Findings Of Fact At all times here relevant Respondent was licensed by Petitioner as a Tampa Bay pilot. On the morning of January 6, 1982, Respondent boarded the S.S. VERA CRUZ-1 to pilot the ship into Tampa Bay. Although the Administrative Complaint alleges the S.S. VERA CRUZ-1 was outbound from Tampa, the evidence was undisputed that the ship was inbound and the grounding occurred while the pilot was changing course to the right while attempting to go from Cut F channel into the Gadsden Cut channel some 80 degrees to the right of Cut F. The allegation that the ship was outbound is not material to the charge of negligence and will be disregarded. Exhibit 5, a copy of a section of the chart of Tampa Bay where the grounding occurred, does not clearly show the name of this channel, but the transcript (p. 27) indicates it is Gadsden Cut channel. The S.S. VERA CRUZ-1 proceeded northward at half speed up Tampa Bay without incident from the time Respondent boarded until Tampa Bay Lighted Bouy 6F was abeam to starboard at 0600, and Respondent ordered 20 degrees starboard rudder. At this time the wind was light (about 5 knots) and the current was near slack water and negligible. Leaving Cut F inbound, Cut G leads westward some 85 degrees to the west (or left) of the Cut F heading and Gadsden Cut channel leads some 80 degrees to the right of Cut F heading. The course change of about 80 degrees to the right from Cut F to the Gadsden Cut channel can be made in two steps or in a gradual turn, as a large area is included in these channels at this intersection (Exhibit 5). Shortly after ordering 20 degrees right rudder, Respondent realized the S.S. VERA CRUZ-1 was not turning as fast as necessary to enter Gadsden Cut channel and he ordered the rudder increased to right full. Shortly thereafter, at 0603, Respondent ordered the engines ahead full expecting the thrust from the propellers to increase his rate of turn. The S.S. VERA CRUZ-1 continued to swing slowly to the right and moved well north of the intended course. At 0604 Respondent ordered the engines stopped and shortly thereafter, at 0604.5, he ordered the engines full astern. By this time the ship was aground in 22 feet of water. The S.S. VERA CRUZ-1 is a 10,596 gross tonnage, twin-screw, single- rudder vessel equipped with a bow thruster. On 6 January 1982 she was drawing 23 feet forward and aft. Respondent's testimony that the bow thruster is not very effective at speeds in excess of three knots was not rebutted nor was his testimony that he was aware the ship was equipped with a bow thruster. Respondent had piloted the S.S. VERA CRUZ-1 several times (five or six) before January 6, 1982. On the S.S. VERA CRUZ-1 the single rudder is located in the center line of the ship between the two propellers. This is the normal configuration for a twin-screw, single-rudder ship. On such a ship an increase in the thrust from the propellers will not provide the turning force on a rudder that is generated when the rudder is mounted directly behind the propeller, as is customary on a single-screw ship or a twin-screw, twin-rudder ship. However, the location of the propellers on a twin-screw ship are such that a turning moment on the ship is generated if only one propeller is used and a greater turning moment may be generated by having one propeller in the ahead position and the other propeller backing. When the S.S. VERA CRUZ-1 was sluggish in turning to the right from Cut F, the turning moment could have been increased (and the turning circle reduced) by stopping the starboard propeller. Had the starboard propeller been backed, the turning moment would have been increased even more and the turning circle reduced accordingly. Increasing the speed from half to full on a single-rudder, twin-screw ship will not change the turning circle at a given rudder angle absent significant wind and current factors. Since neither wind nor current was significant in this incident, the increase in speed from one-half to full served only to add speed to the ship without affecting its track. Since the ship was already well north of the entrance to Gadsden Cut when the full ahead command was given, the increase in speed served only to advance the time the vessel grounded. The S.S. VERA CRUZ-1 grounded at 0605 on a soft mud to silt bottom and remained there until 0904 shortly after tugs had attached lines and began to pull.
The Issue The issues to be resolved in this proceeding concern whether the City of Naples's (City) Waterway Marker Permit Application should be granted, given the requirements of Section 327.40, Florida Statutes (2005) and Florida Administrative Code Rule 68-23.105(1)(b)(3) through (6).
Findings Of Fact The Petitioner, Eric Alexander, is a resident of Collier County and a licensed boat captain. He is the owner of a charter boat business operating in Naples Bay, in Collier County waters. The Petitioner, Douglas Finlay is also a resident of the City of Naples and a recreational boater. He operates power boats and a kayak on the waters of Naples Bay involved in this proceeding. The Petitioner, James Pergola is also a resident of Naples and resident of Collier County. He is a recreational boater and uses the waters of Naples Bay for recreational boating purposes. He is also a homeowner, owning a home adjacent to Naples Bay. The Petitioner, Allen Walburn is a resident of Collier County and a licensed boat captain. He owns a charter boat business which operates in the waters of Naples Bay and Collier County. The Petitioner, Collier County, is a political subdivision of the government of the State of Florida. It operates a boat ramp and county park area on the waters of Naples Bay for use by its citizens and other members of the public. Its Sheriff Department employees patrol the waters of Naples Bay seeking to enforce relevant boating safety and other laws and ordinances. The Petitioner, Marine Industries Association of Collier County, Inc. (MIACC), is a non-profit association of businesses which are directly or indirectly involved in the marine industry on, or near the waters of Naples Bay. The members of the association and/or its customers use the waters of Naples Bay in the conduct of their businesses, employment, and for recreational boating and recreational and commercial fishing purposes. The City of Naples (City) is a unit of local government. It has authority to adopt the ordinance which triggered the dispute involved in this proceeding, based upon Section 327.60, Florida Statutes (2005). The City thus has authority to adopt ordinances regulating the operation of vessels on waterways within the jurisdiction of the City, so long as such ordinances or local laws do not conflict with the provisions of Chapter 327, Florida Statutes, and any regulations promulgated thereunder, or with other state or federal law. The City thus adopted the relevant slow speed, minimum wake boating restricted areas (slow speed zones) at issue in this proceeding. The Respondent, FWC, is an administrative agency of the State of Florida charged in pertinent part with managing the navigable waters of the state and with the consideration of waterway marker permit applications filed and arising under Chapter 327, Florida Statutes, and the related rules promulgated in Florida Administrative Code Chapter 68. The Intervenor, Conservancy of Southwest Florida (Conservancy), is a Florida non-profit corporation. Its purpose is the protection of the natural environment of Southwest Florida, including advocacy, education and research. The Intervenor, Citizens to Preserve Naples Bay (Citizens), is also a Florida non-profit corporation. Its organizational purpose is to preserve and protect the bay by actively supporting efforts it believes will further that mission. In arriving at its positions on issues affecting Naples Bay, Citizens considers questions of physical, chemical, biological, and navigational safety. The Waterway Marker Permit Application Naples Bay is a water body located within the boundaries of Collier County and the City of Naples. It is an inland water body connected to the Gulf of Mexico at "Gordon Pass." Near the seaward end of Naples Bay on its southerly margin is a connection with Dollar Bay, which extends southward of Naples Bay in the direction of Marco Island. Naples Bay contains a federally-maintained channel used for navigation and commerce. Naples Bay is both a destination and a transit waterway used by local businesses, citizens, and tourists for recreational, business, and commercial purposes. It is used for a wide variety of boating purposes and interests, including commercial fishing, commercial charter boat operations, recreational boating, and recreational fishing purposes, as well as by institutional/scientific users. There are already vessel speed zones established on portions of Naples Bay. The City of Naples, however, adopted ordinance number 04-10664 (the ordinance) creating the additional slow speed zones at issue in this proceeding. The ordinance, adopted on November 17, 2004, establishes new slow speed zones or minimum wake zones in portions of Naples Bay, Dollar Bay, and Gordon Pass. The ordinance was adopted under the authority of Section 327.60, Florida Statutes (2004), which allows a city to adopt ordinances regarding vessel operations on waterways so long as such ordinances or local laws do not conflict with the provisions of Chapter 327, Florida Statutes, or rules promulgated under that chapter. In order to implement the newly adopted slow speed zones the city applied for a Uniform Waterway Marker Permit (Permit) from the FWC on December 23, 2004, in accordance with Sections 327.40 and 327.41, Florida Statutes (2004), and Florida Administrative Code Rule 68D-23. Section 327.40, Florida Statutes, provides that: Waterways in Florida which need marking for safety or navigational purposes shall be marked [uniformly]. . . . (2)(a) application for marking . . . navigable water under concurrent jurisdiction of the Coast Guard and the division shall be made to the