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UNITED STATES OF AMERICA 

DEPARTMENT OF HOMELAND SECURITY 

UNITED STATES COAST GUARD 

UNITED STATES COAST GUARD 

Complainant 

vs 

RONALD WAYNE LIVELY 

Respondent. 

Docket Number CG S&R 03~0338 

CG Case No. PA 1788769 

DECISION AND ORDER 

Issued: March 3, 2004 

Issued by: Edwin M. Bladen, Administrative Law Judge 

Appearances: 

For the Coast Guard 

LCDR Diane Kalina 

U.S. Coast Guard Marine Safety Office 

510 L Street, Suite 1 00 

Anchorage, AK 99577 

For the Respondent 

Randall E. Farleigh, Esq. 

Attorney for Respondent 

· 629 L Street, Suite 101 

Anchorage, AK 99501 

PRELIMINARY STATEMENT 

The Coast Guard has alleged in a May 7, 2003 complaint that Respondent on 

December 30, 1997, August 17, 2001, January 31, 2002 and December 23, 2002 at 

Anchorage, Alaska, engaged in acts of Misconduct as defined in 46 CFR § 5.27 by 

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wrongfully making fraudulent statements when he answered "NO" to the question ~'Have 

you had a driver's license revoked or suspended for refusing to submit to an alcohol or 

drug test?" on his renewal Applications for License as an Officer, Staff Officer, or 

Operator and for Merchant Mariner's Document. As a result this proceeding is brought 

under the authority of46 CFR Part 5, 5 USC§§ 551-559, and 46 USC§ 7703. The 

Coast Guard seeks to revoke Respondent's credentials. 

Respondent on May 24, 2003 personally answered the complaint asserting as to 

each paragraph of the complaint he lacked sufficient knowledge, information or belief as 

to the truth of the allegations thus specifically denying each allegation. He also asserted 

an affirmative defense that there was a "court release filed in Seattle Coast Guard Office 

when applying for the original Merchant Mariner Document in August, 1978." 

Respondent has demanded a hearing in this matter. 

The Chief Administrative Law Judge then assigned this matter to this judge on 

May 30, 2003. A notice of hearing was issued setting a November 3, 2003 hearing date 

in Anchorage, Alaska. 

On July 15, 2003 Respondent's professional counsel entered his appearance and 

supplemented Respondent's answer asserting another affirmative defense that the May 7, 

2003 complaint's misconduct specification arising from statements allegedly made on 

December 30, 1997 were time batTed because of 46 CFR § 5.55(a)(3) [service of the 

complaint for an act or offense not otherwise provided for, three years after commission 

of the act or offense alleged]. 

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In apparent response to this limitations defense, the Coast Guard, on July 23, 

2003, amended the complaint removing the December 30, 1997 allegation and 

substituted the following: 

2. Respondent holds the following Coast Guard issued 

credential(s): License Number 992508 and MMD 

XXX-XX-XXXX. 1 

3. Respondent acted under the authority of that license and 

MMD on 08/17/01,01/31/02 and 12/23/02 by engaging 

in official matters regarding that license and MMD by 

applying for renewal and duplicate license and/or 

MMD. 

FACTUAL ALLEGATIONS- MISCONDUCT 

l. The Coast Guard Alleges that on 08/17/01, 01/13/02 and 

12/23/02 at Marine Safety Office Anchorage, AK the 

Respondent: 

2. wrongfully made fraudulent statements when he 

answered "No" on his "Application for License as an 

Officer, Staff Officer, or Operator and for Merchant 

Mariner's Docmnent" to the question "Have you ever 

been convicted by any court ... or forgo appeal of a 

trial court finding?" and his FBI record shows the 

fo \lowing convictions that the respondent failed to 

inform the Coast Guard marine Safety Anchorage of; 

Dangerous drugs in 1970; Burglary in 1978; Carrying a 

concealed weapon/Possession of a firearm in 1981; 

Harassing communications in 1997; DWI in 2001. 

The service ofthe amended complaint was acknowledged by Respondent's attorney. 

An amended Notice of Hearing was issued setting the hearing in Anchorage, AK 

for Wednesday, February 18, 2004. 

