UNITED STATES OF AMERICA 

U.S. DEPARTMENT OF HOMELAND SECURITY 

UNITED STATES COAST GUARD 

_______________________________ 

UNITED STATES COAST GUARD 

Complainant 

vs. 

Johnny Rex Dean 

Respondent. 

______________________________ Docket Number: CG S&R 05-0278 

CG Case No. 2328553

 

ORDER

Issued: November 10, 2005

Issued by: Walter J. Brudzinski, Administrative Law Judge

Procedural History

This Order is issued in accordance with 33 CFR sections 20.710 and 20.902(c) in that the 

undersigned rendered his initial decision orally from the bench at the close of the hearing on 

November 3, 2005 at MSO Morgan City, Louisiana. Finding that Respondent and the subject 

matter of this hearing are within the jurisdiction vested in the Coast Guard under 46 U.S.C. 

7704(b) and that the Coast Guard proved the charge alleged in the Complaint, the undersigned 

revoked Respondent’s document at the close of the hearing. 
The Coast Guard initialed this Complaint on May 11, 2005 alleging ”Conviction of a 

Dangerous Drug Law Violation” in that Respondent was convicted of Possession of Cocaine in 

the State of Louisiana on December 9, 1998. The Coast Guard also charged Respondent with 

Misconduct in that on July 11, 2001 he failed to disclose this conviction on his Merchant 

Mariner’s License Renewal Application in violation of 46 CFR 10.201(h). The Respondent made 

timely Answer to the Complaint and requested a hearing. 

The Chief Administrative Law Judge assigned this matter to Judge Jeffie Massey of New 

Orleans, Louisiana on May 24, 2005. Due to the disruptions caused by Hurricane Katrina, it was 

reassigned to Judge Walter J. Brudzinski and the matter was eventually set for hearing to 

commence on November 3, 2005. On October 28, 2005, the Coast Guard filed a Motion to 

Amend the Complaint requesting that the Misconduct allegation be removed because it was filed 

after the time limitation for service of a Complaint alleging Misconduct of the type specified. 

That left only one allegation, Conviction for a Dangerous Drug Law Violation, for hearing. The 

undersigned granted the Motion and the hearing commenced on November 3, 2005 at MSO 

Morgan City, Louisiana. 

The Coast Guard was represented by LTJG Adam Bryant, USCG and ENS Timothy 

Tilghman, USCG. The Coast Guard introduced three exhibits. Respondent appeared pro se; that 

is, he represented himself. He testified on his own behalf. His statement was essentially the same

as he provided in his Answer to the Complaint so the undersigned marked that as an Exhibit and 

has included it in the record. Mr. Jimmy Martin, of B and J Martin, Inc. also testified on behalf 

of Respondent. 

2
Law

Title 46 United States Code, Section 7704(b) is the applicable law which controls 

allegations of “Conviction for a Dangerous Drug Law Violation.” It reads as follows: 

(b) If it is shown at a hearing under this chapter that a holder of a 

license, certificate of registry, or merchant mariner's document issued 

under this part, within 10 years before the beginning of the 

proceedings, has been convicted of violating a dangerous drug law of 

the United States or of a State, the license, certificate, or document 

shall be suspended or revoked. 

Title 46 Code of Federal Regulations, Section 5.35 is the applicable regulation which 

controls allegations of “Conviction for a Dangerous Drug Law Violation.” It reads as follows: 

Where the proceeding is based exclusively on the provisions of title 

46 U.S.C. 7704, the complaint will allege conviction for a dangerous 

drug law violation or use of a dangerous drugs or addiction to the use 

of dangerous drugs, depending upon the circumstances and will 

allege jurisdiction by stating the elements as required by title 46 

U.S.C. 7704, and the approximate time and place of the offense. 

Title 46 CFR 5.59 provides, in pertinent part: 

An administrative Law Judge enters an order revoking a respondent’s 

license, certificate or document when – 

* * * 

(b) The respondent has been a user of, or addicted to the use of, a 

dangerous drug, or has been convicted for a violation of the 

dangerous drug laws, (emphasis added) whether or not further court 

action is ending, and such charge is found proved. A conviction 

becomes final when no issue or law or fact determinative of the 

respondent’s guilt remains to be decided. 

3
Complaint

The Complaint, as served, cites as statutory authority 46 U.S.C. 7704(b) and 46 U.S.C. 

7703. As regulatory authority, it cites 46 CFR 5.27 Conviction for a Dangerous Drug Law 

Violation and 46 CFR 5.27 Misconduct. Removing the Misconduct charge also removed the 

citation to 46 U.S.C. 7703 and 46 CFR 5.27 Misconduct. That left 46 U.S.C. 7704(b), cited 

above, and 46 CFR 5.27. 

