Conclusions This cause came on to be heard before the Pilotage Rate Review Board (Board) at regularly scheduled meetings held in Fort Lauderdale, Florida on April 29, 1998 and in Boca Grande, Florida on May 19, 1998, pursuant to a Recommended Order entered by ALJ Linda M. Rigot on February 94, 1998. Exceptions to the Recommended Order were filed by the Port Everglades Pilots' Association (PEPA). Responses to the Exceptions were filed by the South Florida Cargo Carriers Association, Inc. (SFCCA). Both PEPA and SFCCA appeared at the Fort Lauderdale meeting through counsel and extensive argument was heard on the Exceptions. The Board's rulings on the Exceptions, made after a review of the complete record (including the prehearing stipulation, the transcript, exhibits and the submissions of the parties), are set forth below. Preliminary Statement-The Standards to be Applied in Reviewing the Findings of Fact Contained in a Recommended Order It is a settled rule of administrative law in this state that the findings of fact of an administrative law judge may not be rejected or modified, "unless the agency first determines from a review of the entire record, and states with particularity in the order, that the findings of fact were not based on competent substantial evidence." Section 120.57(1)(j), Florida Statutes. Accord Belleau v. Dept. of Environmental Protection, 695 So. 2d 1305 (Fla. 1st DCA 1997); Martuccio v. Dept. Of Professional Regulation, 622 So.2d 607 (Fla. 1st DCA 1993); Freeze v. Dept. Of Business Regulation, 510 So. 2d 1122 (Fla. 1st DCA 1987). Florida case law holds that an agency reviewing a recommended order is not authorized to reevaluate the quantity and quality of the evidence presented as at DOAH final hearing beyond a determination of whether the evidence is competent and substantial. Brogan v. Carter, 671 So. 2d 822, 823 (Fla. 1st DCA 19963. A reviewing agency may not reweigh the evidence, resolve conflicts therein, or judge the credibility of witnesses, as those are evidentiary matters within the province of the ALJ as the finder of the facts. Martuccio, supra, at 609; Heifetz v. Dept. Of Business Regulation, 475 So. 2d 1277, 1281 (Fla. 1st DCA 1985). Consequently, if the record of the DOAH Proceedings discloses any competent substantial evidence to support the findings of fact made by the ALJ in the Recommended Order, the Board is bound by such factual findings. Bradley. supra, at 1123. There is, however, a fundamental difference, first elucidated in McDonald v. Department of Banking and Finance, 346 So. 2d 569, 578-579 (Fla. 1st DCA 1977), between evidentiary findings of fact, which involve resolving conflicts of perception, judging credibility of witnesses and drawing permissible inferences therefrom and those ultimate factual findings which are usually couched in terms of statutory or rule language and which resolve the legal issues between the parties.2 As the court in Mcdonald, supra, stated at 346 So. 2d at 579 an ALJ's findings as to credibility, weight and other matters which are susceptible of "ordinary methods of proof "should be accorded-great deference. However, the court went on to hold that an AlJ's findings regarding matters of opinion and issues which must be resolved by reference to agency expertise, because they are "infused by policy considerations," are entitled to agency deference but with "correspondingly less weight."3 The agency must be circumspect, however, in exercising its authority to reject an ALJ's findings even if they could be labeled as "ultimate findings of fact." If factual disputes underlying an ultimate issue of fact can be resolved by "ordinary methods of proof " then an agency may not reject or modify an ALJ's ultimate factual findings without finding that they also were not supported by competent substantial evidence and complying with the requirements of Section 120.57(1); see Harac v. Dept. of Prof. Reg. Board of Architecture, 484 So. 2d 1333 (Fla. 3rd DCA 1986); Dunham v. Highlands County School Board, 652 So. 2d 895 (Fla. 2nd DCA 1995). If, in an appropriate instance, the question as to what legal standards should be applied to ultimately resolve the issues involves policy considerations (at least to the extent an agency has discretion to interpret its statutes and rules), it follows that an ALJ's findings as to such mixed questions of law and fact should be entitled to weight only to the extent they correctly apply the agency's interpretation of its statutory mandate, not simply the interpretation of that mandate by the witnesses at the hearing or even by the ALJ herself.4 The policy reason for not allowing an ALJ's ultimate findings of fact to always obtain practicable immutability and thus usurp an agency's ability to explicate its positions and interpretations of law in its own jurisprudence, is clear. Agencies, such as the Board, are appointed to oversee and implement the police power of the state and have obtained expertise in doing so. The agency is well aware of its own history and policy, as well as the legal positions set forth therein. ALJ's are likely not to have this intimate familiarity with the policy issues that comes with enforcing a regulatory scheme on a regular basis. Bearing the aforementioned principles in mind the Board hereby renders its rulings on the Exceptions. B Rulings on Exceptions Rejection of PEPA's Exceptions The Board hereby rejects PEPA's Exceptions 1, 2, 4, 5, 9 10, 12, and 13 insofar as the ALJ's findings are supported by competent substantial evidence. Exception 7 was withdrawn Exceptions 16-20 and 22-23 are addressed to the ALJ's Conclusions of Law, were treated as legal argument, and thus require no rulings by the Board. Exception 21 to the ALJ's proposed Conclusion of Law 89 was addressed by the Board as an exception to a proposed finding of fact insofar as COL 89 is actually a factual finding. After properly recasting COL 89 as a finding of fact, the Board determines that the finding is supported by competent substantial evidence and the Exception is rejected. The Board's rejection of Exception 5 is based upon its reading of the ALJ's findings to mean that the amount of time spent by pilots on clerical and administrative tasks, while "extensive" was not suffciently documented as to place a numerical amount (hourly, daily or monthly) upon the time spent. The reason for this separate discussion is that the Board finds that the ALJ's finding, while correct, could be somewhat misleading. The Board also