) CAPTAIN RONALD E. DULL )
vs. ) CASE NO. 86-0265
CAPTAIN SHIRAS M. WALKER and ) ST. JOHNS BAR PILOTS ASSOCIATION, )
Intervenors. )
Notice was provided, and on May 8 and 9, 1986; a formal hearing was held in these cases. The location of the hearing was Jacksonville, Florida. Charles C. Adams served as the hearing officer. This recommended order is being entered following the receipt and review of proposed recommended orders submitted by the parties. The suggested fact finding set forth in those proposals has been utilized to some extent. Otherwise, the facts are disallowed for reasons explained in the appendix to this recommended order.
FOR PETITIONERS: Captain Mason L. Flint, pro se
Captain Ronald E. Dull, pro se Box 1643
FOR RESPONDENT: H. Reynolds Sampson, Esquire
FOR INTERVENORS: Dennis E. Hayes, Esquire
Steven R. Sparks, Esquire
MARTIN, ADE, BIRCHFIELD AND JOHNSON, P.A.
The issues for consideration are based upon the Petitioners' challenges to their examination scores in their attempts to become a deputy bar pilot in Jacksonville, Florida, as held on August 26 and 27, 1985. In particular Petitioners assert that the examination results should be adjusted, and with that adjustment they individually claim to be the successful candidate for the available position as deputy bar pilot for the Port of Jacksonville.
There is created within the Division of Professions of the Department of Professional Regulation a board known as the Board of Pilot Commissioners. See Section 310.011; Florida Statutes. That board, in conformance with Section 310.061, Florida Statutes, has authority to license state pilots for ports in Florida. This includes pilots for the St. Johns River, to include the Port of Jacksonville. In furtherance of this arrangement; the Department of Professional Regulation examines candidates for the positions of pilot and deputy pilot as a prerequisite to appointment and licensure or certification, depending on whether the position sought is that of pilot or deputy pilot. Out of this examination process; the Board; within its discretion, may decide how many pilots or deputy pilots it wishes to appoint and license or certify for a given port within the state. See Section 310.051, Florida Statutes.
Petitioners and Intervenor, Captain Shiras M. Walker, and others stood examination for appointment and certification as deputy pilot for the port of Jacksonville in an examination given on August 26 and 27, 1985. All told, eleven candidates stood the examination for the position of deputy pilot in the Port of Jacksonville as held in August 1985. (There was one other candidate who was being examined for an unrelated port pilot position.)
It was the intention of the Board to appoint and certify only one deputy pilot from this group of candidates.
The candidates who stood the examination in August 1985 were required to be mariners who held a Master's License. This is a requirement of the Port of Jacksonville and is unique to that port. Petitioners and Captain Walker were qualified candidates in that sense.
The candidates for examination in the August 1985 sitting, including Petitioners and Captain Walker, had been provided certain test information from the Department of Professional Regulation, Office of Examination Services, prior to being examined. Among those items was a document described as a "NOTICE TO
APPEAR." Within those materials was found the admission slip to the examination, a description of the format of the examination and a suggested reading list which the candidates were encouraged to utilize in preparing for the examination session.
The facets of the subject examination were as required by Rule 2155- 5.13, Florida Administrative Code which sets forth the seven test areas. They were:
International Rules of the Road.
Inland Rules of the Road and the Pilot Rules.
Seamanship, Shiphandling and other subjects relating to piloting.
Aids to Navigation.
Local or specific knowledge of the port area for which the candidates are being examined.
Chartwork for the port area for which the candidates are being examined.
Knowledge of the federal and state pilotage laws.
In carrying forward the examination process, the Department of Professional Regulation, in accordance with Section 455.217.(1), Florida Statutes, through the Office of Examination Services, is charged with the responsibility to ensure that the examination for deputy bar pilot in the Port of Jacksonville as given in August 1985, "adequately and reliability measures an applicant's ability to practice the profession" of deputy pilot. Further, this office must insure that the examination questions are a reliable measurement of the general areas of competence specified in the aforementioned rule. Those responsibilities as imposed upon the Department of Professional Regulation were adequately addressed in the examination process pertaining to deputy bar pilot for the Port of Jacksonville, August 1955 examination session.
