STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MASON L. FLINT, )

)

Petitioner, )

)

vs. ) CASE NO. 94-5327

) BOARD OF PILOT COMMISSIONERS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above matter was heard by video teleconferencing on December 7, 1994, before the Division of Administrative Hearings by its assigned Hearing Officer, Donald R. Alexander.

APPEARANCES

For Petitioner: Mason L. Flint, pro se

1605 Brookside Circle East Jacksonville, Florida 32207

For Respondent: Wellington H. Meffert, II, Esquire

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792 STATEMENT OF THE ISSUE

The issue in this case is whether petitioner's score on the March 1994 deputy pilot examination for the Port of Jacksonville should be raised.

PRELIMINARY STATEMENT

This matter began on August 17, 1994, when respondent, Board of Pilot Commissioners, advised petitioner, Mason L. Flint, of the final score he received on the March 1994 deputy pilot examination for the Port of Jacksonville. Thereafter, by petition filed on September 16, 1994, petitioner requested a formal hearing to contest his grade. In his petition, he alleged that he received an improper score on eleven questions and that an error had been made in computing the total points for "local knowledge." The matter was then referred by respondent to the Division of Administrative Hearings on September 26, 1994, with a request that a Hearing Officer be assigned to conduct a hearing.

By notice of hearing dated October 7, 1994, a final hearing was scheduled on December 12, 1994, in Jacksonville, Florida. Petitioner's unopposed request to change the hearing date was granted, and the matter was rescheduled for hearing by video teleconferencing on December 7, 1994.

At final hearing, petitioner testified on his own behalf and presented the testimony of Captain William R. Parker, a senior pilot for the Port of Jacksonville; and Captain Stephen F. Ford, a senior mariner and head of the Department of Marine Transportation at Texas A&M University. Also, he offered petitioner's exhibits 1-4 which were received in evidence. Respondent presented the testimony of Commander Galen Dunton, a Board consultant and accepted as an expert in navigation, piloting, and the pilot examination; and Stephen M. Allen, a psychometrician. Also, it offered respondent's exhibit 1 which was received in evidence.

A transcript of hearing was filed on December 21, 1994. Proposed findings of fact and conclusions of law were filed by the parties on January 10, 1995. A ruling on each proposed finding is found in the Appendix attached to this Recommended Order.

FINDINGS OF FACT

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

1. In this examination for licensure challenge, petitioner, Mason L. Flint, contends that he is entitled to a higher score on the March 1994 deputy pilot examination for the Port of Jacksonville. The examination is administered by the Department of Business and Professional Regulation (DBPR) on behalf of respondent, Board of Pilot Commissioners (Board). Although the original petition challenged the grade in twelve respects, petitioner now contends that only two items are in issue, item 21 relating to the local knowledge part of the examination, and item 270 relating to the aids to navigation part of the examination. Both are true-false questions.

   
   

2. Unlike the more than fifty other professional licensure examinations administered by the DBPR, the seven-part pilot examination requires a candidate to achieve a minimum passing grade on each part, but candidates doing so then compete with each other for vacant positions. In other words, if only one position at a particular port is open, the candidate achieving the highest score above the minimum passing grade is the only candidate receiving a license. In this case, three deputy pilot positions were available at the Port of Jacksonville, and thus the candidates having the three highest scores among those exceeding the minimum passing grade would be given a license. Petitioner finished sixth on the original grading, but after having his examination regraded by the Board prior to hearing, he was ranked number four. By this challenge, he seeks to have his grade changed on items 21 and 270 so as to raise his ranking to number three.

   
   

3. In order to preserve the confidentiality of Item 21 for future examinations, it is suffice to say that the item required a response of true or false concerning limitations on vessels leaving the Talleyrand Docks in Jacksonville, Florida. The examination answer key shows true as the correct response.

   
   

4. In preparing all questions pertaining to local knowledge, including item 21, the Board's consultant used the U. S. Coast Pilot, a compilation of operational guidelines governing the movement of vessels in the St. Johns River (and Port of Jacksonville). The specific source of authority for item 21 was paragraph (16) on page 153 of the 1993 edition of the U. S. Coast Pilot. That paragraph reads in pertinent part as follows:

   (16) Outbound vessels: Vessels with a draft of over 23 (sic) feet sailing between Main Street Bridge to, and including, U. S. Gypsum Co. Pier, shall get underway after 1-1/2 hours after flood current with a cut off time at the beginning of ebb current . . .

   
   

   Because Talleyrand Docks lies between the Main Street Bridge and the U. S. Gypsum Company Pier, this paragraph has application to vessels leaving those docks.

   
   

5. The 1993 version of the U. S. Coast Pilot contained a typographical error. Rather than "23" feet, the guidelines should have read "32" feet. To correct this error, paragraph (16) was revised in mid-March 1994, or the same month the examination was given, to provide that any vessel drawing more than 32 feet would be subject to the above movement restrictions. However, candidates were advised that only revisions to the U. S. Coast Pilot through January 1, 1994, would be included in the March 1994 examination.