division. . . ." (Emphasis supplied). Section 327.40, Florida Statutes, was amended in 2000 to provide FWC with the authority to adopt regulations to implement that statutory section. Florida Administrative Code Rule 68D-23.105 was amended by the FWC in 2001, pursuant to the statutory purpose of determining which waterways need marking for safety or navigational purposes. Since the time of that amendment the Rule (Florida Administrative Code Rule 68D-23.105(1)(b)), concerning the criteria for approval of regulatory markers, now provides that a valid vessel traffic safety or public safety purpose exists for "slow speed minimum wake" speed zones under the following facts and circumstances: The Division shall find a valid vessel traffic safety or public safety purpose is presented for ordinances adopted pursuant to Section 327.60, Florida Statutes, under the following facts and circumstances: * * * (b) For a slow speed minimum wake boating restricted area if the area is: * * * Subject to unsafe levels of vessel traffic congestion. Subject to hazardous water levels or currents, or containing other navigational hazards. An area that accident reports, uniform boating citations, vessel traffic studies, or other creditable data demonstrate to present a significant risk of collision or a significant threat to public safety. * * * Fla. Admin. Code R. 68D-23.105(1)(b). The previous rules, prior to 2001, contained no similar factual criteria to those now found in the above-quoted rule. There are actually six factual criteria in the Rule, but only criteria four, five, and six, quoted above, are at issue in this proceeding, as stipulated by the parties. The FWC issued a Notice of Intent to grant the permit stating that the FWC's Boating and Waterways Section found that the criteria in their referenced rule had been met. See City Exhibit 26 in evidence. In arriving at this Notice of Intent to grant the permit application the FWC did not, however, independently make a determination or confirm that any of the factual circumstances referenced in the above Rule, and, specifically, subsections four through six of the Rule, actually existed. Rather, FWC assumed that all the statements in the application were true and issued the Notice of Intent to grant the permit. Standing Collier County is a political subdivision of the State of Florida. It expends county funds to provide for the patrol and regulation of safety on the waters of Naples Bay. It regulates Naples Bay through the patrolling of the Collier County Sheriff's Office. Section 125.01(j), Florida Statutes, grants the powers and duties to counties to "establish and administer programs of . . . navigation . . . and to cooperate with governmental agencies and private enterprises in the development and operation of such programs." Collier County also owns and operates the only county- owned boat launching facility on Naples Bay. Collier County citizens have the right to access and enjoy Naples Bay and the waters beyond Naples Bay through that access, including the Gulf of Mexico. Collier County has concurrent jurisdiction over Naples Bay and, like the other Petitioners, is concerned with recreation and enjoyment of use of the waterways of Naples Bay, including access to the Bay and adjacent waterways through traverse of the bay. The Petitioner, Eric Alexander is a resident of Collier County and has been for over 18 years. He is a licensed boat captain. He owns a charter boat business which operates in the waters of Naples Bay and adjacent waters in Collier County. He has recreational, commercial, navigational, and economic interests personal to him invested in the use of Naples Bay for both recreational and commercial purposes, as well as the access it provides to additional waterways. Naples Bay provides Mr. Alexander his only access to the Gulf of Mexico, where he takes his fishing charter parties in the conduct of his business. The proposed speed zones will have a substantial effect on his business and possibly his livelihood because the long transit times involved in the enactment of all the slow speed zones will tend to make his customers use charter boat businesses in other nearby areas that do not have to transit Naples Bay to reach fishing grounds, etc. His testimony of the substantial effect on his charter boat operations posed by the more pervasive slow speed zones was not refuted in the record. He established that his business will be substantially affected by the slow speed zones. The Petitioner, Douglas Finlay has resided in Collier County and Naples for over 10 years. He has been a recreational boater for that period of time. He has recreational and navigational boating interests in Naples Bay, including the access it provides to the Gulf and to additional waterways. He is particularly concerned that the proposed speed zone being moved from the protected area, out to the entrance to the Gulf at Gordon Pass, will adversely impact boating safety. The slow speed zone at that point will adversely impact safe boating operation because sufficient power and steerage provided by higher speed must be maintained to safely navigate the sometimes difficult wave, current, and wind conditions at the entrance to the Gulf. Mr. Finlay is directly affected in terms of his recreational boating and navigational interests by the imposition of the slow speed zones at issue. In terms of this concern, as well as, generally, the resultant long transit times through Naples Bay. The Petitioner, James Pergola resides on the waters of Naples Bay by owning a home on a canal that communicates with the bay. He has been a resident of Collier County for more than 29 years and is a recreational boater. He uses the waters of Naples Bay for all purposes related to recreational boating, including simply operating his boat on and traversing the bay when bound to other locations, as well as for fishing. The proposed speed zones will adversely affect the recreational boating use and trips Mr. Pergola takes on the waters of Naples Bay by substantially increasing transit times through the waters of the bay, a restriction he deems unnecessary from a safety standpoint. The Petitioner, Allen Walburn is a licensed boat captain and owns and operates a charter boat business. He conducts his charter boat operation in Naples Bay and adjacent waters of Collier County and the Gulf of Mexico. He has been a resident of Collier County since 1977. Mr. Walburn has commercial and economic interests which are intertwined with his navigational interests in operating his vessels in the waters of the bay. The restrictions at issue would adversely affect his access and the time of access through the waters of the bay, to additional water ways and to the Gulf. The proposed speed zones, and their adverse effect on transit times through the bay will adversely affect Mr. Walburn's charter boat business. Some days he will not be able to operate two charters in one day, which will substantially reduce his revenue. Additionally, his charter boat customers over time will tend to migrate to charter boat businesses that operate in areas other than Naples Bay and which don't have the attendant long transit times in reaching fishing grounds caused by the proposed speed zones. Thus, the Petitioner Walburn is substantially affected by the proposed permit regarding the slow speed zones, in terms of both his recreational and commercial navigational interests and economic interests related to vessel operations in the waters of Naples Bay. The MIACC is a non-profit trade association. Its members are made up of businesses which directly or indirectly operate in or are related to the marine industry in the vicinity of Naples Bay. Membership in the MIACC includes 60 or more businesses or persons located in Collier County. The members consist of recreational boaters, marina operators, yacht brokers, boat dealers, boat yards, marine construction contractors, marine professionals and charter boat businesses. The association members rely upon reasonable access and reasonable transit times to and through Florida waters and, in particular, Naples Bay. This is important to their engagement in commerce, including the selling, servicing, and maintenance of boats, marine contracting, charter fishing and general recreational boating. The members' market for their products and services, their revenues and the costs of their doing business depends substantially on reasonable public access, transit and safe use of the navigable waters in Naples Bay and the use of adjacent waters, which requires Naples Bay transit. Members of MIACC have lost some business in potential sales of boats and boat slip rentals, from customers who have elected not to locate boats or operate boats in Naples Bay because of the inconvenience caused by the speed zones. These additional speed zones have had the effect of discouraging recreational boating members or potential recreational boaters from boating on Naples Bay. At least one MIACC member has experienced several previous boaters placing their vessels with him for sale, ending their Naples Bay boating activities in the belief that the slow speed zones are, or soon will be, placed into effect. The members of MIACC will incur additional time and costs in conducting sea trials of boats they are placing into service or repairing. The proposed slow speed zones leave only a small area of Naples Bay where boats are allowed to exceed slow speed. Consequently, the proposed slow speed zone will force all boat testing to occur in one small area of Naples Bay. That fact alone will create more congestion and possibly a safety issue in that more confined small area of the bay. It will render more difficult the operation of the members' businesses, which are involved in testing boats and boat engines, and other operational systems of boats, when placed into service as part of a new vessel or when performing repair work on vessels. MIACC and its members' ability to navigate and conduct commerce in Naples Bay will be impeded by the proposed