STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. )

) CAPTAIN REID RONALD HANSEN, )

)

Respondent. )

Case No. 12-0408PL

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was conducted in this case pursuant to sections 120.569 and 120.57(1), Florida Statutes,1/ before Stuart M. Lerner, a duly-designated administrative law judge of the Division of Administrative Hearings (DOAH), on February 27, 2012, by video teleconference at sites in West Palm Beach and Tallahassee, Florida.

APPEARANCES

For Petitioner: C. Erica White, Esquire

Department of Business and Professional Regulation

1940 North Monroe Street, Suite 42

Tallahassee, Florida 32399

For Respondent: Captain Reid Ronald Hansen

625 Inlet Road

North Palm Beach, Florida 33408

STATEMENT OF THE ISSUE

Whether Respondent committed the violations alleged in the Administrative Complaint in the manner specified therein and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

On or about December 6, 2011, the Department of Business and Professional Regulation (Department) issued a two-count Administrative Complaint against Respondent, charging him with wrongdoing in connection with a grounding incident that occurred on August 3, 2011, when he was piloting the Tropic Carib, a St.

Vincent-flagged container vessel, in the Port of Palm Beach in difficult weather conditions. Count One alleges that Respondent "violated [s]ection 310.101(1)(k), Florida Statutes, in one or more of the following ways":

1. Respondent failed to seek a better position in which to anchor within the turning basin to wait out the storm.

   
   

2. Respondent attempted to have the TROPIC CARIB approach its berth despite knowing that there were no line handlers available.

   
   

3. Respondent attempted to have the TROPIC CARIB approach its berth instead of seeking a more advantageous location to ride out a storm, despite clear evidence of [a] dangerous storm in the immediate area.

Count Two alleges that "Respondent violated [s]ection 310.101(1)(a), Florida Statutes (2011), in that he failed to make reasonable allowances for a foreseeable wind condition by

anchoring near a berth instead of anchoring in a safer location in the turning basin."

As noted above, the hearing in the instant case was held on February 27, 2012. Two witnesses testified at the hearing: Commander Galen Dunton and Respondent. In addition to Commander Dunton's and Respondent's testimony, 16 exhibits (Petitioner's Exhibits 1 through 13, and Respondent's Exhibits 1 through 3), were offered and received into evidence.

At the conclusion of the evidentiary portion of the hearing, the undersigned announced, on the record, that the deadline for the filing of proposed recommended orders would be March 12, 2012.

The hearing Transcript (consisting of one volume) was filed with DOAH on March 5, 2012.

Respondent and the Department filed their Proposed Recommended Orders on March 7, 2012, and March 12, 2012,

respectively.

FINDINGS OF FACT

1. Respondent is now, and has been since November 2, 2006, a Department-licensed state pilot.

2. Respondent's license (License No. SP177), which is current and active, authorizes him to pilot vessels in and out of the Port of Palm Beach (Port).

3. The Port has 17 berths at which vessels can dock.

   
   

4. The navigable portions of the Port consist of an inner and an outer channel, two turning basins, and three slips. To aid mariners traversing the Port, there are navigation markers (herein referred to as "Beacons"), which are sequentially numbered in ascending order from east to west with odd-numbered markers to the port side and even-numbered markers to the starboard side of inbound vessels.

5. The Tropic Carib (Ship) is a foreign-flagged container ship owned by Tropical Shipping (Tropical). With an overall length of 525 feet and a gross registered tonnage of 10,825, it is the largest vessel regularly accommodated at the Port. It is equipped with bow and stern thrusters and a Becker rudder and is otherwise designed to handle well in harsh conditions.

6. At 12:50 p.m. on August 3, 2011, at around high water slack, the Ship was offshore, just to the east of the entrance to the Port's outer channel, drawing 21 feet four inches forward and

   23 feet aft, when Respondent boarded and took command of the vessel from the Ship's captain for the final leg of its journey. The Ship was bound for the Port's Berth 7 (Assigned Berth) to offload its cargo.

