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.
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 Based upon all of the evidence, the following findings of fact are determined: Michael D. Perez took the competitive examination in March 1990 and failed to obtain an overall passing grade, having obtained a failing grade in Inland Rules of the Road and Federal and State Laws and Rules. The deputy pilot examination given in Florida differs from most examinations given to determine minimum competency in that this examination is a selective type examination to select the best qualified, i.e., the one or two receiving the highest grade on the examination to fill existing vacancies. 2 3. Even if Petitioner succeeds in receiving a corrected grade for all three questions here challenged, he would obtain an over all passing grade on the examination but would not receive a grade high enough to result in his selection for a vacancy. Question 57 is intended to test the applicant's knowledge of the inland rules of the road. The sketch accompanying the question shows two sailing vessels in a crossing situation with the wind blowing in the direction vessel A is heading and on the port beam of vessel B. Both vessels show two sails (no masts) with the forward sail on the stem of the vessels with the second sail emanating near the vessels' midships. On vessel A the midships sail extends over the starboard side while the forward sail extends to port. On vessel B both sails extend over the starboard side of the vessel. Rule 12 of the inland rules of the road covers the conduct of sailing vessels in sight of each other in a crossing situation and provides: When each has the wind on a different side, the vessel which has the wind on the portside shall keep out of the way of the other; When both have the wind on the same side, the vessel which is to windward shall keep out of the way of the vessel which is to leeward; and If a vessel with the wind on the portside sees a vessel to windward and cannot determine with certainty whether the other vessel has the wind on the port or the starboard side, she shall keep out of the way of the other. (b) For the purpose of this Rule the windward side shall be deemed to be the side opposite to that on which the mainsail is carried or, in the case of a vessel, the side opposite to that on which the largest four-an-aft sail is carried. Petitioner contends that because the diagram accompanying question 57 shows sails emanating from both the port and starboard side he was uncertain which was the main sail and therefore he marked answer C which says "B is the stand-on vessel because she is crossing from starboard to port." The correct answer is D which says "B is the stand-on vessel because A is to windward." The hand-drawn diagram showing one sail bottomed at the stem of the vessel can depict only a sloop-type vessel and this sail is a jib. Accordingly, the sketch showing the midship sail over the starboard side would indicate this sail is the mainsail and the vessel is deemed to have the wind to port. Accordingly, both vessels have the wind on the same side which makes the leeward vessel the stand-on vessel. Furthermore, answer C selected by Petitioner that B is the stand-on vessel because she is crossing from starboard to port would be correct for power driven vessels, but is not applicable to sailing vessels which are covered by Rule 12. For sailing vessels, the stand-on and give-way vessel in a crossing situation is determined by the wind direction in relation to the vessel's heading and not on whether one is to starboard or to port of the other. Question 82 involved the application of two signals required by the Inland Rules of the Road. This question, with accompanying diagram, involved a vessel backing from a slip into the channel and calls into play Rule 34 of the Inland Rules. Rule 34(g) states "When a power-driven vessel is leaving a dock or berth, she shall sound one prolonged blast." Rule 34(a) provides: "When power driven vessels are in sight of one another and meeting or crossing at a distance within half a mile of each other, each vessel underway, when maneuvering as authorized or required by these rules: (1)(i) shall indicate that maneuver by the following signals on her whistle: one short blast to mean "I intend to leave you on my port side;" two short blasts to mean "I intend to leave you on my starboard side;" and three short blast to mean "I am operating astern propulsion." Question 82 states: As shown in figure 208, vessel A is backing from a slip into the channel. Vessel B is one-half mile away and is approaching. She cannot be seen because of warehouse C. Both vessels are power driven. As A backs from the slip, she must sound: One prolonged blast only. One prolonged blast followed immediately by three short blasts. One prolonged blast and, when in sight of B, sound 3 short blasts. The correct answer is C. Petitioner gave answer A. A careful reading of question 82 shows a developing situation. A is backing from a slip into the channel. B is not in sight because of an obstruction. B later comes into view. The rule above quoted requires A to sound a prolonged blast when she starts from the slip into the channel and to sound 3 short blasts to notify B that she is going astern as soon as B comes into view. Accordingly, answer A is correct only during the initial stage of the maneuver. Question 173 involves a knowledge of requirements placed on foreign vessels entering U.S. ports and states: The radar installation aboard a foreign flag tank vessel of 38,000 GRT must have: At lest two marine radar systems far surface navigation which operate independently of each other. Short range and long range capability. Only one radar with true north features consisting of a display that is stabilized in azimuth. Only I is a correct statement. Only I and II are correct statements Only I and III are correct statements. I, II, and III are all correct statements. The correct answer is B. Petitioner selected D. Petitioner contends that since the question does not state the vessel was proceeding to or from a U.S. port the question is irrelevant as the federal code requirements are not applicable unless the vessel is destined for or departing from a port or place subject to the jurisdiction of the United States. However, on cross-examination Petitioner acknowledged that he was not aware of any question not relevant to a vessel coming into Florida waters, and he would assume there would be no questions testing an applicant's knowledge of statutes or not applicable to Florida ports. Nevertheless, since the question did not specify the vessel was subject to United States jurisdiction, he deemed all of the answers incorrect. He acknowledges that had the question included information the vessel was proceeding to or entering a United States port then answer B is correct.
Recommendation It is recommended that a final order be entered affirming the grades given to Michael D. Perez on the March 1990 examination and that this petition be dismissed. DONE and ENTERED this 5th day of February 1991, in Tallahassee, Florida. K.N. AYERS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of February 1991. APPENDIX Respondent's proposed findings are accepted. Petitioner's proposed findings are accepted except: 10. Rejected. Accepted that Crawford based his opinion on his conclusion that the drawing is ambiguous; however it is no reasonable for an experienced seaman to confuse the main sail for the jib. Although Crawford testified that Rule 12 states in effect "if you are in doubt, assume you are the give-way vessel and keep out of the way," this ignores the entire philosophy of the rules to require the stand-on vessel to maintain course and speed so the give-way vessel can know what maneuver to expect. 20. Rejected. While the question states the vessels are not in sight of each other initially, since vessel A is backing from a slip, not the channel, it is so obvious that as soon as vessel A clears the warehouse obstruction Vessel B will be in sight. Then the requirement to sound the short blasts arises and failure to sound those blasts violates the rule, the rule requiring a backing vessel to notify ships in sight of her course. 24. Rejected. The diagram accompanying the question shows the two vessels in a crossing situation. 32. Rejected. COPIES FURNISHED: Margaret Matthews, Esquire Post Office Box 959 Tampa, Florida 33601-0959 Roberta L. Fenner, Esquire Department of Professional Regulation Northwood Centre 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792 Anna Polk Acting Executive Director Board of Pilot Commissioners Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792 Kenneth E. Easley General Counsel Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792
The Issue Whether Respondent's license should be revoked as set forth in the Notice of Intent to Revoke License.
