Findings Of Fact Tampa Tri-County Pilots Association (TRICO) was founded January 1, 1984, by Captain Rabren to provide piloting and shifting services in Tampa Bay in competition with the Tampa Bay Pilots Association. Captains Murphy, Cropper, and Farrell are members of TRICO and hold U. S. Coast Guard issued unlimited pilots' licenses for Tampa which authorize them to pilot vessels enrolled in the coastwise trade which enter or leave Tampa Bay. Captain Rabren holds a state pilot's license for Tampa Bay in addition to his federal unlimited pilot's license for Tampa Bay. In 1984 the Chairman of the Board of Pilot Commissioners received a letter from Captain Valenti, U. S. Coast Guard, the captain of the Port of Tampa, calling attention to the Board that certain pilots within Tampa Bay were asserting that neither the State of Florida nor the Coast Guard had jurisdiction over shifting activities of foreign flag vessels. Vessels engaged in the coastwise trade (which generally must be built in the United States and carry the U. S. flag) are piloted, while in waters requiring a pilot, by a U. S. Coast Guard licensed pilot for those waters; and a foreign flag vessel on similar waters is piloted by a state pilot licensed for those waters. Since state licensed pilots also provide piloting services for U. S. flag vessels, all of the state licensed pilots also hold federal pilot licenses. The only pilots that could claim neither the state nor federal government had jurisdiction over their activities were those pilots holding only federal licenses who were piloting foreign flag vessels while being shifted within Tampa Bay. Within Tampa Bay there are four separate and distinct ports as well as several anchorages to which vessels are taken from these ports and from which vessels are taken to these ports. Additionally, vessels are shifted from port to port within Tampa Bay. The distance vessels are shifted within Tampa Bay varies from a few feet alongside the dock to more than 20 miles a vessel would travel from a berth in upper Tampa Bay to the Port of St. Petersburg. Having a tug alongside a ship for a short move of less than one mile is prudent and, perhaps, necessary. However, for a longer trip a tug alongside is unnecessary, dangerous (to the tug) and an unnecessary and unwarranted expense to the ship owner. Prior to the adoption of Rule 21SS-8.10, Florida Administrative Code, members of TRICO performed piloting services on both United States and foreign flag vessels shifting moorings within Tampa Bay. Since its formation TRICO has been in competition with the Tampa Bay Pilots Association to obtain exclusive contracts with shipping companies to perform piloting services on the company vessels while the vessels are shifted to different moorings in Tampa Bay. Upon Rule 21SS-8.10 becoming effective, TRICO members, not holding a state pilot's License, are precluded from shifting foreign flag vessels between moorings in Tampa Bay except when in the docking mode.
Conclusions This cause came on to be heard before the Pilotage Rate Review Board (Board) at regularly scheduled meetings held in Fort Lauderdale, Florida on April 29, 1998 and in Boca Grande, Florida on May 19, 1998, pursuant to a Recommended Order entered by ALJ Linda M. Rigot on February 94, 1998. Exceptions to the Recommended Order were filed by the Port Everglades Pilots' Association (PEPA). Responses to the Exceptions were filed by the South Florida Cargo Carriers Association, Inc. (SFCCA). Both PEPA and SFCCA appeared at the Fort Lauderdale meeting through counsel and extensive argument was heard on the Exceptions. The Board's rulings on the Exceptions, made after a review of the complete record (including the prehearing stipulation, the transcript, exhibits and the submissions of the parties), are set forth below. Preliminary Statement-The Standards to be Applied in Reviewing the Findings of Fact Contained in a Recommended Order It is a settled rule of administrative law in this state that the findings of fact of an administrative law judge may not be rejected or modified, "unless the agency first determines from a review of the entire record, and states with particularity in the order, that the findings of fact were not based on competent substantial evidence." Section 120.57(1)(j), Florida Statutes. Accord Belleau v. Dept. of Environmental Protection, 695 So. 2d 1305 (Fla. 1st DCA 1997); Martuccio v. Dept. Of Professional Regulation, 622 So.2d 607 (Fla. 1st DCA 1993); Freeze v. Dept. Of Business Regulation, 510 So. 2d 1122 (Fla. 1st DCA 1987). Florida case law holds that an agency reviewing a recommended order is not authorized to reevaluate the quantity and quality of the evidence presented as at DOAH final hearing beyond a determination of whether the evidence is competent and substantial. Brogan v. Carter, 671 So. 2d 822, 823 (Fla. 1st DCA 19963. A reviewing agency may not reweigh the evidence, resolve conflicts therein, or judge the credibility of witnesses, as those are evidentiary matters within the province of the ALJ as the finder of the facts. Martuccio, supra, at 609; Heifetz v. Dept. Of Business Regulation, 475 So. 2d 1277, 1281 (Fla. 1st DCA 1985). Consequently, if the record of the DOAH Proceedings discloses any competent substantial evidence to support the findings of fact made by the ALJ in the Recommended Order, the Board is bound by such factual findings. Bradley. supra, at 1123. There is, however, a fundamental difference, first elucidated in McDonald v. Department of Banking and Finance, 346 So. 2d 569, 578-579 (Fla. 1st DCA 1977), between evidentiary findings of fact, which involve resolving conflicts of perception, judging credibility of witnesses and drawing permissible inferences therefrom and those ultimate factual findings which are usually couched in terms of statutory or rule language and which resolve the legal issues between the parties.2 As the court in Mcdonald, supra, stated at 346 So. 2d at 579 an ALJ's findings as to credibility, weight and other matters which are susceptible of "ordinary methods of proof "should be accorded-great deference. However, the court went on to hold that an AlJ's findings regarding matters of opinion and issues which must be resolved by reference to agency expertise, because they are "infused by policy considerations," are entitled to agency deference but with "correspondingly less weight."3 The agency must be circumspect, however, in exercising its authority to reject an ALJ's findings even if they could be labeled as "ultimate findings of fact." If factual disputes underlying an ultimate issue of fact can be resolved by "ordinary methods of proof " then an agency may not reject or modify an ALJ's ultimate factual findings without finding that they also were not supported by competent substantial evidence and complying with the requirements of Section 120.57(1); see Harac v. Dept. of Prof. Reg. Board of Architecture, 484 So. 2d 1333 (Fla. 3rd DCA 1986); Dunham v. Highlands County School Board, 652 So. 2d 895 (Fla. 2nd DCA 1995). If, in an appropriate instance, the question as to what legal standards should be applied to ultimately resolve the issues involves policy considerations (at least to the extent an agency has discretion to interpret its statutes and rules), it follows that an ALJ's findings as to such mixed questions of law and fact should be entitled to weight only to the extent they correctly apply the agency's interpretation of its statutory mandate, not simply the interpretation of that mandate by the witnesses at the hearing or even by the ALJ herself.4 The policy reason for not allowing an ALJ's ultimate findings of fact to always obtain practicable immutability and thus usurp an agency's ability to explicate its positions and interpretations of law in its own jurisprudence, is clear. Agencies, such as the Board, are appointed to oversee and implement the police power of the state and have obtained expertise in doing so. The agency is well aware of its own history and policy, as well as the legal positions set forth therein. ALJ's are likely not to have this intimate familiarity with the policy issues that comes with enforcing a regulatory scheme on a regular basis. Bearing the aforementioned principles in mind the Board hereby renders its rulings on the Exceptions. B Rulings on Exceptions Rejection of PEPA's Exceptions The Board hereby rejects PEPA's Exceptions 1, 2, 4, 5, 9 10, 12, and 13 insofar as the ALJ's findings are supported by competent substantial evidence. Exception 7 was withdrawn Exceptions 16-20 and 22-23 are addressed to the ALJ's Conclusions of Law, were treated as legal argument, and thus require no rulings by the Board. Exception 21 to the ALJ's proposed Conclusion of Law 89 was addressed by the Board as an exception to a proposed finding of fact insofar as COL 89 is actually a factual finding. After properly recasting COL 89 as a finding of fact, the Board determines that the finding is supported by competent substantial evidence and the Exception is rejected. The Board's rejection of Exception 5 is based upon its reading of the ALJ's findings to mean that the amount of time spent by pilots on clerical and administrative tasks, while "extensive" was not suffciently documented as to place a numerical amount (hourly, daily or monthly) upon the time spent. The reason for