Findings Of Fact The Petitioner, the State of Florida, Department of Professional Regulation, filed an Administrative Complaint in prosecution of a probable cause finding by the Board of Pilot Commissioners, an agency of the State of Florida charged with regulating entry into the profession of harbor piloting and enforcing the practice standards for that profession for those already licensed. The Respondent at all times material hereto, was admitted as a licensed pilot in the State of Florida, having been issued license number 0000033. The Respondent resides in Jacksonville, Florida and practices his profession by piloting vessels in and out of the port of Jacksonville. On February 26, 1987, the motor vessel, Fernpasset, was approaching the port of Jacksonville for the purpose of discharging a load of Volkswagon automobiles. The Fernpasset is a Liberian registered car carrier having a gross tonnage of 9841 tons, a length of 536 feet, with an 89.5 foot beam. The vessel is somewhat unique in that it has a very large "sail area" or wind-affected profile as a necessary part of its structure, which extends approximately ninety percent of the vessel's total length and at a height of approximately sixty feet above the water line. This represents a much larger wind-affected profile for this vessel, as compared to more conventional cargo ships. The Jacksonville Harbor is reached by navigation of the St. Johns River channel inland from the Atlantic Ocean. At the point where the river and river channel reaches the Atlantic Ocean are two jetties, composed of granite rocks, serving as a breakwater at the entrance to the harbor. The harbor entrance has a north jetty and a south jetty. The north jetty projects waterward from the land for approximately 2,400 yards. The south jetty projects out into the water approximately 1,400 yards. Buoy number seven in the St. Johns River channel is located nine hundred yards inside the jetties. At approximately 1800 hours on February 26, 1987, the Fernpasset commenced preparation for entering the port of Jacksonville. The chief mate made VHF radio contact with the Jacksonville pilot station at about this time and gave the dispatcher at the pilot station, at his request, his estimated time of arrival at the sea buoy, his deep draft, approximately twenty-two to twenty- four feet, and what the weather conditions were at sea. During the initial radio contact between the Fernpasset and the pilot dispatcher, Errol M. Hatton, at approximately 1815 hours, the dispatcher asked First Officer (Chief Mate) Oleson whether he wanted to pick the pilot up inside the jetties or at the sea buoy. He replied that it would pick up the pilot inside the jetties. The vessel's master, Ole Brakstaad, agreed to that procedure. After this initial contact, and after the arrangement with the Fernpasset was made that it would pick the pilot up inside the jetties, the dispatcher called the Respondent, Captain Register and informed him of the job and the boarding arrangement. Prior to the Fernpasset arriving in the port area, the Jacksonville area had experienced moderate to severe weather from the northeast with "northeasters" blowing for approximately a week, with choppy and rough seas. Indeed, the official log of the M/V Fernpasset reveals that wind conditions on February 26, 1987, while at sea, varied from wind force four through wind force six and seas varied from sea scale four through sea scale five. Just two hours before the initial radio contact with the pilot station, at approximately 1600 hours, the Fernpasset was experiencing winds from the Northeast at force five, gusting at six. The sea had a heavy swell running at that time. Wind force six is approximately twenty-two to twenty-seven nautical miles per hour. Sea scale five consists of waves running eight to twelve feet high. See Respondent's exhibit two, (Brakstaad's Deposition). After Captain Register arrived at the pilot's station, the dispatcher, Mr. Hatton, spoke with the vessel approximately two more times, checking on its estimated time of arrival and having the vessel confirm that it would pick up the pilot inside the jetties. This arrangement had already been made before Captain Register had been called at his home by the dispatcher and told to report for duty to pilot the Fernpasset into the harbor. Captain Register did not participate in the conversation that set up this arrangement because he was at home and not on duty at the time. The evidence does not reflect that this choice was anything but freely made by the master of the Fernpasset and it does not indicate that Captain Register had any reason to believe that the master of the vessel had not freely chosen to pick up the pilot inside the breakwater, especially in view of the fact that inclement weather conditions were prevailing, with the attendant danger involved