   
   

6. Besides the limitation described in paragraph (16), two other paragraphs on the same page of the U. S. Coast Pilot made reference to the correct 32 foot limitation. In addition, the Guidelines of Vessel Movements on St. Johns River, which form the basis for the data in the U. S. Coast Pilot, used the correct 32 foot limitation. Candidates familiar with those provisions should have been on notice that a typographical error existed in paragraph (16).

   
   

7. Although the Board's suggested response is arguably correct, the more persuasive evidence shows that the statement in item 21 was confusing and unclear due to the typographical error in the U. S. Coast Pilot and the conflicting provisions on the same page of the source material. Thus, item 21 does not reliably measure the specified area of competency. Under these circumstances, a candidate should be given credit for either a true or false response, or alternatively, the question should be discarded in calculating a candidate's final score. Accordingly, petitioner's grade should be adjusted in this respect.

   
   

8. Petitioner has also contended that only a false response is correct since the question implies that a restriction exists because of its use of the words "up to the beginning of ebb current." The evidence shows, however, that a candidate could reasonably reject that suggested implication and properly make a true response.

   
   

9. Item 270 requires a true or false response to a statement regarding identifying marks or buoys marking a channel. The item identifies a set of conditions and then states that such a marking "could" properly be made. The examination answer key shows true as the correct response.

   
   

10. The primary source of authority for item 270 is 33 CFR 62.43. According to that federal regulation, buoys marking the side of a channel (lateral aids) are always a solid color, and all solid color buoys marking a channel are numbered. The regulation goes on to provide that, in addition to a number, all solid color numbered buoys may also carry a letter suffix to aid in their identification, or to indicate their purpose. They cannot, however, be identified by letter only, but only by number and letter.

    
    

11. Because the more credible and persuasive evidence shows that the question, as stated on the examination, clearly suggests that only a letter

    could be used for identification of a sidemark buoy, the correct response should be false. Therefore, petitioner should be given credit for his answer.

    
    

12. The record is not altogether clear as to how changing petitioner's overall grade will impact his ranking. According to the DBPR psychometrician who is in charge of the pilot examination development, both petitioner and the third ranked candidate gave the same response on one of the challenged questions. On the other item, the two gave different responses, but if either response is deemed to be a correct response, it would have no bearing on their overall ranking. The pychometrician added that if an item is challenged and credit given to the protesting candidate, the answer key is changed and all candidates' scores are adjusted to reflect the change in the answer key.

    
    

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties hereto pursuant to Subsection 120.57(1), Florida Statutes.

    
    

14. As the party seeking to change his grade, petitioner bears the burden of proving by a preponderance of the evidence that the Board's suggested responses were incorrect. The arbitrary and devoid of reason standard used in State ex rel. Topp v. Board of Electrical Examiners for Jacksonville Beach, 101 So.2d 583 (Fla. 1st DCA 1958), and suggested by the Board to be relevant here, is deemed to be inapplicable since the two challenged examination questions are non-practical in nature and do not involve subjective grading.

    
    

15. The more credible and persuasive evidence shows that (a) item 21 is confusing and unclear due to a typographical error in the U. S. Coast Pilot, and conflicting information in other parts of the source material, and thus either response is appropriate, and (b) the correct response to item 270 is false. Therefore, petitioner's grade should be adjusted in these two respects.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered by the Board regrading

petitioner's examination consistent with the above findings and conclusions.

DONE AND ENTERED this 18th day of January, 1995, in Tallahassee, Florida.

DONALD R. ALEXANDER

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 18th day of January, 1995.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-5327

Petitioner:

1-2. Partially accepted in finding of fact 1.

3. Partially accepted in finding of fact 2. 4-5. Rejected as being unnecessary.

6-8. Partially accepted in finding of fact 2.

1. Partially accepted in finding of fact 12.

2. Rejected as being unnecessary.

3. Partially accepted in finding of fact 2.

4. Partially accepted in finding of fact 12.

5. Partially accepted in finding of fact 3.

14-27. Partially accepted in findings of fact 3-8. 28-39. Partially accepted in findings of fact 9-11.

Respondent:

12. Rejected. See finding of fact 11.

Note: Where a proposed findings has been partially accepted, the remainder has been rejcted as being unnecessary, irrelevant, subordiante, not supported by the evidence, or cumulative.

COPIES FURNISHED:

Mason L. Flint

1605 Brookside Circle East Jacksonville, Florida 32207

Wellington H. Meffert, II, Esquire 1940 North Monroe Street, Suite 60

Tallahassee, FL 32399-0792

Jack L. McRay, Esquire

1940 North Monroe Street, Suite 60

Tallahassee, FL 32399-0792

Susan J. Foster, Executive Director Board of Pilot Commissioners

1940 North Monroe Street Tallahassee, FL 32399-0773

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit to the agency written exceptions to this Recommended Order. All agencies allow each party at least ten 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.

Docket for Case No: 94-005327

Orders for Case No: 94-005327