this separate discussion is that the Board finds that the ALJ's finding, while correct, could be somewhat misleading. The Board also sets forth its reasoning below on several of the legal issues raised by PEPA as part of those Exceptions which were rejected by the Board. PEPA asserted, as the basis for several of its Exceptions, that the Board had made certain legal conclusions in earlier rate cases that may have been contradicted by the analysis of the ALJ in the Recommended Order. PEPA argued that certain of the ALJ's findings are thus erroneous because they contradict other, earlier, conclusions of the Board. While it is true that stare decisis and a respect for precedent are recognized in administrative law (albeit to a lesser degree than in traditional judicial fore), there must be an order of the Board that has precedential value before these principles may be invoked. Here PEPA points to various "orders" of the Board which were entered in previous rate application review proceedings in support of its position. Where PEPA's argument misses the point is that none of these previous "orders" ripened to Board precedent due to the fact that no Section 120.569 and 120.57 proceedings-ever occurred in those previous rate proceedings. Thus the findings of the Board in those previous proceedings were based only upon the untested-in an evidentiary sense-material submitted to the Board by the applicants and their opposition at a Board meeting- see Section 310.151(3), Florida Statutes. Until the Board has the benefit of a record which has gone through the crucible of a evidentiary proceeding under Chapter 190 and a judicially reviewable final order is entered, the holdings of the Board in unchallenged rate orders are only persuasive and not precedential in nature. The Board further agrees with PEPA (Exception I ) that the determination as to what constitutes a "reasonable operating expense" as that term is used in Section 310.15 l (5)(b)3, Florida Statutes, is a legal conclusion which requires the Board to interpret the statute and apply it to the pilot lobbying and political expenses found by the ALJ; Schnmsher v. School Board of Palm Beach County, 694 So. 2d 856, 860-862 (Fla. 3rd DCA 1997), Macpherson v. School Board of Monroe County, 505 So. 2d 682, 683-684 (Fla. 3rd DCA 1987). To the extent that the ALJ placed the determination of what is a "reasonable operating expense" in her findings of fact her Recommended Order is erroneous. Here, however, although the ALJ erroneously found that lobbying expenses and political contributions by pilots are not "reasonable operating expenses" as a finding of fact, the Board finds that they should be so treated as a matter of law. Thus the ALJ's findings, while erroneously labeled, reached the correct result. Therefore the Exception was properly rejected. As has been long held by the Public Service Commission, lobbying expenses as well as political and charitable contributions are not to be considered as reasonable operating expenses for purposes of determining the rate base for rate setting purposes, PSC Docket # 950495-WS, Order # PSC-96-1320- FOF-WS at 150-153; PSC Docket # 960234-WS, Order # 97-0847-FOF- WS at 66-71. The rationale for such a decision is based upon the fact that, while for tax and accounting purposes such expenses are appropriately classified as ordinary business expenses and/or may be deductible from taxable income, to place the burden of paying for such discretionary expenditures upon the user of the regulated service is inappropriate. The Board accepts this reasoning. The Board's ruling when rejecting PEPA's Exception 2 is based upon an identical analysis. Once again, the Board determines for rate setting purposes, as a matter of law, that the present value of the unfunded portion of PEPA's pilot retirement program must be considered as a "book" component of pilot income if, as was found by the ALJ, its value can be reasonably quantified-see Sections 3] 0.151 (5)(b) 2 and 9, Florida Statutes. A similar position has been taken by the PSC- see Rule 25-14.012, F. A. C. Acceptance of PEPA's Exceptions The Board accepts in part PEPA's Exception 3. The Exception addresses Proposed Findings of Fact 25 and 49-52. The Board finds that the ALJ's finding in the first sentence of Finding of Fact 25 is not supported by competent substantial evidence and, to the extent that the final sentence of Finding of Fact 25 and Findings of Fact 49-52 are based upon that specific finding, they are not accepted by the Board.5 Nevertheless PEPA does not dispute that the ALJ's a projected range of increase in annual revenue growth from 5.9% and 7.3% at the port is reasonable and is supported by the facts. As a result, the Board, based upon the remaining testimony and data, accepts the ALJ's projected range for the growth of revenue at the port. The Board accepts PEPA's Exception 6 to Finding of Fact 33 to the extent that it objects to the ALJ's findings that the examination and licensing process of a deep-sea deck officer is comparable to that of a Florida licensed pilot. While the findings of the ALJ in the other areas of "comparability" are accepted by the Board, there was no evidence from any source as to the examination and licensing procedures of pilots and deep- sea officers from which the ALJ could have drawn her conclusion. The Board accepts PEPA's Exception 8 to Finding of Fact 39 to the extent that it objects to the "explicit" recognition of the similarity of "deep-sea masters and harbor pilots'' (E.S.) in 33 CFR Part 407. While the Board would agree that the provision of the CFR compares "deep-sea masters and Great Lakes pilots"(E. S.) it does not, on its face, generally address "harbor pilots." The remainder of the Finding of Fact appears to be simply a discussion of the CFR provision which7 as a provision of law, speaks for itself. The Board accepts in part PEPA's Exception 11 to Findings of Fact 56-58. The ALJ's conclusory statement in the first sentence of FOF 56 that "the job of piloting does not present any serious physical risks" is simply not supported by the record. While the Board accepts the ALJ's other findings, it is clear (and not disputed by any of the experts in navigation and seamanship) that there are serious risks in piloting in periods of heavy weather and/or at night. The remainder of the Finding is accepted by the Board. Similarly, the second sentence in FOF 57 regarding embarkation and disembarkation is flawed because of its categorical finding that such actions are not particularly dangerous. Once again, had the ALJ qualified her finding with a reference to "under normal circumstances" or "in fair weather" the statement would be unexceptional and would be supported by the record. The rest of the Finding is accepted by the Board. The Board also finds that the ALJ's conclusion in the last sentence of FOF 58 that the Board members were not engaged in a strenuous act when they boarded a vessel at Port Everglades during the initial rate hearing is not supported by any evidence adduced at the hearing. The remainder of FOF 58 is accepted by the Board. The Board accepts PEPA's Exception 14 to Findings of Fact 72-74. There was competent substantial evidence in the record to sustain the ALJ's findings. The findings are, however, struck because the ALJ has failed to give effect to a stipulation (Pre- Hearing Stipulation at p. 9 ¶20) contained in the Pre-Hearing Stipulation entered into between the parties.6 In the Pre-Hearing Stipulation the parties agreed that to certain facts contained in various tables in the Investigative Report did not require proof at the hearing. Notwithstanding this fact, the ALJ found a revised "handle" time in her Recommended Order which was different (1 hour per vessel as opposed to 1.5 hours) than that contained in the stipulation. The Board finds that, as asserted by PEPA, this was error, Schrimsher, supra at 694 So. 2d 856, 863; Coq v. Fuchs Baking Company, 507 So. 2d 138, 140 (Fla. 1st DCA 1987).7 The Board accepts in part PEPA's Exception 15. The evidentiary findings in FOF 75-76 are supported by the evidence in this proceedings and are unexceptional. Nevertheless, the provisions of Section 310.151(5)(c), Florida Statutes, specifically grant to the Board the discretion to apply the CPI or other economic indicators to a rate change request. Thus the ALJ's statement that "the CPI and employment cost index (sic) are not suitable bases of comparison for measuring pilotage rates" does appear to "read out" this discretionary statutory factor from consideration in all rate cases. The Board can not agree with this position as a matter of law The Board does find, however, that while not the sole factor in determining the rates in these proceedings that the CPI is of material value in the consideration of the rates to be established at Port Everglades. C Conclusion With the foregoing amendments, the Board accepts the Findings of Fact of the ALJ and the same hereby become the Findings of Fact of the Board. II
The Issue Is it in the public interest to place Petitioners, Paradies Shops, Inc. and Paradies Midfield Corporation (Paradies Shops and Paradies Midfield) on the State of Florida Convicted Vendor List maintained by Respondent State of Florida Department of Management Services (the Department)? Section 287.133, Florida Statutes (1996 Supp.).