in boarding a pilot in heavy seas. In any event, the master of the vessel, Captain Ole Brakstaad, commenced conning his vessel into the entrance to the St. Johns River. He used his radar and the navigational markers to line up the vessel to transit between the north and south jetties. The vessel's master had assumed control of the vessel's movement from the Chief Mate at approximately 1900 hours. At approximately 1943 hours, the vessel passed the sea buoy preparing to enter the entrance channel to the river. At 1944 hours, several rudder commands were given to the helmsman and the vessel "steadied up" on course 278 degrees, lined up to enter the channel. At about this time, the winds had shifted to north- northeast at approximately 16 knots. As the vessel entered the channel, the master and the chief mate were unable to see the range lights. At 1946 hours, the master ordered a slow ahead "bell" to reduce the ship's speed to 10 knots for transiting the channel. The range lights were still not visible to the master or chief mate. As the vessel passed buoys three and four, it was centered in the channel. The wind speed increased to approximately eighteen knots from the northeast. In order to counteract the effect of the wind and strong current, which was in a southerly direction, the master ordered the helmsman to come to starboard to course 283 degrees, in order to remain centered in the channel. The master determined that the vessel was being "set" to the south by the combined forces of the northeast wind and the southerly current and therefore had to steer further north to compensate for the set. He ordered courses of 285 degrees, 290 degrees and finally 295 degrees. At 1953 hours, he increased the vessel's speed from slow ahead to half speed ahead to provide for greater maneuverability. At approximately 1954 hours, he ordered full speed ahead, with an emergency bell, to the engineer after realizing that his ship was sideways in the channel and still being set to the south. At 1955 hours, however, the Fernpasset grounded on her port side on the St. Johns River entrance channel south jetty. Before he could contact the pilot, however, he received a call from the pilot boat stating that the Captain should proceed into the channel at a speed of 10 knots. The master informed the pilot that his vessel had run aground and that he needed tug assistance. At approximately 2015 hours, Captain Register boarded the grounded vessel. Captain Register was only able to board the vessel after great difficulty because of the rough weather. After he got aboard, he assisted in towing the vessel off the breakwater and out to sea and in assessing damages. The practice of boarding a pilot requires the vessel being boarded to slow down and make a "lee" or sheltered area on one side of the vessel, sheltered from winds and waves, to help the pilot boat approach and place the pilot aboard the ship. The pilot boat is a fifty-two foot boat, specially designed, with a platform over the deckhouse or cabin upon which the pilot stands in order to catch a rope ladder thrown over the side of the ship to be boarded. The ladder must be caught on the up-roll of the pilot boat so as to avoid the pilot's being crushed between the pilot boat and the side of the ship while he is on the rope ladder. Boarding a pilot is dangerous under any circumstances, and especially so during heavy, severe weather. Weather conditions off the mouth of the St. Johns River are usually much worse as to the wind and rough waves than inside the jetties. Captain Elija Guillory is a shipmaster who has an unlimited Master's License for any type of vessel. He has been a master mariner for twenty-five years. He is currently the master of the tanker, Neches. He has entered and exited the port of Jacksonville many times. In fact, he enters the Jacksonville port approximately one and one-half times per month on trips between Houston and Corpus Christi, Texas and Jacksonville. He is also a licensed pilot for the port of Houston, Texas. Captain Guillory was accepted as an expert in shipmaster's duties and practices. Captain Guillory's testimony establishes that the master of a vessel always makes the final decision about when and where to pick up a pilot. He is the person best able to, and responsible for, determining the safety of a given situation, both as to his vessel and the pilot's safety. Captain Guillory testified that, if it be assumed that a northeast wind of Beaufort force five or six, with a heavy swell, was operating that it would be a "borderline situation" as to the safety of picking up a pilot outside the jetties under those conditions. He testified that it would depend on the characteristics of the vessel and circumstances aboard the vessel. On his own ship, which has about thirty-five feet of free-board, (less area exposed to the northeast