STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL REGULATION, ) BOARD OF PILOT COMMISSIONERS, )

)

Petitioner, )

)

vs. ) CASE NO. 84-2828

)

DAVID A. RABREN, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice this cause came to be heard before Donald D. Conn, a duly designated Hearing Officer of the Division of Administrative Hearings, on January 15, February 18-19 and March 8, 1985 in Tampa, Florida. The parties were represented as follows:

Petitioner: David G. Hanlon, Esquire

David C. Banker, Esquire Post Office Box 3324 Tampa, Florida 33601

Respondent: J. Michael Shea, Esquire

Post Office Box 2742 Tampa, Florida 33601

W. B. Ewers, Esquire Post Office Drawer 9008

Coral Springs, Florida 33075

The Department of Professional Regulation, Petitioner, filed an Administrative Complaint before the Board of Pilot Commissioners against David Rabren, Respondent, on July 13, 1984. Petitioner subsequently amended its Administrative Complaint on October 3, 1984 and alleges in Count I that Respondent allowed unlicensed persons to pilot four foreign registered vessels inbound and outbound on Tampa Bay on several occasions since January, 1984, and alleges in Count II that a marine casualty occurred on February 28, 1984, which Respondent failed to report, while Respondent was "shifting" the foreign registered vessel Atropos Island in a negligent manner.

At the hearing, Petitioner introduced twenty-three exhibits and called thirteen witnesses to testify; Respondent introduced eighteen exhibits and called ten witnesses, including Respondent, to testify. The final volume of the transcript of the hearing was filed on March 20, 1985, and the parties were given until April 12, 1985 to file proposed findings of fact, conclusions of law and memoranda. Petitioner's Exhibits 13 and 22, and Respondent's Exhibit D were

marked for identification only but were not received in evidence. A supporting affidavit for Respondent's Exhibit R and a copy of Exhibit S have not been submitted by Respondent subsequent to the hearing and are therefore hereby excluded.

Respondent filed a Motion to Dismiss Count II of the Administrative Complaint four days before the hearing commenced and during the hearing, at the close of petitioner's case, supplemented his motion to include Count I. Respondent also moved ore tenus for a directed verdict on all counts, or alternatively to strike several paragraphs of the Amended Administrative Complaint. Rulings on these motions were reserved at the hearing since they were not filed within the twenty (20) day time limit required by Rule 28-5.205, F.A.C., and since said rule also requires rulings on such motions to be incorporated in a recommended order for final disposition by the agency head.

Respondent's motions raise two points--the sufficiency of the evidence presented in Petitioner's case in chief, and also a lack of jurisdiction to proceed in this case due to federal preemption. Having reviewed and considered the evidence presented by Petitioner during its case in chief, it is the finding of the undersigned Hearing Officer that said evidence is sufficient to establish a prima facie case for each allegation contained in the Amended Administrative Complaint, and that therefore Respondent's notion to dismiss based on the insufficiency of the evidence is denied. Having reviewed and considered argument and memoranda submitted by the parties on the applicability of the federal preemption doctrine to the facts and law involved in this case, it is the conclusion of the undersigned Hearing Officer that 46 U.S.C. ss. 8501, 8502 do not preempt the State of Florida from regulating the piloting of foreign vessels, including shifting, in Tampa Bay under the facts of this case.

Congress granted states the authority to regulate pilots in bays and ports with the enactment of 46 U.S.C. s. 8501(a), and Florida has adopted Section 310.141, F.S., under that authority which states:

All vessels . . . shall have a licensed state pilot or certificated deputy pilot on board when entering or leaving ports of this state.

Federal pilots are required on American vessels or foreign vessels engaged in coastwide trade "when not sailing on register" pursuant to 46 U.S.C. s. 8502(a). When foreign vessels sail under register, as in this case, state pilots must be used when entering or leaving port, and when engaged in "shifting", as per Section 310.141. See also Sections 310.002(4) and 310.001, F.S. Therefore, Respondent's motion which challenges Petitioner's jurisdiction is denied.