Findings Of Fact The corporate headquarters of Paradies Shops is located at 5950 Fulton Industrial Boulevard, Atlanta, GA 30336. Paradies Shops is conducting business with several Florida public entities in the form of airport retail concession contracts. Paradies Shops owns 65 percent of Paradies Midfield. Paradies Shops owns 75 percent of Paradies-Ft. Lauderdale. Paradies-Jacksonville, Paradies-Sarasota and Paradies-Daytona Beach are all Sub-Chapter S corporations, for tax purposes; therefore, Paradies Shops does not own any stock in these three corporations. The Paradies family and Richard Dickson own, on an individual basis, 75% to 85% of the Sub- Chapter S affiliates. The remaining stock is owned by the Disadvantaged Business Enterprise (DBE) partners of Paradies Shops in these ventures. Paradies Shops and Paradies Midfield do not operate through divisions. Paradies Midfield has one subsidiary, Paradies Country Stores, Inc. All of the corporate addresses for other Paradies Companies, in addition to Paradies Shops, are at 5950 Fulton Industrial Boulevard, Atlanta, GA 30336. The subsidiaries, affiliates, limited liability companies and Florida leases of Paradies are as follows: Subsidiaries Paradies-Chicago, Inc. Paradies-Fort Lauderdale, Inc. Paradies-Hartford, Inc. Paradies-Louisville, Inc. Paradies Midfield Corporation Paradies Pugh, Inc. PAS Group, Inc. Affiliates Mercaro Gifts-TPS, Inc. Paradies-Concessions II-Arch, Inc. Paradies-Dayton, Inc. Paradies-Huntsville, Inc. Paradies-Jacksonville, Inc. Paradies-Knoxville, Inc. Paradies-LaGuardia, Inc. Paradies-Metro Ventures, Inc. Paradies-Orange Co., Inc. Paradies-Sarasota, Inc. Paradies-South, Inc. Paradies-Toronto, Inc. Paradies-Daytona Beach, Inc. Paradies-Vancouver, Inc. PGA Tour Licensing Limited Liability Companies Paradies & Associates, L.L.C. Paradies-Colorado Springs, L.L.C. Paradies-Madison, L.L.C. Paradies-Desert House, L.L.C. Paradies-Phoenix, L.L.C. Current Florida Leases Company Name Paradies Southwest Florida Intl. Lee County Port Ft. Myers, Florida Authority Paradies Palm Beach Intl. Airport Palm Beach West Palm Beach, FL County Paradies Tallahassee Regional Airport City of Tallahassee, Florida Tallahassee Paradies Orlando Intl. Airport Greater Orlando Orlando, Florida Aviation Authority Paradies Ft. Lauderdale Intl. Airport Broward County Ft. Lauderdale, Florida Paradies Jacksonville Intl. Airport Jacksonville Port Authority Paradies Sarasota/Bradenton Intl. Sarasota-Manatee Sarasota, Florida Airport Authority Paradies Daytona Beach Intl. Airport County of Volusia Daytona Beach, Florida The following constitutes the Florida business registrations for Paradies, to include the company name and the Florida registration number: Company Florida Registration # Parent Paradies, Inc. 826058 Subsidiaries Paradies-Ft. Lauderdale, Inc. M11773 Sub-S Affiliates Paradies-Jacksonville, Inc. P30174 Paradies-Sarasota, Inc. P27093 Paradies-Daytona Beach, Inc. F92000000397 Pursuant to Section 287.133, Florida Statutes (1996 Supp.), the Department is responsible for investigating and prosecuting cases involved with persons or affiliates that it has reason to believe have been convicted of a public entity crime. This responsibility is as a means to maintain a list of the names and addresses of those persons or affiliates who have been disqualified from the public contracting and purchasing process engaged in with Florida public entities subject to that statute. Daniel M. Paradies, Paradies Shops and Paradies Midfield, were charged with public entity crimes as defined within subsection 287.133(1)(g), Florida Statutes (1996 Supp). That case was tried before a jury in January, 1994 (U.S. v. Ira Jackson, et al., Case No. 1:93:CR-310, U.S. District Court for the Northern District of Georgia, Atlanta Division.) On January 22, 1994 the jury returned a verdict of guilty. On April 15, 1994, the U.S. District Court for the Northern District of Georgia, Atlanta Division, entered judgments of conviction for 83 counts of mail fraud against Daniel M. Paradies, Paradies Shops and Paradies Midfield, for violations of Sections 1341 and 1346 of Title 18, United States Code. Daniel M. Paradies was also convicted of one count of conspiracy to commit bribery in violation of Section 371 of Title 18, United States Code. These judgments and convictions of Daniel M. Paradies, Paradies Shops and Paradies Midfield constituted convictions for public entity crimes as defined within Subsections 287.133(1)(g) and 287.133(3)(e), Florida Statutes (1996 Supp.). Further information concerning the judgments of conviction may be found in Exhibits M, N, O and P to the joint stipulation of facts by the parties. The nature and details of the public entity crimes for which judgments of conviction were entered against Daniel M. Paradies, Paradies Shops and Paradies Midfield may be found in Exhibit P to the stipulation by the parties. As well, that exhibit speaks to the culpability of the persons or affiliates proposed to be placed on the Convicted Vendor List. Section 287.133(3)(e)3b. and c., Florida Statutes (1996 Supp.). On September 23, 1996, the United States Court of Appeals for the Eleventh Circuit affirmed all convictions of Daniel M. Paradies, Paradies Shops and Paradies Midfield. The Eleventh Circuit denied rehearing on December 26, 1996, but stayed its mandate pending a Petition for Writ of Certiorari in an Order entered January 22, 1997. By seeking a stay of the Eleventh Circuit's mandate, the Paradies companies announced their intention to file a Petition for Writ of Certiorari in the United States Supreme Court within thirty (30) days after the mandate had been stayed. A copy of the Eleventh Circuit order granting the motion to stay pending a Petition for Writ of Certiorari is found as Exhibit A to the fact stipulation by the parties. The Petition for Writ of Certiorari has been filed. In consideration of the requirements of Section 287.133(e)3.d, Florida Statutes (1996 Supp.), requiring consideration of "prompt or voluntary payment of any damages or penalty as a result of the conviction" for a public entity crime, no restitution was required by the final judgment in that case. A fine and special assessment against Paradies Shops were payable over a five year period, once the judgment becomes final. Because the Eleventh Circuit order stayed issuance of the mandate pending United States Supreme Court's ruling for the Petition for Writ of Certiorari to be filed by Mr. Paradies, Paradies Shops and Paradies Midfield, the fine and special assessment are not due at this time. The Paradies Shops has established a reserve for payment of the fine and that reserve is reflected in its audited balance sheet. In the event the Supreme Court denies the Petition, Paradies Shops and Paradies Midfield intend to pay the full amount of the fine and the special assessment within thirty (30) days of a final judgment. A copy of "the Paradies Shops, Inc., its Subsidiaries and its Affiliates Consolidated and Combined Financial Statements June 30, 1996 and 1995," demonstrating the availability of the funds is attached to the fact stipulation by the parties as Exhibit D. In accordance with Section 287.133(3)(e)3.e, Florida Statutes (1996 Supp), Paradies Shops and Paradies Midfield cooperated with the state and federal investigations and federal prosecution of the public entity crime consistent with their good faith exercise of constitutional, statutory or other rights during the investigation or prosecution of the public entity crime, to the extent that: Paradies Shops and Paradies Midfield at all times cooperated with the federal government with its investigation. Paradies produced tens of thousands of pages of documents and made all of its employees available for appearance before the Federal Grand Jury. In addition, several Paradies Shops' employees were called by the government to testify at trial. Paradies Shops and Paradies Midfield, fully cooperated with the Department in connection with this investigation initiated pursuant to Section 287.133, Florida Statutes, and supplied the Department with all requested documents concerning the Atlanta proceeding. In association with Section 287.133(3)(e)3.f, Florida Statutes (1996 Supp.), the following acts of "disassociation from any person or affiliates convicted of the public entity crime" have transpired: Paradies Midfield and Paradies Country Store ceased all operations on March 31, 1995. In May, 1994, Dan Paradies resigned as President and Director for Paradies Shops and is no longer employed in any capacity with any company. Mr. Paradies has placed in a blind irrevocable trust all of the stocks he owns in Paradies Shops and its affiliates (including the companies operating in Florida). Mr. Paradies does not have any control over the stock in the blind irrevocable trust and cannot vote any of that stock. In regards to his capacity within the company, Mr. Paradies has no involvement nor any control over any of the Paradies companies. He is not employed in any capacity with any of the companies nor is he an officer or director of any of the companies. Paradies Shops and Paradies Midfield were held responsible based on the ownership and control of Mr. Dan Paradies. Charges were not brought against any other officer, director or employee of Paradies. The government did charge Mack Wilbourn, a director of Paradies Midfield, but he was acquitted. In association with Section 287.133(3)(e)3.g, Florida Statutes (1996 Supp.), "prior or future self-policing by the person or affiliate to prevent public entity crimes" has been shown to the extent that: Following the convictions Paradies Shops engaged the international accounting firm of Coopers & Lybrand to review and evaluate all DBE business relationships of Paradies Shops. These reviews were completed in May of 1994, and found no evidence of any improper activities. These reviews are found as Exhibit E to the fact stipulation by the parties. Paradies Shops has adopted a Code of Business Practices that is designed to provide officers and all management of the Company a guide to the basic principles to be applied in conducting the company's business. The failure on the part of a covered employee to abide by the provision of the Code is grounds for immediate dismissal. This code also directs employees to report any suspected violations of the law or other misconduct. The Code has been read and executed by all employees in the home office in Atlanta and all managers in all locations around the country. All future new employees at the home office and new management level employees are required to read and agree to follow the Code. The Company requires all covered employees to certify, on at least an annual basis, that they have reviewed the Code and that they will continue to abide by its terms. A copy of Paradies Code of business practices, which includes a blank certification form, is Exhibit F to the fact stipulation by the parties. In accordance with Section 287.133(3)(e)3.h, Florida Statutes (1996 Supp.), consideration is given any "reinstatement or clemency in any jurisdiction in relation to the public entity crime at issue in the proceeding." To that extent: No debarment proceedings have been initiated against Paradies by any state as a result of the Atlanta conviction. Paradies has not been debarred by any state as a result of the Atlanta conviction. The fact stipulation relates that: Since the convictions, Paradies has won thirteen (13) new contracts through competitive proposals and received the extensions of fourteen (14) existing contracts. Additionally, Paradies has been awarded five (5) off-airport contracts since the conviction to include a long-term contract with the World Golf Village, currently under development south of Jacksonville, Florida, and scheduled to open March of 1998. In addition, in 1996, the PGA TOUR has extended the Paradies