Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: As of December 18, 1984, the number of individuals licensed or certificated by the Board of Pilot Commissioners for Tampa Bay was twenty (20) state pilots and four (4) deputy pilots. This number has remained constant since 1981. The petitioner Tampa Tri-County Pilots Association (TRICO) was formed and began operations on January 1, 1984, to provide pilotage services on Tampa Bay. TRICO's membership includes only one state licensed pilot and no certificated deputy pilots. As of December 18, 1984, the membership of the intervenor Tampa Bay Pilots Association included nineteen (19)licensed state pilots and four (4) certificated deputy pilots. While a Tampa shipping agent expressed his feeling of a need for additional pilots on Tampa Bay, no factual basis for this opinion was demonstrated. Indeed, the testimony of this witness indicates that the number of vessels operated by hisagency requiring the use of state pilots was virtually the same in 1984 as it was in 1981 or 1982. This witness did not have knowledge as to the number of licensed pilots and deputy pilots in Tampa Bay between 1981 and 1984 and was not totally familiar with the distinction between state pilots and federal pilots. The number of foreign vessels calling upon Port Manatee has increased over the last several years. However, the Assistant Port Director had no opinion as to whether additional state pilots or deputy pilots were needed to safely or adequately handle this increased traffic. While the Port of St. Petersburg has experienced a slight increase in the total number of vessels coming in and out, the Assistant to the Director of the Port Authority was unaware of which vessels required a state pilot. The number of foreign vessels in and out of the Port of Tampa decreased for each year from 1980 through 1983, and then increased for the year 1984, but still did not reach the number of vessels using the Port in 1980. Tampa Bay's main ship channel is going through a harbor deepening project which will enable it to accommodate deeper draft vessels. These vessels will be capable of carrying larger tonnage amounts, giving rise to the possibility of a reduction in the total number of vessels entering and leaving the ports of Tampa Bay. At the present time, however, there is a lack of docking or berthing facilities available to accommodate the larger vessels. The petitioner TRICO, with only one licensed state pilot, has had to turn down piloting jobs. While there have been three occasions when the intervenors were not able to provide a pilot to a vessel immediately upon its request, it was not established whether the reasons for such occurrences were because the vessel arrived unexpectedly or because there was, at the time, a shortage of available pilots. The intervenor's business records indicate that in 1980, approximately 6,000 vessels were moved by 18 state pilots and 7 deputies providing a total work capacity equivalent to approximately 22 individuals. In 1981, 20 pilots and 4 deputies handled 5,803 vessel movements. The same number of pilots and deputies handled 5,506 vessel movements in 1982 and 5,728 vessel movements in 1983. In 1984, with 19 licensed state pilots and 4 deputy pilots, the intervenor provided piloting services for 5,563 vessel movements. In the same year, the petitioner's one state licensed pilot handled 672 vessel movements. Approximately 35% to 40% of these vessel movements did not require state licensed pilots, but merely federally licensed pilots. These vessel handling statistics for the years between 1980 and 1984 demonstrate that the average number of jobs or vessel movements per pilot were 293 in 1980, 235 in 1981, 230 in 1982, 240 in 1983 and 259 in 1984. Pilot members of the Tampa Bay Pilots Association work a schedule of three weeks on-duty and three weeks off-duty. At any given time, one-half of the licensed pilots are on-duty with the remaining one-half being off-duty, but subject to being recalled for duty should weather conditions or other circumstances dictate the need for additional pilots. As a result of this rotation system, which is similar to that utilized by pilots in other ports, the intervenor has a 100% relief capacity. It is also the policy of the intervenor to guarantee a rest period between vessel movements for all pilots during their three weeks of duty. If a pilot or deputy pilot has less than six hours of rest between piloting assignments, he is guaranteed eight hours of rest after the second assignment. Additional pilots remain on standby to assure that this rest policy is effectuated. The intervenor also maintains individual cottages on Egmont Key which the pilots on duty may use for sleep or rest between jobs. Egmont Key, located at the mouth of Tampa Bay, is ideally located for the quickest transit out to any entrances from the sea.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the petitioner's request that additional pilot and deputy pilot openings for Tampa Bay be declared be DENIED. Respectfully submitted and entered this 6th day of September, 1985, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of September, 1985.
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
The Issue The issue in this case is whether just cause exists for Petitioner, Hernando County School Board (the “School Board” or “Board”), to terminate the employment of Respondent, Renee Koulouris.1/
Findings Of Fact The School Board is responsible for hiring, supervising, and firing all employees within the Hernando County School System. This responsibility includes taking administrative action when an employee violates any rule or policy of the Board. Mrs. Koulouris was hired by the School Board approximately 15 years ago as a fourth grade teacher. At the beginning of the 2016-2017 school year, she was transferred to a fifth grade class in order to provide assistance to a struggling team. Her principal, Mr. Piesik, described Mrs. Koulouris as a very strong teacher with very high standards. Mr. Piesik said Mrs. Koulouris ran her classroom like “a well-oiled machine.” Mrs. Koulouris has had no disciplinary actions prior to the incident at issue in the present proceeding. One of the duties of a fifth grade teacher is to administer the Florida Standards Assessment (“FSA”) tests in four different subject areas: Language Arts; Math; Writing; and Science. The tests are an integral part of a student’s education and are used to determine placement in the next grade level, i.e., which classes the student will be eligible for upon advancement to middle school. It is imperative that FSA tests are administered correctly and securely. Extra measures are taken to ensure that all students take the tests independently, without assistance from anyone. Protocols are put in place to monitor students who are taking the tests. Mrs. Koulouris attended all of the required training prior to administering the tests. She also signed the Test Administration and Security Agreement, and the Test Administrator Prohibited Activities Agreement, acknowledging her understanding of the test protocols. Some of the FSA tests are administered in the classroom; some are done in the computer lab. In either case, the teacher administering the tests must diligently follow all rules and procedures. Fairness and honesty is paramount. The Board recommends the presence of a proctor in addition to the teacher when tests are given to certain sized classes. No proctor was present when the tests at issue herein were administered. Mrs. Koulouris is accused of inappropriately assisting students during the FSA tests she administered in the 2016-2017 school year. Those tests were taken over a period of three months: The writing test was administered on February 20, 2017; the English test was given on April 19 and 22, 2017; the Science tests were given on May 1 and 2, 2017; and the Math test was done on May 5 and 9, 2017. During this same time frame, Mrs. Koulouris’ classes took a number of practice FSA tests (as well as regular tests in various subjects). Mrs. Koulouris is alleged to have assisted students by signaling them during the FSA tests to indicate that their answer to a particular question might be wrong. This was allegedly done by tapping a student or making a particular face at them. Any student so notified would then be expected to change their answer. It is also alleged that Mrs. Koulouris would stand behind students for long periods of time, tapping or nudging them if they wrote or entered an incorrect answer. If the allegations are true, Mrs. Koulouris would be in violation of the test protocols and policies. Mrs. Koulouris adamantly and credibly denied any such behavior. She describes her “assistance” to the students as follows: She explains the test-taking process. She stresses the need to concentrate and stay on track. She tells them that if they do not know an answer, to move on and come back to that question later. She reminds them to be thorough and to take their time, thinking about each question carefully. She instructs the students to go