The Issue Whether Respondent, while acting as pilot aboard the M/V Itanage in the St. John's River, Jacksonville, Florida on August 29, 1990, engaged in a practice which did not met acceptable standards of safe piloting. (F.S.A. s. 310.101(1)(k))
Findings Of Fact Respondent is, and has been at all times material hereto, a licensed pilot in the State of Florida. (Petitioner's Request for Admissions paragraph 1) Respondent has been issued license number SP0000032. (Petitioner's Request for Admissions paragraph 2) On or about August 29, 1990, Respondent was piloting the M/V Itanage outbound in Jacksonville, Florida. (Petitioner's Request for Admissions paragraph 4) The Itanage is a 12,000 gross ton, Brazilian registered diesel powered container vessel. (Transcript p. 164) From May 1988 to August 1990 the Itanage entered and exited the port of Jacksonville under pilotage fifteen times without navigational incident. (Transcript pp. 21, 22) The same crew abroad the Itanage at the time of the allision was on the Itanage on its previous voyage of the Itanage. (Transcript p. 22) Respondent has piloted the Itanage or similar vessels many times previously. (Transcript p. 355) The Itanage was equipped with an overhead rudder angle indicator which is visible from the bridge wing. The rudder angle indicator exhibits the degree angle of the rudder and is color coded red for port and green for starboard so the pilot can glance up and see whether port or starboard rudder is applied. 2/ (Transcript pp. 166, 167) Each bridge wing of the Itanage was equipped with an RPM indicator which shows whether the engine was going ahead or astern and the number of revolutions per minute. (Transcript p. 168) The Itanage was equipped with an engine room telegraph which was operated by the second mate to communicate engine commands to the engine room. 3/ On August 29, 1990, the docking master, Captain Meers, undocked the vessel from Jacksonville Port Authority berths 3 and 4, turned, headed down the river on slow ahead, and disembarked around Coastal Petroleum. (Statement of Captain Steele; DPR Report, p. 2) Respondent assumed responsibility for directing the ship at 1454 hours with the vessel parallel to and favoring the west bank of the river. (Statement of Captain Steele; DPR Report, p. 8; engine bell book, Transcript p. 175) It was a clear day, the ride was at or near slack water, the weather was perfect. (Transcript pp. 92. 169, 170, 198) Respondent gave commands to the second mate who remained positioned by the engineroom telegraph on the bridge. The second mate repeated the commands in English then repeated the commands to the helmsman in Portuguese. (Transcript pp. 195, 337); Statement of Second Mate) The second mate spoke very little English and the helmsman did not speak any English. (Transcript p. 331) At 1454 the Respondent ordered course 320 degrees and slow ahead, which was executed. At approximately 1456, Respondent ordered a course of 310 degrees and full speed ahead. (Transcript pp. 82, 83, 191, 192; DPR Report p. 8; engine bell book; Statements of the Second Mate, Helmsman, Master, and Chief Mate; Statement of Captain Steele) Respondent's orders issued at 1456 were executed, and the engine speed was set at full ahead and the Helmsman steered 310 degrees. (Transcript p. 186; DPR Report p. 8; Statements of the Second Mate, Helmsman, Master, and Chief Mater; engine bell book; Statement of Captain Steele; Petitioner's Request for Admissions paragraph 8) Respondent was in the wheelhouse and observed the master-gyro-compass. (Transcript p. 331; Statement of Captain Steele) Because the view forward was blocked by the deck cargo, Respondent went to the starboard wing to observe Buoy 71. (Statement of Captain Steele) At 1455 Respondent ordered "10 degrees port" from the starboard wing. (Transcript pp. 337, 338; Statements of the Second Mate, Helmsman) The helmsman steered 10 degrees to port (left). (Transcript p. 192; Statements of the Second Mate, Helmsman) After the order of "10 degrees port", Respondent remained on the starboard wing and had a radio conversation using a hand held marine radio with the master of the tug "Ann Moran" which took approximately 45 seconds about a ship they had handled the previous day. (Transcript pp. 338, 340, 247) At 1456 as Itanage approached Buoy 71, at point "D" on Hearing Officer Exhibit 1, from the starboard bridge wing, Respondent ordered hard right (starboard) rudder and engine ahead full. (Transcript p. 343) This was to start the turn around Buoy 71. (Transcript p. 384) Captain Steele did not at that time, however, go to the pilot house. Captain Steele remained on the wing to observe the response of the vessel. (Transcript p. 395) After a few seconds, Captain Steele observed the bow of the vessel swinging to port (left) not to starboard (right). (Transcript p. 345) He immediately rushed to the pilot house, repeating his hard starboard (right) rudder order as he did so. (Transcript p. 345) The rudder angle indicator in the pilot house, however, indicated the actual position of the rudder was passing from port (left) 20 degrees to starboard when Captain Steele entered the pilot house. (Transcript p. 345) Captain Steele did not alter the prior order for ahead full. Captain Steele reached the helm console and grabbed the helm. By that time, the helm was already in the hard starboard position. The only explanation as to how the rudder got to 20 degrees port (left) was that when Captain Steele gave the command hard to starboard, the helmsman actually went hard to port (left), then the helmsman realized his error and was correcting it when Captain Steele entered the pilot house. No one suggests that any other command was given which would account for the port swing of the vessel. (Transcript p. 235) Captain Steele again went to the wing to observe the response of the vessel. When it became apparent the vessel would not make the turn, Steele ordered full astern and ordered both anchors dropped. The vessel continued to make way in a sweeping curve alliding with the Shell Oil Terminal on the western edge of the Chaseville turn at approximately 1459 hours. The allision was not caused by a mechanical failure, weather, or tide. (Transcript p. 69). The allision was set up by the helmsman's turning the ship to port (left) instead of starboard (right). However, the Respondent contributed to this error by failing to give the steering command, "Right, full rudder," as required by the Rules of Road. See 33 USC 232. The Coast Guard conducted an investigation and prepared a report (Petitioner's Exhibit 1), the second page of which is a data sheet taken from the ship's bridge. This data sheet contains a diagram of the ship's turning circle to both port (left) and starboard (right) at half and full speeds. An overlay in proper scale was prepared and attached to Hearing Officer Exhibit 1 at the point where the turn was executed, Point D. The scaled extract of the Coast Guard report is attached to the back of Hearing Officer Exhibit 1. The overlay reveals that the vessel could not make the turn at full speed from Point D because the vessel's course takes it almost exactly to the point of allision. If the vessel's course is offset slightly to the left due to the helmsman's mistake and the vessel's turning circle adjusted for less speed, as would have occurred if the vessel went from half speed to full speed when the order for the turn was given, the vessel's projected track would again place the vessel at the point of the allision. The primary cause of the allision was Respondent's use of full speed in the turn. Although there was controversy about whether the vessel proceeded north the entire way at full speed or whether full speed was ordered as the turn was ordered approaching Buoy 71 (Point D on Hearing Officer Exhibit 1), there is no controversy that Captain Steele intended to execute the turn at full speed. The distance from where Captain Steele assumed control of the ship to where it came to rest is approximately 1 and 1/8 nautical miles. According to the logs, the vessel covered this distance in between four and five minutes. In order to cover that distance in that time, the ship was at or close to its full speed, adjusted for a dirty hull, of 15 knots. The advance and transfer of the ship was extended at full speed in such a way that the vessel could not make the turn in the sea room available. Referring again to the overlay, the vessel could have turned within the searoom available from Point D at half speed. The ship might have completed the turn at half speed from a point left of and forward of Point D, its track as the result of the helmsman's error, particularly with the reserve of thrust available to assist in turning after the emergency developed. The Chaseville turn is a tight turn without a great amount of sea room, and requires care to be exercised by pilots. (Transcript pp. 354, 362, 170, 171). The Respondent's failure to maintain proper speed caused the allision with the Shell Oil Terminal.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is, RECOMMENDED: That the Board of Pilot commissioners issue a final order suspending Captain Henry A. Steele for three (3) months and levying a civil penalty of $5,000 against him. DONE and ENTERED this 3rd day of June, 1992, in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of June, 1992.