Findings Of Fact The Petitioner is the state agency charged with the responsibility of regulating yacht salesmen and brokers. Such authority includes the discipline of yacht salesman as set forth in Chapter 326, Florida Statutes. At all times material to the allegations of this case, Respondent has been licensed as a yacht salesman in the State of Florida. Respondent first applied for licensure in June of 1994. This license request was granted and Respondent was issued a license for the two-year period 1994-1996. In June of 1996, Respondent applied to renew the license. This license request was also granted and Respondent was issued a yacht salesman's license for the period 1996-1998. On or about April 28, 1997, Respondent was convicted of conspiracy to commit wire fraud, a federal violation, and a felony. As a result, Respondent was sentenced and incarcerated. In July of 1998, Respondent applied to the Department to renew the yacht salesman's license. Based upon the information submitted to Petitioner at the time he sought renewal, the Department had no direct information of the felony conviction. In telephone conversations with the Department staff, Respondent did not disclose he had been incarcerated, was living in a halfway house as part of his sentence, and was a convicted felon. In August of 1998, a third party advised the Department that Respondent had the felony conviction. Thereafter, upon such notice, Petitioner took action to seek revocation of Respondent's license. The license renewal for 1998 filed by Respondent was executed on July 7, 1998. Technically, his license expired on June 14, 1998, but he was afforded a grace period within which to process the renewal. To this end the Department attempted to accommodate the renewal applicant. On the license renewal card Respondent submitted conflicting answers. To question (3) which read: Have you been convicted of a crime, found guilty, or entered a plea of nolo contendere, since initial licensure? Respondent answered "Y." To question (4) which read: Has any judgment or decree of a court been entered against you or is there now pending any case in this or any other state, in which you were charged with any fraudulent or dishonest dealing? Respondent answered "N." An undated letter from Respondent accompanied the renewal card which referred to a prior correspondence with the Department of June 6, 1996, as the explanation for question (4). As to question (3), the letter stated: "a conviction was made on 4/28/98 in the U.S. District Court Southern Florida." Respondent's answer to question (4) was false. Moreover, the manner in which Respondent answered the two questions did not disclose that Respondent had been convicted of a felony or conspiracy to commit wire fraud. More telling of Respondent's attempt to mislead the Department, however, is his failure to disclose any of the foregoing circumstances during telephone conversations with staff seeking to assist him to renew the license.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation enter a final order revoking Respondent's license. DONE AND ENTERED this 29th day of June, 1999, in Tallahassee, Leon County, Florida. J. D. PARRISH 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 29th day of June, 1999. COPIES FURNISHED: Philip Nowick, Director Florida Land Sales, Condos, Mobile Homes Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399 Scott K. Edmonds, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007 Tracy J. Sumner, Esquire Tracy J. Sumner, P.A. 1330 Thomasville Road Tallahassee, Florida 32303
Findings Of Fact By application dated May 10, 1987, and subscribed to on December 18, 1987, the Petitioner applied to the Department for approval and licensing of a seaplane airport site for his own private usage (P-2) . The Petitioner is appropriately licensed as a seaplane pilot. The location of the proposed airport is Pate Lake, located near Caryville, in Washington County, Florida. Pate Lake is approximately one mile by three-quarters of one mile in size, large enough to accommodate the Petitioner's proposed airport. The Petitioner's seaplane is currently and would remain based on the west side of the lake, where the Petitioner owns a parcel of land. The Petitioner has utilized Pate Lake as a base of operation for the seaplane on an irregular basis for several years. The seaplane is a single-engine Balanca Citaba, similar in size to a Piper Cub. The plane carries a maximum of two persons, including the pilot. The engine produces 150 horsepower and has a muffled exhaust. There was no reliable evidence which would indicate the decibel level or amount of noise that is generated by the seaplane on takeoff, however the noise at landing is minimal because landings are accomplished with the engine thrust significantly reduced. Pate Lake is relatively remote with limited population, however the population residing near the water is generally concentrated on the western side of the lake. The lake is used primarily for fishing and other recreational activities. A public boat ramp is also located on the west side of Pate Lake, approximately 400 to 500 feet from the Petitioner's property, according to a map prepared by the Department and introduced by the Petitioner (P-12). The number and type of recreational users of the lake depend on the weather and time of year, with an estimated 15 to 20 fishing boats on the lake simultaneously when conditions warrant. In December, 1987, an on-site inspection of the proposed airport area was performed by Larry Parker, an aviation specialist with the Department. Parker determined that the site was feasible for use as proposed by the Petitioner and "can meet the requirements set forth in Airport Licensing and Zoning Rule Chapter 14-60" (P-4). By letter dated December 30, 1987, the administrator for the Washington County Commission advised the Department that there were no restrictions which would prohibit the establishment of the seaplane base (P-5). There is no relevant zoning ordinance applicable to Washington County. By letter dated March 2, 1988, the Petitioner was advised by the Federal Aviation Administration that the proposed airport would "not adversely affect the safe and efficient use of airspace by aircraft" provided that operations were limited to VFR (visual flight rules) weather conditions, and that the airport were limited to private use. The F.A.A. specifically "did not consider the interaction of sea plane operations with surface craft traffic..." (P-6). On May 2, 1988, the department issued a "Notice of Intent" to approve the airport and issue the license (P-3). A public meeting was subsequently held on June 8, 1988, at which time an unknown number of persons apparently objected to the Department's intended approval of the license application. On June 16, 1988, a resolution was adopted by the Washington County Board of County Commissioners at which time the Board expressed opposition "to the permitting of a Seaplane operation on Pate Pond" (P-8). The resolution clearly indicates that the Board acted, at least in part, in the belief that "a commercial Seaplane operation is contemplated on the lake..." and that property owners in the area objected to the proposal. By memo dated July 11, 1988, Larry Parker, the district aviation specialist for the Department forwarded materials from the public meeting to his supervisor, Bobby Grice (P-9). At that time, Parker reiterated his opinion that the proposed airport