sets forth its reasoning below on several of the legal issues raised by PEPA as part of those Exceptions which were rejected by the Board. PEPA asserted, as the basis for several of its Exceptions, that the Board had made certain legal conclusions in earlier rate cases that may have been contradicted by the analysis of the ALJ in the Recommended Order. PEPA argued that certain of the ALJ's findings are thus erroneous because they contradict other, earlier, conclusions of the Board. While it is true that stare decisis and a respect for precedent are recognized in administrative law (albeit to a lesser degree than in traditional judicial fore), there must be an order of the Board that has precedential value before these principles may be invoked. Here PEPA points to various "orders" of the Board which were entered in previous rate application review proceedings in support of its position. Where PEPA's argument misses the point is that none of these previous "orders" ripened to Board precedent due to the fact that no Section 120.569 and 120.57 proceedings-ever occurred in those previous rate proceedings. Thus the findings of the Board in those previous proceedings were based only upon the untested-in an evidentiary sense-material submitted to the Board by the applicants and their opposition at a Board meeting- see Section 310.151(3), Florida Statutes. Until the Board has the benefit of a record which has gone through the crucible of a evidentiary proceeding under Chapter 190 and a judicially reviewable final order is entered, the holdings of the Board in unchallenged rate orders are only persuasive and not precedential in nature. The Board further agrees with PEPA (Exception I ) that the determination as to what constitutes a "reasonable operating expense" as that term is used in Section 310.15 l (5)(b)3, Florida Statutes, is a legal conclusion which requires the Board to interpret the statute and apply it to the pilot lobbying and political expenses found by the ALJ; Schnmsher v. School Board of Palm Beach County, 694 So. 2d 856, 860-862 (Fla. 3rd DCA 1997), Macpherson v. School Board of Monroe County, 505 So. 2d 682, 683-684 (Fla. 3rd DCA 1987). To the extent that the ALJ placed the determination of what is a "reasonable operating expense" in her findings of fact her Recommended Order is erroneous. Here, however, although the ALJ erroneously found that lobbying expenses and political contributions by pilots are not "reasonable operating expenses" as a finding of fact, the Board finds that they should be so treated as a matter of law. Thus the ALJ's findings, while erroneously labeled, reached the correct result. Therefore the Exception was properly rejected. As has been long held by the Public Service Commission, lobbying expenses as well as political and charitable contributions are not to be considered as reasonable operating expenses for purposes of determining the rate base for rate setting purposes, PSC Docket # 950495-WS, Order # PSC-96-1320- FOF-WS at 150-153; PSC Docket # 960234-WS, Order # 97-0847-FOF- WS at 66-71. The rationale for such a decision is based upon the fact that, while for tax and accounting purposes such expenses are appropriately classified as ordinary business expenses and/or may be deductible from taxable income, to place the burden of paying for such discretionary expenditures upon the user of the regulated service is inappropriate. The Board accepts this reasoning. The Board's ruling when rejecting PEPA's Exception 2 is based upon an identical analysis. Once again, the Board determines for rate setting purposes, as a matter of law, that the present value of the unfunded portion of PEPA's pilot retirement program must be considered as a "book" component of pilot income if, as was found by the ALJ, its value can be reasonably quantified-see Sections 3] 0.151 (5)(b) 2 and 9, Florida Statutes. A similar position has been taken by the PSC- see Rule 25-14.012, F. A. C. Acceptance of PEPA's Exceptions The Board accepts in part PEPA's Exception 3. The Exception addresses Proposed Findings of Fact 25 and 49-52. The Board finds that the ALJ's finding in the first sentence of Finding of Fact 25 is not supported by competent substantial evidence and, to the extent that the final sentence of Finding of Fact 25 and Findings of Fact 49-52 are based upon that specific finding, they are not accepted by the Board.5 Nevertheless PEPA does not dispute that the ALJ's a projected range of increase in annual revenue growth from 5.9% and 7.3% at the port is reasonable and is supported by the facts. As a result, the Board, based upon the remaining testimony and data, accepts the ALJ's projected range for the growth of revenue at the port. The Board accepts PEPA's Exception 6 to Finding of Fact 33 to the extent that it objects to the ALJ's findings that the examination and licensing process of a deep-sea deck officer is comparable to that of a Florida licensed pilot. While the findings of the ALJ in the other areas of "comparability" are accepted by the Board, there was no evidence from any source as to the examination and licensing procedures of pilots and deep- sea officers from which the ALJ could have drawn her conclusion. The Board accepts PEPA's Exception 8 to Finding of Fact 39 to the extent that it objects to the "explicit" recognition of the similarity of "deep-sea masters and harbor pilots'' (E.S.) in 33 CFR Part 407. While the Board would agree that the provision of the CFR compares "deep-sea masters and Great Lakes pilots"(E. S.) it does not, on its face, generally address "harbor pilots." The remainder of the Finding of Fact appears to be simply a discussion of the CFR provision which7 as a provision of law, speaks for itself. The Board accepts in part PEPA's Exception 11 to Findings of Fact 56-58. The ALJ's conclusory statement in the first sentence of FOF 56 that "the job of piloting does not present any serious physical risks" is simply not supported by the record. While the Board accepts the ALJ's other findings, it is clear (and not disputed by any of the experts in navigation and seamanship) that there are serious risks in piloting in periods of heavy weather and/or at night. The remainder of the Finding is accepted by the Board. Similarly, the second sentence in FOF 57 regarding embarkation and disembarkation is flawed because of its categorical finding that such actions are not particularly dangerous. Once again, had the ALJ qualified her finding with a reference to "under