STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MICHAEL D. PEREZ, )

)

Petitioner, )

)

vs. ) CASE NO. 90-5732

) DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF PILOTS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings by its duly designated Hearing Officer, K. N. Ayers, held a formal hearing in the above styled case on December 20, 1990, at Tampa, Florida.

APPEARANCES

For Petitioner: Margaret Matthew, Esquire

Post Office Box 959 Tampa, Florida 33601-0959

For Respondent: Roberta L. Fenner, Esquire

Department of Professional Regulation

Northwood Centre

1940 North Monroe Street Suite 60

Tallahassee, Florida 32399-0792 STATEMENT OF THE ISSUES

Whether Petitioner's answers to questions 57, 82 and 173 on the March 1990 Deputy Pilot Examination - Port of Tampa, were wrongfully graded as incorrect.

PRELIMINARY STATEMENT

By letter dated August 16, 1990, Michael D. Perez, Petitioner, by and through his attorney, requested a formal administrative hearing to challenge the grades he received on numerous questions on the March 1990 Deputy Pilot Examination, Port of Tampa. At the hearing Petitioner reduced his challenge to three questions Nos. 57, 82 and 173. Thereafter, Petitioner called four witnesses, including himself, with the deposition of the fourth witness submitted as late filed exhibit 20.

Proposed findings have been submitted by the parties. Those proposed findings not included below are accepted, except as specifically rejected in the Appendix attached hereto and made a part hereof.

FINDINGS OF FACT

Based upon all of the evidence, the following findings of fact are determined:

1. Michael D. Perez took the competitive examination in March 1990 and failed to obtain an overall passing grade, having obtained a failing grade in Inland Rules of the Road and Federal and State Laws and Rules.

   
   

2. The deputy pilot examination given in Florida differs from most examinations given to determine minimum competency in that this examination is a selective type examination to select the best qualified, i.e., the one or two receiving the highest grade on the examination to fill existing vacancies.

2 3. Even if Petitioner succeeds in receiving a corrected grade for all three questions here challenged, he would obtain an over all passing grade on the examination but would not receive a grade high enough to result in his selection for a vacancy.

1. Question 57 is intended to test the applicant's knowledge of the inland rules of the road. The sketch accompanying the question shows two sailing vessels in a crossing situation with the wind blowing in the direction vessel A is heading and on the port beam of vessel B. Both vessels show two sails (no masts) with the forward sail on the stem of the vessels with the second sail emanating near the vessels' midships. On vessel A the midships sail extends over the starboard side while the forward sail extends to port. On vessel B both sails extend over the starboard side of the vessel.

   
   

2. Rule 12 of the inland rules of the road covers the conduct of sailing vessels in sight of each other in a crossing situation and provides:

   
   

   1. When each has the wind on a different side, the vessel which has the wind on the portside shall keep out of the way of the other;

   2. When both have the wind on the same side, the vessel which is to windward shall keep out of the way of the vessel which is to leeward; and

   3. If a vessel with the wind on the portside sees a vessel to windward and cannot determine with certainty whether the other vessel has the wind on the port or the starboard side, she shall keep out of the way of the other.

      (b) For the purpose of this Rule the windward side shall be deemed to be the side opposite to that on which the mainsail is carried or, in the case of a

      vessel, the side opposite to that on which the largest four-an-aft sail is carried.

      
      

3. Petitioner contends that because the diagram accompanying question 57 shows sails emanating from both the port and starboard side he was uncertain which was the main sail and therefore he marked answer C which says "B is the stand-on vessel because she is crossing from starboard to port." The correct answer is D which says "B is the stand-on vessel because A is to windward."

4. The hand-drawn diagram showing one sail bottomed at the stem of the vessel can depict only a sloop-type vessel and this sail is a jib. Accordingly, the sketch showing the midship sail over the starboard side would indicate this sail is the mainsail and the vessel is deemed to have the wind to port. Accordingly, both vessels have the wind on the same side which makes the leeward vessel the stand-on vessel.

   
   

5. Furthermore, answer C selected by Petitioner that B is the stand-on vessel because she is crossing from starboard to port would be correct for power driven vessels, but is not applicable to sailing vessels which are covered by Rule 12. For sailing vessels, the stand-on and give-way vessel in a crossing situation is determined by the wind direction in relation to the vessel's heading and not on whether one is to starboard or to port of the other.

   
   

6. Question 82 involved the application of two signals required by the Inland Rules of the Road. This question, with accompanying diagram, involved a vessel backing from a slip into the channel and calls into play Rule 34 of the Inland Rules. Rule 34(g) states "When a power-driven vessel is leaving a dock or berth, she shall sound one prolonged blast." Rule 34(a) provides:

   
   

   "When power driven vessels are in sight of one another and meeting or crossing at a distance within half a mile of each other, each vessel underway, when maneuvering as authorized or required by these rules:

   (1)(i) shall indicate that maneuver by the following signals on her whistle: one short blast to mean "I intend to leave you on my port side;" two short blasts to mean "I intend to leave you on my starboard side;" and three short blast to mean "I am operating astern propulsion."