site met "the safety standards as outlined in Rule 14-60", and that the Petitioner could operate in a safe manner from Pate Lake. By letter dated July, 27, 1988, the Petitioner received notice from the Department that it intended to deny his application for approval of his Pate Lake seaplane base (P-10). The Department stated that the denial was based on the County Commission resolution of June 16th, which "the department accepts...as equivalent to zoning refusal by the Washington County Commission." Further the Department cited comments "submitted by many of the nearby landowners and they are opposed to a seaplane base on Pate Lake on the basis of noise and safety." The Department's action followed the recommendation of Mr. Grice to deny the application. Mr. Grice based his recommendation on safety concerns related to utilization of the recreational lake as a seaplane base. Mr. Grice has visited the Pate Lake area, but has not viewed the Petitioner's seaplane in operation. At the administrative hearing the Department presented the testimony of several persons who reside on or near Pate Lake. The property owners had on infrequent occasions heard or seen a seaplane, allegedly the Petitioner's, flying over their homes at an altitude they believed to be unreasonably low or in a manner which caused what they felt was excessive noise. 1/ No one recalled more than two such incidents over the several years that the Petitioner has utilized the lake as a seaplane base. Other complaints were directed towards the maintenance of the Petitioner's property, which was identified by one witness as an "eyesore". Concerns were voiced related to the witnesses fear of property value depreciation, but there were no facts to support the theoretical depreciation. One witness, a helicopter instruction pilot who visits the area on occasion, observed the seaplane, approximately seven or eight months prior to the hearing, take off and land twice on the same day. The witness testified that the pilot on both occasions flew at an excessively low altitude over the houses on the west side of the lake. The witness estimated the altitude over the houses to be less than 500 feet, an altitude which he believed was a "major judgement error" of the pilot, because an emergency maneuver at that altitude, if necessary, would have been difficult to accomplish. However, the witness, who has no experience with seaplane operations, did not register the incident with any regulatory agency, although he believed it to be a violation of minimum safe altitude regulations. He has not otherwise viewed the seaplane in operation. One witness, a seasonal resident of the lake area who utilizes the lake for fishing, recalled an incident in January or February, 1988, where the Petitioner's plane landed on the lake while the witness was fishing from a small boat in the same vicinity as where the Petitioner was attempting to land. The witness had not heard the plane's approach due to the lack of engine noise until the plane began landing. Although uninjured, he was fearful for his safety during the incident. The witness explained that he was concerned about the personal safety of boaters in the water during the times the seaplane was landing, because the noise level is minimal, and boaters may not be aware of the aircraft's approach. There was no explanation or response offered by the Petitioner to the allegations of the Department's witnesses other than assertions that a seaplane could be operated in such a manner as to prevent low flight over residences and minimize risk to users of the lake. Although there was testimony related to lakes, similar or smaller than Pate Lake, which are allegedly licensed as private seaplane airports, the testimony did not provide evidence sufficient to provide for an accurate comparison between other lakes and Pate Lake.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED: That the Petitioner's application for licensure of Pate Lake as a seaplane base be DENIED. DONE and ORDERED this 20th day of December, 1988, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM 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 20th day of December, 1988.
The Issue Whether Petitioner owes sales and use tax (plus penalties and interest) to the Department of Revenue (Department), as alleged in the Department's December 22, 1999, Notice of Decision.
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following findings of fact are made to supplement and clarify the numerous stipulations set forth in the parties' Joint Stipulation of Facts and Second Joint Stipulation of Facts: 23/ Mr. Wheeler is a very successful entrepreneur, who has numerous investments and businesses. His interest in Petitioner represents only a small fraction of his wealth, and, consequently, he pays little or no attention to its business operations. He has let Captain Ernest exercise day-to-day control over these operations. No one other than Captain Ernest has been delegated such authority. When the "Destiny" was purchased by Petitioner, Mr. Wheeler intended for it to be used, for a time, as a charter boat (on a bare boat basis) and then sold, hopefully for a profit. From the time that Petitioner purchased the "Destiny" until the end of the Audit Period, Petitioner was not "involved in any business other than chartering the 'Destiny.'" Captain Ernest was the one who "picked [the "Destiny"] out." He did so pursuant to Mr. Wheeler's instructions that he "make sure" to select a "good charter platform." Aside from giving Captain Ernest these instructions, Mr. Wheeler did not participate in the selection process. The "Destiny" had a "perfect" configuration for chartering. In fact, it was "originally designed as a charter boat." It had last been used for chartering approximately five years before it was purchased by Petitioner. Rob Maas (the "Mr. Maas" referred to in the parties' Stipulation of Fact 26) is the attorney who represented Petitioner at the time the "Destiny" was purchased. At the request of Mr. Wheeler, who was "interested in satisfying all conditions for the Florida use tax exemption," Mr. Maas advised Mr. Wheeler and Captain Ernest as to "what was necessary to maintain the exemption." He told them that "bare boat charter forms" needed to be used when the vessel was chartered and that "any time the boat ever moved . . . [it had to be for] a business reason." After being given such advice, Mr. Wheeler specifically instructed Captain Ernest to use the "Destiny" exclusively for bare boat chartering and no other purpose, instructions that Captain Ernest followed. Captain Ernest accepted delivery of the "Destiny" on behalf of Petitioner in the Bahamas, 1/ notwithstanding that the purchase agreement between Petitioner and the seller indicated that delivery of the vessel was to be made at Pier 66 in Fort Lauderdale, Florida. Petitioner did not pay any sales tax on its purchase of the boat. Mr. Wheeler was not present at the time delivery of the vessel was accepted. After accepting delivery, Captain Ernest brought the boat to Fort Lauderdale. He did so because Fort Lauderdale was "the easiest place to get repairs done," a "good place to pick up crew . . . and finding things that you need for boats," and "the place you want to be" to charter a boat; however, he "probably [would] not" have entered Florida waters if had known that doing so would subject Petitioner to use tax liability. Upon arriving in Fort Lauderdale, Captain Ernest