This examination as given in August 1985 was one related to placement of the top candidate in the one available position for a deputy pilot in the Port of Jacksonville. In order to gain that position, the candidates had to be successful in passing the various sections within the examination instrument. However, only the candidate who had passed the various sections within the examination process and attained the highest score would be selected.
Rule 2155-5.13(3), Florida Administrative Code, mandates that a candidate correctly answer 90 percent of the subject matter set forth in the first two sections to the examination, described previously as (a) and (b) and
75 percent of the material in the five remaining subject areas. Failure in any one of these seven sections means that the candidate was unsuccessful, notwithstanding his overall percentage score as an average of the several sections within the examination instrument.
The deputy pilot examination for the Port of Jacksonville administered in August 1955 was designed and written by the consultant to the Board of Pilot Commissioners, Captain John C. Hanson, with the assistance of Marty Persanpieri of the Office of Examination Services. These two individuals had the necessary expertise to design and ensure the fairness of the examination document.
Captain Hanson is experienced and has gained expertise in the field of nautical science and seamanship and has sufficient appreciation of the circumstances in the Port of Jacksonville to test the candidates on matters of local knowledge of that port. Captain Hanson and Persanpieri graded the examination in question and carried out the review of protests to the examination scores.
Based upon the examination and review of the test papers of Captains Dull and Walker, they were found to have successfully completed all portions of the examination. Captain Walker received an overall score of 90.71 percent, and Captain Dull received an overall score of 90.47 percent. Although Captain Flint achieved an overall score of 91.17 percent, the highest overall average, he was deemed by the graders to have failed the examination in that he scored only 86 percent on the Inland Rules portion of the examination, short of the required 90 percent score.
On October 4; 1985, Captain Walker was informed by Fred Roche, Secretary of the Department of Professional Regulation, that Walker was the successful candidate in the examination for appointment and certification as deputy pilot for the Port of Jacksonville. Upon receipt of this notification, and following confirmation of this communication through a letter from Secretary Roche Walker left his position as captain of a ship operating out of Valdez Alaska and took the position as deputy pilot for the Port of Jacksonville. In doing ; he sold his home in Merritt Island, Florida, and relocated his family to Jacksonville; Florida. He then executed a contract with the St. Johns Bar Pilots Association, through which that association obligated itself to afford Walker the necessary training to become a licensed state Pilot. Following the signing of that contract; Walker has performed the duties associated with deputy piloting in the St. Johns River related to the Port of Jacksonville.
Around the time Walker had been notified of his success; the Petitioners were made aware of their examination results and followed the necessary procedures for review of their examination responses. They then offered timely written objections to certain questions within the examination, which should have been considered prior to the appointment and certification of Captain Walker as deputy pilot.
Through his protest, Captain Flint objected to the following questions: Inland Rules No. 52; Inland Rules No. 54; Inland Rules No. 63; State and Federal Laws No. 154; Local Knowledge No. 2; Local Knowledge No. 19; Chartwork No. 15; Chartwork No. 27; Chartwork No. 9; the overall point total assigned for Chartwork; the Chartwork in general; and Chartwork sample questions.
Captain Dull objected to the following questions: International Rules No. 20; Inland Rules No. 67; Inland Rules No. 65; Inland Rules No. 76; Navigational Aids No. 106; Navigational Aids No. 125; Federal Laws No. 165; Federal Laws No. 166; Local Knowledge No. 19; Chartwork No. 1; Chartwork No. 7; Chartwork No. 14; Chartwork No. 29; Chartwork No. 52; Chartwork light list reference; Chartwork No. 595; Chartwork No. 5300; and the Chartwork in general.
These specific objections were considered by the Office of Examination Services and Captain Hanson. The protests were found to be without merit based upon an adequate analysis of the questions, an assessment of the recommended answers and the responses made by the candidates in answering the examination questions. Through this process, all candidates were given credit for answers for two examination questions unrelated to the challenges by the Petitioners.