7. The Assigned Berth is a 464-foot, north-south oriented marginal wharf that lies directly on the western end of the Port's main turning basin (Main Turning Basin), into which the inner channel flows.2/

   
   

8. As the Ship, with Respondent on the bridge and in command,3/ entered the outer channel heading west to the Assigned Berth following the much smaller, 31-foot pilot boat (Pilot Boat) that had carried Respondent out to the Ship, there was no evidence of any storms in the area.4/

9. Precipitation, in the form of a light drizzle, was first encountered as the Ship was travelling in the inner channel between Beacon 8 and Beacon 10. Respondent, at this time, also observed lightning in the distance. He saw one bolt that struck a Port transformer5/ and another bolt that struck approximately one-half mile north of the Port causing a small explosion.

10. After seeing these lightning strikes, Respondent decided to inquire as to whether the lightning had impacted the availability of Tropical's Port-based line handlers to assist with the mooring of the Ship at the Assigned Berth. He did not have the capability of communicating directly with Tropical's Port-based personnel, so he radioed the pilot of the Pilot Boat (Boatman), who did have such capability, and asked her to make this inquiry on his behalf.

11. Respondent did not hear back from the Boatman until the Ship had passed Beacon 10 and was approaching Beacon 12, beginning its turn to the southwest toward the Assigned Berth. The Boatman informed him that the line handlers had been ordered to take cover, as a precautionary measure, due to the lightning

    
    

    in the area and therefore were not at the Assigned Berth waiting for the Ship to arrive. Respondent, however, did not receive any report from the Boatman, who was in front of him on the Pilot Boat, that there were any squally conditions ahead about which Respondent needed to be concerned in navigating the Ship to its ultimate mooring position.

12. By the time Respondent heard back from the Boatman, the intensity of the rain had increased somewhat, but weather conditions had not worsened to the extent that Respondent's ability to maneuver the Ship was impacted. Visibility was still good and the winds, which were predominantly westerly, did not present a problem. The Ship was about ten minutes away, under ordinary circumstances, from its intended destination to the southwest alongside the Assigned Berth.

13. Respondent had the Ship continue on course, in a southwesterly direction, toward the Assigned Berth, a decision that was reasonable under the circumstances that existed at the time. That line handlers might still be unavailable when he arrived did not make heading toward the Assigned Berth a foreseeably more risky or imprudent choice than any other option that Respondent may have had at the time. Respondent had no reason to believe that, if there no line handlers at the Assigned Berth to catch and secure the Ship's mooring lines, the Ship, equipped as it was, would not be able to hover in the water

    
    

    alongside the Assigned Berth and wait for the line handlers to appear. Moreover, even if there were stronger than anticipated westerly winds and the Ship, for some reason, were unable to hold its position, it would be blown, not toward, but away from the Assigned Berth, in the direction of the center of the Main Basin.

14. A few minutes later, as the Ship was approaching the Assigned Berth, it ran into a sudden and unexpected rain squall, with west-southwesterly wind gusts over 30 knots and blinding rains which reduced visibility to zero. Radio communications from the boatswain at the bow of the Ship, who was providing Respondent with needed information concerning the Ship's position in relation to the Assigned Berth, became garbled and unreliable. Reasonably fearing an allision if the Ship continued its forward motion under these conditions, Respondent prudently ordered that the port anchor be dropped, with 1.5 shots (135 feet) on deck,6/ and that the Ship's engines be put astern, orders that were followed. After determining, from the prop wash that he saw on the starboard side of the vessel, that the Ship was no longer closing on the Assigned Berth, Respondent ordered slow ahead, but the Ship's bow thrusters were overcome by the wind, causing the bow of the Ship to swing and the anchor to drag. As a result, the Ship's starboard stern corner touched the sandy bottom approximately 30 feet west of Beacon 12 in the northern part of the Main Turning Basin, where recorded water depths are from 13

    
    

    to 15 feet and, at high water slack, are generally three to four feet higher. The grounding produced minor, cosmetic damage to the Ship's rudder. No other damage to the Ship was sustained.