took the "Destiny" directly to Bradford Marine Shipyard (Bradford Marine), a Fort Lauderdale repair facility, where it was "outfitted . . . specifically for charter." On those occasions that Mr. Wheeler was on the "Destiny" during the Audit Period, he was aboard in the capacity of a paying charterer pursuant to a bare boat charter agreement that he and Petitioner had entered into on July 21, 1995. This bare boat charter agreement provided that Petitioner (as the "Owner") would make the "Destiny" available to Mr. Wheeler (as the "Charterer") "for charter on a 'stand-by' basis" and further provided, in pertinent part, as follows: Vessel Availability. Charterer understands the Vessel is scheduled to undergo significant repairs and improvements during 1995 and will not be available when such work is scheduled. Charterer further understands and agrees its charter is on a non-exclusive basis and Owner intends to charter the Vessel through the use of a charter broker to other parties. In the event of a scheduling conflict between Charterer and another charterer, Charterer agrees Owner may "bump" Charterer from using the Vessel during the conflicting period. Charter Broker. Owner and Charterer acknowledge that this is a direct charter without a charter broker. Accordingly, the charter rate is a discounted rate. Term, Hire, & Payment. Subject to the Vessel's availability, Owner agrees to let, and Charterer to hire, the Vessel on such days and for such term as Owner and Charter[er] agree at the rate of $3,000.00 per day, plus state sales tax, if applicable. There will be an accounting at the end of each calendar year to determine Charterer's usage during the preceding year. Due to the Vessel's repair schedule in 1995, the first accounting shall occur at the end of 1996 for Charterer's usage from the date of this Agreement. Charterer shall pay Owner the charter hire determined by the accounting by January 31st of next year. In addition to the charter hire, Charterer shall be responsible for all remaining expenses during charter, including but not limited to food, beverage, fuel, dockage, and accommodations. . . . 5. Control. The Vessel is chartered on a demise basis. Owner hereby transfers to Charterer full authority regarding operation and management of the Vessel for the charter terms. Charterer is solely responsible for retaining a master and crew and it is agreed that said Captain and/or crew are agents and employees of Charterer and not Owner. . . . On July 21, 1995, Mr. Wheeler and Petitioner also entered into a separate agreement for the services of the "Destiny's" captain and crew. This agreement between Mr. Wheeler (as "Charterer") and Petitioner (as "Contractor") for use of the "Destiny's" captain and crew provided, in pertinent part, as follows: Term, Hire & Payment. Charterer hereby retains Contractor to provide crew services to the Vessel during the charter period at the rate of $500.00 per day. In addition, Charterer shall provide the master and crew with food and quarters aboard the Vessel while retained. There will be an accounting at the end of each calendar year to determine Charterer's usage during the preceding year. Due to the Vessel's repair schedule in 1995, the first accounting shall occur at the end of 1996 for Charterer's usage from the date of this Agreement. Charterer shall pay Owner the charter hire determined by the accounting by January 31st of the next year. Provisions. Charterer, before any charter use, shall advance an expense deposit for running expenses. The master shall use these funds to pay for food, liquor, laundry, fuel and lubricants, harbor fees, communication expenses, and any other required supplies or services. If the deposit is insufficient to cover all charges, Charterer shall advance further funds, as needed, during the charter. Upon conclusion of a charter, the master shall provide an accounting to the Charterer of sums received and disbursed. Crew Services. Contractor, on those days Charterer is to use the Vessel, shall provide a full-time, qualified captain and crew. Each crew member shall hold any required license and shall be properly uniformed. . . . Navigation. The master shall act at the Charterer's direction; provided, however, that the master shall not have to carry out any order that jeopardizes the safety of the Vessel or those on board. Relationship. Contractor is retained by Charterer only for the purposes and to the extent set forth in this Agreement, and Contractor's relationship to Charterer shall be that of an independent contractor. Neither the execution or performance of this Agreement shall render the parties partners or co-venturers for any purposes. . . . Mr. Wheeler chartered the "Destiny" pursuant to the July 21, 1995, bare boat charter agreement (and utilized the services of the "Destiny's captain and crew pursuant to the separate July 21, 1995, employment agreement) on the following dates during the Audit Period: September 12, 1995, through September 15, 1995; December 21, 1995, through January 4, 1996; March 4, 1996, through March 7, 1996; July 21, 1996, through July 28, 1996; and August 19, 1996, through August 25, 1996. 2/ These charters all occurred outside of Florida. Mr. Wheeler was billed (in accordance with his agreements with Petitioner) for his use of the "Destiny," for the services performed for him by the "Destiny's" captain and crew, and for all "running expenses" incurred during his charters, and he paid Petitioner the full amount he was billed. Mr. Wheeler was not the only one to charter the "Destiny" during the Audit Period. There were seven other charters: by Ryder Systems, Inc., of Miami, Florida, from 2:00 p.m. to 7:00 p.m. on January 22, 1996; by Barry Zekelman, from noon on April 6, 1996, to noon on April 13, 1996; by William Boardman, from noon on May 20, 1996, to noon on May 31, 1996; by David Cole, from noon on June 29, 1996, to noon on July 7, 1996; by the Robert E. Morris Company, from 4:00 p.m. on July 9, 1996, to 4:00 p.m. on July 12, 1996; by Thomas Russell, from 9:00 a.m. to 8:00 p.m. on July 30, 1996; and by Richard Dvorak, from 3:00 p.m. on August 4, 1996, to 3:00 p.m. on August 18, 1996. Each of these charters, like Mr. Wheeler's charters of the "Destiny," occurred pursuant to a bare boat charter agreement (on a form containing provisions standard in the bare boat chartering industry, including, among others, one obligating the charterer to pay all "running expenses" during the charter), with the captain and crew being provided in accordance with the terms of a separate employment agreement entered into by the charterer. (These separate employment agreements, unlike Mr. Wheeler's agreement for the services of the "Destiny's" captain and crew, were with Captain Ernest, not Petitioner.) The arrangements made for the payment of the "Destiny's" captain and crew for services performed by them while the "Destiny" was under charter during the Audit Period were "customary in the industry." Only one charter during the Audit Period, the Ryder Systems, Inc., of Miami, Florida, charter, took place in Florida. Florida is not considered a preferred destination in the bare boat chartering industry. A considerable amount of time was spent during the Audit Period marketing and promoting the "Destiny" to rebuild the reputation it had previously enjoyed as a charter boat. 3/ It was not until 1997 that Petitioner's bare boat chartering business "really took off as far as . . . charter