Findings Of Fact There is created within the Division of Professions of the Department of Professional Regulation a board known as the Board of Pilot Commissioners. See Section 310.011; Florida Statutes. That board, in conformance with Section 310.061, Florida Statutes, has authority to license state pilots for ports in Florida. This includes pilots for the St. Johns River, to include the Port of Jacksonville. In furtherance of this arrangement; the Department of Professional Regulation examines candidates for the positions of pilot and deputy pilot as a prerequisite to appointment and licensure or certification, depending on whether the position sought is that of pilot or deputy pilot. Out of this examination process; the Board; within its discretion, may decide how many pilots or deputy pilots it wishes to appoint and license or certify for a given port within the state. See Section 310.051, Florida Statutes. Petitioners and Intervenor, Captain Shiras M. Walker, and others stood examination for appointment and certification as deputy pilot for the port of Jacksonville in an examination given on August 26 and 27, 1985. All told, eleven candidates stood the examination for the position of deputy pilot in the Port of Jacksonville as held in August 1985. (There was one other candidate who was being examined for an unrelated port pilot position.) It was the intention of the Board to appoint and certify only one deputy pilot from this group of candidates. The candidates who stood the examination in August 1985 were required to be mariners who held a Master's License. This is a requirement of the Port of Jacksonville and is unique to that port. Petitioners and Captain Walker were qualified candidates in that sense. The candidates for examination in the August 1985 sitting, including Petitioners and Captain Walker, had been provided certain test information from the Department of Professional Regulation, Office of Examination Services, prior to being examined. Among those items was a document described as a "NOTICE TO APPEAR." Within those materials was found the admission slip to the examination, a description of the format of the examination and a suggested reading list which the candidates were encouraged to utilize in preparing for the examination session. The facets of the subject examination were as required by Rule 2155- 5.13, Florida Administrative Code which sets forth the seven test areas. They were: International Rules of the Road. Inland Rules of the Road and the Pilot Rules. Seamanship, Shiphandling and other subjects relating to piloting. Aids to Navigation. Local or specific knowledge of the port area for which the candidates are being examined. Chartwork for the port area for which the candidates are being examined. Knowledge of the federal and state pilotage laws. In carrying forward the examination process, the Department of Professional Regulation, in accordance with Section 455.217.(1), Florida Statutes, through the Office of Examination Services, is charged with the responsibility to ensure that the examination for deputy bar pilot in the Port of Jacksonville as given in August 1985, "adequately and reliability measures an applicant's ability to practice the profession" of deputy pilot. Further, this office must insure that the examination questions are a reliable measurement of the general areas of competence specified in the aforementioned rule. Those responsibilities as imposed upon the Department of Professional Regulation were adequately addressed in the examination process pertaining to deputy bar pilot for the Port of Jacksonville, August 1955 examination session. This examination as given in August 1985 was one related to placement of the top candidate in the one available position for a deputy pilot in the Port of Jacksonville. In order to gain that position, the candidates had to be successful in passing the various sections within the examination instrument. However, only the candidate who had passed the various sections within the examination process and attained the highest score would be selected. Rule 2155-5.13(3), Florida Administrative Code, mandates that a candidate correctly answer 90 percent of the subject matter set forth in the first two sections to the examination, described previously as (a) and (b) and 75 percent of the material in the five remaining subject areas. Failure in any one of these seven sections means that the candidate was unsuccessful, notwithstanding his overall percentage score as an average of the several sections within the examination instrument. The deputy pilot examination for the Port of Jacksonville administered in August 1955 was designed and written by the consultant to the Board of Pilot Commissioners, Captain John C. Hanson, with the assistance of Marty Persanpieri of the Office of Examination Services. These two individuals had the necessary expertise to design and ensure the fairness of the examination document. Captain Hanson is experienced and has gained expertise in the field of nautical science and seamanship and has sufficient appreciation of the circumstances in the Port of Jacksonville to test the candidates on matters of local knowledge of that port. Captain Hanson and Persanpieri graded the examination in question and carried out the review of protests to the examination scores. Based upon the examination and review of the test papers of Captains Dull and Walker, they were found to have successfully completed all portions of the examination. Captain Walker received an overall score of 90.71 percent, and Captain Dull received an overall score of 90.47 percent. Although Captain Flint achieved an overall score of 91.17 percent, the highest overall average, he was deemed by the graders to have failed the examination in that he scored only 86 percent on the Inland Rules portion of the examination, short of the required 90 percent score. On October 4; 1985, Captain Walker was informed by Fred Roche, Secretary of the Department of Professional Regulation, that Walker was the successful candidate in the examination for appointment and certification as deputy pilot for the Port of Jacksonville. Upon receipt of this notification, and following confirmation of this communication through a letter from Secretary Roche Walker left his position as captain of a ship operating out of Valdez Alaska and took the position as deputy pilot for the Port of Jacksonville. In doing ; he sold his home in Merritt Island, Florida, and relocated his family to Jacksonville; Florida. He then executed a contract with the St. Johns Bar Pilots Association, through which that association obligated itself to afford Walker the necessary training to become a licensed state Pilot. Following the signing of that contract; Walker has performed the duties associated with deputy piloting in the St. Johns River related to the Port of Jacksonville. Around the time Walker had been notified of his success; the Petitioners were made aware of their examination results and followed the necessary procedures for review of their examination responses. They then offered timely written objections to certain questions within the examination, which should have been considered prior to the appointment and certification of Captain Walker as deputy pilot. Through his protest, Captain Flint objected to the following questions: Inland Rules No. 52; Inland Rules No. 54; Inland Rules No. 63; State and Federal Laws No. 154; Local Knowledge No. 2; Local Knowledge No. 19; Chartwork No. 15; Chartwork No. 27; Chartwork No. 9; the overall point total assigned for Chartwork; the Chartwork in general; and Chartwork sample questions. Captain Dull objected to the following questions: International Rules No. 20; Inland Rules No. 67; Inland Rules No. 65; Inland Rules No. 76; Navigational Aids No. 106; Navigational Aids No. 125; Federal Laws No. 165; Federal Laws No. 166; Local Knowledge No. 19; Chartwork No. 1; Chartwork No. 7; Chartwork No. 14; Chartwork No. 29; Chartwork No. 52; Chartwork light list reference; Chartwork No. 595; Chartwork No. 5300; and the Chartwork in general. These specific objections were considered by the Office of Examination Services and Captain Hanson. The protests were found to be without merit based upon an adequate analysis of the questions, an assessment of the recommended answers and the responses made by the candidates in answering the examination questions. Through this process, all candidates were given credit for answers for two examination questions unrelated to the challenges by the Petitioners. Having been unsuccessful in an attempt to gain adjustments to their examination scores; Petitioners individually petitioned for formal Section 120.57(1), Florida Statutes, hearings. Those petitions were timely submitted. The cases were then referred to the Division of Administrative Hearings leading to the formal hearing of May 5 and 9, 1956. Prior to the date of formal hearing, Captain Walker and the St. Johns Bar Pilots Association offered a timely motion to intervene in these actions and intervention was allowed. Those Intervenors have demonstrated their standing in the record developed at the final hearing. In the course of the final hearing, Captain Flint abandoned his objection to the questions: Inland Rules No. 54; Local Knowledge No. 2; Local Knowledge No. 19; Chartwork No. 27; and the chart sample questions. This left for consideration these matters: Inland Rules No. 52; Inland Rules No. 63; State and Federal Laws No. 154; Chartwork No. 9; Chartwork No. 15; the Chartwork in general; and the chartwork point total. Captain Dull also abandoned objections pertaining to questions: International Rules No. 20; Inland Rules No. 68; Inland Rules No. 76; Navigational Aids No. 106; Federal Laws No. 166; Local Knowledge No. 19; Chartwork No. 29; Chartwork No. 895; and Chartwork 5300. He continued to protest the Questions: Inland Rules No. 67; Navigational Aids No. 125; Federal Laws No. 165; Chartwork No. 1; Chartwork No. 7; Chartwork No. 14; Chartwork No. 52; Chartwork in general; and the Chartwork light list reference. In the NOTICE TO APPEAR which the Petitioners and Captain Walker received, reference is made to the seven sections within the examination instrument. This notification gave the following information about the chartwork that was to be done in the Chartwork and Local Knowledge portions of the examination. It stated: Chartwork and local knowledge will be admin- istered in the afternoon. Chartwork requires you to draw on a tracing of the chart of the port, all channels aids to navigation and their characteristics (type, color, shape, number, light/sound characteristic, elevation when appropriate as listed in the 1985 C.O. Light List for more recent information see note at end of No. 3), shoaling areas, precautionary signs, anchorage areas, obstructions, COLRBGS demarcation lines, danger areas, pipelines and cable crossings and any other inclusions on the chart relevant to navigation. Indicate true course to be steered on ranges and straightaways as appropriate. You may also be responsible for indication of direction of tide flow as indicated in the Tidal Current Tables. Local knowledge requires you to recall, from memory, information contained in the Coast Pilot relevant to the chart. Included is information concerning controlling widths lengths and depths of channels. Four (4) hours will be allowed to complete this portion of the examination. By the NOTICE TO APPEAR the candidates were also referred to the examination study sources as follows: Listed below are some general sources that may aid you in your study for some of the examination areas. This list of sources is not exhaustive. Questions may appear from other sources. Abbreviations used: CG = Coast Guard Publication USC = U.S. Code FS = Florida Statutes BPC = Board of Pilot Commission Rules Area Source International CG: Navigation Rules: Inter- Rules and national-Inland (COMDTINST Inland Rules M16672.2)(including all rules, appendices and colregs) Federal Pilot- 46 USC 11; 211-215; 232. age Laws Coast Pilot Chapter 2; Parts 162 and 164. 