15. The squally conditions lasted a mere two minutes. When the weather cleared, Respondent ordered engines ahead. The Ship proceeded to its mooring position alongside the Assigned Berth, where it was serviced by the Tropical line handlers, who had emerged from the shelter they had sought from the lightning. Thereafter, at the recommendation of the Ship's captain, Tropical had divers inspect the underbody of the Ship. The inspection revealed the damage to the rudder caused by the grounding of the Ship during the rain squall (Grounding Incident).7/

16. Respondent was notified by Tropical of the outcome of the divers' inspection at around 3:30 p.m. on August 3, 2011, and, within a matter of minutes of receiving such notification, he telephonically reported the Grounding Incident to the United States Coast Guard (USCG) and to the Department's Pilot Consultant/Investigator, Lieutenant Commander Galen Dunton, USCG (Ret.).8/ The following day, Respondent provided Commander Dunton with a written report of the incident, as required by section

    310.111 and Florida Administrative Code Rule 61G14-15.002.

    
    

17. On August 30, 2011, Commander Dunton issued his Investigative Report concerning the Grounding Incident. It contained the following "Conclusions" and "Recommendation":

    
    

    Conclusions:

    
    

    It is concluded that

    
    

    1. Captain Hansen was operating under the auspices of his state license and therefore subject to disciplinary action by the State of Florida.

       
       

    2. The proximate cause [of the grounding of the Ship on August 3, 2011] is unknown. The most probable cause was the failure of the pilot to seek a better position within the [Main] Turning Basin to anchor instead of trying to come alongside the intended berth.

       
       

    3. The pilot made an error in judgment in deciding to approach the berth without any line handlers to assist versus seeking a better position within the [Main] Turning Basin to anchor and ride the storm out.

       
       

    4. Had the pilot proceeded further to the SW in the [Main] Turning Basin and then anchored,[9] he may not have grounded or at least bought more time to ride out the storm.

       
       

    5. The anchor began to drag once the bow started to swing with the wind, and as a result the stern quickly touched bottom near Beacon #12.

       
       

    6. There is evidence of a violation of FS 310.101(1)(a) on the part of the pilot, in that he failed to make allowances for the wind by anchoring off the berth instead of seeking a better position within the [Main] Turning Basin.

       
       

    7. There is evidence of a violation of FS 310.101(1)(k) on the part of the pilot in that he failed to (1) seek a better position to anchor within the [Main] [T]urning [B]asin,

       (2) [a]ttempted to approach the berth knowing that there were no line handlers available,

       
       

       practices not in keeping with the acceptable standards of safe piloting.

       
       

       Recommendation:

       
       

       It is recommended that

       
       

       1. This case be forwarded to the Probable Cause Panel and that probable cause be found to exist for the following violations:

       
       

       FS 310.101(1)(a) on the part of the pilot in that he failed to make allowances for the wind by anchoring off the berth instead of seeking a better position within the [Main] Turning Basin.

       
       

       FS 310.101(1)(k) on the part of the pilot in that he failed to (1) seek a better position to anchor within the [Main] [T]urning [B]asin, (2) [a]ttempted to approach the berth knowing that there were no line handlers available, practices not in keeping with the acceptable standards of safe piloting.[10]

       
       

18. The probable cause finding Commander Dunton recommended was made, and an Administrative Complaint, based on this finding, was thereafter filed. Respondent subsequently requested a "formal hearing" on the allegations against him. This administrative proceeding ensued, with the final hearing being held on February 27, 2012.

    Ultimate Finding

    
    

19. The evidence presented at the final hearing did not clearly and convincingly establish that, in having the Ship approach the Assigned Berth and anchor where it did during its inbound journey through the Port on August 3, 2011, Respondent

    
    

    failed to exercise the care a reasonable and prudent Department- licensed pilot would have exercised under the same or similar circumstances or otherwise violated some professional standard of care or safety he was obligated to follow as a Department- licensed pilot.

    CONCLUSIONS OF LAW

    
    

20. DOAH has jurisdiction over the subject matter of this proceeding and of the parties hereto pursuant to chapter 120.

21. Chapter 310 regulates "the piloting of vessels utilizing the navigable waters of the state." It was enacted for the stated purpose of protecting the "waters, harbors, and ports of the state,"11/ as well as "life, and property[,] . . . to the fullest extent possible." § 310.001.