normal circumstances" or "in fair weather" the statement would be unexceptional and would be supported by the record. The rest of the Finding is accepted by the Board. The Board also finds that the ALJ's conclusion in the last sentence of FOF 58 that the Board members were not engaged in a strenuous act when they boarded a vessel at Port Everglades during the initial rate hearing is not supported by any evidence adduced at the hearing. The remainder of FOF 58 is accepted by the Board. The Board accepts PEPA's Exception 14 to Findings of Fact 72-74. There was competent substantial evidence in the record to sustain the ALJ's findings. The findings are, however, struck because the ALJ has failed to give effect to a stipulation (Pre- Hearing Stipulation at p. 9 ¶20) contained in the Pre-Hearing Stipulation entered into between the parties.6 In the Pre-Hearing Stipulation the parties agreed that to certain facts contained in various tables in the Investigative Report did not require proof at the hearing. Notwithstanding this fact, the ALJ found a revised "handle" time in her Recommended Order which was different (1 hour per vessel as opposed to 1.5 hours) than that contained in the stipulation. The Board finds that, as asserted by PEPA, this was error, Schrimsher, supra at 694 So. 2d 856, 863; Coq v. Fuchs Baking Company, 507 So. 2d 138, 140 (Fla. 1st DCA 1987).7 The Board accepts in part PEPA's Exception 15. The evidentiary findings in FOF 75-76 are supported by the evidence in this proceedings and are unexceptional. Nevertheless, the provisions of Section 310.151(5)(c), Florida Statutes, specifically grant to the Board the discretion to apply the CPI or other economic indicators to a rate change request. Thus the ALJ's statement that "the CPI and employment cost index (sic) are not suitable bases of comparison for measuring pilotage rates" does appear to "read out" this discretionary statutory factor from consideration in all rate cases. The Board can not agree with this position as a matter of law The Board does find, however, that while not the sole factor in determining the rates in these proceedings that the CPI is of material value in the consideration of the rates to be established at Port Everglades. C Conclusion With the foregoing amendments, the Board accepts the Findings of Fact of the ALJ and the same hereby become the Findings of Fact of the Board. II
Findings Of Fact Petitioner Richard L. Hensch submitted to the Department of Transportation (DOT) an Airport Site Approval and License Application dated December 8, 1987, for a private seaplane base on Lake Fairview in Orange County. On the application, Mr. Hensch indicated that flight activities that would be conducted from the proposed site could be sight-seeing flights, seaplane rides and tours and occasional seaplane instruction. Mr. Hensch plans to offer these activities to the public and charge fees for them. Attached to the Application was a letter dated December 17, 1987, from Ms. Sharon Smith, the Orange County Zoning Director, in which she states: Please be advised that insofar as Orange County Zoning requirements are concerned, our department has no jurisdiction over the use of water bodies of lakes; rather such use falls under the jurisdiction of the State of Florida. This letter was written at the request of the Petitioner. While the above-referenced application was under consideration by DOT, Petitioner applied for and received from the County tentative approval for an occupational license for his proposed operation. F.A.A. airspace determination approval letter for the proposed site was dated June 1, 1989. A Notice of Intent about the "proposed Private Seaplane Base" was issued by the Department of Transportation on June 21, 1989. A public meeting in connection therewith was conducted on August 28, 1989. Bronson Monteith, working for the DOT in Orange County, conducted the public meeting and recommended site approval relying on the letter by Orange County, dated December 17, 1987, as to the zoning. The Orange County Commission at its meeting held on August 14, 1989, objected to the placement of a seaplane base at Lake Fairview based on a determination by the zoning director and the county attorney's office that the proposed seaplane base did not comply with the zoning ordinance. The Lake Fairview area property is zoned predominantly residential, R- 1A, R-1AA with some C-2, R-T and R-3 zoning within the lake. Included within the commercial-type operations along and on the lake are jet-ski, sailboat and other watercraft rentals. Airports can be located only by special exception in A1 and A-2, agricultural zoning districts, and are permitted outright in I-5, Industrial Airport Zoning District. None of the lake area or shoreline areas are zoned A-1, Z-2 or I-5. During August of 1989, the Assistant Zoning Director, Joanne McMurray, who as Acting Zoning Director, received a memorandum from Mr. Hartman, Acting Director of the County's Administrative Services Office, about the seaplane base proposal whereby she researched the zoning regulations as to airport facilities and zoning districts and permitted uses. She determined the proposed seaplane site would not comply with the Orange County zoning requirements. Ms. McMurray had received information from the county legal department that Zoning had jurisdiction to govern the use of lakes. Lacy Moore, DOT's Chief of Airport Inspection, indicated that licensing followed site approval and was subject to annual renewal. Licensing was subject to revocation or denial of renewal if zoning changes occurred that made the airport out of compliance with zoning. DOT sought clarification from the County as to whether the proposed site was in compliance with the Orange County zoning regulations. Phillip N. Brown, Orange County Administrator, sent a letter to Mr. Moore dated October 30, 1989, advising that the proposed seaplane site was not a permitted use in the County zoning district for Lake Fairview. As a result of Mr. Brown's letter, Petitioner's application was denied on November 1, 1989, based on failure to comply with local zoning requirements. An "airport" is defined by the Orange County Zoning Ordinance as "any area of land or water designated and set aside for the landing and taking off of aircraft and utilized or to be utilized in the interest of the public for such purpose." No amendments to the zoning ordinance or zoning district map have been enacted since the filing of Petitioner's Application of December 8, 1987. On or about November 11, 1988, Ms. Smith, Orange County Zoning Director, by letter, stated that there were no zoning regulations in force in connection with another unrelated application for site approval and licensure of a private seaplane base on Big Sand Lake in Orange County, Florida. Licensed private airports have been authorized by DOT to provide services to the public such as airplane rides and flight instruction and charge fees. At the formal hearing held on this matter, several residents of the Lake Fairview area expressed opposition to the proposed seaplane site and indicated their concerns as to noise and safety because of extensive activity on the lake. Some people spoke in favor of the seaplane base indicating operational safety. Members of the public, including lake residents and others who spoke at the hearing, were not under subpoena by either party.