STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TAMPA TRI-COUNTY PILOTS )

ASSOCIATION, )

)

Petitioner, )

)

v. ) CASE NO. 85-0349

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

)

Respondent, )

)

and )

) TAMPA BAY PILOTS ASSOCIATION, )

)

Intervenor. )

)

RECOMMENDED ORDER

Pursuant to notice, an administrative hearing was held before Diane D. Tremor, Hearing Officer with the Division of Administrative Hearings, on June 25, 1985, in Tampa, Florida. The issue for determination in this proceeding is whether the Board of Pilot Commissioners should appoint additional State pilots and/or deputy pilots for Tampa Bay.1

APPEARANCES

For Petitioner: J. Michael Shea

312 Brevard Avenue Tampa, Florida 33606

For Respondent: John E. Griffin

Assistant Attorney General Department of Legal Affairs Suite 1601, The Capitol Tallahassee, Florida 32301

For Intervenor: Steven Yerrid and Margaret D. Matthews

HOLLAND and KNIGHT

Post Office Box 1288 Tampa, Florida 33601

INTRODUCTION

At its December 18, 1984, Board meeting, the respondent Board of Pilot Commissioners denied the request of the petitioner Tampa Tri-County Pilots Association (TRICO) to declare openings for two additional pilots and between one and four additional deputy pilots for Tampa Bay. The request was denied by the Board on the grounds that petitioner had not demonstrated that the vessel traffic in Tampa Bay had increased significantly or that working conditions of the pilots and/or deputy pilots on Tampa Bay were such that additional pilots or deputy pilots were required in order to maintain efficient and safe piloting services.

In a petition for a formal administrative hearing, petitioner alleges that twenty state pilots and four deputy state pilots are not sufficient to safely move the vessels; that port traffic increased in 1984; that demand for piloting services exceeds supply; that pilots on Tampa Bay are working too many hours a day which decreases their efficiency and ability to pilot safely; and that future openings will occur due to retirement and/or illness and therefore that training must begin now. Prior to the hearing, the parties entered into a Prehearing Stipulation, received into evidence as Hearing Officer's Exhibit1. All parties stipulated that the disputed issues of fact were whether there was a material increase in vessel traffic on Tampa Bay in 1984 and whether 20 pilots and 4 deputy pilots "are sufficient to safely meet the demands for piloting services on Tampa Bay as it existed on December 18, 1984."

At the beginning of the final hearing, a dispute arose as to the admissibility and relevancy of the evidence regarding factual matters occurring after December 18, 1984.2

Ruling was initially reserved on this issue pending a further review of the petition for hearing, the prehearing stipulation and the transcript of the December 18, 1984 Board meeting. Based upon the allegations raised in the petition, the stipulated issues for hearing and the fact that the Board was requested on December 18, 1984, to declare additional openings and not to fill vacancies, it is ruled that factual matters which have occurred subsequent to December 18, 1984, or which pertain to the filling of vacancies, are not relevant to the issues in this proceeding. Such ruling also precludes the receipt into evidence of petitioner's post-hearing tendered Exhibit 27 -- the purported minutes of the Board's March 18,

1985, meeting. The petitioner's motion to admit Exhibit 27 is accordingly denied.

In support of its position that additional openings for pilots and deputy pilots should be declared, TRICO presented the testimony of Fritz Mustereit, David Lee MacDonald, Geraldine S. Bates, Betty Provenzano, Captain Gary Maddox and Anita Rabren.

Petitioner's Exhibits 5, 7 through 10 and portions of Exhibit 26 were received into evidence.

The Board of Pilot Commissioners presented the testimony of Captain Gary Maddox, who was accepted as an expert witness in Tampa Bay piloting. The Board's Exhibits 1 and 2 were received into evidence.

No further witnesses or exhibits were offered by the intervenor Tampa Bay Pilots Association.

Subsequent to the hearing, the parties submitted proposed findings of fact and proposed conclusions of law. To the extent that the parties' proposed findings of fact are not included in this Recommended Order, they are rejected as not being supported by competent substantial evidence adduced at the hearing, irrelevant or immaterial to the issues in-dispute or as constituting legal conclusions as opposed to factual findings.

FINDINGS OF FACT

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

1. As of December 18, 1984, the number of individuals licensed or certificated by the Board of Pilot Commissioners for Tampa Bay was twenty (20) state pilots and four (4) deputy pilots. This number has remained constant since 1981.

   
   

2. The petitioner Tampa Tri-County Pilots Association (TRICO) was formed and began operations on January 1, 1984, to provide pilotage services on Tampa Bay. TRICO's membership includes only one state licensed pilot and no certificated deputy pilots. As of December 18, 1984, the membership of the intervenor Tampa Bay Pilots Association included nineteen (19)licensed state pilots and four (4) certificated deputy pilots.

