UNITED STATES OF AMERICA 

U.S. DEPARTMENT OF HOMELAND SECURITY 

UNITED STATES COAST GUARD 

UNITED STATES COAST GUARD 

Complainant 

vs. 

CLARENCE MARSHALL, JR. 

Respondent. 

Docket Number: CG S&R 04-0351 

CG Case No. 2100406 

DECISION AND ORDER 

Issued: October 28, 2004 

Issued by: Jeffie J. Massey, Administrative Law Judge 

Appearances: 

CWO Jason Boyer 

LCDR Ronnie Patrick 

U.S. Coast Guard 

800 David Drive 

Morgan City, LA 

For the Coast Guard 

CLARENCE MARSHALL, JR. 

PROSE 

For the Respondent 
PRELIMINARY STATEMENT 

On July 12, 2004, the United States Coast Guard (''USCG" herein) initiated an 

administrative proceeding against credentials issued to Clarence Marshall by the USCG. On 

that same date, Respondent's Answer was received by the Docketing Center. In his Answer, 

Respondent Clarence Marshall ("Respondent" or ''Mr. Marshall" herein) denied the factual 

allegations and requested an opportunity to be heard on the remedy proposed by the USCG. He 

also wrote in the body of the Answer: 

... I Clarence disagree with all allegations on consuming alcohol 

or being under the influence on board M/V Elefante. 

The Complaint was the subject of the hearing held in Morgan City, Louisiana on 

September 30, 2004. The USCG presented three witnesses: Charles Portier, an Operations 

Manager for Tidewater Marine (Respondent's former employer), Ira Robertson, Jr., a group 

coordinator for Tidewater Marine, and John Ryan, Captain of the ELEFANTE GRANDE on 

May 22, 2004. Respondent was the only witness to testify on his behalf. 

At the end of the testimony the evidentiary record was held open, allowing the USCG a 

period of fourteen (14) days to submit a request that additional testimony be taken relevant to the 

written statement of Robert Wood, which had been admitted into evidence by the undersigned, 

over the objection of the USCG. No such request was submitted, so the evidentiary record was 

considered closed at the end of the fourteen day period (October 14, 2004). 

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FINDINGS OF FACT 

THE FIRST ALLEGATION IN THE COMPLAINT: 

1. On May 22, 2004, Respondent was acting under the authority of his Merchant 

Mariner's credentials as he served on board the ELEFANTE GRANDE. 

2. The VesselELEFANTE GRANDE is a vessel subject to inspection by the USCG. 

3. On May 22, 2004, there was a fight on board the ELEFANTE GRANDE, where 

Crew Member Curtis Ferrill attacked the Respondent. 

4. As a result of this fight, the Respondent suffered moderate bodily injury, but Crew 

Member Curtis Ferrill did not suffer any injuries. 

5. After the Respondent was removed from the vessel (at the discretion ofthe 

employer), Respondent was requested to undergo ''testing", understood to be 

chemical testing. 

6. Respondent denied that he was requested by his employer to submit to chemical 

testing, after he was removed from the vessel. 

7. At the time the employer requested Respondent to submit to chemical testing, at least 

two people had had an opportunity to observe the Respondent. 

8. At the time the employer requested Respondent to submit to chemical testing, only 

one person had indicated a suspicion of alcohol use (based on "glassy eyes", a "very 

loud" odor of alcoholic beverage, and the alleged statement by Respondent, that he 

had "had a couple of drinks on board"). 

9. At the time the employer requested Respondent to submit to chemical testing, no 

person had observed evidence that the Respondent's manner, disposition, speech, 

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muscular movement, general appearance or behavior had been effected by an 

intoxicant so that it was apparent by observation. 

10. At the time the employer requested the Respondent to submit to chemical testing, no 

person had observed the Respondent ingest an intoxicant. 

11. After Mr. Robertson asked the Respondent to submit to a chemical test, the 

Respondent indicated he would rather go home than do the testing, and Mr. 

Robertson let the Respondent leave. 

12. Contrary to Mr. Robertson's testimony, the Respondent did not tell him he had ''had a 

couple of drinks on board." 

THE SECOND ALLEGATION IN THE COMPLAINT: 

1. On May 22, 2004, Respondent was acting under the authority of his Merchant Mariner's 

credentials as he served on board the ELEFANTE GRANDE. 