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that a Final Order be entered by the agency head denying site approval for a private seaplane base on Lake Fairview in Orange County, Florida, because it does not comply with applicable county zoning as required by law. DONE AND ENTERED this 14th day of June, 1990, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of June, 1990. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-6714 The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's Proposed Findings of Fact: Accepted in substance: Paragraphs 1,2,3,4,5,6,7,9,10 (discussed in Preliminary Statement). Rejected as argument: 8,11. Respondent's Proposed Findings of Fact: Accepted in substance: 1,2,3,4,5 COPIES FURNISHED: Vernon L. Whittier, Jr., Esquire Department of Transportation Haydon Burns Building 605 Suwannee Street, MS 58 Tallahassee, Florida 32399-0458 Brian D. Stokes, Esquire Post Office Box 538065 Orlando, Florida 32853-8065 Ben G. Watts Secretary Department of Transportation 605 Suwannee Street Tallahassee, Florida 32399-0450 Attn: Eleanor F. Turner, MS 58 Thornton J. Williams General Counsel Department of Transportation 562 Haydon Burns Building Tallahassee, Florida 32399-0450
The Issue Whether Respondent committed the violations alleged in the Administrative Complaint in the manner specified therein and, if so, what penalty should be imposed.
Findings Of Fact Respondent is now, and has been since November 2, 2006, a Department-licensed state pilot. Respondent's license (License No. SP177), which is current and active, authorizes him to pilot vessels in and out of the Port of Palm Beach (Port). The Port has 17 berths at which vessels can dock. The navigable portions of the Port consist of an inner and an outer channel, two turning basins, and three slips. To aid mariners traversing the Port, there are navigation markers (herein referred to as "Beacons"), which are sequentially numbered in ascending order from east to west with odd-numbered markers to the port side and even-numbered markers to the starboard side of inbound vessels. The Tropic Carib (Ship) is a foreign-flagged container ship owned by Tropical Shipping (Tropical). With an overall length of 525 feet and a gross registered tonnage of 10,825, it is the largest vessel regularly accommodated at the Port. It is equipped with bow and stern thrusters and a Becker rudder and is otherwise designed to handle well in harsh conditions. At 12:50 p.m. on August 3, 2011, at around high water slack, the Ship was offshore, just to the east of the entrance to the Port's outer channel, drawing 21 feet four inches forward and 23 feet aft, when Respondent boarded and took command of the vessel from the Ship's captain for the final leg of its journey. The Ship was bound for the Port's Berth 7 (Assigned Berth) to offload its cargo. The Assigned Berth is a 464-foot, north-south oriented marginal wharf that lies directly on the western end of the Port's main turning basin (Main Turning Basin), into which the inner channel flows.2/ As the Ship, with Respondent on the bridge and in command,3/ entered the outer channel heading west to the Assigned Berth following the much smaller, 31-foot pilot boat (Pilot Boat) that had carried Respondent out to the Ship, there was no evidence of any storms in the area.4/ Precipitation, in the form of a light drizzle, was first encountered as the Ship was travelling in the inner channel between Beacon 8 and Beacon 10. Respondent, at this time, also observed lightning in the distance. He saw one bolt that struck a Port transformer5/ and another bolt that struck approximately one-half mile north of the Port causing a small explosion. After seeing these lightning strikes, Respondent decided to inquire as to whether the lightning had impacted the availability of Tropical's Port-based line handlers to assist with the mooring of the Ship at the Assigned Berth. He did not have the capability of communicating directly with Tropical's Port-based personnel, so he radioed the pilot of the Pilot Boat (Boatman), who did have such capability, and asked her to make this inquiry on his behalf. Respondent did not hear back from the Boatman until the Ship had passed Beacon 10 and was approaching Beacon 12, beginning its turn to the southwest toward the Assigned Berth. The Boatman informed him that the line handlers had been ordered to take cover, as a precautionary measure, due to the lightning in the area and therefore were not at the Assigned Berth waiting for the Ship to arrive. Respondent, however, did not receive any report from the Boatman, who was in front of him on the Pilot Boat, that there were any squally conditions ahead about which Respondent needed to be concerned in navigating the Ship to its ultimate mooring position. By the time Respondent heard back from the Boatman, the intensity of the rain had increased somewhat, but weather conditions had not worsened to the extent that Respondent's ability to maneuver the Ship was impacted. Visibility was still good and the winds, which were predominantly westerly, did not present a problem. The Ship was about ten minutes away, under ordinary circumstances, from its intended destination to the southwest alongside the Assigned Berth. Respondent had the Ship continue on course, in a southwesterly direction, toward the Assigned Berth, a decision that was reasonable under the circumstances that existed at the time. That line handlers might still be unavailable when he arrived did not make heading toward the Assigned Berth a foreseeably more risky or imprudent choice than any other option that