22. As part of chapter 310's regulatory scheme, the Legislature has created the Board of Pilot Commissioners (Board) (in section 310.011) and given it, along with the Department, duties and powers designed to further the legislative purpose in enacting the chapter.

23. Pursuant to section 310.081, the Department has the responsibility to "examine persons who file application as state pilot in all matters pertaining to the management of vessels and in regard to their knowledge of the channels, waters, harbors, and port where they wish to serve, and, if upon examination to determine proficiency the [D]epartment finds them qualified to

    
    

    pilot all classes of vessels liable to enter that port and thoroughly familiar with the waters, the channels, the harbor, and the port, the [D]epartment shall appoint and license as state pilots such number of pilots as in the discretion of the [B]oard are required to act in the ports of the state." Respondent possesses such a Department-issued state pilot license. His license authorizes him to pilot vessels in and out of the Port. of Palm Beach.

24. Section 310.141(1) requires that, when entering or leaving ports of this state, including the Port, vessels "have a licensed state pilot or certificated deputy pilot on board to direct the movements of the vessel" except:

    1. Vessels exempted by the laws of the United States;

       
       

    2. Monohulled vessels drawing less than 7 feet of water;

       
       

    3. Multihulled, swath, or nondisplacement vessels for which the product of the length overall and extreme beam is less than 6,000 square feet, and which draw less than 7 feet of water;

       
       

    4. Any vessel, when docking or undocking; or

       
       

    5. Any vessel, when moving about within a shipyard or moving between a shipyard and a berth or slip directly adjacent to the shipyard.

    
    

25. Pursuant to 310.101, the Board is empowered to take disciplinary action against Department-licensed state pilots

    
    

    brought up on charges by the Department for "[a]ny act of misconduct, inattention to duty, negligence, or incompetence; any willful violation of any law or rule, including the rules of the road, applicable to a licensed state pilot . . .; or any failure to exercise that care which a reasonable and prudent licensed state pilot . . . would exercise under the same or similar circumstances," including the "[f]ailure to make allowances for the foreseeable effects of wind, current, and tide" (as described in section 310.101(1)(a)) and "[e]ngaging in any practice which does not meet acceptable standards of safe piloting" (as described in section 310.101(1)(k)). Because of their penal nature, these statutory provisions must be strictly construed, with any reasonable doubts as to their meaning being resolved in favor of the licensee. See McDonald v. Dep't of Prof'l Reg., 582 So. 2d 660, 669 (Fla. 1st DCA 1991)(Zehmer, J., specially concurring)("Under Florida law, disciplinary statutes such as section 310.101 are penal in nature and must be strictly construed against the enforcing agency.").

26. The disciplinary action may include one or more of the following penalties: license revocation; license suspension; license restriction; administrative fine not to exceed $5,000.00 for each count or separate offense; reprimand; and probation.

    
    

    § 310.101(2). In addition, the Board "may assess costs related to the investigation and prosecution of the case excluding costs associated with an attorney's time." § 455.227(3)(a).

27. The Board may take such action only after the licensee has been given reasonable written notice of the charges by the Department and an adequate opportunity to request a proceeding pursuant to sections 120.569 and 120.57. See § 120.60(5).

28. An evidentiary hearing must be held if requested by the licensee when there are disputed issues of material fact. See

    Hollis v. Dep't of Bus. & Prof'l Reg., 982 So. 2d 1237, 1239 (Fla. 5th DCA 2008); and §§ 120.569(1) and 120.57(1).

29. At the hearing, the Department bears the burden of proving that the licensee engaged in the wrongdoing alleged in the charging instrument. Proof greater than a mere preponderance of the evidence must be presented. Clear and convincing evidence is required. See Dep't of Banking & Fin., Div. of Sec. &

    Investor Prot. v. Osborne Stern & Co., 670 So. 2d 932, 935 (Fla. 1996); McDonald, 582 So. 2d at 663 (majority opinion); and § 120.57(1)(j) ("Findings of fact shall be based upon a preponderance of the evidence, except in penal or licensure disciplinary proceedings or except as otherwise provided by statute ").

