STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WARWICK G. CAHILL, )

)

Petitioner, )

)

vs. ) CASE NO. 95-4510F

)

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

)

Respondent. )

)

FINAL ORDER

This matter comes on for review of the Petition for Attorney's Fees and Costs pursuant to the Florida Equal Access to Justice Act, Section 57.111, Florida Statutes. This Final Order is based on stipulated documents and proposed orders submitted by the parties.

APPEARANCES

For Petitioner: David Pope, Esquire

Post Office Box 838 Tampa, Florida 33601

For Respondent: James E. Manning, Esquire

Department of Business and Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399 STATEMENT OF THE ISSUE

The issue is whether the Petitioner should be awarded attorney's fees under Section 57.111, Florida Statutes.

PRELIMINARY STATEMENT

The Petitioner filed a Petition for Costs and Attorney's Fees pursuant to the Florida Equal Access to Justice Act alleging that the prosecution of a disciplinary action against the Petitioner was substantially unjustified and that as a prevailing small business party, he was entitled to an award of costs and fees.

After the hearing was scheduled, the parties agreed to submit the case for resolution without formal hearing. Both parties filed proposed orders. The proposed findings of fact are ruled upon either directly or indirectly as reflected in this Final Order, and in the Appendix which is attached and hereby made a part of this Order.

FINDINGS OF FACT

1. At all times material to this proceeding, Warwick G. Cahill (Petitioner) was licensed as a harbor pilot in the State of Florida, license number SP0000111.

   
   

2. The Respondent is the state agency responsible for prosecution of alleged violations of statutes and rules governing regulation of harbor pilots.

   
   

3. On July 28, 1993, the Petitioner was piloting the M/V Grecian Star (GS) from a dock in the Port of Tampa to the open Gulf of Mexico. The ship's travel was uneventful until it became grounded in the Egmont Channel.

   
   

4. An investigation of the incident was undertaken by the Respondent, consisting primarily of a review of documentation assembled by the United States Coast Guard. The Coast Guard had interviewed ship personnel and examined documentation including the ship's log. The agency review of the Coast Guard material eventually resulted in a recommendation for the emergency suspension of the Petitioner's license.

   
   

5. The Respondent issued an Order of Emergency Suspension on September 9, 1993, based primarily on the grounding incident.

   
   

6. On September 28, 1993, the Respondent's Probable Cause Panel reviewed the matter and directed that an Administrative Complaint be filed.

   
   

7. In October 1993, the Respondent filed an Administrative Complaint alleging that the grounding of the GS, piloted by the Petitioner, was due to improper performance of his duties. Specifically, the Respondent alleged that the Petitioner gave a hand signal which was interpreted by the ship's helmsman as a directional command, that the helmsman altered the course of the ship, that the course change went unnoticed until insufficient time remained for course correction, and that the ship ran aground.

   
   

8. The Petitioner requested a formal hearing. The case, styled Department of Business and Professional Regulation, Board of Pilot Commissioners v. Warwick

   G. Cahill, was referred to the Division of Administrative Hearings for formal proceedings and was assigned DOAH Case No. 93-6170. Formal administrative hearing in the case was held on April 7, 1994, in Tampa, Florida.

   
   

9. By Recommended Order filed May 24, 1994, the Hearing Officer recommended that the Administrative Complaint be dismissed. The Petitioner in the instant case (DOAH Case No. 95-4510F) was the Respondent in the disciplinary proceeding (DOAH Case No. 93-6170). In part, the Recommended Order set forth the following numbered Findings of Fact:

   
   

   1. At all times during the transit of the

      GS, the Respondent gave verbal orders regarding the pilotage of the ship. The Respondent expected that such orders would be repeated to him. Orders which were not repeated would be delivered again.

      
      

   2. At no time during the GS transit of Tampa Bay into Egmont Channel did the Respondent give orders to the helmsman by hand motion or by any

      other gesture. All orders were delivered verbally to the helmsman by the Respondent and were repeated by the helmsman.

