STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DELL V. SPIVA )

)

Petitioner, )

)

vs. ) CASE NO. 83-1331RX

)

DEPARTMENT OF PROFESSIONAL )

REGULATION, BOARD OF PILOT )

COMMISSIONERS, )

)

Respondent. )

)

vs. )

) FLORIDA STATE PILOTS' ASSOCIATION, )

)

Intervenor. )

)

)

FINAL ORDER

Pursuant to notice, the Division of Administrative Bearings, by its duly designated Hearing Officer, William E. Williams, held a final hearing in this cause on June 8, 1983, at Tallahassee, Florida.

APPEARANCES

For Petitioner: Robert D. Newell, Jr., Esquire

646 Lewis State Bank Building Tallahassee, Florida 32301-1879

and

Alan Vlcek, Esquire 3100 Independent Square

Jacksonville, Florida 32202

For Respondent: Susan Tully, Esquire

Assistant Attorney General Department of Legal Affairs Suite 1601, The Capitol Tallahassee, Florida 32301

For Intervenor: Edward P. de la Parte, Jr., Esquire

705 East Kennedy Boulevard Tampa, Florida 33602

By petition filed with the Division of Administrative Hearings on May 6, 1983, Petitioner, Dell V. Spiva ("Petitioner") seeks a determination of the invalidity of Rule 2158-5.12(2), Florida Administrative Code, as an invalid exercise of delegated legislative authority. Specifically, Petitioner alleges that the aforementioned rule adopted by the Board of Pilot Commissioners

("Respondent") is invalid because it modifies the plain and ordinary meaning of Section 310.071, Florida Statutes, by deleting one year of statutorily required experience without substituting alternative and equivalent experience requirements.

Final hearing in this cause was scheduled for June 8, 1983, by Notice of Hearing dated May 24, 1983. At the final hearing, Petitioner testified in his own behalf and offered Petitioner's Exhibits 1 through 10, inclusive, which were received into evidence. Respondent called Jane Raker as its only witness.

Respondent offered no exhibits for inclusion in the record at final hearing, but, on June 20, 1983, Respondent filed a Motion to Introduce Late-Filed Exhibit into Evidence. The proposed exhibit is a Final Order issued by Respondent on January 13, 1983, denying Petitioner's application to sit for the licensing examination. Petitioner has objected to the introduction of this exhibit. No good cause having been shown by Respondent as to why this exhibit was unavailable at the time of final hearing, the aforesaid motion is hereby denied. Intervenor called Jane Raker and Helge Krarup as its witnesses at final hearing and offered Intervenor's Exhibit No. 1, which was received into evidence.

Counsel for each of the parties have submitted proposed findings of fact for consideration by the Hearing Officer. To the extent that those proposed findings are not included in this order, they have been specifically rejected as being either irrelevant to the issues involved in this cause, or as not having been supported by evidence of record.

FINDINGS OF FACT

1. On November 15, 1982, Petitioner applied to Respondent to take the January 31, 1983, pilot's examination for the Port of Miami. Prior to that time, Petitioner had served as an apprentice pilot in the Port of Miami from January 1, 1967, through January 1, 1971. Petitioner was terminated from his position as an apprentice pilot with the Port of Miami in 1971, and has not piloted any ships in the Port of Miami or any other port in the state since that time. At the time of his application to take the pilot's examination, Petitioner was over 18 years of age, had been awarded a high school diploma, and was in good physical and mental health. Petitioner had also obtained a valid first class unlimited pilot's license issued by the United States Coast Guard in 1971.

   
   

2. In addition to Petitioner, three other persons, William A. Arata, Stephen E. Nadeau, and Robert K. Brownell, also applied to take the January 31, 1983, pilot's examination for the Port of Miami. Arata submitted his application to sit for the examination on November 19, 1982. At that time, Arata had been licensed as a deputy pilot for the Port of Miami since January 28, 1980. In addition, he possessed an unlimited first class pilot'S license for the Port of Miami and had successfully completed the deputy pilot training program for that port.