30. Clear and convincing evidence is an "intermediate standard," "requir[ing] more proof than a 'preponderance of the

    
    

    evidence' but less than 'beyond and to the exclusion of a reasonable doubt.'" In re Graziano, 696 So. 2d 744, 753 (Fla. 1997). For proof to be considered "'clear and convincing' . . . the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established." In re Davey, 645 So. 2d 398, 404 (Fla. 1994) (quoting, with approval, from Slomowitz v.

    Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983)); see also In re Adoption of Baby E.A.W., 658 So. 2d 961, 967 (Fla. 1995)("The evidence [in order to be clear and convincing] must be sufficient to convince the trier of fact without hesitancy."). "Although this standard of proof may be met where the evidence is in conflict, . . . it seems to preclude evidence that is ambiguous." Westinghouse Electric Corp., Inc. v. Shuler Bros., Inc., 590 So. 2d 986, 989 (Fla. 1st DCA 1991).

31. In determining whether the Department has met its burden of proof, it is necessary to evaluate its evidentiary presentation in light of the specific allegations of professional wrongdoing made in the charging instrument. Due process prohibits an agency from taking penal action against a licensee

    
    

    based on matters not specifically alleged in the charging instrument, unless those matters have been tried by consent. See

    Trevisani v. Dep't of Health, 908 So. 2d 1108, 1109 (Fla. 1st DCA 2005); Marcelin v. Dep't of Bus. & Prof'l Reg., 753 So. 2d 745, 746-747 (Fla. 3d DCA 2000); Dep't of Rev. v. Vanjaria Enters., 675 So. 2d 252, 254 (Fla. 5th DCA 1996); and Delk v. Dep't of

    Prof'l Reg., 595 So. 2d 966, 967 (Fla. 5th DCA 1992).

    
    

32. In those cases where the proof is sufficient to establish that the licensee committed the violation(s) alleged in the charging instrument and that therefore disciplinary action is warranted, it is necessary, in determining what disciplinary action should be taken against the licensee, to consult the Board's disciplinary guidelines found in Florida Administrative Code Rule 61G14-17.004, which impose restrictions and limitations on the exercise of its disciplinary authority. See Parrot Heads, Inc. v. Dep't of Bus. & Prof'l Reg., 741 So. 2d 1231, 1233 (Fla. 5th DCA 1999)("An administrative agency is bound by its own rules

    . . . creat[ing] guidelines for disciplinary penalties.").

    
    

33. The Administrative Complaint in the instant case charges Respondent with failing to meet professional standards imposed on Department-licensed pilots in connection with his piloting of the Ship in the Port on August 3, 2011. It contains two counts. Count One alleges that Respondent violated section 310.101(1)(k) by "fail[ing] to seek a better position in which to

    
    

    anchor [the Ship] within the [Main] [T]urning [B]asin to wait out the storm," "attempt[ing] to have the [Ship] approach its berth despite knowing that there were no line handlers available," and "attempt[ing] to have the [Ship] approach its berth instead of seeking a more advantageous location to ride out a storm, despite clear evidence of [a] dangerous storm in the immediate area." Count Two alleges that Respondent violated section 310.101(1)(a) by "fail[ing] to make reasonable allowances for a foreseeable wind condition by anchoring near a berth instead of anchoring in a safer location in the turning basin."

34. To have met its burden of proof in this case, it was incumbent upon the Department, at the final hearing, to have presented expert testimony establishing the existence of accepted professional standards against which Respondent's conduct (as described in the Administrative Complaint) should be measured, as well as Respondent's deviation from those standards (in the manner alleged in the Administrative Complaint). See McDonald,

    582 So. 2d at 670 (Zehmer, J., specially concurring)("[W]here the agency charges negligent violation of general standards of professional conduct, i.e., the negligent failure to exercise the degree of care reasonably expected of a professional, the agency must present expert testimony that proves the required professional conduct as well as the deviation therefrom."); see also K.M.T. v. Dep't of HRS, 608 So. 2d 865, 873 (Fla. 1st DCA

    
    

    1992)("The purely subjective standard the hearing officer created and applied in this case does not constitute a sufficient standard for determining whether an individual's acts or omissions constitute neglect within the meaning of the Act.