back over their work when they finish, time allowing. In order not to disturb the students while they are testing, she prefers to remain at her desk rather than walking around the room. However, she does move around the room on rare occasions, or when she sees a student who is off task, e.g., sleeping or gazing out the window. She would sometimes tap a student’s desk to get them back on track or, in some instances, to wake them up. The testimony of the two students who appeared at final hearing in this matter supports Mrs. Koulouris’ description of her normal process for administering an FSA test. In the weeks leading up to the FSA tests, Mrs. Koulouris would give a number of practice exams so that the students would become accustomed to the test format. She does help students during the practice tests, but generally for the purpose of keeping them focused, not to correct their answers. She uses facial expressions and eye contact to provide that assistance. Mrs. Koulouris’ demeanor at final hearing gave credence to her testimony. She seemed very sincere concerning her actions and her entire testimony was credible. The allegations concerning Mrs. Koulouris’ actions during the 2016-2017 FSA testing cycle came about towards the end of that school year. As she described it: Fifth grade “graduation” occurred on May 18, 2017, a Thursday, at which time awards were handed out to students based on their performance. The following day, Friday, Mrs. Koulouris was in a multipurpose room tending children who would be picked up by their parents. Other adults were present in the room. Mr. F., a fellow Suncoast teacher whose son was a student in Mrs. Koulouris’ class, approached Mrs. Koulouris. Mr. F. angrily asked why his son had not received a “gold award” at the graduation ceremony held the day before. Mrs. Koulouris explained that the child had not achieved the necessary grade point average to receive a gold award. Mr. F. told her he was very “pissed off” and that if he found out that Mrs. Koulouris did something “on purpose” to hurt his son, he would be extremely angry at her. Mrs. Koulouris felt very intimidated by Mr. F.’s demeanor and his language. She was also very surprised, as she thought she had a good relationship with the student and had been fair with him. Mrs. Koulouris reported the incident with Mr. F. to her team leader and then to the principal, Mr. Piesik. Mr. Piesik reprimanded Mr. F. for his behavior and told Mr. F. not to have any further contact with Mrs. Koulouris unless an administrator was present. On the following Monday, Mr. F. went to Mr. Piesik and reported that-–according to statements made by Mr. F.’s son over the weekend-–Mrs. Koulouris had improperly assisted her students during the FSA tests. The timing of Mr. F.’s allegation against Mrs. Koulouris is extremely suspect. The principal immediately undertook an investigation to determine whether the allegation had any merit. He prepared a list of questions to be posed to Mrs. Koulouris’ students. Mr. Piesik went to the classroom on May 23, 2017, and talked individually with several randomly selected students, asking them the questions he had prepared in advance. (Mr. F.’s son was intentionally excluded from the group of students to be questioned.) Some of the questions were very innocuous, i.e., Mr. Piesik asked about the school year and about the FSA testing in general. He then pointedly asked, “During the FSA testing, did your teacher do anything to help students get the right answers?” A few of the students apparently indicated that Mrs. Koulouris had said something about making a face or nudging them if they were off task, gave a wrong answer, or were making mistakes. Others said that no such comments were made by Mrs. Koulouris. Mr. Piesik compiled the students’ answers to his queries and contacted two school district administrators: Matthew Goldrick, supervisor for professional standards; and Linda Pierce, supervisor of assessment and accountability. The administrators suggested Mr. Piesik continue his investigation of the matter. Next, Mr. Piesik drafted a form containing three statements and one question. The singular question on the form was, “Did Mrs. Koulouris instruct you before FSA test [sic] that if she tapped you or gave you a strange look it meant your answer was incorrect and you needed to change it?” He placed “Yes” and “No” lines beneath the question to record the students’ responses. The three statements drafted for inclusion on the form were: (1) “Yes I knew Mrs. Koulouris was helping students on the test.” (2) “Mrs. Koulouris did NOT help me on the test.” (3) “Mrs. Koulouris helped me on the test by giving a tap or a look so I knew I needed to change my answers.” Beneath the question and statements were these words: “Please indicate which test she helped you on. Math – Reading - Science.” On the following day, May 24, 2017, Mr. Piesik interviewed all 22 of the students who had undergone FSA testing with Mrs. Koulouris, including Mr. F.’s son. This time, the principal used his newly created form containing the one question and three statements. If the student agreed with a statement when it was read to him or her, Mr. Piesik would place a check next to the statement. He would circle either yes or no after asking the question, depending on the student’s answer. The principal testified that “all 22 students” answered “Yes” to the question of whether Mrs. Koulouris said she would tap them if their answer was wrong. Of those students, 12 said Mrs. Koulouris was “helping students” during the test, seven indicated they had been helped, and 13 said Mrs. Koulouris did not help them. However, some of the same students who said their teacher was helping students when asked on May 24, 2017, had said just the opposite on May 23, 2017. The discrepancy in their answers leads to the conclusion that the questions, as posed, were either unclear to the students or were unintentionally leading in nature. By way of example, student C.M.F., who had presumably answered “Yes” to the question posed on May 24, 2014, as to whether Mrs. Koulouris had helped students during the FSA testing (since all students had responded that way), said in her deposition that she misunderstood the question Mr. Piesik had asked her, that it was “all a misunderstanding.” She maturely opined that, “So, it is very commonly known that people cannot understand something because it was worded a way that they thought it would mean something else. And I thought what the principal, Mr. Piesik, said, he had asked me if she had helped with the – if Mrs. Koulouris had helped with the test, but he didn’t say the specific FSA so I thought he was talking about tests in general. And sometimes she would explain, like rephrase stuff and explain it to us for the normal tests, but never for the FSA.” This sort of equivocation renders the students’ statements virtually uncredible. Two of the students testified at final hearing. Their testimony was insufficient to adequately corroborate the hearsay evidence found in the written forms. Student A.S. said at final hearing that “before tests” Mrs. Koulouris would tell us she would tap students on the shoulder if they were “way off track” and you “needed to get back in the game.” However, she did not remember any student being touched during the FSA tests. A.S.’s testimony was too equivocal to establish whether or not Mrs. Koulouris had assisted any students during the FSA tests. It is notable that the School Board did not cite to any of A.S.’s testimony from final hearing, but instead relied upon the less certain and unclear statements made by students in their depositions, which are both hearsay in nature and less credible than live testimony. Student A.W.’s memory of the events was even more clouded. She believes she remembers one student messing up the order of his responses (i.e., answering up and down rather than side to side on the answer sheet) and Mrs. Koulouris helped him get realigned, but does not believe Mrs. Koulouris otherwise assisted anyone during the tests. When confronted with her response to the principal’s form questions, A.W. simply could not remember being asked the questions or how she responded. On May 23, 2017, Mr. Piesik had asked her the question from his form, “During the FSA testing, did your teacher do anything to help students get the right answers?” She responded, “No.” On May 24, 2017, she answered “Yes” to the question, “Did Mrs. Koulouris instruct you before FSA test [sic] that if she tapped you or gave you a strange look it meant your answer was incorrect and you needed to change it?” At final hearing, A.W. answered “No” to the question, “Did you see or hear Mrs. Koulouris make the statement, ‘If I look at you funny or strange or if I give you a tap on the shoulder, that means you need to change your answers’?” Again, the testimony was inconsistent and was not sufficient support to corroborate or affirm the information found in the forms.2/ The truth of whether Mrs. Koulouris helped students on the FSA tests cannot be established by Petitioner’s evidence, the