2. The Vessel ELEFANTE GRANDE is a vessel subject to inspection by the USCG. 

3. Company policy did prohibit the use of alcoholic beverages on board the ELEFANTE 

GRANDE. 

4. On May 22, 2004, the Respondent did not bring alcohol on board the ELEFANTE 

GRANDE. 

5. On May 22,2004, the Respondent did not consume alcohol on board the ELEFANTE 

GRANDE. 

4 
THE THIRD ALLEGATION IN THE COMPLAINT: 

1. On May 22, 2004, Respondent was acting under the authority of his Merchant Mariner's 

credentials as he served on board the ELEFANTE GRANDE. 

2. The Vessel ELEFANTE GRANDE is a vessel subject to inspection by the USCG. 

3. On May 22,2004, the Respondent was "operating" the ELEFANTE GRANDE. 

4. On May 22, 2004, the Respondent was not under the influence of alcohol while operating 

the ELEFANTE GRANDE. 

ULTIMATE FINDINGS OF FACT AND CONCLUSIONS OF LAW 

1. On May 22, 2004, Respondent was a holder of a Coast Guard issued license and other 

documents issued by the USCG, and he was acting under the authority of said documents when 

he was on duty aboard the Vessel ELEFANTE GRANDE. 

2. The Coast Guard failed to prove by a preponderance of the evidence that sanctions are 

warranted against Respondent's license under 46 U.S.C. 7703, because the evidence failed to 

prove an act of misconduct by the Respondent on May 22, 2004. 

3. The Coast Guard failed to prove that the Respondent ''refused" to submit to a chemical 

test that was requested by his employer based on "reasonable cause" pursuant to the provisions 

of33 CFR Part 95, specifically §95.035. 

4. The Coast Guard failed to prove that the Respondent brought or consumed alcohol on 

board the vessel ELEFANTE GRANDE, in contravention of the policies ofTidewater Marine 

(Respondent's employer). 

5. The Coast Guard failed to prove that the Respondent was intoxicated on May 22, 2004, 

when he was on duty aboard the Vessel ELEFANTE GRANDE. 

5 
DISCUSSION 

The Administrative Procedure Act (APA), 5 U.S.C. 551-59, governs Coast Guard 

suspension and revocation hearings. 46 U.S.C. 7702(a). The AP A only authorizes sanctions to 

be imposed if, upon consideration of the record as a whole, the charges are supported by reliable, 

probative, and substantial evidence. 5 U.S.C. 556(d). ''The term substantial evidence is 

synonymous with preponderance of the evidence as defined by the Supreme Court." Appeal 

Decision 2477 (TOMBARI) (1998). The burden of proving a claim by a preponderance of the 

evidence "simply requires the trier of fact 'to believe that the existence of a fact is more probable 

than its nonexistence before [he] may find in favor of the party who has the burden to persuade 

the [judge] of the fact's existence."' Concrete Pipe and Products of California, Inc. v. 

Construction Laborers Pension Trust for Southern California, 508 U.S. 602, 622 (1993)(citing In 

re Winship, 397 U.S. 358, 371-72 (1970)(Harlan, J., concurring)(brackets in original)). Under 

Coast Guard procedural regulations, the Coast Guard bears the burden of proving the charges by 

a preponderance of the evidence. 33 CFR §§ 20.701, 20.702(a). Therefore, the Coast Guard 

must prove with reliable and probative evidence that Respondent more likely than not committed 

the violations charged. 

In these proceedings, the Administrative Law Judge is vested with broad discretion to 

determine witness credibility and resolve inconsistencies in the evidence, and the findings of the 

Administrative Law Judge are not required to be consistent with all the evidence in the record as 

long as there is sufficient evidence to justify the finding. Appeal Decision 2639 (HAUCK) 

(2003). In this case, I find Respondent is credible, and the record as a whole supports the key 

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elements of his testimony. There are significant conflicts in the evidence of record, and there are 

significant deficiencies in the evidence presented by the USCG, both of which have resulted in 

my conclusion that the allegations against the Respondent have not been proven by the required 

level of evidence so that I am not convinced it is more likely than not that the Respondent 

committed the charged violations. To best understand the inconsistencies and deficiencies in the 

record, a general discussion of the evidence of record is necessary. 

