Findings Of Fact At all times material hereto Respondent has been a licensed pilot in the State of Florida, with license number 000050, and has operated as a pilot on Tampa Bay. Respondent received his state license in 1971, and also holds a federal license to serve as: Master of freight and towing vessels of not more than 1000 gross tons upon oceans; master of uninspected motor vessels of not more than 300 gross tons upon oceans; . . . first class pilot of steam and motor vessels of any gross tons upon Tampa and Hillsborough Bays to Tampa and Port Tampa, Florida, including Alafia River. . . . Count I On January 9, 1984, Respondent served as pilot aboard the foreign registered vessel Pennsylvania Rainbow as it sailed outbound from the International Minerals and Chemical Dock. The Pennsylvania Rainbow has a gross tonnage of 13,962, is 527.3 feet long and 81.4 feet wide. During the course of his pilotage duties, Respondent made a radio transmission substantially as follows: "Security, Security--Trico 1 outbound with Trico 3 and 4." Respondent is Trico 1, and Trico 3 and 4 are other members of Tampa Tri-County Pilots Association who do not have state pilot or deputy pilot licenses and who Respondent has sought to designate as "apprentice pilots." After the initial security call by Respondent, both Trico 3 and 4 also gave security calls aboard the Pennsylvania Rainbow. These security calls were overheard by licensed pilots on Tampa Bay who were approximately 15 miles away at the time and were concerned that persons without state licenses were being allowed to pilot the Pennsylvania Rainbow since the custom on Tampa Bay is that the person handling the vessel is usually the one who makes radio transmissions. At no time did the licensed pilots who testified actually see Trico 3 or 4 piloting the vessel. The foreign registered vessel Golden Laurel sailed inbound on January 22, 1984 to the loading berth at I.S. Joseph Company in Port Tampa with Respondent as pilot and Captain Tu Ting Kuo as master. The Golden Laurel has a gross tonnage of 29,729, and is 738.1 feet long and 105.6 feet wide. Respondent was accompanied by at least one unlicensed person whom he had sought to designate as an "apprentice." The unlicensed person was allowed to give commands which Respondent would overrule if such commands were not correct. Respondent remained on the bridge at all times in the immediate vicinity of the quarter- master and did correct the orders given by the unlicensed person on several occasions. The foreign registered vessel Trade Unity was inbound to the loading berth at I.S. Joseph Company on February 20, 1984 with Respondent as pilot, accompanied by an unlicensed person. The Trade Unity has a gross tonnage of 35,897 and is 770.14 feet long and 105.3 feet wide. With the permission of the master, Respondent allowed the unlicensed person to handle the Trade Unity in order to gain experience and practice. The unlicensed person gave commands which Respondent would overrule if necessary. On four occasions in June and July, 1984, Respondent served as pilot aboard the foreign registered vessel Marcona Conveyor as it arrived at and departed from Port Tampa. The Marcona Conveyor has a gross tonnage of 32,607, is 831.2 feet long and 106.2 feet wide. According to the master of the vessel, Capt. Charles D. Paden, Respondent permitted unlicensed persons to give commands for routine maneuvers of the vessel. Respondent would stand by on the bridge and intercede if necessary. Respondent permitted unlicensed persons to practice "piloting" by giving commands for the handling of the Golden Laurel, Trade Unity and Marcona Conveyor, but he contends that he remained on the bridge at all times, "acknowledged" or approved all such commands and overruled incorrect commands when necessary. Respondent also allowed unlicensed persons to practice radio transmissions and give security calls aboard the Pennsylvania Rainbow. His practice was to obtain the permission of the ship's master before allowing unlicensed persons to practice, and to introduce the unlicensed persons, whom he referred to as "apprentices," to the master. Respondent told the masters that he was the pilot of the vessel and would remain in control, while his "apprentices" practiced, by acknowledging their commands and interceding to change their commands whenever necessary. There is no approved apprenticeship program for pilots in Florida and Respondent's "apprentices" held no form of state authorization to practice or perform piloting. Respondent's practice of allowing unlicensed persons to gain hands-on ship handling experience by making radio transmissions and giving commands added an additional person to the normal chain-of-command on these foreign vessels, thereby increasing the risk of operation by increasing the potential for problems in communication. This is particularly significant with the non- English speaking crews on these foreign ships. Count II On February 28, 1984 Respondent piloted the foreign registered vessel Atropos Island in a shift from Gardinier Wharf in the Alafia River to Gadsden Anchorage. The Atropos Island has a gross tonnage of 10,019 and is 479.14 feet long and 75.08 feet wide. At the time it left the Gardinier dock, the ship was fully ballasted but had a forward draft of only 4 to 5 feet, a midship's draft of 8 to 9 feet, and an aft draft of 13 feet 9 inches. The propeller was half out of the water, with the upper half of the hub showing. After taking on cargo the loaded draft of the ship on leaving Tampa Bay was 31 feet. The weather on the morning of February 28, 1984 was overcast with winds out of the northwest at 20 to 30 miles per hour, with gusts to 40 miles per hour. Upon his arrival at the Atropos Island, Respondent monitored the weather broadcast, classified the vessel and waited for the ship to take on maximum ballast. He ordered three tugs to assist the Atropos Island in turning around in the Gardinier turning basin. It took twenty- five minutes for the vessel to complete its turn and begin to transit the Alafia River Channel. After completing the turn the tugs were ordered to release some of their lines. The Atropos Island did not go aground in the turning basin, although the vessel was blown toward the south bank of the basin by the winds to the extent that the tug Hillsborough, with a draft of 12 to 13 feet, could not get between the Atropos Island and the bank to push the vessel away from the bank. The tugs then put additional lines up to the vessel and pulled her into the middle of the turning basin. In transiting the Alafia River Channel, Respondent used a "crabbing" maneuver and this transit took approximately 1 1/2 hours, rather than the normal time of 20 minutes, due to this maneuver, the weather conditions, and Respondent's desire to await the assistance of larger tugs which he had ordered. "Crabbing" was described as a common piloting maneuver, particularly with vessels in light condition in a narrow channel such as the Alafia River Channel which is only 200 feet wide and approximately 2.8 miles long. When crabbing a vessel proceeding westerly through a channel with the wind out of the north- northwest, one tug would be on the starboard bow, the weather side of the vessel. As the vessel's stern begins to drag down, causing the vessel to go broadside, the pilot would put the rudder left, decrease the vessel speed and back the tug. The tug then acts like a spring line to pull the vessel up into a position almost parallel to the channel, at which point the pilot would slow the vessel and order the tug to stop backing. The maneuver would be repeated each time the wind caused the vessel to go off course in the channel. The evidence presented does not support the charge that the Atropos Island was grounded several times while proceeding down the Alafia River Channel. After considering all of the evidence presented, it appears that this crabbing maneuver used by Respondent was misinterpreted by the tug captains and by those who overheard radio transmissions by Respondent, which may have been "excited" due to the bad weather and difficult conditions in the channel during this transit. Significantly, the shipping agent for the Atropos Island testified that he discussed this transit with the captain of the Atropos Island the next day, and the captain stated the vessel did not run aground at any time while Respondent was piloting the vessel. The captain must account to the vessel's owner for all damage to the vessel the next time it is in dry dock and the owner will hold the captain liable for all unreported damage. Thus, it is not likely the captain of a vessel would not report a grounding if he thought one had occurred in order to protect himself from such liability. After completing the transit of the channel, the Atropos Island arrived at the location known as "Hillsborough Cut-C" where Respondent anchored the vessel and awaited larger tugs. The larger tugs, Yvonne St. Phillip and Gloria, arrived to assist the Atropos Island in turning at Cut-C, along with the smaller tugs Hillsborough and Pasco. The wind was still out of the north- northwest and the Atropos Island was heading west into the wind, having dropped its port anchor. Respondent had ordered the Hillsborough to take a position on the port bow of the Atropos Island and had positioned the Pasco on the port stern while they awaited the larger tugs. When the larger tug Yvonne St. Phillip arrived, Respondent ordered it to relieve the Pasco and the second larger tug, Gloria, was positioned on the port bow next to the Hillsborough. The Yvonne St. Phillip was pushing on the stern and the Gloria did not immediately put a line up at the bow. With the larger tug pushing in this manner at the stern, the bow of the Atropos Island began to come around toward the Hillsborough. The captain of the Hillsborough lost track of the location of the Atropos Island's anchor chain and became concerned that the anchor chain might be underneath his tug. The Hillsborough still had a line up to the Atropos Island at the time. There is conflicting testimony whether the Hillsborough's line snapped due to its being stretched tighter and tighter during this maneuver, whether it was severed by the bow of the Atropos Island, or whether Respondent ordered the line cut on purpose in order to release the Hillsborough so it could get out of the way. There is also conflicting testimony whether the Hillsborough was thereafter pushed aground by the Atropos Island or by the Gloria's wheel-wash. The captain of the Hillsborough believes that the Atropos Island pushed him aground. It was clearly established that the Hillsborough went aground at Cut-C and began to list at a 45 degree angle causing its captain great concern for the safety of his crew, and it is also established that its line to the Atropos Island parted. This occurred while the Hillsborough was assisting the Atropos Island at Cut-C. The Pasco later pushed the Hillsborough off ground. Respondent did not file a marine casualty report for any of the events occurring on the morning of February 28, 1984. Although there were winds of up to 40 miles per hour on the morning of February 28, 1984, there was other shipping traffic in the area. The conditions were not so severe as to preclude other vessels from moving, and Respondent checked the weather conditions and fully ballasting the vessel before leaving the dock. The weather did become more severe than forecast, making the maneuvers more difficult, but Respondent reacted to the worsening conditions by slowing his transit of the channel, ordering larger tugs and anchoring for a time at Cut-C.