Respondent has requested that testimony from certain witnesses be provided by 

telephone as allowed in 33 CFR § 20.707. That motion was granted at the outset of the 

hearing. 

1

The MMD number is the same as a person's social security number and is here redacted in the interest of 

avoiding an invasion of personal privacy. 

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On December 4, 2003, the Coast Guard again amended the Complaint to delete 

the references to the FBI records in paragraph 2 of the Factual Allegations -Misconduct. 

At the hearing this Judge determined that the hearing would proceed on the December 4, 

2003 version since the Coast Guard had apparently abandoned a portion of the factual 

assertions. 

A hearing on this complaint and answer was held and transcribed in Anchorage, 

Alaska on February 18, 2004 at the Marine Safety Office, 510 L Street, Suite 100, 

Anchorage, Alaska. 

The parties were afforded the opportunity to file proposed findings offact and 

conclusions of law as provided in 5 USC § 557(c)( t ). The patties declined and elected 

instead to make an oral closing argument. 

There have not been any ex parte communications with this judge by any party or 

anyone representing a party. See 5 USC § 557(d)(l) et seq .. 

At this Judge's request, only a transcript of the parties'. closing arguments has 

been prepared. After a review of the record evidence and the closing arguments, this 

matter is now ripe for decision. 

FINDINGS OF FACT 

1. Respondent was originally issued license Number 783119 through the 

Anchorage, Alaska Regional Examination Center on March 31, 1997 as a Master 

of Uninspected Fishing Industry Vessels of not more than 1600 and 100 Gross 

Registered Tons (Domestic) Upon Near Coastal Waters, and also as a mate for 

Steam or Motor Vessels of not More than 200 Gross Registered Tons (Domestic), 

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and not more than 500 Gross Tons (lTC) upon Near Coastal Waters. Respondent 

is also authorized to engage in Commercial Assistance Towing.2 

2. The original Application for License in March, 1997 is lost and no copy is 

available to determine the answers to any of the questions contained thereon. 

3. Respondent made application for renewal of his Master's license and Merchant 

Mariner's Document on August 17, 2001. In the applicatiot) he answered "NO" 

by marking an "X" and his initials in the box accompanying the question reading 

in relevant part: "Have you ever been convicted by any comt- including military 

court- for an offense other than a minor traffic violation?" 3 

4. Respondent did answer "YES" on the renewal Application of August 17, 2001 to 

the question "Have you had a driver's license revoked or suspended for refusing 

to submit to an alcohol or drug test?" and included a written statement disclosing 

a conviction for Driving While Intoxicated [OWl] in April, 1998.4 

5. Respondent made application for renewal of his Master's license, Merchant 

Mariner's Document and Seafarer's Training Certification & Watchkeeping 

[STCW Certificate] on January 31, 2002 ai1d answered "NO" by marking a line in 

the "NO" box accompanying the question reading in relevant part: "Have you 

ever been convicted by any court- including military court- for an offense other 

than a minor traffic violation?"5 

6. Respondent made application for an original Merchant Mariner's Document, and 

a Tankerman endorsement on December 23, 2002 and answered "NO" by 

2 Coast Guard Exhibits I 

' Coast Guat'd Exhibit I 

4 Coast Guard Exhibit I 5 Coast Guard Exhibit 2 

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marking an "X" in the "NO" box accompanying the question reading in relevant 

part: "Have you ever been convicted by any court- including military court- for 

an offense other than a minor traffic violation?"6 

7. Respondent did answer "YES" by marking an "X" in the "YES" box 

accompanying the question "Have you had a driver's license revoked or 

suspended for refusing to submit to an alcohol or drug test?" on the renewal 

Application of December 23, 2002. 7 

8. . Each application for renewal, original MMD or for an endorsement to the MMD 

' contained a certification and oath which was signed by Respondent.8 

9. Respondent was convicted by a plea of Guilty in the District Court of the State of 

Oregon August 21, 1981 ofth~ offense ofUnlawful Possession of a Weapon.9 

10. Respondent's sentence for his conviction of Unlawful Possession of a Weapon 

was suspended and probation ordered by the District Judge, Lane County District 

Co uti, State of Oregon on August 20, 1981. 10 

11. Respondent was convicted by a plea of Guilty in the Circuit Court of the State of 

Oregon on Febmary 5, 2001 of the offense of Driving While lntoxicated [DWI]. 11 

.· 12. Respondent was convicted by a plea of No Contest n the District Court for the 

