SO, WHAT DOES SAILING AND ADMINISTRATIVE LAW HAVE IN COMMON?

WHAT DOES SAILING HAVE TO DO WITH ADMINISTRATIVE LAW?

This weekend, the vessel I race on participated in the 2016 Newport to Ensenada Regatta, also known as the N2E 2016.  It's one of the biggest international regattas in the world.  This year, over 200 vessels participated.  The race started outside Newport Beach Harbor and finished, as you might have already guessed, just outside Ensenada, a mid-sized coastal city approximately 60 miles south of the border between California and Mexico.  This year’s event was quite challenging.  The event has often been referred to as a light wind race.  This year, however, there was a lot of wind.  We experienced 20 knots or more and even higher gusts.  The waves were quite big as well, sometimes rolling by in the 8 to 10 foot range with even larger sets experienced every so often. The race course handicap is calculated on a length of 125 miles.  Thus, for all but the fastest multi-hull race boats, these difficult sea conditions had to be endured over night.  Our boat finished in just under 20 hours.

Sailboat racing is governed by a set of rules.  It is according to these rules that events are conducted and issues are addressed.  There are a number of different bodies all over the world that establish the various parameters to which racing sailors are required to adhere.  And, when disputes arise over the conduct of a vessel during the race, such disputes are resolved according to these rules. 

When an event such as the N2E is established, the entity conducting the race (in the case of N2E, the Newport Ocean Sailing Association or NOSA) publishes what is called a Notice of Race.  This document describes the organizing authority and invites eligible skippers to participate under the conditions established by the Notice.  The Notice also identifies the rating authorities (i.e. PHRF or ORCA) and tells all interested parties which set of rules will govern the event.  In the case of N2E, the Notice states that all boats will be governed by the rules as defined in The Racing Rules of Sailing published by US Sailing, the US Safety Equipment Regulations, and the Sailing Instructions published by NOSA. In the case of class-racing within the N2E, certain class rules may also apply.  The Notice may amend or modify certain rules established by the Racing Rules of Sailing as well as the US Safety Equipment Regulations. 

A perhaps more important document, however, is the final Sailing Instructions published by the host organization, generally very close to the start of the event.  The Sailing Instructions, like the Notice of Race, establish the parameters for conducting the event including, but not limited to, the rules that will apply, as well as the specifics as to how the race will be conducted; i.e. where the start line is located, where the finish line will be located, what sound or flag signals may apply, how the start will be conducted, etc. 

Now that you have read the foregoing, you are probably wondering what place this discussion has in a blog about legal issues.  Well,  here's the segue.  Our society is governed by a variety of rules and regulations promulgated by government entities and agencies.  Sailboat racing is also governed by a variety of rules and regulations promulgated by its governing agency or entity.  In sailboat racing, there is a system to resolve disputes, commonly referred to as “protests.” In dealings with government entities or agencies, there is also a mechanism by which issues are resolved, often referred to as Administrative Remedies.  In sailboat racing, the published Notice of Race, but most often the Sailing Instructions, establishes the procedures by which protests in sailboat racing are resolved.  In dealing with government agencies and entities, there are also procedural requirements often established by the same bodies.  Thus, whereas administrative agencies are typically involved when disputes arise involving government agencies (i.e., city, state, county, or even the federal government) concerning rules, regulations, applications, licenses, as well as application of certain laws such as those prohibiting discrimination or applying for disability, workers compensation, or unemployment benefits, Protest Committees are involved when disputes arise over the conduct of the race either by the participants or the conductors (aka Race Committee).

In resolving sailboat racing protests, a protest committee is established which is often the first step in the protest resolution process.  In matters involving the government or its agencies, often the first step is a hearing before an administrative law judge.  In both sailboat racing and in matters involving government or its agencies, there may be an appeal process spelled out in the regulations, not to mention a variety of other steps that must be taken before the outcome can reach finality.  Regardless, in both cases, the process is called “exhausting administrative remedies”, and whether you are dealing with a permit to add a deck onto your house or challenging the means by which a competing vessel rounded a mark of the race course, all administrative remedies generally must be exhausted before one can resort to the judicial system.