exclusive license to operate the PGA TOUR Shops for an additional five (5) years. These representations in the fact stipulation are not found to relate to the factor to be considered by the undersigned which is Section 287.133(3)(e)3.h, Florida Statutes (1996 Supp.). Section 287.133(3)(e)3.i, Florida Statutes (1996 Supp.) makes it incumbent upon the person or affiliate who is convicted of a public entity crime applicable to that person or affiliate of that person to notify the Department within 30 days of the conviction of the public entity crime. Without necessity the parties stipulated that: On July 9, 1993, the same day the indictment was returned, Paradies Shops notified all airports at which Paradies Shops (or its subsidiaries or affiliates) operates, including all airports in Florida of the indictment that was returned by the Federal Grand Jury in Atlanta. Copies of the indictment were sent to all airports in Florida along with the notification. Copies of the notice of indictment sent to all Florida Airports at which Paradies Shops operated are attached and incorporated in the fact stipulation as Exhibit G. As contemplated by the statute and stipulated to by these parties: On January 24, 1994, the first business day after the conviction, Paradies Shops notified all such airports in Florida (and elsewhere) of the guilty verdicts returned by the jury in Atlanta. Copies of the Notices of Convictions sent to all Florida airports at which Paradies operated are attached and incorporated into this stipulation as Exhibit H. On April 15, 1994, the same day as the sentencing, Paradies Shops notified all such airports in Florida (and elsewhere) that the District Court had denied the Motion for Judgment of Acquittal or New Trial. Copies of the notices reporting Denial of the Motionfor Judgment of Acquittal or new trial sent to all Florida airports at which Paradies Shops operated are attached and incorporated into this stipulation as Exhibit I. Additionally, the parties stipulated that "the Department of Management Services has been informed of all subsequent developments and decisions." This refers to circumstances following the notification to the Florida airports that the District Court had denied the Motion for Judgment of Acquittal or New Trial. It is not clear from the fact stipulation upon what basis the Department was informed of the judgments of convictions within 30 days after the conviction of the public entity crime applicable to the subject persons or affiliates nor has it been shown that any public entity (Florida airports) which received the information that a person had been convicted of a public entity crime had transmitted that information to the Department in writing within 10 days after receipt of that information as contemplated by Section 287.133(3)(b), Florida Statutes (1996 Supp.). Nonetheless, the parties have stipulated that pursuant to Section 287.133(3)(b), Florida Statutes (1996 Supp.), Paradies Shops made timely notification to the Department of the conviction of public entity crimes applicable to persons or affiliates of that person and provided details of the convictions and that communication was direct. Section 287.133(3)(e)1., Florida Statutes (1996 Supp.), was complied with by the Department through its Notice of Intent to Paradies Shops and Paradies Midfield in writing indicating the intent to place those persons on the Convicted Vendor List. This notification occurred on April 29, 1997. A copy of the Notification is included with the parties fact stipulation as Exhibit B. On April 29, 1997, in accordance with Section 287.133(3)(e)2, Florida Statutes (1996 Supp.), Paradies Shops and Paradies Midfield timely filed a Petition for Administrative Hearing pursuant to Section 120.57(1), Florida Statutes (1996 Supp.) to determine whether it is in the public interest for Paradies Shops and Paradies Midfield to be placed on the State of Florida Convicted Vendor List. A copy of the petition for Formal Administrative Hearing is attached and incorporated in the parties fact stipulation as Exhibit C. Section 287.133(3)(e)3.j, Florida Statutes (1996 Supp.), calls for consideration of "the needs of public entities for additional competition in the procurement of goods and services in their respective markets." The parties have not stipulated concerning that criterion. Therefore, no factual basis exists for determining the needs of public entities for additional competition in the procurement of goods and services in the respective markets. Section 287.133(3)(e)3.k, Florida Statutes (1996 Supp.), addresses "mitigation based upon any demonstration of good citizenship by the person or affiliate." In responding to that factor the parties have stipulated to the following: Paradies Shops was rated the 'Best Airport Retail Concessionaire for 1995' by an expert group of Concessionaires, and Consultants and Airport Managers. Paradies Shops was also chosen as the 'concessionaire with highest regard for customer services'. These awards were reported in the December 20, 1995 edition of 'World Airport Retail News', a publication based in West Palm Beach, Florida. A copy of this report is attached and incorporated into the stipulation as Exhibit J. In addition, Paradies Shops has supplied letters from 26 airport authorities attesting to the good citizenship of Paradies Shops. Copies of such Supplied Letters are attached and incorporated into the stipulation as Exhibit K. Paradies Shops was rated the 'Best Airport retail concessionaire for 1996' by an expert group of concessionaires, and Consultants and Airport Managers. Paradies Shops has now won this award for the past two (2) consecutive years. In each year, Paradies Shops was honored with this Award by a separate panel of experts. Additionally, Paradies Shops was granted the following awards in 1996: 'Best Airport Retailer', 'Concessionaire with Highest Regard for Public Service', 'Best New Specialty Retail Concept', and 'Most Visually Attractive, Engaging Retail Store Front in an Airport'. Notice of these awards appeared in the February 20, 1997 edition of 'World Airport News', a copy of which is attached and incorporated into the stipulation as Exhibit L'. Having considered the fact stipulations and Exhibits J, K, and L, it is concluded that these facts and exhibits do not relate to demonstration of good citizenship as described in Section 287.133(3)(e)3.k, Florida Statutes (1996 Supp.).
Findings Of Fact The tug TUSKER is a 120-foot LOA, 396 DWT riveted and steel hull motor vessel, single screw, single deck design with two Polar Atlas diesel engines each rated at 800 BP at 375 RPM. The TUSKER was built in Scotland in 1956, is registered in Canada and was designed and equipped for ocean towing. On February 6, 1981, her draft was 14'6". The propeller is 11'4" in diameter with an 11'3" pitch righthand and turns in a fixed Kort nozzle. The Kort nozzle can be described as an open-end cylinder or ring around the propeller one of whose functions is to keep towlines from becoming fouled in the propeller. The nozzle increases the propeller's thrust but reduces somewhat the effectiveness of the rudder. The TUSKER is equipped with a single rudder, conventional type, mounted on centerline, aft of propeller and Kort nozzle. She is also equipped with a Donkin steering engine on which is superimposed a Sperry automatic pilot and remote controlled steering mechanism. The steering system is hydraulic and can be actuated electrically or mechanically. Normal mechanical operation is effected using the steering wheel on the bridge. Electric power is used to actuate the hydraulic system (which moves the rams which in turn move the rudder right or left) in the three other systems by which the vessel may be steered. One is automatic pilot. Another works off the automatic pilot system with the automatic pilot disengaged and the hydraulic system actuated by a remote control dial attached to a flexible cable. With this system the helmsman can move around the bridge carrying his steering mechanism in one hand. This mode operates on a self-synchronous follow-up system where the operator moves the dial on the remote control and a self-synchronous motor causes the hydraulic system to actuate the rudder to follow the dial. This is the system that was in operation at all times here relevant. The third system of steering, which is also electrically actuated, is a toggle switch, or joy stick, near the wheel which the helmsman moves left or right as he wants the rudder to go. When the lever is held to the right, that hydraulic system is actuated to move the rudder to the right until the lever is returned to neutral or a stop is reached. To move the rudder back to midships the lever is held left (if the rudder is right) until the rudder angle indicator shows the rudder to be back where desired. The barge LIQUILASSIE is a converted tanker 307 feet long with a 60- foot beam and a cargo capacity of 5000 tons. This tank barge can be towed or pushed and is equipped with a notch in her stern to facilitate pushing. Upon entering Tampa Bay on the evening of 5 February 1981 the LIQUILASSIE was in ballast and was drawing six feet forward and nine feet aft. Saltwater was used for ballast. The tug TUSKER and the tank barge LIQUILASSIE had departed Halifax, Nova Scotia, for Tampa and the trip was uneventful until arrival off Tampa on the evening of 5 February 1981. Shortly before reaching the sea buoy the tug changed position from towing the LIQUILASSIE on a 1200-foot line to the pushing mode with the tug's bow secured in the notch in the stern of the LIQUILASSIE. Warwick G. Cahill, Respondent, a licensed Tampa Bay deputy pilot, boarded the TUSKER in Egmont Channel around 10:00 p.m. the evening of 5 February 1981 to pilot the tug and barge to Misener's Marine, a shipyard immediately south of Gandy Bridge on the east side of Tampa Bay. At this time the weather was clear, the tide was rising, winds were southerly at ten knots or less and the seas were light. No significant change occurred in the weather from the time the pilot boarded the TUSKER until the LIQUILASSIE made contact with Gandy Bridge. Pilot Cahill assumed the conn of the TUSKER with Captain Sanderson, the master of the tug, steering using the remote control hand-held dial. The engines were controlled directly from the bridge telegraphs. General discussion with Captain Sanderson revealed that the tug was single screw and that the flotilla combination TUSKER-LIQUILASSIE was slow to turn. At this time the rudder angle indicator was inoperative due to a burned out coil and no spare coil was on board. As a result the pilot could not look at the rudder angle indicator to ascertain the position of the rudder at any given moment. The pilot requested a steering light be installed on the bow of the barge so its rate of movement in a turn could be seen against the background lighting ashore. This was done. Respondent was born in Australia and sailed on foreign flag ships from 1966 until 1970 when he came ashore in the United States and subsequently acquired American citizenship. He resumed maritime employment in 1976 sailing as an ordinary seaman on tugs operated by Gulf Coast Transit Company. He worked his way up from ordinary seaman to master, acquiring his master's license 25 June 1979. From this time until he was appointed a deputy pilot in Tampa Bay in November 1980, he served as master on five tugs operated by Gulf Coast Transit Company. All of these tugs are twin screw vessels varying from 175 gross tons to 435 gross tons. Respondent's master's license authorizes him to sail as master on U.S. vessels up to 1000 gross tons. When he was appointed deputy pilot Respondent was required, as were all other such appointees, to sail as an apprentice with a certified pilot for at least thirty days and thereafter be approved by the Tampa Bay Pilots Association to pilot vessels