   
   

7. Question 82 states:

   
   

   As shown in figure 208, vessel A is backing from a slip into the channel. Vessel B is one-half mile away and is approaching. She cannot be seen because of warehouse C. Both vessels are power driven. As A backs from the slip, she must sound:

   1. One prolonged blast only.

   2. One prolonged blast followed immediately by three short blasts.

   3. One prolonged blast and, when in sight of B, sound 3 short blasts.

   
   

   The correct answer is C. Petitioner gave answer A. A careful reading of question 82 shows a developing situation. A is backing from a slip into the channel. B is not in sight because of an obstruction. B later comes into view. The rule above quoted requires A to sound a prolonged blast when she starts from the slip into the channel and to sound 3 short blasts to notify B that she is going astern as soon as B comes into view. Accordingly, answer A is correct only during the initial stage of the maneuver.

8. Question 173 involves a knowledge of requirements placed on foreign vessels entering U.S. ports and states:

   
   

   The radar installation aboard a foreign flag tank vessel of 38,000 GRT must have:

   1. At lest two marine radar systems far surface navigation which operate independently of each other.

   2. Short range and long range capability.

   3. Only one radar with true north features consisting of a display that is

   stabilized in azimuth.

   1. Only I is a correct statement.

   2. Only I and II are correct statements

   3. Only I and III are correct statements.

   4. I, II, and III are all correct statements.

   
   

9. The correct answer is B. Petitioner selected D.

   
   

10. Petitioner contends that since the question does not state the vessel was proceeding to or from a U.S. port the question is irrelevant as the federal code requirements are not applicable unless the vessel is destined for or departing from a port or place subject to the jurisdiction of the United States. However, on cross-examination Petitioner acknowledged that he was not aware of any question not relevant to a vessel coming into Florida waters, and he would assume there would be no questions testing an applicant's knowledge of statutes or not applicable to Florida ports. Nevertheless, since the question did not specify the vessel was subject to United States jurisdiction, he deemed all of the answers incorrect. He acknowledges that had the question included information the vessel was proceeding to or entering a United States port then answer B is correct.

    
    

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter, of these proceedings. In these proceedings the Petitioner must demonstrate, by a preponderance of the evidence, that the Respondent acted in an arbitrary and capricious manner. See, States ex rel. Glacer v. Pepper, 155 So.2d 383 (Fla. 1st DCA 1963) and State ex rel. Topp v. Florida Electrical Examiners, 101 So.2d 583 (Fla. 4th DCA 1958).

    
    

12. Petitioner's expert witness contended that Petitioner's answers to questions 57 and 82 were correct. To support that conclusion with respect to question 57 he cited a U.S. Senator's comment on Rule 12 to the effect that if in doubt "assume you are the give-way vessel and keep out of the way." This comment ignores the well settled rule that the stand-on vessel is required to maintain course and speed just as surely as the give-way vessel is required to keep out of the way. The reason for this rule is that in order for the give-way vessel to stand clear she must be able to expect no change in the course and speed of the stand-on vessel.

    
    

13. With respect to question 82 a careful reading of the question shows continuous movement, i.e., "Vessel A is backing from a slip into the channel." The rules are clean that a vessel must sound one prolonged blast when she starts

    backing out of a slip into the channel. The rules are also very clear that when two vessels are within one-half mile and in sight of each other a vessel in a stern propulsion is required to sound three short blasts.

    
    

14. Question 173 is a little more of a problem simply because a possibility of ambiguity exists since the question did not specifically state the foreign flag vessel was en route to a U.S. port. However, Petitioner acknowledged that he would not expect a question on this examination to test an applicant's knowledge of foreign laws, and that he would expect all questions in the Federal and State Law and Rules section of the examination to test an applicant's knowledge of U.S. and State laws. As for the Petitioner, this understanding should have removed any doubts he may have had as to whether or not the question was intended to test the applicant's knowledge of U.S. laws a foreign flag vessel must comply with while in waters subjected to United States jurisdiction.

    
    

15. From the foregoing, it is concluded that the answers deemed correct for the questions here under consideration are the correct answers and the answers to these questions given by Petitioner were incorrect. Accordingly, Petitioner has failed to show that, in selecting the answers deemed correct by Respondent to these questions, the Respondent acted in an arbitrary and capricious manner.

RECOMMENDATION

It is recommended that a final order be entered affirming the grades given to Michael D. Perez on the March 1990 examination and that this petition be dismissed.

DONE and ENTERED this 5th day of February 1991, in Tallahassee, Florida.

K.N. AYERS Hearing Officer

Division of Administrative Hearings

The DeSoto Building 1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 5th day

of February 1991.

APPENDIX

1. Respondent's proposed findings are accepted.

   
   

2. Petitioner's proposed findings are accepted except:

10. Rejected.

1. Accepted that Crawford based his opinion on his conclusion that the drawing is ambiguous; however it is no reasonable for an experienced seaman to confuse the main sail for the jib.

   
   

2. Although Crawford testified that Rule 12 states in effect "if you are in doubt, assume you are the give-way vessel and keep out of the way," this ignores the entire philosophy of the rules to require the stand-on vessel to maintain course and speed so the give-way vessel can know what maneuver to expect.