Recommendation Based upon the foregoing it is recommended that Petitioner enter a Final Order imposing a one month suspension and one thousand dollar fine against Respondent. DONE and ENTERED this 13th day of May, 1985 at Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 13th day of May, 1985. COPIES FURNISHED: David G. Hanlon, Esquire David C. Banker, Esquire Post Office Box 3324 Tampa, Florida 33601 J. Micheal Shea, Esquire Post Office Box 2742 Tampa, Florida 33601 W.B. Ewers, Esquire Post Office Drawer 9008 Coral Springs, Florida 33075 Fred Roche Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Salvatore A. Carpino Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact In the Spring of 1978, Roach purchased 1965 Piper aircraft No. 3406W from an out-of-state broker. On the assumption that sales tax had been collected, and not being familiar with Florida's Sales/Use tax laws, Roach took no other action. This aircraft was sold in August of 1978 and 1972 Piper No. 5309T was purchased in September of 1978; this aircraft was purchased under the same circumstances. No records were kept of the purchase price of either aircraft. DOR wrote Roach in August and September of 1978 regarding 3406W, without result. Thereafter, DOR used the average book value of $19,000 to arrive at a tax due of $760.00 Roach paid $720 tax on July 15, 1979; he contended that 3406W had $1000 less equipment than the average book valued aircraft. Prior to this time Roach became aware that tax was due but indicated he was financially unable to pay. On July 18, 1979, DOR sent Roach the proposed assessment for $40.00 tax, $190.00 penalty and $83.60 interest. Meantime, DOR was writing Roach regarding the second aircraft, 5309T, with no response being received until August 8, 1979. A proposed assessment was issued for $1500 tax, $375 penalty and $394.93 interest on September 10, 1979. During the subsequent informal conference, Roach advised that the tax due was in fact $1520, which was paid on October 4, 1979. Revised assessment dated October 22, 1979, was for $380 penalty and $400.20 interest. DOR's witness, Assistant Area Supervisor, Collection and Enforcement Division, received the matter from higher headquarters in December of 1979. He merely indicated that someone else in DOR used the "blue book" to determine value; he presented no evidence contrary to Roach's estimated value of $18,000 for the first aircraft or regarding the imposition of the penalty.
The Issue Whether the application of the Fort Pierce Pilots Association for an increase in the pilotage rates for the Port of Fort Pierce should be granted in whole or in part, or denied.
Findings Of Fact Based on the testimony and documentary evidence presented at the hearings on April 26- 28 and August 23, 2011, and on the entire record of this proceeding, the following findings of fact are made: The Parties Petitioner ACL is the largest user of the Port of Fort Pierce (the Port). ACL operates three vessels on a regular "liner" schedule operating six days per week from the Port to a few foreign ports. Approximately 95 percent of the vessel traffic at the Port is generated by these three vessels. ACL is affected by the rates of pilotage set for the Port since it is required by chapter 310, Florida Statutes, to utilize and compensate a state-licensed pilot each time one of its vessels enters or departs the Port. The rates that must be paid by ACL are established by Respondent, Department of Business and Professional Regulation, Pilotage Rate Review Committee. Accordingly, ACL is substantially affected by and has standing to maintain this challenge to the former Board's preliminary decision set forth in the Notice of Intent. Petitioner IRT owns the terminal at the Port, as well as warehouses, offices and equipment at the Port. The pilotage rate increase preliminarily approved by the Board in the Notice of Intent will make the pilotage rates at the Port higher for the small vessels which can utilize the Port than the rates these same size vessels would pay at the Port of Palm Beach, Port Canaveral and/or Port Everglades. This is significant because IRT competes to attract new business from vessel owners and/or operators whose vessels call on South Florida. Accordingly, IRT is substantially affected by and has standing to maintain this challenge to the Board's preliminary decision set forth in the Notice of Intent. The Pilotage Rate Review Committee (formerly the Pilotage Rate Review Board), Department of Business and Professional Regulation (DBPR), is a state agency created by section 310.151, Florida Statutes. It is established as part of the Board of Pilot Commissioners, and consists of seven members. With regard to an application for a change in pilotage rates, the Committee must investigate and determine whether a rate change will result in fair, just and reasonable rates of pilotage pursuant to chapter 310, Florida Statutes, and rules implementing those provisions. The decisions of the Committee however, are made independent of the Board of Pilot Commissioners, and are not appealable to the Board of Pilot Commissioners. Intervenor Fort Pierce Pilots Association (FPPA) is an association of harbor pilots with one member, William Wetzel, LLC. Captain William Wetzel is, in turn, the sole member of William Wetzel, LLC and is the state-licensed pilot for the Port. The FPPA, through Captain Wetzel and occasionally a cross-licensed pilot from the Port of Palm Beach, perform the pilotage services at the Port. The Florida State Pilots Association, Inc. (FSPA) has a business address in Tallahassee, Florida. FSPA is a voluntary organization representing the interests of Florida’s 97 state- licensed harbor pilots, who participate in the FSPA through the 11 local pilot associations that serve Florida’s deepwater ports. The Piloting Profession Chapter 310, Florida Statutes, sets forth a comprehensive body of regulation addressing the practice of piloting in this state. The purpose of such regulation, as elsewhere in the country, is to ensure the efficient movement of maritime commerce while guarding against vessel incidents that could injure persons and property, as well as the state’s economy and environment. From this standpoint, the most dangerous part of any sea voyage for the ship and for the public at large is when the ship is moving into or out of port. In the maritime industry, the crew of a vessel, which is employed by the ship’s owner or operator, is under significant pressure to bring that vessel into and out of port efficiently and without delays. In light of the risks posed if those economic interests were to override public safety, Florida, and every other state with a significant maritime industry, requires vessels to utilize the services of an independent state-licensed pilot. The pilot is a mariner with many years of experience who is thoroughly familiar with every facet of a particular port and who has the skills necessary to maneuver a wide variety of ships. Because the pilot is not employed by the vessel owner, the pilot can exercise independent judgment, free from the pressures normally associated with the ship’s business operations. The value added by the pilot in terms of safety is widely recognized throughout the maritime industry, as evidenced by the fact that even ships calling on U.S. ports for which a pilot is not required by state law, i.e., U.S.-flagged vessels, routinely use the services of the port’s state-licensed pilots. The risks faced by pilots are unique. Pilots are transferred from their pilot boat out at sea onto and off of large moving vessels. Once the pilot boat maneuvers alongside the vessel, the pilot typically boards the ship by stepping from the pilot boat onto a ladder hanging from the ship’s side. Unfortunately, pilots are frequently injured and sometimes killed in the course of this dangerous transfer, particularly in bad weather. One expert in the piloting profession testified that over the course of a 30-year career, a pilot has a one-in-20 chance of being killed in a boarding accident. Once on board, the pilot must familiarize himself or herself with the ship’s navigational equipment, performance characteristics, and mechanical condition. The pilot conducts a conference with the ship’s master, during which the two exchange technical information on the ship, as well as details of the planned passage. If the vessel is fit for the transit, the pilot then “takes the conn,” assuming navigational control of the vessel and directing the ship’s movements by giving verbal commands on steering and engine power to the ship’s crew. The crew will have varying levels of maritime experience and often speak little or no English. The pilot must deal with a wide variety of ships and equipment. The vast majority of ocean-going vessels are flagged in foreign countries rather than the U.S., thus avoiding a great deal of regulation, as well as taxation. Piloting Selection and Training A mariner wanting to become a state pilot in Florida must await an opening declared by the state’s Board of Pilot Commissioners in one or more ports where he or she has an interest in serving. If the mariner is determined to have sufficient experience and qualifications, the next step in the process of deputy pilot selection is successful completion of a very difficult written examination, designed and administered by the State of Florida. This comprehensive two-day examination encompasses International & Inland Rules of the Road, Seamanship & Shiphandling, Federal & State Pilotage Laws, and port-specific Chart Work & Local Knowledge, and requires the candidate to reproduce from memory a complete and accurate chart of the port and its channels. These examinations are extremely difficult, and candidates will have typically spent several months and hundreds of hours in preparation. Only about 20 percent of those who sit for the exam will pass. The examination, however, is not one where the applicant is only required to achieve a minimum score to demonstrate basic competency. Rather, in Florida, the goal of the deputy pilot candidate is to achieve the top score among all candidates taking the exam. This is because the DBPR Secretary will be presented with a list of the top five scores on the exam and will typically appoint as the deputy pilot the person scoring highest. Once the DBPR Secretary has selected a deputy pilot to fill an opening at a Florida port, the deputy is issued a 12-month temporary certificate. The temporary certificate becomes permanent when the deputy has proven suitable in all respects for continued training as a state pilot. Once in receipt of the temporary certificate, the deputy pilot then begins a minimum two-year training program at the port, as approved and monitored by the Board of Pilot Commissioners. Under the supervision of the fully licensed pilots of the port, this training program allows the deputy pilot to initially handle smaller vessels of limited size and tonnage, with gradual increases in size and tonnage over time. While in training, the deputy earns only a portion of what a full pilot would earn. The Board of Pilot Commissioners approves each deputy pilot’s advancement to a higher level in the training program, after thorough review of the records and the recommendations of the local pilots in the port. Some deputy pilots “wash out” of training and fail to complete the program, never becoming pilots. Upon completion of all training, the deputy pilot must pass yet another rigorous exam administered by the state before he or she can be appointed and licensed by DBPR as a full state pilot for the specific port in which the deputy pilot has trained. The Rate Application and Review Process On or about March 30, 2009, the FPPA submitted an application (the Application) to the former Board, requesting an increase in pilotage rates at the Port. The Application sought an increase in the rates of pilotage at the Port over a four- year period, as follows: 157% in year one, 13.9% in year two, 16.7% in year three and 18.7% in year four. The total requested increase from year one to year five was 206%, from a $150.00 minimum fee before the Application, to a $608.00 minimum fee after the final requested year four rate increase. As prescribed by statute and the Committee’s rules, two contract consultants were assigned to be the Investigative Committee. One consultant, Richard Law, is a CPA, and has served as an investigative consultant on pilotage rate proceedings for DBPR for 16 years. The other consultant, Galen Dunton, is a retired Coast Guard commander with 18 years of experience as an investigative consultant for DBPR in pilotage matters. The Investigative Committee made its initial visit to the Port on July 10, 2009. During this process of investigation, several interested persons provided comments in opposition to the requested rate increase. Following the investigation, the Investigative Committee submitted its findings to the former Board on September 8, 2009. The FPPA requested the following pilotage rate increases in its application: Draft Charge $12.50 Year 1 $26.60 Year 2 $30.25 Year 3 $35.20 Year 4 $41.20 (min. of 10 feet) Tonnage $.015 (min. of 1667 GT) $.060 $.0685 $.080 $.098 Total Min. Fee $150.00 $386.00 $439.50 $512.00 $608.00 % Increase 157% 13.9% 16.7% 18.7% On December 11, 2009, at a Board public meeting, a number of interested persons provided comments and testimony in opposition to and in support of, the