Findings Of Fact There is created within the Division of Professions of the Department of Professional Regulation a board known as the Board of Pilot Commissioners. See Section 310.011; Florida Statutes. That board, in conformance with Section 310.061, Florida Statutes, has authority to license state pilots for ports in Florida. This includes pilots for the St. Johns River, to include the Port of Jacksonville. In furtherance of this arrangement; the Department of Professional Regulation examines candidates for the positions of pilot and deputy pilot as a prerequisite to appointment and licensure or certification, depending on whether the position sought is that of pilot or deputy pilot. Out of this examination process; the Board; within its discretion, may decide how many pilots or deputy pilots it wishes to appoint and license or certify for a given port within the state. See Section 310.051, Florida Statutes. Petitioners and Intervenor, Captain Shiras M. Walker, and others stood examination for appointment and certification as deputy pilot for the port of Jacksonville in an examination given on August 26 and 27, 1985. All told, eleven candidates stood the examination for the position of deputy pilot in the Port of Jacksonville as held in August 1985. (There was one other candidate who was being examined for an unrelated port pilot position.) It was the intention of the Board to appoint and certify only one deputy pilot from this group of candidates. The candidates who stood the examination in August 1985 were required to be mariners who held a Master's License. This is a requirement of the Port of Jacksonville and is unique to that port. Petitioners and Captain Walker were qualified candidates in that sense. The candidates for examination in the August 1985 sitting, including Petitioners and Captain Walker, had been provided certain test information from the Department of Professional Regulation, Office of Examination Services, prior to being examined. Among those items was a document described as a "NOTICE TO APPEAR." Within those materials was found the admission slip to the examination, a description of the format of the examination and a suggested reading list which the candidates were encouraged to utilize in preparing for the examination session. The facets of the subject examination were as required by Rule 2155- 5.13, Florida Administrative Code which sets forth the seven test areas. They were: International Rules of the Road. Inland Rules of the Road and the Pilot Rules. Seamanship, Shiphandling and other subjects relating to piloting. Aids to Navigation. Local or specific knowledge of the port area for which the candidates are being examined. Chartwork for the port area for which the candidates are being examined. Knowledge of the federal and state pilotage laws. In carrying forward the examination process, the Department of Professional Regulation, in accordance with Section 455.217.(1), Florida Statutes, through the Office of Examination Services, is charged with the responsibility to ensure that the examination for deputy bar pilot in the Port of Jacksonville as given in August 1985, "adequately and reliability measures an applicant's ability to practice the profession" of deputy pilot. Further, this office must insure that the examination questions are a reliable measurement of the general areas of competence specified in the aforementioned rule. Those responsibilities as imposed upon the Department of Professional Regulation were adequately addressed in the examination process pertaining to deputy bar pilot for the Port of Jacksonville, August 1955 examination session. This examination as given in August 1985 was one related to placement of the top candidate in the one available position for a deputy pilot in the Port of Jacksonville. In order to gain that position, the candidates had to be successful in passing the various sections within the examination instrument. However, only the candidate who had passed the various sections within the examination process and attained the highest score would be selected. Rule 2155-5.13(3), Florida Administrative Code, mandates that a candidate correctly answer 90 percent of the subject matter set forth in the first two sections to the examination, described previously as (a) and (b) and 75 percent of the material in the five remaining subject areas. Failure in any one of these seven sections means that the candidate was unsuccessful, notwithstanding his overall percentage score as an average of the several sections within the examination instrument. The deputy pilot examination for the Port of Jacksonville administered in August 1955 was designed and written by the consultant to the Board of Pilot Commissioners, Captain John C. Hanson, with the assistance of Marty Persanpieri of the Office of Examination Services. These two individuals had the necessary expertise to design and ensure the fairness of the examination document. Captain Hanson is experienced and has gained expertise in the field of nautical science and seamanship and has sufficient appreciation of the circumstances in the Port of Jacksonville to test the candidates on matters of local knowledge of that port. Captain Hanson and Persanpieri graded the examination in question and carried out the review of protests to the examination scores. Based upon the examination and review of the test papers of Captains Dull and Walker, they were found to have successfully completed all portions of the examination. Captain Walker received an overall score of 90.71 percent, and Captain Dull received an overall score of 90.47 percent. Although Captain Flint achieved an overall score of 91.17 percent, the highest overall average, he was deemed by the graders to have failed the examination in that he scored only 86 percent on the Inland Rules portion of the examination, short of the required 90 percent score. On October 4; 1985, Captain Walker was informed by Fred Roche, Secretary of the Department of Professional Regulation, that Walker was the successful candidate in the examination for appointment and certification as deputy pilot for the Port of Jacksonville. Upon receipt of this notification, and following confirmation of this communication through a letter from Secretary Roche Walker left his position as captain of a ship operating out of Valdez Alaska and took the position as deputy pilot for the Port of Jacksonville. In doing ; he sold his home in Merritt Island, Florida, and relocated his family to Jacksonville; Florida. He then executed a contract with the St. Johns Bar Pilots Association, through which that association obligated itself to afford Walker the necessary training to become a licensed state Pilot. Following the signing of that contract; Walker has performed the duties associated with deputy piloting in the St. Johns River related to the Port of Jacksonville. Around the time Walker had been notified of his success; the Petitioners were made aware of their examination results and followed the necessary procedures for review of their examination responses. They then offered timely written objections to certain questions within the examination, which should have been considered prior to the appointment and certification of Captain Walker as deputy pilot. Through his protest, Captain Flint objected to the following questions: Inland Rules No. 52; Inland Rules No. 54; Inland Rules No. 63; State and Federal Laws No. 154; Local Knowledge No. 2; Local Knowledge No. 19; Chartwork No. 15; Chartwork No. 27; Chartwork No. 9; the overall point total assigned for Chartwork; the Chartwork in general; and Chartwork sample questions. Captain Dull objected to the following questions: International Rules No. 20; Inland Rules No. 67; Inland Rules No. 65; Inland Rules No. 76; Navigational Aids No. 106; Navigational Aids No. 125; Federal Laws No. 165; Federal Laws No. 166; Local Knowledge No. 19; Chartwork No. 1; Chartwork No. 7; Chartwork No. 14; Chartwork No. 29; Chartwork No. 52; Chartwork light list reference; Chartwork No. 595; Chartwork No. 5300; and the Chartwork in general. These specific objections were considered by the Office of Examination Services and Captain Hanson. The protests were found to be without merit based upon an adequate analysis of the questions, an