wind), he felt he would be able to have boarded the pilot outside. A car carrier, however, has a large "sail area" of approximately sixty feet above the water line extending approximately ninety percent of the length of the vessel. This might have made it risky to slow or stop a ship with that much sail area, with a strong wind blowing, in order to pick up a pilot outside the jetties in view of the southerly set caused by both the wind and current. Captain Guillory established that it is regular practice for him and other shipmasters to tell the pilot where he will pick the pilot up during episodes of rough weather. In nice weather, he gives the pilots a choice about where they are to be picked up. He established that that is the standard practice between shipmasters and pilots for East coast United States ports. Finally, Captain Guillory opined that the Captain of the vessel should not have decided to enter the port without a pilot. In any event, it is the practice of master mariners to make the decision at sea, before entering the port, as to the safety of the vessel, the crew and the boarding pilots. It is customary and common for the master to make a decision that, due to bad weather conditions, he will pick the pilot up inside the jetties at the port of Jacksonville. This is decided after the master has made an independent evaluation of all the safety factors to consider. Although the United States Coast Pilot, volume four, states that the pilot boarding area for Jacksonville is between the sea buoy and the outermost entrance channel buoy, this is merely a guide for optimum conditions. Pilots are normally and customarily boarded where ever the master feels it is safe to do so under then-prevailing conditions. In this instance, the master of the vessel made the final decision as to where to board the pilot. That decision was made before the pilot had been informed that the vessel to which he was assigned was approaching the sea buoy and that it was time for him to go on duty and prepare to board the vessel. He did not participate in the decision about picking up the pilot inside the jetties.
Recommendation Having considered the foregoing findings of fact and conclusions of law, the evidence of record, and the candor and demeanor of the witnesses, it is therefore RECOMMENDED that the Administrative Complaint against the Respondent, Captain Clifton A. Register, should be dismissed in its entirety. DONE AND ORDERED this 9th day of December, 1988, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of December, 1988. APPENDIX PETITIONER'S PROPOSED FINDINGS OF FACT: Accepted Accepted Accepted Rejected as subordinate to the hearing officer's findings of fact on this subject matter. Reject as subordinate to the hearing officer's findings of fact on this subject matter. Accepted in part, but not as dispositive of any material issue presented. Rejected as subordinate to the hearing officer's findings of fact on this subject matter. Rejected as subordinate to the hearing officer's findings of fact on this subject matter. Accepted, but not in and of itself dispositive of any material issues presented. Accepted, but not in and of itself dispositive of any material issues presented. Accepted. Rejected as not supported by the evidence of record, with the exception of the similarity consisting of the sea buoy being one and one-half miles from the entrance to the port between two rock jetties or breakwaters, which is not in and of itself dispositive of any material issues presented. Rejected as subordinate to the hearing officer's findings of fact on this subject matter. Even if Port Everglades was a port of essentially the same configuration as the Port of Jacksonville, which the record does not establish, the weather and sea conditions and condition and configuration of the vessel involved at the particular day and time in question has a great deal to do with consideration of what safe piloting practices are for such conditions. Rejected as subordinate to the hearing officer's findings of fact on this subject matter and as having little or no weight in finding facts and concluding the law applicable to this case, because of the subjective circumstances involved in deciding whether safe piloting practices have been observed, as delineated above. RESPONDENT'S PROPOSED FINDINGS OF FACT Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. COPIES FURNISHED: H. Reynolds Sampson, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 (904) 488-0062 Gary A. Bubb, Esquire Toole, Bubb, & Beale, P.A. 25th Floor Southern Bell Tower Post Office Box 1500 Jacksonville, Florida 32201 Bruce D. Lamb, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Louella Cook, Executive Director Board of Pilot Commissioners Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
