The Issue The issue is whether the application meets the standards found in Section 330.30, Florida Statutes, and Chapter 14-60, Florida Administrative Code. The specific factual issues presented for resolution are: Whether the site is adequate for the proposed helistop. Whether the proposed helistop will conform to minimum standards of safety. Whether safe air-traffic patterns could be worked out for the proposed helistop and for all existing airports and approved sites in the vicinity.
Findings Of Fact Memorial Hospital is operated by the South Broward Hospital District, an independent taxing authority created by Chapter 24415, Laws of Florida (1947), to operate public health care facilities in south Broward County and to serve the health care needs of residents of the district without regard to their ability to pay. The site of the proposed facility (known as "Memorial Hospital Helistop") is a rectangular-shaped area on the top level of a six-floor parking garage located on the west side of the hospital's property, near the emergency room. The helistop is a landing site for air ambulances. The site will not be used for regularly scheduled helicopter flights. The only landings will be those associated with emergency transportation of patients or supplies to Memorial Hospital. No basing facilities such as fueling facilities will be provided. The parking garage is owned by the hospital. Jay A. Burke, Jr., the Director of Safety and Security, and Helistop Manager for Memorial Hospital, filed an application for helistop site approval with the Department of Transportation, on September 1, 1987. Zoning approval was granted by the City of Hollywood, Florida, on July 1, 1987. An airspace determination for the proposed site was obtained by letter from the FAA dated March 1, 1988. A feasibility inspection of the site was made by Steve Kozman, District IV Aviation Engineer, on September 16, 1987. He determined the site was feasible for use as a helistop. Mr. Kozman conducted the public meeting on November 24, 1987, and submitted a report dated December 18, 1987, to the Chief of the Department of Transportation Aviation Bureau. The Kozman report contained the following conclusions: Many of the issues at the public hearing were unrelated to the requirements of the licensing law and cannot be affected by either issuance or denial of site approval. The elevated site as presented in drawings and as viewed from the existing garage is adequate for the proposed helistop. The helistop, if constructed, can meet the minimum standards of safety. Elevated helistops at Naples Hospital and Good Samaritan Hospital in West Palm Beach have been in operation without incident. Safe air traffic patterns can be decided after receipt of FAA airspace determination. No objections were received from nearby airports or approved sites. Mr. Kozman recommended, subject to FAA determination, that the helistop site application be approved. An evaluation report on the proposed emergency helistop prepared by an aviation engineer was admitted in evidence. The 151' x 125' site on the 6th level of the parking structure is adequate and will conform to the minimum standards of safety. The area of the landing pad limits the size of helicopters using it to 63' in length. The total live load factor of the proposed site is 94,000 pounds, which would be distributed on three wheels. The structure will accommodate use by most single rotor helicopters, which are the type of rotocraft used in life-flight operations. The site will not accommodate heavy dual rotor military rotocraft, usually referred to as "Jolly Green Giant" helicopters. The site also would meet the flight path requirements of Chapter 14-60, Florida Administrative Code. The proposal conforms with all published minimum safety standards. A Coast Guard flight surgeon testified that he would have no reservation about flying into the proposed site on emergency missions. A Coast Guard Officer, who has seventeen years experience flying helicopters, testified he frequently flies rescue missions transporting victims to area hospitals. He had inspected the proposed site and had viewed aerial photographs of the proposed site and had no reservations about utilizing the helistop. The proposed site is safe and has an adequate approach for landing in case of rotocraft emergencies. The air traffic patterns at the site would not interfere with adjacent airports utilizing the Fort Lauderdale control tower. The Petitioners expressed concern about noise, diminished property values and threats to safety of residents in the area resulting from the helistop. Memorial Hospital is located near a residential neighborhood. Mrs. Briglio agreed that emergency helicopter service was needed, but believed it should be located some place else. Mr. Worth doubts that air ambulances are safe. The evidence shows that the helistop will meet duly adopted safety standards. Lay doubts about whether the standards are adequate, or will be observed, cannot be reached in this hearing. Mr. Worth expressed concern about the site approval permitting providing transportation of medical supplies. An agreement between the City of Hollywood and the hospital as to helicopter operations from the proposed site provides as follows: That Memorial Hospital agrees that helicopter transports into or from Memorial Hospital between the hours of 10:00 p.m. and 8:00 a.m., will occur only when, in the opinion of the helicopter transport personnel, the flight is necessary to save the life or limb of a patient or if medical intervention available at Memorial is essential to prevent permanent disability. Routine helicopter transports into Memorial during all other hours will not be restricted. That Memorial Hospital will cooperate with Hollywood Fire Department's EMS Division in its monitoring of the provisions of this Agreement.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that a final order be entered by the Secretary of Transportation finding that Site Approval Order No. 88-06 is valid and should remain in full force and effect, having been issued in accordance with applicable statutes and rules. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 12th day of September 1988. WILLIAM R. DORSEY, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1050 (904) 488-9765 Filed with the Clerk of the Division of Administrative Hearings this 12th of September, 1988. COPIES FURNISHED: Robert C. Worth, Chairman Hollywood Hills Citizens Committee 3423 Garfield Street Tallahassee, Florida 33021 Mrs. Erna L. Dahmen 515 North Rainbow Drive Hollywood, Florida 33021 Mr. Jay Burke, Jr. Director Safety and Security Memorial Hospital 3501 Johnson Street Hollywood, Florida 33021 Phyllis and Eugene Briglio 507 North Rainbow Drive Hollywood, Florida 33021 Mrs. Roy Thompson 429 North Highland Drive Hollywood, Florida 33021 Rivers Buford, Jr., Esquire Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Clarke Walden, General Counsel Memorial Hospital Suite 533 Hollywood, Florida 33021 Kaye N. Henderson, Secretary Department of Transportation 605 Suwannee Street Tallahassee, Florida 32399-0450 Thomas H. Bateman, III, Esquire General Counsel Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0458
Findings Of Fact Port Largo Airport, Key Largo, Monroe County, Florida has been operated as a public airport under DOT license (p-1) and a zoning variance (R-2) since 1973. A recent rezoning of the R-2U (residential two-family) area of the airport to private airport (P-10) has not been finalized. The most recent lease of the property was executed July, 1977 for a period of five years (P-4) The Port Largo Airport has one asphalt runway oriented nearly north/south that is more than 65 feet wide and 2,100 feet long (P-1 and 3). Between the west side of the runway edge and an airplane parking area there is 30 feet of unpaved area; on the east side at least 20 feet of unpaved area exists between the runway and the ocean. The full length of the paved and unpaved area appears to he on a long, narrow breakwater or strip of land 150 feet wide and 2,400 feet long with the Atlantic Ocean on the east and a wide canal on the west (P-9) The south end of the runway is approached over the water, while the north end has a clump of mangroves 15 feet high a distance of 360 feet from Runway 19's displaced threshold. The height and location of the mangroves from the displaced threshold is such that there is an elevation angle of 2 degrees 17 feet 19 inches and an offset angle of 5 degrees 42 feet 28 inches (P-1).
Recommendation From the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the renewal license application of Port Largo Aero and Marine, Inc. for the Port Largo Airport be granted and License No. 3778 continued in effect to its termination date of January 31, 1981. DONE and ORDERED this 4th day of December, 1980, in Tallahassee, Leon County, Florida. HAROLD E. SMITHERS Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Charles G. Gardner, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32301 Joseph B. Allen, III, Esquire 604 Whitehead Street Key West, Florida 33040 Joe L. Sharit, Jr., Esquire 255 Magnolia Avenue Post Office Box 2295 Winter Haven, Florida 33880
The Issue The issue presented is whether Rule 61E13-2.012, Florida Administrative Code, is an invalid exercise of delegated legislative authority.
