UNITED ST A TES OF AMERICA 

DEPARTMENT OF HOMELAND SECURITY 

UNITED STA TES COAST GUARD 

UNITED STATES OF AMERICA 

UNITED STATES COAST GUARD 

vs. 

MERCHANT MARINER LICENSE 

Issued to: JASON WAYNE KOY ALESKI 

DECISION OF THE 

VICE COMMANDANT 

ON APPEAL 

NO. 26 7 4: 

This appeal is taken in accordance with 46 USC§ 7701 et seq., 46 CFR Part 5, 

and the procedures in 33 CFR Part 20. 

By a Decision and Order (hereinafter "D&O") dated February 8, 2006, an 

Administrative Law Judge (hereinafter "ALJ") of the United States Coast Guard at 

Houston, Texas, revoked the merchant mariner license of Mr. Jason W. Kovaleski 

(hereinafter "Respondent") upon finding proved a charge of conviction for a dangerous 

drug law violation. 

The specification found proved alleged that Respondent was convicted of 

"Possession of Drug Paraphernalia" on August 13, 2002, by a Florida court. 

PROCEDURAL HISTORY 

On April 26, 2005, the Coast Guard issued a complaint against Respondent 

alleging conviction of a dangerous drug law in that Respondent was convicted on August 

13, 2002, in Panama City, Florida, of "Possession of Drug Paraphernalia." [Complaint at 

2] On May 12, 2005, Respondent filed an Answer to the complaint on which he indicated 
KOVALESKI N0. 2 67 4' 

that he was convicted of a misdemeanor. [Answer at 1] Respondent further explained 

that he decided to plead guilty to a misdemeanor rather than fight the charge and attempt 

to testify against his friend and a police officer. [Id.] On August 1, 2005, the Coast 

Guard served and filed a Motion for Summary Decision and proposed revocation as the 

appropriate sanction. [D&O at 2; Coast Guard Motion for Summary Decision) The 

original AU, from New Orleans, Louisiana, denied the Motion for Summary Judgment, 

noting that there remained "a genuine issue of fact as to whether or not the offense of 

'Possession of Drug Paraphernalia' constitute[d] a violation of a 'dangerous drug law.'" 

[D&O at 2; Order Denying Motion for Summary Decision at 2] On August 23, 2005, the 

Coast Guard amended its Complaint to include more detail describing the conviction of 

"Possession of Drug Paraphernalia." [D&O at 2; Amended Complaint at 2] Respondent 

answered the Amended Complaint on September 27, 2005, and indicated the Coast Guard 

"left out an important element of the charge," however, Respondent did not specify what 

element was omitted. [D&O at 2; Answer to Amended Complaint at 1] 

After hurricane Katrina devastated New Orleans and the surrounding 

communities, the case was reassigned from the ALJ in New Orleans to an ALJ located in 

Houston, Texas. [D&O at 2; Notice of Reassignment] The new ALJ ordered the parties 

to prepare and serve the appropriate lists of witnesses and exhibits in accordance with 

33 C.F.R. § 20.601. [Order dated October 11, 2005; D&O at 2] The Coast Guard filed 

an exhibit and witness list while Respondent did not. [D&O at 2] On December 9, 2005, 

the Coast Guard again moved for Summary Decision and the Respondent filed a cross 

motion to dismiss the case on December 25, 2005. [Id. at 3] The Coast Guard did not 

reply to the Respondent's cross motion. [Id.] 

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KOVALESKI 

The ALJ granted the Coast Guard's Motion for Summary Decision on February 8, 

2006. [D&O at 1 O] In response to a request by Respondent, the ALJ Docketing Center 

extended the deadline for filing the Appeal Brief until June 7, 2006. Respondent 

perfected his appeal by filing his Notice of Appeal and Appeal Brief on May 25, 2006. 

The Coast Guard filed a Reply Brief on July 10, 2006. Therefore, this appeal is properly 

before me. 

APPEARANCE: Respondent appeared prose. The Coast Guard was represented 

by MST2 Barry K. Hollenbeck of U.S. Coast Guard Marine Safety Detachment Panama 

City, Florida. 