numbers went." Although the "Destiny" was under charter only for a small portion of the Audit Period, at no time during the remainder of the Audit Period (when it was not under charter) was it used for any purpose unrelated to Petitioner's bare boat chartering business. The "Destiny" was used to house 4/ and feed Captain Ernest and the other members of the crew 5/ at all times during the Audit Period, whether the "Destiny" was under charter or not. Such use of the "Destiny" was in furtherance of Petitioner's bare boat chartering operations. Having a full-time captain and crew aboard a "mega" yacht available for bare boat charter, even when the yacht is not under charter, is essential to conduct successful chartering operations. The captain and crew must be available, on the vessel, to host the charter brokers and prospective charterers who come aboard between charters (sometimes with little or no advance notice) and to perform those everyday tasks necessary to maintain the vessel. To attract and keep qualified onboard personnel, it is necessary to provide them with, as part of their compensation package, free room and board on the "mega" yacht. Doing so is the standard practice in the bare boat chartering industry. When it was not under charter during the Audit Period, the "Destiny" was heavily promoted and marketed in an attempt to attract bare boat charter business. "[A] lot of promotion" and marketing was needed because the "Destiny" was reentering the charter market after a five year hiatus and Captain Ernest "was new to the charter industry." The promotional and marketing efforts included entering the "Destiny" in boat shows, hosting luncheons for charter brokers aboard the "Destiny," taking charter brokers and their guests on "fam" trips on the "Destiny," and showing the "Destiny" to prospective clients. Captain Ernest and the crew always tried to make the "Destiny" look its best when charter brokers and prospective charterers came aboard. Flowers were purchased and used to enhance the appearance of the "Destiny." When charter brokers came aboard the "Destiny," they were wined and dined and otherwise shown the type of service Captain Ernest and the crew were capable of delivering to charterers. (The reputation of the captain and crew for quality service determines "what charters [a "mega" yacht bare boat chartering business is] going to get and how [the] business is going to go.") It was particularly important "in the early days" for Captain Ernest and his crew to "make an impression on the brokers" because they were not known in the broker community. During the Audit Period, when not under charter, the "Destiny" was stocked with supplies and provisions purchased for use in connection with Petitioner's bare boat chartering operations. These supplies and provisions included fuel and various food and beverage items. Some of the food and beverage items were for use during promotional and marketing activities aboard the vessel. The chef (who specialized in European-style dishes) would often serve rack of lamb or roast duck (as a main course) to visiting charter brokers. There were also food and beverage items on the vessel for the members of the crew. In addition, items that could not readily be obtained in the Caribbean islands (at a reasonably competitive price) were purchased before the "Destiny" departed for the Caribbean. These items were stored on the vessel so that they would be available for any charter that Captain Ernest might be able to obtain while the vessel was located in Caribbean. (Charterers paid Petitioner for the items they and their guests consumed during the charter.) It was "common" for Petitioner to buy large quantities of meats and seafood and store these items for later use in the seven freezers on the "Destiny." For example, on one occasion, Petitioner bought 71.49 pounds of leg of lamb (from a company that would "cryovac" the meat so that it would keep for a very long time). There were many occasions during the Audit Period, when the "Destiny" was not under charter, that it was moved from one location to another. All such movements, however, were in furtherance of Petitioner's bare boat chartering operations. For example, it was moved from time to time to attend boat shows and to pick up charter brokers and prospective charterers who wanted to look at the vessel. On other occasions, it was taken to repair facilities and other places ("mainly . . . in Florida"), such as Pier 66, to have repair and maintenance work done. It was also taken out on "quite a few" sea trials. In addition, there were times it was moved to avoid the problems that can arise if a boat just "sit[s] at the dock." "It's very important for a boat to stay moving and stay running" in order for it to remain in good working order. Another reason it was moved was to be in "the prime areas for [charter] pick-ups." 6/ In summary, during the Audit Period, the "Destiny" was either chartered on a bare boat basis (with captain and crew furnished under a separate employment agreement) or used in a manner reasonably designed to further Petitioner's bare boat chartering business, and for no other purpose. Furthermore, every tax-free Florida purchase of tangible personal property made by Petitioner under its Florida sales tax exemption certificate from the time of its acquisition of the "Destiny" until the end of the Audit Period (including the purchase of Yamaha WaveRunners on August 14, 1995, for $12,770.00 7/) was made in furtherance of Petitioner's bare boat chartering business. 8/ By letter dated October 11, 1996, the Department informed Petitioner that it was going to audit Petitioner's "books and records" for the Audit Period. Petitioner was selected for audit because it had reported only a relatively small amount of taxable charter revenue on the Florida sales and use tax returns it filed during the Audit Period. The Department began its review of Petitioner's "books and records" on January 23, 1997, at Mr. Maas' office. The Department's "audit findings" were that the "Destiny" "was purchased for [a] dual purpose, for leasing and to be used by the shareholder" and therefore "the vessel and other purchases [made by Petitioner during the Audit Period under its sales tax exemption certificate] are taxable at the cost price." Based upon these audit findings, the Department issued a Notice of Intent to Make Audit Changes, in which it advised Petitioner that Petitioner owed $250,744.18 in sales and use taxes, $125,325.07 in penalties, and $56,948.55 in interest through July 18, 1997, for a total of $433,017.80, "plus additional interest of $82.44 per day . . . from 07/18/97 through the date [of] payment." By letter dated April 22, 1998, Petitioner protested the Department's proposed assessment. On December 22, 1999, the Department issued its Notice of Decision sustaining the proposed assessment and announcing that, as of December 22, 1999, Petitioner owed the Department $506,142.08, with "interest continu[ing] to accrue at $82.44 per day from 12/23/99." Petitioner subsequently filed a Petition for Chapter 120 Administrative Hearing on the Department's proposed action.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department enter a final order finding that its assessment against Petitioner is incorrect in its entirety. DONE AND ENTERED this 24th day of September, 2002, in Tallahassee, Leon County, Florida. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of September, 2002.