    Rather, the acts or omissions must be judged against an objective standard, which may be defined by rule or by proof of general acceptance within the nursing home industry. Of course, HRS has the burden of proving that the alleged perpetrator's conduct fell below that standard."); Pic N' Save, Inc. v. Dep't of Bus. Reg., 601 So. 2d 245, 256 (Fla. 1st DCA 1992)("The imposition of personal responsibility on the licensee for illegal sales by its employees requires proof of minimum standards of conduct, either by adopted rules, communicated agency policy, or expert testimony, against which the licensee's alleged misconduct can be judged. Otherwise, determining when a licensee is to be held responsible for employee misconduct will become simply a matter of personal opinion held by the hearing officer or the Division on a case-by-case basis without any firm standard for uniformity in application or enforcement."); and Purvis v. Dep't of Prof'l Reg., 461 So. 2d 134, 136 (Fla. 1st DCA 1984) ("Section 474.214(1)(q), Florida Statutes, sets forth 'negligence, incompetency or misconduct, in the practice of veterinary medicine' as a ground for disciplinary action. The parties to this appeal have treated 'negligence' and 'incompetency' as

    
    

    meaning a failure to comply with the minimum standard of care or treatment required of a veterinarian under the circumstances. We accept that construction of this penal statute. [T]he

    charge against Dr. Purvis necessarily required evidentiary proof of some standard of professional conduct as well as deviation therefrom. . . . [T]he Board never introduced any evidence at the administrative hearing to show the appropriate standard of care which it contends Dr. Purvis failed to meet. The Board introduced no expert testimony, no statute, no rule, nor any other type of evidence to establish the appropriate standard of care or that Dr. Purvis fell below that standard.").

35. The Department called Commander Dunton, an experienced mariner, to the stand as its lone expert witness.12/ Commander Dunton (who has never been a harbor pilot and has no experience, at least as far as the record reveals, handling a vessel of the size and type of the Ship in any waterway, much less in the Port) gave opinion testimony consistent with the "Conclusions" set forth in his August 30, 2011, Investigative Report, but he did not provide the expert testimony necessary to sustain the charges made against Respondent in the Administrative Complaint. Not only did he fail to adequately identify, with specificity, any applicable, controlling standard of care and/or safety (giving instead what, by all appearances, were his own personal views regarding the wisdom and appropriateness of Respondent's decision

    
    

    making and actions), Commander Dunton's opinion that Respondent engaged in professional misconduct was based upon erroneous facts (concerning when the Ship first encountered squally conditions on its approach to the Assigned Berth), as well as incomplete information (concerning what other vessels or other potential hazards may have been in the Main Turning Basin at the time of the Grounding Incident). See M.A.B. v. Dep't of HRS, 630 So. 2d 1252, 1255 (Fla. 1st DCA 1994)("An expert's opinion which is based upon incomplete or inaccurate facts cannot be competent substantial evidence."); Dade Prop. Mgmt. v. Lazo, 418 So. 2d 393, 394 (Fla. 1st DCA 1982)("Dr. Gilbert's opinion as to causation was based on a hypothetical question which included 'facts' which have no support in the record. Accordingly, his opinion does not constitute substantial, competent evidence as to causation and the deputy erred in relying thereon."); and Y & S Partnership, Ltd., d/b/a Manhattan Convalescent Center v. Dep't

    of HRS, Case No. 82-372, 1983 Fla. Div. Adm. Hear. LEXIS 5877 *13 (Fla. DOAH Feb. 22, 1983; Dep't of HRS June 20, 1983)("An

    expert's opinion is worth no more than the facts upon which it is based."). Moreover, Respondent, an experienced mariner in his own right, whose nautical experience, in contrast to Commander Dunton's, includes working as a harbor pilot, effectively countered Commander Dunton's testimony with testimony of his own (that the undersigned has credited), in which he persuasively

    
    

    explained why what he did was not imprudent or unreasonably unsafe given the circumstances he faced.