      
      

   3. At the time the ship was in the area of Egmont Channel buoys 11 and 12, the Respondent stood in front of the helmsman. At some point while still in the position, the helmsman and the Respondent briefly looked at each other. At or about the same time as the two looked at each other, the Respondent moved his left hand

      or arm. The evidence is clear that the Respondent gave no verbal order to alter the ships course at that point.

      
      

   4. The helmsman interpreted the "look" and the movement of the Respondent's left arm to indicate an order to turn the ship ten degrees to port.

      
      

   5. There is no evidence as to how the helmsman determined from a "look" and a gesture that the ship's course was to be altered by ten degrees.

      
      

   6. The helmsman testified that he verbally stated "port ten" prior to altering the ship's course. There is no evidence that any person on the bridge heard the helmsman repeat the supposed command. There is no evidence that, at any other time during the Respondent's pilotage of the GS, there was any difficulty in hearing any orders given by the pilot or repeated by the helmsman. The greater weight of the evidence fails to estab- lish that the supposed command was verbalized by the helmsman.

      
      

   7. After standing in front of the helmsman, the Respondent walked to the chart table on which a chart of lower Tampa Bay was displayed and began to respond to questions of the GS Master. The chart table is located aft and on the starboard bulkhead of the wheelhouse.

      
      

   8. The conversation between the Respondent and the Master lasted between one and two minutes and consisted of a discussion related to the vessel's position, the disembarkation of the pilot, reported traffic, water obstructions, range markers and the monitoring of radio channels.

      
      

   9. At the time the Respondent walked to the chart table, the ship was on course in the center of the channel. No command was given to alter the course. No command was repeated by the helmsman. Based on the lack of command or response, and on the fact that the ship was on course and centered in the channel, it was reasonable for the Respondent and the Master to conduct their discussion.

   10. Based on the estimated speed of the ship at the time of the grounding, the ship moved no more than 1600 to 2000 feet during the conversation between the Respondent and the Master. Based on the beam of the boat and the width of the channel, the ship could move 300 feet to either side without incident.

       
       

   11. Upon completion of the discussion, the Respondent and the Master simultaneously noticed that the ship's course was incorrect and that buoys 9 and 10 were positioned off the starboard bow rather than dead ahead.

       
       

   12. The Respondent immediately stated "hard star- board rudder," directing the helmsman to take corrective action, but the ship ran aground on the south bank of Egmont Channel approximately two ship lengths past buoys 11 and 12.

       
       

   13. The accident caused no injury to person or cargo. No pollution resulted from the grounding. The next day, the GS was re-floated.

       
       

   14. Although the ship grounded while the Respondent was responsible for the navigation of the ship, the weight of the evidence fails to establish that the grounding was due to any error or omission in the Respondent's performance of his duties.

       
       

10. On May 27, 1994, three days after the filing of the Recommended Order, the Order of Emergency Suspension was lifted.

    
    

11. On July 25, 1994, the Department of Business and Professional Regulation, Board of Pilot Commissioners, rejected the Recommended Order, and entered a Final Order determining that the allegations of the Administrative Complaint had been established by the evidence and that an administrative penalty was warranted.

    
    

12. The Final Order was appealed to the First District Court of Appeal which ultimately reversed the Final Order.

    
    

13. The Petitioner is not a "prevailing small business party" as defined by statute. The Petitioner's license as a harbor pilot is held by him personally.

    
    

14. The Petitioner is the sole proprietor of Warwick Cahill Enterprises, Inc., a Florida corporation, against which the agency took no disciplinary action.

    
    

15. At the time the Respondent filed the Administrative Complaint, the agency had a reasonable basis in law and fact for the prosecution of the disciplinary case.

    CONCLUSIONS OF LAW

    
    

16. The Division of Administrative Hearings has jurisdiction over the parties to and subject matter of this proceeding. Sections 57.111(4)(b) and 120.57(1), Florida Statutes.