FACTS 

At all times relevant herein, Respondent was the holder of a Coast Guard issued 

merchant mariner license. [D&O at 6] 

Respondent was convicted of"Possession of Drug Paraphernalia" in Panama City, 

Florida, on August 13, 2002. [D&O at 10; Amended Complaint at 2) The Coast Guard 

discovered this conviction and initiated a suspension and revocation proceeding against 

Respondent's mariner credential in accordance with 46 U.S.C. § 7704(b) and 46 C.F.R. 

§§ 5.35 & 5.59. [Amended Complaint at 1-2] Respondent did not contest the fact that he 

was convicted of "Possession of Drug Paraphernalia;" rather, he claimed that he has 

never used drugs, never failed a drug test, and that he did not want to testify against his 

friend in court. [Answer to Amended Complaint at 2) 

BASES OF APPEAL 

Respondent has raised several issues on appeal. However, according to 33 C.F.R. 

§ 20.1001 ( c ), parties may only appeal summary decision cases on the following bases: the 

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KOVALESKI N02 67 4 

case presented material issues of fact which required a hearing to be resolved or, in 

granting summary decision, the AU failed to consider evidence that a party would have 

presented (as to a material fact). 

In this case, the ALJ determined that there was no genuine issue of material fact in 

dispute because Respondent did not deny being convicted of "Possession of Drug 

Paraphernalia." As a result, the ALJ granted the Coast Guard's Motion for Summary 

Decision. [D&O at 10] In so doing, Respondent was denied a hearing. [Id.] On appeal, 

Respondent has neither offered, nor claimed that he could offer, evidence to show that he 

was not convicted of "Possession of Drug Paraphernalia." [Appeal Brief; Answer to 

Amended Complaint] In addition, there are no factual issues in dispute. Therefore, 

Respondent has not met the prerequisites to appeal a Summary Decision under 33 C.F.R. 

§ 20.lOOl(c). 

However, Respondent has contested whether a conviction for "Possession of Drug 

Paraphernalia" is a conviction for a dangerous drug law violation as envisaged in 

46 U.S.C. § 7704(b). [Appeal Brief] Respondent further contends that, in this case, 

revocation of his license is inordinately severe. [Id.] In order to ensure clarity in how 

drug paraphernalia laws fit within the dangerous drug law framework of 46 U.S.C. 

§ 7704(b), and to reinforce the proper sanction when a charge under 46 U.S.C. § 7704(b) 

is found proved, I will independently review the following issues on appeal in accordance 

with 46 C.F.R. § 5.701: 

I. The ALJ erred as a matter of law by ruling that a conviction for possession of 

drug paraphernalia is a conviction for a dangerous drug law violation under 

46 us. c. § 7704(b). 

II. The sanction of revocation is inordinately severe. 

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KOVALESKI NO. 2 67 

OPINION 

I. 

The ALJ erred as a matter of law by ruling that a conviction.for possession of drug 

paraphernalia is a conviction.for a dangerous drug law violation under 46 U.S.C. 

§ 7704(b). 

In this case, Respondent does not deny that he was convicted of "Possession of 

drug paraphernalia." Rather, Respondent asserts, as the original ALJ assigned to the case 

opined, that it is unclear as to whether his particular conviction constitutes a conviction 

for a dangerous drug law violation under 46 U.S.C. § 7704. [Appeal Brief; Order 

Denying Motion for Summary Decision at 2; 46 U.S.C. § 7704.] The ALJ who 

subsequently issued the D&O in this case ruled that a conviction for "Possession of Drug 

Paraphernalia" does constitute a conviction for a dangerous drug law violation. [D&O at 

8] Respondent disagrees. 

46 U.S.C. § 7704(b) and 46 C.F.R. § 5.35 do not define what constitutes a 

"dangerous drug law" violation; however, a dangerous drug is defined in 46 U.S.C. 

§ 2101(8a) as a "narcotic drug, controlled substance or a controlled substance analog." 

The precursor to 46 U.S.C. § 7704(b) was 46 U.S.C. § 239a, which required revocation if 

conviction for violation of a narcotic drug law was proved. In 1983, Congress undertook 

a massive project to attempt to codify numerous maritime and shipping laws in Public 

Law 89-98. During that project, Congress replaced 46 U.S.C. § 239a with 46 U.S.C. 

