RAPOZA No. 2629 

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U N I T E D S T A T E S O F A M E R I C A 

DEPARTMENT OF TRANSPORTATION 

UNITED STATES COAST GUARD 

UNITED STATES OF AMERICA 

 U. S. COAST GUARD 

 vs. 

LICENSE NO. 793349 

DOCUMENT NO. [redacted] 

Issued to Hank J. Rapoza___________

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DECISION OF THE 

VICE COMMANDANT 

ON APPEAL 

NO. 2629 

 

 This appeal is taken in accordance with 46 USC 7704, 46 CFR 5.701, and 33 CFR Part 20. 

 By a Decision and Order (D&O) dated December 14, 2000, an Administrative Law Judge 

(ALJ) of the United States Coast Guard at Seattle, Washington, revoked Respondent’s abovecaptioned license and document, upon finding the charge of conviction for a dangerous drug law 

violation proved. The supporting specification that was found proved alleges the Respondent 

“[w]as convicted of violating a dangerous drug law of the State of Washington for the wrongful 

possession of cocaine on or about April 27, 2000.” 

 A hearing was held on December 14, 2000, in Seattle, Washington. Respondent appeared 

with counsel and entered a response denying the charge and specification. The Coast Guard 

Investigating Officer (IO) introduced two witnesses and eight exhibits. Respondent introduced 

five exhibits. Respondent’s Exhibits 3 and 4 were duplicative of IO Exhibits 5 and 6. IO 

Exhibits 3, 4 and 8 were excluded from evidence as irrelevant. The charge was found proved, 

and Respondent’s license and document were revoked. 
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 The ALJ’s D&O was served on Respondent’s counsel via fax transmission on 

January 8, 2001. Respondent’s counsel filed a timely notice of appeal on January 9, 2001, and 

an appellate brief on March 5, 2001. This appeal is properly before me. 

APPEARANCES: Thomas F. Paul, Attorney at Law, LeGros, Buchanan & Paul, 701 Fifth 

Avenue, Seattle, Washington 98104-7051, for Respondent. The Investigating Officer (IO) was 

Lieutenant Heidi L. Rumazza, U.S. Coast Guard. 

 FACTS

 At all relevant times, Respondent was the holder of the above captioned license and 

document. His license authorized him to serve as “Master of steam or motor vessels of any 

gross tons upon inland waters and the sheltered waters of British Columbia as defined in the 

Treaty between the United States and Canada signed on August 11, 1934; Radar Observer 

(unlimited) Radar expires on January 18, 2002; also, First Class Pilot on vessels of any gross 

tons upon Washington main ship channels between Point Defiance and Reef Point; all Puget 

Sound and San Juan Islands (including Spiden Channel) ferry routes; all interconnecting ferry 

routes between Point Defiance and Reef Point.” His document is issued for “Able seaman – 

unlimited; wiper; steward’s department (FH).” (IO Exhibits 1 and 2.). By his formal answer 

submitted on October 2, 2000, Respondent admitted to Coast Guard jurisdiction in this matter. 

 On April 27, 2000, the Seattle, Washington, police arrested Respondent in his home for 

possession of cocaine. (IO Exhibit 7). Respondent requested, and the Superior Court for King 

County, Washington agreed, to place Respondent in the Superior Court’s Drug Court Program. 

Respondent entered into an Agreement of Participation with the King County Prosecutor and 
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entered the program on July 17, 2000, whereupon the Superior Court entered an Order of 

Participation. (IO Exhibit 6). 

 Under the terms of the agreement, Respondent did not enter a plea of any kind, nor was 

there a determination of guilt made by the court. Respondent waived his rights to a jury trial, 

to call witnesses, and to cross-examine the state’s witnesses. Respondent also agreed not to 

contest the legality of the search of his home and stipulated to the positive results of the field test 

showing that the substance found in his home was cocaine. Respondent was admitted to the 

program, which required him to undergo treatment for drug use. Respondent paid a $100 fee and 

was placed under supervision, which included periodic random urinalysis testing. (IO Exhibit 5.) 

 The Superior Court’s Drug Court Program is designed to allow a defendant to avoid 

prosecution and conviction, provided he or she complies with the conditions of the program. 

[Tr. at 71]. Respondent apparently was complying with the program at the time of hearing 

because no final order, judgment, decree of guilt or dismissal had been granted in the State case 

at the time of the hearing. See Respondents Brief Supporting Appeal of Judge Bladen’s Decision 

dated December 14, 2000, Pages 2-3. 

