STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William J. Kendrick, held a public hearing in the above-styled case on November 4, 1985, at Tallahassee, Florida.

APPEARANCES

For Petitioner: Kenneth Gassett, pro se

Post Office Box 2698

Kingshill St. Croix, U.S.V.I. 00850

For Respondent: John E. Griffin, Esq.

Assistant Attorney General Administrative Law Section Room 1601 - The Capitol Tallahassee, Florida 32301

PRELIMINARY STATEMENT

By petition filed September 11, 1985, Kenneth Gassett challenges the decision of the Department of Professional Regulation, Board of Pilot Commissioners, denying his application to sit for the August 27, 1985, deputy pilot's examination. At issue is whether Captain Gassett had adequate sea time, as mandated by Section 310.071, Florida Statutes, and Rule 21SS-5.125, F.A.C., to sit for the examination.

At final hearing Petitioner testified on his own behalf.

Petitioner's Exhibits 1 and 2 were received into evidence. Respondent called John C. Hanson as a witness. Respondent's Exhibit 1 was received into evidence.

The transcript of the hearing was filed December 16, 1985. The parties were granted leave through December 26, 1985, within which to file proposed findings of fact and conclusions of law. Respondent has submitted proposed findings. No proposed findings have been submitted on behalf of Petitioner. A ruling has been made on each proposed finding of fact in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. By application filed with Respondent, Department of Professional Regulation, Board of Pilot Commissioners (Department), April 30, 1985, Petitioner, Kenneth Gassett (Gassett), requested authorization to sit for the August 27, 1985, deputy pilot's examination for the port of Pensacola.*

   
   

2. Captain Gassett's application reflected that he was employed by the Alaskan Marine Highway System from December 21, 1981 through June 3, 1982. Although his official discharges only reflect service as a second or third mate, the evidence is clear that Captain Gassett also served as a pilot. During his service with the Alaskan Marine Highway System Captain Gassett accumulated 90 sea days in which he actually piloted a vessel into or out of a deep-water United States port.

   
   

3. Captain Gassett's application further reflected that he was employed as a pilot for the Virgin Islands Port Authority, St. Croix, United States Virgin Islands, from January 16, 1984 through April 23, 1985, the date of his application. However, since the documentation he provided to attest to his service in the Virgin Islands was dated April 18, 1985, the Department advised Captain Gassett by letter of June 4, 1985, that:

   
   

   Upon preliminary review of your application, it appears from the sea service presented that you are still serving as a pilot in the USVI. It is recommended that you provide any additional documentation possible to indicate this employment beyond the effective date of April 18, 1985 on the letter previously submitted.

4. By letter of June 10, 1985, Captain Gassett advised the Department that he was still employed as a pilot in the Virgin Islands, enclosed copies of his latest paychecks and personnel statement, and supplied the Department with the name and telephone number of the Director of Personnel, Virgin Islands Port Authority, should it need any further confirmation.

   
   

5. At the time of final hearing Captain Gassett was still employed as a pilot for the Virgin Islands Port Authority. During such service he worked a rotating schedule of two weeks on duty and one week off duty. Accordingly, from January 16, 1984 to August 27, 1985, the date of the examination, Captain Gassett could have accumulated a maximum of 393 sea days as a deep water pilot.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

7. Pertinent to this case are the provisions Section 310.071, Florida Statutes, and Rule 21SS-5.125, F.A.C.

   
   

8. Section 310.071, Florida Statutes, provides:

   
   

   Application for license or certificate; qualification of applicants.

   
   

   1. In addition to the requirements specified in this chapter, each applicant for a license as a state pilot or for a certificate as a deputy pilot:

      
      

      * * *

      
      

      (b) Shall have had maritime experience satisfactory to the board prior to taking the examination provided for in s. 310.081(2), as evidenced by documentation of the following service while holding a United States Coast Guard license:

      
      

      * * *

      
      

      2. At least 2 years of service during the 4-year period immediately preceding the

      examination in a deep-water United States port as an active first-class unlimited pilot serving on at least an unlimited second mate's license and acting under authority of a duly constituted governmental regulatory entity. . . .