supposed student responses as tallied by Mr. Piesik, due to their hearsay nature and various discrepancies. When considering how the allegation against Mrs. Koulouris first arose, i.e., after her confrontation with her fellow teacher, Mr. F., and the equivocal testimony of the students, there is insufficient basis to support the allegations against her. Findings of Ultimate Fact Under Florida law, whether charged conduct constitutes a deviation from a standard of conduct established by rule or statute is a question of fact to be decided by the trier of fact, considering the testimony and evidence in the context of the alleged violation. Langston v. Jamerson, 653 So. 2d 489 (Fla. 1st DCA 1995); Holmes v. Turlington, 480 So. 2d 150, 153 (Fla. 1st DCA 1985). Accordingly, whether conduct alleged in an administrative complaint violates the laws, rules and policies set forth in the charging document is a factual, not legal, determination. The Board has not met its burden in this case of proving that Mrs. Koulouris engaged in the conduct for which she was charged. Although Mr. Piesik testified as to his conclusion based on interviews with students, that conclusion was not corroborated by the students’ testimony. The double hearsay nature of the students’ responses to Mr. Piesik’s questions, coupled with the vague recollections of students actually testifying, is wholly insufficient to satisfy the Board’s burden of proof. It is clear Mrs. Koulouris gave her students instructions about how to take the FSA tests, administered practice test at which the strict FSA rules were not applicable, monitored the tests and redirected students who were sleeping or otherwise distracted, and sometimes walked around the classroom. But the evidence is woefully short of proving wrongdoing or improper assistance to students. Notably, the deposition transcripts offered into evidence jointly by the parties were not helpful to the finder of fact. The students’ responses to questions were vague and disjointed. Each of the parties interpreted the students’ statements differently, each seeming to think the statements supported their position in this matter. Besides the obvious hearsay nature of the evidence, the statements were nebulous, and lacking clarity or persuasiveness. The students contradicted each other, some could not even remember where they were sitting during testing, and their memories seemed, at best, confused.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Petitioner, Hernando County School Board, finding no cause to terminate the employment of Respondent, Renee Koulouris, as there is insufficient evidence that she violated statutes, rules or policies regarding the administration of FSA tests. DONE AND ENTERED this 3rd day of April, 2018, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN 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 3rd day of April, 2018.
The Issue Whether the subject assessment of taxes, interest and penalties should be upheld.
Findings Of Fact By "Notice of Assessment and Jeopardy Findings" dated July 31, 1989, Respondent assessed Petitioner with taxes, interest, and penalties in the total amount, as of the date of the notice, of $161,724.75. This assessment was made pursuant to Section 212.0505, Florida Statutes, following an incident on February 4, 1988. The parties stipulated that this assessment was properly issued, that notice thereof was properly given to Gary Wayne Chitty, and that the mathematical calculations contained therein are accurate and correct. The following findings are made as to Petitioner, Gary Wayne Chitty, pursuant to the stipulation of the parties. His full name is Gary Wayne Chitty. His social security number is 261-17-0682. His date of birth is April 27, 1953. His present residence is 6840 S.W. 12th Street, Miami, Florida. He has never declared himself a citizen of any country other than the United States. On, or before, February 1988, he knew Rafael Silvio Pena. On February 4, 1988, he held a valid multi-engine pilot's license which was issued to him by the Federal Aviation Authority. On, or about February 4, 1988, he and Rafael Silvio Pena boarded and flew an aircraft designated N6726L. He and Mr. Pena planned to fly a multi-engine aircraft (N6726L) from a point outside of the United States and to enter the airspace of the United States near Cedar Key, Florida and travel within the airspace of Florida to Marathon, Florida. He filed, or caused to be filed, a flight plan for said trip with Mr. Pena in advance of the trip. He loaded or caused to be loaded marijuana on the aircraft (N6726L) prior to its departure. On, or about, February 4, 1988, he and Mr. Pena flew said airplane (N6726L) from a point in the vicinity of Cedar Key, Florida, to Marathon, Florida. During said flight, the aircraft made no other landings. During the entire flight on February 4, 1988, he and Mr. Pena were the sole occupants of said aircraft. During said flight he was the pilot of N6726L. He flew this aircraft on February 4, 1988 with the full knowledge and/or consent of the airplane's owners and/or official lessees. When he took off from the aircraft's departure point on February 4, 1988, it was loaded with a large quantity of marijuana. When he took control of said aircraft and took off, he knew it was loaded with said marijuana. He discussed his plans to transport the marijuana with Mr. Pena. When he took control of the aircraft, the aircraft (N6726L) contained nineteen (19) bales of marijuana which weighted six hundred ninety-nine (699) pounds. He and Mr. Pena flew this airplane along a course towards Marathon, Florida in a manner which took it over or near Lake Okeechobee, Florida. At a point along his route, he and/or Mr. Pena caused the bales of marijuana to be jettisoned from the aircraft. The marijuana was jettisoned as part of a conscious plan or design. The marijuana that was jettisoned from N6726L during its flight on February 4, 1988, weighed a total of 699 pounds. He did not know that during this flight of February 4, 1988, his aircraft was being observed by law enforcement officers. As part of his original plan, he piloted this aircraft to Marathon, Florida, where he landed. AA. During this entire flight the aircraft performed adequately and experienced no mech- anical difficulties. BB. Upon his landing at Marathon, he and Mr. Pena were arrested. CC. He knew the estimated retail value of the marijuana on board his aircraft (N6726L) was $600 per pound.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered which upholds the subject Jeopardy Findings and Assessment. RECOMMENDED in Tallahassee, Leon County, Florida, this 28th day of January, 1991. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of January, 1991. COPIES FURNISHED: James McAuley, Esquire Mark Aliff, Esquire Assistant Attorneys General Department of Revenue Tax Section, Capitol Building Tallahassee, Florida 32399-1050 Mel Black, Esquire 2937 S.W. 27th Avenue Miami, Florida 33133 J. Thomas Herndon Executive Director Department of Revenue 104 Carlton Building Tallahasseee, Florida 32399-0100 William D. Moore General Counsel 203 Carlton Building Tallahassee, Florida 32399-0100
Findings Of Fact The applicant for site approval is Downtown Heliport Corporation, Inc., a corporation with headquarters in Orlando, Florida, engaged in operating heliport facilities throughout Florida and other states. Its related company is Bulldog Airlines, which owns and operates helicopters for hire. Robert Uttal is President of both companies. On January 4, 1990, Downtown Heliport Corporation filed its application for site approval by the Department of Transportation (DOT), proposing to establish a .23 acre (10,000 square feet) helicopter pad within the jurisdictional territory of the Canaveral Port Authority. The Port Authority had already approved a land use permit and lease for the applicant on July 19, 1989 and November 14, 1989. The Federal Aviation Authority (FAA) also gave its approval. In a letter dated January 10, 1991, addressed to McDonald Smith, Director of Operations, Downtown Heliport Corporation, the FAA granted approval of the subject heliport under the following conditions: All operations are conducted in VFR weather conditions. The landing area is limited to private use. All approach/departure route helicopter operations are conducted in an area from 090 degrees clockwise to 160 degrees and from 250 degrees clockwise to 330 degrees using the touchdown pad as the center of a compass rose. The takeoff/landing area is appropriately marked. A nonobstructing wind indicator is maintained adjacent to the takeoff/landing area. The approval letter provides, in pertinent part: This determination does not mean FAA approval or disapproval of the physical development involved in the proposal nor is it based on any environmental or land-use compatibility issue. It is a determination with respect to the safe and efficient use of airspace by aircraft and with respect to the safety of persons and property on the ground. In making this determination, the FAA has considered matters