The parties have submitted posthearing proposed findings of fact and conclusions of law pursuant to Section 120.57(1)(b)4, F.S. A ruling on each proposed finding of fact has been made either directly or indirectly in this Recommended Order, except where such proposed findings have been rejected as subordinate, cumulative, immaterial or unnecessary. Specifically, Petitioner's proposed findings numbered 7, 21-25, 27, and 29, and Respondent's proposed

findings numbered 7, 8, 10- 16, 21-29 are rejected, either in whole or in part, for these reasons and also because in some instances they contain legal conclusions not appropriate in findings of fact.

FINDINGS OF FACT

1. At all times material hereto Respondent has been a licensed pilot in the State of Florida, with license number 000050, and has operated as a pilot on Tampa Bay. Respondent received his state license in 1971, and also holds a federal license to serve as:

   
   

   Master of freight and towing vessels of not more than 1000 gross tons upon oceans; master of uninspected motor vessels of not more than 300 gross tons upon oceans; . . . first class pilot

   of steam and motor vessels of any gross tons upon Tampa and Hillsborough Bays to Tampa and Port Tampa, Florida, including Alafia River. . . .

   
   

   Count I

   
   

2. On January 9, 1984, Respondent served as pilot aboard the foreign registered vessel Pennsylvania Rainbow as it sailed outbound from the International Minerals and Chemical Dock. The Pennsylvania Rainbow has a gross tonnage of 13,962, is 527.3 feet long and 81.4 feet wide. During the course of his pilotage duties, Respondent made a radio transmission substantially as follows:

   
   

   "Security, Security--Trico 1 outbound with Trico 3 and 4."

   
   

   Respondent is Trico 1, and Trico 3 and 4 are other members of Tampa Tri-County Pilots Association who do not have state pilot or deputy pilot licenses and who Respondent has sought to designate as "apprentice pilots." After the initial security call by Respondent, both Trico 3 and 4 also gave security calls aboard the Pennsylvania Rainbow. These security calls were overheard by licensed pilots on Tampa Bay who were approximately 15 miles away at the time and were concerned that persons without state licenses were being allowed to pilot the Pennsylvania Rainbow since the custom on Tampa Bay is that the person handling the vessel is usually the one who makes radio transmissions. At no time did the licensed pilots who testified actually see Trico 3 or 4 piloting the vessel.

   
   

3. The foreign registered vessel Golden Laurel sailed inbound on January 22, 1984 to the loading berth at I.S. Joseph Company in Port Tampa with Respondent as pilot and Captain Tu Ting Kuo as master. The Golden Laurel has a gross tonnage of 29,729, and is 738.1 feet long and 105.6 feet wide. Respondent was accompanied by at least one unlicensed person whom he had sought to designate as an "apprentice." The unlicensed person was allowed to give commands which Respondent would overrule if such commands were not correct. Respondent remained on the bridge at all times in the immediate vicinity of the quarter- master and did correct the orders given by the unlicensed person on several occasions.

   
   

4. The foreign registered vessel Trade Unity was inbound to the loading berth at I.S. Joseph Company on February 20, 1984 with Respondent as pilot, accompanied by an unlicensed person. The Trade Unity has a gross tonnage of 35,897 and is 770.14 feet long and 105.3 feet wide. With the permission of the

   master, Respondent allowed the unlicensed person to handle the Trade Unity in order to gain experience and practice. The unlicensed person gave commands which Respondent would overrule if necessary.

   
   

5. On four occasions in June and July, 1984, Respondent served as pilot aboard the foreign registered vessel Marcona Conveyor as it arrived at and departed from Port Tampa. The Marcona Conveyor has a gross tonnage of 32,607, is 831.2 feet long and 106.2 feet wide. According to the master of the vessel, Capt. Charles D. Paden, Respondent permitted unlicensed persons to give commands for routine maneuvers of the vessel. Respondent would stand by on the bridge and intercede if necessary.