14 USC 51-59, 642, etc. Knowledge of U.S. Coast Pilot for the Local Port particular port (State Pilots and Deputy Pilots) Aids to CG 193, Chart No. 1: Nautical Navigation Chart symbols and abbrevi- ations, 14 USC 51-59, 33 CFR 64.01. State Pilotage Chap. 310 FS, BPC 21-55 Laws Chartwork St. Johns River from the sea buoy to the fixed bridge at Red Bay Point above Green Cove Springs and the ICW from its junction with the St. Johns River South to the Atlantic Boulevard Bridge Chart Nos. 11491 7 July 1954 11459 1 Sept 1954 11492 5 Sept 1954 Seamanship Various seamanship textbooks (for example; Basic Ship- handling for Masters, Mates and Pilots by Willerton; Practical Ship Handling by Armstrong; Ship Handling in Narrow Channels by Plummer, Knights Modern Seamanship) NOTE: Basic publications utilized in developing Jacksonville exam; in addition to the charts listed above were: 1985 CGT Light List 1985 Coast Pilot Vol. 4 If more recent information is used from CO notice to Mariners or Corps of Engineers reports, please indicate source and date so proper credit may be given. Flint Challenge Question No. 52 in the Inland Rules portion of the examination, among the choices of answers, indicated that the "lookout," "shall not be assigned other duties." Petitioner Flint did not feel that this choice was a correct answer. Six of the twelve candidates gave the prescribed answer, to include Captains Walker and Dull. The prescribed answer contemplated the proposition that lookouts shall not be assigned other duties. The prescribed answer is found to be correct, and Petitioner in his suggestion that it is appropriate for a lookout to have other duties in an inland water situation is not credited. Having considered the presentation at hearing, it is determined that the lookout in that setting must give full attention to those duties. Question No. 63 in the Inland Rules portion of the examination states that: "Rule 2(b); known as the General Prudential Rule; could be properly applied in which of the following situations?" Seven of the twelve candidates correctly answered that examination question, to include Captains Walker and Dull in that they indicated that the only correct answer to the question was the choice "action contrary to the rules as proposed by one vessel and accepted by another." Petitioner Flint felt that this answer; as well as the answer which said, "When the stand-on vessel first has doubts as to the intentions of the give-way vessel," should be considered correct. Flint also believes that it is unreasonable to require that the candidates know rules by number reference and contends that this particular rule is not known as the "General Prudential Rule." This concern about the need to know the rule by number and the reference to the term "General Prudential Rule" is a reasonable requirement given that one of the source materials which the candidates were encouraged to study was that source Farnsworth & Young, Nautical Rules of the Road, wherein it is stated that Rule 2(b) is known as the "General Prudential Rule." On the merits of the protest, as to the answer given, Captain Flint is wrong to apply the ideas expressed in the "General Prudential Rule" to a situation in which the stand-on vessel first has doubts as to the intentions of the give-way vessel. Other steps must he taken before resorting to the subject rule. An example of those initial steps would be the sounding of a signal. In the section dealing with state and federal laws, in Question No. 154, it is indicated that the number of state pilots in the various ports is: (1) determined by the supply and demand for pilots and services, (2) determined by investigation conducted by the Department of Professional Regulation. The answer prescribed by the examination was the first choice only. Captain Flint did not feel that either of the choices of answer was correct. He is struck by the language of Section 310.061(2), Florida Statutes, which says, The Board shall determine the number of pilots in conformance with Subsection (1) based upon the supply and demand for piloting services and the public interest in maintaining efficient and safe piloting services. Therefore, according to Captain Flint, since there are fixed limits set forth in Subsection (1) on the number of pilots that may be available in a given port, in order to determine the number of pilots, one must not only be mindful of supply and demand, but also recognition of the finite number of available pilots as set forth in Subsection (1) should be taken into account. This interpretation by Captain Flint is sufficiently legitimate that he should be afforded credit for the answer to the examination question in which he selected the answer that indicated that neither of the two choices was correct. In the Chartwork referred to as No. 9, Petitioner Flint argues that the instructions were, "The chart drawing is to cover up the St. Johns River to the highway bridge at Red Bay Point," meaning that only the features within the system before the point of the bridge needed to be indicated. This would preclude necessity to set forth any of the characteristics of the Red Bay Point Bridge, per Flint. Those characteristics are matters which a pilot should reasonably be expected to be examined on as to horizontal and vertical clearances of the bridge. This is a more persuasive interpretation of the examination instruction than the literal reading which Captain Flint gave in determining to cut short his chartwork before describing the characteristics of the bridge and points should have been deducted from his score. Another challenge described as Chartwork No. 15 dealt with Captain Flint's belief that the area of the St. Johns River described as St. Johns Bluff Reach is not a range or straightaway. Consequently, he did not believe that it was necessary to set out a true course through that portion of the river in keeping with instructions which indicated that the candidates should establish courses in ranges and straightaways in the chartwork. St. Johns Bluff Reach is of sufficient dimension in length that the candidate should have identified a course. For failure to set forth the course; it was appropriate to deduct points from Petitioner Flint's score in the chartwork. Generally speaking, Captain Flint believed that no points should have been deducted from his examination for his failure to relate items set forth on the Coast Guard Light List 1985, in setting up his chart drawing. He premises his argument on the fact that the instructions allowed the candidate to use either the chart information from the various charts which the candidate was referred to or to set forth on the chart examination that information reflected in the Coast Guard Light List 1985. It is not possible to set out complete characteristics of the navigational aids without reference to both the charts and the Coast Guard Light List 1985. Taking this into account, and in view of the basic instructions given the candidates prior to and at the point of examination, it was an unreasonable interpretation to suggest that it was unnecessary to refer to the Coast Guard Light List 1995 and offer information from that source on the examination chart, and points should have been deducted for this oversight. Petitioner Flint had initially contended that the total score related to his points in the chartwork was incorrectly computed in that he was entitled to 577 Points when the examination was graded as contrasted with the 575 points which he was awarded. In his fact proposal this position is abandoned in that he concedes that 575 points was the correct total to be awarded when the examination was graded. No adjustment has been made to that score, and 575 points remain his entitlement. Although some slight adjustment is indicated in the overall score for Captain Flint, the critical matter of the point total for the Inland Rules questions has not been overcome, and having failed to pass that portion of the examination, Captain Flint has failed the entire examination. Dull's Challenge In the Inland Rules portion of the examination at Question No. 67; it is stated that "A vessel proceeding with a following current in a narrow channel or fairway shall have the right of way over a vessel proceeding against the current in/on, and the choices were (1) western rivers, (2) all inland waters; (3) Great Lakes. The correct answer is (1) and (3). The answer is taken from reference material which the candidates were referred to, Farnsworth & Young, Nautical Rules of the Road, which points out that these vessels are given the right of way in operating on the Great Lakes, western rivers, and waters specified by the Secretary. Captain Dull was incorrect when he indicated that the answer should have been "all inland waters." Captain Dull objected to Question No. 125 in the portion of the examination related to navigational aids. That question states, "A preferred channel buoy indicating the preferred channel will be followed by leaving it on your port hand could:" (1) show red and black horizontal bands, (2) show a composite group flashing light; (3) show red or white light. Captain Dull rightly asserts that all three of those items would be correct in the instance in which a ship was proceeding to sea; however, the available answers for the question did not include the possibility that all three items were correct. If the ship were to be proceeding inbound, away from the sea, (1) and (2) are correct and (3) is incorrect in that the buoy could not show a red or white light. Therefore, the correct answer to the question is (1) and (2) only, and that answer was available to the candidates. The question asked was a legitimate question which was missed by Captain Dull. In that portion of the examination dealing with knowledge of federal and state pilotage laws there is Question No. 165. That item states, "To legally provide pilot service to a foreign flag vessel arriving at a Florida Port, a person must hold a valid" (1) state license or certificate, (2) federal license. The prescribed answer was that it is only necessary to hold a state license or certificate. Captain Dull felt that the answer which pertained to choices (1) and (2) was the correct answer in that in order to gain a license or certificate in Florida one must have a federal license. Nonetheless, once the Florida license has been obtained; it is no longer necessary for the federal license to be in force and effect in order to legally provide pilotage service to the foreign flag vessel arriving at a Florida Port. Under these circumstances; Captain Dull is not entitled to receive credit for his answer. In chartwork under Question No. 1 Captain Dull contends that the four anchorage positions which he failed to indicate on his chart were set forth on chart sheets not described in the instructions given to the candidates prior to examination or at the point of examination. He states that those four anchorage Positions are areas which the candidates were not alerted to study for. One of the charts which is referenced as a study source, No. 11491; has a Note A making reference to the anchorages in question by referring the reader to the Coast Pilot No. 4 which provides the information as to location of the four anchorages at issue. Moreover, the anchorages at issue are within the approaches to the St. Johns River which the candidates were instructed to depict in the chart which they prepared in response to the chartwork requirement in the examination. By failing to note these anchorages on his chart, he was subject to have points deducted from his examination, which deductions were made. In the Chartwork Questions No. 7 and 14, Captain Dull failed to set forth true courses from various locations at issue by not giving response in degrees and minutes. This relates to May Point Cut Range and White Shells Cut Range in which it was possible to give the answer in degrees and minutes. Captain Dull did not do his, although the instructions required that he give the answers in degrees and minutes. It was appropriate to deduct points from his score for failure to give the more exact responses to the requirements. Captain Dull in Question No. 52 related to chartwork also believed, as did Captain Flint, that the alternative was presented to the candidates to use either the charts or Coast Guard List 1985 in preparing the chartwork. For reasons discussed in the challenge to this matter fostered by Captain Flint Captain Dull is also incorrect in his assertions. Therefore he is not entitled to any adjustment in points for this matter. Captain Dull has not established the entitlement to further points; and Captain Walker remains the high scorer of all candidates who passed the deputy pilot examination at issue.
