Judges: DIANE D. TREMOR
Agency: Department of Business and Professional Regulation
Latest Update: May 03, 1983
Summary: Petitioner gave no proof that Respondent was operating as a pilot while intoxicated and that he failed to make out casualty report. Dismiss.
81-3112STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL )
REGULATION, BOARD OF PILOT )
COMMISSIONERS, )
)
Petitioner, )
)
vs. ) CASE NO. 81-3112
)
THOMAS A. BAGGETT, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, an administrative hearing was held before Diane D. Tremor, Hearing Officer with the Division of Administrative Hearings, on January 26, 1983, in Tampa, Florida. The issue for determination at the hearing was whether respondent's license as a pilot should be revoked, suspended or otherwise disciplined for the reasons set forth in the Administrative Complaint filed on November 9, 1981.
APPEARANCES
For Petitioner: W. B. Ewers
Post Office Drawer 9008
Coral Springs, Florida 33075
For Respondent: C. Steven Yerrid and
Margaret D. Mathews Holland & Knight Post Office Box 1288
Tampa, Florida 33601 INTRODUCTION
By an Administrative Complaint filed on November 9, 1981, respondent Thomas
Baggett was charged with violating Subsections 310.101(3) and (5), Florida Statutes. Summarizing, it is factually alleged that respondent used alcohol to the extent that his ability to act and fulfill his obligations as a pilot were impaired, failed to remain in the designated channel whereby the tug ran aground and the barge ran over a buoy, failed to report a casualty and disregarded the safe practice of riding on the barge when light so that better visibility could have been obtained.
Respondent's prehearing motions based on lack of jurisdiction of the petitioner to take disciplinary action against a pilot of a federally enrolled vessel were denied.
In support of its case the petitioner presented the testimony of Ronald DeMello, the First Mate of the tug SHIELA MORAN, and its Exhibits 1, 2 and 4 were received into evidence. Respondent testified in his own behalf and presented the testimony of Captain Joseph J. O'Connell and Captain Robert F. Park, both of whom are Tampa Bay pilots, and Frank A. Maye, an investigator with the Department of Professional Regulation. Respondent's Exhibits A through D were received into evidence.
Subsequent to the hearing counsel for both parties submitted proposed findings of fact and proposed conclusions of law. To the extent that the facts proposed by the parties are not included in this Recommended Order, they are rejected as being either not supported by competent, substantial evidence adduced at the hearing, irrelevant or immaterial to the issues in dispute or as constituting conclusions of law as opposed to findings of fact.
FINDINGS OF FACT
Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found:
On March 5, 1981, at approximately 6:00 or 7:00 p.m., Captain Thomas A. Baggett, a licensed Tampa Bay pilot, boarded the tug SHIELA MORAN, for the purpose of piloting it and the barge CARIBBEAN from the Big Bend Electric Power Plant, where it had discharged its load of coal, to the Eastern Associated Terminal, where it was to pick up a load of phosphate.
The SHIELA MORAN is a 126 foot long, 4800 horse-power offshore tug boat. The barge CARIBBEAN is 480 feet long and 75 feet wide. At the time of the transit, the barge was light and had a freeboard of approximately 12 feet. Both vessels were federally enrolled.
After respondent introduced himself to the Master, Captain Andrea Bicchiera, and the First Mate, Ronald DeMello, a discussion ensued between the Master and the respondent as to the appropriate method of pilotage. Bicchiera inquired as to whether respondent would be piloting the vessels from the barge. Respondent told Bicchiera that he would not be going on the barge and would pilot the vessels from the wheelhouse of the tug. A heated debate on this issue followed and respondent refused to pilot the vessels from the barge. The Master thereafter instructed First Mate DeMello to go up on the barge.
Because the barge was unloaded and light, visibility to the port side of the barge was obstructed. The deck of the barge was four to five feet above eye level from the wheelhouse. It was the Master's opinion that proper navigation could only be accomplished by respondent from the barge.