Findings Of Fact l. Petitioner South Florida Cargo Carriers Association, Inc., is a Florida not-for-profit corporation with its principal office in Miami, Florida. Petitioner's purpose is to promote, advance, and secure laws, rules and regulations concerning vessels utilizing the navigable waters of the State of Florida, in particular the Port of Miami and Port Everglades, in order that the waters, harbors, and ports of the State and the environment, life, and property of all persons be protected to the fullest extent possible consistent with sound financial principles. Petitioner consists of the following companies: members of the Florida-Caribbean Cruise Association; Maersk, Inc.; Seaboard Marine; Kirk; SeaLand; Zim; Cari Freight; Thompson Shipping, and Burmuth. Intervenor Florida State Pilots Association, Inc., is a Florida not-for-profit corporation. It is a voluntary organization whose membership is comprised of all individual pilot associations serving the various ports of the State of Florida, as well as approximately 100 pilots licensed by the State of Florida. Among other things, Intervenor advances and defends the interests of its membership on the state level. The Port Everglades Pilots' Association (hereinafter "PEPA") is an association composed of present and retired harbor pilots that is treated as a partnership for tax purposes and which performs the pilotage services at Port Everglades. PEPA and its affiliates Port Everglades Pilots, Inc., and PEP, Inc., are located in Fort Lauderdale. The purpose of PEPA is to provide pilotage services in Port Everglades in a safe and efficient manner and in compliance with the provisions of Chapter 310, Florida Statutes, the rules promulgated thereunder, and any other provisions of law governing the provision of pilotage services. As such, PEPA is entitled to charge pilotage rates as provided in Section 310.151, Florida Statutes, and, as further provided therein, to seek rate changes by filing a petition with the Department of Business and Professional Regulation, Pilotage Rate Review Board. A number of Petitioner's members are affected by the rates of pilotage set for Port Everglades, inasmuch as they are required by Chapter 310, Florida Statutes, to utilize and compensate the pilots whose rates are established by the Board, and they are utilizing and compensating pilots in accordance with the rates currently established for Port Everglades. In January 1997 PEPA submitted to the Board an application for an increase in the pilotage rates for Port Everglades. In February 1997 Petitioner submitted its own application for a decrease in the rates of pilotage for Port Everglades. On May 20, 1997, the Board held a public hearing on both applications. At the conclusion thereof, the Board preliminarily determined to grant PEPA's application for a rate increase in its entirety and to deny Petitioner's application for a rate decrease. The Board's preliminary determination was reduced to writing on July 3, 1997. On July 28, 1997, Petitioner filed with the Board a Petition for Formal Administrative Hearing challenging the Board's decision to grant PEPA's application and to deny Petitioner's application. The Board thereafter transmitted that Petition to the Division of Administrative Hearings. The Board's transmittal letter filed August 7, 1997, cautioned the Division not to carry out its full statutory functions because: it is the Board's position , as expressed in rule 61E13-2.012(3), F.A.C., that the resolution of any disputed issue of fact by an [Administrative Law Judge] cannot result in a recommendation from that ALJ as to what the rate should be. The ALJ's recommendation should only extend to resolving the disputed issues of material fact. Subsequently, and based upon the resolved issues of fact, the Pilotage Rate Review Board will set the appropriate rates. On August 18, 1997, Petitioner filed its Petition Seeking an Administrative Determination of the Invalidity of an Existing Rule, challenging Rule 61E13-2.012(3), Florida Administrative Code, pursuant to Section 120.56(3), Florida Statutes. Petitioner has standing to file and maintain this rule challenge proceeding. Intervenor has standing to intervene in this rule challenge proceeding. Rule 61E13-2.012(3), Florida Administrative Code, was adopted before October 1, 1996. It was included on a list submitted by the Pilotage Rate Review Board in accordance with Section 120.536(2), Florida Statutes. It was subsequently amended by the Board, effective October 14, 1997, so as to delete all portions of the Rule except for Subsection (3) which is now the entire Rule.
Findings Of Fact On September 22, 1981, the Respondent, Sonoma International (hereafter Sonoma) , through its vice president, Claudette Bruck, filed an application with the Florida Department of Transportation (hereafter D.O.T.) for a license to construct and operate a private airport to be known as Greener Pastures Private Airport. The proposed airport site is located on Loxahatchee Road (SR 827) in an unincorporated area of southwest Palm Beach County. The parcel on which the proposed airport is to be located consists of approximately 63.42 acres and is owned by Sonoma. The property is approximately 800 feet east to west and 3900 feet north to south. The proposed landing strip would be located on the western-most portion of the property and will run the entire length of the property except for any applicable setback requirements. Petitioner, John J. Burton, (hereafter Burton) owns approximately 15 to 20 acres of undeveloped land in the area of the proposed site. The eastern portion of Burton's property is directly north of the location of the proposed landing strip. The Burton property is approximately 300 feet north of the Hillsborough Canal and approximately 600 to 800 feet north of the proposed airport site. The Petitioner, Florida National Properties, Inc., owns the land contiguous to the southern boundary of the proposed site. This property is also undeveloped. The Loxahatchee National Wildlife Refuge is located approximately 3/4 of a mile north of the proposed site. The area where the proposed site is located remains undeveloped. Sonoma proposes to sell subdivided five (5) acre parcels with the landing strip located on the western portion of each lot. The landing strip is for the use of the owners of these parcels and their guests. The proposed landing strip will be a grass strip and will run the full length of the property. D.O.T. reviewed Sonoma's application, performed site inspections and found the proposed site was adequate to meet the site approval requirements set forth in Rule 14-60.05, Florida Administrative Code. The site inspections were performed by Mr. Boswell and Mr. Brown of D.O.T., who submitted reports of their findings. On October 20, 1982, D.O.T. entered a site approval order which contained the following conditions: All operations are to be conducted in VFR weather conditions. Use of the airstrip is limited to property owners and their invited guests. Left traffic patterns will be established for Runway 18 and Right traffic patterns will be established for Runway 36. Aircraft arriving or departing the airport will avoid overflying the Loxachatchee National Wildlife Refuge below 2000 feet AGL. Users of the airport and invited guests will be informed of possible bird activity in the vicinity of the site. Traffic patterns and operational procedures are subject to review by this Department prior to licensing or re-licensing. The landing strip surface for private airports must be a minimum of 1800 feet in length with a primary surface width of 100 feet and a usable width of 50 feet. The proposed site is more than adequate for a landing strip with these dimensions. A private airport must have and maintain approach zones which are a trapezoidal area increasing in width from 50 feet either side of the runway centerline at a distance of 3000 feet outward from the ends of each runway. Rule 14-60.07(5), Florida Administrative Code. These approach zones must be clear of obstructions above a glide path of 20:1 from the ends of each usable runway. Rule 14-60.07(6). It is not necessary for the applicant to own or control the ground area beneath the approach zones. The approach zones for the proposed airport will extend over property owned by the Petitioner Burton on the north and Petitioner Florida National on the south. Neither of the Petitioners has granted an easement or other right of use of the airspace above their property. There are presently no obstructions which will prevent Sonoma from obtaining the necessary approach zones at the time of licensing. There are Australian Pines located on the northern tip of Sonoma's property and along the right-of-way of Loxahatchee Road where it abuts Sonoma's property on the north. These trees are 80 to 90 feet in height. By constructing the landing strip the full length of Sonoma's property, the threshold for landing may be displaced to the south of these trees. The 90 foot height will require a displacement of 1800 feet in order to obtain the 20:1 glide path clear zone. With a runway length of 3700 feet (3900 feet minus 2 x 100 feet set back) leaves a usable runway length of 1900 feet. This exceeds the minimum 1800 feet requirement. The trees may be topped or removed prior to final inspection. Although there are bird-nesting areas within the Loxahatchee National Wildlife Refuge from which regular flights of birds occur, these flights are fairly predictable as to time and location and will not create an abnormal safety hazard for the proposed site. There are also microwave towers in the general area of the proposed site, but these towers do not constitute a hazard to planes landing or taking off from the proposed airport. Safe air traffic patterns can be developed on the site for takeoff and landing. Herbert L. Brown, an Aviation Specialist with D.O.T., flew low approaches over the proposed site on two different occasions on December 2, 1982, and April 22, 1983. Mr. Brown flew right-hand traffic patterns and approaches to Runway 36 and left-hand patterns and approaches to Runway 18. On each occasion, he could have landed safely on the proposed site but made a go- around. Mr. Brown did not detect any potential hazards on either of these flights and determined that safe air traffic can be developed on the proposed site. On April 29, 1982, the Board of County Commissioners of Palm Beach County approved Sonoma's petition for a Special Exception to the Palm Beach County zoning ordinance. This approval permits Sonoma to construct a private use airport on the proposed site with the following conditions: The developer shall convey to Palm Beach County within ninety (90) days of Special Exception approval 80 feet south of the south right-of-way line of the Hillsboro Canal for the ultimate right-of-way for State Road #827. The developer shall contribute Three Thousand Dollars ($3,000) toward the oust of meeting this project's direct and identifiable traffic impact, to be paid on a pro-rata basis at the time of issuance of the building permit(s). A 100 ft. setback shall be required between the runway edge and any property line. No structure or navigation aids shall be closer than 50 ft. from any property line. Use of this airstrip shall be limited to owners of this property and their guests. The developer has agreed, and shall limit the County's liability for any future condemnation to exclude any improvements constructed as a result of this Special Exception. Airspace approval for the proposed site was obtained from the FAA on February 24, 1982. A private use airport constructed on this site will conform to the minimum standards of safety for a private use airport if constructed in accordance with D.O.T. requirements. The determination of such conformity is made by D.O.T. in a final inspection prior to licensing. The procedure for obtaining a private use license is a two-step procedure. The first determination is site approval and basically addresses the question of whether it is feasible to establish a private use airport on the proposed site which will meet D.O.T. requirements. In this phase, no detailed construction plans or site plans are required. After site approval, the proposed licensee prepares the site and constructs the airport. Upon completion, D.O.T. makes a final inspection to determine if all D.O.T. requirements have been met. If the airport fails to meet any D.O.T. requirement, the license will not be issued.