of not more than 23 feet draft and 500 feet length. After sixty days of piloting this class vessel, a deputy pilot, after approval by the Tampa Bay Pilots Association, is authorized to pilot vessels of not more than 23 feet draft and of unlimited length. Respondent was at this stage as a deputy pilot on 6 February 1981. During the transit of the lower half of Tampa Bay the tug with 14 feet 6 inch draft and barge with the maximum draft of nine feet were navigated outside the channel and did not enter a cut channel until they reached Cut E channel. From the time the pilot came aboard, the tug was running at full speed with shaft RPM at about 110. At this propeller speed and draft of LIQUILASSIE, Captain Sanderson estimated the speed through the water at eight knots. Because of the stiff and slow handling of the tug and barge combination Captain Sanderson suggested to Pilot Cahill before reaching Cut F that at the sharp turns in the channels ahead it might be necessary to slow the tug in order to negotiate these turns. Respondent replied that there was plenty of water outside the channel going into Cut G from Cut F and that they would try that turn without slowing. The turn from Cut F to Cut G is a left turn slightly less than 90 degrees. As he passed between buoys 5F and 6F the pilot directed the helmsman into a left turn which was negotiated without difficulty. The tug and barge settled on Cut G range. The turn into Cut J from Cut G is a turn to the right of about 90 degrees. Here, the depth of the water outside the channel is sufficiently shallow that the TUSKER could ground if she got too far out of the channel. Upon approaching this turn Respondent had someone proceed to the bow of the LIQUILASSIE to stand by the anchors. He reduced speed to slow ahead approximately 1400 yards before reaching turn buoys 5G and 6G (Tr. p. 449) and ordered the helmsman to bring the flotilla to the right. The turn started a little too soon or the flotilla turned too fast, and the helmsman was ordered to slow the rate of turn. As the flotilla straightened the pilot directed more right rudder as the barge and tug were moving into buoy 9J. The flotilla did not respond to the right rudder and the engines were kicked ahead to increase the turning moment. Buoy 9J passed down the side of the flotilla (or was run over by the tug) before the flotilla finally was straightened out in Cut J channel (Tr. p. 451). While proceeding up Cut J channel at slow speed immediately following this incident, the captain directed the steering gear be checked to see if the rudder was answering the commands given through the remote control steering dial. This was the second time since the tug had assumed the pushing position off Tampa Bay that the steering was checked. The first time was shortly after the tug entered the notch when the captain directed the chief engineer to observe the rams on the rudder stock to see if the rudder was moving right and left as directed. On both occasions the rudder was observed by the chief engineer to move from full left to full right to amidships without apparent difficulty. On both occasions the chief engineer so reported to the captain. After straightening out in Cut J the flotilla resumed full speed. At this time, and during most of the transit of Tampa Bay, the current was flooding, i.e., was pushing the vessel northward in the general direction of travel. Misener's Marine is located north of Port Tampa on the east side of Tampa Bay and immediately south of the Causeway approach to Gandy Bridge. To enter Misener's Marine from the south, the preferred course, according to the unrebutted testimony of Respondent, is to continue past Cut K on the same course until the vessel is aligned with the draw span of Gandy Bridge, at which point course is changed to head for the draw span. Before reaching the draw span, course is changed to the right approximately 70 degrees to parallel the bridge as the channel into Misener's Marine is entered. The intended course, after making this turn, as indicated by Respondent on Exhibit 7, is parallel to and 200 yards south of Gandy Bridge. As the flotilla passed Port Tampa the captain remarked that they were moving at a lively clip. Respondent responded that he would slow down before starting the turn. No effort was made to ensure a crew member was standing by to let go the anchors as had been done when approaching Cut J. When one-half mile from the bridge, as observed on the radar screen, the pilot ordered speed reduced to slow and the captain moved the telegraphs to dead slow. At this time the flotilla was moving through the water at eight knots and over the ground at approximately 8.5 knots. The current in this part of the bay was setting northerly towards the bridge about 0.5 knots and it was approximately 40 minutes before high tide and slack water. High tide at Gandy Bridge on 6 February 1981 occurred at 3:07 a.m. (Exhibit 13). When the radar range to the bridge was just over one-quarter mile Respondent directed the helmsman to bring the flotilla to the right. When the response to this command appeared slow and the flotilla was one-quarter mile from the bridge Respondent ordered hard right rudder. Although Respondent testified that at one-quarter mile distance from the' bridge he didn't believe the flotilla would make the turn without hitting the bridge, he ordered the engines ahead full to increase the turning force (Tr. p. 459). When the captain exclaimed they were going to hit the bridge the pilot ordered engines stopped, then full astern. The captain moved the engine controls as directed. As the engines were ordered reversed the pilot left the rudder right full until most of the way had been taken off the flotilla. During this time the bow of the barge continued to move right slowly. As the barge closed on the bridge the pilot shifted the rudder to left full shortly before the bow of the LIQUILASSIE made contact with the third and fourth bridge supports to the east of the center span. At the time of contact at approximately 2:25 a.m., February 6, 1981, the flotilla was making an estimated speed over the ground of approximately one knot. The bow of the barge went under the road span and fetched up on the third and fourth bridge supports to the east of the center span. Continued backing for a few minutes failed to free the barge from the bridge supports. Respondent's witness, Captain John Graham, predicated his opinion that Respondent committed no error on the assumption that he commenced the turn into Misener's Marine at a distance of one-half mile from Gandy Bridge. His testimony (Tr. p. 337) was that "He [Respondent] ran out of options at a quarter-mile except for what he did: full astern. He was already hard starboard. There was no time--his other option was drop the anchor. That's too late." This assumption of distances from the bridge at which certain events occurred is not supported by the evidence and is in conflict with the findings made above, that the tug reduced speed when one-half mile from Gandy Bridge and the command to change course to the right was given to him just over one-quarter mile from the bridge. This finding is consistent with Respondent's testimony that he started the commencement of the turn approaching Gandy Bridge just before he reached the one-quarter mile point and increased to right full rudder at one-quarter mile. In his report of the accident, CG-2692 (Exhibit 15), Respondent also says that rudder was ordered hard right at a distance of one- quarter mile from the bridge. Had Respondent ordered the engine full astern one-quarter mile from the bridge when he realized collision with the bridge was likely, the flotilla would have been stopped before hitting the bridge. Instead of ordering the engines full astern Respondent first ordered full ahead to increase the turning force. Only after he realized this added force would not turn the barge fast enough did he order the engines stopped, then full astern. Local authorities were notified of the collision and ultimately the Highway Patrol regulated vehicular traffic over the damaged bridge. The damage to the bridge supports and barge was stipulated to be approximately $250,000. Shortly after the collision, high tide at Gandy Bridge occurred and thereafter the tide began falling. The bow of the LIQUILASSIE was caught on the piling and it was feared that additional damage to the piling would result as the tide receded and more of the weight of the barge was placed on the piling. The LIQUILASSIE collided with the bridge on a course approximately 30 degrees to the right of normal to the bridge and remained in that position until freed with the assistance of a passing tug at 5:15 a.m. After being freed from the bridge the tug was put on the port bow of the barge to help turn the LIQUILASSIE to the right some 90 degrees to enter Misener's Marine where the flotilla was moored. Immediately after mooring, Coast Guard investigators, in company with the chief engineer and Respondent, checked the steering gear and found the rudder responded fully to the right and left in response to electrically generated commands from the bridge. The time to go from full left to full right was measured and found to be 25 seconds (Exhibit l) On February 12, 1981, while moored at Misener's Marine, the steering gear was again checked for operation from full right to full left and vise versa (approximately 35 degrees rudder angle) for four cycles and the average time from full right to full left was 24.25 seconds (Exhibit 3). The radar on the TUSKER is mounted directly over the wheelhouse. While in the notch of the LIQUILASSIE the distance from the radar to the bow of the LIQUILASSIE would be approximately 110 yards. (307 feet, length of the LIQUILASSIE, plus the distance from the bow of the TUSKER to the radar. No evidence of this latter distance was presented.) Accordingly, when hard right rudder was ordered at a radar range from the bridge of one-quarter mile (500 yards) the bow of the LIQUILASSIE was less than 400 yards from the bridge. If the speed of the flotilla was six knots over the ground and the flotilla remained on course towards the bridge at this speed, 400 yards would be traversed in two minutes. For the bow of the flotilla to reach the intended tract 200 yards south of Gandy Bridge at this same speed over the ground would take just under one minute. Respondent presented an expert witness who testified generally regarding hydraulic steering systems. He had never been aboard the TUSKER to observe the steering mechanism but opined that a leak between the high pressure and low pressure lines could cause what he termed hydraulic stall. This could occur if debris under the valve seat prevented a valve from seating properly and allowed some of the pressure to bleed off from high pressure to low pressure lines. This could reduce the pressure in the high pressure lines, reducing the pressure being applied to the ram to turn the rudder and thereby decrease the force available to turn the rudder. This could result in a rudder not reaching the full right position while the tug was underway when maximum force opposing a rudder turn exists, but allow the rudder to turn to full right or left when dockside in still water. Other witnesses had testified to movement of the large wheel in the wheelhouse while the ship was being steered with the portable steering dial. The expert opined that this movement of the wheel was indicative that oil was leaking from the high pressure lines through the wheel and could cause hydraulic stall. The chief engineer by deposition (Exhibit 16a) testified that in his experience a hydraulic steering system either worked or it didn't and he was unaware of any such system that would one time allow the rudder to go full right or left position and the next time, under the same command, the rudder would go only part way. In the instructions for the Donkin steering mechanism attached to Chief Engineer Michael Ingham's deposition, which was admitted into evidence as Exhibit 16a-e, the Donkin manual, listed as Exhibit 13 to Ingham's deposition, states in part as follows: Under the heading STARTING: 2. Put the change-over cock "B" on the bridge in power position. (When moving gear by local power control the change-over cock should always be in power otherwise the bridge hand wheel will be driven round by the power pump as soon as the control valve is moved.) Under the list of possible faults which may develop in the steering gear and How to locate them and their remedy, the same Exhibit 13 states: Steering gear will not work in either Power, Hand or Local Control. Shortage of oil causing air locks. (See Charging Instructions) Non-return valves (shuttle valves) on the telemotor side of the bridge unit not operating through being fouled with foreign matter or faulty. Drain oil out of bridge unit and examine valve. Steering Gear works in power but not in hand. Non return valves on hand pump side of bridge not seating through foreign matter or otherwise faulty. Remove oil from bridge unit, dismantle and clean thoroughly. Steering gear working erratically. Some- times going hardover, sometimes stopping short and sometimes moving on its own without the hand wheel being moved. 