assessment of the recommended answers and the responses made by the candidates in answering the examination questions. Through this process, all candidates were given credit for answers for two examination questions unrelated to the challenges by the Petitioners. Having been unsuccessful in an attempt to gain adjustments to their examination scores; Petitioners individually petitioned for formal Section 120.57(1), Florida Statutes, hearings. Those petitions were timely submitted. The cases were then referred to the Division of Administrative Hearings leading to the formal hearing of May 5 and 9, 1956. Prior to the date of formal hearing, Captain Walker and the St. Johns Bar Pilots Association offered a timely motion to intervene in these actions and intervention was allowed. Those Intervenors have demonstrated their standing in the record developed at the final hearing. In the course of the final hearing, Captain Flint abandoned his objection to the questions: Inland Rules No. 54; Local Knowledge No. 2; Local Knowledge No. 19; Chartwork No. 27; and the chart sample questions. This left for consideration these matters: Inland Rules No. 52; Inland Rules No. 63; State and Federal Laws No. 154; Chartwork No. 9; Chartwork No. 15; the Chartwork in general; and the chartwork point total. Captain Dull also abandoned objections pertaining to questions: International Rules No. 20; Inland Rules No. 68; Inland Rules No. 76; Navigational Aids No. 106; Federal Laws No. 166; Local Knowledge No. 19; Chartwork No. 29; Chartwork No. 895; and Chartwork 5300. He continued to protest the Questions: Inland Rules No. 67; Navigational Aids No. 125; Federal Laws No. 165; Chartwork No. 1; Chartwork No. 7; Chartwork No. 14; Chartwork No. 52; Chartwork in general; and the Chartwork light list reference. In the NOTICE TO APPEAR which the Petitioners and Captain Walker received, reference is made to the seven sections within the examination instrument. This notification gave the following information about the chartwork that was to be done in the Chartwork and Local Knowledge portions of the examination. It stated: Chartwork and local knowledge will be admin- istered in the afternoon. Chartwork requires you to draw on a tracing of the chart of the port, all channels aids to navigation and their characteristics (type, color, shape, number, light/sound characteristic, elevation when appropriate as listed in the 1985 C.O. Light List for more recent information see note at end of No. 3), shoaling areas, precautionary signs, anchorage areas, obstructions, COLRBGS demarcation lines, danger areas, pipelines and cable crossings and any other inclusions on the chart relevant to navigation. Indicate true course to be steered on ranges and straightaways as appropriate. You may also be responsible for indication of direction of tide flow as indicated in the Tidal Current Tables. Local knowledge requires you to recall, from memory, information contained in the Coast Pilot relevant to the chart. Included is information concerning controlling widths lengths and depths of channels. Four (4) hours will be allowed to complete this portion of the examination. By the NOTICE TO APPEAR the candidates were also referred to the examination study sources as follows: Listed below are some general sources that may aid you in your study for some of the examination areas. This list of sources is not exhaustive. Questions may appear from other sources. Abbreviations used: CG = Coast Guard Publication USC = U.S. Code FS = Florida Statutes BPC = Board of Pilot Commission Rules Area Source International CG: Navigation Rules: Inter- Rules and national-Inland (COMDTINST Inland Rules M16672.2)(including all rules, appendices and colregs) Federal Pilot- 46 USC 11; 211-215; 232. age Laws Coast Pilot Chapter 2; Parts 162 and 164. 14 USC 51-59, 642, etc. Knowledge of U.S. Coast Pilot for the Local Port particular port (State Pilots and Deputy Pilots) Aids to CG 193, Chart No. 1: Nautical Navigation Chart symbols and abbrevi- ations, 14 USC 51-59, 33 CFR 64.01. State Pilotage Chap. 310 FS, BPC 21-55 Laws Chartwork St. Johns River from the sea buoy to the fixed bridge at Red Bay Point above Green Cove Springs and the ICW from its junction with the St. Johns River South to the Atlantic Boulevard Bridge Chart Nos. 11491 7 July 1954 11459 1 Sept 1954 11492 5 Sept 1954 Seamanship Various seamanship textbooks (for example; Basic Ship- handling for Masters, Mates and Pilots by Willerton; Practical Ship Handling by Armstrong; Ship Handling in Narrow Channels by Plummer, Knights Modern Seamanship) NOTE: Basic publications utilized in developing Jacksonville exam; in addition to the charts listed above were: 1985 CGT Light List 1985 Coast Pilot Vol. 4 If more recent information is used from CO notice to Mariners or Corps of Engineers reports, please indicate source and date so proper credit may be given. Flint Challenge Question No. 52 in the Inland Rules portion of the examination, among the choices of answers, indicated that the "lookout," "shall not be assigned other duties." Petitioner Flint did not feel that this choice was a correct answer. Six of the twelve candidates gave the prescribed answer, to include Captains Walker and Dull. The prescribed answer contemplated the proposition that lookouts shall not be assigned other duties. The prescribed answer is found to be correct, and Petitioner in his suggestion that it is appropriate for a lookout to have other duties in an inland water situation is not credited. Having considered the presentation at hearing, it is determined that the lookout in that setting must give full attention to those duties. Question No. 63 in the Inland Rules portion of the examination states that: "Rule 2(b); known as the General Prudential Rule; could be properly applied in which of the following situations?" Seven of the twelve candidates correctly answered that examination question, to include Captains Walker and Dull in that they indicated that the only correct answer to the question was the choice "action contrary to the rules as proposed by one vessel and accepted by another." Petitioner Flint felt that this answer; as well as the answer which said, "When the stand-on vessel first has doubts as to the intentions of the give-way vessel," should be considered correct. Flint also believes that it is unreasonable to require that the candidates know rules by number reference and contends that this particular rule is not known as the "General Prudential Rule." This concern about the need to know the rule by number and the reference to the term "General Prudential Rule" is a reasonable requirement given that one of the source materials which the candidates were encouraged to study was that source Farnsworth & Young, Nautical Rules of the Road, wherein it is stated that Rule 2(b) is known as the "General Prudential Rule." On the merits of the protest, as to the answer given, Captain Flint is wrong to apply the ideas expressed in the "General Prudential Rule" to a situation in which the stand-on vessel first has doubts as to the intentions of the give-way vessel. Other steps must he taken before resorting to the subject rule. An example of those initial steps would be the sounding of a signal. In the section dealing with state and federal laws, in Question No. 154, it is indicated that the number of state pilots in the various ports is: (1) determined by the supply and demand for pilots and services, (2) determined by investigation conducted by the Department of Professional Regulation. The answer prescribed by the examination was the first choice only. Captain Flint did not feel that either of the choices of answer was correct. He is struck by the language of Section 310.061(2), Florida Statutes, which says, The Board shall determine the number of pilots in conformance with Subsection (1) based upon the supply and demand for piloting services and the public interest in maintaining efficient and safe piloting services. Therefore, according to Captain Flint, since there are fixed limits set forth in Subsection (1) on the number of pilots that may be available in a given port, in order to determine the number of pilots, one must not only be mindful of supply and demand, but also recognition of the finite number of available pilots