Respondent may have had at the time. Respondent had no reason to believe that, if there no line handlers at the Assigned Berth to catch and secure the Ship's mooring lines, the Ship, equipped as it was, would not be able to hover in the water alongside the Assigned Berth and wait for the line handlers to appear. Moreover, even if there were stronger than anticipated westerly winds and the Ship, for some reason, were unable to hold its position, it would be blown, not toward, but away from the Assigned Berth, in the direction of the center of the Main Basin. A few minutes later, as the Ship was approaching the Assigned Berth, it ran into a sudden and unexpected rain squall, with west-southwesterly wind gusts over 30 knots and blinding rains which reduced visibility to zero. Radio communications from the boatswain at the bow of the Ship, who was providing Respondent with needed information concerning the Ship's position in relation to the Assigned Berth, became garbled and unreliable. Reasonably fearing an allision if the Ship continued its forward motion under these conditions, Respondent prudently ordered that the port anchor be dropped, with 1.5 shots (135 feet) on deck,6/ and that the Ship's engines be put astern, orders that were followed. After determining, from the prop wash that he saw on the starboard side of the vessel, that the Ship was no longer closing on the Assigned Berth, Respondent ordered slow ahead, but the Ship's bow thrusters were overcome by the wind, causing the bow of the Ship to swing and the anchor to drag. As a result, the Ship's starboard stern corner touched the sandy bottom approximately 30 feet west of Beacon 12 in the northern part of the Main Turning Basin, where recorded water depths are from 13 to 15 feet and, at high water slack, are generally three to four feet higher. The grounding produced minor, cosmetic damage to the Ship's rudder. No other damage to the Ship was sustained. The squally conditions lasted a mere two minutes. When the weather cleared, Respondent ordered engines ahead. The Ship proceeded to its mooring position alongside the Assigned Berth, where it was serviced by the Tropical line handlers, who had emerged from the shelter they had sought from the lightning. Thereafter, at the recommendation of the Ship's captain, Tropical had divers inspect the underbody of the Ship. The inspection revealed the damage to the rudder caused by the grounding of the Ship during the rain squall (Grounding Incident).7/ Respondent was notified by Tropical of the outcome of the divers' inspection at around 3:30 p.m. on August 3, 2011, and, within a matter of minutes of receiving such notification, he telephonically reported the Grounding Incident to the United States Coast Guard (USCG) and to the Department's Pilot Consultant/Investigator, Lieutenant Commander Galen Dunton, USCG (Ret.).8/ The following day, Respondent provided Commander Dunton with a written report of the incident, as required by section 310.111 and Florida Administrative Code Rule 61G14-15.002. On August 30, 2011, Commander Dunton issued his Investigative Report concerning the Grounding Incident. It contained the following "Conclusions" and "Recommendation": Conclusions: It is concluded that Captain Hansen was operating under the auspices of his state license and therefore subject to disciplinary action by the State of Florida. The proximate cause [of the grounding of the Ship on August 3, 2011] is unknown. The most probable cause was the failure of the pilot to seek a better position within the [Main] Turning Basin to anchor instead of trying to come alongside the intended berth. The pilot made an error in judgment in deciding to approach the berth without any line handlers to assist versus seeking a better position within the [Main] Turning Basin to anchor and ride the storm out. Had the pilot proceeded further to the SW in the [Main] Turning Basin and then anchored,[9] he may not have grounded or at least bought more time to ride out the storm. The anchor began to drag once the bow started to swing with the wind, and as a result the stern quickly touched bottom near Beacon #12. There is evidence of a violation of FS 310.101(1)(a) on the part of the pilot, in that he failed to make allowances for the wind by anchoring off the berth instead of seeking a better position within the [Main] Turning Basin. There is evidence of a violation of FS 310.101(1)(k) on the part of the pilot in that he failed to (1) seek a better position to anchor within the [Main] [T]urning [B]asin, (2) [a]ttempted to approach the berth knowing that there were no line handlers available, practices not in keeping with the acceptable standards of safe piloting. Recommendation: It is recommended that 1. This case be forwarded to the Probable Cause Panel and that probable cause be found to exist for the following violations: FS 310.101(1)(a) on the part of the pilot in that he failed to make allowances for the wind by anchoring off the berth instead of seeking a better position within the [Main] Turning Basin. FS 310.101(1)(k) on the part of the pilot in that he failed to (1) seek a better position to anchor within the [Main] [T]urning [B]asin, (2) [a]ttempted to approach the berth knowing that there were no line handlers available, practices not in keeping with the acceptable standards of safe piloting.[10] The probable cause finding Commander Dunton recommended was made, and an Administrative Complaint, based on this finding, was thereafter filed. Respondent subsequently requested a "formal hearing" on the allegations against him. This administrative proceeding ensued, with the final hearing being held on February 27, 2012. Ultimate Finding The evidence presented at the final hearing did not clearly and convincingly establish that, in having the Ship approach the Assigned Berth and anchor where it did during its inbound journey through the Port on August 3, 2011, Respondent failed to exercise the care a reasonable and prudent Department- licensed pilot would have exercised under the same or similar circumstances or otherwise violated some professional standard of care or safety he was obligated to follow as a Department- licensed pilot.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Pilot Commissioners dismiss the Administrative Complaint against Respondent in its entirety. S DONE AND ENTERED this 29th day of March, 2012, in Tallahassee, Leon County, Florida. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of March, 2012.