20. Rejected. While the question states the vessels are not in sight of each other initially, since vessel A is backing from a slip, not the channel, it is so obvious that as soon as vessel A clears the warehouse obstruction Vessel B will be in sight. Then the requirement to sound the short blasts arises and failure to sound those blasts violates the rule, the rule requiring a backing vessel to notify ships in sight of her course.

24. Rejected. The diagram accompanying the question shows the two vessels in a crossing situation.

32. Rejected.

COPIES FURNISHED:

Margaret Matthews, Esquire Post Office Box 959

Tampa, Florida 33601-0959

Roberta L. Fenner, Esquire Department of Professional

Regulation Northwood Centre

1940 North Monroe Street Suite 60

Tallahassee, Florida 32399-0792

Anna Polk

Acting Executive Director Board of Pilot Commissioners Department of Professional

Regulation

1940 North Monroe Street Suite 60

Tallahassee, Florida 32399-0792

Kenneth E. Easley General Counsel

Department of Professional Regulation

1940 North Monroe Street Suite 60

Tallahassee, Florida 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

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AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DEPARTMENT OF PROFESSIONAL REGULATION BOARD OF PILOT COMMISSIONERS

MICHAEL D. PEREZ,

Petitioner,

vs. CASE NO.: 90-5732

DEPARTMENT OF PROFESSIONAL REGULATION,

Respondent.

/

FINAL ORDER

This matter came before the Board of Pilot Commissioners pursuant to Section 120.57(1)(b)(9) and (10), Florida Statutes, on March 8, 1991, in Miami, Florida, for the purpose of considering the Hearing Officer's Recommended Order (attached as Exhibit A) and Petitioner's Exceptions.

Petitioner was present and represented himself. Respondent was represented by Roberta L. Fenner.

Upon review of the Recommended Order, Petitioner's Exceptions, Respondent's Response to Exceptions, and the complete record in this case, the Board makes the following findings and conclusions:

RULING ON EXCEPTIONS

1. Respondent concedes that paragraphs 6 and 8 of the Recommended Order incorrectly identify "C" cas the answer selected by the Petitioner. The record clearly establishes that Petitioner's answer was "B", and the Board grants the exception to the extent that paragraphs 6 and 8 will reflect "B" as the answer

   selected. The record does have competent, substantial evidence to establish that "D" was the correct answer. Because Petitioner did not select the correct answer, he shall not receive credit for question 57.

   
   

2. The Board denies that exceptions in Petitioner's paragraphs 2 and 3. These merely reflect Petitioner's disagreement with the Hearing Officer's resolution of disputed facts. The credibility of witnesses, the weight to be given to experts opinions, and evaluation of witness demeanor are matters solely within the discretion of the hearing officer. Heifetz v. Department of Business Regulation, 475 So.2d 1277 (Fla. 1st DCA 1985). Petitioner's Exceptions merely reflect that he disagrees with the manner in which the Hearing Officer resolved the disputed issues of material fact. There is competent, substantial evidence in the record to support the finding of fact in the Recommended Order. The Hearing Officer under such circumstances may reject in part or in whole the contrary evidence adduced in Petitioner's testimony. The Examination was not designed to test minimum competency but to discriminate in favor of the best answer in a competitive situation.

FINDINGS OF FACT

The Board adopts as its findings of fact, paragraphs 1-5, 7, 9, and 6 and 8, as altered by Exception 1, in the Recommended Order as its findings of fact.

CONCLUSIONS OF LAW

The Board has jurisdiction over this matter pursuant to Section 120.57(1) and Chapter 310, Florida Statutes. The Board adopts the conclusions of law contained in the Recommended Order as its conclusions of law.

DISPOSITION

Based upon the Findings of Fact and Conclusions of Law, the Board adopts the Recommendation of the Hearing Officer affirming Petitioner's grades and dismissing his petition.

This Order takes effect upon filing with the clerk of the agency.

The parties are notified that pursuant to Section 120.68, Florida Statutes, that they may appeal this Final Order by filing, within thirty gays of the effective date of this Order, a notice of appeal with the clerk of the agency and a copy of the notice of appeal, accompanied by filing fees prescribed by law, with the District Court of Appeal

DONE and ORDERED this 29th day of March , 1991.

BOARD OF PILOT COMMISSIONERS

ROBERT JACKSON COMMISSION CHAIRMAN

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing Final Order has been furnished by Certified Mail to MICHAEL PEREZ, 2055 Shadow Pine Drive, Brandon, Florida 33511, MARGARET MATTHEWS, Post Office Box 959, Tampa, Florida 33601-0959, and by Interoffice mail to ROBERTA L. FENNER, Department of Professional Regulation, 1940 North Monroe Street, Tallahassee, Florida 82399- 0792, and K. N. AYERS, Division of Administrative Hearings, 1280 Apalachee Parkway, Tallahassee, Florida 82399-1550, this 5th day of April , 1991.

Docket for Case No: 90-005732

Orders for Case No: 90-005732