Recommendation Based upon the foregoing findings of fact and conclusions of law it is RECOMMENDED: That the Department of Transportation issue its site approval order to Sonoma International for the proposed private airport, subject to those specific conditions set forth in the Notice of Intent and proposed Site Approval Order. DONE and ENTERED this 18th day of January, 1984, in Tallahassee, Florida. MARVIN E. CHAVIS Hearing Officer Division of Administrative Hearings Department of Administration 2009 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 FILED with the Clerk of the Division of Administrative Hearings this 18th day of January 1984. COPIES FURNISHED: Gerald K. Burton, Esquire Mark A. Seff, Esquire 2740 Hollywood Boulevard Hollywood, Florida 33020 Paul A. Pappas, Secretary Department of Transportation 605 Suwannee Street Tallahassee, Florida 32301 Thomas G. Wright, Jr., Esquire Gregory S. Sollitto, Esquire 3300 University Drive Coral Springs, Florida 33065 Leslie T. Ahrenholz, Esquire Post Office Box 2656 Fort Myers, Florida 33921 Vernon L. Whittier, Jr., Esquire Department of Transportation 605 Suwannee 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
Findings Of Fact Based upon all of the evidence, the following findings are fact are determined: In this examination for licensure challenge, petitioner, Mason L. Flint, contends that he is entitled to a higher score on the March 1994 deputy pilot examination for the Port of Jacksonville. The examination is administered by the Department of Business and Professional Regulation (DBPR) on behalf of respondent, Board of Pilot Commissioners (Board). Although the original petition challenged the grade in twelve respects, petitioner now contends that only two items are in issue, item 21 relating to the local knowledge part of the examination, and item 270 relating to the aids to navigation part of the examination. Both are true-false questions. Unlike the more than fifty other professional licensure examinations administered by the DBPR, the seven-part pilot examination requires a candidate to achieve a minimum passing grade on each part, but candidates doing so then compete with each other for vacant positions. In other words, if only one position at a particular port is open, the candidate achieving the highest score above the minimum passing grade is the only candidate receiving a license. In this case, three deputy pilot positions were available at the Port of Jacksonville, and thus the candidates having the three highest scores among those exceeding the minimum passing grade would be given a license. Petitioner finished sixth on the original grading, but after having his examination regraded by the Board prior to hearing, he was ranked number four. By this challenge, he seeks to have his grade changed on items 21 and 270 so as to raise his ranking to number three. In order to preserve the confidentiality of Item 21 for future examinations, it is suffice to say that the item required a response of true or false concerning limitations on vessels leaving the Talleyrand Docks in Jacksonville, Florida. The examination answer key shows true as the correct response. In preparing all questions pertaining to local knowledge, including item 21, the Board's consultant used the U. S. Coast Pilot, a compilation of operational guidelines governing the movement of vessels in the St. Johns River (and Port of Jacksonville). The specific source of authority for item 21 was paragraph (16) on page 153 of the 1993 edition of the U. S. Coast Pilot. That paragraph reads in pertinent part as follows: (16) Outbound vessels: Vessels with a draft of over 23 (sic) feet sailing between Main Street Bridge to, and including, U. S. Gypsum Co. Pier, shall get underway after 1-1/2 hours after flood current with a cut off time at the beginning of ebb current . . . Because Talleyrand Docks lies between the Main Street Bridge and the U. S. Gypsum Company Pier, this paragraph has application to vessels leaving those docks. The 1993 version of the U. S. Coast Pilot contained a typographical error. Rather than "23" feet, the guidelines should have read "32" feet. To correct this error, paragraph (16) was revised in mid-March 1994, or the same month the examination was given, to provide that any vessel drawing more than 32 feet would be subject to the above movement restrictions. However, candidates were advised that only revisions to the U. S. Coast Pilot through January 1, 1994, would be included in the March 1994 examination. Besides the limitation described in paragraph (16), two other paragraphs on the same page of the U. S. Coast Pilot made reference to the correct 32 foot limitation. In addition, the Guidelines of Vessel Movements on St. Johns River, which form the basis for the data in the U. S. Coast Pilot, used the correct 32 foot limitation. Candidates familiar with those provisions should have been on notice that a typographical error existed in paragraph (16). Although the Board's suggested response is arguably correct, the more persuasive evidence shows that the statement in item 21 was confusing and unclear due to the typographical error in the U. S. Coast Pilot and the conflicting provisions on the same page of the source material. Thus, item 21 does not reliably measure the specified area of competency. Under these circumstances, a candidate should be given credit for either a true or false response, or alternatively, the question should be discarded in calculating a candidate's final score. Accordingly, petitioner's grade should be adjusted in this respect. Petitioner has also contended that only a false response is correct since the question implies that a restriction exists because of its use of the words "up to the beginning of ebb current." The evidence shows, however, that a candidate could reasonably reject that suggested implication and properly make a true response. Item 270 requires a true or false response to a statement regarding identifying marks or buoys marking a channel. The item identifies a set of conditions and then states that such a marking "could" properly be made. The examination answer key shows true as the correct response. The primary source of authority for item 270 is 33 CFR 62.43. According to that federal regulation, buoys marking the side of a channel (lateral aids) are always a solid color, and all solid color buoys marking a channel are numbered. The regulation goes on to provide that, in addition to a number, all solid color numbered buoys may also carry a letter suffix to aid in their identification, or to indicate their purpose. They cannot, however, be identified by letter only, but only by number and letter. Because the more credible and persuasive evidence shows that the question, as stated on the examination, clearly suggests that only a letter could be used for identification of a sidemark buoy, the correct response should be false. Therefore, petitioner should be given credit for his answer. The record is not altogether clear as to how changing petitioner's overall grade will impact his ranking. According to the DBPR psychometrician who is in charge of the pilot examination development, both petitioner and the third ranked candidate gave the same response on one of the challenged questions. On the other item, the two gave different responses, but if either response is deemed to be a correct response, it would have no bearing on their overall ranking. The pychometrician added that if an item is challenged and credit given to the protesting candidate, the answer key is changed and all candidates' scores are adjusted to reflect the change in the answer key.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered by the Board regrading petitioner's examination consistent with the above findings and conclusions. DONE AND ENTERED this 18th day of January, 1995, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of January, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-5327 Petitioner: 1-2. Partially accepted in finding of fact 1. 3. Partially accepted in finding of fact 2. 4-5. Rejected as being unnecessary. 6-8. Partially accepted in finding of fact 2. Partially accepted in finding of fact 12. Rejected as being unnecessary. Partially accepted in finding of fact 2. Partially accepted in finding of fact 12. Partially accepted in finding of fact 3. 14-27. Partially accepted in findings of fact 3-8. 28-39. Partially accepted in findings of fact 9-11. Respondent: 1. Partially accepted in finding of fact 1. 2. Partially accepted in finding of fact 2. 3. Partially accepted in finding of fact 3. 4. Partially accepted in finding of fact 4. 5. Partially accepted in finding of fact 5. 6. Partially accepted in finding of fact 7. 7. Partially accepted in finding of fact 8. 8. Partially accepted in finding of fact 9. 9-11. Partially accepted in finding of fact 10. 12. Rejected. See finding of fact 11. Note: Where a proposed findings has been partially accepted, the remainder has been rejcted as being unnecessary, irrelevant, subordiante, not supported by the evidence, or cumulative. COPIES FURNISHED: Mason L. Flint 1605 Brookside Circle East Jacksonville, Florida 32207 Wellington H. Meffert, II, Esquire 1940 North Monroe Street, Suite 60 Tallahassee, FL 32399-0792 Jack L. McRay, Esquire 1940 North Monroe Street, Suite 60 Tallahassee, FL 32399-0792 Susan J. Foster, Executive Director Board of Pilot Commissioners 1940 North Monroe Street Tallahassee, FL 32399-0773