slow speed zones. They will substantially increase the time for fishing charter members to navigate to, from, and between fishing locations and will increase the time for recreational fishermen members of the association to navigate to and between their fishing grounds as well. The proposed slow speed zones will affect MIACC members by causing additional vessel congestion caused by excessively slow speeds over a longer distance, thereby potentially creating a safety issue. An additional and somewhat different safety issue will occur because the slow speed zones will reduce the maneuverability of the vessels moving at slow speeds, a different kind of safety issue than caused by vessels moving at excessive speeds, in terms of steerageway on slow moving vessels and the vessels ability to avoid collisions. The proposed speed zones will affect the members traversing Naples Bay by slow speeds increasing the risk of dangerous weather conditions. The corporate purpose of MIACC is to: represent and educate recreational boating citizens and members of the marine industry and its workforce in the promotion and protection of recreational boating as a traditional family and business past- time and element of commerce. It seeks to promote boating both commercially and recreationally as a source of business activity and tourism. It seeks to protect and enhance the environmental circumstances of Florida waterways. See MIACC Exhibit 26 in evidence. Its purposes are further to promote improved conditions on the waterways of Collier County generally, and improved operating conditions for recreational boating and the commercial boating industries as well. The interest of MIACC and its members in both commercial and recreational boating pursuits will be substantially affected if the relevant slow speed zones are enacted which would pose a significant restriction beyond the limitation already prescribed by state and local law. This is because access to fishing and recreational areas will require longer travel time, with more areas of interest to the boating public eliminated from reasonable use. This will have a negative effect on the manufacture, sale, chartering, docketing, equipping, servicing, maintenance, and operation of boats on the bay and adjacent waterways. The Intervenor, the Conservancy, is a Florida non- profit corporation organized in 1966 headquartered in Naples, Florida. Its purpose is the protection of the natural environment of Southwest Florida, including through environmental advocacy, education, and research. The Conservancy has approximately 4,100 members in Collier County. The Conservancy has conducted scientific research in Naples Bay for more than 20 years in support of its mission. It published the Naples Bay study in 1979, which was one of the first comprehensive studies of that estuary system. That study, and the research conducted by the Conservancy since, involves sampling of water in Naples Bay, primarily to monitor the water quality. Those samples are taken throughout the bay by the Conservancy staff, as well as volunteers. They usually employ a 14-foot Carolina Skiff type fishing boat to perform this work. During the course of its boating experience, conducting its sampling efforts in the bay, the Conservancy staff has encountered boat wake conditions which it believes threaten the safety of the small boat and its occupants which it uses for water sampling. It attributes those threatening boat wakes to the currently permitted boat speeds on Naples Bay and believes that slower boat speeds on the bay would make its research on the bay safer. The Intervenor, Citizens, was incorporated in 1988 as a Florida non-profit corporation. Its primary mission is to preserve and protect Naples Bay by actively opposing any projects or efforts which it believes will adversely affect the bay and by actively supporting projects or efforts it believes will help to preserve or improve the bay. Citizens considers the physical, chemical, biological, and navigational safety questions involved, in matters concerning the bay, upon which it decides to take a position. Citizens has been involved in issues regarding Naples Bay over many years, including the Naples Bay Project Committee upon which its president, Harry Timmons, sat by appointment. That committee investigated Naples Bay safety and made recommendations to the Naples City Council regarding vessel traffic congestion and vessel speed zones. Some 352 citizens members own homes on Naples Bay or on channels or canals connected to the bay. Both Mr. Timmins and Kirk Materne, members of Citizens, have taken positions before the Naples City Council on a number of occasions concerning issues regarding vessel speeds on Naples Bay. Affidavits, introduced into evidence as corroborative hearsay, support the testimony adduced by Citizens to the effect that there are members in addition to Mr. Timmins who own and operate boats on Naples Bay and are affected in some way by the issues concerning boating safety and boating speeds on Naples Bay. Both Mr. Timmins and Mr. Materne are boaters and have operated their boats on Naples Bay for many years. Levels of Vessel Traffic Congestion (Florida Administrative Code Rule 68D-23.105(1)(b)(4)) The applicant City presented the testimony of expert witness Andrew Anderson. Mr. Anderson is a Marine Consultant. Mr. Anderson is a graduate of the Coast Guard Academy and retired from the Coast Guard with the rank of Commander. He served as a boating and safety officer while in the Coast Guard and was certified as a 1,600 ton vessel master. He has captained vessels of varying sizes during his Coast Guard tenure. He has published articles and lectured on boating safety and has been recognized as an expert in boating safety, seamanship, and boating accidents in state and federal courts. He reviewed the City's exhibits, the depositions in this case, boating citations, accident reports, and Coast Guard commission records in preparing for his testimony. Mr. Anderson believes congestion is any situation with a sufficient number of vessels within a certain geographic area and, given the speeds at which they are operating, that there will be a risk of collision if any operator makes a mistake. He described an example he believed constituted congestion around marker 18, where four boats were coming into close proximity of each other, creating an "unsafe condition." Naples Bay's configuration more resembles a wide river than a bay. It is approximately 4.4 miles from marker seven, at the Gulf entrance to the bay, east and northeast to U.S. 41, the most inland extent of the bay. The bay is approximately one- quarter mile wide at its widest point. When Mr. Anderson observed conditions in Naples Bay by traversing it or a portion of it, he observed only approximately 20 to 30 boats. This was on a Tuesday afternoon for approximately two hours, some two weeks prior to the hearing; not as active a day for boating as would be a weekend day or a holiday. Mr. Anderson opined that he felt, "there is a problem with vessel traffic congestion, particularly at speed of 30 miles per hour." He believes that "the higher the speed, the fewer the vessels it takes to have a congested situation." Thus Mr. Anderson expressed the view that Naples Bay was subject to unsafe levels of vessel traffic congestion. The basis for his opinion, however, was a mere two hours he spent on Naples Bay on that Tuesday afternoon shortly prior to the hearing. Although he has a great deal of boat safety and operation expertise, as described above, he had not previously navigated Naples Bay for over 30 years until retained as an expert witness by the City. During his two-hour tour of the bay, he found the bay to be congested and yet only saw 20 or 30 boats. Mr. Anderson conceded that the limited question that he was hired by the City to answer for this proceeding was "would the ordinance improve the safety of the boating public on Naples Bay?" He stated that it was his opinion that the ordinance would improve public boating safety. He also conceded that an idle speed zone on the entire Naples Bay (not proposed by the City in the ordinance or the permit application) would also improve safety, implicitly even more. He did not concede, however, that such an idle speed zone restriction for the entire bay would be appropriate. Other subjective testimony, offered by the Petitioners, concerning assessment of vessel traffic congestion was provided by a number of witnesses who collectively have spent thousands of hours in navigation of Naples Bay at various times of the day, week, and year. Those witnesses, such as Captain Alexander, with more than 1000 hours per year navigation of Naples Bay; Captain Walburn, with more than 30 years operating on Naples Bay; Police Officer Ayers, who patrolled the bay five days a week for the last three years; and the Petitioners Pergola and Finlay, collectively testified that it was their opinion that the bay was not subject to unsafe levels of vessel traffic congestion. Objective evidence concerning vessel traffic congestion and representing an objective standard therefor, was presented by Petitioner MIACC's expert witness, Dr. Ed Baker. Dr. Baker has extensive site-specific knowledge of Naples Bay as he has previously conducted two vessel traffic surveys of the bay. These surveys analyze traffic patterns, numbers of vessels navigating the bay, and the inventory of vessels with access to the bay. His previous two studies were based on the level of service methodology (LOS) similar to that used with studies of automobile traffic. The LOS methodology was first employed and used in Naples Bay in a study by Heniger and Ray, Inc., a consulting firm commissioned by the City of Naples to measure boat capacity on Naples Bay. The LOS methodology is used to measure the capacity of a system, in this case Naples Bay, and the demand for its use of that system. The LOS for any particular system is an "indicator of the extent or degree of service provided by a system," and it