   
   

6. Respondent permitted unlicensed persons to practice "piloting" by giving commands for the handling of the Golden Laurel, Trade Unity and Marcona Conveyor, but he contends that he remained on the bridge at all times, "acknowledged" or approved all such commands and overruled incorrect commands when necessary. Respondent also allowed unlicensed persons to practice radio transmissions and give security calls aboard the Pennsylvania Rainbow. His practice was to obtain the permission of the ship's master before allowing unlicensed persons to practice, and to introduce the unlicensed persons, whom he referred to as "apprentices," to the master. Respondent told the masters that he was the pilot of the vessel and would remain in control, while his "apprentices" practiced, by acknowledging their commands and interceding to change their commands whenever necessary.

   
   

7. There is no approved apprenticeship program for pilots in Florida and Respondent's "apprentices" held no form of state authorization to practice or perform piloting. Respondent's practice of allowing unlicensed persons to gain hands-on ship handling experience by making radio transmissions and giving commands added an additional person to the normal chain-of-command on these foreign vessels, thereby increasing the risk of operation by increasing the potential for problems in communication. This is particularly significant with the non- English speaking crews on these foreign ships.

   
   

   Count II

   
   

8. On February 28, 1984 Respondent piloted the foreign registered vessel Atropos Island in a shift from Gardinier Wharf in the Alafia River to Gadsden Anchorage. The Atropos Island has a gross tonnage of 10,019 and is 479.14 feet long and 75.08 feet wide. At the time it left the Gardinier dock, the ship was fully ballasted but had a forward draft of only 4 to 5 feet, a midship's draft of 8 to 9 feet, and an aft draft of 13 feet 9 inches. The propeller was half out of the water, with the upper half of the hub showing. After taking on cargo the loaded draft of the ship on leaving Tampa Bay was 31 feet.

   
   

9. The weather on the morning of February 28, 1984 was overcast with winds out of the northwest at 20 to 30 miles per hour, with gusts to 40 miles per hour. Upon his arrival at the Atropos Island, Respondent monitored the weather broadcast, classified the vessel and waited for the ship to take on maximum ballast. He ordered three tugs to assist the Atropos Island in turning around in the Gardinier turning basin. It took twenty- five minutes for the vessel to complete its turn and begin to transit the Alafia River Channel. After completing the turn the tugs were ordered to release some of their lines. The Atropos Island did not go aground in the turning basin, although the vessel was blown toward the south bank of the basin by the winds to the extent that the tug

   Hillsborough, with a draft of 12 to 13 feet, could not get between the Atropos Island and the bank to push the vessel away from the bank. The tugs then put additional lines up to the vessel and pulled her into the middle of the turning basin.

   
   

10. In transiting the Alafia River Channel, Respondent used a "crabbing" maneuver and this transit took approximately 1 1/2 hours, rather than the normal time of 20 minutes, due to this maneuver, the weather conditions, and Respondent's desire to await the assistance of larger tugs which he had ordered. "Crabbing" was described as a common piloting maneuver, particularly with vessels in light condition in a narrow channel such as the Alafia River Channel which is only 200 feet wide and approximately 2.8 miles long. When crabbing a vessel proceeding westerly through a channel with the wind out of the north- northwest, one tug would be on the starboard bow, the weather side of the vessel. As the vessel's stern begins to drag down, causing the vessel to go broadside, the pilot would put the rudder left, decrease the vessel speed and back the tug. The tug then acts like a spring line to pull the vessel up into a position almost parallel to the channel, at which point the pilot would slow the vessel and order the tug to stop backing. The maneuver would be repeated each time the wind caused the vessel to go off course in the channel.

    
    

11. The evidence presented does not support the charge that the Atropos Island was grounded several times while proceeding down the Alafia River Channel. After considering all of the evidence presented, it appears that this crabbing maneuver used by Respondent was misinterpreted by the tug captains and by those who overheard radio transmissions by Respondent, which may have been "excited" due to the bad weather and difficult conditions in the channel during this transit. Significantly, the shipping agent for the Atropos Island testified that he discussed this transit with the captain of the Atropos Island the next day, and the captain stated the vessel did not run aground at any time while Respondent was piloting the vessel. The captain must account to the vessel's owner for all damage to the vessel the next time it is in dry dock and the owner will hold the captain liable for all unreported damage. Thus, it is not likely the captain of a vessel would not report a grounding if he thought one had occurred in order to protect himself from such liability.

