, the Respondent would not 

have been issued his renewal license on the date ofhis application and that further 

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information and investigation would have been required in order to make a proper 

determination of whether or not the Respondent would have ever been issued a 

renewal license. TR 19, 24, 25, 33-36, 40. 

III. ULTIMATE FINDINGS OF FACT AND CONCLUSIONS OF LAW 

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

jurisdiction vested in the United States Coast Guard under 46 USC 7703 (1)(B), 

7703 (2), 46 CFR Parts 5 and 1 0; and 33 CFR Part 20. 

2. At all relevant times, the Respondent was the holder of his U.S. Coast Guard 

License (No. 867246) and was acting under the authority of that license when he 

filled out and filed his April 8, 1999 Merchant Mariner License renewal 

application. 46 CFR 5.57. 

3. On AprilS, 1999, the Respondent committed MISCONDUCT in violation of 46 

USC§ 7703 (1)(B) by falsifying his Merchant Mariner's License renewal 

application by certifying under oath that he had never been convicted by a court 

for an offense other than a minor traffic violation after having pled guilty to the 

criminal charge of"ASSAULT- 2ND DEGREE" in the District Court of 

Maryland for Saint Mary's County on January 7, 1999. 

4. The Coast Guard's Complaint, filed on May 1, 2002 is not time barred within the 

time limitations of 46 CFR 5.55 with respect to the Allegation of Misconduct due 

to the fact that the Respondent served ninety (90) days of incarceration within the 

time period to file the Coast Guard's Complaint. 46 CFR 5.55 (b). 

5. On November 22, 1999, the Respondent was convicted of an offense in violation 

of 46 USC 7703 (2) by pleading guilty to two (2) charges of ASSAULT- 2ND 

·' 

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DEGREE in the District Court of Maryland for Saint Mary's County. 

CGEX3,4. 

6. The Respondent committed MISCONDUCT by falsifying his renewal license 

application in violation of 46 USC 7703 (1 )(B). 

7. The Respondent violated 46 USC 7703 (2) because he was convicted of Second 

Degree Assault. 

IV. DISCUSSION 

The Coast Guard's Complaint is predicated on two (2) allegations, one, that the 

Respondent's falsification of his license renewal application was Misconduct and 

two, that the Respondent's criminal convictions would have prevented the renewal of 

his license had he truthfully answered the pertinent question on his renewal 

application form. The allegations are discussed below, in turn. 

Misconduct 

The purpose of Coast Guard suspension and revocation proceedings is to promote 

safety at sea. 46 USC 7701. A mariner's License, Certificate ofRegistry or 

Merchant Mariner's Document is subject to suspension or revocation if it has been 

shown that the license holder, when acting under the authority of that license, 

commits an act of Misconduct. 46 USC 7703(1)(B). Here, there is no question that 

when the Respondent applied for the renewal of his Merchant Mariner's License on 

AprilS, 1999, he was acting under the authority of that License. The pertinent 

regulation so provides. See 46 CFR 5.57(b) which states: 

A person is considered to be acting under the authority of the 

license, certificate or document while engaging in official 

matters regarding the license, certificate or document. This 

includes, but is not limited to, such acts as applying for renewal 

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of a license .... 

The crux of the issue relating to the charge ofMisconduct is whether or not the 

Respondent's actions fall within the regulatory definition of Misconduct. It is defined 

at 46 CFR 5.27. The regulation reads: 

Misconduct is human behavior which violates some formal, 

duly established rule. Such rules are found in, among other 

places, statutes, regulations, the common law, the general 

maritime law, a ship's regulation or order, or shipping articles 

and similar sources. It is an act which is forbidden or a failure 

to do that which is required. 

In this case I have found as fact that on April 8, 1999 the Respondent applied for 

the renewal ofhis Merchant Mariner's License (FF 4), that he responded "NO" to a 

question asking whether or not he had been convicted py any court for an offense 

other than a minor traffic violation (FF 4,5), and that he actually had been convicted 

of the charge of Second Degree Assault in the District Court of St. Mary's County, 

Maryland on January 7, 1999, only three months before he answered "NO" (FF 2,3). 

Further, the Respondent certified under oath that the information on his application 

for renewal was true and correct, including his "NO" answer (FF 4). The Respondent 

knew or should have known that his "NO" answer was false. Indeed, he so testified 

(TR 53). His statement that "I guess I wasn't thinking about it" is both self-serving 

and not credible. TR 54. 