Having been unsuccessful in an attempt to gain adjustments to their examination scores; Petitioners individually petitioned for formal Section 120.57(1), Florida Statutes, hearings. Those petitions were timely submitted. The cases were then referred to the Division of Administrative Hearings leading to the formal hearing of May 5 and 9, 1956.
Prior to the date of formal hearing, Captain Walker and the St. Johns Bar Pilots Association offered a timely motion to intervene in these actions and intervention was allowed. Those Intervenors have demonstrated their standing in the record developed at the final hearing.
In the course of the final hearing, Captain Flint abandoned his objection to the questions: Inland Rules No. 54; Local Knowledge No. 2; Local Knowledge No. 19; Chartwork No. 27; and the chart sample questions. This left for consideration these matters: Inland Rules No. 52; Inland Rules No. 63; State and Federal Laws No. 154; Chartwork No. 9; Chartwork No. 15; the Chartwork in general; and the chartwork point total.
Captain Dull also abandoned objections pertaining to questions: International Rules No. 20; Inland Rules No. 68; Inland Rules No. 76; Navigational Aids No. 106; Federal Laws No. 166; Local Knowledge No. 19; Chartwork No. 29; Chartwork No. 895; and Chartwork 5300. He continued to protest the Questions: Inland Rules No. 67; Navigational Aids No. 125; Federal Laws No. 165; Chartwork No. 1; Chartwork No. 7; Chartwork No. 14; Chartwork No. 52; Chartwork in general; and the Chartwork light list reference.
In the NOTICE TO APPEAR which the Petitioners and Captain Walker received, reference is made to the seven sections within the examination instrument. This notification gave the following information about the chartwork that was to be done in the Chartwork and Local Knowledge portions of the examination. It stated:
Chartwork and local knowledge will be admin- istered in the afternoon. Chartwork requires you to draw on a tracing of the chart of the port, all channels aids to navigation and their characteristics (type, color, shape, number, light/sound characteristic, elevation when appropriate as listed in the 1985 C.O. Light List for more recent information see note at end of No. 3), shoaling areas, precautionary signs, anchorage areas, obstructions, COLRBGS demarcation lines, danger areas, pipelines and cable crossings and any other inclusions on the chart relevant to navigation. Indicate true course to be steered on ranges and straightaways as appropriate. You may also be responsible for indication of direction of tide flow as indicated in the Tidal Current Tables. Local knowledge requires you to recall, from memory, information contained in the Coast Pilot relevant to the chart. Included is information concerning controlling widths lengths and depths of channels. Four (4) hours will be allowed to complete this portion of the examination.
By the NOTICE TO APPEAR the candidates were also referred to the examination study sources as follows:
Listed below are some general sources that may aid you in your study for some of the examination areas. This list of sources is not exhaustive. Questions may appear from other sources.
Abbreviations used:
CG = Coast Guard Publication USC = U.S. Code
FS = Florida Statutes
BPC = Board of Pilot Commission Rules Area Source
International | CG: | Navigation Rules: Inter- |
Rules and |
| national-Inland (COMDTINST |
Inland Rules |
| M16672.2)(including all |
|
| rules, appendices and |
|
| colregs) |
Federal Pilot- 46 USC 11; 211-215; 232.
age Laws Coast Pilot Chapter 2; Parts 162 and 164. 14 USC 51-59,
642, etc.
Knowledge of U.S. Coast Pilot for the Local Port particular port (State Pilots
and Deputy Pilots)
Aids to CG 193, Chart No. 1: Nautical
Navigation Chart symbols and abbrevi- ations, 14 USC 51-59, 33 CFR
64.01.
State Pilotage Chap. 310 FS, BPC 21-55 Laws
Chartwork St. Johns River from the sea buoy to the fixed bridge at Red Bay Point above Green Cove Springs and the ICW from its junction with the St.