State of Alaska on Janu~ry 26, 1998 of the offense of Harassment. 12 

13. Respondent was convicted by a plea of Guilty in the Circuit Court for the State of 

Oregon on August ~3, 1971 of the offense of Possession of a Dangerous Drug. 13 

6 Coast Guard Exhibit 3 7 Coast Guard Exhibit 3 

R Coast Guard Exhibits 1, 2, 3 9 Coast Guat·d Exhibit 6 

. 10 Respondent's Exhibit D 

1 1 Coast Guard Exhibit 4 12 Coast Guard Exhibit 5 

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14. A charge of distribution of a dangerous drug against Respondent was dismissed 

by the Circuit Judge for County of Curry, State of Oregon. 14 

15. Respondent's has a good reputation among his peers and vessel crew regarding 

his attention to duties and skill in mastering a vessel. ,, 

16. Respondent has not exhibited to his peers or crew any use of alcohol or drugs. 

17. Respondent has assisted the Coast Guard in several search and rescues of 

mariners. 

18. Respondent is an admitted alcoholic. 

19. Respondent has attended and completed a Chemical Dependency Treatment 

program. 15 

20. Respondent continues to take an occasional drink of alcoholic beverages. 

21. Respondent answered NO to the question "Have you ever been convicted by any 

court- including military court- for an offense other than a minor traffic 

violation" because he relied upon his Master's license instructor's advise, that 

since all his convictions were beyond the statute of limitations they need not be 

disclosed. 

22. Respondent believed that only convictions for other than minor traftlc offenses 

need be disclosed all of which occurred after the date ofthe last renewal ofhis 

license or MMD. 

u Coast Guard Exhibit 7 

14 Respondent's Exhibit B 15 Respondent's Exhibit E 

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ULTIMATE FINDINGS OF FACT AND 

CONCLUSIONS OF LAW 

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1. Jurisdiction is established in this matter because Respondent was acting under 

the authority of his license and Merchant Mariner Document by making application for 

renewal of these credentials in August 17, 2001. January 31, 2002 and December 23, 

2002. See 46 CPR§ 5.57(b) 

2. Respondent was convicted by several state courts of various criminal offenses 

other than minor traffic violations on August 23, 1971, Aug1tst 20, 1981, January 26, 

1998, and February 5, 2001. 

3. The elements of Fraud for the purposes of a fraudulent procured application 

requires a person to knowingly make a.false representation or statement in connection 

with an application to the Coast Guard for a license or MMD. See, Appeal Decision 809 

(MARQUES) (1955) 

4. The Respondent's answer of"NO" to the question "Have you ever been 

convicted by any court- including military comi- for an offense other than a minor 

traffic violation?" on his August 17, 2001, J anuru-y 31, 2002 and December 23, 2002 

renewal applications were made with the knowledge of his convictions for offenses other 

than minor traffic violations. 

5. The complaint of the Coast Guard that Respondent wrongfully made 

fraudulent statements in his renewal applications is proven. 

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6. Respondent's reliance upon an instructor's advice that he did not have to 

disclose any conviction beyond the applicable statute of limitations was in essence a 

claim of mistake of law since Respondent knew the facts of his previous convictions, but 

had a mistaken belief as to the legal consequences of those facts. See Hambro Automotive 

Corp v. United Stales, 603 F.2d 850, 854 (Customs & Patent Appeals, 1979) quoting 58 

C.J .S. Mistake p. 832) 

7. The defense of mistake of law was uncorroborated by any witness or 

document. Nevertheless, Respondent's reliance on that advice was unreasonable, 

misplaced and not credible, and therefore, rejected! 