36. Because the Department failed to meet its burden of proving by clear and convincing evidence Respondent's guilt of the violations alleged in the Administrative Complaint, the Administrative Complaint must be dismissed in its entirety.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Pilot Commissioners dismiss the Administrative Complaint against Respondent in its entirety.

S

DONE AND ENTERED this 29th day of March, 2012, in Tallahassee, Leon County, Florida.

STUART M. LERNER

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 29th day of March, 2012.

ENDNOTES

1/ Unless otherwise noted, all references in this Recommended Order to Florida Statutes are to that version of Florida Statutes

in effect at the time of the occurrence of the particular event or action being discussed.

2/ The Port's other turning basin is located immediately to the north of the Main Turning Basin. Of the Port's two turning basins, only the Main Turning Basin is deep and big enough to accommodate the Ship.

3/ The captain of the Ship (who had relinquished command to Respondent) was with Respondent on the bridge.

4/ Drought conditions existed in the area at the time.

5/ Exactly where in the Port this transformer was located, the evidentiary record does not reveal.

6/ Respondent was faced with an unforeseen, weather-related emergency situation requiring immediate action, to which he reacted reasonably by having the Ship anchor where it did. He did not have the luxury of time to seek out another anchoring location.

7/ The foregoing findings concerning the events of August 3, 2011, are based on the testimony of Respondent--the only eyewitness to testify at hearing. Testifying with apparent candor and sincerity, Respondent was a convincing, persuasive, and credible witness despite his obvious interest in the outcome of the proceeding and the undersigned has therefore relied on his testimony, notwithstanding its self-serving nature, as the law allows. See Falk v. Beard, 614 So. 2d 1086, 1089 (Fla. 1993)("It would be an anomalous situation indeed if the testimony of the one against whom a complaint is lodged could never form the basis for competent substantial evidence."); Fla. Publ'g Co. v.

Copeland, 89 So. 2d 18, 20 (Fla. 1956)("There is no doubt that the testimony of the plaintiff, although uncorroborated, '. . . if reasonable on its face, and believed and accepted by the jury as true can carry the burden of proof.'"); Martuccio v. Dep't of Prof'l Reg., 622 So. 2d 607, 609 (Fla. 1st DCA 1993)("Persons having a pecuniary or proprietary interest in the outcome of litigation are not disqualified from testifying under the Florida Evidence Code. Interest merely goes to the credibility of the evidence.")(citation omitted); and Raheb v. Di Battisto, 483 So. 2d 475, 476 (Fla. 3d DCA 1986)("We are not persuaded, as urged, that the testimony of the plaintiff Gordon Di Battisto should have been rejected by the trial court as inherently incredible; it was the trial court's function, not ours, to weigh the

testimony and evidence adduced in the cause based on its observation of the hearing, demeanor, and credibility of the witnesses appearing in the cause.").

While Respondent was the only eyewitness to testify at hearing, the evidentiary record does contain written statements from three other eyewitnesses--the captain of the Ship, the Ship's chief mate, and a Tropical stevedore. In his statement, the captain made the claim--contrary to what Respondent testified to and not corroborated by the chief mate's and the stevedore's written statements--that it was when the Ship was positioned "off Beacon 10" that it first "started encountering heavy squalls, lightning w/thunderstorm, heavy rain, [and] wind: W x N 30-35 kts." This uncorroborated out-of-hearing assertion made by the captain constitutes hearsay evidence that would not be admissible over objection in a civil proceeding in Florida. See Lee v. Dep't of HRS, 698 So. 2d 1194, 1200-01 (Fla. 1997); and Reichenberg v.