Findings Of Fact The facts in this case are not in dispute. In October 1978 Herbert Grossman, a CPA, one of whose clients was Red Aircraft, Inc., and Spencer Gordon formed the corporation Southern Air Charter, Inc., for the purpose of taking title to an aircraft to be operated by Red. The bill of sale for $140,000 in September 1978 was from Red to Southern Air Charter, Inc., who financed the plane with a loan from Barnett Bank. Red, at all times here relevant, was registered with the Department of Revenue (DOR or Petitioner) as a dealer engaged in the business of selling tangible personal property. Southern Air Charter submitted application to DOR for a certificate of registration (Exhibit 1) bearing the typed date October 1978 scratched out, and inserted in handwriting 6-1-79. This application (Exhibit 1) was stamped received in DOR office February 1, 1979. Grossman's testimony, which was undisputed, was that Southern was formed as an accommodation to Red for the purpose of taking legal title to the aircraft to improve Red's balance sheet. Red continued to provide insurance coverage on the aircraft, charter the aircraft and perform all of their activities respecting the aircraft that would be done by an owner. Southern, having legal title to the aircraft, took depreciation and investment tax credit while Red used the aircraft. At the time of the sale of the aircraft to Southern, the latter was not a registered dealer, and Red did not collect sales tax on this transaction. On July 7, 1979, the tax, penalty and interest assessed on this transaction was $6,331.68 (Exhibit 2). The accuracy of this figure was not contested, nor was the assessment for rentals of aircraft in the amount of $1,704.34 (Exhibit 2). Red contended that no tax was due on the leasing of the aircraft but no evidence to support this exemption was presented.
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 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
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: At all times pertinent to this proceeding respondent was licensed by the petitioner as a pilot. He began sailing as a seaman in 1945, received a pilot's license in Texas in 1954, was a captain of tugs from 1954 to 1969 and has been a member of the Tampa Bay Pilots Association from 1969 to the present time. Respondent has made close to sixty (60) trips per month in and out of Tampa Bay since 1969. On August 6, 1981, at approximately 1500 hours, Captain Baggett was aboard the M/V IFNI, a medium-sized oceangoing vessel, and was proceeding outbound in Tampa Bay. The tug DIXIE PROGRESS and Barge B-103 were proceeding inbound. The DIXIE PROGRESS, which is 115 feet long and 35 feet wide, was pushing Barge B-103, which is 430 feet long and 80 feet wide. The Barge was carrying 147,000 barrels of gasoline at the time. As the IFNI was in "G" Cut, Captain Baggett noticed the tug and barge proceeding inbound in "D" Cut, approximately three to five miles from him. He radioed the DIXIE PROGRESS in order to make arrangements for the meeting and passage of the two vessels. Respondent inquired if there was a pilot aboard the tug. In arranging meeting situations, it is customary for one pilot to communicate directly with the pilot on the other vessel. Donald Hyde, the first mate aboard the DIXIE PROGRESS responded to Captain Baggett's call and informed him that there was no pilot aboard the tug. Respondent informed Hyde that he would meet them in Cut "E" on one whistle. Walter H. Williams, the Captain aboard the DIXIE PROGRESS, was standing near the radio when respondent called from the IFNI. At the time, Captain Williams felt that respondent would try to break up the tug and barge on passing because the tug did not have a pilot on board. For that reason, he relieved his mate and took control of the tug. The DIXIE PROGRESS was the last vessel in Tampa Bay to start using pilots, and did not start taking pilots until September of 1981. Respondent Baggett's son wads employed by Dixie Carriers, Inc., the owner of the DIXIE PROGRESS. At the time of the radio communication with Captain Baggett, the DIXIE PROGRESS was travelling at a speed of about 5.5 knots. Its speed was reduced to ensure that the meeting would occur in Cut "E". As the IFNI passed through "F" Cut, two dredged were working in the vicinity. Captain Baggett decreased the speed of the IFNI as he approached each dredge, and stopped the engine after passing each dredge. After passing the second dredge in "F" Cut and while making the turn into "E" Cut, Captain Baggett ordered the engines full ahead. Captain Williams and first mate Hyde noticed a puff of black smoke emit from the IFNI after it passed the last dredge in "F" Cut and turned into "E" Cut. At this point, as the IFNI began to gain speed, the two vessels were approximately eight-tenths to one mile apart. Some seven to eight minutes later, the IFNI and