   
   

3. On November 24, 1982, Nadeau submitted his application to sit for the January 31, 1983, pilot's examination. Nadeau had been licensed as a deputy pilot in the Port of Miami since July 23, 1980, possessed an unlimited first class pilot's license for the Port of Miami, and had successfully completed the Port of Miami deputy pilot training program.

   
   

4. Brownell applied on November 29, 1982, to sit for the same pilot's examination. At that time, Brownell had been licensed as a deputy pilot for the Port of Miami since July 31, 1980, also possessed an unlimited first class

   pilot's license for the Port of Miami, and had successfully completed the Port of Miami deputy pilot training program.

   
   

5. In accordance with the provisions of Section 310.071, Florida Statutes, the applications of Petitioner, Arata, Nadeau, and Brownell were submitted to the Department of Professional Regulation which, in turn, submitted those applications to Respondent for a determination of eligibility to sit for the licensing examination. Respondent ultimately determined and advised the Department of Professional Regulation that all four applicants were qualified to sit for the licensing examination.

   
   

6. All four applicants took the examination on January 31, 1983, and each of them received a passing grade. In accordance with Rule 21-8.09, Florida Administrative Code, the Department of Professional Regulation ranked the grades received by the applicants from highest to lowest. Petitioner received the lowest grade of the four applicants. Accordingly, since Respondent had certified three openings to be filled for licensed state pilots in the Port of Miami, the Department of Professional Regulation, act some time between February 1, 1983, and May 6, 1983, issued state pilot licenses for the Port of Miami to Captains Arata, Nadeau, and Brownell.

   
   

7. There is in force in the Port of Miami a Deputy Pilot Training Program which has been approved by Respondent. The minimum time required for completion of the program, which is a prerequisite for applying for a state pilot's license, is two years. One of the requirements of the program is that participants obtain a first class unlimited pilot's license from the United States Coast Guard. This license allows the holder to pilot coastwise vessels which sail under the American flag. A state pilot's license standing alone permits the holder only to pilot ships sailing under foreign flags. In order to acquire a first class unlimited pilot's license, an applicant must possess another maritime license, such as a master's or male's license, must meet age and sea experience requirements, and must pass an examination prepared and administered by the United States Coast Guard. In addition, a condition to obtaining a first class unlimited pilot's license is that the applicant must possess a radar observer's certificate.

   
   

8. The Florida State Pilot's Association, Inc., is a nonprofit corporation composed of 59 licensed state pilots from every port in Florida with the exception of Jacksonville and Fort Pierce. Captains Arata, Nadeau, and Brornell are members of that organization. The purpose of the organization is to represent the interests of its members at local, state, and federal levels.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, this proceeding. Section 120.56, Florida Statutes.

   
   

10. Section 310.071(1), Florida Statutes, provides, in pertinent part, that:

    
    

    1. In addition to the requirements specified in this chapter, applicants for a license as a state pilot or for certifi- cate as a deputy pilot shall also possess the following qualifications:

       (b) Shall have had 3 years service

       as a deputy pilot or as an apprentice pilot in the port wherein license or

       certification is desired or, alternatively, equivalent maritime experience satisfactory to the board. . . .

       
       

11. Pursuant to the authority delegated to Respondent by the legislature in Section 310.071(1)(b), Respondent has promulgated Rule 2188-5.12(2), Florida Administrative Code, which provides as follows:

    
    

    (2) It is required that applicants

    for a license as a state pilot have had at least two years service as a deputy pilot in the port wherein license as a licensed state pilot is desired. Such service to have been attained during the

    equivalent period immediately proceeding [sic] the examination. Further, each applicant shall have a valid first class unlimited pilot's license covering all of the waters

    of the port wherein license as a state pilot is desired and shall have success- fully completed the Board approved deputy pilot trainee program in the port wherein license as a state pilot is desired. . . .

    
    

12. Section 310.081(2), Florida Statutes, provides, in part, that ". . .

    [a] deputy pilot shall be authorized by the department to pilot vessels within the limits and specifications established by the licensed state pilots at the port where the deputy is appointed to serve."