as set forth in Subsection (1) should be taken into account. This interpretation by Captain Flint is sufficiently legitimate that he should be afforded credit for the answer to the examination question in which he selected the answer that indicated that neither of the two choices was correct. In the Chartwork referred to as No. 9, Petitioner Flint argues that the instructions were, "The chart drawing is to cover up the St. Johns River to the highway bridge at Red Bay Point," meaning that only the features within the system before the point of the bridge needed to be indicated. This would preclude necessity to set forth any of the characteristics of the Red Bay Point Bridge, per Flint. Those characteristics are matters which a pilot should reasonably be expected to be examined on as to horizontal and vertical clearances of the bridge. This is a more persuasive interpretation of the examination instruction than the literal reading which Captain Flint gave in determining to cut short his chartwork before describing the characteristics of the bridge and points should have been deducted from his score. Another challenge described as Chartwork No. 15 dealt with Captain Flint's belief that the area of the St. Johns River described as St. Johns Bluff Reach is not a range or straightaway. Consequently, he did not believe that it was necessary to set out a true course through that portion of the river in keeping with instructions which indicated that the candidates should establish courses in ranges and straightaways in the chartwork. St. Johns Bluff Reach is of sufficient dimension in length that the candidate should have identified a course. For failure to set forth the course; it was appropriate to deduct points from Petitioner Flint's score in the chartwork. Generally speaking, Captain Flint believed that no points should have been deducted from his examination for his failure to relate items set forth on the Coast Guard Light List 1985, in setting up his chart drawing. He premises his argument on the fact that the instructions allowed the candidate to use either the chart information from the various charts which the candidate was referred to or to set forth on the chart examination that information reflected in the Coast Guard Light List 1985. It is not possible to set out complete characteristics of the navigational aids without reference to both the charts and the Coast Guard Light List 1985. Taking this into account, and in view of the basic instructions given the candidates prior to and at the point of examination, it was an unreasonable interpretation to suggest that it was unnecessary to refer to the Coast Guard Light List 1995 and offer information from that source on the examination chart, and points should have been deducted for this oversight. Petitioner Flint had initially contended that the total score related to his points in the chartwork was incorrectly computed in that he was entitled to 577 Points when the examination was graded as contrasted with the 575 points which he was awarded. In his fact proposal this position is abandoned in that he concedes that 575 points was the correct total to be awarded when the examination was graded. No adjustment has been made to that score, and 575 points remain his entitlement. Although some slight adjustment is indicated in the overall score for Captain Flint, the critical matter of the point total for the Inland Rules questions has not been overcome, and having failed to pass that portion of the examination, Captain Flint has failed the entire examination. Dull's Challenge In the Inland Rules portion of the examination at Question No. 67; it is stated that "A vessel proceeding with a following current in a narrow channel or fairway shall have the right of way over a vessel proceeding against the current in/on, and the choices were (1) western rivers, (2) all inland waters; (3) Great Lakes. The correct answer is (1) and (3). The answer is taken from reference material which the candidates were referred to, Farnsworth & Young, Nautical Rules of the Road, which points out that these vessels are given the right of way in operating on the Great Lakes, western rivers, and waters specified by the Secretary. Captain Dull was incorrect when he indicated that the answer should have been "all inland waters." Captain Dull objected to Question No. 125 in the portion of the examination related to navigational aids. That question states, "A preferred channel buoy indicating the preferred channel will be followed by leaving it on your port hand could:" (1) show red and black horizontal bands, (2) show a composite group flashing light; (3) show red or white light. Captain Dull rightly asserts that all three of those items would be correct in the instance in which a ship was proceeding to sea; however, the available answers for the question did not include the possibility that all three items were correct. If the ship were to be proceeding inbound, away from the sea, (1) and (2) are correct and (3) is incorrect in that the buoy could not show a red or white light. Therefore, the correct answer to the question is (1) and (2) only, and that answer was available to the candidates. The question asked was a legitimate question which was missed by Captain Dull. In that portion of the examination dealing with knowledge of federal and state pilotage laws there is Question No. 165. That item states, "To legally provide pilot service to a foreign flag vessel arriving at a Florida Port, a person must hold a valid" (1) state license or certificate, (2) federal license. The prescribed answer was that it is only necessary to hold a state license or certificate. Captain Dull felt that the answer which pertained to choices (1) and (2) was the correct answer in that in order to gain a license or certificate in Florida one must have a federal license. Nonetheless, once the Florida license has been obtained; it is no longer necessary for the federal license to be in force and effect in order to legally provide pilotage service to the foreign flag vessel arriving at a Florida Port. Under these circumstances; Captain Dull is not entitled to receive credit for his answer. In chartwork under Question No. 1 Captain Dull contends that the four anchorage positions which he failed to indicate on his chart were set forth on chart sheets not described in the instructions given to the candidates prior to examination or at the point of examination. He states that those four anchorage Positions are areas which the candidates were not alerted to study for. One of the charts which is referenced as a study source, No. 11491; has a Note A making reference to the anchorages in question by referring the reader to the Coast Pilot No. 4 which provides the information as to location of the four anchorages at issue. Moreover, the anchorages at issue are within the approaches to the St. Johns River which the candidates were instructed to depict in the chart which they prepared in response to the chartwork requirement in the examination. By failing to note these anchorages on his chart, he was subject to have points deducted from his examination, which deductions were made. In the Chartwork Questions No. 7 and 14, Captain Dull failed to set forth true courses from various locations at issue by not giving response in degrees and minutes. This relates to May Point Cut Range and White Shells Cut Range in which it was possible to give the answer in degrees and minutes. Captain Dull did not do his, although the instructions required that he give the answers in degrees and minutes. It was appropriate to deduct points from his score for failure to give the more exact responses to the requirements. Captain Dull in Question No. 52 related to chartwork also believed, as did Captain Flint, that the alternative was presented to the candidates to use either the charts or Coast Guard List 1985 in preparing the chartwork. For reasons discussed in the challenge to this matter fostered by Captain Flint Captain Dull is also incorrect in his assertions. Therefore he is not entitled to any adjustment in points for this matter. Captain Dull has not established the entitlement to further points; and Captain Walker remains the high scorer of all candidates who passed the deputy pilot examination at issue.