The first witness called by the USCG was Charles Portier, an operations manager for 

Respondent's employer, Tidewater Marine. He testified that on May 22, 2004, he was on call for 

Tidewater and that he received a telephone call from the captain of the ELEFANTE GRANDE at 

about 1 :30 a.m.. The Captain reported that there had been a fight on board, the harbor police had 

been called, and the persons involved in the fight had been separated. The vessel was moored at 

a public dock at the time, and both persons involved in the fight were transported (by separate 

vehicles) to locations away from the boat. The Crew Members transported from the vessel 

arrived at offices belonging to Tidewater about two hours later.1 The Respondent was taken to a 

location other than Mr. Portier, who had gone to the vessel. 

The witness testified that he received a telephone call from Mr. Robertson who was with 

the Respondent at a location away from the vessel. During this telephone call, the witness 

testified that he heard Mr. Robertson tell the Respondent he needed to submit to ''testing" and he 

heard the Respondent say that he was not going to do the testing. 

1 Through this witness, the USCG attempted to introduce the (positive) results of tests administered to two Crew 

Members, positive for alcohol. Based on the record before me, I excluded this evidence as unreliable hearsay, 

finding, as a matter oflaw, that these results were so far removed from the personal knowledge of this witness (or 

any other witness present to testify) that I had no way to evaluate their validity. The USCG could have presented 

witnesses which could have validated these test results. Failing to do so, to protect the integrity of the evidence in 

the record, I concluded the test results should not be considered by me as proof that any other Crew Member was 

intoxicated while on board the vessel. At this point in time, having heard the USCG's entire case, I find that even if 

I had admitted and considered this hearsay to prove the truth of the matter asserted, my ultimate findings of fact and 

conclusions of law would be the same in this case. 

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The witness performed a search of the vessel but did not find any alcoholic beverages 

aboard the vessel. 

The witness testified that as part of the Respondent's initial hiring process at Tidewater, 

the Respondent acknowledged, in writing, that Tidewater had a policy which prohibited the 

possession of intoxicating beverages, etc., on board their vessels. 

The next witness called by the USCG was Mr. Robertson, a group coordinator for 

Tidewater Marine. He was on call that week, so he received a call from Mr. Portier, advising 

him ofthe situation aboard the vessel ELEFANTE GRANDE. The witness went to one of 

Tidewater's office, where the Respondent arrived about 5:00a.m. He testified that he spoke with 

the Respondent for a few moments, and advised him that he needed to submit to ''testing." He 

further testified that the odor of an alcoholic beverage was "very loud" and that the Respondent's 

eyes were "glassy." 

The witness further testified that during his conversations with the Respondent, he told 

him it was company policy to submit a statement (about the incident) and to "do a test." After 

the Respondent refused to submit to a test, the witness testified that he offered him medical 

attention for his injuries, which were visible to one of his eyes and his lips. The witness testified 

that he was prepared to call someone to the Respondent's location to do a breath alcohol test. 

The witness further testified that the Respondent said he just wanted to go home, and in fact did 

leave. 

The last witness called by the USCG was John Ryan, Captain of the ELEFANTE 

GRANDE on May 22, 2004. In fact, he came on duty the day before, where the Respondent and 

other Crew Members were already in place. The Crew Members were manning watches, 

awaiting a job assignment. Captain Ryan testified that he was on watch, and the Respondent was 

8 
the person who relieved him. During the watch change, he and Respondent conversed. Based 

on that conversation (and his later conversations with the Respondent, after the fight), the 

Captain had no reason to suspect the Respondent had been consuming alcoholic beverages. 

After the Captain went off watch (at midnight), and the Respondent went on watch, the 

Captain went to his room and went to sleep. He was wakened by noises, which turned out to be 

from the fight in the wheelhouse. When he arrived in the wheelhouse, there were words being 

exchanged between the Respondent and Crew Member Curtis Ferrill. There was broken glass 

and blood on the floor; the Respondent was injured, but Curtis Ferrill was not. Curtis Ferrill was· 

told to go downstairs, which he did, but he also kept taunting the Respondent. The taunting kept 

up, and eventually, the Respondent left his state room (where he had been instructed to go) and 

went to the level where Curtis Ferrill was. The Respondent was upset about the taunting, which 

included racial epithets, and the Captain concluded that it was best to call the Harbor Police. 

The Captain further testified that Curtis Ferrill was supposed to be sleeping or 

whatever-he was not supposed to be in the wheelhouse where the Respondent was on watch. 

The Captain was unable to testify that he noticed any odors of alcoholic beverages in the 

wheelhouse; he testified he was concerned about other things at the time. 