indicates the capacity per unit of demand for the facilities. This methodology showed the carrying capacity of Naples Bay to be 528 vessels per hour (this is aside from the question of what level of congestion that represents). In a roadway transportation system, the relationship between road capacity and the number of vehicles on the road is described by letters A to F. Each letter represents a range of vehicles using the road in comparison to the road capacity. The A through F LOS categories are based on several operating conditions, such as traffic flow, number of vehicles, speed, and maneuverability. See MIACC Exhibit two in evidence. The Heniger and Ray study applied the same LOS methodology to boat traffic on Naples Bay. The Heniger and Ray study, as well as Dr. Baker's studies, defined A to F LOS categories as follows: Level A - represents a free flow condition in which there is little to no restriction on speed or maneuverability; Level B - a zone of stable flow but the presence of other boats begins to be noticeable. Freedom to select speed is relatively unaffected; Level C - a zone of stable flow; speed and maneuverability becomes affected at this level as a result of other boats; Level D - usually a stable flow of traffic, but a high density of boats cause significant restriction on speed and maneuverability; Level E - traffic in an unstable flow representing conditions at or near capacity of the system with speeds and maneuverability severely reduced because of congestion; Level F - traffic in an unstable flow with speed and maneuverability extremely limited by severe congestion; frequent occasions of no forward progress. Each level of service category is defined by increasing values of the volume to capacity ratio, such that LOS A described the situation where up to 15 percent of Naples Bay's carrying capacity is using Naples Bay. Therefore, under LOS A, up to 79 boats per hour would be using Naples Bay. LOS B would describe a situation where up to 27 percent of Naples Bay's carrying capacity LOS is using Naples Bay or 143 boats per hour. LOS C would describe a situation where up to 43 percent of Naples Bay's carrying capacity LOS is using Naples Bay or 228 boats per hour. LOS D would describe up to 64 percent of the carrying capacity, or 338 boats per hour using Naples Bay. LOS E would then equate up to 100 percent of the carrying capacity or up to 528 boats per hour using the bay, and LOS F would describe a situation where boats would exceed the carrying capacity or more than 528 boats per hour resulting in gridlock. The LOS methodology is an objective method by which to analyze vessel traffic on the bay established by the testimony and evidence elicited through Dr. Baker, as well as Dr. Staiger. Dr. Baker's initial Boat Traffic Studies and Models conducted in 1999 and 2002 concluded that at peak times Naples Bay is at an LOS A or B level on 10 out of 13 segments of the bay. Of the remaining three segments, at those times, the LOS level was C. Prior to the hearing in this case, Dr. Baker again conducted a study and survey of the bay to assess the current boat traffic situation. He described that his recent 2005-2006 analysis showed that the LOS for the bay during a weekend in September 2005, and a holiday weekend in January 2006, was at an LOS A or B level. It is noteworthy that the Collier County Manatee Protection Plan adopts LOS C as the acceptable level of service for Naples Bay. The Naples Bay boat traffic studies and Dr. Baker's testimony indicate that there is no unsafe level of vessel traffic congestion on Naples Bay. Major Paul Ouellette of the FWC, testified as to his finding that the permit application with its supporting documentation, and additional data, was insufficient to allow him to conclude that the new speed zones were warranted based upon an unsafe level of vessel traffic congestion. The City of Naples Marine Unit Officer who testified, Russ Ayers, has over three years of daily patrolling experience on Naples Bay. He found that Naples Bay is not subject to unsafe levels of vessel traffic congestion. The Naples Bay traffic studies, including those of Dr. Baker and Dr. Baker's testimony, are more objective in terms of applying an objective standard and methodology. The methodology is deemed to be acceptable for practioners and by practioners in Dr. Baker's field of expertise. Because of the more extensive opportunity for observation of Naples Bay and its boat traffic and boat numbers, this testimony and evidence and that of Major Ouellette, Officer Ayers and the Petitioners Alexander and Walburn, is deemed more compelling, credible, and persuasive, than that offered by Mr. Anderson, Mr. Timmins and other evidence offered by the City or Intervenors. Safety concerns caused by boat wakes, boat speeds, and careless, discourteous or illegal operation by boat operators, which cause safety hazards, or fears of safety hazards, do not equate to unsafe levels of vessel traffic congestion. The preponderance of the persuasive evidence establishes that Naples Bay is not subject to "unsafe levels of vessel traffic congestion." Hazardous Water Levels, Currents or Other Navigational Hazards (Florida Administrative Code Rule 68D-23.105(1)(b)(5)) The Respondents and Intervenors contend that the proposed slow speed zones are needed in the Naples Bay area because of hazardous water levels, currents or that the area contains other navigational hazards. The City seems to contend that boats which are accelerating or decelerating upon leaving or entering the existing slow speed zones themselves constitute "navigational hazards." While the term "navigational hazard" is not defined in the statutes or rules at issue, it has been defined by the U.S. Coast Guard in terms of "hazard to navigation" as "an obstruction, usually sunken, that presents sufficient danger to navigation so as to require expeditious, affirmative action such as marking, removal, or re-definition of a designated waterway to provide for navigational safety." 33 C.F.R. § 64.06 (2005). A "navigational hazard" within the meaning of Florida Administrative Code Rule 68D-23.105(1)(b)(5) equates in meaning to be the same as a "hazard to navigation" treated in the above federal rule related to the Coast Guard's jurisdiction. While boats operating under power might, under certain circumstances, (chiefly improper, careless, discourteous, or illegal operation,) be dangerous to the safety of other boaters or users of a waterway, they do not comport with the generally accepted sense of what "navigational hazard" means. It means a fixed object which poses a hazard to navigation of any or all boats operating under power or sail or human propulsion; examples being a sunken vessel, an oyster bar, a shoal, a stump or any other object which might pose a danger if struck by a moving vessel. Some witnesses, such as Captain Walburn, Dr. Staiger, witness Davis, and witness Timmins described such factors as a dock in the channel (encroaching somewhat apparently) between marker 21 and marker 23, narrow or serpentine portions of the Naples Bay Channel, and strong tidal currents in several areas, There is no persuasive evidence, however, to show these are anything other than normal physical complications to be contended with by a reasonably prudent mariner, operating a vessel in the areas in question. They do not pose hazardous conditions, in terms of water levels, currents, or navigational hazards. Thus, there is no preponderant, persuasive evidence that the area of the proposed slow speed zones includes any areas that are subject to hazardous water levels, currents, or contains other navigational hazards. This is established by the testimony of Officer Ayers, among others. Major Ouellette established with his testimony that the permit application with supporting documentation and additional data he reviewed was not sufficient for him to be able to conclude that the new speed zones were warranted because of the area being subject to hazardous water levels, currents, or because it contains other navigational hazards. Thus the preponderant evidence demonstrates that the proposed slow speed zones are not for areas that are subject to these hazardous factors. Whether there is a Significant Risk of Collision or a Significant Threat to Public Safety as Demonstrated by Accident Reports, Boating Citations, Vessel Traffic Studies, or Other Creditable Data Florida Administrative Code Rule 68D-23.105(1)(b)(6) The City adduced testimony from its expert witness, Mr. Anderson, as well as its other witnesses, as did the Intervenors, to the general effect that slowing of boat speeds on Naples Bay would render the bay safer for boat operation and traffic. Such testimony from Mr. Timmins and others, recounted anecdotal incidents where boating accidents occurred. Several of these caused injuries, boat damages, threw boating passengers out of their seats, on one occasion swamped a small boat, and caused another boat to take on water, due to excessive boat wakes of passing vessels. Mr. Timmins has boated on the bay for many years and does not feel safe or comfortable at certain times and in several areas in the bay. He described two places where the channel is significantly narrow and where he described what he felt were unsafe conditions caused by converging boat traffic, such as at the convergence of the Naples Bay channel with the channel entering into Dollar Bay. It is logical to assume that if boat speeds could effectively be substantially reduced or possibly the horsepower of boats or the size of boats using Naples Bay could be drastically reduced, or the numbers of boats using the bay substantially decreased, that Naples Bay could be rendered "safer." However, rendering Naples Bay simply "safer" is not the factual showing required by the above-referenced rule (or the legal standard imposed by it in order for the FWC to issue the waterway marker permit). Rather, the above-referenced sources of information, described in the rule, must demonstrate a significant