The allegations in the Complaint, as served, reads as follows: 

FACTUAL ALLEGATIONS ---Conviction for Dangerous Drug Law

Violation 

1. The Coast Guard alleges that: 

a. On 06/17/1998, the Respondent was arrested by the Lafourche Parish Sheriffs 

Department for Possession of Crack Cocaine. 

b. On 12/09/1998, the Respondent pled GUILTY to the above-mentioned charge. 

c. The Respondent was sentenced to three years of active probation with conditions. 

d. By pleading guilty to Possession of Crack Cocaine, the Respondent violated a 

dangerous drug law. 

Amendments to the Complaint

While the Complaint still alleges 46 CFR 5.27 as the regulatory authority for this 

“Conviction” offense., it is more appropriate to cite 46 CFR 5.35 as noted above. Therefore, the 

Complaint is hereby amended to reflect 46 CFR 5.35 in place of 46 CFR 5.27 (Misconduct) as 

regulatory authority for “Conviction of a Dangerous Drug Law Violation.” The Administrative 

Law Judge may amend Complaints to correct minor errors that do not affect notice to the 

Respondent or to his ability to prepare a defense. See Appeal Decision 2388 (MANLEY) (1985) 

4
citing Kuhn v. C.A.B., 185 F.2d 839 (D.C. Cir. 1950); Appeal Decision 2393 (STEWART)

(1985); Appeal Decision 2309 (CONEN) (1983). 

As prescribed in 46 CFR 5.35 above, the Complaint will “allege jurisdiction by stating 

the elements as required by title 46 U.S.C. 7704, and the approximate time and place of the 

offense.” 46 U.S.C. 7704(b) recites two main elements: 1) that one must be a holder of a license, 

certificate of registry, or merchant mariner's document issued under this part; and 2) within 10 

years before the beginning of the proceedings, have been convicted of violating a dangerous drug

law of the United States or of a State; and 3) if the allegation is found proved, the license, 

certificate, or document shall be suspended or revoked. 

Although it was known by all parties and proved at the hearing that the conviction 

occurred within the last 10 years and that Respondent was a holder of a Merchant Mariners 

license at the time of the conviction, it is necessary to amend the Complaint further to conform to 

the requirements of 46 CFR 5.35 and the proof offered at hearing. Therefore, the “Conviction for 

Dangerous Drug Law Violation” allegation in the Complaint is amended by adding or 

substituting the language which is underlined as follows: 

a. On 06/17/1998, the Respondent was arrested by the Lafourche Parish, Louisiana

Sheriffs Department for Possession of Crack Cocaine. 

b. On 12/09/1998, the Respondent, a holder of a Coast Guard license, pled GUILTY and 

was convicted of Possession of Cocaine. 

c. The Respondent was sentenced to serve five (5) years, with all but 90 days suspended 

on conditions of 3 years active probation with random drug screens and random searches of his 

person or property. 

d. Respondent was convicted of violating a dangerous drug law of the United States or of 

a State within 10 years before the beginning of these proceedings. 

5
Since these amendments are recitations of the law and regulations or information 

contained in documents that had been in Respondent’s possession, the additions and changes 

merely conform the allegations to the proof and do not affect notice or Respondent’s opportunity 

to litigate. Id. 

Coast Guard’s Proof

To prove that Respondent was a holder of a license, certificate of registry, or merchant 

mariner's document, the Coast Guard introduced a completed CG Form 719B, Application for 

License as Officer, Staff Officer, Operator, and Merchant Mariner’s Document, a form 

completed by Respondent on July 11, 2001 to renew his license. The completed form reflects 

that Respondent’s last license, #772925, was issued to him on June 10, 1996. Taking official 

notice that licenses are issued for periods of 5 years, that document shows that Respondent was a 

holder of a license on the date he was convicted. 

To prove that Respondent was arrested for Possession of Crack Cocaine and convicted of 

Possession of Cocaine, the Coast Guard introduced certified copies of the Lafourche Parish 

Report of Arrest and Judgment of Conviction reciting essentially the allegations in the charge. 

After the Coast Guard introduced those exhibits, it rested. 

Respondent’s Case

Respondent testified on his own behalf admitting that he was convicted of the charge in 

question but that he was with a friend in a parking lot when his friend gave him some cash and 

told him to walk over to a stranger and ask him for a “dime.” Respondent claimed that he did 

not know what the word “dime” meant in narcotics street parlance. Respondent went on to say 

6
that he was arrested and pled guilty on the advice of his court appointed attorney who never 

asked him what happened. His testimony followed the language contained in his “Defense 

statements” which he filed with his Answer to the Complaint. To capture more accurately what 

Respondent said, I have marked his “Defense statement” as Respondent’s Exhibit 1 and now 

include it as part of the record. 