    
    

12. After completing the transit of the channel, the Atropos Island arrived at the location known as "Hillsborough Cut-C" where Respondent anchored the vessel and awaited larger tugs. The larger tugs, Yvonne St. Phillip and Gloria, arrived to assist the Atropos Island in turning at Cut-C, along with the smaller tugs Hillsborough and Pasco. The wind was still out of the north- northwest and the Atropos Island was heading west into the wind, having dropped its port anchor. Respondent had ordered the Hillsborough to take a position on the port bow of the Atropos Island and had positioned the Pasco on the port stern while they awaited the larger tugs. When the larger tug Yvonne St. Phillip arrived, Respondent ordered it to relieve the Pasco and the second larger tug, Gloria, was positioned on the port bow next to the Hillsborough. The Yvonne St. Phillip was pushing on the stern and the Gloria did not immediately put a line up at the bow. With the larger tug pushing in this manner at the stern, the bow of the Atropos Island began to come around toward

    the Hillsborough. The captain of the Hillsborough lost track of the location of the Atropos Island's anchor chain and became concerned that the anchor chain might be underneath his tug. The Hillsborough still had a line up to the Atropos Island at the time. There is conflicting testimony whether the Hillsborough's line snapped due to its being stretched tighter and tighter during this maneuver, whether it was severed by the bow of the Atropos Island, or whether Respondent ordered the line cut on purpose in order to release the

    Hillsborough so it could get out of the way. There is also conflicting testimony whether the Hillsborough was thereafter pushed aground by the Atropos Island or by the Gloria's wheel-wash. The captain of the Hillsborough believes that the Atropos Island pushed him aground.

    
    

13. It was clearly established that the Hillsborough went aground at Cut-C and began to list at a 45 degree angle causing its captain great concern for the safety of his crew, and it is also established that its line to the Atropos Island parted. This occurred while the Hillsborough was assisting the Atropos Island at Cut-C. The Pasco later pushed the Hillsborough off ground.

    
    

14. Respondent did not file a marine casualty report for any of the events occurring on the morning of February 28, 1984.

    
    

15. Although there were winds of up to 40 miles per hour on the morning of February 28, 1984, there was other shipping traffic in the area. The conditions were not so severe as to preclude other vessels from moving, and Respondent checked the weather conditions and fully ballasting the vessel before leaving the dock. The weather did become more severe than forecast, making the maneuvers more difficult, but Respondent reacted to the worsening conditions by slowing his transit of the channel, ordering larger tugs and anchoring for a time at Cut-C.

    
    

    CONCLUSIONS OF LAW

    
    

16. The Division of Administrative Hearings has jurisdiction over the subject matter and parties of this proceeding. Sections 120.57(1), and 455.225(4), Florida Statutes.

    
    

17. In accordance with Section 310.141, F.S., and 46 U.S.C. s. 8502 (2) cited previously herein, state pilots are required to pilot foreign registered vessels. See also Anderson v. Pacific Coast Steamship Co., 255 U.S. 187, 201,

    56 L.Ed. 1047, 1054 (1911). The act of "piloting" is defined to mean "the acts of pilots in conducting vessels through the pilotage waters of state" which are further defined as "the navigable waters within the boundaries of the state." Sections 310.002(6) and (5), respectively. The intent of the Legislature to broadly construe and apply Chapter 310, F.S., is clearly set forth by Section 310.001, F.S.:

    
    

    Purpose. -- The Legislature recognizes that the waters, harbors, and ports of the state are important resources, and it is deemed necessary in the interest of public health, safety, and welfare to provide laws regulating the piloting of vessels utilizing the navigable waters of the state in order that such resources, the environment, life, and property may be protected to the fullest extent possible. To that end, it is the

    legislative intent to regulate pilots, piloting, and pilotage to the full extent of any congressional grant of authority, except as limited in this chapter.