The Captain further testified that the day before this incident, the Respondent and Curtis 

Ferrill had made a trip to the grocery store, to purchase supplies for the vessel. This is something 

that they had done before. They were gone between four to six hours, which was normal for this 

trip. 

The Captain further testified that after some Crew Members tested positive for alcohol on 

May 22, 20042, he initiated his own search ofthe vessel for alcohol. A '12 gallon of vodka, with 

2 The statement about positive tests is admissible in this form, as it is not offered to prove the truth of the statement 

asserted, but merely as a predicate for explaining the rationale of another search for alcoholic beverages. 

9 
about three inches of liquid left in it, was found in a common shower. This was found over a day 

after the incident (fight) occurred. No one on the vessel claimed ownership of the vodka, but the 

Captain noted that at this point, three Crew Members who had been present on board the 

previous day, were no longer on board. 

After being advised as to his right to testify, the Respondent did decide to give his own 

testimony. He testified that the Captain woke him up about 11 :30 p.m. and he reported to the 

wheelhouse to work at midnight. At about 1:15 a.m., Curtis Ferrill and Robert Wood (another 

Crew Member) came into the wheelhouse. The Respondent observed that Curtis Ferrill looked 

like he had been drinking. The Respondent testified that he and Curtis Ferrill had had words 

earlier in the day, after Curtis Ferrill had been listening to a phone conversation between the 

Respondent and his fiance. 

Curtis Ferrill started up again with the Respondent and Robert Wood tried to step in 

between them; but, Curtis Ferrill charged at the Respondent, grabbing him and causing him to 

fall, hitting some glass and breaking it. At that point, Curtis Ferrill began wailing on the 

Respondent. Soon after, Captain Ryan showed up and separated them. 

As for the trip to get groceries, the Respondent confmned the basic timeframe given by 

the Captain. He added that once at the store, he and Curtis Ferrill split up the list so that each 

was shopping on his own, with his own cart. Although, they did end up checking out at the same 

time. In response to questioning from the USCG as to whether or not Curtis Ferrill purchased 

any vodka while at the grocery store, the Respondent noted that he didn't see any; and, the 

grocery store wasn't going to let them buy vodka on Tidewater's account, anyway. 

The Respondent flatly denied that he had consumed any alcoholic beverages before or 

during his watch while on the ELEFANTE GRANDE He testified that prior to his shift, after 

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returning from the grocery store, he showered, ate, watched a movie, then slept, before being 

woken by the Captain at around 11 :30 p.m. The Respondent also denied that he had been asked 

by Mr. Robertson to submit to testing, once he arrived at Tidewater's offices. The Respondent 

did remember Mr. Robertson asking him if he needed medical attention. The Respondent 

testified that he had been on duty aboard the vessel for six days prior to these events, that he was 

due to be off duty the next day (because his mother had suffered a stroke). He further testified 

that the whole incident with Curtis Ferrill had upset him so much, that he felt like quitting his 

job. In fact, he produced his ''pink slip" from Tidewater which had the box next to "voluntarily 

quit" marked, but then scratched out. Instead, the box next to "Discharge-violation of company 

policy'' was marked. 

While testifying, the Respondent asked if there had been other statements taken from 

other witnesses to the incident, particularly, Robert Wood. The USCG tendered a written · 

statement from Robert Wood to the undersigned. After reviewing said statement, the 

undersigned decided it was probative, and, since it had been in the possession of the USCG and 

they had had ample opportunity to investigate it's veracity, decided ~o read it into the record. 

The statement asserted that Curtis Ferrill had told Robert Wood that both he and the Respondent 

had bought bottles of vodka while they were on their grocery shopping trip. Mr. Wood's 

statement further indicated that, before the fight occurred, he and Mr. Ferrill had been in Mr. 

Ferrill's cabin drinking vodka. Mr. Wood's statement basically verified the version of events 

that occurred afterwards, as testified to by Captain Ryan and the Respondent. 

11 
ACTING UNDER THE AUTHORITY 

Title 46 U.S.C. §7703(1)(a) provides that a license, certificate of registry, or merchant 

mariner's document may be suspended or revoked ifthe':holder when acting under the authority 

of his license, certificate, or document violates or fails to comply with subtitle II of Title 46 of 

the United States Code, a regulation prescribed under subtitle II of the Title 46 of the United 

States Code, or any other law or regulation intended to promote marine safety or to protect 

navigable waters. 