Findings Of Fact Tampa Tri-County Pilots Association (TRICO) was founded January 1, 1984, by Captain Rabren to provide piloting and shifting services in Tampa Bay in competition with the Tampa Bay Pilots Association. Captains Murphy, Cropper, and Farrell are members of TRICO and hold U. S. Coast Guard issued unlimited pilots' licenses for Tampa which authorize them to pilot vessels enrolled in the coastwise trade which enter or leave Tampa Bay. Captain Rabren holds a state pilot's license for Tampa Bay in addition to his federal unlimited pilot's license for Tampa Bay. In 1984 the Chairman of the Board of Pilot Commissioners received a letter from Captain Valenti, U. S. Coast Guard, the captain of the Port of Tampa, calling attention to the Board that certain pilots within Tampa Bay were asserting that neither the State of Florida nor the Coast Guard had jurisdiction over shifting activities of foreign flag vessels. Vessels engaged in the coastwise trade (which generally must be built in the United States and carry the U. S. flag) are piloted, while in waters requiring a pilot, by a U. S. Coast Guard licensed pilot for those waters; and a foreign flag vessel on similar waters is piloted by a state pilot licensed for those waters. Since state licensed pilots also provide piloting services for U. S. flag vessels, all of the state licensed pilots also hold federal pilot licenses. The only pilots that could claim neither the state nor federal government had jurisdiction over their activities were those pilots holding only federal licenses who were piloting foreign flag vessels while being shifted within Tampa Bay. Within Tampa Bay there are four separate and distinct ports as well as several anchorages to which vessels are taken from these ports and from which vessels are taken to these ports. Additionally, vessels are shifted from port to port within Tampa Bay. The distance vessels are shifted within Tampa Bay varies from a few feet alongside the dock to more than 20 miles a vessel would travel from a berth in upper Tampa Bay to the Port of St. Petersburg. Having a tug alongside a ship for a short move of less than one mile is prudent and, perhaps, necessary. However, for a longer trip a tug alongside is unnecessary, dangerous (to the tug) and an unnecessary and unwarranted expense to the ship owner. Prior to the adoption of Rule 21SS-8.10, Florida Administrative Code, members of TRICO performed piloting services on both United States and foreign flag vessels shifting moorings within Tampa Bay. Since its formation TRICO has been in competition with the Tampa Bay Pilots Association to obtain exclusive contracts with shipping companies to perform piloting services on the company vessels while the vessels are shifted to different moorings in Tampa Bay. Upon Rule 21SS-8.10 becoming effective, TRICO members, not holding a state pilot's License, are precluded from shifting foreign flag vessels between moorings in Tampa Bay except when in the docking mode.
The Issue Whether the Respondent failed to meet acceptable standards of safe pilotage as alleged in the Administrative Complaint and, if so, what penalty is appropriate.
Findings Of Fact Warwick G. Cahill (Respondent) is, and at all times material hereto has been, licensed as a harbor pilot by the State of Florida, license number SP 0000111. The Department of Business and Professional Regulation, Board of Pilot Commissioners, is the state agency responsible for prosecution of alleged violations of disciplinary rules applicable to harbor pilots. On July 28, 1993, the M/V Grecian Star (GS) left the dock at the CF Industries Terminal in the Port of Tampa, Florida. The GS is a Cypress flag vessel approximately 656 feet long, with and 81 foot beam and a draft of 32 feet 11 inches. The equipment and machinery on the GS were in good working condition. The Respondent piloted the outbound GS from the Port of Tampa, under the authority of his Florida State Pilot's license. He had boarded the ship at approximately 1:50 PM. Although the ship's Master is ultimately responsible for the safety of the ship, the Master will defer to the local pilot's knowledge and directional skills in navigating local waters. The ship departed from the dock approximately ten minutes after the Respondent boarded. The weather was good, with visibility of approximately eight miles. The sea was slick calm. Winds were from the northwest at not more than four knots. The port tide was at ebb. The current was variable but less than one-half knot. As the GS transited Tampa Bay, the Respondent made several slight course corrections due in part to drift, but the ship's travel was uneventful as it entered Egmont Channel. In the area of Egmont Channel buoys 11 and 12, the pilot boat arriving to permit the Respondent to disembark from the GS contacted the GS bridge by radio and requested that the placement of the port side pilot ladder be raised. The Respondent directed the third mate of the ship to attend to the placement of the pilot ladder. The third mate left the bridge. On of the responsibilities of the third mate is to monitor orders given by the pilot to the helm and to ascertain whether the orders have been followed. At all times during the transit of the GS, the Respondent gave verbal orders regarding the pilotage of the ship. The Respondent expected that such orders would be repeated to him. Orders which were not repeated would be delivered again. At no time during the GS transit of Tampa Bay into Egmont Channel did the Respondent give orders to the helmsman by hand motion or by any other gesture. All orders were delivered verbally to the helmsman by the Respondent and were repeated by the helmsman. At the time the ship was in the area of Egmont Channel buoys 11 and 12, the Respondent stood in front of the helmsman. At some point while still in the position, the helmsman and the Respondent briefly looked at each other. At or about the same time as the two looked at each other, the Respondent moved his left hand or arm. The evidence is clear that the Respondent gave no verbal order to alter the ships course at that point. The helmsman interpreted the "look" and the movement of the Respondent's left arm to indicate an order to turn the ship ten degrees to port. There is no evidence as to how the helmsman determined from a "look" and a gesture that the ship's course was to be altered by ten degrees. The helmsman testified that he verbally stated "port ten" prior to altering the ship's course. There is no evidence that any person on the bridge heard the helmsman repeat the supposed command. There is no evidence that, at any other time during the Respondent's pilotage of the GS, there was any difficulty in hearing any orders given by the pilot or repeated by the helmsman. The greater weight of the evidence fails to establish that the supposed command was verbalized by the helmsman. After standing in front of the helmsman, the Respondent walked to the chart table on which a chart of lower Tampa Bay was displayed and began to respond to questions of the GS Master. The chart table is located aft and on the starboard bulkhead of the wheelhouse. The conversation between the Respondent and the Master lasted between one and two minutes and consisted of a discussion related to the vessel's position, the disembarkation of the pilot, reported traffic, water obstructions, range markers and the monitoring of radio channels. At the time the Respondent walked to the chart table, the ship was on course in the center of the channel. No command was given to alter the course. No command was repeated by the helmsman. Based on the lack of command or response, and on the fact that the ship was on course and centered in the channel, it was reasonable for the Respondent and the Master to conduct their discussion. Based on the estimated speed of the ship at the time of the grounding, the ship moved no more than 1600 to 2000 feet during the conversation between the Respondent and the Master. Based on the beam of the boat and the width of the channel, the ship could move 300 feet to either side without incident. Upon completion of the discussion, the Respondent and the Master simultaneously noticed that the ship's course was incorrect and that buoys 9 and 10 were positioned off the starboard bow rather than dead ahead. The Respondent immediately stated "hard starboard rudder," directing the helmsman to take corrective action, but the ship ran aground on the south bank of Egmont Channel approximately two ship lengths past buoys 11 and 12. The accident caused no injury to person or cargo. No pollution resulted from the grounding. The next day, the GS was re-floated. Although the ship grounded while the Respondent was responsible for the navigation of the ship, the weight of the evidence fails to establish that the grounding was due to any error or omission in the Respondent's performance of his duties.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Professional Regulation, Board of Pilot Commissioners enter a Final Order dismissing the Administrative Complaint filed against Warwick G. Cahill in this case. DONE and RECOMMENDED this 24th day of May, 1994, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of May, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-6170 The following constitute rulings on proposed findings of facts submitted by the parties. Petitioner The Petitioner's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 16. Rejected, not supported by the greater weight of credible and persuasive evidence. The evidence fails to establish that the Respondent intentionally "made" a gesture with his hand. 18. Rejected, not supported by the greater weight of credible and persuasive evidence. 22. Rejected, not supported by the greater weight of credible and persuasive evidence which establishes that the conversation was initiated by the Master. 28-31. Rejected, subordinate. Rejected, irrelevant. There is no credible evidence that any crew member accept the "unusual movement of the vessel without question, though it is actually a result of pilot error." Rejected, irrelevant. There is no credible evidence that any crew member had only a rudimentary understanding of the English language or that such contributed to this incident. 37-38. Rejected, contrary to the weight of the evidence which fails to establish that the Respondent's "inattention" permitted the ship to ground. Respondent The Respondent's proposed findings of fact are rejected as not timely filed. COPIES FURNISHED: Susan J. Foster, Executive Director Board of Pilot Commissioners Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Jack McRay, Acting General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Charles F. Tunnicliff, Esquire Dept. of Business & Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399 David Pope, Esquire Suite 1700 First Union Center 100 South Ashley Drive Tampa, Florida 33602
The Issue Whether the application of Ronald J. Palamara (“Palamara”) for licensure as a yacht and ship broker under Chapter 326, Florida Statutes, should be granted or denied.