Davis, 846 So. 2d 1233, 1234 (Fla. 5th DCA 2003). Accordingly, even if the undersigned were disinclined to believe Respondent's testimony as to when the Ship first encountered squally conditions (which he is not), he would nonetheless be unable to make a finding of fact based on the captain's written account to the contrary. See Scott v. Dep't of Prof'l Reg., 603 So. 2d 519 (Fla. 1st DCA 1992)("The only evidence which the appellee presented at the hearing was a hearsay report which would not have been admissible over objection in a civil action. . . .

[T]his evidence was not sufficient in itself to support the Board's findings."); Doran v. Dep't of HRS, 558 So. 2d 87, 88 (Fla. 1st DCA 1990)("The documents presented before the hearing officer were hearsay and did not come within any recognized exception which would have made them admissible in a civil action. . . . Because the only evidence presented by the department to show that Doran held assets in excess of the eligibility requirements for receiving ICP benefits consisted of uncorroborated hearsay evidence, we must reverse the hearing officer's final order."); Harris v. Game & Fresh Water Fish Comm'n., 495 So. 2d 806, 809 (Fla. 1st DCA 1986)("In the present case, the information contained in the investigator's report was hearsay. The investigator indicated in his report that his findings were based on his discussions with various persons associated with the appellant's arrest and conviction. Such information is hearsay and does not fall under any hearsay exception. Thus, the material contained in the investigator's report could not be relied upon by the Commission to support its findings."); and section 120.57(1)(c) ("Hearsay evidence may be used for the purpose of supplementing or explaining other

evidence, but it shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions."); cf. Bose Corp. v. Consumers Union, 466 U.S. 485, 512 (1984)("When the testimony of a witness is not believed, the trier of fact may simply disregard it. Normally the discredited testimony is not considered a sufficient basis for drawing a contrary conclusion."); and U.S. v. Zimmitti, 850 F.2d 869, 876 (2d Cir. 1988)("The government was not entitled to prove that the defendants made threats to DiPietro simply by putting him on the stand, allowing him to indicate that no threats were made, and asking the jury to disbelieve that testimony.").

8/ Commander Dunton has been the Department's Pilot Consultant/Investigator since April 15, 1993, the day after he retired from the USCG. In this position, he not only investigates marine incidents in which Department-licensed pilots are involved, he also prepares and grades piloting examinations for the Department, notwithstanding that he himself has never been a harbor pilot. He has ship handling experience (including in severe thunderstorms), but the evidentiary record is silent as to the size and type of vessels on which he obtained this experience.

9/ At hearing, Commander Dunton testified that he would have traveled another four or five hundred feet (which would have taken approximately two minutes) before anchoring. The preponderance of the record evidence, however, establishes that the two minutes it would have taken to reach this location was time that Respondent did not have. Moreover, exigent circumstances aside, it is unclear whether the location identified by Commander Dunton truly would have been a better one "to ride the storm out," given the absence of any record evidence as to whether there were, at that time, any vessels or other potential hazards at or in the vicinity of that allegedly better location.

10/ In determining that Respondent had committed these violations, Commander Dunton, as he explained in his testimony at hearing, relied on the out-of-hearing assertion made by the captain (referred to in endnote 7 above) as to when the Ship first encountered squally conditions.

11/ The Port of Palm Beach is a "port," as that term is used in chapter 310. § 310.002(4) ("'Port' means any place in the state into which vessels enter or depart and includes, without limitation, . . . Palm Beach ").

12/ The Department also called Respondent to the stand, but as a fact witness.

COPIES FURNISHED:

C. Erica White, Esquire Department of Business

and Professional Regulation 1940 North Monroe Street, Suite 42

Tallahassee, Florida 32399 erica.white@dbpr.state.fl.us

Captain Reid Ronald Hansen 625 Inlet Road

North Palm Beach, Florida 33408

Robyn Barineau, Executive Director Board of Pilot Commissioners

1940 North Monroe Street, Suite 42

Tallahassee, Florida 32399 Robyn.barineau@dbpr.state.fl.us

Layne Smith, General Counsel Department of Business

and Professional Regulation 1940 North Monroe Street, Suite 42

Tallahassee, Florida 32399 layne.smith@dbpr.state.fl.us

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 12-000408PL

Orders for Case No: 12-000408PL