A person employed in the service of a vessel is considered to be acting under the 

authority ofhis/her license, certificate, or MMD when the holding of that license, certificate, or 

MMD is required by law, regulation, or by the employer as a condition of employment. 46 CFR 

§5.57(a). !flaw, regulation, or condition ofhis employment did not require the Respondent to 

have a license or MMD, then the Coast Guard does not have jurisdiction under 46 CFR §5.57(a) 

over the alleged violation oflaw. See Appeal Decision 2620 (COX) (2001). Therefore, the 

Coast Guard must prove Respondent was employed in the service of a vessee when he 

committed a violation oflaw and Respondent's merchant mariner's credentials were either (1) 

required by law or regulation or (2) as a condition of his employment. 

To find that a law or regulation required Respondent to hold a license or MMD, the 

vessel's certificate of inspection or a description of the vessel must be admitted into evidence. 

See Appeal Decision 2283 (FUEHR) (1982). The testimony in this case shows the description 

of the ELEFANTE GRANDE, establishing it was subject to inspection. Further, the testimony 

in this case reflects that it was necessary for the ELEFANTE GRANDE to have a mate onboard 

3 Employed in the service of a vessel does not require respondent to have boarded the vessel. Appeal Decision 2615 

(DALE) (2000) (Respondent was acting under the authority of his MMD when his employer had assigned him to a 

vessel, but Respondent had not boarded.). 

12 
while the vessel was "operating." In this case, Respondent held a Coast Guard issued MMD and 

a license authorizing him to serve as mate of steam or motor vessels of various tonnage, under 

various conditions (10 Ex. 03). At the time in question, Respondent was employed as mate 

aboard the offshore supply vessel ELEFANTE GRANDE, which according to the testimony, was 

a ship of the type included within the purview of Respondent's license. Therefore, the Coast 

Guard has proved Respondent was acting under the authority of his merchant mariner 

credentials, because he was employed as mate aboard the ELEFANTE GRANDE and his license 

and MMD were required by law for him to serve aboard that vessel. I now turn now the 

question of whether the Coast Guard has proven by a preponderance of the evidence that 

Respondent committed one or more acts of misconduct and/or violated a law or regulation. 

INTOXICATION AND INTOXICATING BEVERAGES 

Based on the record as a whole, it is undisputed that no person observed the Respondent 

drinking alcoholic beverages on May 22-while on board or before boarding the vessel. While 

Mr. Wood'~ statement reflects that the Respondent purchased a bottle of vodka before returning 

to the ship from the grocery shopping trip, he has no personal knowledge of this-his statement 

is based on what Curtis Ferrill told him. Mr. Ferrill certainly demonstrated an animosity towards 

the Respondent-he did physically and verbally attack him-and it is not surprising that he 

would make a statement against the interests of the Respondent. On this issue, I further note that 

only one bottle of vodka was found on board during the search conducted by the Captain. If he 

had found two bottles, Mr. Wood's statement would be corroborated. Since only one bottle was 

found, it seems that Mr. Ferrill was not speaking the truth about what the Respondent had done. 

13 
On the other hand, it certainly appears likely that Mr. Ferrill was consuming alcoholic 

beverages while on board the vessel. Intoxication would explain his physical aggression and 

inflammatory insults. That part of Mr. Woods' statement could be true. But, since what Mr. 

Ferrill did or didn't do is not an issue of fact or law squarely before me in this proceeding, I 

decline to make any ultimate conclusions in this area. 

Turning back to the Respondent, the only suggestion of intoxication comes from the 

testimony of Mr. Robertson. While there is no clear cut motive for Mr. Robertson to not tell the 

truth, his testimony must still be evaluated based on the record as a whole. He reported that as of 

5:00 a.m.-some hours after the Respondent left the vessel-the smell of an alcoholic beverage 

was "very loud" and the Respondent's eyes were "glassy." Could Mr. Robertson have been 

perceiving only what he was pre-disposed to see? Certainly by this time he had been told about 

the fight on board, and most likely, Mr. Portier had communicated other details to him about the 

assailant-Mr. Ferrill. Had Mr. Robertson been told by Mr. Portier that Mr. Ferrill and/or Mr. 