such as the effect the proposal would have on existing or planned traffic patterns of neighboring airports or heliports, the effects it would have on the existing airspace structure and projects or programs of the FAA, the effects it would have on the safety of persons and property on the ground, and the effects that existing or proposed man-made objects (on file with the FAA) and known natural objects within the affected area would have on the heliport proposal. The FAA cannot prevent the construction of structures near a heliport. The heliport environs can only be protected through such means as local zoning ordinances or acquisitions of property rights. (DOT Exhibit #4) On January 30, 1990, Bronson Monteith, DOT District Aviation Specialist, inspected the proposed site and found it feasible for the proposed use and consistent with the requirements of DOT Rule Chapter 14-60, F.A.C. More specifically, he reviewed the facility diagram provided by the applicant and determined that the size of the pad, the location of the pad and the air corridor were appropriate. He considered that the Port Canaveral and FAA approval established compliance with ground and air safety standards. He determined from his inspection that existing structures would not interfere with an 8:1 glide slope to and from the pad. Once cleared from the pad the helicopters will use an existing ships' channel as the flight path. Mr. Monteith considered the distance of the streets from the heliport and the objects around it, including trees, the parking area and any major buildings that would be occupied. There are no schools close to the site. A Notice of Intent to issue a site approval for the proposed heliport was issued by the Department and advertised in an area newspaper; notices were sent, as provided in Rule 14-60, F.A.C. John Monteith conducted a public meeting, received comments and submitted a report to the DOT Aviation Bureau in Tallahassee recommending site approval. The heliport application, documentation and comments from the public meeting were reviewed by the Department's Licensing Coordinator and the Aviation Office Manager, and they determined that the application met all requirements under Chapter 330, Florida Statutes, and Chapter 14-60, F.A.C. for site approval. Site approval order no. 91-17 imposes the following conditions: All operations are to be conducted in VFR weather conditions. Operations are limited to private use. There are to be no flights over the City of Cape Canaveral. That the provisions in FAA Airspace Approval letter dated January 10, 1991, be complied with. Traffic patterns and operational procedures are subject to review by this Department prior to licensing or relicensing. (DOT Exhibit #9) Bulldog Airlines and Downtown Heliport Corporation intend to comply with, and enforce the conditions imposed by DOT. The flight path will be at 800 feet elevation along the corridor until the final approach for landing or takeoff, and that final approach will only be over the port itself. It will not include any flights over the Trident nuclear submarine or over storage tanks. The heliport will be private, primarily for the use of Bulldog Airlines, who flies for NASA, for the Port Authority, for various governmental agencies, including environmental monitoring agencies, and for other private hire. The heliport is open only to commercial pilots, will be used during daylight hours and only under conditions which allow for visual, noninstrument flying. Bulldog Airlines commenced operation in 1985 and has never experienced an incident, accident, or any notice of violation from the FAA, DOT or local law enforcement agencies. Because of its safety record it is able to maintain $100 million liability insurance. McDonald Smith, Director of Operations for Bulldog Airlines, is a pilot with approximately 10,000 hours of flight time. He also inspected the site and is aware of existing structures. In his opinion the flight corridor is wide enough to fly a helicopter, even if it is necessary to avoid unforeseen obstacles. Norma Townsend is a resident of the City of Cape Canaveral, approximately one-half mile south of the proposed site. She has attended the series of public meetings which preceded the DOT's proposed decision. She has amassed an impressive array of letters, maps, tapes and other documents related to the proposed site. She describes herself as a citizen and is neither a pilot nor trained in safety. Ms. Townsend is concerned about the existence of the nuclear submarine base, fuel storage tanks and other hazardous materials in the proximity of the proposed site. She feels that no amount of care by the pilots will insure that a helicopter in an emergency might not collide with an existing structure, with disastrous results. She has heard that used parts are sold for new, causing a helicopter to drop from the sky. She believes that ultra-light airplanes, low flying airplanes and weather balloons will provide extraordinary flying hazards in the Port Canaveral area. She suspects that no meaningful study was done by any agency prior to approving the site. Ms. Townsend presented no witnesses to substantiate these concerns and relies on her own common sense. In many instances this would be sufficient, but here the agency and applicant presented knowledgeable, competent expertise in support of a finding that the site is appropriate. Anything is possible, but instances of helicopters dropping out of the sky are virtually unheard of. Pilots are conscious of ultra-light planes and other possible obstacles to flying. Even large birds are a hazard. Heliports are routinely sited near or on top of buildings, in downtown areas or other places where traffic and population are congested. Helicopters are highly maneuverable, and for that reason are relied on in providing transportation and observation in circumstances where planes or ground vehicles are prohibited, for example after a hurricane or after a fire or other calamity. The substantial weight of evidence establishes that the proposed heliport at Port Canaveral can and will be safely operated.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED: That the agency enter its final order finding that site approval order no. 91-17 is valid and appropriate. DONE AND RECOMMENDED this 18th day of December, 1991, in Tallahassee, Leon County, Florida. MARY CLARK 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 December, 1991. Copies furnished: Robert R. Uttal Downtown Heliport Corporation, Inc. P.O. Box 621148 Orlando, FL 32862-1148 Joy C. Salamone, Mayor City of Cape Canaveral P.O. Box 326 Cape Canaveral, FL 32920 Karen S. Andreas, Commissioner Brevard County Board of County Commissioners 900 E. Merritt Island Cswy. Merritt Island, FL 32952 Vernon L. Whittier, Jr., Esquire Dept. of Transportation 605 Suwannee Street Tallahassee, FL 32399-0450 Norma E. Townsend P.O. Box 883 Cape Canaveral, FL 32920-0883 Ben G. Watts, Secretary Attn: Eleanor F. Turner, M.S. 58 Dept. of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, FL 32399-0458 Thornton J. Williams General Counsel Dept. of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, FL 32399-0458
Findings Of Fact The tug TUSKER is a 120-foot LOA, 396 DWT riveted and steel hull motor vessel, single screw, single deck design with two Polar Atlas diesel engines each rated at 800 BP at 375 RPM. The TUSKER was built in Scotland in 1956, is registered in Canada and was designed and equipped for ocean towing. On February 6, 1981, her draft was 14'6". The propeller is 11'4" in diameter with an 11'3" pitch righthand and turns in a fixed Kort nozzle. The Kort nozzle can be described as an open-end cylinder or ring around the propeller one of whose functions is to keep towlines from becoming fouled in the propeller. The nozzle increases the propeller's thrust but reduces somewhat the effectiveness of the rudder. The TUSKER is equipped with a single rudder, conventional type, mounted on centerline, aft of propeller and Kort nozzle. She is also equipped with a Donkin steering engine on which is superimposed a Sperry automatic pilot and remote controlled steering mechanism. The steering system is hydraulic and can be actuated electrically or mechanically. Normal mechanical operation is effected using the steering wheel on the bridge. Electric power is used to actuate the hydraulic system (which moves the rams which in turn move the rudder right or left) in the three other systems by which the vessel may be steered. One is automatic pilot. Another works off the automatic pilot system with the automatic pilot disengaged and the hydraulic system actuated by a remote control dial attached to a flexible cable. With this system the helmsman can move around the bridge carrying his steering mechanism in one hand. This mode operates on a self-synchronous follow-up system where the operator moves the dial on the remote control and a self-synchronous motor causes the hydraulic system to actuate the rudder to follow the dial. This is the system that was in operation at all times here relevant. The third