Respondent’s employer, Mr. Jimmy Martin, was sworn and testified that Respondent has 

worked for him for the last 3 and one half years; that he has never failed a drug test; that he has 

never displayed any actions considered to be misconduct; that he was a victim of circumstances; 

that he has paid his debt to society; that he pled guilty on advice of his attorney; and that to 

revoke his license unfairly imposes a hardship on his current family as well as and children from

previous marriages. Finally, Mr. Martin opined that Respondent has rehabilitated and that to 

punish him further by revoking his license is an injustice. 

At the close of the hearing, I asked the parties if they wished to submit proposed findings 

of fact and conclusions of law. After explaining the concept of proposed findings and 

conclusions to the Respondent and his employer, both parties declined to submit anything 

further. I then announced that I will recite my findings and conclusions from the bench and 

follow up with a written order as provided by the regulations. I announced that the judgment of 

conviction proved by the Coast Guard was for a dangerous drug law violation; that at the time of 

his conviction, 12/09/1998, Respondent was the holder of a validly issued Merchant Mariners 

license; and, that the conviction was within 10 years of these proceedings. Therefore, I found the 

charge proved. 

7
Sanction

I explained that although 46 U.S.C. 7704(b) provides for either revocation or 

suspension, the regulations found at 46 CFR 5.59 clearly prescribe that administrative 

law judges must revoke in those case where it is found proved that a respondent has been 

convicted for a violation of the dangerous drug laws. I also advised that the provision in 

46 U.S.C. 7704(b) for suspension is to allow Coast Guard investigating officers to enter 

into settlement agreements when they deem it appropriate and in the interest of maritime

safety. Since I have found the allegations proved, I have no discretion but to follow the 

prescriptions of 46 CFR 5.59(b) and revoke Respondent’s license. 

WHEREFORE, 

8
ORDER

IT IS HEREBY ORDERED that upon finding the above charge PROVED against 

Respondent, his Coast Guard License (No. 952488), previously turned over to the Coast Guard 

Investigating Officer on November 3, 2005, is REVOKED. 

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

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

Attachment A. 

Done and dated November 10, 2005 

New York, NY 

____________________________________ 

WALTER J. BRUDZINSKI 

ADMINISTRATIVE LAW JUDGE 

U.S. COAST GUARD 

9
CERTIFICATE OF SERVICE 

I hereby certify that a copy of the above Order was sent to the following individuals and 

entities by the method indicated below: 

LTJG Adam Bryant,USCG 

ENS Timothy Tilghman, USCG 

MSO Morgan City 

Investigations Department 

800 David Drive, Rm 232 

Morgan City. LA 70380-1304 

Phone: (985) 380-5339 

Facsimile: (985) 380-5379 

(Via Facsimile) 

B and J Martin, Inc. 

Attn: Mr. Jimmy Martin 

o/b/o Johnny Rex Dean 

P.O. Box 448 

Cut Off, LA 70345 

Phone: (985) 632-2727 

Facsimile: (985) 632-4481 

(Via Facsimile) 

Johnny Rex Dean 

307 East 37th Street 

Cut Off, LA 70345 

(Via First Class Mail) 

USCG ALJ Docketing Center 

40 S. Gay Street, Rm 412 

Baltimore, MD 21202 

Phone: (410) 962-7434 

Facsimile: (410) 962-1746 

(Via Facsimile) 

Done and dated November 10, 2005 

New York, NY 

 ______________________________ 

 Regina V. Thompson 

 Paralegal Specialist, Assistant to the 

 Administrative Law Judge 

 Phone: (212) 668-2971 

 Facsimile: (212) 825-1230 

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ATTACHMENT A 

NOTICE OF ADMINISTRATIVE APPEAL RIGHTS 

33 CFR 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. 

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 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 -- 

11
(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. 

33 CFR 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. 

12
ATTACHMENT B

WITNESS AND EXHIBIT LISTS

COMPLAINANT’S WITNESSES 

NONE 

COMPLAINANT’S EXHIBITS 

1. Lafourche Parish Sheriff’s Office Report of Arrest, 1 page. 

2. Criminal Case Minutes of the 17th District Court, Parish of Lafourche – Thibodaux, 

Louisiana, (Judgment of Conviction) 1 page 

3. CG Form 719B, Application for License as Officer, Staff Officer, Operator, and 

Merchant Mariner’s Document, 3 pages 

RESPONDENT’S EXHIBITS 

A. Defense statements, 1 page 

ALJ’S EXHIBITS 

 1. Copy of Respondent’s U.S. Merchant Marine Officer’s License #952488, 2 pages 

13