requested change in rates. Captain Wetzel, as well as representatives of both Petitioners, addressed the Board. The Investigative Committee included in its Report findings and comments relating to each of the criteria enumerated in section 310.151(5), Florida Statutes (2009). The Board reviewed the Investigative Committee’s findings and the statutory criteria and approved the requested rate increase for Year 1 only. The increases requested for Years 2, 3 and 4 were denied. The statutory criteria reviewed by both the Investigative Committee and the Board (now Committee) consisted of the following: (5)(a) In determining whether the requested rate change will result in fair, just, and reasonable rates, the board shall give primary consideration to the public interest in promoting and maintaining efficient, reliable, and safe piloting services. The board shall also give consideration to the following factors: The public interest in having qualified pilots available to respond promptly to vessels needing their service. A determination of the average net income of pilots in the port, including the value of all benefits derived from service as a pilot. For the purposes of this subparagraph, "net income of pilots" refers to total pilotage fees collected in the port, minus reasonable operating expenses, divided by the number of licensed and active state pilots within the ports. Reasonable operating expenses of pilots. Pilotage rates in other ports. The amount of time each pilot spends on actual piloting duty and the amount of time spent on other essential support services. The prevailing compensation available to individuals in other maritime services of comparable professional skill and standing as that sought in pilots, it being recognized that in order to attract to the profession of piloting, and to hold the best and most qualified individuals as pilots, the overall compensation accorded pilots should be equal to or greater than that available to such individuals in comparable maritime employment. The impact rate change may have in individual pilot compensation and whether such change will lead to a shortage of licensed state pilots, certificated deputy pilots, or qualified pilot applicants. Projected changes in vessel traffic. Cost of retirement and medical plans. Physical risks inherent in piloting. Special characteristics, dangers, and risks of the particular port. Any other factors the board deems relevant in determining a just and reasonable rate. The board may take into consideration the consumer price index or any other comparable economic indicator when fixing rates of pilotage; however, because the consumer price index or such other comparable economic indicator is primarily related to net income rather than rates, the board shall not use it as the sole factor in fixing rates of pilotage. § 310.151(5), Fla. Stat. On March 31, 2010, the Board issued a Notice of Intent to approve in part and deny in part the application by FPPA to increase the pilotage rates at the Port. In its decision, the Board determined findings of fact with respect to each of the criteria listed in section 310.151(5), Florida Statutes. In granting the FPPA’s requested rate increase for the first year the Board approved the following charges at the Port, effective May 1, 2010: A draft charge of $26.60 per draft foot, measured up to the next 1/10th foot, with a minimum charge for ten (10) feet; i.e., $266.00; A tonnage charge of $.0600 per Gross Registered Ton (GRT) with a minimum charge for 2000 GRT, i.e., $120.00; Docking/undocking fees are eliminated; Shifting rates are increased as follows: Same Slip - $250.00 Different Slip - $386.00 A towed barge charge of .0300 per GRT with no minimum charge. Pursuant to section 310.151(5)(a), the Committee “shall give primary consideration to the public interest in promoting and maintaining efficient, reliable, and safe piloting services” when dealing with a requested pilotage rate change. However, the Board is also required to consider additional specific factors in determining whether to approve or deny a requested rate change. Statutory Pilotage Rate Review Criteria The public interest in having qualified pilots available to respond promptly to vessels needing their service. (section 310.151(5)(b)1, Florida Statutes) In its Notice of Intent, the Board accepted the findings of the Investigative Committee as reflected on page C-1 of the Investigative Committee Report. Among other things, the Investigative Committee observed with respect to this criterion: The pilots are essential to the safe movement of vessels within the pilotage waters of the State. In addition to their navigation and supervisory skills, they must be knowledgeable of local weather, hazards, silting, speed and direction of currents, and timing and direction of tidal movements. They provide development of safety and operational guidelines for the port operation and participate in the process of port and professional regulations. Petitioners assert that this record does not support a finding that the use of a state-licensed pilot at the Port is "essential" to safety at the port. Petitioners argue that the captains of ACL's three small vessels have more experience entering and exiting the Port than does Captain Wetzel, and that the use of a state-licensed pilot, although mandated by law, does not increase safety for ACL's vessels, the Port, or the public at large. Petitioner's contention in this regard is rejected. As noted above, harbor pilots must not only possess excellent navigational skills, they must also be knowledgeable of a host of constantly-changing variables that affect the safe transit of vessels within their home port. Moreover, even if the current captains of ACL's three vessels have more experience entering and exiting the Port than does Captain Wetzel, there is no assurance that those same captains will continue in the employ of ACL in the future. The record of the hearing held before DOAH does not contain any evidence to form a basis for findings of fact different from, or in addition to, the facts relied on by the Board in its Notice of Intent with respect to this criterion. A determination of the average net income of pilots in the port, including the value of all benefits derived from service as a pilot. For the purposes of this subparagraph, “net income of pilots” refers to total pilotage fees collected in the port, minus reasonable operating expenses, divided by the number of licensed and active state pilots within the ports. (section 310.151(5)(b)2, Florida Statutes) There are approximately 1,200 state-licensed harbor pilots in the United States. The average compensation for a state-licensed pilot nationally is about $400,000.00 per year. However, state regulatory boards do not set pilot compensation, they set pilotage rates. Thus, a pilot’s compensation depends upon how much revenue is generated by the vessel traffic in that port, net of operating expenses. The pilot in a small port like Ft. Pierce would not be expected to make the same amount as a pilot in a larger port, such as Miami or Tampa. In these larger ports, large draft and tonnage vessels generate higher pilotage fees and this revenue supplements the cost of bringing in smaller vessels. In Ft. Pierce, that is not possible because of the physical limitations of the Port, which will not accommodate large vessels. Higher minimum rates therefore have to be set in Ft. Pierce because of the small size of the vessels, and to compensate a Palm Beach pilot (cross-licensed for Ft. Pierce) for making the two-hour plus drive to Ft. Pierce to handle a vessel if the Ft. Pierce pilot is unavailable for some reason. In its Notice of Intent, the Board accepted the findings of the Investigative Committee, as reflected on page C-2 of the Investigative Committee Report, as corrected at the public hearing, which set the pilot’s net income for years 2007 and 2008 at $112,800.00 and $92,700.00 respectively. In the "Analysis and Decision" section of the Notice of Intent, the Board also stated: Further, the pilots are charged with maintaining or securing adequate pilot boats, office facilities and equipment, and other equipment and support services necessary for a modern, dependable piloting operation. Although the Pilot currently has an arrangement with the Port’s largest user regarding the use of a converted crew boat, the evidence presented to the Board shows that in some aspects this assignment has been less than satisfactory. The Board opines that an increase in pilotage rates sufficient to permit the Pilot to procure an adequate pilot boat and/or secure such services is warranted. (Notice of Intent, p. 10, 11) Compared to the typical piloting operation in which the pilots in a port provide their own pilot boat to ferry them to and from transiting ships, the Investigative Committee determined that Captain Wetzel’s operating expenses were very low, since ACL had been providing the pilot boat in Ft. Pierce. In its Notice of Intent, the Board approved the first year schedule of rate increases only, specifically noting that the increase was intended in part to address the unsatisfactory pilot boat arrangement between FPPA and ACL: Based upon these findings, the Board determines that the proposed three-year schedule of rate increases sought by the Pilot should not be granted in its entirety at this time. The Board finds that a more modest increase to account for the progressively higher operating costs, inflation, and to permit the Pilot to obtain or secure pilot boat services, will provide fair, just and reasonable rates, and will continue to ensure that sufficient back-up pilots will be available to serve Fort Pierce. Accordingly, the Board approves the requested first-year schedule of increase only. (Notice of Intent, p. 12) The FPPA application projected the pilot boat as an expense of $325,000.00, with annual depreciation of $32,500.00. After the issuance of the Board’s decision in March 2010, granting only the first year of the FPPA’s requested rate increase, circumstances dictated that the FPPA purchase a less expensive pilot boat than the one anticipated in the FPPA rate application.2/ Specifically, when Captain Wetzel began to look for a suitable pilot boat, he was significantly hindered by the pending challenge to the Board’s decision. Pursuant to section 310.151(4)(b), the difference between the old rate and the new rate for each vessel movement was being deposited into an escrow account pending resolution of the Petitioners’ challenge, so the increased cash flow could not be relied upon by a lender to secure the loan necessary to obtain the desired $325,000.00 boat. Captain Wetzel and the Petitioners discussed the possibility of continuing to use the Kacey Lynn (owned by I.R.T) as a pilot boat, but negotiations were unsuccessful. Captain Wetzel then had to obtain his own pilot boat and settle on getting a much less expensive one that will not be as durable or long-lived as necessary. Ultimately, FPPA purchased a temporary pilot boat from Ameracat for about $92,000.00 and it was delivered to Captain Wetzel in mid-May 2010. As noted, the evidence established that the type of pilot boat purchased by Captain Wetzel will have a shorter lifespan than a typical pilot boat, because it will not be able to withstand the banging and pounding that occurs when a pilot boat comes alongside a commercial vessel. In order to purchase the Ameracat pilot boat, Captain Wetzel had to withdraw money from his retirement account so he could pay cash for the boat. Petitioners do not take issue with the Board’s decision that an increase in pilotage rates in Ft. Pierce is warranted so that Captain Wetzel can procure an adequate pilot boat. However, they contend that Captain Wetzel’s decision to purchase a pilot boat that cost significantly less than the one contemplated in the Application results in undue income to Captain Wetzel, which should result in the rates being decreased to reflect reduced expenses, including the boat’s purchase price, maintenance costs and interest expense. As will be discussed in greater detail infra, FPPA’s projected costs as set forth in the Application were accurate at the time submitted. The evidence of record does not support a finding that Captain Wetzel intended to mislead the Board in the projected cost of $325,000.00 for a pilot boat, or that he does not intend to purchase a more durable replacement once the escrowed funds from the approved rate increase are released. Rather, given the circumstances of the administrative challenge to the rate increase, Captain Wetzel acted reasonably and of necessity in purchasing a less expensive, temporary pilot boat. Petitioners' contention that Captain Wetzel’s purchase of a pilot boat costing less than the one projected in his rate application will result in undue income to Captain Wetzel (justifying elimination or reduction in the approved rates) is not supported by the greater weight of evidence in this record, and is rejected. The record of the hearing held before DOAH does not contain evidence sufficient to form a basis for findings of fact different from, or in addition to, the facts relied on by the Board in its Notice of Intent with respect to this criterion, except as specifically set forth in the preceding paragraphs. Reasonable Operating Expenses of Pilots (section 310.151(5)(b)3, Florida Statutes) In its Notice of Intent, the Board accepted the findings of the