    
    

17. In an action to recover attorney's fees under Florida's Equal Access to Justice Act, a prevailing small business party is entitled to fees "unless the actions of the agency were substantially justified." Section 57.111(4)(a), Florida Statutes. "Substantially justified" means that the agency's actions "had a reasonable basis in law and fact at the time it was initiated by the state agency." Section 57.111(3)(e), Florida Statutes.

    
    

18. At the time the disciplinary action was initiated by the agency, the agency had a reasonable basis in law and fact for prosecution of the case. The helmsman who was actually steering the ship claimed that he had turned the ship in response to the visual command of the pilot. The helmsman claimed he had verbally confirmed the course change. Captain Cahill asserted that no order to turn the vessel had been given or repeated. Disputes of material fact are properly the subject of administrative proceedings under section 120.57(1), Florida Statutes.

    
    

19. In relevant part, Section 57.111(3)(d), Florida Statutes, provides as follows:

    
    

    The term "small business party" means:

    
    

    1.a. A sole proprietor of an unincorporated business, including a professional practice, whose principal office is in this state, who is domiciled in this state, and whose business or professional practice has, at the time the

    action is initiated by a state agency, not more than 25 full-time employees or a net worth of not more than $2 million, including both personal and business investments; or

    b. A partnership or corporation, including a professional practice, which has its principal office in this state and has at the time the action is initiated by a state agency not more than 25 full-time employees or a net worth of not more

    than $2 million....

    
    

20. The Petitioner is the sole proprietor of an incorporated business, and therefore does not come within the definition of small business party set forth in Subsection 1.a. of Section 57.111(3)(d), Florida Statutes.

    
    

21. The corporation owned by the Petitioner was not a party to the underlying proceeding. The disciplinary action prosecuted at the Petitioner was directed towards the license individually held by the Petitioner. The Petitioner's business entity is not licensed by the Department of Business and Professional Regulation. The Petitioner is not a "small business party" for purposes of Section 57.111, Florida Statutes. Florida Real Estate Commission v. Shealy, 647 So.2d 151 (Fla. 1st DCA 1994); Thompson v. Department of Health and Rehabilitative Services, 533 So.2d 840 (Fla 1st DCA 1988).

FINAL ORDER

Based on the foregoing, it is hereby ORDERED that

The Petitioner's Petition for Costs and Attorney's Fees Pursuant to the Florida Equal Access to Justice Act is DISMISSED.

DONE and ORDERED this 27th day of June, 1996, in Tallahassee, Florida.

WILLIAM F. QUATTLEBAUM

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 27th day of June, 1996.

APPENDIX TO FINAL ORDER, CASE NO. 95-4510F

The following constitute rulings on proposed findings of facts submitted by the parties.

Petitioner

The Petitioner's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows:

1, 4. Rejected, not supported by greater weight of evidence.

1. Rejected, irrelevant as to agency's failure to review final Coast Guard report prior to recommendation of suspension.

2. Rejected, unnecessary.

Respondent

The Respondent's proposed findings of fact are accepted as modified and incorporated in the Final Order.

COPIES FURNISHED:

David Pope, Esquire Post Office Box 838 Tampa, Florida 33601

James E. Manning, Esquire Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

Susan J. Foster, Executive Director Department of Business and

Professional Regulation Board of Pilot Commissioners Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

Richard T. Farrell, Secretary Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

Lynda L. Goodgame, General Counsel Department of Business

and Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is entitled to judicial review pursuant to Section 120.68, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing one copy of a Notice of Appeal with the Agency Clerk of the Division of Administrative Hearings and a second copy, accompanied by filing fees prescribed by law, with the District Court of Appeal, First District, or with the District Court of Appeal in the appellate district where the party resides. The Notice of Appeal must be filed within 30 days of rendition of the Order to be reviewed.

Docket for Case No: 95-004510F

Orders for Case No: 95-004510F