Findings Of Fact By application dated October 7, 1987, Petitioner applied to DOT for approval of a seaplane base on Deerpoint Lake in Bay County, Florida. The application originally provided for limited commercial flying and use by visiting seaplanes upon invitation by Petitioner. Petitioner also has submitted an October 21, 1987 letter from the Federal Aviation Authority (FAA) granting airspace approval and an October 29, 1987 letter from the Bay County Commissioners stating that no zoning existed in Bay County which would prohibit the location of the seaplane base at Deerpoint Lake. The application was subsequently amended to limit use of the proposed seaplane base to Petitioner's personal, non-commercial use, and at formal hearing, Petitioner bound himself to accept approval of a seaplane base permit restricted exclusively to his private usage and to flying only during daylight hours, and under Visual Flight Rules (VFR) which call for an altitude of 1,000 feet and three miles of visibility. By a resolution dated August 16, 1988, the Bay County Board of County Commissioners adopted a resolution opposing Petitioner's seaplane base. By letter dated August 30, 1988, DOT denied Petitioner's application because of zoning, noise, and safety. Petitioner owns land on a peninsula in the Highpoint area of Deerpoint Lake. Deerpoint Lake is a freshwater lake approximately seven miles long and approximately two miles across at the point it runs up into Bayou George. The landing area proposed by Petitioner would be 200 feet wide and 7,000 feet long, running in an east/west direction with a ramp and hangar located on the peninsula. Although Petitioner testified that the area is large enough to provide multiple landing areas, the landing approaches would be generally over Bayou George. The proposed site would permit takeoffs and landings of Petitioner's presently owned seaplane without flying over anyone's house at an altitude of less than 1,000 feet. Petitioner's seaplane is a four place Aeranca with a 145 horsepower engine. It has no wheels and is equipped with pontoons for water landings. The plane has a muffled exhaust, self contained fuel tanks, and does not discharge emissions into the water. Takeoff time takes approximately 15 seconds at full power with two people on board. Eight hundred feet is necessary for takeoff which produces the loudest noise the plane makes. Landing is accomplished at a low power setting, is generally silent, and requires only 400 feet. DOT has assembled no factual or scientific data for noise. The witnesses are not in agreement as to the volume of noise produced by this plane and there was no reliable evidence which would indicate the decibel level generated at takeoff, but similar descriptions from several pilot that Petitioner's takeoff is "no noisier than an average motor boat, if muffled" is credible and accepted. In weighing the evidence presented with regard to the noise factor, the testimony of several local residents who testified concerning their opinions that the noise made by Petitioner's seaplane upon takeoff and landing was "excessive" has been discounted because these respective opinions are largely not credible either because the witness had no experience with seaplanes, or because the witness was prejudiced against the Petitioner's project as a whole. Specifically, no witness had made a complaint about noise until after the hangar was built. Some witnesses erroneously assumed that Petitioner had erected his hangar without a building permit and further believed an unfounded rumor that the Petitioner must be starting a flying school, or they considered the hangar an "eyesore", or they felt "betrayed" that a neighbor would establish a flying school base. Deerpoint Lake is a low population density area, almost exclusively residential in nature. DOT has done no survey of any kind with regard to the recreational uses of this lake, however evidence adduced at hearing shows that it is used primarily for recreational fishing and water sports. The largest number of fishing boats traceable to lake visitors at one time is twelve, but this does not account for additional abutting owners' boats which are launched without trailers. The concentration of boaters tends to be 3-4 miles away from Petitioner's property. However, there are also private boat ramps on both sides of Petitioner's property. Deerpoint Lake is also a reservoir area and a source of potable water for the county. There are some power poles in the vicinity of Petitioner's property. Some poles support a new power line and others are only the remains of an abandoned power line. The old power poles are generally cut off to be only 3-4 feet above the waterline, and some are just even with the waterline. Both sets of power poles and the power line limit where seaplanes can take off and land on the surface of the water itself, although there is testimony that, under ideal conditions (i.e. if all conditions are met and no flying or boating rules are disobeyed), Petitioner's standard plan for takeoffs and landings would not encounter either power line or poles upon takeoff or landing. There is, of course, no guarantee that all conditions will be favorable all of the time. The more probable danger presented by the poles is that if a seaplane had to taxi or otherwise take evasive action on the surface of the water so as too avoid a fishing boat, swimmer, or water-skier, the plane could encounter a cut-off pole. Petitioner first located his plane on Deerpoint Lake in July, 1984 and has accomplished approximately 25 safe takeoffs and landings therefrom since that time. Since becoming aware of the need for a site permit, he has voluntarily not taken off or landed on the lake. He has never had an accident there, but two other planes have. Neither of the situations, planes, or pilot in these two accidents is comparable to Petitioner's circumstances. Neither accident involved recreational users of the lake. Bobby R. Grice, who ultimately denied the application on behalf of DOT, expressed "just my personal opinion" that boaters could not hear a plane on its final approach. He has fished on Deerpoint Lake. He is not familiar with he operation of seaplanes, the visibility from them, or FAA rules. Two witnesses complained about Petitioner's coming too close to their homes during landings. By County Ordinance 89-02, enacted January 17, 1989, the Bay County Board of County Commissioners prohibited seaplanes on Deerpoint Lake, but also provided for a variance procedure for those landowners in Petitioner's location. As of the date of formal hearing, Petitioner had not applied for, or received, a variance from the county. The October 29, 1987 letter obtained by the Petitioner from the County (see Finding of Fact No. 1) stating there were no zoning impediments to the application at that time has been superseded by the 1989 ordinance Mr. Frank Duke, Chief Planner for Bay County, was unable to give a firm and competent opinion on whether or not the Petitioner's application to DOT was consistent with the existing 1978 Bay County Comprehensive Plan, because he had never personally observed the Petitioner's property on Deerpoint Lake. Nonetheless, it is clear that if Petitioner were to apply to Bay County for a seaplane base variance on Deerpoint Lake, Petitioner's proposed use would have to be reviewed in relationship to the County Comprehensive Plan.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that Department of Transportation enter a Final Order denying Petitioner'S seaplane base application. DONE and ENTERED this 19th day of September, 1989, at Tallahassee, Florida. ELLA JANE P. DAVIS 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 19th day of September, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-4932 The following specific rulings are made pursuant to Section 120.59(2) F.S., upon the parties' respective Proposed Findings of Fact (PFOF): Petitioner's Proposed Findings of Fact Accepted: 1, 2, 3, 4, 5, 7, 8, 11, (12 is accepted as modified to conform to the record), 13, 15, 19 a-b, 20, 22, 24. Accepted except for material subordinate, unnecessary or cummulative to the facts as found: 6, 16, 21, 23. What is rejected is also not dispositive of the issue at bar. Rejected as subordinate or unnecessary: 9,10. Accepted in part; the remainder is rejected as not proven: 14, 17, 18. Respondent's Proposed Findings of Fact Accepted except for material subordinate, unnecessary, or cumulative to the facts as found: 1, 2, 4, 5. Rejected as subordinate, unnecessary, or cumulative to the facts as found: 3, 6, 7, 8. Moreover, these proposals are largely reiteration of unreconciled testimony or legal argument. COPIES FURNISHED: Vernon L. Whittier, Jr. Senior Attorney Department of Transportation 605 Suwannee Street, M.S. 58 Tallahassee, Florida 32399-0458 Bonnie K. Roberts, Esquire Post Office Box 667 Bonifay, Florida 32425 Ben C. Watts, Interim Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450
The Issue Whether the application of the Biscayne Bay Pilots' Association for an increase in the pilotage rates for the Port of Miami should be granted in whole or in part or denied.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: In their Prehearing Stipulation, the parties stipulated to the following facts, which are deemed admitted: The Cargo Carriers Association is a Florida not-for- profit corporation with its principal office in Miami, Florida. The purpose of the Cargo Carriers Association is to promote, advance, and secure laws, rules, and regulations concerning vessels utilizing the navigable waters of the State of Florida, in particular the Port of Miami and Port Everglades, in order that the waters, harbors, and ports of the state and the environment and property of all persons be protected to the fullest possible extent consistent with sound financial principles. A substantial number of the members of the Cargo Carriers Association are affected by the rates of pilotage currently set for the Port of Miami, inasmuch as they are required by Florida law, Chapter 310, Florida Statutes, to utilize and compensate the Port of Miami pilots whose rates are established by the Board, and they are, in fact, utilizing and compensating pilots in accordance with the rates established for the Port of Miami. Accordingly, the Cargo Carriers Association is substantially affected by and has standing to maintain this challenge to the Board's Decision dated March 9, 2000. The Board is an agency of the State of Florida created pursuant to Section 310.151, Florida Statutes, which is invested with the authority and responsibility to determine the rates of pilotage at the various ports of Florida, including the Port of Miami. Section 310.151, Florida Statutes (2000). The Pilots' Association is an association of harbor pilots that is treated as a partnership for tax purposes and that performs the pilotage services at the Port of Miami. The offices of the Pilots' Association and its affiliate, Biscayne Bay Pilots, Inc., are located in Miami, Florida. In October 1999, the Pilots' Association submitted to the Board an application for an increase in the pilotage rates for the Port of Miami. On October 28, 1999, the Investigative Committee for the Board convened a fact-finding public hearing on the Pilots' Association's application in Miami, Florida, at which numerous interested persons provided comments