STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

) CASE NO. 86-2428

vs. )

)

THOMAS A. BAGGETT, )

)

Respondent. )

)

RECOMMENDED ORDER

By Administrative Complaint filed April 7, 1986, the Department of Professional Regulation, Petitioner, seeks to revoke, suspend, or otherwise discipline the license of Thomas A. Baggett as a state licensed Tampa Bay Pilot. As grounds therefor it is alleged that at an administrative hearing before Coast Guard Administrative Law Judge Michael E Hanrahan, Respondent pleaded guilty and was found guilty of negligence while piloting the T/B Bulkfleet Pennsylvania on November 19, 1985, when this vessel grounded. This is alleged to violate Section 310.101(1),(4) and (5), Florida Statutes and Rule 21 55- 8.07(1)(f) , F.A.C.

APPEARANCES

For Petitioner: David C. Banker, Esquire

Post Office Box 3324 Tampa, Florida 33601

For Respondent: Margaret D. Matthews, Esquire

One Tampa City Center, Suite 2600 Tampa, Florida 33602

At a telephone conference hearing September 2, 1986, the parties stipulated there were no disputed facts and they requested formal hearing be waived.

Following that conference call an Order dated September 2, 1986, was entered directing the parties to submit a stipulation of all material facts upon which this Recommended Order will be based and to submit memorandum of law, brief, or proposed recommended order. The parties have submitted a STIPULATION and proposed recommended orders. Findings of fact are from this STIPULATION.

FINDINGS OF FACT

1. Thomas A. Baggett, Respondent, is a Tampa Bay Pilot licensed by the State of Florida and holds license number 000045. He was so licensed at all times relevant to the charges here involved.

   
   

2. On December 13, 1985, the United States Coast Guard held a hearing concerning the Coast Guards charge of negligence against Baggett for his

   piloting of the T/B Bulkfleet Pennsylvania. At that hearing Baggett pleaded guilty to and was found guilty of the charge that he was negligent while piloting the T/B Bulkfleet Pennsylvania on November 19, 1985, which resulted in this vessel running aground in the vicinity of Cut "C" Channel, Hillsborough Bay, Florida.

   
   

3. At the time of the grounding of the T/B Bulkfleet Pennsylvania, Baggett was acting under the authority of his Coast Guard license number 486856 and was subject to the jurisdiction vested in the Coast Guard under 46USC 7703 or 7704.

   
   

   CONCLUSIONS OF LAW

   
   

4. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

   
   

5. Section 310.101, Florida Statutes, provides the Board of Pilot Commissioners shall have authority to discipline a licensed state pilot who, after hearing, has been adjudged guilty of:

   
   

   1. Failing to demonstrate the qualifications or standards for a license or a certificate contained in this chapter or in the rules and regulations of the board.

      
      

      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.

      
      

6. T/B Bulkfleet Pennsylvania is a vessel enrolled in the coastwide trades. The federal government has assumed exclusive authority over the regulation of pilots on enrolled vessels.

   
   

7. Jackson v. Marine Exploration Co., 583 F.2d 1336 (5th Cir. 1978).

   
   

8. At the time of the grounding of the T/B Bulkfleet Pennsylvania, Baggett was operating under the authority of his Coast Guard license, and the Coast Guard has exclusive jurisdiction over Baggett's piloting duties while piloting an enrolled vessel on the navigable waters of this State. Baggett v. Department of Professional Regulation, Board of Pilot Commissioners, 717 F.2d 521 (11th Cir. 1983).

   
   

9. The Petitioner does not here claim jurisdiction to try Respondent for negligence while piloting the T/B Bulkfleet Pennsylvania but relies upon Section 310.1014), Florida Statutes, above quoted. The rule relied upon in Chapter 21 55-8, F.A.C., authorizes the board to discipline state licensed pilots who, after hearing, have been found guilty of various acts. Among these, and the specific act here relied upon by the Petitioner, is the act described in Rule 21 S8-8.07(1)(f):

   
   

   Having a license to practice piloting revoked, suspended, or otherwise acted against, including the denial of licensure, by the licensing authority of another state, the federal government, a territory or

   country, for acts which would constitute grounds for discipline if occurring in Florida.

   
   

10. Rules and statutory construction apply to the interpretation of rules the same as they apply to statutes. It is a cardinal rule of statutory construction that the entire statute under consideration must be considered in determining legislative intent, and effect must be given to every part of the section and every part of the statute as a whole. State v. Gale Distributors, Inc., 349 So.2d (Fla. 1977). Where the legislative intent as evidenced by the statute is plain and unambiguous, there is no necessity for any construction or interpretation of the statute, and the courts need only give effect to the plain meaning of its terms. State v. Egan, 287 So.2d 1 (Fla. 1973).