§ 7704 and substituted the term dangerous drug law for narcotic drug law. 

In Appeal Decision 1830 (PACKARD), the issue of whether a conviction for 

possession of narcotic paraphernalia constituted a conviction of a narcotic drug law was 

5 
KOVALESKI N0.2 6 7 4l 

addressed. In that case, Mr. Packard was convicted of violating section 11555 of the 

California Health and Safety Code which prohibited possession of "an opium pipe or any 

device, contrivance, instrument or paraphernalia used for unlawfully injecting or smoking 

a narcotic." Appeal Decision 1830 (PACKARD). During the proceedings, it was 

determined that the statute of which Mr. Packard was convicted was located in the 

"Illegal Narcotics" chapter of the California Health and Safety Code. [Id.] Packard held 

that the placement of the law in that section of the state's code convincingly showed that 

the law was "designed to regulate and control the use of narcotics drugs" and, as a result, 

concluded that "a conviction under such a law was ... a conviction within the meaning of'' 

the narcotic drug laws. [Id.] 

The instant case is strikingly similar to the Packard case. In this case, Respondent 

was convicted under Florida Statute 893.147: "Use, possession, manufacture, delivery, 

transportation, or advertisement of drug paraphernalia." This statute appears within the 

Florida Statutes Annotated chapter 893 entitled "Drug Abuse Prevention and Control." 

As such it is clear that the statute that Respondent was convicted under is "designed to 

regulate and control the use" of dangerous drugs. FL. STAT. ANN.§ 893.147; Appeal 

Decision 1830 (PACKARD). Given the statute's location with the Florida Code, under 

the rational articulated by Packard, the ALJ's determination that Respondent's conviction 

of "Possession of Drug Paraphernalia" is a conviction.for a dangerous drug law violation 

is correct. 

II. 

The sanction of revocation is inordinately severe. 

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KOVALESKJ NO. 26 ~ 

Respondent next contends that the sanction of revocation is too severe considering 

both the nature of his conviction and indications from the original ALJ assigned to the 

case that revocation might not be appropriate in Respondent's case. [Appeal Brief; Order 

Denying Summary Decision at 2] The ALJ who issued the D&O ruled that "it is clear 

that only revocation is appropriate in the instant matter" and "I do not have any discretion 

in this matter; the law states I must revoke." [D&O at 9] In particular, the ALJ noted that 

when Congress amended 46 U.S.C. § 7704(b) to allow "suspension or revocation" when 

conviction for a dangerous drug law violation is found proved, Congress did not mandate 

that the Coast Guard change 46 C.F.R. § 5.59, which continues to mandate revocation. 

[Id.] In Coast Guard suspension and revocation cases, an ALJ must follow properly 

proscribed reb>ulations, and in this case, the ALJ had no other option but to revoke 

Respondent's license once the conviction for a dangerous drug law violation charge was 

found proved. 46 C.F.R. § 5.59. 

Respondent also petitions for immediate renewal. of his license and to reinstate his 

"grace period." [Appeal Brief] This is a claim for clemency, and prior Commandnat 

Decisions on Appeal dictate that it is not appropriate for clemency requests to be acted 

upon during suspension and revocation appeal proceedings. See Appeal Decisions 2428 

CNEA T) and 2435 (BABER). To that end, I note that Respondent may apply for 

clemency via the procedures set forth in 46 CFR §§ 5.901-5.905. 

CONCLUSION 

The findings of the ALJ had a legally sufficient basis. The ALJ's decision was not 

arbitrary, capricious, or clearly erroneous. Competent, substantial, reliable, and probative 

7 
KOVALESKI NO. 26 7 4 . 

evidence existed to support the findings of the ALJ. Therefore, I find that Respondent's 

bases of appeal are without merit. 

ORDER 

The order of the ALJ, dated at Houston, Texas, on February gth, 2006, is 

AFFIRMED. 

11 , ~ (if .' '-<I. s. CREA . /~ Vice Admiral, U.S. Coast Guard 

Vice Commandant 

Signed at Washington, D.C. this )f" of :;rc~-1d '2008. 

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