Woods had failed breath tests? Was he just assuming the Respondent had been drinking because 

he had been in a fight? These questions are raised by the record as a whole, and there is an 

absence of evidence in the record so that I cannot resolve them in favor of the USCG, the party 

that carries the burden of proo£ 

Whatever the circumstances, I find the Respondent's straightforward denial about the use 

of intoxicating beverages aboard the vessel is compelling because it is not contradicted by other 

evidence in the record. While Mr. Robertson might believe he smelled alcoholic beverages, I 

find an absence of corroborating evidence in the record to support this testimony. In the face of 

the Respondent's credible denial that he had been drinking, I must resolve this conflict against 

Mr. Robertson. Further, I examined the entire evidentiary record, seeking out confirmation of 

14 
Mr. Robertson's testimony concerning the Respondent's allegedly "glassy" eyes-there was 

none. Based on the record as a whole, it is more likely than not that the Respondent's eyes 

appeared the way they did because of the altercation and the time of morning, rather than 

because he was intoxicated. I conclude that Mr. Robertson truthfully testified to what he sawbut the reason for what he saw is more likely than not to be the altercation and time of morning, 

rather than intoxication. 

Lastly, I focus on the Captain's testimony. In my estimation, his testimony is key with 

respect to the issue of intoxication. He is the person who was in the best position to make 

observations of the Respondent. He spoke with the Respondent in the wheelhouse at midnight. 

He spoke with the Respondent after the fight. He observed nothing to suggest that the 

Respondent had been drinking intoxicating beverages. He was the only witness presented by 

Coast Guard that had been in the company of the Respondent immediately before and 

immediately after the altercation. Coincidentally, he is the one person presented by the USCG 

who was in the company of the Respondent during the period immediately after the time he 

would have been drinking intoxicating beverages, if in fact he had brought intoxicating 

beverages aboard after the grocery shopping trip. I find the Captain's testimony credible. 

CHEMICAL TESTING 

Turning to the issue of whether or not the Respondent refused to submit to chemical 

testing, we must begin the analysis ofthis issue with a reference to the regulations that authorize 

an employer to ask an employee to submit to chemical testing.4 ''Reasonable cause for directing 

4 The Complaint presented in this case fails to specifically cite to the regulation authorizing a request for a chemical 

test based on ''reasonable cause." Because the theory of this allegation was that the Respondent committed an act of 

Misconduct, the Complaint should have cited the exact rule, statute, regulation or other formal duly established rule 

15 
a chemical test" is codified at 33 CPR §95.035, and defines reasonable cause for testing an 

"individual operating a vessel". The direction can come from a law enforcement officer or a 

marine employer, such as Tidewater. There are two circumstances under which it is possible for 

reasonable cause to exist. The first, the occurrence of a marine casualty, is not applicable here. 

The second circumstance allows for testing when an individual is suspected of being in violation 

of § 95.020 (operating a vessel with an alcohol concentration of .04 percent by weight or more 

in their blood), or, operating a vessel and the effect of intoxicants consumed by the individual on 

the individual's manner, disposition, speech, muscular movement, general appearance or 

behavior is apparent by observation. 5 When an individual is suspected of being intoxicated, 

"when practicable a marine employer should base a determination ofthe existence of reasonable 

cause ... on observation by two persons." See §95.035(c), emphasis added. 

Based on the record before me, I find that on May 22, 2004, it was ''practicable" for 

Tidewater Marine to base its determination of reasonable cause [of intoxication on the part of 

Respondent] on the observation of two persons. I further find that Tidewater did not do so. 

Instead, Tidewater relied solely on the observations of Mr. Robertson. Mr. Portier did not see 

the Respondent on May 22. Captain Ryan did see the Respondent on May 22, but failed to note 

any indication of intoxication. Accordingly, although I conclude, based on the record before 

me, that the Respondent was asked by Tidewater to take a chemical test, I further find that 

Tidewater lacked, as a matter oflaw, the requisite ''reasonable cause" to make this request. 

Therefore, I do not find that the Respondent refused to submit to chemical testing on May 22, 

2004. 

violated. While I have chosen to overlook this deficiency in this case, a properly plead Complaint would not be so 

. inappropriately plead. 5 This section also refers to a suspected violation of95.025, which clearly is not applicable here. 

16 
ORDER 

IT IS HEREBY ORDERED that the administrative action against Respondent Clarence 

Marshall, Jr.'s Coast Guard issued licenses shall be dismissed and removed from the docket. 

PLEASE TAKE NOTICE that service of this Decision 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 October 28, 2004 

New Orleans, Louisiana 

17