1. Buffer spring connecting the tiller to the hunting gear levers seized or wrongly adjusted. Dismantle spring, clean the stays and make sure they are free to work in the guide plates, assemble and adjust so that all the nuts just come up to the plates as the shoulders on the stays touch the plates. These instructions for the Donkin steering mechanism tend to support the testimony of the chief engineer that the steering mechanism doesn't work fully on one rudder change and only partly on another. No evidence was presented that the change-over cock on the bridge was in power position. On the other hand, no evidence was presented that someone had moved this lever from the position in which it was supposed to be set when the steering was placed in the power mode. Prior to departure from Halifax the Canadian Coast Guard inspected the steering system, particularly the emergency steering, and found it working properly. For the purpose of determining if the Respondent exercised prudence in piloting the TUSKER as the flotilla approached the Gandy Bridge, it is not essential that the steering be found to be operating correctly or erratically. If the latter, the Respondent was, or should have been, made aware of possible difficulties in making a sharp turn to the right as he had recently experienced that very problem while, making the turn from Cut G into Cut J.
Findings Of Fact By application dated October 7, 1987, Petitioner applied to DOT for approval of a seaplane base on Deerpoint Lake in Bay County, Florida. The application originally provided for limited commercial flying and use by visiting seaplanes upon invitation by Petitioner. Petitioner also has submitted an October 21, 1987 letter from the Federal Aviation Authority (FAA) granting airspace approval and an October 29, 1987 letter from the Bay County Commissioners stating that no zoning existed in Bay County which would prohibit the location of the seaplane base at Deerpoint Lake. The application was subsequently amended to limit use of the proposed seaplane base to Petitioner's personal, non-commercial use, and at formal hearing, Petitioner bound himself to accept approval of a seaplane base permit restricted exclusively to his private usage and to flying only during daylight hours, and under Visual Flight Rules (VFR) which call for an altitude of 1,000 feet and three miles of visibility. By a resolution dated August 16, 1988, the Bay County Board of County Commissioners adopted a resolution opposing Petitioner's seaplane base. By letter dated August 30, 1988, DOT denied Petitioner's application because of zoning, noise, and safety. Petitioner owns land on a peninsula in the Highpoint area of Deerpoint Lake. Deerpoint Lake is a freshwater lake approximately seven miles long and approximately two miles across at the point it runs up into Bayou George. The landing area proposed by Petitioner would be 200 feet wide and 7,000 feet long, running in an east/west direction with a ramp and hangar located on the peninsula. Although Petitioner testified that the area is large enough to provide multiple landing areas, the landing approaches would be generally over Bayou George. The proposed site would permit takeoffs and landings of Petitioner's presently owned seaplane without flying over anyone's house at an altitude of less than 1,000 feet. Petitioner's seaplane is a four place Aeranca with a 145 horsepower engine. It has no wheels and is equipped with pontoons for water landings. The plane has a muffled exhaust, self contained fuel tanks, and does not discharge emissions into the water. Takeoff time takes approximately 15 seconds at full power with two people on board. Eight hundred feet is necessary for takeoff which produces the loudest noise the plane makes. Landing is accomplished at a low power setting, is generally silent, and requires only 400 feet. DOT has assembled no factual or scientific data for noise. The witnesses are not in agreement as to the volume of noise produced by this plane and there was no reliable evidence which would indicate the decibel level generated at takeoff, but similar descriptions from several pilot that Petitioner's takeoff is "no noisier than an average motor boat, if muffled" is credible and accepted. In weighing the evidence presented with regard to the noise factor, the testimony of several local residents who testified concerning their opinions that the noise made by Petitioner's seaplane upon takeoff and landing was "excessive" has been discounted because these respective opinions are largely not credible either because the witness had no experience with seaplanes, or because the witness was prejudiced against the Petitioner's project as a whole. Specifically, no witness had made a complaint about noise until after the hangar was built. Some witnesses erroneously assumed that Petitioner had erected his hangar without a building permit and further believed an unfounded rumor that the Petitioner must be starting a flying school, or they considered the hangar an "eyesore", or they felt "betrayed" that a neighbor would establish a flying school base. Deerpoint Lake is a low population density area, almost exclusively residential in nature. DOT has done no survey of any kind with regard to the recreational uses of this lake, however evidence adduced at hearing shows that it is used primarily for recreational fishing and water sports. The largest number of fishing boats traceable to lake visitors at one time is twelve, but this does not account for additional abutting owners' boats which are launched without trailers. The concentration of boaters tends to be 3-4 miles away from Petitioner's property. However, there are also private boat ramps on both sides of Petitioner's property. Deerpoint Lake is also a reservoir area and a source of potable water for the county. There are some power poles in the vicinity of Petitioner's property. Some poles support a new power line and others are only the remains of an abandoned power line. The old power poles are generally cut off to be only 3-4 feet above the waterline, and some are just even with the waterline. Both sets of power poles and the power line limit where seaplanes can take off and land on the surface of the water itself, although there is testimony that, under ideal conditions (i.e. if all conditions are met and no flying or boating rules are disobeyed), Petitioner's standard plan for takeoffs and landings would not encounter either power line or poles upon takeoff or landing. There is, of course, no guarantee that all conditions will be favorable all of the time. The more probable danger presented by the poles is that if a seaplane had to taxi or otherwise take evasive action on the surface of the water so as too avoid a fishing boat, swimmer, or water-skier, the plane could encounter a cut-off pole. Petitioner first located his plane on Deerpoint Lake in July, 1984 and has accomplished approximately 25 safe takeoffs and landings therefrom since that time. Since becoming aware of the need for a site permit, he has voluntarily not taken off or landed on the lake. He has never had an accident there, but two other planes have. Neither of the situations, planes, or pilot in these two accidents is comparable to Petitioner's circumstances. Neither accident involved recreational users of the lake. Bobby R. Grice, who ultimately denied the application on behalf of DOT, expressed "just my personal opinion" that boaters could not hear a plane on its final approach. He has fished on Deerpoint Lake. He is not familiar with he operation of seaplanes, the visibility from them, or FAA rules. Two witnesses complained about Petitioner's coming too close to their homes during landings. By County Ordinance 89-02, enacted January 17, 1989, the Bay County Board of County Commissioners prohibited seaplanes on Deerpoint Lake, but also provided for a variance procedure for those landowners in Petitioner's location. As of the date of formal hearing, Petitioner had not applied for, or received, a variance from the county. The October 29, 1987 letter obtained by the Petitioner from the County (see Finding of Fact No. 1) stating there were no zoning impediments to the application at that time has been superseded by the 1989 ordinance Mr. Frank Duke, Chief Planner for Bay County, was unable to give a firm and competent opinion on whether or not the Petitioner's application to DOT was consistent with the existing 1978 Bay County Comprehensive Plan, because he had never personally observed the Petitioner's property on Deerpoint Lake. Nonetheless, it is clear that if Petitioner were to apply to Bay County for a seaplane base variance on Deerpoint Lake, Petitioner's proposed use would have to be reviewed in relationship to the County Comprehensive Plan.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that Department of Transportation enter a Final Order denying Petitioner'S seaplane base application. DONE and ENTERED this 19th day of September, 1989, at Tallahassee, Florida. ELLA JANE P. DAVIS 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 19th day of September, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-4932 The following specific rulings are made pursuant to Section 120.59(2) F.S., upon the parties' respective Proposed Findings of Fact (PFOF): Petitioner's Proposed Findings of Fact Accepted: 1, 2, 3, 4, 5, 7, 8, 11, (12 is accepted as modified to conform to the record), 13, 15, 19 a-b, 20, 22, 24. Accepted except for material subordinate, unnecessary or cummulative to the facts as found: 6, 16, 21, 23. What is rejected is also not dispositive of the issue at bar. Rejected as subordinate or unnecessary: 9,10. Accepted in part; the remainder is rejected as not proven: 14, 17, 18. Respondent's Proposed Findings of Fact Accepted except for material subordinate, unnecessary, or cumulative to the facts as found: 1, 2, 4, 5. Rejected as subordinate, unnecessary, or cumulative to the facts as found: 3, 6, 7, 8. Moreover, these proposals are largely reiteration of unreconciled testimony or legal argument. COPIES FURNISHED: Vernon L. Whittier, Jr. Senior Attorney Department of Transportation 605 Suwannee Street, M.S. 58 Tallahassee, Florida 32399-0458 Bonnie K. Roberts, Esquire Post Office Box 667 Bonifay, Florida 32425 Ben C. Watts, Interim Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450
The Issue Whether Petitioner owes sales and use tax (plus penalties and interest) to the Department of Revenue (Department), as alleged in the Department's December 22, 1999, Notice of Decision.