   
   

3. While a Tampa shipping agent expressed his feeling of a need for additional pilots on Tampa Bay, no factual basis for

   this opinion was demonstrated. Indeed, the testimony of this witness indicates that the number of vessels operated by hisagency requiring the use of state pilots was virtually the same in 1984 as it was in 1981 or 1982. This witness did not have knowledge as to the number of licensed pilots and deputy pilots in Tampa Bay between 1981 and 1984 and was not totally familiar with the distinction between state pilots and federal pilots.

   
   

4. The number of foreign vessels calling upon Port Manatee has increased over the last several years. However, the Assistant Port Director had no opinion as to whether additional state pilots or deputy pilots were needed to safely or adequately handle this increased traffic.

   
   

5. While the Port of St. Petersburg has experienced a slight increase in the total number of vessels coming in and out, the Assistant to the Director of the Port Authority was unaware of which vessels required a state pilot.

   
   

6. The number of foreign vessels in and out of the Port of Tampa decreased for each year from 1980 through 1983, and then increased for the year 1984, but still did not reach the number of vessels using the Port in 1980.

   
   

7. Tampa Bay's main ship channel is going through a harbor deepening project which will enable it to accommodate deeper draft vessels. These vessels will be capable of carrying larger tonnage amounts, giving rise to the possibility of a reduction in the total number of vessels entering and leaving the ports of Tampa Bay. At the present time, however, there is a lack of docking or berthing facilities available to accommodate the larger vessels.

   
   

8. The petitioner TRICO, with only one licensed state pilot, has had to turn down piloting jobs. While there have been three occasions when the intervenors were not able to provide a pilot to a vessel immediately upon its request, it was not established whether the reasons for such occurrences were because the vessel arrived unexpectedly or because there was, at the time, a shortage of available pilots.

   
   

9. The intervenor's business records indicate that in 1980, approximately 6,000 vessels were moved by 18 state pilots and 7 deputies providing a total work capacity equivalent to approximately 22 individuals. In 1981, 20 pilots and 4 deputies handled 5,803 vessel movements. The same number of pilots and

   deputies handled 5,506 vessel movements in 1982 and 5,728 vessel movements in 1983. In 1984, with 19 licensed state pilots and 4 deputy pilots, the intervenor provided piloting services for 5,563 vessel movements. In the same year, the petitioner's one state licensed pilot handled 672 vessel movements.

   Approximately 35% to 40% of these vessel movements did not require state licensed pilots, but merely federally licensed pilots. These vessel handling statistics for the years between 1980 and 1984 demonstrate that the average number of jobs or vessel movements per pilot were 293 in 1980, 235 in 1981, 230 in

   1982, 240 in 1983 and 259 in 1984.

   
   

10. Pilot members of the Tampa Bay Pilots Association work a schedule of three weeks on-duty and three weeks off-duty. At any given time, one-half of the licensed pilots are on-duty with the remaining one-half being off-duty, but subject to being recalled for duty should weather conditions or other circumstances dictate the need for additional pilots. As a result of this rotation system, which is similar to that utilized by pilots in other ports, the intervenor has a 100% relief capacity. It is also the policy of the intervenor to guarantee a rest period between vessel movements for all pilots during their three weeks of duty. If a pilot or deputy pilot has less than six hours of rest between piloting assignments, he is guaranteed eight hours of rest after the second assignment. Additional pilots remain on standby to assure that this rest policy is effectuated. The intervenor also maintains individual cottages on Egmont Key which the pilots on duty may use for sleep or rest between jobs. Egmont Key, located at the mouth of Tampa Bay, is ideally located for the quickest transit out to any entrances from the sea.

    
    

    CONCLUSIONS OF LAW

    
    

11. The maximum number of licensed pilots authorized for the various ports and water bodies in Florida is established by the Legislature, and it is the responsibility of the Board of Pilot Commissioners to determine the number (within the statutory limitation) actually needed for each port. The Board's exercise of discretion is to be guided by two considerations: (a) the supply and demand for piloting services; and (b) the public interest in maintaining efficient and safe piloting services. Section 310.061(1) and (2), Florida Statutes. The Board is also empowered to appoint and certificate an unlimited number of deputy pilots as, in its discretion, are required. The Board's discretion with regard to the appointment and certification of deputy pilots is to be

    exercised in light of the same criteria as are applied to licensed pilots -- supply and demand and efficient and safe piloting services. Rule 22SS-5.09(1), Florida Administrative Code.