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)
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.
The Issue Whether American Airlines committed the unlawful employment practices alleged in the employment discrimination charges filed by Petitioners and, if so, what relief should Petitioners be granted by the Florida Commission on Human Relations.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made to supplement and clarify the extensive factual stipulations set forth in the parties' February 23, 2006, Corrected Joint Prehearing Stipulation2: Petitioners are both Hispanic. Hispanics represent a substantial portion of the workforce in American's maintenance department at Miami International Airport (MIA). Among these Hispanic employees in the maintenance department are those who occupy supervisory positions. American’s Vice-President for Maintenance, Danny Martinez, is Hispanic. As aviation maintenance technicians for American, Petitioners' job duties, as set forth in the written job description for the position, were as follows: In addition to the work specified for the Junior Aviation Maintenance Technician, an Aviation Maintenance Technician's responsibility also includes the following: troubleshooting, individually or with Crew Chief, management or professional direction, disassembly, checking and cleaning, repairing, replacing, testing, adjusting, assembling, installing, servicing, fabricating, taxing or towing airplanes and/or run-up engines, de-icing aircraft, required to maintain the airworthiness of aircraft and all their components while in service or while undergoing overhaul and/or modification. Certifies for quality of own workmanship, including signing mechanical flight releases for all work done on field work. In those work positions where stock chasers are not utilized and/or available at the time may chase own parts. May have other Mechanic personnel assigned to assist him/her in completing an assignment. Works according to FAA and Company regulations and procedures and instructions from Crew Chief or supervisor. Completes forms connected with work assignments according to established procedures and communicates with other Company personnel as required in a manner designated by the Company. Performs the following duties as assigned: cleaning of aircraft windshields; connection/removing ground power and ground start units; pushing out/towing of aircraft and related guideman functions, fueling/defueling, de-icing of aircraft. At all times material to the instant cases, Petitioners were members of a collective bargaining unit represented by the Transport Workers Union of America (TWU) and covered by a collective bargaining agreement between American and the TWU (TWU Contract), which contained the following provisions, among others: ARTICLE 28- NO DISCRIMINATION, AND RECOGNITION OF RIGHTS AND COMPLIANCE The Company and the Union agree to make it a matter of record in this Agreement that in accordance with the established policy of the Company and the Union, the provisions of this Agreement will apply equally to all employees regardless of sex, color, race, creed, age, religious preferences, status as a veteran or military reservist, disability, or national origin. The Union recognizes that the Company will have sole jurisdiction of the management and operation of its business, the direction of its working force, the right to maintain discipline and efficiency in its hangars, stations, shops, or other places of employment, and the right of the Company to hire, discipline, and discharge employees for just cause, subject to the provisions of this Agreement. It is agreed that the rights of management not enumerated in this Article will not be deemed to exclude other preexisting rights of management not enumerated which do not conflict with other provisions of the Agreement. * * * Copies of the Peak Performance Through Commitment (PPC) Program will be available to all employees upon request. Any changes to the PPC Program will be provided and explained to the TWU prior to implementation. ARTICLE 29- REPRESENTATION * * * The Union does not question the right of the Company supervisors to manage and supervise the work force and make reasonable inquiries of employees, individually or collectively, in the normal course of work. In meetings for the purpose of investigation of any matter which may eventuate in the application of discipline or dismissal, or when written statements may be required, or of sufficient importance for the Company to have witnesses present, or to necessitate the presence of more than the Company supervisor, or during reasonable cause or post accident drug/alcohol testing as provided in Article 29(h), the Company will inform the employee of his right to have Union representation present. If the employee refuses representation, the supervisor's record will reflect this refusal. At the start of a meeting under the provisions of Article 29(f), the Company will, except in rare and unusual circumstances, indicate the reason that causes the meeting and then provide an opportunity for the employee and his Union representative to confer for a reasonable period of time. Following that period, the 29(f) meeting will be reconvened and continue until concluded by the supervisor. Before written notification of discipline or dismissal is given, an employee will be afforded the opportunity to discuss the matter with his supervisor. If he desires, he will have a Union representative in the discussion. . . . * * * ARTICLE 30- DISMISSAL An employee who has passed his probationary period will not be dismissed from the service of the Company without written notification of that action. The notification will include the reason or reasons for his dismissal. Appeal from dismissal will be made, in writing, by the employee within seven (7) calendar days after receiving the notification and will be addressed to the Chief Operating Officer, with a copy to the appropriate Human Resources Office. The Chief Operating Officer will fully investigate the matter and render a written decision as soon as possible, but not later than twelve (12) calendar days following his receipt of the appeal, unless mutually agreed otherwise. A copy of the written decision will be provided to the Union. * * * If the decision of the Chief Operating Officer is not satisfactory to the employee, the dismissal and decision will be appealed in accordance with Article 30(c), provided, however, the appeal must be submitted within twenty (20) calendar days of receipt of the decision rendered by the Chief Operating Officer. An appeal from the decision of the Chief Operating Officer will be submitted to the appropriate Area Board of Adjustment in accordance with Article 32. . . . * * * ARTICLE 31- GRIEVANCE PROCEDURE An employee who believes that he has been unjustly dealt with, or that any provision of this Agreement has not been properly applied or interpreted, or against whom the Company has issued written disciplinary action, may submit his grievance in person or through his representatives within seven (7) calendar days. The grievance will be presented to his immediate supervisor, who will evaluate the grievance or complaint and render a written decision as soon as possible, but not later than seven (7) calendar days following his receipt of the grievance. . . . If the written decision of the immediate supervisor is not satisfactory to the employee whose grievance is being considered, it may be appealed within ten (10) calendar to the Chief Operating Officer, with a copy to the appropriate Human Resources Office. The Chief Operating Officer will fully investigate the matter and will render a written decision as soon as possible, but not later than twelve (12) calendar days, unless mutually agreed otherwise, following his receipt of the appeal. . . . If the decision of the Chief Operating Officer is not satisfactory to the employee, the grievance and the decision may be appealed to the System Board of Adjustment, as provided for in Article 32. * * * ARTICLE 32- BOARD OF ADJUSTMENT * * * Area Board of Adjustment, Discipline and Dismissal Cases * * * (2) Each Area Board will be composed on one member appointed by the Company, one member appointed by the Union, and a neutral referee acting as Chairman. . . . * * * Procedures Generally Applicable to the Boards * * * Employees and the Company may be represented at Board hearing by such person or persons as they may choose and designate. Evidence may be presented either orally or in writing, or both. The advocates will exchange all documents they may enter and the names of witnesses they may call in their direct case not later than ten (10) calendar days prior to the date set for hearing. Nothing in this paragraph will require either advocate to present the documents or the witnesses provided above during the course of the hearing. The advocates will not be restricted from entering documents or calling witnesses that become known subsequent to the ten (10) ten calendar day exchange, provided a minimum of forty-eight (48) hours notice is provided to the other party and a copies are submitted to the other party prior to the presentation of the direct case. The party receiving the late document or witness has the option to postpone the hearing in light of the new document or witness. Upon the request of either party to the dispute, or of two (2) Board members, the neutral referee will summon witnesses to testify at Board hearing. The Company will cooperate to ensure that all witnesses summoned by the board will appear in a timely fashion. Reasonable requests by the Union for employee witnesses will be honored. The requests for witnesses will normally not be greater than the number, which can be spared without interference with the service of the Company. Disputes arising from this provision will be immediately referred to the Director of the Air Transport Division and the Vice President-Employee Relations, or their respective designees, for resolution. A majority of all members of a Board will be sufficient to make a finding or a decision with respect to any dispute properly before it, and such finding or decision will be final and binding upon the parties to such dispute. . . . * * * ARTICLE 36- MEAL PERIODS Meal periods will be thirty minutes, except when a longer period is agreed upon between the parties. Meal periods will be scheduled to begin not earlier than three (3) hours after commencement of work that day and not later than five hours after commencement of work that day. The commencement of work is from the start of the employee's regular shift. If an employee is not scheduled for a meal period within the foregoing time span, the meal period will be provided immediately before or after it. In the event that a meal period has not been provided in accordance with the foregoing, the employee is then free, if he so desires, to take his meal period. At all times material to the instant cases, American had Rules of Conduct for its employees that (as permitted by Article 28(b) of the TWU Contract) were applicable to TWU- represented bargaining unit members, including Petitioners. These Rules of Conduct provided, in pertinent part, as follows: As an American Airlines employee, you can expect a safe and productive workplace that ensures your ability to succeed and grow with your job. The rules listed below represent the guidelines and principles that all employees work by at American. Attendance * * * During your tour of duty, remain in the area necessary for the efficient performance of your work. Remain at work until your tour of duty ends unless you are authorized to leave early. * * * 17. Work carefully. Observe posted or published regulations. * * * Personal Conduct * * * 34. Dishonesty of any kind in relations with the company, such as theft or pilferage of company property, the property of other employees or property of others