      
      

9. Rule 21 SS-5 .125, F.A.C., provides:

   
   

   1. An applicant for a Certificate as a Deputy Pilot must possess the following qualifications prior to taking the examination provided in Section 310.081(2), Florida Statutes:

      
      

      * * *

      
      

      (d) An applicant must have had maritime experience satisfactory to the Board. Satisfactory maritime experience shall be:

      
      

      * * *

      
      

      1. All sea time under this rule shall be fully documented by discharges, continuous discharge books, or other official documents. The Board will accept copies of official documents in lieu of the original. However, non-official documents such as, but not limited to, letters and narratives, will not be accepted by the Board unless the original document is submitted and its authenticity attested to by the applicant. After a final decision on an application, the Board will return those original documents accompanying the application upon submission of a copy of those documents.

         The applicant must provide a certified translation of any documentation not recorded in the English language.

         
         

      2. For the purpose of this rule, one year of maritime experience is defined as

      300 days on a vessel in service.

      
      

10. The ultimate burden of persuasion rests upon the applicant to demonstrate his qualifications to sit for the

    deputy pilot's examination. See: Florida Department of Transportation v. J.W.C. Co., 396 So. 2d 778 (Fla. 1st DCA 1981). Accordingly, the burden is upon Captain Gassett to demonstrate that prior to the examination he possessed at least 600 days of service on a vessel, as an active first-class pilot, in a deep-water United States port.

    
    

11. In computing his service with the Alaskan Marine Highway System, Captain Gassett asserts that he should, in accordance with U. S. Coast Guard policy, be given credit for time and a half because he was employed on a 12-hour work day. The Department disagrees with Captain Gassett's assertion predicated on Rule 21SS-5.125(6), F.A.C. Further, Captain Gassett asserts he is entitled to credit for his service as a pilot in the U.S. Virgin Islands for the period of January 16, 1984 to August 27, 1985. The Department disagrees with Captain Gassett's assertion. The Department asserts that the documentation Captain Gassett supplied to document his service subsequent to April 18, 1985 failed to comply with Rule 21SS- 5.125(5), F.A.C., and, therefore, is not creditable.

    
    

12. Under the circumstances it is not necessary to address the merits of the parties' contentions. Viewing the evidence in the light most favorable to Captain Gassett the maximum experience he has demonstrated, on a vessel in service, is 528 days. Therefore, Captain Gassett has failed to meet the 600-day threshold mandated by Rule 21SS-5.125, F.A.C.

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that the Department enter a Final Order dismissing the petition for formal hearing.

DONE AND ENTERED this 31st day of December, 1985, at Tallahassee, Florida.

WILLIAM J. KENDRICK

Hearing Officer

Division of Administrative Hearings Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

( 904) 488-9675

FILED with the Clerk of the Division of Administrative Hearings this 31st day of December, 1985.

APPENDIX

The Department's proposed findings of feet are ruled on as follows:

1. Rejected as a conclusion of law.

   
   

2. Adopted in substance in paragraph 1.

   
   

3. Adopted in substance, except the last two sentences, in paragraphs 3 and 4. The last two sentences are rejected as conclusions of law.

   
   

4. Adopted in substance in paragraph 2.

   
   

5. First sentence adopted in paragraph 3. Second sentence rejected as contrary to the evidence.

   
   

6. Adopted in substance in paragraph 5.

* Captain Gassett's application also sought authorization to sit for the deputy pilot's examination for the port of Jacksonville. However, at hearing he withdrew his protest of the Department's denial of that portion of the application.

Accordingly, only Captain Gassett's protest of the Department's denial of his application as it relates to the port of Pensacola is at issue.

COPIES FURNISHED:

Fred yarn, Executive Director Board of Pilot Commissioners Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Fred M. Roche, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Salvatore A. Carpino, Esq. General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Kenneth Gassett

Post Office Box 2698 Kingshill

St. Croix, U.S.V.I. 00850

John E. Griffin, Esq. Assistant Attorney General Administrative Law Section Department of Legal Affairs Room 1601 - The Capitol Tallahassee, Florida 32301

Docket for Case No: 85-003231

Orders for Case No: 85-003231