Investigative Committee shown on pages C-2 and C-3 of the Report. The record of the hearing held before DOAH does not contain evidence sufficient to form a basis for findings of fact different from, or in addition to, the facts relied on by the Board in its decision with respect to this criterion, except as specifically set forth in the following paragraphs. Prior to the rate increase under challenge in this proceeding, the pilotage rates in effect at the Port were unchanged since their initial adoption in 1980 -– a minimum draft and tonnage charge of $150.00 plus a docking/undocking fee of $60.00, for a total minimum pilotage fee of $210.00. In late 2007, ACL stopped having the pilot perform docking and undocking of ACL’s vessels and discontinued payment of the corresponding $60.00 fee to the pilot, reducing the effective minimum pilotage fee for ACL and most other vessels to $150.00. A rate increase application in 2003 filed by the previous Ft. Pierce pilot was withdrawn, based upon an informal, unwritten agreement that Petitioners would provide an old crew boat formerly used on the Great Lakes (the Kacey Lynn) to ferry the pilot to and from vessels at no cost, dropping the $75.00 fee previously charged to the pilot for each use of the crew boat. At that time, the Port was primarily being served by cross-licensed pilots from other ports, as the permanent pilot in Ft. Pierce was injured and unable to continue working. In light of the circumstances, the cross-licensed pilots were not eager to invest in a pilot boat and other infrastructure, so use of the Kacey Lynn, while not ideally suited for safely transferring the pilot to or from a transiting ship, was a useful accommodation while a new permanent pilot was sought for Ft. Pierce. For non-ACL vessels, IRT billed the owners of some of those vessels from $75.00 up to $150.00 for the use of the Kacey Lynn to ferry the pilot to or from a ship. In the only other Florida port in which the pilots do not provide their own pilot boats, Pensacola, the pilot is ferried to and from transiting ships by a tug company that charges $400.00 per trip. As set forth in its application, FPPA’s projected pilot boat cost of $325,000.00 with $32,500.00 per year depreciation is reasonable, especially when compared to the costs of pilot boats serving other ports. Credible testimony established that a pilot boat in a major port would cost $1.2 million to $2 million, with annual maintenance costs typically at 5% of the purchase price. The pilot association in Jacksonville, Florida, recently spent $1.2 million on a pilot boat, while pilots in Miami purchased a pilot boat several years ago for approximately $600,000.00. More recently, the Miami pilots association rebuilt two of their pilot boats at a cost of approximately $350,000.00. In comparison to the cost of pilot boats in other ports, FPPA’s projected operating costs as set forth in its application are relatively conservative. As noted above, Captain Wetzel's purchase of a temporary pilot boat (with correspondingly lower operating expenses) for use during the pendency of this administrative challenge does not render the projected operating expenses in the application unreasonable. Pilotage Rates in Other Ports (section 310.151(5)(b)4, Florida Statutes In the Notice of Intent, the Board accepted the findings of the Investigative Committee as reflected on pages C- 4 through C-7 of the Investigative Committee Report. The record of the hearing held before DOAH does not contain evidence sufficient to form a basis for findings of fact different from, or in addition to, the facts relied on by the Board in its Notice of Intent with respect to this criterion, except as specifically set forth in the following paragraphs. Petitioners assert that Table 4 on page C-6 of the Investigative Committee Report understates the FPPA's revenue per handle hour by overstating the FPPA's average "handle time." "Handle time" is generally defined as the time "that the pilot takes the conn to the time he relinquishes it", i.e., the time that the pilot is actually directing the guidance of the navigation of a vessel. According to Petitioners, the average handle time for pilots operating in the Port is closer to 30 minutes per handle than the 1.5 hours per handle used by the Investigative Committee. When a handle time of 30 minutes per handle is applied, Petitioners argue, the FPPA is currently earning $370.00 per handle hour, rather than the $123.00 per handle hour shown in the Investigative Committee Report.3/ There is evidence in this record that until recently, there has not been a statewide standard for measuring handle times. Although the Board of the Florida State Pilots Association recently adopted a definition, the data appearing in Table 4 of the Investigative Committee Report relies upon older historical data (2007 and 2008), which in some cases may be outdated due to the change in the size of ships using various ports.4/ As such, it would be inappropriate to compare the Ft. Pierce revenue per handle hour using a handle time of 30 minutes without also updating the handle times of the other ports used in the comparison. Approval of the Year 1 rate increase would not create a competitive disadvantage at the Port. The pilotage fee is a very small and relatively insignificant factor in the overall decision on whether to bring a ship into a particular port. In light of the considerable operating costs of a commercial vessel, the $175.00 difference between the new minimum pilotage fee in Ft. Pierce and the lower minimum pilotage fee in Palm Beach (the closest competing port) would not be significant enough to warrant shifting a subject vessel from Ft. Pierce to Palm Beach. The amount of time each pilot spends on actual piloting duty and the amount of time spent on other essential support services. (section 310.151(5)(b)5, Florida Statutes In the Notice of Intent the Board accepted the findings of the Investigative Committee as reflected on pages C7 and C8 of the Investigative Committee Report. The record of the hearing held before DOAH does not contain any evidence to form a basis for findings of fact different from, or as a supplement to, the facts relied on by the Board in its decision with respect to this criterion, except as specifically set forth in the following paragraphs. Time spent on actual piloting duty includes handle time, transit time to and from the vessel, and administrative time related to that handle. Time spent on other essential support services generally involve matters pertaining to the port in question, e.g., dealing with the Coast Guard on port security or safety issues, dealing with the Army Corp of Engineers regarding the ship channel, etc. In its Report, the Investigative Committee considered "handle time' to be the time the pilot is actually engaged in traveling to a ship, piloting the ship, and returning to home port, i.e., dock to dock. The Investigative Committee did not attempt to verify the historical data regarding handle time but did utilize a shorter figure of 1.5 hours per handle.5/ No compelling evidence was presented that indicates that this 1.5 hour handle time figure was grossly incorrect. While ACL operates a “liner service” with a published schedule that its ships adhere to most of the time, actual arrival and departure times for ACL ships frequently vary from this schedule. Moreover, the pilot must be available to respond to vessels requiring his assistance 24-hours a day, seven days a week. Although the Petitioners argue that actual handle time might make a part-time job for the Ft. Pierce pilot, it does not matter if it is an hour or two hours, it is still a huge time commitment throughout each week to be available and on call to serve the needs of the port. The Investigative Committee also observed: The schedule varies for each day of the week. On Mondays, Wednesdays and Fridays he must “mobilize” early in the mornings to meet vessels arriving at 7:00 A.M. and then re-mobilize later in the afternoon to handle the 5:00 P.M. departures. Consequently, the two-step mobilizations increase his daily time requirements by an amount greater than the average handle times. The schedule also requires additional standby time between some of the back-to-back handles. (Investigative Committee Report, P. C-7) The prevailing compensation available to individuals in other maritime services of comparable professional skill and standing. (section 310.151(5)(b)5, Florida Statutes) In its Notice of Intent, the Board accepted the findings of the Investigative Committee, reflected on page C-8 of the Investigative Committee Report, supplemented as follows: As was discussed in the Port Everglades Order, supra, the Board accepts the proposition that the pre-pilot career path is the same for persons who remain as senior bridge officers on American-flagged ships and for those who become pilots. As was noted in the Port Everglades Order, however, pilots are not employees but are rather professional consultants and self-employed business persons who take the risks and accept the benefits of such status. In addition, section 310.151(5)(b)6, F.S., sets the wage rate of “comparable professions” as the floor for pilot income – not the ceiling. As was also noted in the Port Everglades and Tampa Orders, the Board has accepted that the wage rate of senior masters on American-flagged ships varies greatly and, thus, the Board can find no specific number to use as the only acceptable “floor” for pilot compensation. The Board, thus, uses the range of masters’ salaries as a range of “floors” on pilots’ income to be applied depending on the amount of vessel traffic at a port, the characteristics of a port, and the need for pilotage services at a port. Thus, a pilot’s berth at the major ports, such as the Port of Tampa Bay, Port Everglades, Miami, Jacksonville or Palm Beach would be considered as akin to the most prestigious, responsible, and highly paid masters’ berths (Master, Mates and Pilots scale – c. $220,000.00 - $230,000.00 per year) while lesser ports, with correspondingly lesser amounts of traffic and need for pilotage services would have a lower “floor” for income. Nonetheless, the Board also finds that the pilotage rates need to be sufficient to ensure that licensed pilots remain willing and financially able to serve the ports of this State. As reflected in the Report of the Investigative Committee, the current Pilot’s schedule has grown to a full-time position, with no backup pilot available. Thus, the Pilot must rely on cross-licensed pilots from Palm Beach for backup, who currently earn substantially more at their home port. Accordingly, the Board finds that the rates must be increased sufficiently to continue to attract cross-licensed pilots to serve as back up at Fort Pierce, and eventually, if traffic warrants, candidates for a deputy pilot position. (Notice of Intent, pages 7, 8) The record of the hearing held before DOAH does not contain evidence sufficient to form a basis for findings of fact different from, or in addition to, the facts relied on by the Board in its Notice of Intent with respect to this criterion, except as specifically set forth in the following paragraphs. While background as a master or mate is useful, a pilot must possess superior close-quarter ship handling skills and the ability to handle a wide variety of vessels. Foreign licensed mariners are not allowed to become a pilot in Florida. There was contradictory evidence on the prevailing annual compensation for masters serving on US-flagged ships of comparable skill and standing to Florida state-licensed pilots, ranging from $143,000.00 - $181,000.00 (inclusive of wages and benefits) to $300,000.00 for union personnel. However, it is significant that these are salaried positions that do not require the employee to invest in infrastructure or training, or to directly participate in the economic risks of the business. Petitioners argue that there are other maritime industry positions, in addition to master of a U.S.-flagged vessel, which are comparable in professional skill and standing as that of a Florida state-licensed pilot. Specifically, Petitioners assert that masters and deck officers of inland vessels and U.S.