BASES OF APPEAL

 Respondent asserts the following bases of appeal from the decision of the ALJ: 

I. The ALJ erroneously found that the State of Washington convicted 

Respondent of violating a dangerous drug law of the State of Washington, 

when Washington law clearly shows, and the parties stipulated, that the State 

of Washington does not consider Captain Rapoza to have been convicted of 

such a violation; 
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II. The ALJ and the Coast Guard misapplied 33 CFR 20.1307(d) by revoking 

Respondent’s license, because Respondent did not participate in a “scheme of 

a state for the expungement of convictions”; and, 

III. The ALJ misapplied Coast Guard case law precedent by declining to review 

Washington law to determine whether Captain Rapoza was participating in a 

scheme for the “expungement” of a conviction. 

OPINION

I. 

 I will address Respondent’s first and part of his third bases of appeal by saying that a reading 

of the transcript shows that the ALJ did not ignore Washington State law when making his 

decision. In fact, the transcript contains prolonged passages of lucid and thoughtful discussions 

between Respondent’s counsel, the ALJ, and the IO about Washington State law. See [Tr. at 55-

57, 71-73]. The transcript shows the ALJ found that Respondent was not convicted of a 

dangerous drug law under the laws of the State of Washington. [Tr. at 56]. Additionally, 

addressing the second bases of appeal, the ALJ and the IO both agreed with Respondent’s 

counsel that the Superior Court’s Drug Court Program is not a scheme of a state for the 

expungement of convictions. In the words of the ALJ, “ . . .he [Respondent] is not participating I 

think we can all agree not an expungement of conviction scheme. Would you agree with that 

Lieutenant?” [Tr. at 61]. To which the IO replied, “Your Honor, I would agree to it not being an 

expungement scheme...” [Tr. at 61]. 

II. 
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 Respondent raises the key issue of expungement of convictions in this appeal in his bases of 

appeals two and three. Respondent focuses on the language of 33 CFR 20.1307(d) which states 

in applicable part: 

 If the respondent participates in the scheme of a State for the expungement 

 of convictions, and if he or she pleads guilty, or no contest or, by order to the 

 trial court has to attend classes, contribute time or money, receive treatment, 

 submit to any manner of probation or supervision, or forego appeal of the 

 finding of the trial court, the Coast Guard regards him or her, for purposes of 

 46 U.S.C. 7703 or 7704, as having received a conviction. (emphasis added). 

 Respondent argues that in order for him to have been “convicted” in accordance with the 

regulations cited above, he must have: 

1) Participated in a scheme of a state for the expungement of a conviction, and 

2) Entered a plea of guilty, nolo contendere to a dangerous drug law, and/or 

3) Received an order from a court to attend drug awareness classes or drug treatment. 

 Respondent further argues that, through the conjunctive “and” highlighted in the quotation 

above, the regulation establishes a two or three-pronged test, the first prong of which is that 

Respondent must have been participating in a scheme of a state for the expungement of a 

conviction. See Respondents Brief Supporting Appeal of Judge Bladen’s Decision dated 

December 14, 2000, Page 8. Respondent argues that his interpretation is a simple matter of 

statutory construction based on the plain language of the regulation and that it is unnecessary to 

go beyond that plain language. Finally, Respondent cites the holdings in Appeal Decisions 2355

(RHULE), 2611 (CIBULKA), and 2435 (BABER), for the proposition that the ALJ is bound to 

examine only Washington State law to determine whether Respondent had been convicted of a 

dangerous drug law. 
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 The ALJ, however, found that the regulation was not plain on its face and looked to the 

regulatory history of 33 CFR 20.1307(d) to determine the drafters’ intent when the regulation 

was written in 1999. The ALJ found that the drafters in 1999 intended the regulation to be 

consistent with 46 CFR Part 10. The drafters, in response to a comment that 33 CFR Part 20 

define the word “conviction,” stated that “we believe that 33 CFR 20.1307 establishes a 

definition of the term ‘conviction’ that both is adequate and consistent with the definition in 

46 CFR 10.103.” See 64 Fed.Reg. at page 28060 (May 24, 1999). 

 The ALJ found that “conviction” under 46 CFR 10.103 included cases of deferred 

adjudication and that the drafters intended for this definition to be used in reference to 33 CFR 

Part 20. 

 “Conviction” as defined at 46 CFR 10.103 provides in pertinent part: 

 If an applicant pleads guilty or no contest, is granted deferred adjudication, or is 

 required by the court to attend classes, make contributions of time and money, receive 

 treatment, submit to any manner of probation or supervision, or forego appeal of a trial 

 courts conviction, then the applicant will be considered to have received a conviction. 