    Tampa and Port Tampa are specifically included within the definition of "port" in Section 310.002(4). Thus, Petitioner has jurisdiction over Respondent since he is a licensed state pilot who was engaged in piloting foreign registered vessels on Tampa Bay at all times material hereto.

    
    

18. The Board of Pilot Commissioners has adopted Rule 21SS-8.07(1)(m), F.A.C., which prohibits a pilot from:

    
    

    Delegating professional responsibilities to a person when the pilot or deputy pilot delegating such responsibilities ,

    knows or has reason to know that such person is not qualified by training, experience or licensure to perform them. This provision does not apply to duly certificated deputy pilots during their trainee program as such is described in Rule 21SS-5.19.

    
    

19. This rule clearly prohibits the delegation of piloting duties to unlicensed persons who are not qualified by training, experience or licensure to perform such duties. The evidence establishes that Respondent delegated piloting duties, including giving radio transmissions or commands aboard the foreign vessels Pennsylvania Rainbow, Golden Laurel Trade Unity and Marcona Conveyor to unlicensed persons, but the evidence does not clearly establish that such persons were qualified to perform these duties by training, experience, or licensure. To the contrary, Respondent stated that he was allowing these persons "to practice" and to gain hands-on experience using the radio and giving commands so that they would thereby become qualified.

    
    

20. Respondent points out that he had the permission of the master in each instance, and that he would either acknowledge or overrule each command given by the unlicensed person. He also contends that the use of "trainees" or apprentices is generally accepted in the maritime community. There is no authority in Chapter 310 or rule of the Board for a licensee to take it upon himself to initiate a training program for unlicensed persons on Tampa Bay using foreign registered vessels. Communication problems exist on foreign vessels in any event, and Respondent's actions simply add another link to the chain of command and thereby increase the risk of error due to a miscommunication. Split second decisions must be made under certain conditions when there may not be time for Respondent to acknowledge a correct command or overrule an incorrect command. This could result in extremely dangerous conditions given the size of the vessels involved, their potentially dangerous contents, and the potential for rapidly changing weather conditions on Tampa Bay. Respondent has violated the provisions of Rule 21SS-8.07(1)(m), and is therefore subject to disciplinary action under Section 310.101(4), F.S.

    
    

21. It should be noted that at one time Florida had an approved apprenticeship system for training pilots but that system was ended on October 1, 1975. See Chapter 75-201, Section 1, Laws of Florida. Since then Florida has had a system of deputy pilot training programs by which applicants are selected and certified as deputies based on exam scores. Section 310.081(2),

    F.S. Part of each deputy's training period is a ninety-day "observer trainee" period. Rule 21SS-5.19. The unlicensed persons here in question were not approved or certified deputies. Although the word "apprentice" did remain, through apparent oversight, in Section 310.071(1)(b), F.S., until 1984 when it

    was removed by Chapter 84-185, Laws of Florida, it is clear that piloting without a license issued by the Board has been prohibited since the enactment of Section 310.161, F.S., in 1975, and that approved apprenticeship programs were discontinued in 1975.

    
    

    Count II

    
    

22. Respondent is charged with failure to report a casualty that occurred while he piloted the Atropos Island. Section 310.111, F.S., states:

    
    

    All casualties sustained by a vessel on which a licensed state pilot or a certified deputy pilot shall be promptly reported to the depart- by the licensed state pilot or deputy pilot in- volved therein, on forms and in the manner pre- scribed by the department. (Emphasis supplied)

    
    

    Rule 21SS-8.05, F.A.C., was adopted to implement this statutory provision and provides:

    
    

    Florida State Law (310.111,F.S.) and the Rules of the Board of Pilot Commissioners promulgated thereunder, require the reporting of all "collisions, groundings, strandings or other marine perils sustained by vessels on which there was employed a licensed state pilot or certified deputy pilot" within seven (7) days of the date of the casualty, EXCEPT, HOWEVER,