Findings Of Fact The record reflects that notice was given to Respondent at its business address. The hearing was recessed for over 15 minutes to give Respondent added time to appear. Respondent has not contacted the Division as of the date of this Order. Yellow Whirleybird Helistop was issued an airport license renewal by the Department of Transportation, on March 11, 1987, for a private helistop located at latitude 30 degrees 11' 24" and longitude 85 degrees 49' 52" in Bay County, Panama City Beach, Florida. The service provided by this helistop is helicopter rides and it is located on property owned by Bay County, Florida. The City of Panama City Beach enacted a land use ordinance, No. 316, effective June 11, 1987, prohibiting the operation of sightseeing rotocraft "within the area bounded on the north by the southerly right-of-way U.S. Highway 98, alternate (Front Beach Road) and south Thomas Drive, and east and west by the easterly and westerly boundaries of the city, ---". The heliport in question is located within the area described above. The Office of the County Attorneys, Bay County, by letter dated July 22, 1987, notified Yellow Whirleybird Heli- copter, Inc. that the concession agreement it had with the county was terminated and gave Yellow Whirleybird 30 days to vacate the premises. The Department of Transportation, by letter dated June 25, 1987, notified Yellow Whirleybird Helistop that its airport license was being revoked because of lack of proper zoning at the site, due to Panama City Beach Ordinance No. 316. In addition, suitable local zoning and ownership or lease of the airport site are requirements of site approval and license by the Department.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the airport license located at latitude 30 degrees 11' 24" and longitude 85 degrees 49' 52" in Panama City Beach, Florida, issued to Whirleybird Helistop, Respondent, for a private helistop be revoked because it does not currently meet the zoning and lease requirements of the statute and rule. DONE AND ORDERED this 22nd day of December, 1987, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, 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 22nd day of December, 1987. COPIES FURNISHED: Vernon L. Whittier, Jr., Esquire Department of Transportation Haydon-Burns Building 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0450 Mr. Ron Brown Whirleybird Helistop 430 Lyndell Panama City Beach, Florida 32407 Douglas J. Sale, Esquire City Attorney 110 South Arnold Road Panama City Beach, Florida 32407 Kay N. Henderson, P.E., Secretary Department of Transportation Haydon-Burns Building 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0458
Findings Of Fact On November 15, 1982, Petitioner applied to Respondent to take the January 31, 1983, pilot's examination for the Port of Miami. Prior to that time, Petitioner had served as an apprentice pilot in the Port of Miami from January 1, 1967, through January 1, 1971. Petitioner was terminated from his position as an apprentice pilot with the Port of Miami in 1971, and has not piloted any ships in the Port of Miami or any other port in the state since that time. At the time of his application to take the pilot's examination, Petitioner was over 18 years of age, had been awarded a high school diploma, and was in good physical and mental health. Petitioner had also obtained a valid first class unlimited pilot's license issued by the United States Coast Guard in 1971. In addition to Petitioner, three other persons, William A. Arata, Stephen E. Nadeau, and Robert K. Brownell, also applied to take the January 31, 1983, pilot's examination for the Port of Miami. Arata submitted his application to sit for the examination on November 19, 1982. At that time, Arata had been licensed as a deputy pilot for the Port of Miami since January 28, 1980. In addition, he possessed an unlimited first class pilot'S license for the Port of Miami and had successfully completed the deputy pilot training program for that port. On November 24, 1982, Nadeau submitted his application to sit for the January 31, 1983, pilot's examination. Nadeau had been licensed as a deputy pilot in the Port of Miami since July 23, 1980, possessed an unlimited first class pilot's license for the Port of Miami, and had successfully completed the Port of Miami deputy pilot training program. Brownell applied on November 29, 1982, to sit for the same pilot's examination. At that time, Brownell had been licensed as a deputy pilot for the Port of Miami since July 31, 1980, also possessed an unlimited first class pilot's license for the Port of Miami, and had successfully completed the Port of Miami deputy pilot training program. In accordance with the provisions of Section 310.071, Florida Statutes, the applications of Petitioner, Arata, Nadeau, and Brownell were submitted to the Department of Professional Regulation which, in turn, submitted those applications to Respondent for a determination of eligibility to sit for the licensing examination. Respondent ultimately determined and advised the Department of Professional Regulation that all four applicants were qualified to sit for the licensing examination. All four applicants took the examination on January 31, 1983, and each of them received a passing grade. In accordance with Rule 21-8.09, Florida Administrative Code, the Department of Professional Regulation ranked the grades received by the applicants from highest to lowest. Petitioner received the lowest grade of the four applicants. Accordingly, since Respondent had certified three openings to be filled for licensed state pilots in the Port of Miami, the Department of Professional Regulation, act some time between February 1, 1983, and May 6, 1983, issued state pilot licenses for the Port of Miami to Captains Arata, Nadeau, and Brownell. There is in force in the Port of Miami a Deputy Pilot Training Program which has been approved by Respondent. The minimum time required for completion of the program, which is a prerequisite for applying for a state pilot's license, is two years. One of the requirements of the program is that participants obtain a first class unlimited pilot's license from the United States Coast Guard. This license allows the holder to pilot coastwise vessels which sail under the American flag. A state pilot's license standing alone permits the holder only to pilot ships sailing under foreign flags. In order to acquire a first class unlimited pilot's license, an applicant must possess another maritime license, such as a master's or male's license, must meet age and sea experience requirements, and must pass an examination prepared and administered by the United States Coast Guard. In addition, a condition to obtaining a first class unlimited pilot's license is that the applicant must possess a radar observer's certificate. The Florida State Pilot's Association, Inc., is a nonprofit corporation composed of 59 licensed state pilots from every port in Florida with the exception of Jacksonville and Fort Pierce. Captains Arata, Nadeau, and Brornell are members of that organization. The purpose of the organization is to represent the interests of its members at local, state, and federal levels.