Findings Of Fact The record reflects that notice was given to Respondent at its business address. The hearing was recessed for over 15 minutes to give Respondent added time to appear. Respondent has not contacted the Division as of the date of this Order. Yellow Whirleybird Helistop was issued an airport license renewal by the Department of Transportation, on March 11, 1987, for a private helistop located at latitude 30 degrees 11' 24" and longitude 85 degrees 49' 52" in Bay County, Panama City Beach, Florida. The service provided by this helistop is helicopter rides and it is located on property owned by Bay County, Florida. The City of Panama City Beach enacted a land use ordinance, No. 316, effective June 11, 1987, prohibiting the operation of sightseeing rotocraft "within the area bounded on the north by the southerly right-of-way U.S. Highway 98, alternate (Front Beach Road) and south Thomas Drive, and east and west by the easterly and westerly boundaries of the city, ---". The heliport in question is located within the area described above. The Office of the County Attorneys, Bay County, by letter dated July 22, 1987, notified Yellow Whirleybird Heli- copter, Inc. that the concession agreement it had with the county was terminated and gave Yellow Whirleybird 30 days to vacate the premises. The Department of Transportation, by letter dated June 25, 1987, notified Yellow Whirleybird Helistop that its airport license was being revoked because of lack of proper zoning at the site, due to Panama City Beach Ordinance No. 316. In addition, suitable local zoning and ownership or lease of the airport site are requirements of site approval and license by the Department.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the airport license located at latitude 30 degrees 11' 24" and longitude 85 degrees 49' 52" in Panama City Beach, Florida, issued to Whirleybird Helistop, Respondent, for a private helistop be revoked because it does not currently meet the zoning and lease requirements of the statute and rule. DONE AND ORDERED this 22nd day of December, 1987, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of December, 1987. COPIES FURNISHED: Vernon L. Whittier, Jr., Esquire Department of Transportation Haydon-Burns Building 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0450 Mr. Ron Brown Whirleybird Helistop 430 Lyndell Panama City Beach, Florida 32407 Douglas J. Sale, Esquire City Attorney 110 South Arnold Road Panama City Beach, Florida 32407 Kay N. Henderson, P.E., Secretary Department of Transportation Haydon-Burns Building 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0458
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: At all times pertinent to this proceeding respondent was licensed by the petitioner as a pilot. He began sailing as a seaman in 1945, received a pilot's license in Texas in 1954, was a captain of tugs from 1954 to 1969 and has been a member of the Tampa Bay Pilots Association from 1969 to the present time. Respondent has made close to sixty (60) trips per month in and out of Tampa Bay since 1969. On August 6, 1981, at approximately 1500 hours, Captain Baggett was aboard the M/V IFNI, a medium-sized oceangoing vessel, and was proceeding outbound in Tampa Bay. The tug DIXIE PROGRESS and Barge B-103 were proceeding inbound. The DIXIE PROGRESS, which is 115 feet long and 35 feet wide, was pushing Barge B-103, which is 430 feet long and 80 feet wide. The Barge was carrying 147,000 barrels of gasoline at the time. As the IFNI was in "G" Cut, Captain Baggett noticed the tug and barge proceeding inbound in "D" Cut, approximately three to five miles from him. He radioed the DIXIE PROGRESS in order to make arrangements for the meeting and passage of the two vessels. Respondent inquired if there was a pilot aboard the tug. In arranging meeting situations, it is customary for one pilot to communicate directly with the pilot on the other vessel. Donald Hyde, the first mate aboard the DIXIE PROGRESS responded to Captain Baggett's call and informed him that there was no pilot aboard the tug. Respondent informed Hyde that he would meet them in Cut "E" on one whistle. Walter H. Williams, the Captain aboard the DIXIE PROGRESS, was standing near the radio when respondent called from the IFNI. At the time, Captain Williams felt that respondent would try to break up the tug and barge on passing because the tug did not have a pilot on board. For that reason, he relieved his mate and took control of the tug. The DIXIE PROGRESS was the last vessel in Tampa Bay to start using pilots, and did not start taking pilots until September of 1981. Respondent Baggett's son wads employed by Dixie Carriers, Inc., the owner of the DIXIE PROGRESS. At the time of the radio communication with Captain Baggett, the DIXIE PROGRESS was travelling at a speed of about 5.5 knots. Its speed was reduced to ensure that the meeting would occur in Cut "E". As the IFNI passed through "F" Cut, two dredged were working in the vicinity. Captain Baggett decreased the speed of the IFNI as he approached each dredge, and stopped the engine after passing each dredge. After passing the second dredge in "F" Cut and while making the turn into "E" Cut, Captain Baggett ordered the engines full ahead. Captain Williams and