system of steering, which is also electrically actuated, is a toggle switch, or joy stick, near the wheel which the helmsman moves left or right as he wants the rudder to go. When the lever is held to the right, that hydraulic system is actuated to move the rudder to the right until the lever is returned to neutral or a stop is reached. To move the rudder back to midships the lever is held left (if the rudder is right) until the rudder angle indicator shows the rudder to be back where desired. The barge LIQUILASSIE is a converted tanker 307 feet long with a 60- foot beam and a cargo capacity of 5000 tons. This tank barge can be towed or pushed and is equipped with a notch in her stern to facilitate pushing. Upon entering Tampa Bay on the evening of 5 February 1981 the LIQUILASSIE was in ballast and was drawing six feet forward and nine feet aft. Saltwater was used for ballast. The tug TUSKER and the tank barge LIQUILASSIE had departed Halifax, Nova Scotia, for Tampa and the trip was uneventful until arrival off Tampa on the evening of 5 February 1981. Shortly before reaching the sea buoy the tug changed position from towing the LIQUILASSIE on a 1200-foot line to the pushing mode with the tug's bow secured in the notch in the stern of the LIQUILASSIE. Warwick G. Cahill, Respondent, a licensed Tampa Bay deputy pilot, boarded the TUSKER in Egmont Channel around 10:00 p.m. the evening of 5 February 1981 to pilot the tug and barge to Misener's Marine, a shipyard immediately south of Gandy Bridge on the east side of Tampa Bay. At this time the weather was clear, the tide was rising, winds were southerly at ten knots or less and the seas were light. No significant change occurred in the weather from the time the pilot boarded the TUSKER until the LIQUILASSIE made contact with Gandy Bridge. Pilot Cahill assumed the conn of the TUSKER with Captain Sanderson, the master of the tug, steering using the remote control hand-held dial. The engines were controlled directly from the bridge telegraphs. General discussion with Captain Sanderson revealed that the tug was single screw and that the flotilla combination TUSKER-LIQUILASSIE was slow to turn. At this time the rudder angle indicator was inoperative due to a burned out coil and no spare coil was on board. As a result the pilot could not look at the rudder angle indicator to ascertain the position of the rudder at any given moment. The pilot requested a steering light be installed on the bow of the barge so its rate of movement in a turn could be seen against the background lighting ashore. This was done. Respondent was born in Australia and sailed on foreign flag ships from 1966 until 1970 when he came ashore in the United States and subsequently acquired American citizenship. He resumed maritime employment in 1976 sailing as an ordinary seaman on tugs operated by Gulf Coast Transit Company. He worked his way up from ordinary seaman to master, acquiring his master's license 25 June 1979. From this time until he was appointed a deputy pilot in Tampa Bay in November 1980, he served as master on five tugs operated by Gulf Coast Transit Company. All of these tugs are twin screw vessels varying from 175 gross tons to 435 gross tons. Respondent's master's license authorizes him to sail as master on U.S. vessels up to 1000 gross tons. When he was appointed deputy pilot Respondent was required, as were all other such appointees, to sail as an apprentice with a certified pilot for at least thirty days and thereafter be approved by the Tampa Bay Pilots Association to pilot vessels of not more than 23 feet draft and 500 feet length. After sixty days of piloting this class vessel, a deputy pilot, after approval by the Tampa Bay Pilots Association, is authorized to pilot vessels of not more than 23 feet draft and of unlimited length. Respondent was at this stage as a deputy pilot on 6 February 1981. During the transit of the lower half of Tampa Bay the tug with 14 feet 6 inch draft and barge with the maximum draft of nine feet were navigated outside the channel and did not enter a cut channel until they reached Cut E channel. From the time the pilot came aboard, the tug was running at full speed with shaft RPM at about 110. At this propeller speed and draft of LIQUILASSIE, Captain Sanderson estimated the speed through the water at eight knots. Because of the stiff and slow handling of the tug and barge combination Captain Sanderson suggested to Pilot Cahill before reaching Cut F that at the sharp turns in the channels ahead it might be necessary to slow the tug in order to negotiate these turns. Respondent replied that there was plenty of water outside the channel going into Cut G from Cut F and that they would try that turn without slowing. The turn from Cut F to Cut G is a left turn slightly less than 90 degrees. As he passed between buoys 5F and 6F the pilot directed the helmsman into a left turn which was negotiated without difficulty. The tug and barge settled on Cut G range. The turn into Cut J from Cut G is a turn to the right of about 90 degrees. Here, the depth of the water outside the channel is sufficiently shallow that the TUSKER could ground if she got too far out of the channel. Upon approaching this turn Respondent had someone proceed to the bow of the LIQUILASSIE to stand by the anchors. He reduced speed to slow ahead approximately 1400 yards before reaching turn buoys 5G and 6G (Tr. p. 449) and ordered the helmsman to bring the flotilla to the right. The turn started a little too soon or the flotilla turned too fast, and the helmsman was ordered to slow the rate of turn. As the flotilla straightened the pilot directed more right rudder as the barge and tug were moving into buoy 9J. The flotilla did not respond to the right rudder and the engines were kicked ahead to increase the turning moment. Buoy 9J passed down the side of the flotilla (or was run over by the tug) before the flotilla finally was straightened out in Cut J channel (Tr. p. 451). While proceeding up Cut J channel at slow speed immediately following this incident, the captain directed the steering gear be checked to see if the rudder was answering the commands given through the remote control steering dial. This was the second time since the tug had assumed the pushing position off Tampa Bay that the steering was checked. The first time was shortly after the tug entered the notch when the captain directed the chief engineer to observe the rams on the rudder stock to see if the rudder was moving right and left as directed. On both occasions the rudder was observed by the chief engineer to move from full left to full right to amidships without apparent difficulty. On both occasions the chief engineer so reported to the captain. After straightening out in Cut J the flotilla resumed full speed. At this time, and during most of the transit of Tampa Bay, the current was flooding, i.e., was pushing the vessel northward in the general direction of travel. Misener's Marine is located north of Port Tampa on the east side of Tampa Bay and immediately south of the Causeway approach to Gandy Bridge. To enter Misener's Marine from the south, the preferred course, according to the unrebutted testimony of Respondent, is to continue past Cut K on the same course until the vessel is aligned with the draw span of Gandy Bridge, at which point course is changed to head for the draw span. Before reaching the draw span, course is changed to the right approximately 70 degrees to parallel the bridge as the channel into Misener's Marine is entered. The intended course, after making this turn, as indicated by Respondent on Exhibit 7, is parallel to and 200 yards south of Gandy Bridge. As the flotilla passed Port Tampa the captain remarked that they were moving at a lively clip. Respondent responded that he would slow down before starting the turn. No effort was made to ensure a crew member was standing by to let go the anchors as had been done when approaching Cut J. When one-half mile from the bridge, as observed on the radar screen, the pilot ordered speed reduced to slow and the captain moved the telegraphs to dead slow. At this time the flotilla was moving through the water at eight knots and over the ground at approximately 8.5 knots. The current in this part of the bay was setting northerly towards the bridge about 0.5 knots and it was approximately 40 minutes before high tide and slack water. High tide at Gandy Bridge on 6 February 1981 occurred at 3:07 a.m. (Exhibit 13). When the radar range to the bridge was just over one-quarter mile Respondent directed the helmsman to bring the flotilla to the right. When the response to this command appeared slow and the flotilla was one-quarter mile from the bridge Respondent ordered hard right rudder. Although Respondent testified that at one-quarter mile distance from the' bridge he didn't believe the flotilla would make the turn without hitting the bridge, he ordered the engines ahead full to increase the turning force (Tr. p. 459). When the captain exclaimed they were going to hit the bridge the pilot ordered engines stopped, then