Findings Of Fact Selwin Coleman is the record holder of land located near Maytown Road three miles west of Oak Hill, Florida, at latitude 28o51'25" North, longitude 80o54'26" West in Sections F and G, Township 19 South, Range 34 East in Volusia County (the proposed site). He has authorized his son-in-law, Ron Biritz, to seek DOT site approval and a license for a private airport as the proposed site. Petitioners and intervenors own land in the general vicinity, and Robert L. Hart owns extensive mineral rights, including rights to any minerals underlying the proposed site. Other land owners, including Warren J. Brull, who owns part of the land over which the existing air strip runs, C.R. "Dick" Powell, and Vaughn L. Grasso, who owns a crop duster he stores in a building he characterizes as agricultural, also made Mr. Biritz their agent for purposes of the pending application. Known as "Blue Ridge Flightpark," a 4,000-foot grass air strip at the proposed site had been used by light planes for some time, until recently. The air strip has been significantly improved within the last two years; at one time watermelons were grown on the property. Originally, scrub hickory and gopher tortoise holes made its use as an air field impractical. When John Bronson Monteith, the aviation specialist for DOT's District Five, learned the grass strip at the proposed site was "operational," he contacted the owners and instructed them to close down operations until site approval was granted; and told them how to apply for site approval. As one result, they caused a large "X" to be placed on the strip, indicating the field was closed to operation. When Mr. Monteith visited the proposed site on November 21, 1991, he saw rust on a brake disc on Mr. Biritz's airplane, suggesting disuse. After DOT received the application, Mr. Monteith determined that it was complete and seemed to meet all rule and statutory criteria, so he prepared a notice to grant the application for Nancy Houston's signature. He caused copies of the notice of intent to be sent by certified mail to all airports and municipalities within 15 miles and to all landowners within 1,000 feet of the proposed site. The notice of intent was published in the News Journal, and a public hearing was held on July 18, 1991. There is some question regarding the true nature of several largish buildings along the air strip. Treated as "agricultural" for purposes of construction without building permits, the buildings look to some more like hangars than barns. But, as to the air strip itself, Volusia County zoning officials have recognized a nonconforming use antedating adoption of County zoning ordinances, a use which the ordinances allow to continue, as long as it does not entail construction of any new structures. Respondent's Exhibit Nos. 4 and 7. As experience has demonstrated, the proposed site is "feasible" and "adequate." Despite military air traffic in the general vicinity, the Federal Aviation Authority concluded that, if limited to private use, the "airport will not adversely affect the safe and efficient use of airspace by aircraft." Respondent's Exhibit No. 3. Only a windsock and markings, including threshold markings, are needed to meet licensing requirements.
Recommendation It is, accordingly, RECOMMENDED: That DOT grant site approval on the conditions stated in Order No. 91-34; and, after the requirements of Section 330.30(2), Florida Statutes (1991) have been satisfied, issue a private airport license to Ron Biritz. DONE and ENTERED this 28 day of May, 1992, in Tallahassee, Florida. own. ROBERT T. BENTON, II 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 28 day of May, 1992. APPENDIX Both intervenors adopted petitioner's proposed findings of fact as their Petitioner's proposed findings of fact Nos. 1, 2 and 4 have been adopted in substance, insofar as material. With respect to petitioner's proposed finding of fact No. 3, the legal status was not clear. With respect to petitioner's proposed finding of fact No. 5, a preponderance of the evidence established that flights had stopped recently. Respondent's proposed findings of fact Nos. 1 through 6 have been adopted, in substance, insofar as material. Respondent's proposed finding of fact No. 7 is properly a conclusion of law. COPIES FURNISHED: Ben G. Watts, Secretary Department of Transportation 605 Suwanee Street Tallahassee, FL 32399-0458 Thornton J. Williams, General Counsel Department of Transportation 562 Haydon Burns Building Tallahassee, FL 32399-0458 Dan R. Warren, Esquire 315 Silver Beach Avenue Daytona Beach, FL 32118 Bruce Best Post Office Box 2793 New Smyrna Beach, FL 32170 Cheryl M. Sanders Post Office Box 2793 New Smyrna Beach, FL 32170 James S. Morris, Esquire Storch, Hansen & Morris, P.A. 1620 South Clyde Morris Blvd., #300 Daytona Beach, FL 32219 Vernon L. Whittier, Esquire 605 Suwanee Street Tallahassee, FL 32399-0458
The Issue Petitioners' alleged liability for sales tax, interest and penalties under Chapter 212, Florida Statutes.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the arguments of counsel and the stipulation of facts entered herein, the following facts are found. Petitioners are Florida corporations having their principal place of business at Palm Beach International Airport, West Palm 8each, Florida. Petitioners conduct a fixed base aircraft operation by which they provide services to both aircraft owners and aircraft users. Petitioners are licensed, qualified and certified by the Federal Aviation Administration, the Civil Aeronautics Board, the State of Florida, and Palm Beach County to conduct its operation. Petitioners employ qualified mechanics, technicians, flight instructors, pilots, and consulting and sales personnel for conducting these services, which are described in detail below. Petitioners lease and occupy facilities appropriate for the storage, use, and repair of aircraft. Petitioners have written contractual agreements with aircraft owners in which Petitioners obtain the use of the aircraft. Petitioners pay the owners an agreed amount per hour for the use of the aircraft, which amount varies with the aircraft age and type. (Examples of said agreements are attached to Joint Exhibit number 1.) These agreements use the term "lease" to describe the Petitioners' rights to use the aircraft. The agreements provide that Petitioners will have exclusive supervision, control, and custody of the aircraft during the term of the agreement. The agreements permit the owner of the aircraft to use the aircraft for personal needs, however, so long as such use does not conflict with Petitioners' scheduled use thereof. Petitioners use the aircraft to conduct approved flight instruction for the public, to engage in charter transportation of passengers and property, and to rent to qualified pilots. Petitioners charge the third parties for instruction, charter, or rental and report the proceeds as "income" on their federal tax returns. Petitioners' payments to the aircraft owners are reflected as an "operating or overhead expense" for federal tax purposes. When using the aircraft, Petitioners employ and pay qualified flight instructors, pilots, crews and mechanics to fly and service the aircraft. The aircraft owners have no contractual agreement with these persons. Petitioners are responsible for providing all required inspection, maintenance, and repair services to the aircraft, subject to reimbursement by the owners. The aircraft owners pay the costs of fuel and lubricants used during Petitioners' use of the aircraft. Petitioners provide property damage insurance on the aircraft and liability insurance for the pilots, crew, and third parties who charter or use the aircraft. Petitioners are responsible, at the expiration of the agreement, to return the aircraft to the owner in substantially the same condition as at the commencement of the agreement, except for normal wear and depreciation. Petitioners advertise themselves to the public as a charter flying service and flying instruction service and actively solicit customers for these services. Petitioners