and testimony, both for and against the Pilots' Association's requested rate increase. On November 29, 1999, the Pilots' Association submitted to the Board a version of its application that, in its words, "has been edited to correct scrivener's errors." On December 9, 1999, the Investigative Committee for the Board completed its review and investigation of the Pilots' Association's application and presented its written findings to the Board as required by Rule 61E13-2.007(4), Florida Administrative Code. On January 21, 2000, the Board met in Miami, Florida, to review the rate increase application of the Pilots' Association and heard comments and testimony from persons who supported or opposed the application in whole or in part. At the conclusion of this meeting, the Board preliminarily determined to grant the Pilots' Association's application in part with a phased-in increase in rates. The Board's written decision was filed with the agency's clerk on March 9, 2000. The Cargo Carriers Association timely filed its petition for a proceeding under Sections 120.569 and 120.57(1), Florida Statutes (1999). The Pilots' Association requested in its application a 10 percent increase in the rate for draft charges, for tonnage charges, for shifting or anchoring charges, and for minimum fees, effective immediately, with an additional increase of 5 percent in these rates and fees six months after the effective date of the initial increase. The requested increase would result in a total 15.5 percent increase in pilotage rates and minimum fees at the Port of Miami. The Board hired an Investigative Committee composed of two consultants, one a Certified Public Accountant and the other a retired Coast Guard officer, to examine the Pilots' Association's application in light of the statutory factors set forth in Section 310.151(5)(b) and (c), Florida Statutes (1999). The Investigative Committee held a public hearing in which it received testimony from interested parties. The Investigative Committee Report was presented to the Board at the public hearing on January 21, 2000. The Board included in its written Decision findings of fact and comments with respect to each of the criteria set forth in Section 310.151(5), Florida Statutes (1999), 3/ an analysis and statement of its decision to approve an increase in the pilotage rates at the Port of Miami, and an order specifying the approved increases. The Board stated its intention to grant the Pilots' Association's application in part and to increase the rates of pilotage at the Port of Miami 3 1/2 percent for draft charges, tonnage charges, shifting or anchoring charges, and the minimum fees, effective on the date of its order, 4/ with an additional 3 percent rate increase in each of the charges effective 12 months from the effective date of the first increase and another 3 percent increase in each of the charges effective 24 months after the effective date of the first increase. This increase is 63.16 percent of the increase requested by the Pilots' Association. The public interest in having qualified pilots available to respond promptly to vessels needing their service. Section 310.151(5)(b)1., Florida Statutes (2000). 5/ In its Decision, the Board accepted the findings in the Investigative Committee Report with regard to this statutory criterion, which facts are found at page 11 of the report. 6/ The record of the hearing held before the Division of Administrative Hearings does not contain any evidence sufficient to form a basis for findings of fact different from, or in addition to, the facts relied on by the Board in its Decision with respect to this criterion. 7/ A determination of the average net income of pilots in the port, including the value of all benefits derived from service as a pilot. For the purposes of this subparagraph, "net income of pilots" refers to total pilotage fees collected in the port, minus reasonable operating expenses, divided by the number of licensed and active state pilots within the ports. Section 310.151(5)(b)2., Florida Statutes (2000). In its Decision, the Board accepted the findings in the Investigative Committee Report with regard to this statutory criterion, which facts are found at pages 12 and 13 of the report, with the following modification to the depreciation adjustment included in the calculation of the pilots' total compensation if the requested rate increase were approved in toto and the resulting modification in the projected "adjusted (all inclusive) income per pilot": The depreciation adjustment projected for the year 2000 was decreased from $6500.00 to $1600.00, resulting in an adjusted (all inclusive) income per pilot for the year 2000 of $340,800.00; the depreciation adjustment projected for the year 2001 was decreased from $6500.00 to $4800.00, resulting in an adjusted (all inclusive) income per pilot for the year 2001 of $340,000.00. The Investigative Committee Report included in the computation of average net pilot income the value of health and retirement benefits, pension valuation, and discretionary costs such as political contributions, lobbying expenses, and business promotion expenses. The Investigative Committee identified the actual total pilot compensation for pilots at the Port of Miami, including adjustments for pension valuation and discretionary costs but not for depreciation, as $308,200.00 for 1998, and it projected the total pilot compensation for 1999, 2000, and 2001, without a rate increase, as $288,200.00, $296,200.00, and $290,200.00, respectively. The record of the hearing held before the Division of Administrative Hearings does not contain evidence sufficient to form a basis for findings of fact different from, or in addition to, the facts relied on by the Board in its Decision with respect to this criterion, except as specifically set forth in the following paragraphs. Since 1993, the Pilots' Association has tried to maintain a roster of 18 active pilots at the Port of Miami, although this number has fluctuated from time to time. Currently, there are 17 pilots and one deputy at the Port of Miami. Excluding adjustments for pension valuation and discretionary costs, compensation in 1997 and 1998 for pilots at the Port of Miami was $281,000.00 and $278,000.00, respectively; compensation at Port Everglades was $329,000.00 and $344,000.00, respectively; compensation at the Port of Palm Beach was $154,000.00 and $230,000.00, respectively; and compensation at the Port of Jacksonville was $250,000.00 and $254,000.00, respectively. Because of the exclusions noted above, these amounts understate actual compensation. Compensation for the Port of Miami pilots increased 38.4 percent between 1989 and 1996. In 1989, pilot income at the Port of Miami was $203,000.00, and, in 1990, it was $181,000.00. The pilots received an effective 32 percent rate increase as a result of a 26 percent rate increase in 1992 and a 5 percent rate increase in 1993, and gross pilotage revenue increased 72 percent between 1989 and 1996, an increase primarily attributable to an increase in the number of larger vessels using the port. As a result of the revenue increase, pilot income rose to over $281,000.00 in 1997. In addition to piloting, the pilots at the Port of Miami carry out the duties of Harbor Master, which involve coordinating all of the ship traffic in the port. The pilots receive no additional compensation for this service. Reasonable operating expenses of pilots. Section 310.151(5)(b)3., Florida Statutes (2000). In its Decision, the Board accepted the findings of the Investigative Committee Report with regard to this statutory criterion, which facts are found at pages 13 through 16 of the report. In the report, the Investigative Committee found that, with the exception of the costs associated with the Pilots' Association's retirement plan, the operating expenses included in the Pilots' Association's application were reasonable. The Investigative Committee Report included a detailed discussion of the Pilots' Association's retirement plan. The retirement plan of the Pilots' Association is a non-qualified plan under the Internal Revenue Code and is unfunded and, therefore, contingent on the future operations at the Port of Miami. The plan is in the form of a consulting agreement between the Pilots' Association and its retirees, pursuant to which each pilot who reaches 55 years of age and completes 20 years of service as a full-time active pilot, and who agrees to act in the best interests of the Pilots' Association, is eligible to be paid up to 50 percent of an active pilot's income, provided that the aggregate amount paid to retirees may not exceed 20 percent of the annual total gross pilotage revenue. The payments are to be made from future pilotage revenue. The total costs associated with retired pilot compensation and benefits (equity buy-outs, surviving spouse accrual, and health insurance) included in the Investigative Committee Report for 1998 were $2,093,086.00, of which $1.4 million was attributable to payments to 11 retirees for consulting services. The Investigative Committee questioned the reasonableness of this operating expense at page 16 of its report, although it noted that there are similar plans in other Florida ports. The record of the hearing held before the Division of Administrative Hearings does not contain evidence sufficient to form a basis for findings of fact different from, or in addition to, the facts relied on by the Board in its Decision with respect to this criterion, except as specifically set forth in the following paragraphs. In 1998, payments to the five retired pilots at Port Everglades totaled $962,714.00. The retirement plan for the Port Everglades pilots has the same limits as the plan for the pilots at the Port of Miami: A Port Everglades retiree's benefit is limited to 50 percent of the income of an active pilot, and the aggregate benefits paid to Port Everglades retirees may not exceed 20 percent of the pilots' annual gross revenue. The plan at Port Canaveral limits the aggregate benefits paid to retirees to 33 1/3 percent of gross annual revenue; the limitation at the Port of Jacksonville for current retirees is 28 percent of gross annual revenue and 22 percent for new retirees. There are no aggregate limits on the amounts paid to retirees at the ports in Charleston, South Carolina, or Savannah, Georgia. Pilotage rates in other ports. Section 310.151(5)(b)4., Florida Statutes (2000). In its Decision, the Board accepted the findings of the Investigative Committee Report with regard to this statutory criterion, which facts are found at pages 16 and 17 of the report, and stated its intention to confine its comparative rate analysis to ports in Florida and the southeastern seaboard. It was noted in the Investigative Committee Report that, in 1998, the Port of Miami was ranked the seventh highest of 12 Florida ports with respect to the cost for piloting both a standard large and a standard small vessel and the eighth highest out of the 12 Florida ports in the amount of revenue per handle. 