entrusted to the company, or misrepresentation in obtaining employee benefits or privileges, will be grounds for dismissal and where the facts warrant, prosecution to the fullest extent of the law. Employees charged with a criminal offense, on or off duty, may immediately be withheld from service. Any action constituting a criminal offense, whether committed on duty or off duty, will be grounds for dismissal. (Revision of this rule, April 10, 1984) * * * Violations of any of the American Airlines Rules of Conduct (listed above) . . . could be grounds for immediate termination depending of the severity of the incident or offense and the employee's record. . . . At all times material to the instant cases, American had a Peak Performance Through Commitment Policy (PPC Policy) to deal with employee performance and disciplinary problems. The policy, which (as permitted by Article 28(b) of the TWU Contract) was applicable to TWU-represented bargaining unit members, including Petitioners, provided, in pertinent part, as follows: Peak Performance Through Commitment (PPC) is a program that fosters ongoing communication between managers and employees. It encourages managers . . . to regularly recognize outstanding performance and to work together with employees to address and correct performance issues fairly. For the few employees whose performance does not respond to regular coaching and counseling, the following steps advise them that continued performance problems have serious consequences, ultimately leading to termination: -First Advisory for employees with problem performance or conduct who do not respond to coaching or counseling. -Second Advisory for employees whose performance fails to respond to initial corrective steps. -Career Decision Advisory for employees whose problem performance or conduct warrants termination. They are given a paid Career Decision Day away from work to consider their future and continued employment with American Airlines. -Final Advisory for employees whose problem performance or conduct requires termination, or those who have failed to honor the Letter of Commitment signed after their Career Decision Day. Please note that steps can sometimes be skipped, in instances where the nature of the conduct is very serious. It is your responsibility as an employee to know the company's rules of conduct and performance standards for your job, and to consistently meet or exceed those standards. In the event that your performance does not measure up to the company's expectations, your manager will work with you to identify the problem and outline steps to correct it. * * * SERIOUS INCIDENTS OR OFFENSES Some violations of our guiding principles and rules of conduct will result in immediate termination. For example, insubordination, violating our alcohol and drug policy, abusing travel privileges, aircraft damage, violations of the work environment policy, and job actions could be grounds for immediate termination, depending on the severity of the incident and the employee's record. Hate-related conduct and dishonesty will always result in termination. In cases when immediate termination may be appropriate but additional information is needed, the employee may be withheld from service while an investigation is conducted. At all times material to the instant case, Petitioners' regular shifts were eight and a half hours, including an unpaid, thirty minute "meal period" (to which TWU-represented bargaining unit members were entitled under Article 36 of the TWU Contract). Although they were paid to perform eight hours of work during their eight and a half hour shifts, TWU-represented bargaining unit members, including Petitioners, were, in practice, allowed to take up to an hour for their meals, without penalty. TWU-represented bargaining unit members "clocked in" at the beginning of their shift and "clocked out" at the end of their shift. They were expected to remain "on the clock" during their "meal periods" (which, as noted above, were to be no longer than one hour). During his eight and a half hour shift which began on July 30, 2004, Petitioner Castellanos was assigned to perform a "routine 'A' [safety] check" on a Boeing 757 aircraft, an assignment it should have taken a "well qualified [aviation maintenance technician] working quickly but carefully" approximately four hours to complete. At the time he left MIA that evening to go to the Quench nightclub, Mr. Castellanos was two hours and 15 minutes into his shift. During his eight and a half hour shift which began on July 30, 2004, Petitioner Pena was assigned to perform "PS checks" on two Boeing 737 aircraft, an assignment it should have taken a "well qualified [aviation maintenance technician] working quickly but carefully" at least six hours to complete. At the time he left MIA that evening to go to the Quench nightclub, Mr. Pena was three hours and 45 minutes into his shift. Walter Philbrick, an investigator in American's corporate security department, covertly followed Petitioners when they left MIA that evening and kept them under surveillance until their return almost four hours later. Petitioners did not clock out until following the end of their shifts on July 31, 2004. In so doing, they effectively claimed full pay for the shifts, notwithstanding that, during the shifts, they had been off the worksite, engaged in non-work- related activity, for well in excess of the one hour they were allowed for "meal periods." Mr. Philbrick prepared and submitted a report detailing what he had observed as to Petitioners' movements and conduct during the time that they had been under his surveillance. Mike Smith is American's maintenance department station manager at MIA. He is "responsible for the entire [American] maintenance operation in Miami." Mr. Smith assigned his subordinate, Anthony DeGrazia, a day shift production manager at MIA, the task of looking into, and taking the appropriate action on behalf of management in response to, the matters described in Mr. Philbrick's report. Neither Mr. Smith nor Mr. DeGrazia is Hispanic. Mr. DeGrazia met separately with both Mr. Pena and Mr. Castellanos. The meetings were held in accordance with the provisions of Article 29(f) of the TWU Contract. Before conducting the meetings, Mr. DeGrazia had reviewed Mr. Philbrick's report. Mr. Castellanos stated, among other things, the following in his meeting with Mr. DeGrazia: on the evening in question, he was trying to complete his assignment as fast as possible because he wanted to have an alcoholic beverage; that evening, he was "away from work" for approximately four hours, which he knew was wrong; and he and Mr. Pena had engaged in similar activity on perhaps six or seven previous occasions. Mr. Pena stated, among other things, the following in his meeting with Mr. DeGrazia: on the evening in question, he was "off the field" for three to four hours, which he knew was not "okay"; this was something he had done "sometimes" in the past; and American was a "great company" to work for. Based on his review of Mr. Philbrick's report and the information he had obtained from Petitioners, Mr. DeGrazia concluded that Petitioners had committed "time clock fraud" in violation of Rule 34 of American's Rules of Conduct and that they therefore, in accordance with American's policy that "dishonesty will always result in termination" (as expressed in the PPC Policy), should be terminated. Before taking such action, Mr. DeGrazia consulted with Mr. Smith and "someone" from American's human resources department, who both "concurred" with Mr. DeGrazia that termination was the appropriate action to take against Petitioners. On August 12, 2004, Mr. DeGrazia issued Final Advisories terminating Petitioners' employment. The Final Advisory given to Mr. Castellanos read, in pertinent part, as follows: On Friday, July 30, 2004, your scheduled tour of duty was 2230-0700. During your scheduled shift you were assigned to complete an A-check on a 757 aircraft. At approximately 0045, Corporate Security observed you leaving the premises and going into a nightclub in Coconut Grove. While there, you were observed at the bar drinking from a plastic cup. You were observed leaving the nightclub at 0315 and driving towards the airport. By your own account, you returned to the airport approximately 0400. During a company investigation, you admitted to leaving the premises, during your scheduled tour of duty and going to a restaurant/bar. Further, you admitted to consuming alcoholic beverages. Additionally, when asked how it was possible for you to complete your assignment in such a short amount of time you stated that you were, "trying to complete the job as fast as I can because I was getting the urge of getting a drink." Based on the above information I have concluded that your actions fall far short of that which may be reasonably expected of our employees and are a direct violation of American Airlines' Rules of Conduct, Rules 3, 4, 17, and 34 . . . . In view of the above rule violations your employment with American Airlines is hereby terminated effective today, August 12, 2004. * * * The Final Advisory given to Mr. Pena read, in pertinent part, as follows: On Friday, July 30, 2004, your scheduled tour of duty was 2100-0530. During your scheduled shift you were assigned to complete two PS-checks on 737 aircraft. At approximately 0045, Corporate Security observed you leaving the premises and going into a nightclub in Coconut Grove. While there, you were observed at the bar drinking from a plastic cup. You were observed leaving the nightclub at 0315 and driving towards the airport. By your own account, you returned to the airport approximately 0400. During a company investigation, you admitted to leaving the premises, during your scheduled tour of duty and going to a restaurant/bar. Further, you admitted to consuming alcoholic beverages. Additionally, when you[] were asked if it is acceptable to go to lunch for 3-4 hours you stated, "no, according to Company Rules, it's not OK." Based on the above information I have concluded that your actions fall far short of that which may be reasonably expected of our employees and are a direct violation of American Airlines' Rules of Conduct, Rules 3, 4, and 34 . . . . In view of the above rule violations your employment with American Airlines is hereby terminated effective today, August 12, 2004. * * * That Petitioners were Hispanic played no role whatsoever in Mr. DeGrazia's decision to terminate them. Mr. DeGrazia terminated Petitioners because, and only because, he believed that they had engaged in dishonesty by committing "time clock fraud." Mr. DeGrazia has never encountered another situation, in his capacity as a production manager for American, where an aviation maintenance technician over whom he had disciplinary authority engaged in conduct comparable to the conduct for which he terminated Petitioners. No one has ever reported to him, nor has he ever observed, any aviation maintenance technician other than Petitioners taking "meal periods" that were longer than an hour while remaining "on the clock." Petitioners both grieved their terminations pursuant to Article 31 of the TWU Contract. Neither of them advanced any allegations of anti-Hispanic discrimination in his grievance. Petitioners' grievances were ultimately denied on September 9, 2004, by William Cade, American's managing director for maintenance. Petitioners appealed the denial of their grievances to the American and TWU Area Board of Adjustment for Miami, Florida (Board), in accordance with Article 32 of the TWU Contract, which provided for "final and binding" arbitration of disputes arising under the contract. A consolidated evidentiary hearing was held before the Board on April 28, 2005. At the hearing, Petitioners were represented by counsel. Through counsel, they called and cross- examined witnesses, submitted documentary evidence, and presented