From the wheelhouse of the tug, respondent was able to see forward, aft and to the right. He could also see the ranges in the channel at three miles forward and less than a half mile aft. He felt that he had no real problem with visibility and that he needed to stay in the wheelhouse near the controls to properly navigate the vessels. He therefore remained on the tug SHIELA MORAN during the voyage between the two ports.
It is not the custom in Tampa Bay for a harbor pilot to leave the wheelhouse or pilot house of the tug and go up on the barge, since the pilot would have no control of the vessels from the barge. It is common practice for Tampa Bay pilots to remain on the tug even when their vision is restricted on one side.
Another tug (the A.P. ST. PHILLIP) was assisting at the bow of the barge. Near the turning basin, respondent instructed First Mate DeMello and a deckhand to release the stern line of the tugs so that they could swing around. As they attempted to release the stern line, the line fell over and got caught in the propeller of the assist tug. This rendered the assist tug inoperable. Respondent was required to reduce the speed of his tug in order to allow the assist tug time to get out of the way. The loss of the use of the assist tug, the reduced speed of the SHIELA MORAN and the current (ebb tide) caused the barge to set to the port (South) side of the channel. Three or four minutes after the assist tug became inoperable, the vessels went outside the channel and the tug bumped or touched the bottom. Shortly after this episode, the barge scraped a buoy. While the First Mate observed that a buoy went under the barge, no further evidence of a damaged buoy or a damaged barge was presented. It is not unusual for a tug boat to touch bottom during a transit through Tampa Bay. No report of the tug grounding or buoy incident was made. There was no evidence that the SHIELA MORAN was damaged in any manner from the grounding incident.
While the respondent's tug and the barge were in "C" Cut, another vessel piloted by Captain O'Connell overtook them on the starboard side. Prior to the overtaking, Captain O'Connell called the wheelhouse of the tug SHIELA MORAN to arrange for the passage. Respondent answered the call and instructed O'Connell, in very clear and distinct words, to pass him very slowly because the tug and the barge were not made up too well.
Further on the passage to the Eastern Associated Terminal, and at the time of final docking, there was some dispute between the respondent and the Master as to the proper method of maneuvering the tug, a new assist tug and the barge. The barge was docked without incident.
After docking, respondent disembarked by climbing over the barge and crawling down through small hand holes from the barge to the dock. Captain O'Connell, who shared transportation with respondent back to their vehicles, observed nothing abnormal about respondent's behavior or speech during this ride.
First Mate DeMello believed that respondent "smelled of alcohol" when he first boarded the SHIELA MORAN, and felt that respondent slurred his speech, was argumentative and was not cooperative.
Respondent has been working on tugboats since 1945 or 1946, and has been a Tampa Bay harbor pilot since 1969. It was respondent's testimony that he had had no alcoholic beverages on March 5, 1981, prior to boarding the SHIELA MORAN. The First Mate never told the Master or the respondent that respondent should not be piloting the vessels because of intoxication or incapacitation.
At the conclusion of the voyage, the Master signed respondent's pilotage slip.
CONCLUSIONS OF LAW
The Board of Pilot Commissioners has authority to discipline a licensed state pilot who is guilty of the following:
"Using alcohol to an extent which impairs his ability to fulfill his obligations as a pilot or which impairs his ability to act as a pilot with reasonable skill and safety." Section 310.101(3), Florida Statutes.
and
"Negligence, incompetence, or misconduct in the performance of piloting duties." Section 310.101(5), Florida Statutes.
The Administrative Complaint charges that respondent violated the above-cited statutory provisions by being intoxicated when piloting the barge, by giving commands which had to be countermanded by the Master and which were influenced by intoxication; by failing to remain in the designated channel, by failing to report a casualty and by disregarding "the safe practice of riding on the barge when light so that better visibility could have been obtained." Other than establishing that the vessels did travel outside the designated channel at one point during the voyage, petitioner has failed to prove the remaining factual allegations of its Complaint.
The burden of proof in this proceeding is upon the petitioner to present evidence in support of the allegations in its Complaint which is both competent and substantial. In a matter as grave as a disciplinary proceeding where one's business or professional license is placed in jeopardy, the term "substantial competent evidence" takes on vigorous implications and the "prosecutor's proof [must] be as serious minded as the intended penalty is serious." Bowling v. Department of Insurance, 394 So.2d 165, at 172 (Fla. 1st DCA, 1981).