full astern. The captain moved the engine controls as directed. As the engines were ordered reversed the pilot left the rudder right full until most of the way had been taken off the flotilla. During this time the bow of the barge continued to move right slowly. As the barge closed on the bridge the pilot shifted the rudder to left full shortly before the bow of the LIQUILASSIE made contact with the third and fourth bridge supports to the east of the center span. At the time of contact at approximately 2:25 a.m., February 6, 1981, the flotilla was making an estimated speed over the ground of approximately one knot. The bow of the barge went under the road span and fetched up on the third and fourth bridge supports to the east of the center span. Continued backing for a few minutes failed to free the barge from the bridge supports. Respondent's witness, Captain John Graham, predicated his opinion that Respondent committed no error on the assumption that he commenced the turn into Misener's Marine at a distance of one-half mile from Gandy Bridge. His testimony (Tr. p. 337) was that "He [Respondent] ran out of options at a quarter-mile except for what he did: full astern. He was already hard starboard. There was no time--his other option was drop the anchor. That's too late." This assumption of distances from the bridge at which certain events occurred is not supported by the evidence and is in conflict with the findings made above, that the tug reduced speed when one-half mile from Gandy Bridge and the command to change course to the right was given to him just over one-quarter mile from the bridge. This finding is consistent with Respondent's testimony that he started the commencement of the turn approaching Gandy Bridge just before he reached the one-quarter mile point and increased to right full rudder at one-quarter mile. In his report of the accident, CG-2692 (Exhibit 15), Respondent also says that rudder was ordered hard right at a distance of one- quarter mile from the bridge. Had Respondent ordered the engine full astern one-quarter mile from the bridge when he realized collision with the bridge was likely, the flotilla would have been stopped before hitting the bridge. Instead of ordering the engines full astern Respondent first ordered full ahead to increase the turning force. Only after he realized this added force would not turn the barge fast enough did he order the engines stopped, then full astern. Local authorities were notified of the collision and ultimately the Highway Patrol regulated vehicular traffic over the damaged bridge. The damage to the bridge supports and barge was stipulated to be approximately $250,000. Shortly after the collision, high tide at Gandy Bridge occurred and thereafter the tide began falling. The bow of the LIQUILASSIE was caught on the piling and it was feared that additional damage to the piling would result as the tide receded and more of the weight of the barge was placed on the piling. The LIQUILASSIE collided with the bridge on a course approximately 30 degrees to the right of normal to the bridge and remained in that position until freed with the assistance of a passing tug at 5:15 a.m. After being freed from the bridge the tug was put on the port bow of the barge to help turn the LIQUILASSIE to the right some 90 degrees to enter Misener's Marine where the flotilla was moored. Immediately after mooring, Coast Guard investigators, in company with the chief engineer and Respondent, checked the steering gear and found the rudder responded fully to the right and left in response to electrically generated commands from the bridge. The time to go from full left to full right was measured and found to be 25 seconds (Exhibit l) On February 12, 1981, while moored at Misener's Marine, the steering gear was again checked for operation from full right to full left and vise versa (approximately 35 degrees rudder angle) for four cycles and the average time from full right to full left was 24.25 seconds (Exhibit 3). The radar on the TUSKER is mounted directly over the wheelhouse. While in the notch of the LIQUILASSIE the distance from the radar to the bow of the LIQUILASSIE would be approximately 110 yards. (307 feet, length of the LIQUILASSIE, plus the distance from the bow of the TUSKER to the radar. No evidence of this latter distance was presented.) Accordingly, when hard right rudder was ordered at a radar range from the bridge of one-quarter mile (500 yards) the bow of the LIQUILASSIE was less than 400 yards from the bridge. If the speed of the flotilla was six knots over the ground and the flotilla remained on course towards the bridge at this speed, 400 yards would be traversed in two minutes. For the bow of the flotilla to reach the intended tract 200 yards south of Gandy Bridge at this same speed over the ground would take just under one minute. Respondent presented an expert witness who testified generally regarding hydraulic steering systems. He had never been aboard the TUSKER to observe the steering mechanism but opined that a leak between the high pressure and low pressure lines could cause what he termed hydraulic stall. This could occur if debris under the valve seat prevented a valve from seating properly and allowed some of the pressure to bleed off from high pressure to low pressure lines. This could reduce the pressure in the high pressure lines, reducing the pressure being applied to the ram to turn the rudder and thereby decrease the force available to turn the rudder. This could result in a rudder not reaching the full right position while the tug was underway when maximum force opposing a rudder turn exists, but allow the rudder to turn to full right or left when dockside in still water. Other witnesses had testified to movement of the large wheel in the wheelhouse while the ship was being steered with the portable steering dial. The expert opined that this movement of the wheel was indicative that oil was leaking from the high pressure lines through the wheel and could cause hydraulic stall. The chief engineer by deposition (Exhibit 16a) testified that in his experience a hydraulic steering system either worked or it didn't and he was unaware of any such system that would one time allow the rudder to go full right or left position and the next time, under the same command, the rudder would go only part way. In the instructions for the Donkin steering mechanism attached to Chief Engineer Michael Ingham's deposition, which was admitted into evidence as Exhibit 16a-e, the Donkin manual, listed as Exhibit 13 to Ingham's deposition, states in part as follows: Under the heading STARTING: 2. Put the change-over cock "B" on the bridge in power position. (When moving gear by local power control the change-over cock should always be in power otherwise the bridge hand wheel will be driven round by the power pump as soon as the control valve is moved.) Under the list of possible faults which may develop in the steering gear and How to locate them and their remedy, the same Exhibit 13 states: Steering gear will not work in either Power, Hand or Local Control. Shortage of oil causing air locks. (See Charging Instructions) Non-return valves (shuttle valves) on the telemotor side of the bridge unit not operating through being fouled with foreign matter or faulty. Drain oil out of bridge unit and examine valve. Steering Gear works in power but not in hand. Non return valves on hand pump side of bridge not seating through foreign matter or otherwise faulty. Remove oil from bridge unit, dismantle and clean thoroughly. Steering gear working erratically. Some- times going hardover, sometimes stopping short and sometimes moving on its own without the hand wheel being moved. 1. Buffer spring connecting the tiller to the hunting gear levers seized or wrongly adjusted. Dismantle spring, clean the stays and make sure they are free to work in the guide plates, assemble and adjust so that all the nuts just come up to the plates as the shoulders on the stays touch the plates. These instructions for the Donkin steering mechanism tend to support the testimony of the chief engineer that the steering mechanism doesn't work fully on one rudder change and only partly on another. No evidence was presented that the change-over cock on the bridge was in power position. On the other hand, no evidence was presented that someone had moved this lever from the position in which it was supposed to be set when the steering was placed in the power mode. Prior to departure from Halifax the Canadian Coast Guard inspected the steering system, particularly the emergency steering, and found it working properly. For the purpose of determining if the Respondent exercised prudence in piloting the TUSKER as the flotilla approached the Gandy Bridge, it is not essential that the steering be found to be operating correctly or erratically. If the latter, the Respondent was, or should have been, made aware of possible difficulties in making a sharp turn to the right as he had recently experienced that very problem while, making the turn from Cut G into Cut J.