Johns River South to the Atlantic Boulevard Bridge Chart Nos. 11491 7 July 1954
11459 1 Sept 1954
11492 5 Sept 1954
Seamanship Various seamanship textbooks
(for example; Basic Ship- handling for Masters, Mates and Pilots by Willerton; Practical Ship Handling by Armstrong; Ship Handling in Narrow Channels by Plummer, Knights Modern Seamanship)
NOTE: Basic publications utilized in developing Jacksonville exam; in addition to the charts listed above were:
1985 CGT Light List
1985 Coast Pilot Vol. 4
If more recent information is used from CO notice to Mariners or Corps of Engineers reports, please indicate source and date so proper credit may be given.
Flint Challenge
Question No. 52 in the Inland Rules portion of the examination, among the choices of answers, indicated that the "lookout," "shall not be assigned other duties." Petitioner Flint did not feel that this choice was a correct answer. Six of the twelve candidates gave the prescribed answer, to include Captains Walker and Dull. The prescribed answer contemplated the proposition that lookouts shall not be assigned other duties. The prescribed answer is found to be correct, and Petitioner in his suggestion that it is appropriate for a lookout to have other duties in an inland water situation is not credited. Having considered the presentation at hearing, it is determined that the lookout in that setting must give full attention to those duties.
Question No. 63 in the Inland Rules portion of the examination states that: "Rule 2(b); known as the General Prudential Rule; could be properly applied in which of the following situations?" Seven of the twelve candidates correctly answered that examination question, to include Captains Walker and Dull in that they indicated that the only correct answer to the question was the choice "action contrary to the rules as proposed by one vessel and accepted by another." Petitioner Flint felt that this answer; as well as the answer which said, "When the stand-on vessel first has doubts as to the intentions of the give-way vessel," should be considered correct. Flint also believes that it is unreasonable to require that the candidates know rules by number reference and contends that this particular rule is not known as the "General Prudential Rule." This concern about the need to know the rule by number and the reference to the term "General Prudential Rule" is a reasonable requirement given that one of the source materials which the candidates were encouraged to study was that source Farnsworth & Young, Nautical Rules of the Road, wherein it is stated that Rule 2(b) is known as the "General Prudential Rule." On the merits of the protest, as to the answer given, Captain Flint is wrong to apply the ideas expressed in the "General Prudential Rule" to a situation in which the stand-on vessel first has doubts as to the intentions of the give-way vessel. Other steps must he taken before resorting to the subject rule. An example of those initial steps would be the sounding of a signal.
In the section dealing with state and federal laws, in Question No. 154, it is indicated that the number of state pilots in the various ports is:
(1) determined by the supply and demand for pilots and services, (2) determined by investigation conducted by the Department of Professional Regulation. The answer prescribed by the examination was the first choice only. Captain Flint did not feel that either of the choices of answer was correct. He is struck by the language of Section 310.061(2), Florida Statutes, which says,
The Board shall determine the number of pilots in conformance with Subsection (1) based upon the supply and demand for piloting services and the public interest in maintaining efficient and safe piloting services.
Therefore, according to Captain Flint, since there are fixed limits set forth in Subsection (1) on the number of pilots that may be available in a given port, in order to determine the number of pilots, one must not only be mindful of supply and demand, but also recognition of the finite number of available pilots as set forth in Subsection (1) should be taken into account. This interpretation by Captain Flint is sufficiently legitimate that he should be afforded credit for the answer to the examination question in which he selected the answer that indicated that neither of the two choices was correct.
In the Chartwork referred to as No. 9, Petitioner Flint argues that the instructions were, "The chart drawing is to cover up the St. Johns River to the highway bridge at Red Bay Point," meaning that only the features within the system before the point of the bridge needed to be indicated. This would preclude necessity to set forth any of the characteristics of the Red Bay Point Bridge, per Flint. Those characteristics are matters which a pilot should reasonably be expected to be examined on as to horizontal and vertical clearances of the bridge. This is a more persuasive interpretation of the examination instruction than the literal reading which Captain Flint gave in determining to cut short his chartwork before describing the characteristics of the bridge and points should have been deducted from his score.