the tug and barge passed each other in "E" Cut at a distance of approximately 75 feet. The channel in "E" Cut is about 400 feet wide. After the IFNI passed the tug and barge, waves of approximately five or six feet in height caused the barge to dive under the water and, as it came back up, a push wire two inches in diameter broke. After passing the DIXIE PROGRESS, respondent looked astern and noticed the tug and barge at odd angles to each other. He radioed the tug and inquired as to what had happened. When informed by Captain Williams that a push wire had broken, respondent replied that he was sorry and that he had not realized that the IFNI had caused such a large wake. At no time during the incident in question did DIXIE PROGRESS Captain Williams feel that his vessel was in danger or that there was going to be a loss of property or life. He considered this to be a minor incident. It is not unusual for another vessel to pass the DIXIE PROGRESS and its barge at a speed of full ahead. The DIXIE PROGRESS and Barge B-103 frequently "push out" of the Mississippi River in six foot seas using the same "in the notch" configuration as was used during the incident in question. It is not unusual for the push wires which connect a tug and barge together to snap. The Captain and first mate aboard the DIXIE PROGRESS estimated that the IFNI was travelling at a speed of approximately 15 knots as it passed the tug and barge. Captain Baggett believed that he was travelling at a speed of about 7.5 knots as he passed the DIXIE PROGRESS. To travel a distance of approximately eight-tenths of a mile in seven or eight minutes would result in an average speed of about six to seven knots. It could take the vessel IFNI anywhere from six to twelve minutes to reach full speed from a stopped engine, depending upon the currents and other factors. The speed which a reasonable and prudent pilot should maintain when approaching and passing a tug and barge is dependent upon the circumstances, including the weather conditions and currents, the swell or wake the vessel is pulling, the size and configuration of the channel, the amount of water outside the channel and the configuration and weight of the vessels. While a passage within 200 feet with the IFNI travelling at a speed of 15 knots would not be something that a reasonable and prudent pilot would do, it cannot be determined without knowledge of the surrounding circumstances whether a passage at 8 knots would constitute incompetence, negligence or misconduct. By a "Final Order" signed by the Chairman of the Board of Pilot Commissioners and filed on July 28, 1981, it was ordered that a proposed Stipulation in Case No. 0007227 was approved, adopted and incorporated by reference and that Thomas A. Baggett "is reprimanded and is placed on probation for a period of one (1) year. . . ." The Stipulation reveals that that case was the subject of a proposed complaint in a case factually unrelated to the present case and that part of the consideration for the Stipulation was that the proposed administrative complaint in that case be held in abeyance. Among the terms of the Stipulation were that "The Respondent shall be placed on probation for a period of one year from the date of the final order of the Board accepting this sti- pulation. The order of Probation will be deemed to have been violated, subject to proving the allegations, if the Respondent is found by the Probable Cause Panel of the Board to have engaged in any conduct which constitutes negligence, incompetence or mis- conduct as presently embodied within section 310.101, Florida Statutes. In such case both a new proposed Administrative Complaint may be filed and the instant proposed Admini- strative Complaint may be instituted. In this respect, the Respondent specifically waives any procedural objections to insti- tuting the instant proposed Administrative Complaint." In October of 1981, by a vote of 2-2, the Board of Pilot Commissioners refused to modify the Final Order of July 28, 1981, so as to delete the word "probation" from its terms.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the Administrative Complaint filed against the respondent on January 18, 1982, be DISMISSED. Respectfully submitted and entered this 5th day August, 1982, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 Filed with the Clerk of the Division of Administrative Hearings this 6th day of August, 1982. COPIES FURNISHED: C. Steven Yerrid Holland and Knight Post Office Box 1288 Tampa, Florida 33601 W. B. Ewers, Esquire Special Trial Counsel 2170 SE 17th Street Suite 204 Ft. Lauderdale, Florida 33316 Jane Raker, Executive Director Board of Pilot Commissioners 130 North Monroe Street Tallahassee, Florida 32301
The Issue Whether Petitioner should be granted a license for a private airport some four miles east of Dundee, Florida.