Findings Of Fact The Petitioner was previously a licensed yacht and ship broker in Florida, holding Yacht Broker License No.324. On April 28, 1999, the Petitioner’s prior license expired. The Petitioner reapplied for a Yacht Broker license on February 24, 2000. Robert Badger (Badger), at that time an investigator with the Division, investigated the application for form pursuant to Rule 61B-60.003(2), Florida Administrative Code, and found that there were no problems with the form of the application. Badger also reviewed the application for moral character of the applicant pursuant to Rule 61B-60.003(3), Florida Administrative Code. On the application, the Petitioner indicated that he had a criminal background, but failed to disclose the nature of the criminal background on the application. In a letter from the Division addressed to the Petitioner, additional information was requested regarding his criminal background. The Petitioner replied in a letter that he had been convicted of a misdemeanor for resisting an officer without violence. The Petitioner also disclosed on the application that he had a civil Final Judgment against him in the matter of Chinnock Marine, Inc. v. Barthelemy & Palamara, Case No. 98- 19512 (Fla. 17th Cir. 1999). He did not fully disclose the details relating to events that led to the judgment. Instead, he stated on the application that the claims were “unfounded” and that Chinnock Marine “misled the court.” The subject application is dated February 22, 2000. On that application, the Petitioner was specifically required to disclose any “pending” civil suits involving a yacht. At the time of his application, another civil matter was pending against the Petitioner in World Class Yachts v. Palamara, Case No. 99-12923 (Fla. 17th Cir. 2001), which was filed on July 22, 1999. The Petitioner failed to disclose the pending World Class Yachts civil suit.2 Subsequent to the filing of the subject application, a non-final order was entered against the Petitioner finding that he was in default and rendering judgment for World Class Yachts in the amount of $157,500. The Petitioner took an interlocutory appeal of the circuit court’s non-final order of default to the Florida Fourth District Court of Appeal. The Fourth District Court of Appeal affirmed the trial court's order of default. Palamara v. World Class Yachts, Case No. 4D01-3260 (Fla. 4th DCA 2001). The Petitioner admits that the World Class Yachts case relates to a yacht. Although the circuit court had not entered a Final Judgment against the Petitioner in the amount of $157,500.00 at the time of the hearing in this case, the World Class Yachts civil litigation involving a yacht should have been disclosed on the application pursuant to Rule 61B-60.003(3)(a)6, Florida Administrative Code. In both Chinnock Marine and World Class Yachts, the Petitioner has moved to vacate the default judgments, alleging that he was not properly served. The Petitioner has worked in the yacht brokerage business in South Florida for many years. He has never had any disciplinary action taken against his license. In the community in which he lives and works he enjoys a reputation for being a person of integrity, honesty, and good moral character.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that a Final Order be issued in this case granting the license sought by the Petitioner. DONE AND ENTERED this 3rd day of September, 2002, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH 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 3rd day of September, 2002.