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following findings of fact are made to supplement and clarify the numerous stipulations set forth in the parties' Joint Stipulation of Facts and Second Joint Stipulation of Facts: 23/ Mr. Wheeler is a very successful entrepreneur, who has numerous investments and businesses. His interest in Petitioner represents only a small fraction of his wealth, and, consequently, he pays little or no attention to its business operations. He has let Captain Ernest exercise day-to-day control over these operations. No one other than Captain Ernest has been delegated such authority. When the "Destiny" was purchased by Petitioner, Mr. Wheeler intended for it to be used, for a time, as a charter boat (on a bare boat basis) and then sold, hopefully for a profit. From the time that Petitioner purchased the "Destiny" until the end of the Audit Period, Petitioner was not "involved in any business other than chartering the 'Destiny.'" Captain Ernest was the one who "picked [the "Destiny"] out." He did so pursuant to Mr. Wheeler's instructions that he "make sure" to select a "good charter platform." Aside from giving Captain Ernest these instructions, Mr. Wheeler did not participate in the selection process. The "Destiny" had a "perfect" configuration for chartering. In fact, it was "originally designed as a charter boat." It had last been used for chartering approximately five years before it was purchased by Petitioner. Rob Maas (the "Mr. Maas" referred to in the parties' Stipulation of Fact 26) is the attorney who represented Petitioner at the time the "Destiny" was purchased. At the request of Mr. Wheeler, who was "interested in satisfying all conditions for the Florida use tax exemption," Mr. Maas advised Mr. Wheeler and Captain Ernest as to "what was necessary to maintain the exemption." He told them that "bare boat charter forms" needed to be used when the vessel was chartered and that "any time the boat ever moved . . . [it had to be for] a business reason." After being given such advice, Mr. Wheeler specifically instructed Captain Ernest to use the "Destiny" exclusively for bare boat chartering and no other purpose, instructions that Captain Ernest followed. Captain Ernest accepted delivery of the "Destiny" on behalf of Petitioner in the Bahamas, 1/ notwithstanding that the purchase agreement between Petitioner and the seller indicated that delivery of the vessel was to be made at Pier 66 in Fort Lauderdale, Florida. Petitioner did not pay any sales tax on its purchase of the boat. Mr. Wheeler was not present at the time delivery of the vessel was accepted. After accepting delivery, Captain Ernest brought the boat to Fort Lauderdale. He did so because Fort Lauderdale was "the easiest place to get repairs done," a "good place to pick up crew . . . and finding things that you need for boats," and "the place you want to be" to charter a boat; however, he "probably [would] not" have entered Florida waters if had known that doing so would subject Petitioner to use tax liability. Upon arriving in Fort Lauderdale, Captain Ernest took the "Destiny" directly to Bradford Marine Shipyard (Bradford Marine), a Fort Lauderdale repair facility, where it was "outfitted . . . specifically for charter." On those occasions that Mr. Wheeler was on the "Destiny" during the Audit Period, he was aboard in the capacity of a paying charterer pursuant to a bare boat charter agreement that he and Petitioner had entered into on July 21, 1995. This bare boat charter agreement provided that Petitioner (as the "Owner") would make the "Destiny" available to Mr. Wheeler (as the "Charterer") "for charter on a 'stand-by' basis" and further provided, in pertinent part, as follows: Vessel Availability. Charterer understands the Vessel is scheduled to undergo significant repairs and improvements during 1995 and will not be available when such work is scheduled. Charterer further understands and agrees its charter is on a non-exclusive basis and Owner intends to charter the Vessel through the use of a charter broker to other parties. In the event of a scheduling conflict between Charterer and another charterer, Charterer agrees Owner may "bump" Charterer from using the Vessel during the conflicting period. Charter Broker. Owner and Charterer acknowledge that this is a direct charter without a charter broker. Accordingly, the charter rate is a discounted rate. Term, Hire, & Payment. Subject to the Vessel's availability, Owner agrees to let, and Charterer to hire, the Vessel on such days and for such term as Owner and Charter[er] agree at the rate of $3,000.00 per day, plus state sales tax, if applicable. There will be an accounting at the end of each calendar year to determine Charterer's usage during the preceding year. Due to the Vessel's repair schedule in 1995, the first accounting shall occur at the end of 1996 for Charterer's usage from the date of this Agreement. Charterer shall pay Owner the charter hire determined by the accounting by January 31st of next year. In addition to the charter hire, Charterer shall be responsible for all remaining expenses during charter, including but not limited to food, beverage, fuel, dockage, and accommodations. . . . 5. Control. The Vessel is chartered on a demise basis. Owner hereby transfers to Charterer full authority regarding operation and management of the Vessel for the charter terms. Charterer is solely responsible for retaining a master and crew and it is agreed that said Captain and/or crew are agents and employees of Charterer and not Owner. . . . On July 21, 1995, Mr. Wheeler and Petitioner also entered into a separate agreement for the services of the "Destiny's" captain and crew. This agreement between Mr. Wheeler (as "Charterer") and Petitioner (as "Contractor") for use of the "Destiny's" captain and crew provided, in pertinent part, as follows: Term, Hire & Payment. Charterer hereby retains Contractor to provide crew services to the Vessel during the charter period at the rate of $500.00 per day. In addition, Charterer shall provide the master and crew with food and quarters aboard the Vessel while retained. There will be an accounting at the end of each calendar year to determine Charterer's usage during the preceding year. Due to the Vessel's repair schedule in 1995, the first accounting shall occur at the end of 1996 for Charterer's usage from the date of this Agreement. Charterer shall pay Owner the charter hire determined by the accounting by January 31st of the next year. Provisions. Charterer, before any charter use, shall advance an expense deposit for running expenses. The master shall use these funds to pay for food, liquor, laundry, fuel and lubricants, harbor fees, communication expenses, and any other required supplies or services. If the deposit is insufficient to cover all charges, Charterer shall advance further funds, as needed, during the charter. Upon conclusion of a charter, the master shall provide an accounting to the Charterer of sums received and disbursed. Crew Services. Contractor, on those days Charterer is to use the Vessel, shall provide a full-time, qualified captain and crew. Each crew member shall hold any required license and shall be properly uniformed. . . . Navigation. The master shall act at the Charterer's direction; provided, however, that the master shall not have to carry out any order that jeopardizes the safety of the Vessel or those on board. Relationship. Contractor is retained by Charterer only for the purposes and to the extent set forth in this Agreement, and Contractor's relationship to Charterer shall be that of an independent contractor. Neither the execution or performance of this Agreement shall render the parties partners or co-venturers for any purposes. . . . Mr. Wheeler chartered the "Destiny" pursuant to the July 21, 1995, bare boat charter agreement (and utilized the services of the "Destiny's captain and crew pursuant to the separate July 21, 1995, employment agreement) on the following dates during the Audit Period: September 12, 1995, through September 15, 1995; December 21, 1995, through January 4, 1996; March 4, 1996, through March 7, 1996; July 21, 1996, through July 28, 1996; and August 19, 1996, through August 25, 1996. 2/ These charters all occurred outside of Florida. Mr. Wheeler was billed (in accordance with his agreements with Petitioner) for his use of the "Destiny," for the services performed for him by the "Destiny's" captain and crew, and for all "running expenses" incurred during his charters, and he paid Petitioner the full amount he was billed. Mr. Wheeler was not the only one to charter the "Destiny" during the Audit Period. There were seven other charters: by Ryder Systems, Inc., of Miami, Florida, from 2:00 p.m. to 7:00 p.m. on January 22, 1996; by Barry Zekelman, from noon on April 6, 1996, to noon on April 13, 1996; by William Boardman, from noon on May 20, 1996, to noon on May 31, 1996; by David Cole, from noon on June 29, 1996, to noon on July 7, 1996; by the Robert E. Morris Company, from 4:00 p.m. on July 9, 1996, to 4:00 p.m. on July 12, 1996; by Thomas Russell, from 9:00 a.m. to 8:00 p.m. on July 30, 1996; and by Richard Dvorak, from 3:00 p.m. on August 4, 1996, to 3:00 p.m. on August 18, 1996. Each of these charters, like Mr. Wheeler's charters of the "Destiny," occurred pursuant to a bare boat charter agreement (on a form containing provisions standard in the bare boat chartering industry, including, among others, one obligating the charterer to pay all "running expenses" during the charter), with the captain and crew being provided in accordance with the terms of a separate employment agreement entered into by the charterer. (These separate employment agreements, unlike