-flagged integrated tug and barge units (ITBs) require a comparable level of professional skill and standing. Petitioners' witness on this issue opined that the master of an "upper end" inland vessel (e.g., jumbo barge) would make a salary ranging from $116,000.00 to $131,000.00, while a deck officer would make less than $100,000.00. Similarly, the annual salary for the master of a "premier" ITB would range from $106,000.00 to $132,000.00, while senior mates would have total compensation of less than $100,000.00. Generally, pilots receive about 50% more in total compensation than masters on US-flagged ships. This disparity is necessary in order to motivate the most desirable professional mariners (a master or chief mate with 10-12 years of experience) to leave their current maritime employment, including giving up valuable pension benefits, to take on the risks of self-employment as a pilot. This career change entails significant physical risks, civil and criminal liability risks in the event of accidents, investment in infrastructure, management of a business, etc. While Petitioner may be correct that masters and deck officers in other maritime industries are generally compensated less than state-licensed pilots, those employees bear none of the risks of self-employment. The pool of professional U.S. mariners qualified to move into the pilot career path is relatively small -– a little over 2,000, and ports across the U.S. compete against each other to attract the best individuals to piloting. Indeed, ports within Florida compete with each other for the best qualified candidates. While large Florida ports historically would have had 20-30 applicants for a pilot opening, the number of applicants for even large ports like Miami and Jacksonville has decreased in the last 4-5 years. Most recently there were only 11 mariners testing for two openings at Jacksonville and eight mariners testing for three openings in Miami. The pilot in a small port like Ft. Pierce would not be expected to receive the same compensation as the master of a large container ship (or a pilot in a large Florida port like Tampa or Miami), but the compensation must still be high enough to attract and retain a qualified pilot and to pay for cross- licensed pilots as back-up. Pilots in the port of Palm Beach, where each of the five pilots recently worked about 600 handles per year (similar to the number of pilot handles in Ft. Pierce), netted annual income of approximately $150,000.00. Even in a best case scenario, Captain Wetzel’s net income would only match those of Palm Beach pilots, and it is more likely that, due to increased expenses, it will still fall below that level even with the approved rate increase. The impact rate change may have in individual pilot compensation and whether such change will lead to a shortage of licensed state pilots, certificated deputy pilots, or qualified pilot applicants. (section 310.151(5)(b)7, Florida Statutes) In the Notice of Intent, the Board accepted the findings of the Investigative Committee as reflected on page C-9 of the Investigative Committee Report. The record of the hearing held before DOAH does not contain any evidence to form a basis for findings of fact different from, or in addition to, the facts relied on by the Board in its Notice of Intent with respect to this criterion. At the hearing before the former Board, Petitioners disputed the need for any pilotage rate increase to enable the FPPA to purchase and operate its own pilot boat. As of the time of the administrative hearing, the pilot had already purchased a temporary pilot boat, and Petitioners assert that the increase approved by the former Board should be reduced to cover the expenses relating to the pilot boat actually purchased, and operating such boat, but not provide for an increase in net revenue (compensation) to the pilot. For the reasons stated in paragraphs 34-40 above, the Petitioners' contention in this regard is rejected as not supported by the greater weight of the evidence. In addition, the undersigned notes that the operating expense projections contained in the Application were merely that. . . projections. Moreover, the expense projections, including the $325,000.00 expenditure for a pilot boat, were expressly predicated upon approval of the rate increases requested in the application.6/ Although an applicant must certify that the statements contained in a pilotage rate change application are true and correct when made, expense projections set forth in an application are not binding on the applicant, and the Board (now Committee) has no authority to compel the expenditure of specific funds identified in an application. Given the Board's denial of the requested rate increases (with the exception of Year 1) it was not unreasonable for Captain Wetzel to refrain from making the specific expenditures projected in the application, particularly for a $325,000.00 pilot boat. As noted above, the projections when made were reasonable, but changed circumstances necessitated adjustment of those expenditures. In the Notice of Intent, the Board did not "earmark" a specific portion of the revenue increase for the purchase of a pilot boat, but rather recognized the need for "a modest increase to account for the progressively higher operating costs, inflation, and to permit the Pilot to obtain or secure pilot boat services . . ." (Notice of Intent, p. 12) Projected changes in vessel traffic. (section 310.151(5)(b)8, Florida Statutes) Cost of retirement and medical plans. (section 310.151(5)(b)9, Florida Statutes) Physical risks inherent in piloting. (section 310.151(5)(b)10, Florida Statutes) Special characteristics, dangers, and risks of the particular port. (section 310.151(5)(b)11, Florida Statutes) Any other factors the board deems relevant in determining a just and reasonable rate. (section 310.151(5)(b)12, Florida Statutes) The board may take into consideration the consumer price index or any other comparable economic indicator when fixing rates of pilotage; however, because the consumer price index or such other comparable economic indicator is primarily related to net income rather than rates, the board shall not use it as the sole factor in fixing rates of pilotage. (section 310.151(5)(c), Florida Statutes) The record of the hearing held before DOAH does not contain any evidence sufficient to form a basis for findings of fact different from, or in addition to, the facts relied on by the Board in its Notice of Intent with respect to the criteria set forth in 310.151(5)(b)8-12, and 310.151(5)(c), above. Taken in its entirety, the evidence presented by the Petitioners, Respondent and Intervenors in this proceeding with respect to the statutory factors set forth in section 310.151(5)(b) and (c), yielded findings of fact in addition to those found by the Board in its Notice of Intent. There was not sufficient credible and persuasive evidence presented by the Petitioners to support any findings of fact materially contrary to the findings of the Board in its Notice of Intent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Pilotage Rate Review Committee consider the additional facts established by the evidence presented at the hearing before the Division of Administrative Hearings in determining, in accordance with its interpretation of its statutory mandate, its expertise, and the appropriate policy considerations, whether the decision on the PFFA Pilotage Rate Increase Application in the Port of Ft. Pierce, filed March 30, 2009, will result in fair, just, and reasonable pilotage rates at the Port of Ft. Pierce. DONE AND ENTERED this 31st day of January, 2012, in Tallahassee, Leon County, Florida. S W. DAVID WATKINS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of January, 2012.
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
The Issue The issues to be determined in this proceeding are whether Respondent Prospect Marathon Coquina, LLC (PMC), is entitled to an environmental resource permit for the proposed expansion of a docking facility, and whether PMC is entitled to a modified sovereignty submerged land lease for the proposed project.
Findings Of Fact The Parties With the exception of Elizabeth Schuh, all Petitioners live in the Driftwood neighborhood, which is located across Big Bayou from the proposed project. All Petitioners use Big Bayou for various recreational purposes, including swimming and boating. Several Petitioners also use Big Bayou for nature observation. Petitioner Peter Pav owns waterfront property on Big Bayou. Respondents do not dispute Petitioners’ standing. The Department is charged with the responsibility to regulate construction activities in waters of the state. The Department has also been delegated authority from the Trustees of the Internal Improvement Trust Fund (Trustees) to process applications for submerged land leases for structures and activities that will preempt the use of sovereign submerged lands. PMC is a Florida limited liability corporation that owns 2,786 linear feet of upland shoreline contiguous to the state-owned submerged lands of Big Bayou. PMC is the developer of the multi-family residential condominium development on Coquina Key that the proposed project would serve, known as Coquina Key North. The Affected Waterbody Big Bayou is near the southern end of the St. Petersburg peninsula. The mouth of the bayou opens to Tampa Bay. Big Bayou is part of the Pinellas County Aquatic Preserve, which includes most of the coastal waters of Pinellas County. Like all aquatic preserves in Florida, the Pinellas County Aquatic Preserve is also designated as an Outstanding Florida Water.1 Florida Administrative Code Rule 18-20.001 states that the aquatic preserves in Part II of Chapter 258 (which include the Pinellas County Aquatic Preserve) “were established for the purpose of being preserved in an essentially natural or existing condition so that their aesthetic, biological and scientific values may endure for the enjoyment of future generations.” The term “essentially natural condition” is defined as “those functions which support the continued existence or encourage the restoration of the diverse population of indigenous life forms and habitats to the extent they existed prior to the significant development adjacent to and within the preserve.” Fla. Admin. Code R. 18-20.003(24). In the 1960s and 1970s, development activities throughout Tampa Bay caused the loss of about 80 percent of its seagrasses and significant degradation of water quality. The seagrasses and water quality in Big Bayou were also adversely affected by filling and other development activities, including the filling and bulkheading of Coquina Key where the proposed project would be located. In more recent years, the water quality in Big Bayou has improved. Although trash sometimes washes up on the shoreline and one can sometimes see a sheen on the water surface caused by gasoline or oil, the water quality in Big Bayou is generally good, with high dissolved oxygen and low nutrient concentrations. The seagrasses have also recovered to a large extent. A variety of seagrasses grow in Big Bayou, including shoal grass, manatee grass, turtle grass, widgeon grass, and a relatively uncommon species, palm grass. Seagrasses are the foundation for the marine food web. They also serve as a nursery for small fish and invertebrates, stabilize sediment, and improve water quality. Manatees regularly enter and use Big Bayou because it provides good habitat. The manatees in this area are part of the Southwest Florida manatee subpopulation. Based on data collected through 2001, that subpopulation is either stable, or possibly declining. Pinellas County is not one of the 13 Florida counties that were required to develop and implement manatee protection plans. There are two areas of Pinellas County that the Florida Fish and Wildlife Conservation Commission (FWCC) has identified as needing additional manatee protection measures, but Big Bayou is not one of them. The Proposed Project The proposed authorizations would allow PMC to expand an existing multi-family, residential docking facility on the north end of Coquina Key, along an existing seawall and adjacent to the Coquina Key North condominiums that PMC converted from a former apartment complex. The proposed project would add 60 boats slips to the existing 30 boat slips at the project site. The new slips could accommodate boats up to 25 feet in length. PMC would restrict use of the boat slips to Coquina Key North condominium owners. In converting the former apartment complex to condominiums, PMC retained ownership of a strip of land immediately upland of the submerged lands on which the proposed project would be constructed. The ground for Petitioners’ Motion for Summary Order is that the ownership retained by PMS, because it does not include ownership of the upland residences, does not entitle PMS to obtain a submerged land lease for the proposed project. That legal argument is addressed in the Conclusions of Law. Direct Impacts An earlier plan for the proposed project was to place 30 new boat slips on the north side of the existing docks and 30 new slips on the south side. However, to avoid direct impacts to seagrasses, the plan was modified to avoid an area of seagrasses on the south side. The proposed project now would add 38 boat slips on the north side and 22 slips on the south side. The over-water dock structures would be placed waterward of the seagrasses that currently grow along the seawall. The seagrasses adjacent to the proposed project are not likely to be harmed by wave action or turbulence from boating activity around and in the slips because of the distance between the slips and the seagrasses. The proposed authorizations include specific conditions that prohibit numerous activities that could cause adverse water quality impacts at the proposed project site, such as the discharge of trash, human or animal waste, or fuel; fish cleaning stations; boat repair facilities; fueling facilities; hull cleaning, painting or other external boat maintenance; and boat maintenance or repair activities requiring removal of a boat from the water, or removal of major portions of the boat for purposes of routine repair or maintenance on site, except where removal is necessitated by emergency conditions. No liveaboards would be allowed at the proposed project. PMC intends to incorporate these conditions into its agreements with the condominium owners who use the boat slips. Because Big Bayou is an Outstanding Florida Water, PMC is required to provide reasonable assurances that the project will not result in the lowering of existing ambient water quality. Florida