Findings Of Fact Frank J. Drewniany, Petitioner, is the owner of 153 acres of undeveloped land some 4 miles east of Dundee, Florida, which he proposes to develop and on which he proposes to operate a private airport. On October 28, 1988, Petitioner applied for a site permit and license for a private airport (Exhibit 1). The application provided the information required by statute and the rules of the Department of Transportation (DOT), Respondent. This information included evidence of Applicant's right to so use the property, a list of airports within 15 miles of the proposed facility, mailing addresses of all landowners within 1000 feet of the proposed facility, FAA airspace approval and the prescribed fees. The proposed site was inspected by John Roeller, the Florida DOT airport program administrator in the district office having jurisdiction over the area. This inspection revealed the site to be adequate for the proposed airport; the airport, if constructed, would conform to minimum standards of safety; the local zoning was appropriate for the airport; the Applicant had provided a list of all airports and municipalities within 15 miles of the proposed airport and all property owners within 1000 feet of the proposed airport; and that safe air traffic patterns can be worked out for the proposed airport. Following this inspection Roeller, on October 31, 1988, executed the prescribed certification that the site is feasible for the proposed use and can meet the requirements set forth in Chapter 14-60, Florida Administrative Code (Exhibit 5). By letter dated August 22, 1988, the Federal Aviation Administration (Exhibit 6) determined the proposed airport would not adversely affect the safe and efficient use of airspace by aircraft if operations are conducted in VFR weather conditions and the landing area is limited to private use. By Notice of Intent to issue site approval dated March 22, 1989 (Exhibit 7), the DOT published the intent to issue the requested permit and advised protestors would be allowed to air their views at a public meeting on May 10, 1989. Following this public meeting, Site Approval Order 89-13 (Exhibit 8) was issued, a hearing was requested to contest the issuance of the requested license and these proceedings followed. Intervenors presented evidence of a general concern for the safety of residents living in the vicinity of the airport and hearsay evidence regarding crashes of private planes in various areas of the United States. No evidence was presented by Intervenors to rebut the evidence that the Applicant had complied with the requirements for site approval and licensure contained in Chapter 14-60, Florida Administrative Code.
Recommendation It is recommended that a Final Order be entered granting Frank J. Drewniany a license to operate a private airport at Latitude 28 -00'-40" North and Longitude 81 -31'40" West, subject to restrictions established by the FAA and DOT to insure safe air patterns are established for the proposed private airport. ENTERED this 27th day of November, 1989, in Tallahassee, Florida. K. N. AYERS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of November, 1989. COPIES FURNISHED: Roger W. Sims, Esquire Post Office Box 1526 Orlando, Florida 32802 Thomas J. Patka, Esquire Post Office Box 1288 Tampa, Florida 33601 Vernon L. Whittier, Jr., Esquire 605 Suwannee Street Tallahassee, Florida 32399-0458 Thomas J. Hirt 1 Cypress Run Sun Air Country Club Haines City, Florida 33844 Ben G. Watts Interim Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450 Thomas H. Bateman, III General Counsel 562 Haydon Burns Building Tallahassee, Florida 32399-0450
The Issue The issue presented is whether Rule 61E13-2.012, Florida Administrative Code, is an invalid exercise of delegated legislative authority.