8/ As part of its comparison of pilotage rates in other ports, the Investigative Committee included in its report a chart based on 1998 data setting out the number of handles in each of the 12 Florida ports surveyed, together with 1998 revenue, average handle time, number of pilots, revenue per handle, and revenue per handle hour for each of the 12 ports. In 1998, the Port of Miami had 8,909 handles, revenue of $8,433.539.00, average handle time of 2.0 hours, 18 pilots, revenue per handle of $947.00, and revenue per handle hour of $473.00. Based on 1998 data, Port Everglades, the port closest geographically to the Port of Miami, had 10,168 handles, revenue of $6,899,006.00, average handle time of 1.9 hours, 16 pilots, revenue per handle of $679.00, and revenue per handle hour of $357.00. In its Decision, the Board recognized that pilotage rates cannot be considered in a vacuum and that a rate increase or decrease is not justified simply because a rate is comparatively low or high. Rather, the Board found that consideration must be given to the size and number of vessels using the port, the time required to service the vessels, and the characteristics of the port that impact positively or negatively on the gross revenue and net income derived from the rate structure. The record of the hearing held before the Division of Administrative Hearings does not contain evidence sufficient to form a basis for findings of fact different from, or in addition to, the facts relied on by the Board in its Decision with respect to this criterion, except as specifically set forth in the following paragraphs. The Investigative Committee determined that Port Everglades was the closest and most relevant competitive port to the Port of Miami. The Port of Miami handles primarily cruise ships, excluding daily cruise ships, and container cargo vessels. Port Everglades handles both container cargo vessels and vessels containing bulk and neo-bulk products such as petroleum, cement, steel, and lumber, as well as a mix of large cruise ships and smaller, daily cruise ships. Port Everglades is one of the largest petroleum ports in the southeastern United States. The Port of Miami handles fewer but generally larger vessels than Port Everglades. The distance between the sea buoy 9/ and the turning basin where the pilots turn and dock cruise ships in the Port of Miami is approximately six miles; the distance between the sea buoy and the turning basin where the pilots turn and dock cruise ships in Port Everglades is approximately two miles. In Port Everglades, the distance from the sea buoy to the channel is short, so that there is little room to position the vessel properly for entry into the channel. The channel is, however, straight. In the Port of Miami, there is a 40-degree turn mid- channel. Currently, Port Everglades has 16 pilots and two deputies. A comparison of the pilotage rates in the Port of Miami and in Port Everglades shows that, without considering the rate increase proposed by the Board, the current draft rate in the Port of Miami is 38 percent higher than that in Port Everglades and the current tonnage rate is 7.5 percent higher in the Port of Miami than in Port Everglades. With the Board's proposed rate increase, the draft rate at the Port of Miami is roughly 40 percent higher than that at Port Everglades, and the tonnage rate is roughly 16 percent higher. Without a rate increase, total pilotage fees at the Port of Miami are 18 percent higher for small vessels and 14 percent higher for large vessels than the total pilotage fees at Port Everglades. Using the cruise ship Enchantment of the Seas as an example, without the rate increase, pilotage fees are $5,700.00 per trip in and out of the Port of Miami, or $260,000.00 annually; with the Board's proposed rate increase, pilotage fees are $6,270.00 per trip, or $326,000.00 annually. In contrast, the pilotage fees for the Enchantment of the Seas at Port Everglades are $5,150.00 per trip in and out of the port, or $268,000.00 annually. 10/ The amount of time each pilot spends on actual piloting duty and the amount of time spent on other essential support services. Section 310.151(5)(b)5., Florida Statutes (2000). In its Decision, the Board accepted the findings in the Investigative Committee Report with regard to this statutory criterion, which facts are found at page 18 of the report. The record of the hearing held before the Division of Administrative Hearings does not contain any evidence sufficient to form a basis for findings of fact different from, or in addition to, the facts relied on by the Board in its Decision with respect to this criterion. The prevailing compensation available to individuals in other maritime services of comparable professional skill and standing as that sought in pilots, it being recognized that in order to attract to the profession of piloting, and to hold the best and most qualified individuals as pilots, the overall compensation accorded pilots should be equal to or greater than that available to such individuals in comparable maritime employment. Section 310.151(5)(b)6., Florida Statutes (2000). In its Decision, the Board accepted the findings in the Investigative Committee Report with regard to this statutory criterion, which facts are found at pages 18 and 19 of the report. In its report, the Investigative Committee recognized that the Board, in the Port Everglades case, concluded in its Final Order that the profession most comparable to that of a port pilot is that of a captain of a large United States-flagged vessel. The Investigative Committee further recognized that the Board, in the Port Everglades case, concluded that pilot compensation should be equal to or greater than $203,000.00, represented by the Investigative Committee in its report as the annualized compensation of a "U.S. master." The Investigative Committee found, further, that the skills, risks, and working conditions of a ship's captain and a pilot are considerably different in that a pilot must have a wider range of technical skills to pilot a variety of vessels of different sizes; a pilot assumes more physical risks because of the need to board and disembark each vessel; a pilot is constantly in a stressful situation while piloting a vessel into port; and a pilot is a private businessman rather than an employee and must face all of the attendant risks and obligations. In its Decision, the Board established the "floor" compensation for pilots at approximately $200,000.00 to $220,000.00, which represents the wage of the highest-paid ship's master on a United States-flagged ship. 11/ The Investigative Committee found in its report that the amount of compensation above the floor established by the Board depends on several factors, including the size of the ships calling on the port, the difficulty of the port, the cost of living in the surrounding community, and pilot compensation in other United States ports. Finally, the Board expressly recognized in its Decision that, unlike ships' masters, pilots are not employees of a corporation but are independent businessmen, with all of the financial risks that status implies. The record of the hearing held before the Division of Administrative Hearings does not contain evidence sufficient to form a basis for findings of fact different from, or in addition to, the facts relied on by the Board in its Decision with respect to this criterion, except as specifically set forth in the following paragraphs. 12/ The education and training of a pilot and a ship's master is, in many cases, the same. A ship's master operating on the high seas, however, has the responsibility for the ship's well-being 24 hours a day, seven days a week during the course of the voyage. The scope of responsibility of a ship's master requires a wider array of skills than those of a pilot; he or she must make judgments regarding matters extending beyond the navigation of the ship. The ship's master is responsible for the ship's crew and, if the ship is a cruise ship, for the welfare of the passengers, and he or she must deal with the hazards of the ship catching fire, disease onboard, and a variety of other matters requiring non-technical skills. A ship's master must have navigational skills and must be knowledgeable about many ports throughout the world and many weather systems. Even when a ship is being piloted into port, the ship's master retains the ultimate responsibility for the ship, and the ship's master will sometimes dock the ship once the pilot has brought it to the docking area. Pilots are licensed to operate in a particular port, and they must have an intimate knowledge of that port. Because pilots must handle almost every vessel calling at the Port of Miami, they must be familiar with the peculiarities of numerous types and sizes of vessels, and they must continually take courses to keep up with the changing technology used on new vessels. Consequently, the knowledge and skills required of a pilot are more specialized and more narrowly focused than those required of a ship's master. When a vessel is ready to come into the Port of Miami, the pilot is taken to the vessel, which, depending on its size, may be located two-to-three miles east of the sea buoy. The pilot must, therefore, board and disembark from a vessel in open water. A pilot at the Port of Miami must guide vessels, sometimes exceeding 1,000 feet in length, through a 500-foot wide channel cut in rock, make a 40-degree turn, and guide the vessel into the port's turning basin and, ultimately, to its berth. There is little maneuvering room, and the pilot must deal with the ever-changing winds, currents, and tides that affect a vessel's passage to the berthing area. For ships of 1,000 feet or longer, there is adequate but not generous room for maneuvering in the turning