STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, BOARD OF PILOT )

COMMISSIONERS, )

)

Petitioner, )

)

vs. ) CASE NO. 82-200

)

WARWICK G. CAHILL, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, an administrative hearing was held before Diane D. Tremor, Hearing Officer with the Division of Administrative Hearings, on May 7, 1982, in Tampa, Florida. The issue for determination at the hearing was whether respondent's license as a deputy pilot should be revoked, suspended or otherwise disciplined for the reason that he obtained his license by fraud or material misrepresentation of a material fact in violation of Section 455.227(1)(e), Florida Statutes.

APPEARANCES

For Petitioner: W. B. Ewers

Special Trial Counsel

2170 Southeast 17th Street, Suite 204 Ft. Lauderdale, Florida 33316

For Respondent: C. Steven Yerrid

Holland & Knight Post Office Box 1288

Tampa, Florida 33601 INTRODUCTION

By an Amended Administrative Complaint filed on March 16, 1982, the petitioner seeks to suspend, revoke, annul, withdraw or take other disciplinary action against respondent's license as a deputy pilot on the grounds that he obtained his license by fraud or by material misrepresentation of a material fact. Specifically, it is charged that respondent, in his application for the pilot examination, stated that he had not been arrested and had not been a party in a criminal proceeding when, in fact, he had been both.

At the hearing, the petitioner presented no witnesses, but its Exhibits 1,

2 and 3 were received into evidence. Respondent testified in his own behalf and presented the testimony of Frank A. Maye, an investigator for the Department of Professional Regulation. Respondent's Exhibits 1 through 6 were received into evidence. The parties' Prehearing Stipulation was received into evidence as Joint Exhibit 1. Subsequent to the hearing, counsel for the petitioner

submitted proposed findings of fact and conclusions of law, which have been fully considered by the undersigned.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found:

1. On August 14, 1980, respondent Warwick G. Cahill applied to the Board of Pilot Commissioners for certification to take the examination to become a deputy pilot. To the questions on the application "Have you ever been a party in a criminal proceeding?" and "Have you ever been arrested?," respondent answered "No."

   
   

2. On April 16, 1975, respondent was arrested and charged with "driving under the influence" in violation of Section 316.028, Florida Statutes. He was convicted of the misdemeanor charge, his driver's license was suspended for ninety days, he was fined $150.00 and he was placed on probation for six months. Respondent's record shows no prior or subsequent involvement in any criminal or traffic court proceedings.

   
   

3. On November 24, 1976, respondent applied for tug employment with the St. Phillip Towing Company. On that application, the following responses were made to the question: "Have you ever been arrested?": Yes, one time, on charges of DWI.

   
   

4. On August 4, 1980, Rickie Wayne Baggett applied to the Board of Pilot Commissioners to take the same pilot's examination for which the respondent had applied. To the question, "Have you ever been arrested?," Mr. Baggett answered "Yes," explaining that he had been arrested for driving while intoxicated and his license had been suspended for one year. In the space provided for him to state his driver's license number, Mr. Baggett noted that it had been suspended for one year.

   
   

5. At a meeting held on September 5, 1980, the Board of Pilot Commissioners considered the applications of respondent and Mr. Baggett, along with others, to take the October 17, 1980, examination for certificated deputy pilot. The Board unanimously approved a motion to give conditional approval to the applicants Baggett and Cahill pending the receipt of information confirming their maritime background. At a later date, both Baggett and respondent were certified as eligible to take the October 17, 1980 pilot's examination.

   
   

6. An investigator with the Department of Professional Regulation who has routinely investigated matters pertaining to licensed pilots since March of 1980 has never been requested to investigate any pilot for a DWI-related offense.

   The respondent's DWI offense was discovered during an investigation concerning an unrelated matter.

   
   

7. While fully aware of the fact that he had been arrested for a driving while intoxicated charge, respondent Cahill claims to have forgotten about the arrest at the time he made application for examination and did not realize that such was a criminal proceeding.

   
   

8. Mr. Cahill was born in Australia, came to the United States in 1972 and is a naturalized citizen.

   CONCLUSIONS OF LAW

   
   

9. Respondent is charged with obtaining his license by fraud and/or material misrepresentation of a material fact. Fraud involves an intentional false representation which deceives and is intended to deceive another in order to obtain some unjust advantage. In order to constitute fraud, the false representation must be intentional and it must involve a material fact--one that the other party relies upon as a basis for his action. Here, it is possible that respondent had forgotten an arrest occurring almost five years prior to the time he filed his application and it is possible that he did not realize that a proceeding involving a traffic offense was a "criminal" proceeding. The fact that he admitted to an arrest on a prior application for employment made one year after the 1975 arrest does not refute the respondent's statement that he had forgotten the arrest some five years later. The first element of fraud--a willful or intentional false representation--has not been proven in this case.

   
   

10. Petitioner has also failed to adequately demonstrate that respondent obtained his license by a material misrepresentation of a material fact. It has not been demonstrated that had the Board been aware of the fact that respondent had a 1975 conviction for driving while under the influence of alcohol it would have denied respondent a pilot's license for that reason.

    
    

11. Indeed, the evidence adduced at the hearing illustrates that the investigator with the Department of Professional Regulation's Tampa office has never been requested to investigate a pilot for a DWI-related offense. Also, an applicant for the same examination for which respondent applied did state on his application that he had been arrested for DWI and that his driver's license was then currently under suspension for that offense. That applicant was certified as eligible to sit for the pilot's examination by the same Hoard which approved respondent's eligibility. Petitioner has failed to adduce any evidence that the respondent's application to take the pilot's examination would have been denied had the Board been aware that he had been arrested and convicted in 1975 for driving while under the influence of alcohol. Absent such evidence, respondent cannot be found guilty of obtaining his license by fraud or material misrepresentation of a material fact in violation of Section 455.227(1)(e), Florida Statutes.

RECOMMENDATION

Based upon the findings of fact and conclusions of law recited above, it is RECOMMENDED that the Administrative Complaint filed on November 9, 1981, as amended on March 16, 1982, be DISMISSED.

Respectfully submitted and entered this 21st day of July, 1982, in Tallahassee, Florida.

DIANE D. TREMOR

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 21st day of July, 1982.

COPIES FURNISHED:

W. B. Ewers, Esquire Suite 204

2170 S. E. 17th Street

Ft. Lauderdale, Florida 33316

C. Steven Yerrid, Esquire Holland & Knight

Post Office Box 1288 Tampa, Florida 33601

Jane Raker, Executive Director Board of Pilot Commissioners

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 82-000200

Orders for Case No: 82-000200