Administrative Code Rule 62-4.242(2)(c) defines “existing ambient water quality” as the better water quality of either what existed on the date that the water body was designated an Outstanding Florida Water or what existed in the year prior to the permit application. Because the current water quality is better than it was in 1972 when the Pinellas County Aquatic Preserve was created, the current water quality is the standard to apply in this case. Although some incidental non-compliance with the conditions of the proposed authorizations could occur, such incidental non-compliance would not likely result in significant2 degradation of the existing ambient water quality in Big Bayou. Secondary Impacts – In General Petitioners’ primary concerns with the proposed project are with the secondary impacts that would be caused by increased boating activity in Big Bayou. Petitioners contend that the additional boats using the 60 new boat slips would adversely affect water quality, seagrasses, manatees, and other natural resources. Petitioners also assert that the additional boating activity would cause erosion of the north shoreline of Big Bayou and impair Petitioners’ recreational uses of the bayou. It is reasonable to assume that there would be more boat trips on Big Bayou if the proposed project were built than if it were not built. However, it is impossible to say how many more boat trips would be generated by the proposed project. It cannot be assumed that because there would be 60 more boat slips, there would be 60 more boats on Big Bayou each day, each week, or even each month. Moreover, the number of boats on Big Bayou on any given day fluctuates because it depends not only on the whims of the boat owners who have boat slips in Big Bayou, but also on the whims of the boat owners who anchor their boats in the open waters of Big Bayou, launch their boats from the public boat ramps on Big Bayou, or enter Big Bayou from Tampa Bay or more distant waters. Secondary Impacts - Erosion Petitioners did not present competent evidence to support their claim that the proposed project would cause erosion of the north shoreline of Big Bayou. Secondary Impacts – Water Quality The Department has adopted by reference the Southwest Florida Water Management District’s Basis for Review for Environmental Resource Permits (Basis of Review) to apply to applications for environmental resource permits for projects over which the Department retains permitting authority. For docking facilities, Section 3.2.4.3 of the Basis of Review requires the applicant to provide hydrographic information to demonstrate that the “flushing time” (the time required to reduce the concentration of a pollutant) is sufficiently short to prevent the accumulation of any pollutants to the point of violating water quality standards. PMC’s hydrographic analyses indicate that Big Bayou is well-flushed. The water of the bayou moves a half mile to a mile during a normal tide. The fact that the current water quality in Big Bayou is good indicates that contamination associated with the current level of boating activity in the bayou is not accumulating. Incidental discharges of contaminants from boats using the proposed project would likely be rapidly dispersed and diluted. Petitioners argued that PMC’s hydrographic analyses did not address every part of Big Bayou. The rule requires hydrographic characterization of “the project site and surrounding waters.” As the challengers, Petitioners needed to rebut PMC’s prima facie case regarding the hydrographic characteristics in the bayou with competent evidence showing PMC’s findings were inaccurate, or show that the scope of PMC’s hydrographic analyses did not conform with any reasonable interpretation of the applicable rule. Petitioners presented no such evidence or showing. Some additional, incidental contamination can be expected to occur as a result of the operation of the boats that would use the proposed project. However, PMC provided reasonable assurance that the addition of these contaminants would not significantly degrade the existing ambient water quality of Big Bayou nor cause any other applicable water quality standard to be violated. Secondary Impacts - Seagrasses The maximum water depth at which most seagrasses can grow is between five and six feet because of their need for light. When boaters attempt to cross shallow areas where seagrasses are located, they sometimes damage the grasses with the boat propellers, leaving areas of torn grass and “prop scars,” furrows in the bottom. Even when boat propellers do not touch the bottom, but come close, they can disturb the loose sediments and cause turbidity. It can be especially harmful when boats run aground, because the boater will sometimes grind away at the seagrasses in an attempt to move the boat to deeper water, causing holes 10 or 12 feet in diameter. Different seagrasses recover from such damage at different rates. In some cases, it can take years for a prop scar to become re-vegetated. A 1995 study of prop scars by the Florida Marine Research Institute found that the Tampa Bay area is one of four areas of Florida with the greatest acreage of moderate and severe scarring. There are prop scars visible in the bottom of Big Bayou and Petitioners testified about seeing boats run aground in Big Bayou. The main navigation channel on the north side of Big Bayou ranges in depth from slightly less than 8 feet to over 17 feet. There are channel markers to help boaters find and stay in this channel, but some of the original markers are missing. In addition to the main navigation channel, there is an area along the north side of Coquina Key that is used by the residents living along that shoreline to get to and from Tampa Bay. This second route, which is not marked, is much shallower than the main channel and its use by boaters at low tide is a threat to seagrasses in the area.3 If more boaters in Big Bayou stayed in the main navigational channel, there would be a decreased threat to the seagrasses. However, the evidence shows that boaters often travel out of the main channel, either by inadvertence or to take a shortcut, and cross shallow areas where the seagrasses are located. It was the opinion of David Crewz, a plant ecologist who specializes in seagrasses, that increased boating activity in Big Bayou could decrease the habitat quality of the bayou. He said that one can expect more prop scarring and more turbidity caused by stirring up the bottom sediments. He was most concerned about boats larger than 16 feet in length that do not stay in the marked navigation channel. The 1995 Florida Marine Research Institute study of prop scarring, which Mr. Crewz co-authored, recommended a four- point approach to reduce prop scarring: (1) boater education, (2) channel marking, (3) enforcement, and (4) speed zones. The conditions contained in the proposed authorizations would implement two of the four points recommended by the study. PMC would install informational signs about seagrasses at the proposed project and at Grandview Park so that boaters using the proposed project and boaters using the boat ramp at the park would be less likely to operate their boats in a manner harmful to seagrasses. PMC would replace all missing markers along the main navigation channel. The current distance between some of the channel markers may be causing some boaters to stray from the channel. PMC would mark the location of seagrasses adjacent to the navigation channel. The operation phase of the environmental resource permit would not become effective until the channel markers and seagrass markers have been installed. The proposed educational displays, channel markers, and seagrass markers would probably reduce boat traffic across seagrass areas, but they would not eliminate it. However, because the displays and markers would be viewed by boaters using Big Bayou other than just the 60 boaters who would use the slips at the proposed project, the “net” effect of the proposed project would likely be no significant increase in prop scars or related adverse impacts to seagrasses in Big Bayou due to the proposed project. Therefore, PMC provided reasonable assurance that the proposed project would not result in significant adverse impacts to seagrasses. To go further, however, and contend as PMC does that, even with the addition of 60 boats, the effect of the proposed project would be to significantly reduce the current incidents of prop scarring, boat grounding, and other adverse impacts to seagrasses, is mere speculation without a statistical analysis of boater behavior or other evidence that was not presented in this case. PMC would also limit the use of its boat slips to vessels with a draft that would provide at least a twelve-inch clearance between the vessel’s draft in a motor-down position and the top of submerged resource at mean low tide. This condition appears to been intended to track similar wording used in Florida Administrative Code Rule 18-20.004(5)(b)8., but because the condition leaves unstated the depth of the submerged resources and the water level of Big Bayou at mean low tide, a prospective renter of a boat slip would not know whether his or her boat would comply with the condition. The rule cannot be more specific because it applies to all waterbodies, but the specific condition in the proposed authorizations can and should be more specific to provide for adequate notice and enforcement. PMC provided reasonable assurance that the proposed project would not cause significant adverse impacts to seagrasses. Secondary Impacts – Manatees In Florida, between 25 and 30 percent of the annual manatee deaths are caused by collisions with boats. From 2002 to 2006, in Pinellas County waters, 41 percent of the manatee deaths of a known cause were watercraft-related. That percentage exceeds the state average and corresponds to an average of 3.2 deaths per year caused by boats. However the study area from which these statistics were compiled does not include Big Bayou. Dr. John Reynolds, a marine mammal expert, believes that boat speed is the primary factor in manatee deaths from boat collisions. At higher speeds, boaters and manatees have less time to avoid a collision and the severity of the injury to a manatee is generally greater when the manatee is struck by a boat moving at higher speeds. There are no boat speed zones currently established in Big Bayou. Thirty-three years of data collected by the Florida Fish and Wildlife Conservation Commission (FWCC) indicate that there are no known boat-related manatee deaths within two and a half miles of the project site. There have been two dead manatees discovered in Big Bayou, but their deaths were not attributed to boat collisions. Increasing the number of boats in an area used by manatees increases the potential for boat/manatee collisions. To minimize the potential for boat/manatee collisions, PMC would implement the standard manatee protection measures that apply during the construction of the proposed docks. PMC would also implement and maintain a manatee education program approved by the FWCC, including informational signs regarding manatees at the proposed project. Although reducing speeds by establishing, posting, and enforcing idle speed or slow speed zones in the bayou would probably be the most effective measure for the protection of manatees, PMC cannot be required by the proposed authorizations to control boat speeds because boat speed zones must be established by Pinellas County and the Florida Marine Patrol. The proposed authorizations incorporate the conditions recommended by the FWCC for the protection of manatees. Tom Logan, the former FWCC endangered species coordinator and now a consultant who focuses on endangered species and their habitat, believes that the special conditions included in the proposed authorizations provide adequate protection for manatees. The U.S. Fish and Wildlife Service also concluded that the proposed project is not likely to adversely affect manatees. PMC provided reasonable assurance that the proposed project would not cause significant adverse impacts to manatees. Secondary Impacts – Recreation Petitioners claim that their recreational uses of Big Bayou for fishing, swimming, canoeing, kayaking, and windsurfing would be diminished by the proposed project. However, Big Bayou is large enough to accommodate the additional boat trips associated with the proposed project and Petitioners’ recreational uses. A public water body like Big Bayou must be shared by persons living along or near its shores with all other citizens of Florida. Although some Petitioners would prefer that the bayou had the feel of a more remote or wild place, the Pinellas County Aquatic Preserve is recognized to have a “highly developed, urban nature.” Fla. Admin. Code R. 18-20.019. It already has the attributes of an urban preserve. PMC provided reasonable assurance that the proposed project would not prevent or significantly impair the existing recreational uses of Big Bayou. Cumulative Impacts Florida Administrative Code Rule 18-20.006 and Section 3.2.8 of the Basis of Review require that cumulative impacts be evaluated in determining whether to issue, respectively, a submerged lands lease or an environmental resource permit. PMC and the Department state in their Proposed Recommended Orders that the consideration of cumulative impacts is limited to projects that are existing or under construction, but