basin. The number of large vessels using the Port of Miami has increased since 1989. Piloting large vessels increases the complexity of the pilot's job and increases the potential for an accident, necessarily increasing the amount of stress experienced by pilots routinely bringing such vessels into the Port of Miami. A pilot must direct the crew of a vessel when bringing the vessel into and through the channels leading to the turning basin and from the turning basin to the berths, and his or her success depends on his ability to communicate instructions to crewmembers. This communication is becoming more difficult because crewmembers are recruited from many different countries, including those from Eastern Europe, and they may or may not understand English. The stress experienced by a pilot is significantly increased when he must depend on crewmembers who do not understand English, because disaster could result if the pilot's instructions are not followed precisely. The stress experienced by pilots when they are on the job is much more intense, though of shorter duration, than that experienced by ship's masters. A pilot at the Port of Miami will pilot between six and 18 ships each week and is on-call 24 hours each day while on piloting duty, under conditions that are physically and mentally stressful. The pilots at the Port of Miami are not employees of the Pilots' Association. Rather, the Pilots' Association is operated as a partnership of the pilots, and it is funded from the pilotage revenue at the Port of Miami. There are significant operating expenses deducted from gross pilotage revenue before the pilots are paid. The Pilots' Association owns and maintains a building at the far eastern end of the Port of Miami that houses the pilots' business office and also contains bedrooms, restrooms, a lounge, and a chart room for use by the pilots. The Pilots' Association employs office staff to handle billing and accounting functions. The Pilots' Association owns and operates four pilot boats used to transport pilots to and from vessels arriving at and departing from the Port of Miami, and it employs six full- time boat operators. Replacement costs for the pilot boats exceed $2 million. The pilots must absorb rising fuel costs, which cannot be passed on as a surcharge to those using the port and are also responsible for the costs of maintaining the boats. The pilots provide communications services to the vessels entering the Port of Miami, and the Pilots' Association maintains three Federal Communications Commission licenses, a marine coastal station, a high power UHF repeater, and VHF radios in all of the pilot boats. The pilots have invested approximately $50,000.00 in communications equipment that they make available to the Port of Miami, including a 100-watt VHF long range radio and tower, as well as the UHF repeater, and they also maintain the equipment. In addition, the pilots employ dispatchers who handle the radios. The pilot's income is a function of the volume and size of traffic in and out of the port, and they are, consequently, affected by decisions made by the Port of Miami authorities with respect to services to be provided vessels using the port and with respect to port charges. The financial risks faced by the pilots at the Port of Miami are, for the most part, shared by all independent business owners. However, even though pilots of the Pilots' Association are the only pilots allowed to provide services in the Port of Miami and even though pilotage rates are highly regulated and, to an extent, non-competitive, pilots, unlike most private independent business owners, cannot pass on increases in operating expenses; rather, the pilots must absorb these increases until, and unless, an application for a rate increase is approved. 13/ The impact rate change may have in individual pilot compensation and whether such change will lead to a shortage of licensed state pilots, certificated deputy pilots, or qualified pilot applicants. Section 310.151(5)(b)7., Florida Statutes (2000). In its Decision, the Board accepted the findings in the Investigative Committee Report with regard to this statutory criterion, which facts are found at page 19 of the report. In its report, the Investigative Committee found that all-inclusive pilot compensation for the pilots at the Port of Miami would increase 8.76 percent if the increase requested by the Pilots' Association were approved by the Board. As a result, the compensation of pilots at the Port of Miami would still be lower than that of the pilots at Port Everglades, but only slightly. The Investigative Committee noted that an opening at any of the four major Florida ports, the Port of Miami, Port Everglades, Tampa, and Jacksonville, draws 20 to 30 applicants from all over the United States. The Investigative Committee observed that, with or without a rate increase, any of these four ports would attract qualified pilots because they are likely to find more attractive compensation and working and living environments than provided by their present situations. The record of the hearing held before the Division of Administrative Hearings does not contain any evidence sufficient to form a basis for findings of fact different from, or in addition to, the facts relied on by the Board in its Decision with respect to this criterion. Projected changes in vessel traffic. Section 310.151(5)(b)8., Florida Statutes (2000). In its Decision, the Board accepted the findings in the Investigative Committee Report with regard to this statutory criterion, which facts are found at pages 20 and 21 of the report. The Investigative Committee accepted the estimated handles provided by the Pilots' Association in its application, which reflects an increase from 8,909 handles in 1998, to an estimated 9,200 handles in 1999, 2000, and 2001. The Investigative Committee noted in its report that the number of cruise passengers at the Port of Miami has remained steady since 1991 and that, although the number of handles decreased between 1992 and 1995, there was steady growth in cargo tonnage between 1988 and 1998. Even with the decrease in the number of handles, the average revenue per handle increased from $545.00 in 1990 to $978.00 in 1998, accounting for a 73 percent increase in the gross annual revenue and a 79 percent increase in the average revenue per handle. The Investigative Committee found that the data suggests that the increase in the pilots' average revenue per handle, and, therefore, its gross annual revenue, is more a function of the increase in the size of the vessels calling at the Port of Miami than a function of the 32 percent rate increase in 1992 and 1993. The Investigative Committee found in its report, and the Board recognized in its Decision, that Port Everglades and the Port of Miami have a strong competitive relationship and that a large increase in pilotage rates at the Port of Miami might result in a decision by Maersk Shipping, a large shipping company currently calling at the Port of Miami and at Port Everglades, to consolidate its operations and use Port Everglades rather than the Port of Miami, resulting in a material decrease in the revenue of the Port of Miami pilots. Prior to the rate increase proposed by the Board, Maersk Shipping paid the pilots at the Port of Miami $1.08 million each year in pilotage fees. A change in operations to Port Everglades would result in a decrease in each pilot's annual income of approximately $48,000.00, with a $24,000.00 decrease in each retiree's benefits. 14/ The record of the hearing held before the Division of Administrative Hearings does not contain evidence sufficient to form a basis for findings of fact different from, or in addition to, the facts relied on by the Board in its Decision with respect to this criterion, except as specifically set forth in the following paragraphs. In choosing ports of call, ship owners, particularly cargo lines, consider many factors, including marketing factors, the availability of berths, the availability of terminal space, the availability of inland transportation, and port congestion, as well as port costs. Port costs, also known as port call expenses, at the Port of Miami are composed of many elements in addition to pilotage fees, such as terminal fees ($8,800.00) 15/ , dockage fees ($3,349.00), wharfage fees ($3,400.00), tug boat fees ($3,009.00), agent fees ($1,500.00), custom and agriculture entry fees ($1,995.00), and harbor fees ($162.00), for a total of $5,570.00; pilotage fees at the Port of Miami for a standard large vessel, according to 1998 data, were $1,085.40, or approximately 15-to-20 percent of port call expenses for a standard large vessel. Therefore, while pilotage fees are a significant part of the mix of port call expenses considered by ship owners in determining whether to call at the Port of Miami, pilots have no control over most of the fees and tariffs comprising port call expenses or over the many other factors that might influence the competitive posture of the Port of Miami vis-à-vis Port Everglades or changes in vessel traffic in the Port of Miami. The Port of Miami consists of Lummus and Dodge Islands, and it is run by the Miami-Dade County Seaport Department. The port rates at the Port of Miami increased approximately 30 percent between 1991 and 1998, generating a revenue increase of approximately 76 percent. Operating expenses increased approximately 44 percent during that time period, but, in general, the port's rate increases have gone primarily to finance improvements in the port's infrastructure and to provide its customers with facilities to accommodate their larger vessels. The port has also received a number of federal and state grants to fund construction programs to improve the port, as well as federal funds for the Port of Miami's dredging program. POMTOC, the Port of Miami Terminal Operating Company, recently received approval to raise its gate fee and empty container storage fee 2.7 percent. The Miami-Dade County Seaport Department also increased its harbor fee for large vessels from $195.00 in 1999 to $235.00 in 2000. In addition, the majority of the port's tariff items increased between 1999 and 2000. Competition is very aggressive among the ports along the eastern seaboard of the United States and along the Gulf of Mexico. As one response to the competitive nature of the market, the Port of Miami has, since 1998, entered into volume incentive