risk of collision or a significant threat to public safety in order to demonstrate a need for the imposition of the slow speed zones. Accident Reports The MIACC entered its Exhibit 31 into evidence. Exhibit 31 is a summary chart analyzing vessel accidents occurring in Naples Bay between the years 2000-2004. It was prepared by the FWC. Major Ouellette of the FWC, in his expert opinion, concluded that while a total of 17 vessel accidents occurred over that approximate five year period, only four of them could be relevantly linked in their cause and effect to the boat speeds involved, such that new slow speed zones might have prevented those four accidents (assuming the operators involved were complying with the regulation). Indeed, most accidents occurred with vessels already operating in existing slow or idle speed zones or attempting to dock. The evidence adduced by the City and the Intervenors referenced individual reports of some eight accidents occurring over the five-year period, which they maintain are relevant, such that new slow speed zones might have prevented the accidents. Dr. Baker performed an analysis correlating the number of accidents to the number of vessel trips taken in Naples Bay, however. Dr. Baker's analysis using the eight accidents contended to be relevant by the City and the Intervenors, rather than Major Ouelette's finding of four relevant accidents, determined that there was one boat accident for every 67,500 boat trips in Naples Bay during that period of time. One accident per 67,500 boat trips does not establish a significant risk of collision or significant threat to public safety in Naples Bay predicated on the accident reports. Eight accidents over a five-year period is not a "significant risk of collision or significant risk to public safety." The City of Naples Police Department's Marine Unit is charged with enforcing regulations on Naples Bay. It monitors and compiles reports of boating accidents and makes yearly summaries thereof. If the Marine Unit identifies or experiences a significant risk of collision or threat to public safety due to accidents, then additional enforcement action will be taken such as dispatching additional officers to patrol the bay, changes in their schedules or other efforts to reduce the risk or threat concerning collision or public safety. No such action has been taken by the Marine Unit in terms of additional enforcement efforts because, as established by Lt. Traczyk, it experienced no significant risk of collisions or treats to public safety. If such additional enforcement actions were taken and they did not successfully reduce the risk of collision or threats to public safety, the police department's Marine Unit would inform its superiors, such as the chief of police or other officials, that additional measures, such as more stringent regulations, were needed. The City police department, through Chief Moore, however, has not informed or notified the City manager, City counsel or other City officials that additional regulations were needed to address any safety issues on Naples Bay. It did not deem such issues to be significant enough. No Marine Unit Officers have informed their commanders that safety issues existed on the bay because of accidents or congestion of boats. The police department therefore has never suggested or recommended additional speed zones because of accidents or vessel traffic congestion or significant risk of collision or threats to public safety. Major Ouellette established, with his expert testimony, that the accident data did not demonstrate "a significant risk of collision or significant threat to public safety." Thus, the preponderance of persuasive evidence regarding accident data and experience on Naples Bay does not demonstrate that a significant risk of collision or significant threat to public safety exists on the bay. Boating Citations An analysis of the boating citations found approximately 180 citations issued per calendar year for the bay. The vast majority of these citations were issued for vessels violating existing slow speed or idle speed zones. Since the vast majority of citations are issued for violators operating their vessels in existing slow speed, minimal wake or idle speed zones it cannot logically be concluded that the addition of speed zones would reduce boat operators' violations of boating speed limits, whether of the present ones or those proposed. Thus, it has not been established how the fact of the boating citations, in evidence, served to demonstrate a significant risk of collision or a significant threat to public safety, implicating a need for additional speed zones. The fact of the boating citations may demonstrate an enforcement issue or a boat operator education issue, but they do not demonstrate a need for additional speed zones. In fact, to the contrary, Major Ouelette, in his expert opinion, which is accepted, established that boating citations were insufficient to support a conclusion that new slow speed zones were needed. Vessel Traffic Studies As found above, Dr. Baker's testimony and his vessel traffic studies and analysis demonstrate that Naples Bay is operating below its capacity and essentially at LOS A and B. Thus the vessel traffic studies in evidence do not demonstrate "a significant risk of collision or significant treat to public safety" on Naples Bay. Whether "Other Creditable Data" Represents a "Significant Risk of Collision or a Significant Threat to Public Safety" The City's expert witness, Andrew Anderson, opined, based upon his review of the permit application and its supporting data, coupled with only a two-hour observation and experience of conditions on Naples Bay, that the areas proposed for the pertinent speed zones did present a significant risk of collision or significant threat to public safety. The City's own Marine Unit police officer, Russ Ayers, has had more than three years' experience of daily patrols on the water on Naples Bay. He found no significant safety issues on Naples Bay, nor any significant risk of collision or threat to public safety on the bay. Additionally, the Petitioner's witnesses, Police Chief Moore and Lt. Traczyck, determined that there were no significant safety issues on Naples Bay and that a significant risk of collision or of a threat to public safety did not exist. These witnesses established that if the Police Department Marine Unit personnel identify or observe a significant risk of collision or threat to public safety then additional enforcement action or additional regulation would be taken, as found above, in order to alleviate the risk. The Marine Unit has not seen fit, due to its observances, to embark on such additional enforcement actions. Additionally, two Collier County Sheriff's Department Marine Unit Deputies, Rocco Marion and Joe Scalora have extensive experience operating and observing boat traffic and Marine conditions on Naples Bay. They have found no significant risk of collision or significant threat to public safety on Naples Bay. Because it was based upon thousands of hours operating vessels on Naples Bay, at all times of the day, week and year, the testimony of Capt. Alexander established that the bay does not experience a significant risk of collision or threat to public safety. His testimony is corroborated by that of Major Ouelette, as found above. In summary, the testimony and evidence adduced by the Petitioners is more credible, persuasive, and compelling than that of the Respondents and Intervenors. It is accepted as the most "creditable data" in establishing that the proposed slow speed zones are not in areas where accident reports, uniform boating citations, vessel traffic studies, or other creditable data demonstrate a significant risk of collision or significant risk to public safety.
Recommendation Having considered the foregoing findings of fact, conclusions of law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED: that a final order be entered by the Florida Fish and Wildlife Conservation Commission denying the subject waterway marker permit. DONE AND ENTERED this 22nd day of December, 2006 Tallahassee, Leon County, Florida. S P. MICHAEL RUFF 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 22nd day of December, 2006. COPIES FURNISHED: Elise M. Matthes, Esquire Captain Allen Richards, Esquire Florida Fish and Wildlife Conservation Commission 620 South Meridian Street Tallahassee, Florida 32399-1600 Frank E. Matthews, Esquire Kent Safriet, Esquire Hopping, Green & Sams, P.A. 123 South Calhoun Street Post Office Box 6526 Tallahassee, Florida 32314-6526 Douglas Finlay 3430 Gulf Shore Boulevard North, No. 5H Naples, Florida 34103-3681 Jeffrey A. Klatzkow, Esquire Colleen M. Greene, Esquire Collier County Attorney's Office 3301 East Tamiami Trail Naples, Florida 34112-4902 Allen Walburn 678 14th Avenue South Naples, Florida 34102-7116 Eric Alexander 654 Squire Circle Naples, Florida 34101-8352 Jack Hall 2675 Bayview Drive Naples, Florida 34112-5825 James Pergola 1830 Kingfish Road Naples, Florida 34102-1533 Dave Sirkos 750 River Point Drive Naples, Florida 34102-1400 Mimi S. Wolok, Esquire 1112 Trial Terrace Drive Naples, Florida 34103-2306 Robert G. Menzies, Esquire James D. Fox, Esquire Roetzel & Andress 850 Park Shore Drive, Suite 300 Naples, Florida 34103 Ralf G. Brookes, Esquire 1217 East Cape Coral Parkway, Suite 107 Cape Coral, Florida 33904 Michael R.N. McDonnell, Esquire McDonnell Trial Lawyers 5150 Tamiami Trial North, Suite 501 Naples, Florida 34103 Ken Haddad, Executive Director Florida Fish and Wildlife Conservation Commission Bryant Building 620 South Meridian Street Tallahassee, Florida 32399-1600 James V. Antista, General Counsel Florida Fish and Wildlife Conservation Commission Bryant Building 620 South Meridian Street Tallahassee, Florida 32399-1600
The Issue The issue is whether Respondent properly issued Site Approval Order No. 3-99-01 for Ochlockonee Bay Seaplane Base pursuant to Chapter 330, Florida Statutes, and Chapter 14-60, Florida Administrative Code.