argument. Neither of them testified. The Board issued a decision on June 27, 2005, denying Petitioners' grievances. The TWU Board member dissented. The Discussion and Opinion portion of the decision read, in pertinent part, as follows: There is no dispute that the rule violations by grievants['] actions on July 30, 2004 constituted time card fraud and violation of rules relating to remaining at work. This was not some minor taking of time, such as overstaying lunch for a shortened period. It was a well-planned event. They had with them a change of clothes - in effect "party clothes" apropos to a late night-early morning South Florida nightclub. They had even done this several times before. Once at this nightclub they actually drank very little. Grievant Pena had two drinks and grievant Castellanos appeared to have just one. In fact, when he was later tested after his return to work almost five hours later, the result was negative for drugs and alcohol. Clearly, they failed to remain at work for their tours of duty in violation of Rules 3 and 4. These rules, however, do not by themselves call for immediate discharge nor do any of the Company documents relating to rules, such as its PPC, refer to them as serious violations that would incur discharge. The seriousness here concerns the grievants' badging out after their eight-hour tour and being paid for eight hours, almost five of which they did not work. There is no question that this is time card fraud and as such it involves dishonesty that is covered by Rule 34's "dishonesty of any kind." Numerous arbitrators for the parties have found such conduct to be violative of Rule 34 and have concluded that stealing time from the Company is dishonesty that requires immediate dismissal. * * * [T]he grievants engaged in this misconduct on multiple occasions that involved more than half of their shift being spent at a nightclub. And they knew it was wrong as they readily admitted when finally caught. Mitigation based on the grievants' EAP involvement is insufficient to overcome and reduce in any fashion their core responsibility to be honest employees and abide by all Company rules and regulations. The Company made this clear enough in its current Drug and Alcohol policy, and, as seen, other Boards have found it reasonable, as does this Board. To all of this the Union argues that there are other mitigating factors - seniority, disparate treatment, failure to consider employment records and a common practice permitting employees to extend lunch breaks. As to the latter, there is no evidence that any employee has been allowed to stay away from work for almost five hours with the knowledge or consent of management at any level. There is some evidence of employees overstaying the break by 30 minutes, of employees going for food for the crew and arriving back late and even some two-hour absences. None of this is comparable to the grievants' conduct. Nor is the evidence concerning supervisor Delgadillo enough to warrant the finding of a practice. She was not Pena's supervisor. She called grievant Castellanos' cell, but that alone does not mean that she knew he was off several hours at that point socializing and drinking in Coconut Grove on July 30 or at other times. She may have gone out with them while she was a mechanic, but the evidence does not show that she went for these long journeys to drink and socialize at a night club. Most importantly, the grievants never claimed a practice existed but instead readily admitted at the 29(f)s that their conduct was wrong and they violated Company rules. As to the disparate treatment incidents, although the dishonesty issue appears similar, different treatment only becomes disparate when the employees being compared also have factual situations and records that are similar. The comparators here did not leave work on more than one occasion, or on any occasion, for four hours or more to drink and socialize in a nightclub. Thus, Mora's 45-minute late punch-in resulted from his retrieving his drivers' license; he then immediately informed management of what he did. He did not have to be put under security surveillance for this type of conduct occurring in the past. Although his 30-minute extended lunch was part of the practice referred to above, it hardly qualifies as like conduct when compared to the grievants' activities. The claim by Vizcaino that he was sick when he used his Company travel privilege is the type of violation referred to the Travel Abuse Committee under a rule penalizing employees by suspending their travel privileges. The facts of that incident and the reasoning of this committee are not known to make any clear and relevant comparison. Even if accepted as a valid comparison, it is only one employee incident that by itself is insufficient to show that management disparately treated these grievants. Nor is their any proof that Rule 34 was involved in either of these situations. Manager DeGrazia disclosed that he did not consider the grievants' prior record or their seniority. He explained that the seriousness of their conduct was sufficient for his decision. The Board fully recognizes that the grievants cooperated during the investigation, had no prior discipline, and had seniority from 1989 and 1996. Each of these factors is significant in assessing the suitability of the penalties. But it is well established by the parties and even in arbitration cases involving outside parties, that in light of the gravity of time card fraud, these factors need not be evaluated. The Chairman notes nonetheless, that seniority and work records cannot be entirely ignored. But here, the grievants' propensity in the past to engage in this same outlandish conduct, and to do so undetected, significantly minimized, for mitigation purposes, much of their good record and seniority. Petitioners subsequently filed employment discrimination charges with the FCHR, alleging for the first time that their terminations were products of anti-Hispanic discrimination. There has been no persuasive showing made, in support in these allegations, that the decision to terminate them was motivated by anything other than legitimate business considerations.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding the American not guilty of the unlawful employment practices alleged by Petitioners and dismissing their employment discrimination charges. DONE AND ENTERED this 15th day of May, 2006, in Tallahassee, Leon County, Florida. S STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of May, 2006.
Findings Of Fact At all times relevant hereto, David E. Rabren was licensed as a Tampa Bay state pilot and was president of the Tricounty Pilot's Association (TRICO). At the time the movement of the OCEAN LORD occurred, there was only one state licensed pilot who was a member of TRICO. That was David E. Rabren. Other members held only federally issued pilot's licenses. Prior to the movement of the VOMAR, a second state licensed pilot joined TRICO. At present, there are four licensed state pilots and one deputy pilot associated with TRICO. The vessel OCEAN LORD arrived in Tampa Bay February 18, 1986, and was piloted by Captain Rabren to its berth at C. F. Industries (CFI). After taking on cargo, the OCEAN LORD was moved the same date to Gadsden Anchorage. During this move, Captain Murphy, a federally licensed, but not state licensed, pilot was on board. Captain Murphy is associated with TRICO. On February 21, 1986, the OCEAN LORD was moved from Gadsden Anchorage to the CSX Transportation dock at Rockport. Again, Captain Murphy was the pilot. On September 21, 1986, the vessel VOMAR was moved from Rockport to a dock at Big Bend with Captain Murphy as the pilot. Anita Rabren determined that the movement could be accomplished with a federally licensed pilot on board. On October 5, 1986, the vessel ASPEN, an American flag vessel, arrived at Tampa Bay, and the ship's agent requested TRICO provide a pilot. Due to a misunderstanding of the agent's statement that the ASPEN was coming from the west coast, Anita Rabren assumed this was from the west coast of the United States. Actually, the ASPEN's last port of call was in Korea. Had the vessel come from a west coast of the United States port, the voyage would have been a coastwise trip, and a federally licensed pilot would be required. A federally licensed pilot was assigned to pilot the ASPEN. The last port of call of the ASPEN was ascertained after the pilotages up Tampa Bay commenced, and the fact that an improperly licensed pilot was used was reported forthwith. TRICO paid a double pilot fee to the Tampa Bay Pilot's Association. Tampa Port Authority has jurisdiction over all of Hillsborough County and establishes rules and regulations for that area. They do not regulate pilotage of vessels. Many of the terminals in Hillsborough County are owned by the Port Authority, but some are privately owned such as Big Bend and Rockport, both of which are in the port of Tampa. The Port Authority controls the allocation of berths at all terminals owned by the Port Authority, but does not control the berths at privately owned terminals. The CFI terminal is owned by the Port Authority who establishes wharfage rates and docking rates at this terminal. The berths at Rockport and Big Bend are privately owned, and tariff rates are not set by the Port Authority. CSX Transportation owns a dock at Rockport where phosphate is loaded onto vessels. No wharfage or dockage charge is levied, but such charges are included in charges for the commodity loaded. Ships can clear customs at any of the terminals above noted. The Big Bend facility is under the jurisdiction of Gulf Coast Transit Company. Vessels bring coal to Big Bend for use by Tampa Electric Company. The AGRICO terminal at Big Bend is used for loading phosphate rock. All of these privately owned terminals are licensed by the Tampa Port Authority to whom they pay a fee and submit reports of their activities. The Tampa Port Authority charges a fee to vessels who load or unload cargo at the Gadsden Anchorage which is also in the port of Tampa. Section 310.002(4), Florida Statutes, defines "port" to mean, any place in the state in which vessels enter and depart. For Tampa Bay, this section lists Tampa, Port Tampa, Port Manatee, St. Petersburg and Clearwater as ports. Of those listed ports, Tampa and Port Tampa are in Hillsborough County and come under the jurisdiction of the Tampa Port Authority. No evidence was submitted showing the areas encompassed by the Port of Tampa and Port Tampa. The Port of Tampa's Terminal and Facilities Map (Exhibit 5) showing the port facilities at Tampa, Florida, does not show the facilities at Port Tampa; it shows only those facilities on the east side of the Tampa peninsula, and does not reach as far south as Big Bend. Presumably, if there are only two ports in Hillsborough County that portion of Hillsborough County west of the Tampa peninsula would comprise Port Tampa, and that portion of Hillsborough County east and south of the Tampa peninsula would comprise the Port of Tampa. If so, all of the movements here complained of occurred in the Port of Tampa. Exhibit 5 supports this conclusion. Finally, no credible evidence was presented that Respondent assigned a federally licensed, but not a state licensed, pilot to the OCEAN LORD, VOMAR and ASPEN as alleged, except Exhibit 3 which states the assignment of a federally licensed pilot to the Aspen was due to an error on the part of Captain Rabren. The direct testimony presented in this regard is that Anita Rabren assigned federally licensed pilots to those ships. Further, this determination that use of a federally licensed pilot for those movements of foreign flag vessels within the Port of Tampa was proper was made by Anita Rabren after receiving legal advice regarding the in-port movements of foreign flag vessels that can be piloted by a federally licensed pilot.