The Issue Whether Respondent, while acting as pilot aboard the M/V Itanage in the St. John's River, Jacksonville, Florida on August 29, 1990, engaged in a practice which did not met acceptable standards of safe piloting. (F.S.A. s. 310.101(1)(k))
Findings Of Fact Respondent is, and has been at all times material hereto, a licensed pilot in the State of Florida. (Petitioner's Request for Admissions paragraph 1) Respondent has been issued license number SP0000032. (Petitioner's Request for Admissions paragraph 2) On or about August 29, 1990, Respondent was piloting the M/V Itanage outbound in Jacksonville, Florida. (Petitioner's Request for Admissions paragraph 4) The Itanage is a 12,000 gross ton, Brazilian registered diesel powered container vessel. (Transcript p. 164) From May 1988 to August 1990 the Itanage entered and exited the port of Jacksonville under pilotage fifteen times without navigational incident. (Transcript pp. 21, 22) The same crew abroad the Itanage at the time of the allision was on the Itanage on its previous voyage of the Itanage. (Transcript p. 22) Respondent has piloted the Itanage or similar vessels many times previously. (Transcript p. 355) The Itanage was equipped with an overhead rudder angle indicator which is visible from the bridge wing. The rudder angle indicator exhibits the degree angle of the rudder and is color coded red for port and green for starboard so the pilot can glance up and see whether port or starboard rudder is applied. 2/ (Transcript pp. 166, 167) Each bridge wing of the Itanage was equipped with an RPM indicator which shows whether the engine was going ahead or astern and the number of revolutions per minute. (Transcript p. 168) The Itanage was equipped with an engine room telegraph which was operated by the second mate to communicate engine commands to the engine room. 3/ On August 29, 1990, the docking master, Captain Meers, undocked the vessel from Jacksonville Port Authority berths 3 and 4, turned, headed down the river on slow ahead, and disembarked around Coastal Petroleum. (Statement of Captain Steele; DPR Report, p. 2) Respondent assumed responsibility for directing the ship at 1454 hours with the vessel parallel to and favoring the west bank of the river. (Statement of Captain Steele; DPR Report, p. 8; engine bell book, Transcript p. 175) It was a clear day, the ride was at or near slack water, the weather was perfect. (Transcript pp. 92. 169, 170, 198) Respondent gave commands to the second mate who remained positioned by the engineroom telegraph on the bridge. The second mate repeated the commands in English then repeated the commands to the helmsman in Portuguese. (Transcript pp. 195, 337); Statement of Second Mate) The second mate spoke very little English and the helmsman did not speak any English. (Transcript p. 331) At 1454 the Respondent ordered course 320 degrees and slow ahead, which was executed. At approximately 1456, Respondent ordered a course of 310 degrees and full speed ahead. (Transcript pp. 82, 83, 191, 192; DPR Report p. 8; engine bell book; Statements of the Second Mate, Helmsman, Master, and Chief Mate; Statement of Captain Steele) Respondent's orders issued at 1456 were executed, and the engine speed was set at full ahead and the Helmsman steered 310 degrees. (Transcript p. 186; DPR Report p. 8; Statements of the Second Mate, Helmsman, Master, and Chief Mater; engine bell book; Statement of Captain Steele; Petitioner's Request for Admissions paragraph 8) Respondent was in the wheelhouse and observed the master-gyro-compass. (Transcript p. 331; Statement of Captain Steele) Because the view forward was blocked by the deck cargo, Respondent went to the starboard wing to observe Buoy 71. (Statement of Captain Steele) At 1455 Respondent ordered "10 degrees port" from the starboard wing. (Transcript pp. 337, 338; Statements of the Second Mate, Helmsman) The helmsman steered 10 degrees to port (left). (Transcript p. 192; Statements of the Second Mate, Helmsman) After the order of "10 degrees port", Respondent remained on the starboard wing and had a radio conversation using a hand held marine radio with the master of the tug "Ann Moran" which took approximately 45 seconds about a ship they had handled the previous day. (Transcript pp. 338, 340, 247) At 1456 as Itanage approached Buoy 71, at point "D" on Hearing Officer Exhibit 1, from the starboard bridge wing, Respondent ordered hard right (starboard) rudder and engine ahead full. (Transcript p. 343) This was to start the turn around Buoy 71. (Transcript p. 384) Captain Steele did not at that time, however, go to the pilot house. Captain Steele remained on the wing to observe the response of the vessel. (Transcript p. 395) After a few seconds, Captain Steele observed the bow of the vessel swinging to port (left) not to starboard (right). (Transcript p. 345) He immediately rushed to the pilot house, repeating his hard starboard (right) rudder order as he did so. (Transcript p. 345) The rudder angle indicator in the pilot house, however, indicated the actual position of the rudder was passing from port (left) 20 degrees to starboard when Captain Steele entered the pilot house. (Transcript p. 345) Captain Steele did not alter the prior order for ahead full. Captain Steele reached the helm console and grabbed the helm. By that time, the helm was already in the hard starboard position. The only explanation as to how the rudder got to 20 degrees port (left) was that when Captain Steele gave the command hard to starboard, the helmsman actually went hard to port (left), then the helmsman realized his error and was correcting it when Captain Steele entered the pilot house. No one suggests that any other command was given which would account for the port swing of the vessel. (Transcript p. 235) Captain Steele again went to the wing to observe the response of the vessel. When it became apparent the vessel would not make the turn, Steele ordered full astern and ordered both anchors dropped. The vessel continued to make way in a sweeping curve alliding with the Shell Oil Terminal on the western edge of the Chaseville turn at approximately 1459 hours. The allision was not caused by a mechanical failure, weather, or tide. (Transcript p. 69). The allision was set up by the helmsman's turning the ship to port (left) instead of starboard (right). However, the Respondent contributed to this error by failing to give the steering command, "Right, full rudder," as required by the Rules of Road. See 33 USC 232. The Coast Guard conducted an investigation and prepared a report (Petitioner's Exhibit 1), the second page of which is a data sheet taken from the ship's bridge. This data sheet contains a diagram of the ship's turning circle to both port (left) and starboard (right) at half and full speeds. An overlay in proper scale was prepared and attached to Hearing Officer Exhibit 1 at the point where the turn was executed, Point D. The scaled extract of the Coast Guard report is attached to the back of Hearing Officer Exhibit 1. The overlay reveals that the vessel could not make the turn at full speed from Point D because the vessel's course takes it almost exactly to the point of allision. If the vessel's course is offset slightly to the left due to the helmsman's mistake and the vessel's turning circle adjusted for less speed, as would have occurred if the vessel went from half speed to full speed when the order for the turn was given, the vessel's projected track would again place the vessel at the point of the allision. The primary cause of the allision was Respondent's use of full speed in the turn. Although there was controversy about whether the vessel proceeded north the entire way at full speed or whether full speed was ordered as the turn was ordered approaching Buoy 71 (Point D on Hearing Officer Exhibit 1), there is no controversy that Captain Steele intended to execute the turn at full speed. The distance from where Captain Steele assumed control of the ship to where it came to rest is approximately 1 and 1/8 nautical miles. According to the logs, the vessel covered this distance in between four and five minutes. In order to cover that distance in that time, the ship was at or close to its full speed, adjusted for a dirty hull, of 15 knots. The advance and transfer of the ship was extended at full speed in such a way that the vessel could not make the turn in the sea room available. Referring again to the overlay, the vessel could have turned within the searoom available from Point D at half speed. The ship might have completed the turn at half speed from a point left of and forward of Point D, its track as the result of the helmsman's error, particularly with the reserve of thrust available to assist in turning after the emergency developed. The Chaseville turn is a tight turn without a great amount of sea room, and requires care to be exercised by pilots. (Transcript pp. 354, 362, 170, 171). The Respondent's failure to maintain proper speed caused the allision with the Shell Oil Terminal.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is, RECOMMENDED: That the Board of Pilot commissioners issue a final order suspending Captain Henry A. Steele for three (3) months and levying a civil penalty of $5,000 against him. DONE and ENTERED this 3rd day of June, 1992, in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of June, 1992.