agreements with several of its largest customers. The purpose of these agreements is to increase the level of activity at the port by offering a reduction in the port's tariff rate, while at the same time having a guaranteed minimum level of revenue for the port. The Port of Miami has entered into volume incentive agreements with Carnival Cruise Lines, Royal Caribbean Cruise Lines, Seaboard Marine, Maersk, Columbus Lines, and Chilean, and it is in the process of negotiating other such agreements. As a result of the agreements, these lines have brought additional business to the port or have brought new lines to the port. Cost of retirement and medical plans. Section 310.151(5)(b)9., Florida Statutes (2000). In its Decision, the Board accepted the findings in the Investigative Committee Report with regard to this statutory criterion, which facts are found at pages 22 through 25 of the report. In its report, the Investigative Committee determined that the estimated cost of the medical plan available to active and retired pilots for 1999, 2000, and 2001 was $8,125.00, $8,235.00, and $8,400.00, respectively, for each active pilot (or a gross for active pilots of $143,000.00, $140,000.00, and $148,000.00, respectively), and $4,636.00, $5,083.00, and $5,083, respectively, for each retiree (or a gross for retirees of $51,000.00, $61,000.00, and $61,000.00, respectively). The Pilots' Association funds both a money purchase pension plan and a 401k plan for all of its employees, after they have completed one year's service. The total annual contribution averages $6,000.00 per employee. Because the pilots are members of a partnership, they are not considered Pilots' Association employees. Their retirement plan is unfunded, and, as noted above, is in the form of a lifetime consulting agreement pursuant to which eligible pilots receive income that is limited to 50 percent of an active pilot's income, with the aggregate payments to retirees capped at 20 percent of the pilots' gross annual revenue. A surviving spouse of a retired pilot is entitled to receive 25 percent of an active pilot's income for life. The equity interests of retiring pilots in the Pilots' Association are also purchased by the Pilots' Association. These benefits result in an aggregate cost to the Pilots' Association of $2,093,086.00 per year. The Investigative Committee valued the pension plan at a conservative $30,000.00 per year, a figure that the Board accepted over objections by the Pilots' Association. The record of the hearing held before the Division of Administrative Hearings does not contain evidence sufficient to form a basis for findings of fact different from, or in addition to, the facts relied on by the Board in its Decision with respect to this criterion. Physical risks inherent in piloting. Section 310.151(5)(b)10., Florida Statutes (2000). In its Decision, the Board accepted the findings in the Investigative Committee Report with regard to this statutory criterion, which facts are found at pages 25 and 26 of the report. The Investigative Committee found that boarding a vessel at sea is the most difficult and dangerous aspect of a pilot's job, and that several pilots were injured between 1996 and 1999. Pilots board vessels in the open sea under many different conditions, with considerable risk, and the pilot often receives minimal support from a vessel's crew. The record of the hearing held before the Division of Administrative Hearings does not contain evidence sufficient to form a basis for findings of fact different from, or in addition to, the facts relied on by the Board in its Decision with respect to this criterion, except to the extent specifically set forth in the immediately following paragraphs. Even though they may refuse if conditions are unsafe, as a general rule pilots board and disembark from vessels in the open sea, in all kinds of weather, day and night, on rope ladders that are not fixed, that are sometimes not consistent with standards established by the International Maritime Organization, and that are sometimes in poor repair. Whenever possible, the vessels turn to create a lee, or sheltered side, where the pilot can board and disembark from the vessel with less risk, although it is always possible, even in a calm sea, for a cross swell to hit the vessel during boarding or disembarking. Another point at which a pilot is physically at risk is upon moving from the ladder to the deck of the vessel. Many cruise ships have pilot doors low on the side of the vessel to shorten the distance a pilot must ascend or descend a ladder to board and disembark from the ship. Once the pilot is on board the vessel, he is escorted to the bridge, which is accessible only by stairs, sometimes totaling 100 steps in many modern cargo ships. Special characteristics, dangers, and risks of the particular port. Section 310.151(5)(b)11., Florida Statutes (2000). In its Decision, the Board accepted the findings in the Investigative Committee Report with regard to this statutory criterion, which facts are found at pages 26 and 27 of the report. In its report, the Investigative Committee identified several special characteristics, dangers, and risks of the Port of Miami. It recognized that, due to the velocity and direction of the currents, the proximity of the Gulf Stream presents a variety of challenges to pilots as vessels approach the Outer Bar Channel and that the Gulf Stream, together with northerly winds and a flooding current, make transiting the jetties especially difficult. Because the channel bottom is hard coral from the sea buoy to the berths, it is extremely difficult to handle large, deep-draft vessels to and from the gantry berths, and the current and wind conditions require special handling of these vessels when they dock or turn. In addition, reefs lining the approaches to the Port of Miami are unmarked, and the background light from Miami-Dade County makes it difficult to identify land and navigational marks. Weather can cause hazards to navigation in the Port of Miami, with rapidly changing wind conditions resulting from thunderstorms and with changing tidal conditions resulting from heavy rains. In addition, northwesterly and northeasterly winds cause heavy sets on a flood tide for vessels passing through the jetties. The record of the hearing held before the Division of Administrative Hearings does not contain evidence sufficient to form a basis for findings of fact different from, or in addition to, the facts relied on by the Board in its Decision with respect to this criterion, except to the extent specifically set forth in the immediately following paragraphs. 16/ The complexity of the waterway poses a high risk to vessels being piloted into the Port of Miami. Waterway complexity at the Port of Miami includes the amount of crossing traffic, turns in the channel, converging traffic from different channels, background lighting, and the large number of small pleasure craft in and around the channels. The hard rock bottom of the channels poses a high risk to vessels being piloted into the Port of Miami. The channel is dredged in a "U" shape, forming a narrow underwater trench through which vessels must pass, and vessels can be seriously damaged if they come into contact with the sides of the trench. Any other factors the board deems relevant in determining a just and reasonable rate. Section 310.151(5)(b)12., Florida Statutes (2000). In its Decision, the Board determined that there were no such factors. The record of the hearing held before the Division of Administrative Hearings does not contain any evidence sufficient to form a basis for findings of fact different from, or in addition to, the Board's finding. The board may take into consideration the consumer price index or any other comparable economic indicator when fixing rates of pilotage; however, because the consumer price index or such other comparable economic indicator is primarily related to net income rather than rates, the board shall not use it as the sole factor in fixing rates of pilotage. Section 310.151(5)(c), Florida Statutes (2000). In its Decision, the Board accepted the findings in the Investigative Committee Report with regard to this statutory criterion, which facts are found at pages 28 and 29 of the report and in the attachments thereto. In its report, the Investigative Committee found that the Consumer Price Index ("CPI") had increased 17.8 percent since January 1, 1993, the date of the last pilotage rate increase, and 22.9 percent since October 1991, the date of the Pilots' Association's last application for a rate increase. In reaching its conclusion that some increase in pilotage rates at the Port of Miami is justified, the Board noted in its Decision that it considered it compelling that the CPI had increased 17.8 percent since the last rate increase and that pilotage rates at the Port of Miami had not increased for seven years. The record of the hearing held before the Division of Administrative Hearings does not contain any evidence sufficient to form a basis for findings of fact different from, or in addition to, the facts relied on by the Board in its Decision with respect to this criterion. Taken in its entirety, the evidence presented by the Cargo Carriers Association and the Pilots' Association in this proceeding with respect to the statutory factors set forth in Section 310.1151(5)(b) and (c), Florida Statutes (2000), yielded findings of fact in addition to those found by the Board in its Decision. There was not sufficient credible and persuasive evidence presented by the Cargo Carriers Association to support a finding of fact contrary to the findings of the Board in its Decision.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Pilotage Rate Review Board consider the additional facts established by the evidence presented at the hearing before the Division of Administrative Hearings in determining, in accordance with its interpretation of its statutory mandate, its expertise, and the appropriate policy considerations, whether the Decision on the Biscayne Bay Pilots' Association Pilotage Rate Increase Application in the Port of Miami, filed March 9, 2000, will result in fair, just, and reasonable pilotage rates at the Port of Miami. DONE AND ENTERED this 11th day of January, 2001, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO 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 11th day of January, 2001.