8. At the closing ofthe record, as provided by 46 CPR 5.521(b) aprimafacie 

case was established together with the admission by Respondent he is an alcoholic which 

had contributed to his previous criminal history, and his further admission he had and 

continues to consume alcoholic beverages from time to time. All of this demonstrated to 

me that Respondent's service on a vessel with crew would constitute a definite danger to 

public health, interest or safety at sea. Thus, his license was not returned to him during 

the pendency of the written Decision and Order~ 

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DISCUSSION 

An "Application For License As Officer, Staff Officer, Operator, and Merchant 

Mariner's Document" contains a set of questions which require the applicant's answer of 

either NO or YES. And, if answered YES, an explanatory statement. Among those is the 

question: "Have you ever been convicted by any court- including military court- for an 

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offense other than a minor traffic violation?" The Application also contains a 

"Cetiification and Oath" which the applicant signs. That cetiification reads: 

I CERTIFY that the infmmation on this application is true 

and correct and that I have not submitted an application of 

any type to a Regional Exam Center or Officer in Charge, 

marine Inspection in any port within 12 months of this 

application and I have never had an application rejected or 

denied except as noted on this application. 

On his August 17, 2001, January 31, 2002 and December 23, 2002 applications 

Respondent's answered "No'' to the question: "Have you ever been convicted by any 

court- including military court- for an offense other than a minor traffic violation?," 

which answer was objectively false. The Respondent signed the certification and oath of 

truthfulness in each instance. He did so knowing that he had previous convictions for 

criminal offenses which were other than minor trafftc violations. 

Respondent says the reason he answered "NO" on those applications as he did, 

because he earlier inquired of his instmctor for his Master's license whether he had to 

disclose his prior convictions. He says he was told that because these convictions were 

beyond the statute of limitations, he was not obligated to disclose them. He did not 

disclose what the applicable statute of limitations was for each ofthe different criminal 

offenses. 

Essentially Respondent's claim is the defense of mistake of law. That is, 

Respondent knew the facts of his previous convictions, but he had a mistaken belief as to 

the legal consequences of those facts when completing an application for licensure. See 

Hambro Automotive Corp v. United States, 603 F.2d 850, 854 (Customs & Patent 

Appeals, 1979) [quoting 58 C.J.S. Mistake p. 832 for what constitutes a mistake of law] 

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This defense was not corroborated· by any witness or document. Respondent's 

reHance on that advice was unreasonable, misplaced and not credible for these reasons. 

First, Respondent had no information which he could share with this Judge or 

otherwise which provided what were the limitations time periods involved. Respondent 

could not say with any certainty, much less any knowledge, what the limitations time 

period in years were for the convictions for driving while impaired, harassment, or 

possession of a weapon. I don't believe he could have known how to apply the 

limitations period when confronted with the question about his prior convictions. 

Second, on one occasion he answered the pertinent question truthfully and 

disclosed a prior conviction in his renewal Application of August, 2001. Thus, he knew 

to truthfully answer the question and make the disclosure. Yet, about six months later, he 

did not truthfully answer the same question in his renewal application of January, 2002. 

It is mysterious, at best, to know what limitations period he applied in those two 

situations. When asked the Respondent did not know. 

In sum, Respondent's claim of mistake of law is not credible, and is rejected. 

Fraud in these circumstances requires a person to knowingly make a false 

statement or representation in connection with an application to the Coast Guard for a 

license or MMD. Appeal Decision 809 (MARQUES) (1955). The Respondent's answer 

of "NO" to the question "Have you ever been convicted by any court- including military 

court- for an offense other than a minor traffic violation?" on his August l7, 2001, 

January 31, 2002 and December 23, 2002 renewal applications was made with the 

knowledge of his convictions for offenses which were other than minor traffic violations. 

I have determined that the Coast Guard's complaint is proven. 

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Precedents dictate that an Administrative Law Judge (ALJ) has only one option 

to follow when determining the appropriate disposition of a case where the respondent is 

shown to have fraudulently procured the renewal of a license or document. The 

Commandant has stated in Appeal Decision 2613 (Slack): "that where fraud in the 

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

is the only appropriate sanction." (emphasis in original and citations omitted). Thus, 

based on the command of 46 CFR 5.65, I .am bound by that statement of principle and 

policy. 

SANCTION 

Respondent's ft·audulent conduct requires a sanction of revocation. 

ORDER 

lT IS ORDERED Respondent's license No. 992508 and his Merchant Mariner's 

Document and credentials are hereby REVOKED. 

Dated: March 3, 2004. 

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Edwin M Bladen 

Administrative Law Judge 

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