are also in the business of selling aircraft and are authorized dealers for Cessna and Piper aircraft companies. Some of Petitioners' purchasers enter into agreements like those attached hereto, granting Petitioners exclusive use and control of the aircraft. Petitioners' purchasers properly pay sale tax under Chapter 212, Florida Statutes, when they purchase aircraft. They do not, insofar as Petitioners are aware, furnish Petitioners with resale certificates which certify that the purchase is solely for resale, in the manner designated by Rule 12A-1.38, Florida Administrative Code. Some of the purchasers have furnished exemption certificates, however, so those purchases were not taxed. Petitioners contend that they are an integrated business for the selling, storing, maintenance, and servicing of aircraft for aircraft purchasers and the provision of chartering and instruction services for third parties. Petitioners contend that their experience and expertise in providing all these services to owners and the general public is economically feasible only through an integrated operation of this nature, or through a substantially greater capital investment. Petitioners assert that the agreements by which they obtain exclusive use of the aircraft are agreements to provide expert management services to the owners, and are not subject to sales tax under Chapter 212, Florida Statutes. Respondent contends that the agreements by which Petitioners obtain exclusive use of the aircraft are separate and distinct from the rest of Petitioners' business, for sales tax purposes. Respondent also contends that the remainder of Petitioners' business is immaterial to the incidence of the tax. Respondent asserts that the agreements described herein are agreements to lease tangible personal property which are taxable as "sales" under Chapter 212, Florida Statutes. Petitioners also assert that certain of the agreements are not taxable because the aircraft owner paid sales tax on the initial purchase of the aircraft, as described in Paragraph 13 above. The Respondent contends that the prior payment of tax at the time of purchase is immaterial, since the purchase was not for resale. The issues thus presented herein are: whether the agreements are taxable transactions, as disputed in Paragraphs 14 and 15; and whether certain of the agreements are specifically nontaxable by virtue of the owner's payment of tax at the time of purchase, as disputed in Paragraph 16. The Respondent originally assessed Petitioners for tax, penalty, and interest in the amount of $19,149.08. It then appeared that in certain of Petitioners' transactions, the aircraft owners were already remitting sales tax. Respondent thereupon revised its assessment. The Respondent now alleges that the following amounts were due on March 15, 1978: Tax $11,144.68 Penalty 557.22 Interest 1,652.86 Total $13,354.76 The penalty and interest figures are subject to revision with the passage of time. The Respondent will update those figures upon issuance of a final order. Petitioners have paid no part of the foregoing assessment. Petitioners have not placed the computation of the amount due in issue, however, in the event they are held to be liable.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby, RECOMMENDED: That the Revised Notice of Proposed Assessment of Tax, Penalties, and Interest under Chapter 212, Florida Statutes, dated March 15, 1978, be asserted against Petitioners pursuant to applicable law, with interest computed to reflect the passage of additional time. ENTERED this 20th day of August, 1979, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: John A. Gentry, III, Esquire David K. Miller, Esquire Moyle, Gentry, Jones, Flanigan Assistant Attorney General & Groner, P.A. Department of Legal Affairs Post Office Box 3888 The Capitol, LL04 West Palm Beach, Florida 33402 Tallahassee, Florida 32301
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 The issue in this matter is whether section 330.30(3)(f), Florida Statutes, exempts Petitioner from obtaining the approval of the Department of Transportation prior to using a private heliport site adjacent to his property.
Findings Of Fact The Department is authorized to administer and enforce the rules and requirements for airport sites, including initial airport site approval, registration of private airports, and licensing of public use airports. See § 330.29, Fla. Stat. Petitioner owns a home next to Honeymoon Lake in Brevard County, Florida. Petitioner, an aviation enthusiast, also owns several helicopters. Petitioner currently parks his helicopters at a nearby airport. Petitioner desires to takeoff and land his helicopters at his home. Petitioner built a dock on Honeymoon Lake next to his property. Over the dock, Petitioner constructed a wooden platform to use as his heliport. Petitioner built the platform directly into the submerged lands beneath Honeymoon Lake. The platform is approximately 36 feet long by 32 feet wide. The platform rests on wooden pilings and is raised to about 15 feet above Honeymoon Lake. The platform is connected to the shore by a wooden foot bridge. Petitioner harbors two boats at the dock beneath the platform. Petitioner constructed the heliport for his private, recreational use only. Petitioner wants to use his heliport without applying for approval from the Department. Honeymoon Lake is a private (not State) body of water whose history goes back to a deed issued in the late 18th century. In 1878, President Rutherford B. Hayes, on behalf of the United States government, deeded Honeymoon Lake to the original developer of the area. Honeymoon Lake is approximately 300 feet wide at Petitioner’s property line. The area of the lake where Petitioner’s heliport is located is owned by the Stillwaters Homeowners Association and used as a recreation area. On September 5, 2017, after Petitioner constructed the platform, the Stillwaters Homeowners Association Board of Directors approved Petitioner’s heliport by resolution. Prior to this administrative action, Petitioner applied to the Federal Aviation Administration (“FAA”) for airspace approval to operate his heliport on Honeymoon Lake. On April 13, 2017, the FAA provided Petitioner a favorable Heliport Airspace Analysis Determination in which the FAA did not object to Petitioner’s use of his helicopters in the airspace over Honeymoon Lake. The FAA’s determination included an approved Approach/Departure Path Layout and Agreement with the 45th Space Wing, which operates out of nearby Patrick Air Force Base. Petitioner also represents that the heliport platform does not violate the Brevard County Building Code. In support of this assertion, Petitioner introduced the testimony of Brevard County Code Enforcement Officer Denny Long. In August 2017, after receiving a complaint that Petitioner’s heliport might have been built in violation of Brevard County ordinances, Mr. Long inspected Petitioner’s dock structure. Upon finding that Petitioner had already constructed his platform, Mr. Long could not identify a code provision that he needed to enforce. Therefore, he closed his investigation. Petitioner contends that the Honeymoon Lake area is not taxed by Brevard County. Neither is Brevard County responsible for any improvements thereon.3/ Because his heliport is situated over water and not land, as well as the fact that he will only use the heliport for occasional, private use, Petitioner believes that he is entitled to the exemption under section 330.30(3)(f) from obtaining the Department’s approval prior to landing his helicopters at his heliport. Section 330.30 states, in pertinent part: SITE APPROVALS; REQUIREMENTS, EFFECTIVE PERIOD, REVOCATION.— (a) Except as provided in subsection (3), the owner or lessee of any proposed airport shall, prior to . . . construction or establishment of the proposed airport, obtain approval of the airport site from the department. * * * (3) EXEMPTIONS.