 (emphasis added) 

 The ALJ’s analysis led him to the conclusion that the word “or” in 33 CFR 20.1307(d) is 

used in the same way the word “or” is used in 46 CFR 10.103, as a disjunctive to highlight two 

or more alternatives. See [Tr. at 76]. The ALJ then examined the Washington State drug 

diversion program. As noted previously, as part of the Superior Court’s Drug Court Program, 

Respondent entered a program where he underwent treatment for drug use, paid a fee, and was 

placed on supervision including periodic urinalysis testing. In addition, the state court entered an 

order, directing Respondent to participate in the program. The ALJ determined the components 

of the program described above met the definition of “conviction” as it is used in 
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33 CFR 20.1307(d). 

 The ALJ also analyzed Appeal Decisions 2355 (RHULE), 2611(CIBULKA) and 2435 

(BABER). The ALJ determined that all three cases involved pleas of nolo contendere unlike the 

case at hand, which does not involve a plea at all. The ALJ found those cases require only that 

the ALJ to refer to state law to interpret meaning of a plea of nolo contendere or no contest in the 

state in which the plea is made. [Tr. at 74]. I concur with the ALJ. The holdings in the above 

cited cases do not bind the hands of the ALJ. At most they stand for the proposition that the ALJ 

may analyze state law to determine whether a plea of nolo contendere or no contest in a state 

court constitutes a conviction either under state law or for purposes of federal regulations. Those 

cases in no way suggest the ALJ is prohibited from examining federal regulations and regulatory 

history for the same purpose. The hearing transcript demonstrates that the ALJ wisely examined 

all resources at his disposal to make the most informed decision possible. 

 The ALJ is vested with broad discretion to resolve inconsistencies in evidence. Appeal 

Decisions 2527 (GEORGE), 2522 (JENKINS), 2519 (JEPSON), 2516 (ESTRADA), 2503 

(MOULDS), 2492 (RATH), 2614 (WALLENSTEIN). Findings of the ALJ need not be 

consistent with all the evidentiary material in the record as long as sufficient material exists in 

the record to justify the finding. Appeal Decisions 2527 (GEORGE), 2522 (JENKINS), 2519 

(JEPSON), 2506 (SYVERSTEIN), 2424 (CAVANAUGH), 2282 LITTLEFIELD), and 2614 

(WALLENSTEIN).

 Nonetheless, I will reverse the decision of the ALJ if the findings are arbitrary, capricious, 

unsupported by law, clearly erroneous, or based on inherently incredible evidence. Appeal 

Decisions 2570 (HARRIS), aff NTSB Order No. EM-182 (1996), 2390 (PURSER), 2363 
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(MANN), 2344 (KOHANDA), 2333 (AYALA), 2581 (DRIGGERS), 2474 (CARMIENKE), 

2607 (ARIES), and 2614 (WALLENSTEIN). The actions of the ALJ in reviewing 33 CFR 

20.1307(d) in the context of and consistent with 46 CFR 10.101 were within his proper 

discretion in light of the regulatory history illuminating the drafter’s intent. Within this 

framework, the facts surrounding the Respondent’s participation in the Drug Court program met 

the criteria of 46 CFR 10.101 for purposes of “conviction.” In addition, the ALJ’s reliance on 

federal law rather than state law was similarly within his proper discretion. 

 Suspension and revocation proceedings are intended to promote safety of life and 

property at sea. 46 USC 7701. Congress has determined as a matter of public policy that 

involvement with illegal drugs is inconsistent with employment in the merchant marine and has 

required revocation of a holder’s license, certificate of registry, or merchant mariners document 

when the mariner has been convicted within the past ten years of a dangerous federal or state 

drug law. 46 USC 7704. The actions of the ALJ had a legally sufficient bases; the ALJ’s 

decision was not arbitrary or capricious and was not clearly erroneous. Competent, substantial, 

reliable, and probative evidence existed as to Respondent’s arrest for cocaine possession and 

entry into the drug court program and this evidence was presented by the Coast Guard as exhibits 

and properly admitted by the ALJ. 

 

CONCLUSION

 I find that Respondent’s bases of appeal are without merit. Therefore, the finding of proved as 

it relates to the charge and specification is AFFIRMED. 

ORDER
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 The Decision and Order of the Administrative Law Judge dated December 14, 2000, is 

AFFIRMED. 

 T. J. BARRETT 

 Vice Admiral, U. S. Coast Guard 

 Vice Commandant 

Signed at Washington, D.C. this 31st day of July, 2002.