Mr. Wheeler's agreement for the services of the "Destiny's" captain and crew, were with Captain Ernest, not Petitioner.) The arrangements made for the payment of the "Destiny's" captain and crew for services performed by them while the "Destiny" was under charter during the Audit Period were "customary in the industry." Only one charter during the Audit Period, the Ryder Systems, Inc., of Miami, Florida, charter, took place in Florida. Florida is not considered a preferred destination in the bare boat chartering industry. A considerable amount of time was spent during the Audit Period marketing and promoting the "Destiny" to rebuild the reputation it had previously enjoyed as a charter boat. 3/ It was not until 1997 that Petitioner's bare boat chartering business "really took off as far as . . . charter numbers went." Although the "Destiny" was under charter only for a small portion of the Audit Period, at no time during the remainder of the Audit Period (when it was not under charter) was it used for any purpose unrelated to Petitioner's bare boat chartering business. The "Destiny" was used to house 4/ and feed Captain Ernest and the other members of the crew 5/ at all times during the Audit Period, whether the "Destiny" was under charter or not. Such use of the "Destiny" was in furtherance of Petitioner's bare boat chartering operations. Having a full-time captain and crew aboard a "mega" yacht available for bare boat charter, even when the yacht is not under charter, is essential to conduct successful chartering operations. The captain and crew must be available, on the vessel, to host the charter brokers and prospective charterers who come aboard between charters (sometimes with little or no advance notice) and to perform those everyday tasks necessary to maintain the vessel. To attract and keep qualified onboard personnel, it is necessary to provide them with, as part of their compensation package, free room and board on the "mega" yacht. Doing so is the standard practice in the bare boat chartering industry. When it was not under charter during the Audit Period, the "Destiny" was heavily promoted and marketed in an attempt to attract bare boat charter business. "[A] lot of promotion" and marketing was needed because the "Destiny" was reentering the charter market after a five year hiatus and Captain Ernest "was new to the charter industry." The promotional and marketing efforts included entering the "Destiny" in boat shows, hosting luncheons for charter brokers aboard the "Destiny," taking charter brokers and their guests on "fam" trips on the "Destiny," and showing the "Destiny" to prospective clients. Captain Ernest and the crew always tried to make the "Destiny" look its best when charter brokers and prospective charterers came aboard. Flowers were purchased and used to enhance the appearance of the "Destiny." When charter brokers came aboard the "Destiny," they were wined and dined and otherwise shown the type of service Captain Ernest and the crew were capable of delivering to charterers. (The reputation of the captain and crew for quality service determines "what charters [a "mega" yacht bare boat chartering business is] going to get and how [the] business is going to go.") It was particularly important "in the early days" for Captain Ernest and his crew to "make an impression on the brokers" because they were not known in the broker community. During the Audit Period, when not under charter, the "Destiny" was stocked with supplies and provisions purchased for use in connection with Petitioner's bare boat chartering operations. These supplies and provisions included fuel and various food and beverage items. Some of the food and beverage items were for use during promotional and marketing activities aboard the vessel. The chef (who specialized in European-style dishes) would often serve rack of lamb or roast duck (as a main course) to visiting charter brokers. There were also food and beverage items on the vessel for the members of the crew. In addition, items that could not readily be obtained in the Caribbean islands (at a reasonably competitive price) were purchased before the "Destiny" departed for the Caribbean. These items were stored on the vessel so that they would be available for any charter that Captain Ernest might be able to obtain while the vessel was located in Caribbean. (Charterers paid Petitioner for the items they and their guests consumed during the charter.) It was "common" for Petitioner to buy large quantities of meats and seafood and store these items for later use in the seven freezers on the "Destiny." For example, on one occasion, Petitioner bought 71.49 pounds of leg of lamb (from a company that would "cryovac" the meat so that it would keep for a very long time). There were many occasions during the Audit Period, when the "Destiny" was not under charter, that it was moved from one location to another. All such movements, however, were in furtherance of Petitioner's bare boat chartering operations. For example, it was moved from time to time to attend boat shows and to pick up charter brokers and prospective charterers who wanted to look at the vessel. On other occasions, it was taken to repair facilities and other places ("mainly . . . in Florida"), such as Pier 66, to have repair and maintenance work done. It was also taken out on "quite a few" sea trials. In addition, there were times it was moved to avoid the problems that can arise if a boat just "sit[s] at the dock." "It's very important for a boat to stay moving and stay running" in order for it to remain in good working order. Another reason it was moved was to be in "the prime areas for [charter] pick-ups." 6/ In summary, during the Audit Period, the "Destiny" was either chartered on a bare boat basis (with captain and crew furnished under a separate employment agreement) or used in a manner reasonably designed to further Petitioner's bare boat chartering business, and for no other purpose. Furthermore, every tax-free Florida purchase of tangible personal property made by Petitioner under its Florida sales tax exemption certificate from the time of its acquisition of the "Destiny" until the end of the Audit Period (including the purchase of Yamaha WaveRunners on August 14, 1995, for $12,770.00 7/) was made in furtherance of Petitioner's bare boat chartering business. 8/ By letter dated October 11, 1996, the Department informed Petitioner that it was going to audit Petitioner's "books and records" for the Audit Period. Petitioner was selected for audit because it had reported only a relatively small amount of taxable charter revenue on the Florida sales and use tax returns it filed during the Audit Period. The Department began its review of Petitioner's "books and records" on January 23, 1997, at Mr. Maas' office. The Department's "audit findings" were that the "Destiny" "was purchased for [a] dual purpose, for leasing and to be used by the shareholder" and therefore "the vessel and other purchases [made by Petitioner during the Audit Period under its sales tax exemption certificate] are taxable at the cost price." Based upon these audit findings, the Department issued a Notice of Intent to Make Audit Changes, in which it advised Petitioner that Petitioner owed $250,744.18 in sales and use taxes, $125,325.07 in penalties, and $56,948.55 in interest through July 18, 1997, for a total of $433,017.80, "plus additional interest of $82.44 per day . . . from 07/18/97 through the date [of] payment." By letter dated April 22, 1998, Petitioner protested the Department's proposed assessment. On December 22, 1999, the Department issued its Notice of Decision sustaining the proposed assessment and announcing that, as of December 22, 1999, Petitioner owed the Department $506,142.08, with "interest continu[ing] to accrue at $82.44 per day from 12/23/99." Petitioner subsequently filed a Petition for Chapter 120 Administrative Hearing on the Department's proposed action.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department enter a final order finding that its assessment against Petitioner is incorrect in its entirety. DONE AND ENTERED this 24th day of September, 2002, in Tallahassee, Leon County, Florida. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of September, 2002.
Findings Of Fact Based upon all of the evidence, the following findings are fact are determined: 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. 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. 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. 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. 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. 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). 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. 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. 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. 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. 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. 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.
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. Partially accepted in finding of fact 12. Rejected as being unnecessary. Partially accepted in finding of fact 2. Partially accepted in finding of fact 12. 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: 1. Partially accepted in finding of fact 1. 2. Partially accepted in finding of fact 2. 3. Partially accepted in finding of fact 3. 4. Partially accepted in finding of fact 4. 5. Partially accepted in finding of fact 5. 6. Partially accepted in finding of fact 7. 7. Partially accepted in finding of fact 8. 8. Partially accepted in finding of fact 9. 9-11. Partially accepted in finding of fact 10. 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