—The provisions of this section do not apply to: * * * (f) Any body of water used for the takeoff and landing of aircraft, including any land, building, structure, or any other contrivance that facilitates private use or intended private use. Petitioner asserts that the exemption described in section 330.30(3)(f) extends to a “building, structure or any other contrivance” that is constructed on, or over, a body of water. Therefore, since his landing site is situated over water, Petitioner argues that his heliport should be considered a “structure . . . that facilitates private use” of a “body of water for the takeoff and landing of aircraft” which qualifies him for an exemption from Department approval. Although Petitioner does not believe that he needed to apply to the Department for approval of his proposed landing site, he did so at the FAA’s suggestion. Around April 2017, Petitioner contacted the Department inquiring about the process to obtain an airport license or registration for his heliport. On September 25, 2017, however, the Department denied Petitioner’s application as incomplete. Pursuant to section 330.30(1)(a), the Department instructed Petitioner to produce written assurances from the local government zoning authority (Brevard County) that the proposed heliport was a compatible land use for the location and complied with local zoning requirements. In response, instead of supplementing his application, Petitioner asserted to the Department that his heliport was exempt from registration under section 330.30(3)(f) because it was located in a private body of water. On April 6, 2018, the Department issued Petitioner a formal “Letter of Prohibition.” The Letter of Prohibition notified Petitioner that he was not authorized to operate his helicopter from his dock/heliport without first registering his heliport with the Department and obtaining an Airport Site Approval Order. The Letter of Prohibition further stated that Petitioner’s heliport did not meet the exception from site approval and registration requirements in section 330.30(3)(f). The Department expressed that the exception only applied to “a body of water used for the takeoff and landing of aircraft.” The exception did not apply to the platform Petitioner desired to use as his landing site. Petitioner challenges the Letter of Prohibition in this administrative hearing. The Department, through Alice Lammert and Dave Roberts, asserts that Petitioner must register his private-use heliport before he may use it to takeoff or land his helicopters. Ms. Lammert and Mr. Roberts testified that the Department has consistently interpreted section 330.30(3)(f) to pertain to actual bodies of water, e.g., waters used by seaplanes or other floatable aircraft. Both Ms. Lammert and Mr. Roberts commented that Petitioner is not seeking to takeoff or land his helicopters on Honeymoon Lake. Petitioner intends to use a platform, situated 15 feet above Honeymoon Lake, on which to land his helicopters. Ms. Lammert and Mr. Roberts expressed that Petitioner’s construction of his heliport over water does not change the fact that his heliport is a fixed wooden structure and not a “body of water.” Consequently, Petitioner must obtain Department approval prior to using the platform for his helicopters. Ms. Lammert and Mr. Roberts added that if Petitioner’s helicopters were equipped with pontoons and landed directly on the surface of Honeymoon Lake, his “landing site” would qualify for the exemption set forth in section 330.30(3)(f). Ms. Lammert and Mr. Roberts further explained that the Department is responsible for ensuring that aircraft operating in Florida takeoff and land in safe, controlled areas. Through section 330.30, the Department is tasked to inspect all potential airport sites to make sure that the landing zones do not pose a danger to any aircraft (or helicopter) that might use them. Safety is the Department’s primary focus when approving private airport/heliport registrations. For example, as Ms. Lammert explained, the Department would inspect Petitioner’s heliport to ensure that the platform is sturdy enough and wide enough to bear the weight of Petitioner’s helicopters. The Department might also determine whether the platform should be equipped with a safety net. Regarding Petitioner’s argument that the Department should consider his heliport a “structure . . . that facilitates private use” of a body of water, Mr. Roberts understands the exemption under section 330.30(3)(f) to include docks that are used for persons disembarking from a seaplane or other floatable aircraft. The exemption, however, does not apply if the dock, itself, serves as the landing site. Regarding Petitioner’s reference to the FAA analysis determination, Mr. Roberts explained that while the FAA has authority to approve the use of the airspace over Honeymoon Lake, the authority to approve the landing site remains with the Department. Based on the evidence and testimony presented at the final hearing, Petitioner did not prove, by a preponderance of the evidence, that his heliport qualifies for an exemption under section 330.30(3)(f). Accordingly, prior to his use of his heliport to takeoff or land his helicopters, he must apply for site approval from the Department.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation enter a final order denying Petitioner’s request for an exemption from Department approval under section 330.30(3)(f) prior to the use of his wooden platform as a heliport. DONE AND ENTERED this 25th day of October, 2018, in Tallahassee, Leon County, Florida. S J. BRUCE CULPEPPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of October, 2018.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: At all times pertinent to this proceeding respondent was licensed by the petitioner as a pilot. He began sailing as a seaman in 1945, received a pilot's license in Texas in 1954, was a captain of tugs from 1954 to 1969 and has been a member of the Tampa Bay Pilots Association from 1969 to the present time. Respondent has made close to sixty (60) trips per month in and out of Tampa Bay since 1969. On August 6, 1981, at approximately 1500 hours, Captain Baggett was aboard the M/V IFNI, a medium-sized oceangoing vessel, and was proceeding outbound in Tampa Bay. The tug DIXIE PROGRESS and Barge B-103 were proceeding inbound. The DIXIE PROGRESS, which is 115 feet long and 35 feet wide, was pushing Barge B-103, which is 430 feet long and 80 feet wide. The Barge was carrying 147,000 barrels of gasoline at the time. As the IFNI was in "G" Cut, Captain Baggett noticed the tug and barge proceeding inbound in "D" Cut, approximately three to five miles from him. He radioed the DIXIE PROGRESS in order to make arrangements for the meeting and passage of the two vessels. Respondent inquired if there was a pilot aboard the tug. In arranging meeting situations, it is customary for one pilot to communicate directly with the pilot on the other vessel. Donald Hyde, the first mate aboard the DIXIE PROGRESS responded to Captain Baggett's call and informed him that there was no pilot aboard the tug. Respondent informed Hyde that he would meet them in Cut "E" on one whistle. Walter H. Williams, the Captain aboard the DIXIE PROGRESS, was standing near the radio when respondent called from the IFNI. At the time, Captain Williams felt that respondent would try to break up the tug and barge on passing because the tug did not have a pilot on board. For that reason, he relieved his mate and took control of the tug. The DIXIE PROGRESS was the last vessel in Tampa Bay to start using pilots, and did not start taking pilots until September of 1981. Respondent Baggett's son wads employed by Dixie Carriers, Inc., the owner of the DIXIE PROGRESS. At the time of the radio communication with Captain Baggett, the DIXIE PROGRESS was travelling at a speed of about 5.5 knots. Its speed was reduced to ensure that the meeting would occur in Cut "E". As the IFNI passed through "F" Cut, two dredged were working in the vicinity. Captain Baggett decreased the speed of the IFNI as he approached each dredge, and stopped the engine after passing each dredge. After passing the second dredge in "F" Cut and while making the