first mate Hyde noticed a puff of black smoke emit from the IFNI after it passed the last dredge in "F" Cut and turned into "E" Cut. At this point, as the IFNI began to gain speed, the two vessels were approximately eight-tenths to one mile apart. Some seven to eight minutes later, the IFNI and the tug and barge passed each other in "E" Cut at a distance of approximately 75 feet. The channel in "E" Cut is about 400 feet wide. After the IFNI passed the tug and barge, waves of approximately five or six feet in height caused the barge to dive under the water and, as it came back up, a push wire two inches in diameter broke. After passing the DIXIE PROGRESS, respondent looked astern and noticed the tug and barge at odd angles to each other. He radioed the tug and inquired as to what had happened. When informed by Captain Williams that a push wire had broken, respondent replied that he was sorry and that he had not realized that the IFNI had caused such a large wake. At no time during the incident in question did DIXIE PROGRESS Captain Williams feel that his vessel was in danger or that there was going to be a loss of property or life. He considered this to be a minor incident. It is not unusual for another vessel to pass the DIXIE PROGRESS and its barge at a speed of full ahead. The DIXIE PROGRESS and Barge B-103 frequently "push out" of the Mississippi River in six foot seas using the same "in the notch" configuration as was used during the incident in question. It is not unusual for the push wires which connect a tug and barge together to snap. The Captain and first mate aboard the DIXIE PROGRESS estimated that the IFNI was travelling at a speed of approximately 15 knots as it passed the tug and barge. Captain Baggett believed that he was travelling at a speed of about 7.5 knots as he passed the DIXIE PROGRESS. To travel a distance of approximately eight-tenths of a mile in seven or eight minutes would result in an average speed of about six to seven knots. It could take the vessel IFNI anywhere from six to twelve minutes to reach full speed from a stopped engine, depending upon the currents and other factors. The speed which a reasonable and prudent pilot should maintain when approaching and passing a tug and barge is dependent upon the circumstances, including the weather conditions and currents, the swell or wake the vessel is pulling, the size and configuration of the channel, the amount of water outside the channel and the configuration and weight of the vessels. While a passage within 200 feet with the IFNI travelling at a speed of 15 knots would not be something that a reasonable and prudent pilot would do, it cannot be determined without knowledge of the surrounding circumstances whether a passage at 8 knots would constitute incompetence, negligence or misconduct. By a "Final Order" signed by the Chairman of the Board of Pilot Commissioners and filed on July 28, 1981, it was ordered that a proposed Stipulation in Case No. 0007227 was approved, adopted and incorporated by reference and that Thomas A. Baggett "is reprimanded and is placed on probation for a period of one (1) year. . . ." The Stipulation reveals that that case was the subject of a proposed complaint in a case factually unrelated to the present case and that part of the consideration for the Stipulation was that the proposed administrative complaint in that case be held in abeyance. Among the terms of the Stipulation were that "The Respondent shall be placed on probation for a period of one year from the date of the final order of the Board accepting this sti- pulation. The order of Probation will be deemed to have been violated, subject to proving the allegations, if the Respondent is found by the Probable Cause Panel of the Board to have engaged in any conduct which constitutes negligence, incompetence or mis- conduct as presently embodied within section 310.101, Florida Statutes. In such case both a new proposed Administrative Complaint may be filed and the instant proposed Admini- strative Complaint may be instituted. In this respect, the Respondent specifically waives any procedural objections to insti- tuting the instant proposed Administrative Complaint." In October of 1981, by a vote of 2-2, the Board of Pilot Commissioners refused to modify the Final Order of July 28, 1981, so as to delete the word "probation" from its terms.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the Administrative Complaint filed against the respondent on January 18, 1982, be DISMISSED. Respectfully submitted and entered this 5th day August, 1982, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 Filed with the Clerk of the Division of Administrative Hearings this 6th day of August, 1982. COPIES FURNISHED: C. Steven Yerrid Holland and Knight Post Office Box 1288 Tampa, Florida 33601 W. B. Ewers, Esquire Special Trial Counsel 2170 SE 17th Street Suite 204 Ft. Lauderdale, Florida 33316 Jane Raker, Executive Director Board of Pilot Commissioners 130 North Monroe Street Tallahassee, Florida 32301
The Issue Whether the demotion of the Petitioner by the Respondent from an Airplane Pilot I to an Engineering Technician II position was supported by competent substantial evidence and complied with the Florida Statutes and rules and regulations.