    
    

13. To effectuate the requirements of Section 310.081(2) Florida Statutes, quoted above, Respondent has promulgated Rule 2155-5.19, Florida Administrative Code, establishing requirements for deputy pilot training programs. That rule provides, in pertinent part, as follows:

    
    

    The following requirements constitute the parameters within which deputy pilot training programs shall be established and carried out by the licensed state pilots at all Florida ports:

    1. Immediately upon receiving his appointment, a deputy pilot shall report to the licensed state pilots at the port he is appointed to serve and shall begin a period of not less than ninety days as an "observer trainee".

    2. The "observer trainee" shall accompany pilots, becoming thoroughly familiar with all of the waters, the channels, the harbor and the port under varied conditions.

    3. The "observer trainee" must obtain

       a valid first class unlimited pilots license covering all of the waters of the port before the Board will authorize him to pilot ves- sels within the limits and specifications

       established by the licensed state pilots of the port.

    4. Upon completion of the "observer trainee" period, the deputy pilot must submit to the Board a Deputy Pilot Vessel Handling Form for each vessel upon which he has accompanied a pilot. Each form shall be signed by the pilot in charge

       who accompanied the deputy pilot and shall accurately recite the vessel's registry, length, gross tonnage, draft, name of berth vessel was piloted to or from, weather and sea conditions, time of day, any reportable casualties, comments of pilot in charge and whether the pilot in charge turned the navigation of the vessel over to the deputy pilot.

    5. Each request to increase the limits

       and specifications under which a deputy pilot is authorized to pilot shall be submitted

       to the Board and shall be accompanied by a Deputy Pilot Handling Form for each vessel the deputy pilot has piloted since his

       limits and specifications were last increased by the Board.

    6. successful completion of the two

       year deputy pilot training program requires that a deputy pilot shall have gradually been increased in his authorized limits

       and specifications until he has been author- ized by the Board to pilot vessels with a maximum draft of not more than three feet less than the normal maximum draft allowable in the port where he is authorized to pilot as proposed by the pilots in the port and approved by the Board.

       (8) The licensed state pilots in each port shall, after the effective date of this rule, submit to the Board for its approval a revised and updated deputy pilot training program.

       
       

14. Where, as here, the statute invests an agency with broad rulemaking authority:

    
    

    . . . the validity of regulations promul- gated thereunder will be sustained so

    long as they are reasonably related to the purposes of the enabling legislation and are not arbitrary or capricious. . . .

    (Florida Beverage Corp. v. Wynne, 306 So.2d 200,202 (Fla. 1 .DCA 1975)

    In Agrico Chemical Co. v. State, 365 So.2d 759, 763 (Fla. 1 DCA 1979) it was held that:

    
    

    A capricious action is one which is taken without thought or reason or irrationally. An arbitrary decision is one not supported by facts or logic, or despotic. Administrative discretion must be reasoned and based upon competent substantial evidence. Competent substantial evidence has been described as such evidence as

    a reasonable person would accept as adequate to support a conclusion.

    
    

15. Both Petitioner and Intervenor possess requisite standing to participate as parties in this proceeding. See, Professional Firefighters of Florida, Inc. v. Department of Health and Rehabilitative Services, 396 So.2d 1194 (Fla. 1 DCA 1981); Florida Homebuilders Association v. Department of Labor and Employment Security, 412 So.2d 351 (Fla. 1982).

    
    

16. Petitioner contends that Rule 2155-5.12(2) Florida Administrative Code, is invalid in that it constitutes an arbitrary and capricious reduction by one year of the three year statutory time for service as a deputy pilot in the port in which licensure is sought, and does not establish alternative or equivalent maritime experience for persons serving as deputy pilots. According to Petitioner's argument, the effect of this allegedly invalid rule was to enable his three competitors, who did not meet the three-year requirement contained in Section 310.071(1)(b), Florida Statutes, at the time they applied to sit for the licensing examination to become licensed as state pilots notwithstanding their failure to meet the statutory requirements. Petitioner argues that the challenged rule contains no objective standards for determining "successful completion" of the deputy pilot training program, and otherwise contains requirements that are already practically or legally inherent in service as a deputy pilot in the Port of Miami.