turn into "E" Cut, Captain Baggett ordered the engines full ahead. Captain Williams and first mate Hyde noticed a puff of black smoke emit from the IFNI after it passed the last dredge in "F" Cut and turned into "E" Cut. At this point, as the IFNI began to gain speed, the two vessels were approximately eight-tenths to one mile apart. Some seven to eight minutes later, the IFNI and the tug and barge passed each other in "E" Cut at a distance of approximately 75 feet. The channel in "E" Cut is about 400 feet wide. After the IFNI passed the tug and barge, waves of approximately five or six feet in height caused the barge to dive under the water and, as it came back up, a push wire two inches in diameter broke. After passing the DIXIE PROGRESS, respondent looked astern and noticed the tug and barge at odd angles to each other. He radioed the tug and inquired as to what had happened. When informed by Captain Williams that a push wire had broken, respondent replied that he was sorry and that he had not realized that the IFNI had caused such a large wake. At no time during the incident in question did DIXIE PROGRESS Captain Williams feel that his vessel was in danger or that there was going to be a loss of property or life. He considered this to be a minor incident. It is not unusual for another vessel to pass the DIXIE PROGRESS and its barge at a speed of full ahead. The DIXIE PROGRESS and Barge B-103 frequently "push out" of the Mississippi River in six foot seas using the same "in the notch" configuration as was used during the incident in question. It is not unusual for the push wires which connect a tug and barge together to snap. The Captain and first mate aboard the DIXIE PROGRESS estimated that the IFNI was travelling at a speed of approximately 15 knots as it passed the tug and barge. Captain Baggett believed that he was travelling at a speed of about 7.5 knots as he passed the DIXIE PROGRESS. To travel a distance of approximately eight-tenths of a mile in seven or eight minutes would result in an average speed of about six to seven knots. It could take the vessel IFNI anywhere from six to twelve minutes to reach full speed from a stopped engine, depending upon the currents and other factors. The speed which a reasonable and prudent pilot should maintain when approaching and passing a tug and barge is dependent upon the circumstances, including the weather conditions and currents, the swell or wake the vessel is pulling, the size and configuration of the channel, the amount of water outside the channel and the configuration and weight of the vessels. While a passage within 200 feet with the IFNI travelling at a speed of 15 knots would not be something that a reasonable and prudent pilot would do, it cannot be determined without knowledge of the surrounding circumstances whether a passage at 8 knots would constitute incompetence, negligence or misconduct. By a "Final Order" signed by the Chairman of the Board of Pilot Commissioners and filed on July 28, 1981, it was ordered that a proposed Stipulation in Case No. 0007227 was approved, adopted and incorporated by reference and that Thomas A. Baggett "is reprimanded and is placed on probation for a period of one (1) year. . . ." The Stipulation reveals that that case was the subject of a proposed complaint in a case factually unrelated to the present case and that part of the consideration for the Stipulation was that the proposed administrative complaint in that case be held in abeyance. Among the terms of the Stipulation were that "The Respondent shall be placed on probation for a period of one year from the date of the final order of the Board accepting this sti- pulation. The order of Probation will be deemed to have been violated, subject to proving the allegations, if the Respondent is found by the Probable Cause Panel of the Board to have engaged in any conduct which constitutes negligence, incompetence or mis- conduct as presently embodied within section 310.101, Florida Statutes. In such case both a new proposed Administrative Complaint may be filed and the instant proposed Admini- strative Complaint may be instituted. In this respect, the Respondent specifically waives any procedural objections to insti- tuting the instant proposed Administrative Complaint." In October of 1981, by a vote of 2-2, the Board of Pilot Commissioners refused to modify the Final Order of July 28, 1981, so as to delete the word "probation" from its terms.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the Administrative Complaint filed against the respondent on January 18, 1982, be DISMISSED. Respectfully submitted and entered this 5th day August, 1982, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 Filed with the Clerk of the Division of Administrative Hearings this 6th day of August, 1982. COPIES FURNISHED: C. Steven Yerrid Holland and Knight Post Office Box 1288 Tampa, Florida 33601 W. B. Ewers, Esquire Special Trial Counsel 2170 SE 17th Street Suite 204 Ft. Lauderdale, Florida 33316 Jane Raker, Executive Director Board of Pilot Commissioners 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact Documentary evidence was received that Hangar Two, Inc. was chartered on April 4, 1980, and had "Hangar Two, Inc." and its unique logo registered as a service mark on June 18, 1980. See Exhibits 1, 2, 3 and 6. Documentary evidence was received that Hanger Two Aviation, Inc. was incorporated on November 25, 1980. See Exhibits 4 and 5. Wallace I. Garrick testified on behalf of Hangar Two, Inc. Garrick has been the attorney for Carl Knight for a number of years and handled the incorporation of Hangar Two, Inc. for Knight. For several years, Knight has been engaged in the business of repairing, rebuilding and maintaining aircraft. Garrick has been to Knight's place of business many times. The business was located at North Perry Airport for a number of years and did business as Hangar Knight was forced to move his business and incorporated his business as Hangar Two, Inc. The business of the corporation is the repair and maintenance of aircraft. Knight moved his business to a building on the southeast corner of the same airport, which he caused to be identified and marked with his service mark "Hangar 2." See Exhibit 6. Located in this building when Knight moved there was an aircraft repair and maintenance business operated by George Ritch. Thereafter, Ritch retained a one-room office and leased a small portion of the floor space for his business use. Hanger Two Aviation, Inc. was incorporated by Milton Margulies, a local attorney. Its primary Director and agent for service of process is Jean S. Morse, an employee of Margulies. Garrick was advised by Margulies that he had incorporated Hanger Two Aviation, Inc. for George Ritch, and that he had no further relationship with the corporation or with Ritch. Incorporation of Hanger Two Aviation, Inc. was sought after the date that Knight's business moved into the same building occupied by Ritch and after the date Knight's business was incorporated in the name Hangar Two, Inc. Incorporation of Hanger Two Aviation, Inc. was not in good faith. Both corporations are engaged in the same business, aircraft repair and maintenance, and their principal places of business are located in the same building at the same airport. Garrick has seen bills and other mail intended for Ritch's business delivered to Knight's business.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the Department of State revoke the reservation for the corporate name Hanger Two Aviation, Inc. DONE and ORDERED this 26th day of October, 1981, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of October, 1981. COPIES FURNISHED: Wallace I. Garrick, Esquire Concord Building, Suite 1000 66 West Flagler Street Miami, Florida 33130 Jean S. Morse, Registered Agent Hanger Two Aviation, Inc. 2020 NE 163rd Street North Miami Beach, Florida 33162 Stephen Nall, Esquire Office of the General Counsel Department of State The Capitol Tallahassee, Florida 32301 George Firestone, Secretary Department of State The Capitol Tallahassee, Florida 32301