Another challenge described as Chartwork No. 15 dealt with Captain Flint's belief that the area of the St. Johns River described as St. Johns Bluff Reach is not a range or straightaway. Consequently, he did not believe that it was necessary to set out a true course through that portion of the river in keeping with instructions which indicated that the candidates should establish courses in ranges and straightaways in the chartwork. St. Johns Bluff Reach is of sufficient dimension in length that the candidate should have identified a course. For failure to set forth the course; it was appropriate to deduct points from Petitioner Flint's score in the chartwork.
Generally speaking, Captain Flint believed that no points should have been deducted from his examination for his failure to relate items set forth on the Coast Guard Light List 1985, in setting up his chart drawing. He premises his argument on the fact that the instructions allowed the candidate to use either the chart information from the various charts which the candidate was referred to or to set forth on the chart examination that information reflected in the Coast Guard Light List 1985. It is not possible to set out complete characteristics of the navigational aids without reference to both the charts and the Coast Guard Light List 1985. Taking this into account, and in view of the basic instructions given the candidates prior to and at the point of examination, it was an unreasonable interpretation to suggest that it was
unnecessary to refer to the Coast Guard Light List 1995 and offer information from that source on the examination chart, and points should have been deducted for this oversight.
Petitioner Flint had initially contended that the total score related to his points in the chartwork was incorrectly computed in that he was entitled to 577 Points when the examination was graded as contrasted with the 575 points which he was awarded. In his fact proposal this position is abandoned in that he concedes that 575 points was the correct total to be awarded when the examination was graded. No adjustment has been made to that score, and 575 points remain his entitlement.
Although some slight adjustment is indicated in the overall score for Captain Flint, the critical matter of the point total for the Inland Rules questions has not been overcome, and having failed to pass that portion of the examination, Captain Flint has failed the entire examination.
Dull's Challenge
In the Inland Rules portion of the examination at Question No. 67; it is stated that "A vessel proceeding with a following current in a narrow channel or fairway shall have the right of way over a vessel proceeding against the current in/on, and the choices were (1) western rivers, (2) all inland waters;
(3) Great Lakes. The correct answer is (1) and (3). The answer is taken from reference material which the candidates were referred to, Farnsworth & Young, Nautical Rules of the Road, which points out that these vessels are given the right of way in operating on the Great Lakes, western rivers, and waters specified by the Secretary. Captain Dull was incorrect when he indicated that the answer should have been "all inland waters."
Captain Dull objected to Question No. 125 in the portion of the examination related to navigational aids. That question states, "A preferred channel buoy indicating the preferred channel will be followed by leaving it on your port hand could:" (1) show red and black horizontal bands, (2) show a composite group flashing light; (3) show red or white light. Captain Dull rightly asserts that all three of those items would be correct in the instance in which a ship was proceeding to sea; however, the available answers for the question did not include the possibility that all three items were correct. If the ship were to be proceeding inbound, away from the sea, (1) and (2) are correct and (3) is incorrect in that the buoy could not show a red or white light. Therefore, the correct answer to the question is (1) and (2) only, and that answer was available to the candidates. The question asked was a legitimate question which was missed by Captain Dull.
In that portion of the examination dealing with knowledge of federal and state pilotage laws there is Question No. 165. That item states, "To legally provide pilot service to a foreign flag vessel arriving at a Florida Port, a person must hold a valid" (1) state license or certificate, (2) federal license. The prescribed answer was that it is only necessary to hold a state license or certificate. Captain Dull felt that the answer which pertained to choices (1) and (2) was the correct answer in that in order to gain a license or certificate in Florida one must have a federal license. Nonetheless, once the Florida license has been obtained; it is no longer necessary for the federal license to be in force and effect in order to legally provide pilotage service to the foreign flag vessel arriving at a Florida Port. Under these circumstances; Captain Dull is not entitled to receive credit for his answer.
In chartwork under Question No. 1 Captain Dull contends that the four anchorage positions which he failed to indicate on his chart were set forth on chart sheets not described in the instructions given to the candidates prior to examination or at the point of examination. He states that those four anchorage Positions are areas which the candidates were not alerted to study for. One of the charts which is referenced as a study source, No. 11491; has a Note A making reference to the anchorages in question by referring the reader to the Coast Pilot No. 4 which provides the information as to location of the four anchorages at issue. Moreover, the anchorages at issue are within the approaches to the St. Johns River which the candidates were instructed to depict in the chart which they prepared in response to the chartwork requirement in the examination. By failing to note these anchorages on his chart, he was subject to have points deducted from his examination, which deductions were made.