Findings Of Fact l. Petitioner South Florida Cargo Carriers Association, Inc., is a Florida not-for-profit corporation with its principal office in Miami, Florida. Petitioner's purpose is to promote, advance, and secure laws, rules and regulations concerning vessels utilizing the navigable waters of the State of Florida, in particular the Port of Miami and Port Everglades, in order that the waters, harbors, and ports of the State and the environment, life, and property of all persons be protected to the fullest extent possible consistent with sound financial principles. Petitioner consists of the following companies: members of the Florida-Caribbean Cruise Association; Maersk, Inc.; Seaboard Marine; Kirk; SeaLand; Zim; Cari Freight; Thompson Shipping, and Burmuth. Intervenor Florida State Pilots Association, Inc., is a Florida not-for-profit corporation. It is a voluntary organization whose membership is comprised of all individual pilot associations serving the various ports of the State of Florida, as well as approximately 100 pilots licensed by the State of Florida. Among other things, Intervenor advances and defends the interests of its membership on the state level. The Port Everglades Pilots' Association (hereinafter "PEPA") is an association composed of present and retired harbor pilots that is treated as a partnership for tax purposes and which performs the pilotage services at Port Everglades. PEPA and its affiliates Port Everglades Pilots, Inc., and PEP, Inc., are located in Fort Lauderdale. The purpose of PEPA is to provide pilotage services in Port Everglades in a safe and efficient manner and in compliance with the provisions of Chapter 310, Florida Statutes, the rules promulgated thereunder, and any other provisions of law governing the provision of pilotage services. As such, PEPA is entitled to charge pilotage rates as provided in Section 310.151, Florida Statutes, and, as further provided therein, to seek rate changes by filing a petition with the Department of Business and Professional Regulation, Pilotage Rate Review Board. A number of Petitioner's members are affected by the rates of pilotage set for Port Everglades, inasmuch as they are required by Chapter 310, Florida Statutes, to utilize and compensate the pilots whose rates are established by the Board, and they are utilizing and compensating pilots in accordance with the rates currently established for Port Everglades. In January 1997 PEPA submitted to the Board an application for an increase in the pilotage rates for Port Everglades. In February 1997 Petitioner submitted its own application for a decrease in the rates of pilotage for Port Everglades. On May 20, 1997, the Board held a public hearing on both applications. At the conclusion thereof, the Board preliminarily determined to grant PEPA's application for a rate increase in its entirety and to deny Petitioner's application for a rate decrease. The Board's preliminary determination was reduced to writing on July 3, 1997. On July 28, 1997, Petitioner filed with the Board a Petition for Formal Administrative Hearing challenging the Board's decision to grant PEPA's application and to deny Petitioner's application. The Board thereafter transmitted that Petition to the Division of Administrative Hearings. The Board's transmittal letter filed August 7, 1997, cautioned the Division not to carry out its full statutory functions because: it is the Board's position , as expressed in rule 61E13-2.012(3), F.A.C., that the resolution of any disputed issue of fact by an [Administrative Law Judge] cannot result in a recommendation from that ALJ as to what the rate should be. The ALJ's recommendation should only extend to resolving the disputed issues of material fact. Subsequently, and based upon the resolved issues of fact, the Pilotage Rate Review Board will set the appropriate rates. On August 18, 1997, Petitioner filed its Petition Seeking an Administrative Determination of the Invalidity of an Existing Rule, challenging Rule 61E13-2.012(3), Florida Administrative Code, pursuant to Section 120.56(3), Florida Statutes. Petitioner has standing to file and maintain this rule challenge proceeding. Intervenor has standing to intervene in this rule challenge proceeding. Rule 61E13-2.012(3), Florida Administrative Code, was adopted before October 1, 1996. It was included on a list submitted by the Pilotage Rate Review Board in accordance with Section 120.536(2), Florida Statutes. It was subsequently amended by the Board, effective October 14, 1997, so as to delete all portions of the Rule except for Subsection (3) which is now the entire Rule.