    
    

17. It is specifically concluded, as a matter of law, that each of these contentions is without merit. Section 310.071(1)(b), Florida Statutes, allows an applicant with three years service as a deputy or apprentice pilot to sit for the licensing examination without regard to the point in time when the three years' experience was obtained. That statutory section allows Respondent to substitute satisfactory equivalent maritime experience for this three-year period of service. In the challenged rule, Respondent has determined that a two-year period of service as a deputy pilot in the period immediately preceding the examination, together with successful completion of a deputy pilot trainee program approved by Respondent, constitutes satisfactory equivalent maritime experience. Contrary to Petitioner's contentions, Rule 2155-5.19, Florida Administrative Code, contains ample criteria against which to judge an applicant's "successful completion" of a deputy pilot training program.

    
    

18. In Department of Health and Rehabilitative Services vs. Framat Realty, Inc., 407 So.2d 238, 241-242 (Fla. 1 DCA 1981), it was held that:

    
    

    . . . the APA plainly regards rules as the valuable endpoint in the agency's development of policy. Rules represent an agency's considered decision on issues

    left to the agency's decision by sub- stantive act of the legislature. If we are to regard seriously the incentives for rulemaking under the APA scheme,

    and if we are to credit the deliberative process that the legislature has pre- scribed for the development of agency policy, then surely an interpretative rule emerging from this process should be accorded a most weighty presumption of validity. Otherwise the elaborate statutory scheme, pressing for rule- making and prescribing how it shall be accomplished with maximum public and private participation, has no productive purpose, and it has become only a snare for agency action, a device for the evasion, avoidance, or postponement

    of effective agency action in its authorized field of responsibility.

    
    

    When as here an agency has responded to rulemaking incentives and has allowed affected parties to help shape the rules they know will regulate them in the future, the judiciary must not, and we shall not overly restrict the range of an agency's interpretative powers.

    Permissible interpretations of a statute must and will be sustained, though

    other interpretations are possible

    and may even seem preferable according to some view. If the rule binds

    too tightly to suit them, [litigants] have their proper remedy in the rep- resentative and politically responsive branches, the legislative or executive, but not the judiciary, nor in Section

    120.56 rule challenge proceedings before a hearing officer.

    
    

19. It is specifically concluded, as a matter of law, that adoption of Rule 2158-5.12(2), Florida Administrative Code, was within the authority granted Respondent by the Legislature, that the requirements of the rule are appropriate to the legislative intent expressed and inherent in Sections 310.001 and 310.071(1), Florida Statutes, and that the subject matter of the rule is reasonably related to the purposes of the enabling legislation. Accordingly, based upon the foregoing Findings of Fact and Conclusions of Law, the relief sought by Petitioner should be, and the same is hereby, DENIED.

ENTERED this 10th day of August, 1983, at Tallahassee, Florida.

WILLIAM E. WILLIAMS

Hearing Officer

Division of Administrative Hearings Department of Administration

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 10th day of August, 1983.

COPIES FURNISHED:

Robert D. Newell, Jr., Esquire 646 Lewis State Bank Building Tallahassee, Florida 32301-1879

Alan Vlcek, Esquire 3100 Independent Square

Jacksonville, Florida 32202

Susan Tully, Esquire Assistant Attorney General Suite 1601, The Capitol Tallahassee, Florida 32301

Edward P. de la Parte, Jr., Esquire 705 East Kennedy Boulevard

Tampa, Florida 33602

Liz Cloud, Chief

Bureau of Administrative Code Department of State

Suite 1802, The Capitol Tallahassee, Florida 32301

Carroll Webb, Executive Director Joint Administrative Procedures Committee

120 Holland Building Tallahassee, Florida 32301

Docket for Case No: 83-001331RX

Orders for Case No: 83-001331RX