    
    

11. Courts should not pass upon the constitutionality of a statute if a case in which the question arises may be effectively disposed of on other grounds. Singletary v. State, 322 So.2d 551 (Fla. 1975). If constitutionality of a statute is questioned and it is reasonably susceptible of two interpretations by one of which it would be unconstitutional and by the other valid, the court must adopt interpretation which will render the statute valid. Department of Insurance v. S.E. Volusia Hospital Authority, 438 So.2d 815 (Ela. 1983). When an interpretation upholding the constitutionality of a statute is available to Supreme Court, court must adopt that construction. Id. at p. 820.

    
    

12. It is recognized that this tribunal does not have jurisdiction to rule on the constitutionality of a statute; however, the same principles apply in interpreting rules that apply in interpreting statutes. If one interpretation would render the rule invalid and another interpretation leave the rule valid, the latter must be chosen.

    
    

13. Applying these principles to the rule in question and reducing this rule to apply only to the facts stipulated in this case, the rule reads:

    
    

    Having a license to practice piloting suspended by the licensing authority of the federal government for acts which would constitute grounds for disciplinary action if occurring in Florida.

    
    

14. Giving the ordinary meaning to the words used in the rule and using all of these words, the act of negligence here complained of occurred in Florida while Respondent was operating under his federal license and does not constitute grounds for disciplinary action by the State. The interpretation proposed by the Petitioner, that the rule gives the board authority to discipline pilots who have been disciplined by another state or the federal government overlooks the part of the rule stating, "would constitute grounds for discipline if occurring in Florida. That rule, perforce, applies only to acts committed outside Florida, not simply outside the jurisdiction of the Board of Pilot Commissioners.

    
    

15. The board does not have jurisdiction to discipline Respondent for negligence while piloting, under the authority of his federal license, an enrolled vessel on the waters of this state and such jurisdiction cannot be "piggy-backed" by this rule.

    
    

16. Administrative agencies have no inherent rule making authority. Orange County v. Debra, Inc., 451 So.2d 868 (Fla. 1st DCA 1984), and can only

    adopt rules authorized by the legislature. Under the supremacy clause of the Constitution the federal government has preempted the regulation of pilots while piloting enrolled vessels. Accordingly the legislature cannot authorize the board to enact rules regulating pilots while operating under their federal licenses; and the general power granted to the board to enact rules necessary to carry out the purposes of Chapter 310, Florida Statutes, must certainly be limited to rules which the legislature could authorize the board to enact. To clarify this point. It has been established by Baggett, supra, that the board has no jurisdiction to discipline a pilot for negligence while operating under his federal license and piloting an enrolled vessel, even though Section 310.161(4) purports to give the board such jurisdiction over a Florida licensed pilot who is negligent "in the performance of pilot duties." By this rule the board attempts to do indirectly what the legislature cannot authorize the board to do directly, viz. discipline Florida pilots for acts committed while operating under the authority of their federal licenses.

    
    

17. This reinforces the conclusion that the rule applies only to discipline by the board for conduct committed outside Florida of which Florida licensed pilots were found guilty by another state or the federal government and which conduct would have been subject to the jurisdiction of the board had those acts been committed in Florida.

    
    

18. Respondent's contention that punishing Respondent twice for the same act constitutes the equivalent of double jeopardy is without merit.

    
    

19. From the foregoing it is concluded that the Board of Pilot Commissioners is without jurisdiction to discipline Thomas A. Baggett for the grounding of the T/B Bulkfleet Pennsylvania in Hillsborough Bay on November 19, 1985, while he was operating under the authority of his federal license; and Rule 21 SS-8.07(1)(f), F.A.C., limits the board's jurisdiction to those situations where the board would have jurisdiction over the pilot if the misconduct occurred in Florida. It is

RECOMMENDED that the charges against Thomas A. Baggett be DISMISSED. ENTERED this 25th day of September, 1986 in Tallahassee, Florida.

K. N. AYERS 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 25th day of September, 1987.

COPIES FURNISHED:

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

Margaret D. Matthews, Esquire Suite 2600

One Tampa City center Tampa, Florida 33602

Fred Roche, Secretary Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Wings Slocum Benton, Esquire General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Linda Biedermann, Executive Director Board of Pilot Commissioners Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 86-002428

Orders for Case No: 86-002428