Florida Administrative Code Rule 18.006(1) also requires, for a sovereignty submerged lands lease, consideration of “the number and extent of similar human actions within the preserve which have previously affected or are likely to affect the preserve.” Because the principal source of potential adverse impacts associated with the proposed project is boating activity, the existing docking facility at Coquina Key North, the other docks in Big Bayou, and the boat ramp at Grandview Park are existing structures generating boating activity that must be taken into account in the cumulative impacts analysis. Although the proposed project, with the conditions on its construction and operation, would, alone, have no significant adverse impact on water quality, seagrasses, manatees, or recreational uses in Big Bayou, the cumulative impacts to Big Bayou from all similar activities in the preserve have created significant (material) adverse impacts to Big Bayou in the form of trash, water contamination, damage to seagrasses, and prop scars. Public Interest Criteria Section 258.42(1)(a), Florida Statutes, requires that a lease of sovereignty submerged lands within an aquatic preserve by the Trustees must be “in the public interest.” Florida Administrative Code Rule 18-21.003(46) defines “public interest” in this context as “demonstrable environmental, social, and economic benefits which would accrue to the public at large as a result of a proposed action, and which would clearly exceed all demonstrable environmental, social, and economic costs of the proposed action.” Florida Administrative Code 18-20.004(2) sets forth the public interest criteria to be considered and balanced by the Trustees in determining whether to issue a submerged land lease or other authorization to use sovereignty submerged lands. The Rule identifies public boat ramps and “marking navigation channels to avoid disruption of shallow water habitats” as examples of public benefits. These benefits, however, must “clearly exceed” the “costs,” such as degraded water quality, degraded natural habitat and function, harm to endangered or threatened species and habitat, and adverse cumulative impacts. For issuance of the environmental resource permit, a determination is required that the proposed project is “clearly in the public interest,” because Big Bayou is part of an Outstanding Florida Water. Fla. Admin Code R. 62-4.242(2). This determination requires the consideration and balancing of a number of criteria set forth in Section 3.2.3 of the Basis of Review: Whether the activity will adversely affect the public health, safety, or welfare or the property of others; Whether the activity will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats; Whether the activity will adversely affect navigation or the flow of water or cause harmful erosion or shoaling; Whether the activity will adversely affect the fishing or recreational values or marine productivity in the vicinity of the activity; Whether the activity will be of a temporary or permanent nature; Whether the activity will adversely affect or will enhance significant historical and archaeological resources under the provisions of s. 267.061; and The current condition and relative value of functions being performed by areas affected by the proposed activity.4 As explained in the Conclusions of Law, the “clearly in the public interest” test does not require the applicant to demonstrate that the intended activity would have a net public benefit. The counter-intuitive result is that, to meet the “in the public interest” test for the sovereignty submerged land lease, PMC must demonstrate a net public benefit, but to meet the “clearly in the public interest test” for the environmental resource permit, PMC does not have to show a net public benefit. The measures that PMC has agreed to undertake to meet the public interest criteria for the proposed authorizations are as follows: Contribute $300,000 to the construction of a second boat ramp at the current Sutherland Bayou Boat Ramp project in Palm Harbor; Install and maintain navigational aides marking the main channel in the bayou; Install markers indicating the location of seagrass beds; Install and maintain an informational display at the public boat ramp in Grandview Park, relating to the protection of seagrasses and natural resources within the bayou; and Install and maintain an aerial map at the Grandview Park boat ramp depicting the location of the navigation channel and the seagrass beds in the bayou. The $300,000 contribution for the boat ramp was based on a similar contribution ($5,000 per slip) that was made previously by the developer of another docking facility in Pinellas County. The Department had originally suggested that PMC contribute to a spoil island restoration project to satisfy the public interest criterion. However, due to the Trustees’ and/or Department’s concern about the reduction in the number of boat slips available to the general public,5 the Department proposed that PMC contribute $300,000 to Pinellas County’s Sutherland Bayou Boat Ramp project in Palm Harbor. The definition of “mitigation” in Florida Administrative Code Rule 18-20.003(35) states that, “Cash payments shall not be considered mitigation unless payments are specified for use in a previously identified, Department endorsed, environmental or restoration project.” No evidence was presented to show that the Sutherland Bayou Boat Ramp project is an “environmental or restoration project,” and it does not appear to qualify as such. Implicit in the boat ramp contribution proposal is the view that the public interest in providing more recreational boaters with access to Pinellas County waters outweighs the negative impacts to marine resources that are associated with increased boating activity. No evidence was presented, however, to explain or support this view. The strange result here is that PMC would be mitigating for the adverse impacts associated with increasing the boating activity in Big Bayou by helping to increased boating activity in other county waters where seagrass losses have been greater, prop scarring is a bigger problem, and more manatees are being killed by boat collisions.6 Dr. Reynolds stated that the Sutherland Bayou Boat Ramp project in Palm Harbor could be a benefit to Big Bayou if the boat ramp project took boat traffic away from the bayou, but he did not know whether it would. A reasonable inference can be made that, being so far away, the Sutherland Bayou Boat Ramp project is unlikely to add to or subtract from boat traffic in Big Bayou. As found above, the adverse environmental impacts of the proposed project, taking into account the proposed conditions, would be insignificant. However, because the record evidence shows that the Sutherland Bayou Boat Ramp project would put boats into county waters (and aquatic preserve waters) where there has been greater seagrass losses, more prop scarring, and more manatees killed by boat collisions than in Big Bayou, PMC’s $300,000 contribution to the boat ramp project actually increases the secondary impacts and cumulative impacts of PMC’s proposed project and causes it to fail to meet the public interest criteria. Without the $300,000 contribution to the Sutherland Boat Ramp project, PMC would meet the “clearly in the public interest” test for the environmental resource permit because the other mitigation offered by PMC would offset the secondary and cumulative impacts of the proposed project. However, a different result would occur in the case of the sovereignty submerged land lease. Eliminating the $300,000 contribution to the Sutherland Boat Ramp project would result in a situation where the public benefits of the proposed project do not “clearly exceed” the costs of the project and, therefore, PMC would not meet the “in the public interest” test. Although the record in this case is insufficient to demonstrate that PMC’s contribution to the boat ramp project would cause the benefits of the project to clearly exceed its costs, the record evidence is sufficient to support issuance of the lease modification if PMC were able to get the appropriate government authorities to establish a boat speed zone in Big Bayou, or if PMC contributed to the enforcement of boat speed zones in the aquatic preserve. As restated in the Conclusions of Law, whether the proposed mitigation is sufficient to offset the adverse impacts of the proposed project is a determination that rests exclusively with the Trustees and the Department, based on the record evidence.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Department of Environmental Protection enter a final order denying Environmental Resource Permit No. 52-0258984-001 and the modification of Sovereignty Submerged Land Lease No. 520224543. In the event the Trustees determine to issue the submerged land lease, it is recommended that the lease be modified to add a condition that the boat slips shall only be subleased or sold to residents of Coquina Key North condominiums. DONE AND ENTERED this 21st day of March, 2008, in Tallahassee, Leon County, Florida. BRAM D. E. CANTER 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 21st day of March, 2008.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, as well as the parties' stipulations of fact, the following facts are found: At all times pertinent to the charges herein, respondent Harry J. Williams was acting under his State pilot's license number 0000047. The J. LOUIS, which respondent was piloting at the time of the subject incidents, is a foreign registered vessel required to be piloted by a State licensed pilot. Respondent graduated from the Merchant Marine Academy in 1943, and sailed on U.S. merchant ships continuously until 1962. He became a full-time licensed Tampa Bay pilot in 1962, and has never had disciplinary action taken against his license. Over the past three years, respondent has piloted about 300 ships a year, and about 25 percent of those trips have involved the Port Tampa Canal. The respondent had piloted the vessel J. LOUIS approximately ten to fifteen times prior to the incidents occurring on November 6 and 7, 1985. The J. LOUIS is a Liberian registered vessel which is 669 1/2 feet in length, with a beam of 90 feet. She was built in 1961, is single screw, steam turbine and backs to port. On November 6 and 7, 1985, the J. LOUIS had a forward draft of 33 1/2 feet and an aft draft of 33 feet. On November 6, 1985, at 2050 hours, respondent boarded the J. LOUIS off the sea buoy for the purpose of piloting her to the gypsum dock located on the Port Tampa Canal. It was his intent to arrive at the Port Tampa Canal on the high water slack tide which would have occurred between 12:30 and 12:45 a.m. on November 7, 1985. During the evening and morning hours of November 6 and 7, 1985, there were no adverse weather, wind or visibility conditions. Respondent made arrangements for the harbor tugs YVONNE and PALMETTO to assist him on his journey, and those tugs timely arrived toward the west end of G cut, about 1 1/2 miles from the G cut turn into J cut. The harbor tug PALMETTO is 105 feet in length, has a beam of 26 feet (30 feet with the ship docking tires), a 13 foot draft, and 3,300 horsepower. The dimensions of the harbor tug YVONNE were not described, but it had assisted ships the size of the J. LOUIS on prior occasions. Upon meeting the tugs in G cut, respondent ordered the PALMETTO to make up on the center chock of the stern of the J. LOUIS, and the YVONNE was ordered to make up on the port bow. The turn from G cut to J cut is a ninety degree turn from a westerly heading to a northerly heading. The tugs were directed to assist in making the turn. The YVONNE was ordered to come ahead full speed and get out on a ninety degree angle with the port bow. The PALMETTO was directed to push the starboard stern full ahead on a ninety degree angle. A tug is able to provide the greatest amount of assistance to a vessel when it is on a ninety degree angle with the vessel. The maximum vessel speed for a tug to make up at a ninety degree angle, and thereby provide the maximum amount of assistance, is three to four knots. While attempting to make the turn from G cut to J cut in Tampa Bay, the J. LOUIS ran aground at approximately 2355 hours. While it is impossible to determine the vessel's precise speed near the time of grounding, the average speed of the J. LOUIS from its turn from F cut into G cut until its grounding was somewhere between 8.2 and 12 knots. Respondent believed that he was going very slow, some 2 knots or less, when the bow of the J. LOUIS went aground. He felt that his vessel was sluggish coming to the right and that he was not getting full power from the tug YVONNE, perhaps because of mechanical problems. The captains of the YVONNE and the PALMETTO both felt that the speed of the J. LOUIS reduced their ability to get on a ninety degree angle so as to provide maximum assistance during the turn. The Captain of the PALMETTO estimated the speed of the J. LOUIS to be 6 knots when approaching the turn from G cut to K cut. The chief officer of the J. LOUIS felt that the speed of the J. LOUIS was faster than normal under the circumstances. The YVONNE was able to swing out only to a forty- five degree angle due to the speed of the J. LOUIS. The PALMETTO was able to get to a sixty degree angle. At the time of the grounding, and prior thereto, the engine of the YVONNE was