In the Chartwork Questions No. 7 and 14, Captain Dull failed to set forth true courses from various locations at issue by not giving response in degrees and minutes. This relates to May Point Cut Range and White Shells Cut Range in which it was possible to give the answer in degrees and minutes. Captain Dull did not do his, although the instructions required that he give the answers in degrees and minutes. It was appropriate to deduct points from his score for failure to give the more exact responses to the requirements.
Captain Dull in Question No. 52 related to chartwork also believed, as did Captain Flint, that the alternative was presented to the candidates to use either the charts or Coast Guard List 1985 in preparing the chartwork. For reasons discussed in the challenge to this matter fostered by Captain Flint Captain Dull is also incorrect in his assertions. Therefore he is not entitled to any adjustment in points for this matter.
Captain Dull has not established the entitlement to further points; and Captain Walker remains the high scorer of all candidates who passed the deputy pilot examination at issue.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action as suggested by Section 120.57(1), Florida Statutes.
The Board of Pilot Commissioners is empowered to determine the number of pilots or deputy pilots needed for the several ports within the state of Florida and to establish the examination to measure competence to fill those positions. See Chapter 310, Florida Statutes. In accordance with the overall chapter and in particular Section 310.081(2), Florida Statutes, an examination of this type was given and the Petitioners and Captain Walker participated in that examination conducted August 26 and 27, 1985. In the course of the examination those specific subjects set forth in Rule 2155-5.13, Florida Administrative Code, as described in the fact finding; were examined. Also as described in the fact finding, it was necessary for the candidates to illustrate proficiency in each of the seven categories.
Having been rejected as successful candidates for the one position which was available through this examination process, the Petitioners fashioned their present challenges to their standing as candidates. In carrying forward this burden, it must be shown that the process of examination was arbitrary and capricious. See State ex rel Little ex rel Glasser v. Pepper, 155 So.2d 383 (Fla. 1st DCA 1953). The Petitioners have not met this burden. The examination
was a fair measurement of competence in the discipline and Petitioners have failed to indicate that they individually gave a better performance in the examination process than Captain Walker. See also Section 455.217(1); Florida Statutes.
Captain Flint did not pass the examination, having failed to achieve a sufficient grade in the Inland Rules portion of the examination; and Captain Dull, although he passed the examination; did not score as well as Captain Walker. Under these circumstances, Captain Walker was the successful candidate for the one available position as deputy pilot.
That a final order be entered which dismisses the examination challenges filed by the Petitioners in these actions and which finds Captain Walker to be the successful candidate in the license examination process for purposes of the appointment of one deputy pilot in the Port of Jacksonville.
DONE AND ENTERED this 28th day of July, 1986, at Tallahassee, Florida.
CHARLES C. ADAMS
Filed with the Clerk of the Division of Administrative Hearings this 28th day of July, 1986.
APPENDIX TO RECOMMENDED ORDER CASE NOS. 86-0264 AND 86-0265
The following constitutes an assessment and explanation for the rejection of facts suggested by the various parties in these actions. There no comment is made concerning the fact proposal, those facts have been substantially adopted in the fact finding sent forth in the recommended order.
Having considered the reports of fact finding set forth by this Petitioner, they are in all relevant particulars contrary in result to the facts found in the recommended order and are rejected.
The position of the Respondent and Intervenors as to fact finding has been set forth in the recommended order with the exception of No. 154 dealing with state and federal laws pertaining to pilotage, in which Petitioner Flint's position has been accepted.
Captain Mason L. Flint 1605 Brookside Circle East
Captain Ronald E. Dull Box 1643
H. Reynolds Sampson, Esquire Deputy General Counsel Department of Professional Regulation
Dennis E. Hayes, Esquire Steven R. Sparks, Esquire MARTIN, ADE, BIRCHFIELD AND JOHNSON, P.A.