Given the above, there is no question but that the Coast Guard has sustained its 

burden of proof by placing a preponderance of the evidence in the record. Under the 

holding in APPEAL DECISION 2610 (BENNETT), the Respondent was required to 

submit true and accurate information and when he did not do so the Coast Guard, on 

the basis of his misrepresentation issued him a renewal License. In providing the 

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false "NO" response on his application, he was guilty of Misconduct which was 

complete at the time he submitted the false information. Id. See also APPEAL 

DECISION 2456 (BURKE), APPEAL DECISION 2223 (HEWETT). So here, on the 

record made in the case it is held that the allegation in the Complaint that the 

Respondent was guilty of Misconduct is found PROVED. 

Conviction of an Offense so as to Prevent Renewal 

The pertinent law at 46 USC 7703(2) provides that a Merchant Mariner's License 

may be suspended or revoked if the holder: 

is convicted of an offense that would prevent the issuance or 

renewal of a license, certificate of registry, or merchant mariner's 

document. 

The Coast Guard contends that the Respondent's criminal convictions for Second 

Degree Assault would prevent the issuance or renewal of his Merchant Mariner's 

License. The undersigned agrees with that contention. Again, the facts are 

uncontroverted. On January 7, 1999, the Respondent was found guilty in Maryland 

of Second Degree Assault and was placed on probation with specific conditions (FF 

3). He later violated his probation with the result that he served ninety (90) days in 

jail for the January 7, 1999 conviction. (FF 7). In November, 1999 the Respondent 

was found guilty of two (2) other violations of Second Degree Assault. (CG EX 3,4). 

It is unquestionable that had the Respondent not falsified his renewal application, 

the Coast Guard would have considered his criminal record in determining whether or 

not he should have been issued a renewal license. This is especially true when one 

considers that his first criminal conviction (January 7, 1999) for Second Degree 

Assault occurred within three (3) months of the filing of his renewal application. 

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In considering the Respondent's criminal record under the minimum (1 - 5 year) 

assessment period (46 CPR 10.201(h)(4)), the Respondent would have been required 

to "provide evidence of suitability for service .... " Factors used by the Coast Guard 

for this consideration include: "Character references from persons who can attest to 

the applicant's sobriety, reliability, and suitability for employment in the merchant 

marine including parole or probation officers", "Steady employment", or "Successful 

completion of all conditions of parole or probation." Id at 10.201(j)(3)-(5). 

Given the above it is clear that the truth or omission of information by applicants 

for Coast Guard licenses and documents is essential to the Coast Guard's ability to 

discharge its mission of protecting life and property at sea. APPEAL DECISION 

2569 (TAYLOR), APPEAL DECISION 2346 (WILLIAMS), and APPEAL 

DECISION 2570 (HARRIS) where the Commandant succinctly stated: 

In the interest of promoting safety at sea, the Coast Guard 

is required by law to assess the qualifications of license 

applicants. A mariner's wrongful withholding of the 

information necessary to assess a mariner's professional 

and physical qualifications poses a serious threat to maritime 

safety. (citations omitted) 

Finally, in deciding this case one must give consideration to the Commandant's 

APPEAL DECISION 2613 (SLACK) where he held: 

I have previously stated that where fraud in the procurement 

of a license is proved in a suspension and revocation proceeding, 

revocation is the only appropriate sanction .... [P]roof in a 

suspension and revocation proceeding of a single specification and 

charge of fraud in the procurement of a license is enough to require 

that license to be revoked. (citations omitted). 

Here, the Respondent offered no real reason for his failure to truthfully answer 

questions involving important aspects of his application and the record supports the 

12 
view that the statements made as well as the omission of important factual 

information data were intentional and fraudulent so that the holding in SLACK, 

applies. I so hold that 

V. SANCTION 

The Respondent committed Misconduct in violation of 46 USC 7703(1 )(B) by 

wrongfully falsifying information on his Merchant Mariner's License renewal 

application. The Respondent violated 46 USC 7703(2) by being found criminally 

convicted by a competent court for Second Degree Assault. THEREFORE, 

VI. ORDER 

IT IS HEREBY ORDERED, that United States Coast Guard License No. 

867246 and all certificates or documents issued by the Coast Guard to CLAYTON S. 

LORE are REVOKED, effective on the date of the hearing, May 6, 2003. 

The parties are FURTHER ADVISED that service of this decision will serve as 

notice of the parties' rights for appeal. The rules and procedures governing 

administrative appeals are set forth in 33 CFR Subpart J. Refer to Attachment B. 

Done and dated this 12th of August, 2003 at 

Baltimore, Maryland 

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