Findings Of Fact The facts in this case are not in dispute. In October 1978 Herbert Grossman, a CPA, one of whose clients was Red Aircraft, Inc., and Spencer Gordon formed the corporation Southern Air Charter, Inc., for the purpose of taking title to an aircraft to be operated by Red. The bill of sale for $140,000 in September 1978 was from Red to Southern Air Charter, Inc., who financed the plane with a loan from Barnett Bank. Red, at all times here relevant, was registered with the Department of Revenue (DOR or Petitioner) as a dealer engaged in the business of selling tangible personal property. Southern Air Charter submitted application to DOR for a certificate of registration (Exhibit 1) bearing the typed date October 1978 scratched out, and inserted in handwriting 6-1-79. This application (Exhibit 1) was stamped received in DOR office February 1, 1979. Grossman's testimony, which was undisputed, was that Southern was formed as an accommodation to Red for the purpose of taking legal title to the aircraft to improve Red's balance sheet. Red continued to provide insurance coverage on the aircraft, charter the aircraft and perform all of their activities respecting the aircraft that would be done by an owner. Southern, having legal title to the aircraft, took depreciation and investment tax credit while Red used the aircraft. At the time of the sale of the aircraft to Southern, the latter was not a registered dealer, and Red did not collect sales tax on this transaction. On July 7, 1979, the tax, penalty and interest assessed on this transaction was $6,331.68 (Exhibit 2). The accuracy of this figure was not contested, nor was the assessment for rentals of aircraft in the amount of $1,704.34 (Exhibit 2). Red contended that no tax was due on the leasing of the aircraft but no evidence to support this exemption was presented.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following facts are found: Respondent, Thomas A. Baggett has been licensed by the State of Florida as a pilot in Tampa Bay for fifteen (15) years and at all times pertinent to this proceeding was licensed by the State of Florida as a pilot. On February 5, 1984, at about 0620 hours, while Captain Baggett was piloting M/V Triton C outbound from the Gardinier Wharf in Hillsborough County, Florida, the M/V Triton C ran aground outside the prescribed limits of CUT D in Tampa Bay on the east side. The M/V Triton C is a Liberian bulk carrier with an approximate length and width of 576.7 feet and 81 feet, respectively, with a gross tonnage of 17,823 tons. At the time of grounding, the M/V Triton C had a forward draft of 29 feet, 11 inches and an aft draft of 30 feet and 1 inch. The M/V Triton C was experiencing no engine or navigational equipment problem before it ran aground. All aids to navigation, including ranges and buoys, were in place and working properly at the time of the grounding. The M/V Triton was travelling at a speed of 11.7 knots. Range lights, when properly aligned, provide a way for the pilot or anyone navigating a vessel to know the vessel is in the center of the channel. On the morning of February 5, 1985, shortly before the grounding of the M/V Triton C, Captain Baggett gave orders for the turn from CUT E into CUT D, or from a heading of 198 degrees to a heading of 213 degrees. Captain Baggett ordered the wheel 20 degrees to starboard and then eased to 10 degrees. Captain Baggett then ordered the quartermaster to midship the wheel and steady the vessel on 213 degrees. He gave no instructions to the quartermaster concerning the use of the range lights for navigating the center of the channel. At this point the confusion begins. Captain Baggett testified that the M/V Triton C steadied up on 213 degrees, an appropriate course for the transit of CUT D, while he was present and he observed the M/V Triton C as being on the ranges for about 2 minutes before going into the chart room. As he stepped back into the chart room, he glanced at the compass and observed that the vessel was on a heading of 213 degrees. Captain Baggett gave no further instructions or orders other than "hard to starboard" when he came out of the chart room 15-20 seconds later and noticed the bow swinging to port, the rudder indicator showing 20 degrees rudder and the ranges being already opened. Captain Baggett testified that upon giving the order "hard to starboard" the quartermaster pulled the wheel and went "hard to port" and the vessel almost immediately went aground. The mate and quartermaster tell a different story. The master was below and not present on the bridge at the time of grounding. The mate testified that Captain Baggett went into the chart room while the compass was swinging through 210 degrees and before the vessel steadied up on 213 degrees, and that Captain Baggett remained in the chart room for 40 seconds to 1 minute and came out as the vessel went aground. The quartermaster testified that Captain Baggett went into the chart room immediately upon the vessel steadying up on 213 degrees, and did not stay to watch the course or range for 2 minutes. He further testified that Captain Baggett was in the chart room for 5-6 minutes; that he came out of the chart room as the vessel went aground; and, Captain Baggett gave no order of "hard to starboard". The quartermaster at the time of the grounding was Maheswaran Gnanasundran and the mate was Siburs Ioannas. As evidenced by the depositions, both were foreign; neither spoke English and each required an interpreter at the deposition. The master of the M/V Triton C on the day of grounding was Stamatios Stanou, a citizen of Greece, and required an interpreter for his deposition. Captain Baggett experienced a communication problem with quartermaster Gnanasundran in the beginning of the turn out of CUT E to CUT D, and earlier with another quartermaster at the beginning of the turn out of Hilisborough A CUT into Hillsborougn C CUT who was on duty just prior to quartermaster Gnanasundran. The M/V Triton C was at a heading of 206 degrees immediately after grounding and did not move significantly from that heading while grounded. Both the mate and the quartermaster testified that the M/V Triton C, after steadying up, stayed on the course heading of 213 degrees during the entire time and was on the same course heading when the vessel went aground. The mate testified that as the M/V Triton C began to run aground it began to list to the right, and its heading as it finally came to rest aground was 206 degrees. The master of the M/V Triton C testified that the wind was out of the northwest at 15 knots, with full tide, and the current being with M/V Triton C at about 2 knots. Captain John C. Hanson, an investigator for petitioner, testified that at the time of grounding, based on tidal information and weather reports, the wind was out of the northwest and there was an ebb tide running in a southerly direction which would tend to set the M/V Triton C in a southerly direction to the east of CUT D. Captain Hanson further testified that these conditions would have an effect on navigation. Captain Baggett testified that there was an ebb tide in a southwest direction and that it would tend to set to the southwest but at that point in time, it would have had very little effect on the M/V Triton C. Therefore, he did not make any allowances for the tide, wind, or a combination of them. Petitioner's Exhibit No. 3 shows the mean lower low water depth outside of the confines of the channel in the area of grounding to be 24 feet to 25 feet. Captain Hanson testified that the chart was current but that the depth of the water in a Particular area could be deeper, depending upon tides and winds. Captain Baggett testified that soundings taken on February 5, 1985, during the morning of grounding, put the depth of the water at the bow (point of grounding) and stern to be 25 feet and 37 feet, respectively and, that he visually observed, after daylight the stern of the vessel as being located in the ship channel of CUT D. The ship channel in CUT D has an approximate width of 400 feet with shoaling on both sides. Captain Hanson boarded the M/V Triton C 3 days after the grounding and testified that he plotted the position where the vessel went aground by taking "crossbearings of fixed structures, (no floating aids) and one radar range to one of the radar structures." Captain Hanson plotted the position of the M/V Triton C to be on the east side of CUT D, at a point 450 feet from the centerline of the CUT D approximately 1325 yards from a midpoint between buoys 1E and 2E. For an exact position see Petitioner's Exhibit No. 3. The crossbearings used to locate the exact position of the M/V Triton C are shown on the chart on the right side of Petitioner's Exhibit No. 3. The left side of Petitioner's Exhibit No. 3 is an enlargement of CUT D prepared by Captain Hanson showing the various courses the M/V Triton C could have taken from a point abeam of buoys 1E and 2E to the position of grounding based on the speed of the M/V Triton C at 11.7 knots. Petitioner's Exhibit No. 3 demonstrates that if the point of grounding was 450 feet from the centerline of the channel, as Captain Hanson