Findings Of Fact On July 8, 1997, Walt Dickson, the applicant, filed an Airport Site Approval and License Application with Respondent for a seaplane base located two (2) miles south of Panacea, Florida, in Ochlockonee Bay, Wakulla County, Florida, at Latitude N29 degrees, 59'35" N, Longitude W 84 degrees, 23'73" W. The application gives the following legal description of the proposed facility: Lot lying between Williams Brothers Lumber Co. lot and Troy Fain lot on river in SW 1/4 of Section 1. A map of the proposed seaplane base was attached to the application. The map shows a sea lane 1/ toward the middle of Ochlockonee Bay. The sea lane has an east/west heading. It is three (3) miles long with a primary width of one (1) mile and a usable width of one-half (1/2) mile. The application does not indicate the exact position of the sea lane. The application's map indicates that a bridge for U.S. Highway 98 is located east of the proposed sea lane and shoreline facilities. The bridge crosses the bay, connecting the bay's northern and southern shores. The bridge has an approximate height of 42 feet above sea level. East of the bridge, the mouth of the Ochlockonee Bay opens into the Apalachee Bay and the Gulf of Mexico. The application's map indicates that the shoreline facilities of the proposed seaplane base are located on the northern shore of the Ochlockonee Bay, west of the bridge and east of Bayside Marina. A plot of the proposed shoreline facility shows a dock or pier, of undetermined length and width extending into the bay. Ms. Ann Tiller, Respondent's aviation licensing specialist for district three, performed the initial review of the subject application. She considered Chapter 330, Florida Statutes, Chapter 14-60, Florida Administrative Code, and FAA Advisory Circular No. 150/5395 in conducting her review of the application. First, Ms. Tiller reviewed the application to ensure that it was complete. She determined that the application contained, among other things, the following information: FAA air space determination, zoning approval from the appropriate governmental agency, copy of the deed, lease or easement, legal description that indicates section, township, range and geographical coordinates, general location maps showing nearby roads, towns and landmarks, U.S. Geological Survey quadrangle maps . . . [o]r equivalent with facility plotted. Ms. Tiller testified that the application "in itself probably would not show that [the site] is adequate." She stated that "[w]hen [the applicant] sends me the application, he is telling me that he thinks it is adequate." The application did not address the following factors outlined in FAA Advisory Circular No. 150/5395: performance characteristics of the proposed seaplane, water currents or wave action, shifting channels, ship or boating activity on the water, prevailing winds, wind data during daylight hours, adequacy of the water depth for a seaplane, or information about the taxi channel dimensions for the take-out and launch ramp. On May 8, 1998, Ms. Tiller conducted a site inspection to determine the adequacy of the site. She did not go out into the bay on a boat. During the inspection, Ms. Tiller advised the applicant's representative that the required approach ratio for the takeoff and landing area was 20 to 1 and that the applicant would need to install a windsock before receiving a license. She made a general observation of the proposed site, finding no obvious reason to deny site approval. After making the inspection, Ms. Tiller completed an Airport Site Inspection report. The report states that the site "is feasible for the proposed use and can meet the requirements set forth in Airport Licensing and Zoning Rule Chapter 14-60." Ms. Tiller did not consider the factors listed in the FAA Advisory Circular in making this determination. According to Ms. Tiller, the standards in the FAA Advisory Circular apply after the applicant receives site approval. She considers them as guidelines during the licensing phase of the application review, showing "what possibly could be done." By letter dated May 22, 1998, the FAA informed the applicant as follows: . . . it has been determined that the subject seaplane base will not adversely affect the safe and efficient use of airspace by aircraft provided the following requirements are complied with: All operations are conducted in VFR weather conditions. The landing area is limited to private use. You execute and maintain an operational letter of agreement with the Wakulla County Airport that would insure operation at this proposed seaplane base will not disrupt or conflict with operations at the existing public use airport. We recommend you reference FAR [Federal Aviation Regulations] 91.69, Right of Way Rules; Water Operations and comply with FAA Advisory Circular, AC 150/5395-1, Seaplane Bases. On April 19, 1999, the Wakulla County Board of County Commissioners executed an Operational Letter of Agreement between the Ochlockonee Bay Seaplane Base and the Wakulla County Airport. Prior to the hearing, Bobby Grice, Respondent's Public Transportation Manager, made a site inspection. He did not go out into the bay on a boat. Mr. Grice determined that the proposed takeoff and landing area met the required approach ratio of 20 to 1. He also concluded that the proposed sea lane, which is west of the bridge with a heading of 927, did not require a pilot to takeoff and land in close proximity to the bridge. Mr. Grice reached this conclusion without knowing the precise location of the takeoff and landing area. Mr. Grice's observation of the site did not reveal anything that "[p]rohibited [him] from saying that . . . somewhere in the bay that's 3 miles long and a mile wide, that somewhere in there we cannot find an area that is at least 1800 feet long, that's at least deep enough for a plane, and without obstruction." Mr. Grice testified as follows when questioned regarding the possible placement of crab traps in the area that serves as the proposed takeoff and landing area: I would not know if someone had gone in there and put [a crab trap] out, no more than I would know if one was out there with a motorboat running over it. But with the low tide, not the lowest, that's when we would go out and look with the applicant. And at that time if we saw some areas [where crab traps could not be seen] at low tide, then we would certainly assume that . . . at higher tide that [the crab traps] would not be in the way. The greater weight of the evidence indicates that crab traps, twelve (12) to eighteen (18) inches in height, are exposed in the proposed seaplane runway during tides which are low but not the lowest. When the tide is higher, the crab traps are submerged, leaving no indication as to how deep they are in the water. In addition to crab traps, other debris such as picnic tables and pieces of destroyed docks are submerged or floating at unknown locations in the bay. Mr. Grice saw channel markers in the bay. He did not know whether there were any markers in the area of the proposed sea lane. He assumed that the proposed sea lane area was large enough for the applicant to find at least some place where channel markers would not interfere with the required minimum length and approaches. The greater weight of the evidence indicates that channel markers are located directly in the proposed flight path of the seaplane. However, there is no persuasive evidence that these channel markers create a hazard in the approach and departure path of the proposed sea lane. The evidence also shows that the largest concentration of channel markers is located near the seaplane base's taxi and launch areas along the north shore of the bay. The seaplane will have to taxi across the channel and over the mudflats, areas of the bay with soft bottoms, to reach the proposed sea lane. Mr. Grice did not consider the depth of the water in the proposed launch area, taxi area, and sea lane. Therefore, he did not know whether the water depth was adequate for a seaplane. He did not know what type of seaplane(s) would use the seaplane base. According to Mr. Grice, Respondent can place restrictions on the site before licensing to prohibit the use of the seaplane base when the water is at a depth that Respondent determines is unsafe. The depth of the water at mean lower low water levels ranges between one (1) and four (4) feet in the proposed sea lane area. The four (4) foot soundings are located at the eastern tip of the proposed sea lane area, closet to the bridge. The depth of the water at mean lower low water levels ranges between one-half (1/2) foot and three (3) feet along the bay's northern shore in the vicinity of the seaplane base's launch area. Respondent asserts that its primary concern is safety. Therefore, Respondent makes a judgement call about boats and people swimming in the landing area. There is no evidence that Respondent considered the effect of boat traffic before approving the site at issue here. The channel of the bay is within 100 feet of the place where the proposed seaplane will be taken in and out of the water. The greater weight of the evidence indicates that many grouper boats and sport fishing boats use the channel on weekday mornings. On the weekends, boat and jet ski traffic in the channel increases substantially. The weekend boat traffic in the channel is fairly constant. The prevailing wind on the bay is out of the southeast or southwest during most of the day. The prevailing wind runs perpendicular to the proposed sea lane area. A crosswind takeoff and landing is dangerous, especially over a certain speed. The proposed seaplane base is located 80 feet from a dock referred to as the Williams dock. A channel marker is only a few feet from the end of the dock. The greater weight of the evidence indicates that taking a seaplane in and out of the water at the proposed seaplane base launch area is dangerous due to the following conditions: (a) swift channel current of six to ten knots that runs horizontal to the bay's northern shore and perpendicular to the dock; (b) heavy boat traffic in the channel; (c) the concentration of channel markers near the launch area; (d) prevailing winds which run almost perpendicular to the proposed launch area; and (e) the close proximity of the Williams dock. Respondent considers site approval as permission to build the proposed airport. According to Mr. Grice, "[i]t gives the applicant[s] some kind of assurance that they don't go out and spend a lot of money and then DOT comes back and goes through this hearing process after they have spent a lot." Respondent uses the FAA Advisory Circular as a guideline primarily during the licensing phase of application review. Respondent acknowledges that the language in each provision of the circular determines whether a provision is advisory or mandatory. Respondent admits that provisions of the circular containing the words "should" or "shall" relate to mandatory safety issues. Approximately two weeks before the hearing, the FAA requested clarification concerning the coordinates of the seaplane base because its proposed latitude and longitude as provided by the applicant may be incorrect. If the FAA does not issue an approval after receiving clarification, Respondent will deny the application due to the lack of an FAA air space determination.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is
The Issue Whether the subject assessment of taxes, interest and penalties should be upheld.