The Issue Pursuant to section 760.10(1)(a), Florida Statutes (2015), the issue is whether Respondent has unlawfully discriminated against Petitioner in employment on the basis of her age or national origin.
Findings Of Fact Petitioner was born on March 30, 1962. She is a Puerto Rican native who is fluent in English and Spanish. Respondent first employed Petitioner in April 2009 as a flight attendant. She worked continuously in this job until her termination on April 1, 2014. The primary duty of a flight attendant is to ensure the safety of the passengers. At the time of employment, Respondent provided Petitioner with four weeks' training as a flight attendant and a voluminous manual devoted to the responsibilities of a flight attendant. The training and manual identify as the critical stages of flight the periods of takeoff and landing, during which time the sole focus of the flight attendant is on passenger safety. During these critical stages of flight, the sterile cockpit rule prohibits all communications within the cabin, including any announcements by interphone, because of the potential to distract the pilots during the crucial activities of taking off and landing. On March 9, 2014, Petitioner was one of three flight attendants on a flight from Fort Lauderdale to San Juan, Puerto Rico. Among the passengers on the flight was another employee of Respondent, Tony Dali, who was the supervisor of Petitioner's supervisor. With an administrative assistant, Mr. Dali was traveling to Puerto Rico to recruit flight attendants, especially persons fluent in Spanish, due to Respondent's Language of Destination program. This program provides a small pay incentive to persons who are fluent in the language, other than English, of a JetBlue destination. On the flight on the day in question, Respondent was the flight attendant designated under the Language of Destination program. The flight was uneventful until the critical stage of landing. After she had performed her routine tasks of collecting service items, checking the positions of trays and seats, requiring the passengers to resecure all carry-on baggage that they had removed during flight, and ensuring that all passengers were wearing seat belts, Petitioner took her seat in preparation for landing. Her position was in the rear of the aircraft where she had additional responsibilities in connection with safety equipment stowed in that area of the plane. On final descent with the wheels down, suddenly a strange chirping sound was heard over the speakers in the cabin and in the cockpit. The sound had been produced by a battery- operated toy Coqui frog. Leaving the required brace position for a second or two during the enforced silence of final descent, Petitioner had held the toy to the interphone and activated the toy to make the chirping sound. Petitioner's intent had been to amuse the passengers and expose them to the local color of her--and, for some passengers, their--native country. Respondent conducted an investigation, but the material facts were never in dispute, as Petitioner readily admitted her actions. At the conclusion of the investigation, Respondent terminated Petitioner for her violation of safety rules in playing the sound and leaving the braced position during final descent. There is no direct or statistical evidence of discrimination based on age or national origin. The facts prove only an unsuccessful attempt at humor that probably became less humorous with each level of internal review within Respondent. Although the two safety violations did not compromise the safety of the flight, as opined by the pilot, they may have acquired greater urgency because they occurred in the presence of the boss of the boss of Petitioner. The ensuing termination of Petitioner seems somewhat harsh, but not so harsh as to support an inference of intentional discrimination.
Recommendation It is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief filed on January 12, 2016. DONE AND ENTERED this 20th day of January, 2017, in Tallahassee, Leon County, Florida. S Robert E. Meale 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 20th day of January, 2017. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 (eServed) Abigail Freytes 11043 Northwest 8th Court Plantation, Florida 33324 (eServed) Rebecca Anne Cox, Esquire Akerman, LLP 666 5th Avenue, 20th Floor New York, New York 10103 (eServed) Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 (eServed)
The Issue Whether the Respondent failed to meet acceptable standards of safe pilotage as alleged in the Administrative Complaint and, if so, what penalty is appropriate.
Findings Of Fact Warwick G. Cahill (Respondent) is, and at all times material hereto has been, licensed as a harbor pilot by the State of Florida, license number SP 0000111. The Department of Business and Professional Regulation, Board of Pilot Commissioners, is the state agency responsible for prosecution of alleged violations of disciplinary rules applicable to harbor pilots. On July 28, 1993, the M/V Grecian Star (GS) left the dock at the CF Industries Terminal in the Port of Tampa, Florida. The GS is a Cypress flag vessel approximately 656 feet long, with and 81 foot beam and a draft of 32 feet 11 inches. The equipment and machinery on the GS were in good working condition. The Respondent piloted the outbound GS from the Port of Tampa, under the authority of his Florida State Pilot's license. He had boarded the ship at approximately 1:50 PM. Although the ship's Master is ultimately responsible for the safety of the ship, the Master will defer to the local pilot's knowledge and directional skills in navigating local waters. The ship departed from the dock approximately ten minutes after the Respondent boarded. The weather was good, with visibility of approximately eight miles. The sea was slick calm. Winds were from the northwest at not more than four knots. The port tide was at ebb. The current was variable but less than one-half knot. As the GS transited Tampa Bay, the Respondent made several slight course corrections due in part to drift, but the ship's travel was uneventful as it entered Egmont Channel. In the area of Egmont Channel buoys 11 and 12, the pilot boat arriving to permit the Respondent to disembark from the GS contacted the GS bridge by radio and requested that the placement of the port side pilot ladder be raised. The Respondent directed the third mate of the ship to attend to the placement of the pilot ladder. The third mate left the bridge. On of the responsibilities of the third mate is to monitor orders given by the pilot to the helm and to ascertain whether the orders have been followed. At all times during the transit of the GS, the Respondent gave verbal orders regarding the pilotage of the ship. The Respondent expected that such orders would be repeated to him. Orders which were not repeated would be delivered again. At no time during the GS transit of Tampa Bay into Egmont Channel did the Respondent give orders to the helmsman by hand motion or by any other gesture. All orders were delivered verbally to the helmsman by the Respondent and were repeated by the helmsman. At the time the ship was in the area of Egmont Channel buoys 11 and 12, the Respondent stood in front of the helmsman. At some point while still in the position, the helmsman and the Respondent briefly looked at each other. At or about the same time as the two looked at each other, the Respondent moved his left hand or arm. The evidence is clear that the Respondent gave no verbal order to alter the ships course at that point. The helmsman interpreted the "look" and the movement of the Respondent's left arm to indicate an order to turn the ship ten degrees to port. There is no evidence as to how the helmsman determined from a "look" and a gesture that the ship's course was to be altered by ten degrees. The helmsman testified that he verbally stated "port ten" prior to altering the ship's course. There is no evidence that any person on the bridge heard the helmsman repeat the supposed