    
    

12. The statutory limitation on licensed pilots for Tampa Bay is twenty-two (22). Section 310.061(1), Florida Statutes. The Board of Pilot Commissioners has previously determined that the appropriate number of pilots for Tampa Bay is twenty and the appropriate number of deputy pilots is four. In this proceeding, petitioner has requested the Board to approve the licensing of two additional pilots and the certification of one, two, three or four additional deputy pilots for Tampa Bay. The burden is upon the petitioner in this proceeding to establish that additional pilots are necessary in Tampa Bay to handle the demand for piloting services in a safe and efficient manner. In addition, Rule 22SS-5.09(1), Florida Administrative Code, requires that when a request is made to the Board to notice an opening for a licensed pilot, the Board should be advised in writing

    
    

    "of the number of handlings by the most junior deputy with at least 24 months service immediately preceding the request and a general description of the types, tonnage, and drafts of vessels handled by the deputy pilot during the preceding 12 months."

    
    

13. The petitioner has alleged in this proceeding that vessel traffic within Tampa Bay has increased, that the demand for piloting services exceeds the supply of available pilots and that the pilots are working long hours, thus affecting their ability to safely and efficiently handle vessels. Petitioner further alleges that future openings for pilots will shortly occur due to the retirement and/or illness of some of the current pilots.

    
    

14. A careful review of the evidence and testimony presented in this proceeding leads to the conclusion that petitioner has failed in its burden to prove a basis for a determination of need for additional pilots or deputy pilots in Tampa Bay. While the evidence presented by the petitioner does indicate a slight increase in vessel traffic in Tampa Bay during 1984 over the previous year, there was simply no evidence that the present number of pilots are incapable of safely and efficiently handling that increase. The only expression of need

    for additional pilots came from a shipping agent who was unfamiliar with the actual number of pilots licensed or certificated over the past several years, as well as the distinction between a vessel's requirement for a state, as opposed to a federal, licensed pilot. This witness did not testify that his agency had experienced difficulty obtaining pilots when needed, nor did he provide any other factual basis for his opinion of need. There was absolutely no relevant or competent evidence in the record of this proceeding that the demand for piloting services exceeds the supply of pilots in Tampa Bay. The fact that petitioner's association may have more vessel traffic than it can efficiently .or safely handle is not relevant to the issue in this proceeding. The issue is the needs and requirements for Tampa Bay; not the needs of any particular association.

    
    

15. Petitioner likewise failed to prove that the currently licensed pilots or certificated deputy pilots are being required to work long hours, thus affecting their ability to safely and efficiently move vessels. The evidence does demonstrate that the average number of vessel movements per year per pilot has increased by approximately 20 between calendar years 1983 and1984. However, there was no evidence concerning the length of time spent moving a vessel nor was there any evidence to establish the maximum number of vessel movements that may be efficiently and safely handled by one pilot over a one year period.

    
    

16. The respondent, on the other hand, has presented evidence that 23 of the 24 Tampa Bay licensed or certificated pilots and deputy pilots performed their duties under a policy which provides adequate rest between jobs with a 100% relief capacity should conditions warrant. If the need for additional pilots at any given time is present, schedules can be varied to accommodate that need. No shipping agent or other member of the maritime community has requested the intervenor to change its working schedule for pilots in Tampa Bay.

    
    

17. In conclusion, the petitioner has simply failed to demonstrate by competent substantial evidence the need for additional pilots and/or deputy pilots to handle the demand for services in Tampa Bay in a safe and efficient manner. Whether or not licenses or certificates of individuals who have expired or retired should be replaced by other licenses or certificates is not the issue here. That issue has not been properly raised in this proceeding nor has the Board indicated its intent to grant or deny such a request. The issue here is whether there

is a need for more than twenty pilots and four deputy pilots on Tampa Bay. The petitioner has failed to demonstrate that there is such a need.

RECOMMENDATION

Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the petitioner's request that additional pilot and deputy pilot openings for Tampa Bay be declared be DENIED.

Respectfully submitted and entered this 6th day of September, 1985, 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 6th day of September, 1985.

ENDNOTES

1/ See the Introduction for a more thorough discussion of the issue in this proceeding.

2/ This evidence primarily concerns the death of one licensed State pilot, the retirement of another and the continued illness of yet another -- all of which have occurred subsequent to December of 1984.

COPIES FURNISHED:

J. Michael Shea, Esquire

312 Brevard Avenue Tampa, Florida 33606

John Griffin:.

Assistant Attorney General Department of Legal Affairs Suite 1601, The Capitol Tallahassee, Florida 32301

Steven Yerrid and Margaret Matthews HOLLAND and KNIGHT

P.O. Box 1288

Tampa, Florida 33601

Fred Varn Executive Director

Board of Pilot Commissioners

130 N. Monroe Street Tallahassee, Florida 32301

Fred Roche, Secretary

Department of Professional Regulation

130 N. Monroe Street Tallahassee, Florida 32301

Salvatore Carpino, General Counsel Department of Professional Regulation

130 N. Monroe Street Tallahassee, Florida 32301

Docket for Case No: 85-000349

Orders for Case No: 85-000349