testified, and, the M/V Triton C grounded on the heading of 206 degrees, then, at that heading, the stern of a vessel 576.7 feet long could not have reached the channel. Captain Hanson's testimony concerning his method of locating the position of the M/V Triton C, the crossbearing used and the calculations went unrebutted. With a vessel drafting 29 feet 11 inches forward and the point of grounding being 450 feet from the centerline of the channel, the depth of the water outside the confines of the channel along the heading taken by the M/V Triton C was deeper than 25 feet or the grounding would have occurred sooner and at a point closer to the east bank of CUT D. As Petitioner's Exhibit No. 3 demonstrates, the testimony of the quartermaster that the M/V Triton C steadied up on 213 degrees after making the turn from CUT E to CUT D and steered that course for five to six minutes while Captain Baggett was in the chart room is incorrect as to how long Captain Baggett was in the chart room, because the vessel would have travelled beyond the point of grounding in 5 to 6 minutes. As Petitioner's Exhibit No. 3 demonstrates, the testimony of the mate that Captain Baggett went into the chart room while the compass was swinging through 210 degrees and before the vessel steadied up on 213 degrees and that the vessel went aground within 40 seconds to 1 minute while Captain Baggett was still in the chart room is incorrect as to how long Captain Baggett was in the chart room because the vessel could not have travelled to the point of grounding in 40 seconds to 1 minute from the time it made the turn out of CUT E into CUT D. As Petitioner's Exhibit No. 3 demonstrates, the testimony of Captain Baggett that the vessel steadied up on a heading of 213 degrees in the center of CUT D and that he viewed the ranges in line for 2 minutes before going to the chart room and that "almost immediately" upon coming out of the chart room 15 to 20 seconds later the vessel went aground was incorrect as to how long he stayed after the vessel steadied up before going into the chart room because in that time frame the turn, causing the vessel to go aground would have been so sharp the vessel would have gone aground at a heading significantly less than 206 degrees. The most believable evidence demonstrates that Captain Baggett was in the chart room 2-3 minutes prior to grounding. Captain Baggett went into the chart room to make his time and distance calculations because light was more readily available. Captain Baggett could have made the time and distance calculations without going into the chart room. While Captain Baggett was in the chart room, he was facing away from the chart room entrance and did not look at the rudder indicator, the ranges, or otherwise determine if his orders were being properly carried out. Captain Baggett's expertise as a pilot was available to the mate and quartermaster while he was in the chart room had either of them been aware of a problem and requested his assistance. But, his expertise as a pilot was not totally available to the vessel due to his position in the chart room. Where the crew is unfamiliar with the harbor and its lights and there is a language problem, courses are usually given on compass rather than instructions on the range lights.
Findings Of Fact Petitioner is a Florida corporation doing business and having its principal place of business in Broward County, Florida. It holds an operating certificate as an air taxi/commercial operator issued by the Federal Aviation Administration on April 4, 1977. The certificate states that Petitioner has met the requirements of the Federal Aviation Act of 1958, as amended, and the rules prescribed thereunder for issuance of the certificate. The operating certificate was issued by the F.A.A. under 14 CFR 135. Petitioner is also registered as an air taxi operator with the Civil Aeronautics Board (C.A.B.) under 14 CFR 298. (Testimony of Jackson, Petitioner's Exhibit 2, Stipulation) Respondent's auditor conducted an audit of Petitioner's records for the period June 1, 1975 through July 31, 1978, and, on August 15, 1978, issued a Notice of Proposed Assessment of tax, penalties and interest under Chapter 212, Florida Statutes, in the total amount of $1,629.35 for alleged delinquent sales and use tax incurred during the audit period. The proposed assessment was based upon audit findings that Petitioner had purchased fuel, aircraft parts and repairs from a firm called Hansa Jet located at the Fort Lauderdale Hollywood Airport on which sales tax was allegedly due, but not paid thereon. Petitioner was not chartered as a corporation until March, 1977, and purchases prior to that time were made by Andy Jackson Yacht and Aircraft, Inc., which was a registered dealer under Chapter 212, Florida Statutes. Although the audit was based upon invoices in the possession of Petitioner, no effort was apparently made to check the records of the supplier, Hansa Jet, to ascertain whether it took tax exemption certificates from either firm. Several of the invoices reflected the sales tax number of Andy Jackson Yacht and Aircraft, Inc. Petitioner was not a registered dealer under Chapter 212, during the audit period. It was originally a division of Andy Jackson Yacht and Aircraft, Inc. and since 1977 has been a wholly owned subsidiary of that firm. (Testimony of Bravade, Jackson, Petitioner's Exhibit 7) By letter of September 12, 1978, Petitioner asked Respondent for an interpretation as to the applicability of the partial tax exemption of Section 212.08(9), Florida Statutes, to its operations. By letter of September 19, Respondent's audit bureau chief advised Petitioner that the exemption applied only to carriers holding certificates of convenience issued by the C.A.B. that establish routes, rates, and reports on operations on such routes. Petitioner thereafter requested a Chapter 120 hearing. (Petitioner's Exhibit 4) Prior to obtaining federal authorization to operate as an air taxi carrier, Petitioner was obliged to meet such preliminary requirements as acquisition of aircraft, insurance coverage, and the preparation of a detailed operations manual for the F.A.A. specifying the structure of the firm, and detailed provisions relating to personnel and operations. Its pilots have the same training and meet the same basic qualifications as those employed by other airlines, and its aircraft are periodically inspected by the F.A.A. under federal standards. Petitioner's place of business is located at the Fort Lauderdale- Hollywood International Airport and it maintains gate and counter space at the terminal. Its aircraft carry both passengers and cargo at published rates. Although it formerly flew scheduled routes to the Bahama Islands, it found these to be unprofitable and discontinued them. Approximately 95 percent of its business is in interstate and foreign commerce, and all of the purchases for which the taxes are presently asserted were for flights in such commerce. Petitioner is listed in the local telephone directory under the heading "Airline Companies." The listing shows destinations in the Bahama Islands and further states "Charter rates on request to all Caribbean and U.S. cities." It accepts passengers without discrimination who are willing to pay the specified rate for passage. It is a member of the Warsaw Pact on limitation of liability for international carriers. Petitioner will quote specific charter rates to a group to a particular place but gives the same rate to any other group desiring transportation to the same destination. Its operations are controlled by the F.A.A. in accordance with Petitioner's plan of operations. It aircraft fly twenty-four hours a day throughout the week. It has no continuing contracts for cargo or passengers. Although it has printed passenger tickets, these are not customarily used. Fares are paid in cash or through national credit cards. Petitioner is free to decline to fly passengers and cargo to a particular destination and exercises its discretion in this respect. It files regular annual reports to the C.A.B. on all of its revenue operations. (Testimony of Jackson, Petitioner's Exhibits 3, 6) Although Petitioner, as an air taxi operator, does not hold a C.A.B. certificate of public convenience and necessity under Section 401 of the Act, it is nevertheless viewed as a "common carrier" by that agency. The C.A.B. does not issue "licenses" to any category of air carrier but construes registration with it to be the same as a license. (Testimony of Untiedt, Petitioner's Exhibit 1)
Recommendation That Respondent revise its proposed assessment against Petitioner to encompass only those transactions occurring after Petitioner's date of incorporation, and enforce the same in accordance with law. DONE and ENTERED this 21st day of March, 1979, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Gaylord A. Wood, Jr. 603 Courthouse Square Building 200 South East 6th Street Fort Lauderdale,, Florida 33301 Maxie Broome, Jr. Assistant Attorney General Department of Legal Affairs The Capitol Tallahassee, Florida 32304 John D. Moriarty Department of Revenue Room 104, Carlton Building Tallahassee, Florida 32304