command. There is no evidence that, at any other time during the Respondent's pilotage of the GS, there was any difficulty in hearing any orders given by the pilot or repeated by the helmsman. The greater weight of the evidence fails to establish that the supposed command was verbalized by the helmsman. After standing in front of the helmsman, the Respondent walked to the chart table on which a chart of lower Tampa Bay was displayed and began to respond to questions of the GS Master. The chart table is located aft and on the starboard bulkhead of the wheelhouse. The conversation between the Respondent and the Master lasted between one and two minutes and consisted of a discussion related to the vessel's position, the disembarkation of the pilot, reported traffic, water obstructions, range markers and the monitoring of radio channels. At the time the Respondent walked to the chart table, the ship was on course in the center of the channel. No command was given to alter the course. No command was repeated by the helmsman. Based on the lack of command or response, and on the fact that the ship was on course and centered in the channel, it was reasonable for the Respondent and the Master to conduct their discussion. Based on the estimated speed of the ship at the time of the grounding, the ship moved no more than 1600 to 2000 feet during the conversation between the Respondent and the Master. Based on the beam of the boat and the width of the channel, the ship could move 300 feet to either side without incident. Upon completion of the discussion, the Respondent and the Master simultaneously noticed that the ship's course was incorrect and that buoys 9 and 10 were positioned off the starboard bow rather than dead ahead. The Respondent immediately stated "hard starboard rudder," directing the helmsman to take corrective action, but the ship ran aground on the south bank of Egmont Channel approximately two ship lengths past buoys 11 and 12. The accident caused no injury to person or cargo. No pollution resulted from the grounding. The next day, the GS was re-floated. Although the ship grounded while the Respondent was responsible for the navigation of the ship, the weight of the evidence fails to establish that the grounding was due to any error or omission in the Respondent's performance of his duties.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Professional Regulation, Board of Pilot Commissioners enter a Final Order dismissing the Administrative Complaint filed against Warwick G. Cahill in this case. DONE and RECOMMENDED this 24th day of May, 1994, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of May, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-6170 The following constitute rulings on proposed findings of facts submitted by the parties. Petitioner The Petitioner's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 16. Rejected, not supported by the greater weight of credible and persuasive evidence. The evidence fails to establish that the Respondent intentionally "made" a gesture with his hand. 18. Rejected, not supported by the greater weight of credible and persuasive evidence. 22. Rejected, not supported by the greater weight of credible and persuasive evidence which establishes that the conversation was initiated by the Master. 28-31. Rejected, subordinate. Rejected, irrelevant. There is no credible evidence that any crew member accept the "unusual movement of the vessel without question, though it is actually a result of pilot error." Rejected, irrelevant. There is no credible evidence that any crew member had only a rudimentary understanding of the English language or that such contributed to this incident. 37-38. Rejected, contrary to the weight of the evidence which fails to establish that the Respondent's "inattention" permitted the ship to ground. Respondent The Respondent's proposed findings of fact are rejected as not timely filed. COPIES FURNISHED: Susan J. Foster, Executive Director Board of Pilot Commissioners Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Jack McRay, Acting General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Charles F. Tunnicliff, Esquire Dept. of Business & Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399 David Pope, Esquire Suite 1700 First Union Center 100 South Ashley Drive Tampa, Florida 33602
Findings Of Fact The Garemore airport is located in Marion County and is known as the Greystone Airport. The Garemores were issued a private airport license for the period September 24, 1980, through September 30, 1981, and have made timely application for annual renewal of this license. Neighboring property owners and residents who objected to grant of the initial license also object to renewal. Generally, their objections concern excessive noise and unsafe aircraft operations. Several Petitioners raise and breed thoroughbred horses on property adjacent to the airport. They fear for their personal safety and the well-being of these horses and other livestock. These Petitioners also contend that aircraft noise and low flying upset their animals and interfere with mating. However, Respondent introduced opposing evidence, and Petitioners' contention was not established as factual. Through unrebutted testimony, Petitioners established that crop dusters routinely originate operations from Greystone Airport, and that crop dusting chemicals are stored on the site. About six months ago, a crop duster taking off from Greystone Airport dumped his chemical load on a Petitioner's property and subsequently crashed on this property. Petitioners also argue that the airport glide slope does not meet accepted criteria and that runway surfacing is inadequate. Respondent DOT has recently inspected the facility and through the testimony of its airport inspector, demonstrated that the glide slope has been measured and meets the 20 to 1 requirement set forth in Section 14-60.07, Florida Administrative Code. The runway is not surfaced and Petitioners contend it is not hard enough for aircraft operations during the rainy season. As evidence of this, they cite an incident where a visiting airplane ground looped on landing and appeared to lose a wheel. This incident did not establish a runway deficiency, however, nor did Petitioners offer evidence that the runway surface fails to meet any statutory or rule standard. Petitioners related numerous examples of low flying, night flying and acrobatic maneuvering at and near the Greystone Airport. They contend that these activities along with the concentration of World War II and antique aircraft, and the crop dusting operations, have made this a commercial facility.
Recommendation From the foregoing, it is RECOMMENDED: That the private airport license issued to James and Geraldine Garemore be renewed subject to a restriction against crop dusting operations. DONE AND ENTERED this 30th day of November, 1981, in Tallahassee, Florida. R. T. CARPENTER, 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 30th day of November, 1981. COPIES FURNISHED: Mrs. Clark Hardwick 900 Northeast 100th Street Ocala, Florida 32677 Charles and Terry Kerr 8149 West Anthony Road, Northeast Ocala, Florida 32670 Mr. John P. Edson 8610 West Anthony Road, Northeast Ocala, Florida 32671 Sherry and Vince Shofner Post Office Box 467 Anthony, Florida 32617 Frank and Carol Constantini 8545 West Anthony Road, Northeast Ocala, Florida 32670 Mr. James B. Banta, Sr. 9349 West Anthony Road, Northeast Ocala, Florida 32670 Ms. Deborah Allen 8263 West Anthony Road, Northeast Ocala, Florida 32671 Mr. Worthy E. Farr, Jr. 8215 West Anthony Road, Northeast Ocala, Florida 32671 Mr. Michael J. Stavola Post Office Box 187 Anthony, Florida 32617 Frances Spain Post Office Box 128 Anthony, Florida 32617 Ms. Beatrice Shepherd Post Office Box 215 Anthony, Florida 32617 J. W. Houston 900 Northeast 100th Street Ocala, Florida 32670 John F. Welch, Esquire Post Office Box 833 Ocala, Florida 32678 Philip S. Bennett, Esquire Department of Transportation Haydon Burns Building, Suite 562 Tallahassee, Florida 32301