In this proceeding, the evidence adduced by the petitioner failed to establish that respondent was intoxicated at the time he boarded the tug SHIELA MORAN, or that he was unable to fulfill his obligations as a pilot or that his ability to act with reasonable skill and safety was impaired by the use of alcohol. While First Mate DeMello testified that respondent smelled of alcohol and was argumentative and uncooperative, there was no further evidence that respondent's ability as a pilot was impaired. The evidence demonstrates that respondent did argue against and did not cooperate with the Master's instruction that the vessels be piloted by respondent from the barge as opposed to the wheelhouse of the tug. Maintaining control from the tug is the custom and common practice among Tampa Bay pilots and it is considered the proper method of navigation even when visibility is obstructed in one direction. The only other evidence of respondent acting in an argumentative or uncooperative manner concerned certain maneuvering techniques utilized by the respondent during docking and the passage of a pier or stone bulwark. Inasmuch as these two procedures were accomplished without incidence or harm, it cannot be concluded that respondent's abilities to act as a pilot were impaired by the use of alcohol. The Captain of another ship which passed the respondent's barge and tug and who rode in a car with the respondent immediately after he docked noticed nothing abnormal about respondent's speech or demeanor. Other than the incident of going outside the channel, which is discussed below, there is no substantial, competent evidence which demonstrates that respondent did not pilot the tug and barge with reasonable skill and safety.
Respondent admits that he deviated from the designated channel during his voyage and that the tug SHIELA MORAN touched bottom. This incident was sufficiently explained by the facts that the barge lost the aid of the assist tug, that the remaining tug--the SHIELA MORAN--had to reduce its speed to allow the assist tug to get away and that the current contributed to the movement to the south. No damage to the tug from bumping the bottom was established in the record of this proceeding and it is not uncommon for tugs to touch bottom during their voyages in Tampa Bay. There was also no evidence that a buoy was damaged or that the barge was damaged when it scraped a buoy after the grounding
incident. Respondent did not report a casualty to the Department of Professional Regulation, as required of a vessel which sustains a casualty pursuant to Section 310.111, Florida Statutes, because he was aware of no casualty sustained. The evidence in this proceeding has not established that a casualty was sustained. The mere fact that the vessels did leave the designated channel, standing by itself, is not sufficient to establish that respondent's abilities were impaired by alcohol, or that respondent was guilty of negligence, incompetence or misconduct in the performance of his piloting duties. The incident may equally be explained by the facts that the assist tug became inoperable, the SHIELA MORAN had to reduce its speed and the current caused the southward movement of the vessels.
In summary, it is concluded that the petitioner has failed to prove the factual allegations of its Administrative Complaint by competent substantial evidence and therefore no violations of Section 310.101, Florida Statutes, have been demonstrated.
RECOMMENDATION
Based upon the findings of fact and conclusions of law recited above, it is RECOMMENDED that the Administrative Complaint filed against the respondent on November 9, 1981, be DISMISSED.
Respectfully submitted and entered this 3rd day of May, 1983, in Tallahassee, Florida.
DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32301
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 3rd day of May, 1983.
COPIES FURNISHED:
W. B. Ewers, Esquire Post Office Drawer 9008
Coral Springs, Florida 33075
C. Steven Yerrid, Esquire Holland & Knight
Post Office Box 1288 Tampa, Florida 33601
Fred Roche, Secretary Department of Professional
Regulation
130 North Monroe Street Tallahassee, Florida 32301
Jane Raker, Executive Director Board of Pilot Commissioners
130 North Monroe Street Tallahassee, Florida 32301
Docket for Case No: 81-003112
Orders for Case No: 81-003112
| Issue Date |
Document |
Summary |
|
May 03, 1983 |
Recommended Order
|
Petitioner gave no proof that Respondent was operating as a pilot while intoxicated and that he failed to make out casualty report. Dismiss.
|