    THAT ANY MARINE CASUALTY INVOLVING OIL SPILLAGE, POLLUTION, PHYSICAL INJURY OR DEATH, MUST BE REPORTED TO THE OFFICE OF THE BOARD BY TELE- PHONE OR TELEGRAM WITHIN 24 HOURS OF THE OCCURRENCE, IN ADDITION TO THE REQUIRED

    WRITTEN REPORT. (Emphasis supplied)

    
    

23. According to the terms of these sections, if a casualty is sustained by a vessel on which there is a licensed state pilot or deputy pilot, that casualty must be promptly reported within seven days, or sooner in specified instances. The term "casualty" is not defined by law or rule but Petitioner contends it is commonly understood to include the grounding of a vessel. Respondent points out that at least one vessel is regularly grounded in Port Tampa on purpose so that no casualty reports are filed for identical groundings. Respondent also contends that casualty reports are not regularly filed when vessels lightly touch the bottom in transit and there is no injury or damage.

    
    

24. Nevertheless, assuming the casualty reporting requirements apply to all groundings on which there is a state pilot, the evidence does not clearly establish that the vessel on which Respondent was piloting on February 28, 1984, the Atropos Island, grounded in the turning basin, the Alafia Channel or at Cut-

    C. There is evidence that the tug Hillsborough grounded at Cut-C while assisting the Atropos Island, but the rule and statute cited above are clear in their application only to 7 vessels "on which there is employed" a licensed pilot or deputy. Respondent was employed on the Atropos Island, not the tug Hillsborough, and the Atropos Island did not go aground. Therefore there was no casualty for Respondent to report.

25. Respondent is also charged with piloting the Atropos Island in a negligent manner. Sections 310.101(4) and (5), F.S., state:

    
    

    The board shall have authority to discipline or suspend a licensed state pilot or certified deputy pilot or to revoke the license or certificate of either, under this chapter

    or any antecedent law, who, after hearing has been adjudged unqualified or guilty of any of the following:

    1. Violating a lawful rule promulgated by the board or violating a lawful order of the board.

    2. Negligence incompetence, or misconduct in the performance of piloting duties.

26. Rules 21SS-8.07(1)(a), (d) and (n), F.A.C., state:

(1) Any act of misconduct, inattention to duty, negligence or incompetence, or willful violation of any law or regulation including the Rules of the Road, applicable

to a licensed state pilot or certified deputy pilot, or any failure to exercise that care which a reasonable and prudent pilot or deputy pilot would exercise under the same or similar circumstances may result in disciplinary action. Examples of acts which may constitute a viola- tion may include, but are not limited to:

(a) Failure to make allowances for effects

of wind and tide which should have been foreseen.

(d) Failure to navigate within the prescribed limits of a channel, and a casualty results.

(n) Any disregard of safe practice, whether intentional or unintentional which does not meet acceptable standards of safe pilotage.

There is no evidence that Respondent failed to make allowances for the effects of wind and tide in the channel, or that he failed to navigate within the prescribed limits of a channel. He made such allowances by using the crabbing maneuver in the channel. However, in the turning basin the wind blew the Atropos Island toward the south bank to an extent that Respondent had not anticipated. Although the evidence does not establish that the Atropos Island was aground on the south bank it is clear that the vessel was perilously close since a tug with only a slightly deeper draft than the Atropos Island could not get between the vessel and the bank to push her away. Respondent should have foreseen the possibility of being blown to the south, given the wind conditions while in the turning basin and should have positioned the three tugs assisting him at the time in a manner which would have avoided this dangerous situation. Thus, Respondent was in violation of Rule 21SS-8.07(1)(a).

1. In addition Respondent disregarded safe practice, although unintentionally at Cut-C when the tug Hillsborough was either pushed aground by the Atropos Island or by the wheel wash of the Gloria. When a tug goes aground while assisting a vessel, and that grounding is either caused by the vessel

   itself or another tug following the pilot's orders in assisting the vessel, the pilot has not met acceptable standards for safe pilotage. Thus, Respondent was in violation of Rule 21SS-8.07(1)(n).