In dealing with any government entity and its administrative proceedings, it is important to remember two key things:  first, the rules and regulations are often special for each agency and are not usually found in statutes.  Second, one must exhaust all administrative remedies before one can challenge the administrative ruling with a lawsuit in court.  There are exceptions, but they are rare.  Moreover, the government agency may even employ the judge or administrative hearing officer making the decision affecting its interests.

So as you may have understood, resolving a dispute in sailboat racing is very much like resolving a dispute with a government entity or agency.  The entity holding the race, like a government agency, establishes its rules of operation as well as they way in which disputes are resolved, and who makes the decision.  In some cases it’s a good thing.  In others it is not.  Yet, in either case, as a general rule nobody goes to court unless and until all the administrative remedies are exhausted.  Sometimes the rules and regulations, as well as the procedures to go forward with an administrative proceeding are complex, so it’s good to have a lawyer with experience in administrative proceedings.

If you are interested in seeing an example of what the administrative rules and procedures for resolving disputes in sailboat racing look like, check out this website:  http://www.sailing.org/documents/protests-forms.php.

In spite of the apparent strictness and complexity of the racing rules of sailing, the fact is that the great majority of disputes that arise out on the race course are resolved between the skippers over a cold beer after the race, and rarely is there a need to resort to the complexities of administrative proceedings in front of a Protest Committee.  After all, we race against our friends.

Expungement: The Eradication of Your Criminal Past

So, you’re filling out that job application or applying for school and must answer the dreaded question: “Have you ever been convicted of a crime?”  And then the realization hits you; do I really have to disclose that DUI I got 20 years ago when I was in college?  Do I really have to disclose the details of that fight I got into that lead to an arrest and then a short stint in the pokey?  Well, unfortunately, if you lie about it, depending on the job you are applying for, your potential employer will likely find out about it, and your chances of getting that job will diminish considerably if not completely.  Even if you tell the truth and disclose, the fact of the conviction may give someone else applying for the same job with the same experience as you an edge.  Furthermore, some employers may simply not want to hire you because of an unfortunate incident in your distant past. Fortunately, there may be something you can do about it.

In many cases, if your involvement with the criminal justice system resulted in a misdemeanor conviction, you may be able to get that conviction “expunged” or erased.  California Penal Code section 1203.4 provides that, in a case where you have fulfilled the conditions of probation for the entire period of probation, or have been discharged prior to the termination of the period of probation, and if you are not serving any sentence for any other offense and are not on probation for any other offense, and have no new cases pending, your record may be cleared.   What happens is this: upon preparation and filing of the appropriate petition, the court will re-open the case, allow you to withdraw your plea of guilty or no contest, or otherwise set aside the judgment of guilt, and then dismiss the case.  The Order “expunging” your record will be disseminated to the appropriate criminal record keeping agencies and with certain limited exceptions, when asked if you have ever been convicted of a crime, you will be legally able to say, “no.”  The exceptions are if you are applying for employment with a government entity, applying for a government issued license (like a real estate license), or if you are applying to contract with the state lottery.  Then, you would have to disclose the conviction, but you would say that it has been expunged pursuant to law, or pursuant to Penal Code section 1203.4.  Note that there are other remedies available if the conviction was a felony as opposed to a misdemeanor, and there are certain offenses for which this remedy is precluded altogether.

Depending upon which county the motion is filed in, this process may take anywhere between 30 to 90 days.  When records of an arrest or conviction are expunged, a notation is made in the file that the records are off limits to all except law enforcement personnel.  As such, for almost all purposes you can treat the conviction as though it never happened.  Please note that this is generally how it works in California.However, the rules about who is eligible for expungement, and the effect of expungement, vary from state to state.

There are many reasons why it may be important to you to have your record cleared.  You may be seeking employment or admission to graduate school.  It may be as simple as the situation where you and another candidate have similar credentials but you are the one with the criminal record thereby giving another person a competitive edge.  It may be as simple as a desire to clean up the past so that the future looks even brighter.  You decide the reason.  Let me help with the nuts and bolts of getting it done.  It's not that expensive or time consuming, but you should have a qualified lawyer help you.