working fine. It was only after the YVONNE attempted to unground the J. LOUIS from some eight or nine different positions over a period of several hours that the YVONNE suffered problems with its reduction gear. The reduction gear alarm on the YVONNE came on about 0210 hours. The evidence supports a finding that the cause of the grounding was the inability of the tugs to provide maximum assistance during the turning maneuver due to the excessive speed of the J. LOUIS. As noted above, tugs are increasingly ineffective as a ship's speed exceeds three knots. The speed of the J. LOUIS prevented the tugs from working on a ninety degree angle, thereby reducing their effectiveness in assisting with the turn. The J. LOUIS remained grounded at the west end of G cut for about two and a half hours. After the YVONNE developed a problem with its reduction gear, she was replaced by the more powerful tug TAMPA, which released the J. LOUIS within ten minutes by pushing on her stem. The J. LOUIS apparently sustained no damage as a result of the grounding. The tug TAMPA was christened in October of 1985. She is a twin diesel, 6000 horsepower tug, with twin propellers and ten rudders. The TAMPA is 100 feet in length, with a beam of 32 or 33 feet, a draft of 13 feet, and is considered the most powerful and maneuverable tug on Tampa Bay. Having been freed from the bottom at the west end of G cut at 0230 on November 7, 1985, the J. LOUIS, the TAMPA and the PALMETTO proceeded onward northerly up K cut toward Port Tampa. Although intending to arrive at the Port during the high water slack tide, the grounding delayed the arrival to about the time of maximum ebb tide. However, the predicted ebb tide of .54 knots was not particularly strong. The entrance to the Port Tampa Canal is 250 feet wide, and requires an almost ninety degree turn from K cut. Respondent directed the PALMETTO to push on the starboard stern and directed the TAMPA to position itself on the starboard bow of the J. LOUIS. However, the Captain of the TAMPA represented that since the TAMPA had flanking rudders, it could do just as well backing as pushing. He therefore suggested that the TAMPA be positioned on the port bow, thereby removing the necessity of shifting to that side once the ship got up to the slip. Respondent accepted that suggestion and the TAMPA was positioned on the port bow of the J. LOUIS at about 60 feet aft of the stem with one line. The line was some 10 inches in circumference and, initially, about 50 feet in length between the vessels. As respondent made the approach to the Port Tampa Canal, the J. LOUIS was travelling between four and six knots, again making it difficult for the assisting tugs to work on ninety degree angles. Perhaps to compensate for the anticipated ebb current, respondent's approach into the Canal was much closer to the north bank and its caissons than the normal approach. The tug TAMPA pushed on the port bow of the J. LOUIS until it became very close, as close as 10 feet, to the outer caisson (referred to locally as the "can opener"). Fearful that the TAMPA could be crushed between the J. LOUIS and that caisson, the Captain of the TAMPA ordered his crew to slack the line so that the TAMPA could slide back. The evidence is unclear as to whether respondent was informed that the TAMPA's line had been slacked, but respondent was informed by the TAMPA's Captain that the TAMPA was getting very close to the north bank and did not have much room. The TAMPA's deckhands slacked out approximately 150 feet of line to enable the TAMPA to clear the outermost caisson. This action positioned the TAMPA close to the midship house of the J. LOUIS. After clearing the caisson, the TAMPA crew began retrieving the line. It was impossible to manually retrieve the ten inch line, so the crew used the bow capstan. This was the first time it had been used and the line was new. About 50 feet of the line was retrieved when the TAMPA received an emergency order from the respondent to start backing full astern. The TAMPA began backing full astern. Although the TAMPA deckhands had taken four turns around the capstan drum and put two figure- eights on the H-bitts up front, the line slipped about four or five feet. The TAMPA had to then slow down while another figure-eight was placed on the bitt. The line then being secured, the TAMPA began backing again, but the J. LOUIS struck the Chevron dock. While the dock sustained substantial damage, the vessel J. LOUIS was not damaged as a result of the collision. There is no doubt that the slack in the line between the tug TAMPA and the J. LOUIS rendered the TAMPA less effective to assist in stopping the bow of the J. LOUIS from swinging starboard to the south. However, the evidence demonstrates that the TAMPA slacked the line in order to avoid hitting the caisson or being squashed between the caisson and the J. LOUIS. While there may have been other options available to the TAMPA, slacking the lines to avoid a collision with the caisson was not inappropriate or unreasonable given the close proximity of the caisson at the time that action was taken. At least five experienced crew members on the TAMPA, the PALMETTO and the J. LOUIS, all of whom had entered the Port Tampa Canal on previous occasions, believed that the J. LOUIS, piloted by the respondent, entered the Canal with more speed and closer to the north than is normal. The Master of the J. LOUIS was satisfied with respondent's piloting.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED THAT respondent, Harry J. Williams, be found guilty of negligently piloting the vessel J. LOUIS on November 6 and 7, 1985, so as to cause it to run aground and to strike the Chevron loading facilities, and that, for such offenses, an administrative fine in the amount of $1,000.00 be imposed. Respectfully submitted and entered this 10th day of July, 1987, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of July, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-3935 The proposed findings of fact submitted by the petitioner and the respondent have been fully considered and have been accepted and/or incorporated in this Recommended Order, except as noted below. Petitioner 13. Partially rejected as contrary to the evidence. The tugs were unable to carry out respondent's orders due to the speed of the J. LOUIS. 30. Rejected as contrary to the evidence. Circumstances created by the respondent prevented respondent's orders from being carried out. Respondent 13, third sentence. Rejected as contrary to the evidence. 14 - 16. Rejected as contrary to the evidence. Partially rejected as contrary to the evidence. The tug TAMPA obviously encountered problems. Partially rejected. The greater weight of the evidence supports a finding that the initial entrance into the Canal was at a speed greater than normal. 37. Rejected as contrary to the evidence. 40, second sentence. Rejected. See Finding of Fact 15. 53. Accepted as being Coleman's testimony, but opinion rejected as contrary to the greater weight of the evidence. Rejected as contrary to competent, substantial evidence. Rejected; not supported by competent, substantial evidence. 58. Rejected as contrary to competent, substantial evidence. 60. Rejected as contrary to the greater weight of the evidence. COPIES FURNISHED: David C. Banker, Esquire Shackleford, Farrior, Stallings & Evans, P.A. Post Office Box 3324 Tampa, Florida 33601 Nathaniel G. W. Pieper, Esquire Lau, Lane, Pieper & Asti, P.A. Post Office Box 838 Tampa, Florida 33601 Linda Biedermann, Executive Director Board of Pilot Commissioners Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Van Poole, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Joseph A. Sole, General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 =================================================================
The Issue This case concerns the issue of whether the Respondents, B. W. and Mildred Peake, should he granted a permit to construct an addition to an existing dock located on the north shore of Old River in Pensacola, Florida. The Petitioner, Mrs. A. K. Doyle, testified on her own behalf and also called as a witness, Mildred N. Peake, one of the applicants. The Petitioner offered no exhibits into evidence. Mr. B. W. Peake testified on behalf of himself and his wife Mildred N. Peake. The Peakes offered and had admitted into evidence Exhibits 1-7. The Department of Environmental Regulation called as witnesses Mark Snowden and Richard Fancher. The Department offered and had admitted Exhibits 1-6. Subsequent to the final hearing, Counsel for the Petitioner and the two Respondents submitted proposed findings of fact and conclusions of law for consideration by the Hearing Officer. To the extent that those proposed findings and conclusions are inconsistent with this order, they were rejected as not being supported by the evidence or as unnecessary to the resolution of this cause.
Findings Of Fact The Respondents, B. W. and Mildred N. Peake, have filed an application for a permit to construct an addition to an existing private pier located on the north shore of Old River, adjacent to Innerarity Point. It will be centered on a lot located at 878 Innerarity Road, Pensacola, Florida. B. W. and Mildred N. Peake are the owners of the property where the existing dock is located. On December 23, 1982, the Department of Environmental Regulation by letter notified the applicants that the Department intended to grant the permit application. The Petitioner, Mrs. A. K. Doyle, filed an objection to the issuance of that permit. Mrs. Doyle's property is adjacent to the eastern boundary of the Peake property. The application, as modified, seeks to extend the existing pier by sixteen (16) feet. The existing pier is five feet wide and approximately 185 feet long. The addition is to be constructed of the same materials used in the existing pier and will rest on treated pine pilings. The purpose of the pier is to allow temporary berthing for two additional sailboats. There will be no fuel pumps or toilets on the pier. The pier will be used for private purposes only and will involve no commercial operation. Upon completion of the addition, the Peake's pier would be approximately 110 feet from the Intercoastal Waterway Channel and will not create a hazard to navigation. The Peakes have obtained approval from the U.S. Army Corps of Engineers to construct the pier extension. They have not obtained consent from the Department of Natural Resources to use the state owned lands beneath the proposed addition. The addition to the pier will total approximately 80 square feet and will require 4 pilings. There is currently an extensive grass bed consisting of Cuban Shoalweed approximately 90 feet from the shoreline. Jetting of pilings for the addition will occur approximately 103 feet from the closest point of this grass bed. The proposed addition will have no significant impact on the existing grass beds. The grassbeds in this area stop growing at the edge of the photic zone or that point at which sunlight can no longer penetrate the water. At this site, this occurs at a depth of 1.5 meters or approximately 4.8 feet. The depth of the water at the site of the proposed addition is from 8 to 10 feet. There are no grasses growing in the immediate area of the project site. The grass beds in the area contain a wide diversity of benthic microinvertebrates. The number of species and density of benthic microinvertebrates were less at the addition site. The proposed addition will not interfere with marine life or destroy marine productivity. The substrate at the immediate project site consists of coarse sand with some fines associated with the sand. During the piling installation, these fines will become suspended in the water, thus creating turbidity. The use of a turbidity screen or control device during construction would limit turbidity to the project site with very temporary, limited violation of water quality. The project will have no deleterious effect on water quality. All boats using the pier will have Coast Guard approved marina heads. These marine heads will not discharge into the waters in the area. Garbage from the boats will be disposed of at the Peake home adjacent to the pier. The pier is presently being used to permanently moor one sailboat.
Recommendation Based upon the foregoing findings of fact and conclusions of law it is, RECOMMENDED: That the Department of Environmental Regulation issue a permit for the applicants, B. W. and Mildred N. Peake, to construct an addition to their existing dock in accordance with the application as modified. The permit should contain all the specific conditions included in the Department's letter of intent dated December 23, 1982. In addition, the necessary approval from the Department of Natural Resources should first be obtained. DONE AND ORDERED this day of April 1984, in Tallahassee, Florida. MARVIN E. CHAVIS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 FILED with the Clerk of the Division of Administrative Hearings this 27th day of April 1984. COPIES FURNISHED: Victoria Tschinkel Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 E. Gary Early, Esquire Division of Administrative Hearings Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Ralph A. Peterson, Esquire Post Office Box 12950 Pensacola, Florida 32576 James M. Wilson, Esquire Post Office Drawer 1832 Pensacola, Florida 32598
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