   
   

2. Respondent contends that he cannot be held accountable for these violations of Rule 21SS-8.07(1) since he was engaged in a "shifting" operation with the Atropos Island on February 28, 1984 and at that time Petitioner had no rule specifically dealing with "shifts." Effective October 31, 1984 Rule 21SS-

   8.10 has provided:

   
   

   Vessel Movements Requiring a State Pilot.

   Any vessel requiring a state pilot that is underway on the navigable waters of the State of Florida shall have a state pilot aboard except when in the docking or undocking mode.

   
   

   Docking or undocking mode is when the tugs are alongside and the vessel is under the direction of the master, docking master, or state pilot or deputy pilot.

   
   

   This rule clearly sets forth the policy of the Board that state

   pilots or deputies are required whenever a vessel is underway on the navigable waters of the state; including when a vessel is "shifted" from one dock to another within the same port. The Atropos Island was engaged in a "shift" on February 28, 1984, and this rule was not in effect at that time. For this reason Respondent argues the Petitioner is without jurisdiction on Count II.

   
   

3. Petitioner points out that Rule 21SS-8.07 was merely a codification of its policy which has its basis in the statutory expression of legislative intent found in Section 310.001, F.S., cited above and in the statutory definitions of "piloting" and "pilotage waters of the state" found at Sections 310.002(6) and (5), F.S., respectively cited above. At the time these violations occurred and this action was initiated Petitioner had no rule, but was engaged in "refining incipient agency policy" concerning its jurisdiction over "shifts." The First District Court of Appeal approved this practice in McDonald v. Department of Banking and Finance 346 So.2d 569, 580-582 (Fla. 1DCA 1977):

   
   

   The APA does not chill the open development of policy by forbidding all utterance of

   it except within the strict rulemaking process of Section 120.54. Agencies will hardly be encouraged to structure their discretion progressively by vague standards, then definite standards, then broad principles, then rules

   if they cannot record and communicate emerging policy in those forms without offending Section

   120.54. The folly of imposing rulemaking procedures on all statements of incipient policy is evident.

   
   

   While the Florida APA thus requires rulemaking for policy statements of general applicability, it also recognizes the inevitability and desirability of refining incipient agency policy through adjudication of individual cases. There are quantitative limits to

   the detail of policy as rules, or assimilated; and even the agency that knows its policy may wisely sharpen its purposes through adjudication before casting rules.

   
   

   Petitioner had separate and sufficient statutory authority to initiate its action against Respondent under Count II as a part of the process by which it refined its developing policy regarding "shifts" which ultimately was codified in Rule 21SS- 8.10.

   
   

4. In conclusion Petitioner has established by competent substantial evidence that Respondent violated Rule 21SS- 8.07(1)(m) in that he delegated piloting duties to unlicensed persons on several occasions involving four foreign registered vessels since January, 1984 and has also established that Respondent violated Rule 21SS-8.07(1)(a) and (n) in that he failed to make allowances for wind and tide while piloting the Atropos Island in the turning basin on February 28, 1984, and also disregarded safe practices, although unintentionally, at Cut-C on the same day which resulted in the grounding of a tug that was assisting him. For these reasons Respondent is subject to disciplinary action under Sections 310.101(4) and (5), Florida Statutes.

RECOMMENDATION

Based upon the foregoing it is recommended that Petitioner enter a Final Order imposing a one month suspension and one thousand dollar fine against Respondent.

DONE and ENTERED this 13th day of May, 1985 at Tallahassee, Florida.

DONALD D. CONN

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 13th day of May, 1985.

COPIES FURNISHED:

David G. Hanlon, Esquire David C. Banker, Esquire Post Office Box 3324 Tampa, Florida 33601

J. Micheal Shea, Esquire Post Office Box 2742 Tampa, Florida 33601

W.B. Ewers, Esquire Post Office Drawer 9008

Coral Springs, Florida 33075

Fred Roche Secretary

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Salvatore A. Carpino Esquire Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 84-002828

Orders for Case No: 84-002828