Findings Of Fact By "Notice of Assessment and Jeopardy Findings" dated July 31, 1989, Respondent assessed Petitioner with taxes, interest, and penalties in the total amount, as of the date of the notice, of $161,724.75. This assessment was made pursuant to Section 212.0505, Florida Statutes, following an incident on February 4, 1988. The parties stipulated that this assessment was properly issued, that notice thereof was properly given to Gary Wayne Chitty, and that the mathematical calculations contained therein are accurate and correct. The following findings are made as to Petitioner, Gary Wayne Chitty, pursuant to the stipulation of the parties. His full name is Gary Wayne Chitty. His social security number is 261-17-0682. His date of birth is April 27, 1953. His present residence is 6840 S.W. 12th Street, Miami, Florida. He has never declared himself a citizen of any country other than the United States. On, or before, February 1988, he knew Rafael Silvio Pena. On February 4, 1988, he held a valid multi-engine pilot's license which was issued to him by the Federal Aviation Authority. On, or about February 4, 1988, he and Rafael Silvio Pena boarded and flew an aircraft designated N6726L. He and Mr. Pena planned to fly a multi-engine aircraft (N6726L) from a point outside of the United States and to enter the airspace of the United States near Cedar Key, Florida and travel within the airspace of Florida to Marathon, Florida. He filed, or caused to be filed, a flight plan for said trip with Mr. Pena in advance of the trip. He loaded or caused to be loaded marijuana on the aircraft (N6726L) prior to its departure. On, or about, February 4, 1988, he and Mr. Pena flew said airplane (N6726L) from a point in the vicinity of Cedar Key, Florida, to Marathon, Florida. During said flight, the aircraft made no other landings. During the entire flight on February 4, 1988, he and Mr. Pena were the sole occupants of said aircraft. During said flight he was the pilot of N6726L. He flew this aircraft on February 4, 1988 with the full knowledge and/or consent of the airplane's owners and/or official lessees. When he took off from the aircraft's departure point on February 4, 1988, it was loaded with a large quantity of marijuana. When he took control of said aircraft and took off, he knew it was loaded with said marijuana. He discussed his plans to transport the marijuana with Mr. Pena. When he took control of the aircraft, the aircraft (N6726L) contained nineteen (19) bales of marijuana which weighted six hundred ninety-nine (699) pounds. He and Mr. Pena flew this airplane along a course towards Marathon, Florida in a manner which took it over or near Lake Okeechobee, Florida. At a point along his route, he and/or Mr. Pena caused the bales of marijuana to be jettisoned from the aircraft. The marijuana was jettisoned as part of a conscious plan or design. The marijuana that was jettisoned from N6726L during its flight on February 4, 1988, weighed a total of 699 pounds. He did not know that during this flight of February 4, 1988, his aircraft was being observed by law enforcement officers. As part of his original plan, he piloted this aircraft to Marathon, Florida, where he landed. AA. During this entire flight the aircraft performed adequately and experienced no mech- anical difficulties. BB. Upon his landing at Marathon, he and Mr. Pena were arrested. CC. He knew the estimated retail value of the marijuana on board his aircraft (N6726L) was $600 per pound.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered which upholds the subject Jeopardy Findings and Assessment. RECOMMENDED in Tallahassee, Leon County, Florida, this 28th day of January, 1991. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of January, 1991. COPIES FURNISHED: James McAuley, Esquire Mark Aliff, Esquire Assistant Attorneys General Department of Revenue Tax Section, Capitol Building Tallahassee, Florida 32399-1050 Mel Black, Esquire 2937 S.W. 27th Avenue Miami, Florida 33133 J. Thomas Herndon Executive Director Department of Revenue 104 Carlton Building Tallahasseee, Florida 32399-0100 William D. Moore General Counsel 203 Carlton Building Tallahassee, Florida 32399-0100
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following facts are found: Respondent, Thomas A. Baggett has been licensed by the State of Florida as a pilot in Tampa Bay for fifteen (15) years and at all times pertinent to this proceeding was licensed by the State of Florida as a pilot. On February 5, 1984, at about 0620 hours, while Captain Baggett was piloting M/V Triton C outbound from the Gardinier Wharf in Hillsborough County, Florida, the M/V Triton C ran aground outside the prescribed limits of CUT D in Tampa Bay on the east side. The M/V Triton C is a Liberian bulk carrier with an approximate length and width of 576.7 feet and 81 feet, respectively, with a gross tonnage of 17,823 tons. At the time of grounding, the M/V Triton C had a forward draft of 29 feet, 11 inches and an aft draft of 30 feet and 1 inch. The M/V Triton C was experiencing no engine or navigational equipment problem before it ran aground. All aids to navigation, including ranges and buoys, were in place and working properly at the time of the grounding. The M/V Triton was travelling at a speed of 11.7 knots. Range lights, when properly aligned, provide a way for the pilot or anyone navigating a vessel to know the vessel is in the center of the channel. On the morning of February 5, 1985, shortly before the grounding of the M/V Triton C, Captain Baggett gave orders for the turn from CUT E into CUT D, or from a heading of 198 degrees to a heading of 213 degrees. Captain Baggett ordered the wheel 20 degrees to starboard and then eased to 10 degrees. Captain Baggett then ordered the quartermaster to midship the wheel and steady the vessel on 213 degrees. He gave no instructions to the quartermaster concerning the use of the range lights for navigating the center of the channel. At this point the confusion begins. Captain Baggett testified that the M/V Triton C steadied up on 213 degrees, an appropriate course for the transit of CUT D, while he was present and he observed the M/V Triton C as being on the ranges for about 2 minutes before going into the chart room. As he stepped back into the chart room, he glanced at the compass and observed that the vessel was on a heading of 213 degrees. Captain Baggett gave no further instructions or orders other than "hard to starboard" when he came out of the chart room 15-20 seconds later and noticed the bow swinging to port, the rudder indicator showing 20 degrees rudder and the ranges being already opened. Captain Baggett testified that upon giving the order "hard to starboard" the quartermaster pulled the wheel and went "hard to port" and the vessel almost immediately went aground. The mate and quartermaster tell a different story. The master was below and not present on the bridge at the time of grounding. The mate testified that Captain Baggett went into the chart room while the compass was swinging through 210 degrees and before the vessel steadied up on 213 degrees, and that Captain Baggett remained in the chart room for 40 seconds to 1 minute and came out as the vessel went aground. The quartermaster testified that Captain Baggett went into the chart room immediately upon the vessel steadying up on 213 degrees, and did not stay to watch the course or range for 2 minutes. He further testified that Captain Baggett was in the chart room for 5-6 minutes; that he came out of the chart room as the vessel went aground; and, Captain Baggett gave no order of "hard to starboard". The quartermaster at the time of the grounding was Maheswaran Gnanasundran and the mate was Siburs Ioannas. As evidenced by the depositions, both were foreign; neither spoke English and each required an interpreter at the deposition. The master of the M/V Triton C on the day of grounding was Stamatios Stanou, a citizen of Greece, and required an interpreter for his deposition. Captain Baggett experienced a communication problem with quartermaster Gnanasundran in the beginning of the turn out of CUT E to CUT D, and earlier with another quartermaster at the beginning of the turn out of Hilisborough A CUT into Hillsborougn C CUT who was on duty just prior to quartermaster Gnanasundran. The M/V Triton C was at a heading of 206 degrees immediately after grounding and did not move significantly from that heading while grounded. Both the mate and the quartermaster testified that the M/V Triton C, after steadying up, stayed on the course heading of 213 degrees during the entire time and was on the same course heading when the vessel went aground. The mate testified that as the M/V Triton C began to run aground it began to list to the right, and its heading as it finally came to rest aground was 206 degrees. The master of the M/V Triton C testified that the wind was out of the northwest at 15 knots, with full tide, and the current being with M/V Triton C at about 2 knots. Captain John C. Hanson, an investigator for petitioner, testified that at the time of grounding, based on tidal information and weather reports, the wind was out of the northwest and there was an ebb tide running in a southerly direction which would tend to set the M/V Triton C in a southerly direction to the east of CUT D. Captain Hanson further testified that these conditions would have an effect on navigation. Captain Baggett testified that there was an ebb tide in a southwest direction and that it would tend to set to the southwest but at that point in time, it would have had very little effect on the M/V Triton C. Therefore, he did not make any allowances for the tide, wind, or a combination of them. Petitioner's Exhibit No. 3 shows the mean lower low water depth outside of the confines of the channel in the area of grounding to be 24 feet to 25 feet. Captain Hanson testified that the chart was current but that the depth of the water in a Particular area could be deeper, depending upon tides and winds. Captain Baggett testified that soundings taken on February 5, 1985, during the morning of grounding, put the depth of the water at the bow (point of grounding) and stern to be 25 feet and 37 feet, respectively and, that he visually observed, after daylight the stern of the vessel as being located in the ship channel of CUT D. The ship channel in CUT D has an approximate width of 400 feet with shoaling on both sides. Captain Hanson boarded the M/V Triton C 3 days after the grounding and testified that he plotted the position where the vessel went aground by taking "crossbearings of fixed structures, (no floating aids) and one radar range to one of the radar structures." Captain Hanson plotted the position of the M/V Triton C to be on the east side of CUT D, at a point 450 feet from the centerline of the CUT D approximately 1325 yards from a midpoint between buoys 1E and 2E. For an exact position see Petitioner's Exhibit No. 3. The crossbearings used to locate the exact position of the M/V Triton C are shown on the chart on the right side of Petitioner's Exhibit No. 3. The left side of Petitioner's Exhibit No. 3 is an enlargement of CUT D prepared by Captain Hanson showing the various courses the M/V Triton C could have taken from a point abeam of buoys 1E and 2E to the position of grounding based on the speed of the M/V Triton C at 11.7 knots. Petitioner's Exhibit No. 3 demonstrates that if the point of grounding was 450 feet from the centerline of the channel, as Captain Hanson testified, and, the M/V Triton C grounded on the heading of 206 degrees, then, at that heading, the stern of a vessel 576.7 feet long could not have reached the channel. Captain Hanson's testimony concerning his method of locating the position of the M/V Triton C, the crossbearing used and the calculations went unrebutted. With a vessel drafting 29 feet 11 inches forward and the point of grounding being 450 feet from the centerline of the channel, the depth of the water outside the confines of the channel along the heading taken by the M/V Triton C was deeper than 25 feet or the grounding would have occurred sooner and at a point closer to the east bank of CUT D. As Petitioner's Exhibit No. 3 demonstrates, the testimony of the quartermaster that the M/V Triton C steadied up on 213 degrees after making the turn from CUT E to CUT D and steered that course for five to six minutes while Captain Baggett was in the chart room is incorrect as to how long Captain Baggett was in the chart room, because the vessel would have travelled beyond the point of grounding in 5 to 6 minutes. As Petitioner's Exhibit No. 3 demonstrates, the testimony of the mate that Captain Baggett went into the chart room while the compass was swinging through 210 degrees and before the vessel steadied up on 213 degrees and that the vessel went aground within 40 seconds to 1 minute while Captain Baggett was still in the chart room is incorrect as to how long Captain Baggett was in the chart room because the vessel could not have travelled to the point of grounding in 40 seconds to 1 minute from the time it made the turn out of CUT E into CUT D. As Petitioner's Exhibit No. 3 demonstrates, the testimony of Captain Baggett that the vessel steadied up on a heading of 213 degrees in the center of CUT D and that he viewed the ranges in line for 2 minutes before going to the chart room and that "almost immediately" upon coming out of the chart room 15 to 20 seconds later the vessel went aground was incorrect as to how long he stayed after the vessel steadied up before going into the chart room because in that time frame the turn, causing the vessel to go aground would have been so sharp the vessel would have gone aground at a heading significantly less than 206 degrees. The most believable evidence demonstrates that Captain Baggett was in the chart room 2-3 minutes prior to grounding. Captain Baggett went into the chart room to make his time and distance calculations because light was more readily available. Captain Baggett could have made the time and distance calculations without going into the chart room. While Captain Baggett was in the chart room, he was facing away from the chart room entrance and did not look at the rudder indicator, the ranges, or otherwise determine if his orders were being properly carried out. Captain Baggett's expertise as a pilot was available to the mate and quartermaster while he was in the chart room had either of them been aware of a problem and requested his assistance. But, his expertise as a pilot was not totally available to the vessel due to his position in the chart room. Where the crew is unfamiliar with the harbor and its lights and there is a language problem, courses are usually given on compass rather than instructions on the range lights.
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 issue is whether Florida Administrative Code Rule 61G14-22.012 is an invalid exercise of legislatively delegated authority in violation of section 120.52(8), Florida Statutes (2014).
Findings Of Fact Petitioner BBP is an association of harbor pilots that performs the pilotage services at PortMiami. BBP consists of pilots licensed by the State of Florida in accordance with chapter 310, Florida Statutes. Petitioner PEPA is an association of harbor pilots that performs the pilotage services at Port Everglades. PEPA consists of pilots licensed by the State of Florida in accordance with chapter 310. FHPA is a statewide organization representing the interests of Florida’s approximately 100 state-licensed harbor pilots, the membership of which is comprised of the eleven local pilot associations that serve each of Florida’s 14 deep-water ports. BBP and PEPA are members of FHPA. Chapter 310 governs pilots, piloting, and pilotage in the waters, harbors, and ports of Florida. Section 310.141, Florida Statutes, requires that, except in certain narrow circumstances, all vessels shall have a licensed state pilot or deputy pilot on board to direct the movements of the vessel when entering or leaving ports of the state or when underway on the navigable waters of the state’s bays, rivers, harbors, and ports. Section 310.011 creates the 10-member Board of Pilot Commissioners (“BOPC” or “Board”); each member is appointed by the Governor “to perform such duties and possess and exercise such powers relative to the protection of the waters, harbors, and ports of this state as are prescribed and conferred on it in this chapter.” In addition to other responsibilities, the Board determines the number of pilots in each port (section 310.061) and disciplines licensed pilots when appropriate (section 310.101). Although the BOPC has numerous statutory responsibilities, setting the rates of pilotage in each port is not one of them. Florida Administrative Code Rule 61G14-22.012 (“challenged rule” or “rule”) is entitled “Determination of Disputed Issues of Material Fact; Formal or Informal Hearings.” 5. Rule 61G14-22.012 cites section 310.151(1)(c) as specific authority. The challenged rule lists as “Law Implemented” sections 310.151 and 120.57. The former Pilotage Rate Review Board originally adopted the rule in 1995. When the Legislature amended chapter 310 in 2010, the former Pilotage Rate Review Board’s name was changed to the Pilotage Rate Review Committee (“PRRC” or “Committee”). The Committee consists of seven members, all of whom are also members of the BOPC. The PRRC is responsible for setting rates of pilotage in each port. On November 5, 2014, the BOPC/PRRC published a notice in the Florida Administrative Register announcing a telephone conference call meeting for consideration of “Rate Review Committee Rules.” PRRC members voted at that meeting to repeal rule 61G14-22.012, but determined they did not have enough information to know if a Statement of Estimated Regulatory Costs was required. On December 11, 2014, the BOPC/PRRC published a second notice in the Florida Administrative Register announcing a telephone conference call meeting for consideration of “Rate Review Committee Rules.” At that meeting, the PRRC voted to reconsider its original vote to repeal rule 61G14-22.012, but because the issue of potential reconsideration had not been properly noticed, no official vote on reconsideration was taken. On January 7, 2015, the BOPC/PRRC published a notice in the Florida Administrative Register announcing a meeting on January 22, 2015, and January 23, 2015. Among the subjects noticed for consideration was “Reconsideration of Repeal of Rule 61G14-22.012, F.A.C.” This matter was considered by the PRRC on January 23, 2015. By a 5-2 vote, the Committee voted against repealing rule 61G14-22.012. FCCA is a trade association representing cruise lines that are subject to pilotage fees pursuant to chapter 310, Florida Statutes. FCCA has filed petitions to reduce the rates of pilotage in both PortMiami and in Port Everglades.