Findings Of Fact Petitioner John Clarkson was demoted by Respondent Department of Agriculture, Division of Forestry, after Petitioner failed to receive a satisfactory rating after having received ratings of "conditional" for a period of six months. The ratings were discussed and signed by the Petitioner. By certified letter, return receipt requested, dated April 15, 1976, the Petitioner was formally advised that the Commissioner of the Florida Department of Agriculture had approved his Division Director's recommendation that Respondent be demoted. Petitioner filed his appeal of the Respondent's action on May 6, 1976. On May 18, 1976, the Petitioner was notified by the Career Service Commission that his appeal had been accepted. Petitioner twice requested a continuation of the requested administrative hearing and subsequently filed a Motion for Default and Directed Verdict or Judgment on the pleadings. A response was filed and thereafter, the Motion was withdrawn by Petitioner. Petitioner is a 30-year State employee and has served more than twenty (20) years with the Department of Agriculture. He currently is employed by Respondent as an Engineering Technician II. The Petitioner admits that the demotion of Aircraft Pilot I to Engineering Technician II was procedurally correct and the essence of his argument against the demotion is that the Respondent concentrated on finding "little picky things" about the employee and used these to fortress his demotion. Petitioner contends: That matters in the Petitioner's personal record before 1975 should not be considered. That the major allegations of Respondent were related to his non- flying duties and that the demotion concerned his duties as an Airplane Pilot I. That the charges of tardiness, wasting time, inability to perform non-flying duties were, even if supported by competent and substantial evidence, immaterial to the issue. That Petitioner's actions in relation to a ferrying plane trip to California in 1975 did not endanger the life of colleagues or aircraft; that Petitioner was justified in his takeoff from an airport on a hot day and on his leaving the group on its return to Tallahassee on the said trip. That inaccuracies in reporting; fires, which was a major part of his duties, were not confined to Petitioner and that he considered it better to be "safe than sorry" than save a little money when reporting fires, and that further, he "called them as he saw them." That the supervisors and superiors failed to meet with Petitioner as required and were more intent on building up Petitioner's deficiencies than in trying to help him. Respondent contends: That Petitioner failed to follow instructions of his supervisors. Petitioner failed to adequately perform duties as fire control spotter pilot, which resulted in crews being dispatched unnecessarily. That Petitioner's ratings, letters of reprimand, memorandums, throughout his career showed he failed to follow instructions in performing his job adequately. The Hearing Officer further finds: Petitioner presented evidence and testimony relative to his employment prior to 1975. Contrary to the contentions of the Petitioner, the position of Airplane Pilot I includes not only flying duties and responsibilities of the fire patrol, it includes much paper work such as drawing and tracing and revising plans, revising maps, making maps, handling orders, disseminating fire weather forecasts to field offices, and the coordination of related incoming reports. Work with others is an integral part of the employment. An examination of the voluminous records submitted and entered into evidence at the hearing show that the Petitioner has had an employment history of conflict with his employer for a number of years and the same type of criticism continued from year to year up to the date of Petitioner's demotion. The Respondent presented evidence to show that Petitioner had been sent memorandums calling his attention to numerous complaints about the quality of his work and relationship with other people including many other employees of Respondent. Evidence was submitted to show Petitioner's repeated failure to follow instructions of his superiors. Evidence was submitted showing that during the years of Petitioner's employment there were some "conditional" ratings; some ratings below satisfactory; one previous demotion; memorandums citing Petitioner for failure to perform duties adequately; complaints from passengers, which ultimately resulted in the revision of Petitioner's duties so that he did not carry passengers. Taken as a whole, the various memorandums concerning Petitioner show that contrary to the contention of Petitioner, the supervisors and superiors endeavored to work with Petitioner and were consistently trying to fit him into the work organization so that he could work within his capacities. Other employees were moved within the Division to fill in where the Petitioner was deficient. The charges of tardiness, wasting time, poor work product, go directly to the employment of the Petitioner and no competent evidence was submitted to show that these charges were inaccurate. It was not conclusively shown that Petitioner actually endangered the lives of colleagues or aircraft on a September, 1975 flight to California from Florida during his ferrying duties, however Petitioner failed to follow prior instructions and caused confusion among the other members of the group on that trip. On one occasion he left the group without permission of the designated leader and the group was forced to change its plans and land at a different location. Petitioner failed to follow instructions, left the group and teak off and had to be called back. On the return trip to Tallahassee he left the group and returned to Tallahassee before the others contrary to flight plans that the group remain together. A hot day and eagerness to return home from a trip is insufficient reason to disobey instructions of supervisors. The fire logs show that Petitioner made relatively more errors in reporting fires than the other reporters and evidence was shown that errors wasted money and caused loss of needed services elsewhere. The report of fires was a central part of Petitioner's employment duties. Petitioner is an experienced and evidentally, good pilot, but the evidence shows he fails to follow closely the instructions of his supervisors in relation to his duties and is deficient in his non-flying work. He fails to work well with other employees.
Recommendation Affirm the action of the Agency in demoting Petitioner. DONE and ENTERED this 13th day of December, 1978, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Walter Kelly, Esquire Mrs. Dorothy Roberts Department of Legal Affairs Appeals Coordinator The Capitol Building Department of Administration Tallahassee, Florida 32304 Room 530 Carlton Building Tallahassee, Florida 32304 Clinton H. Coulter, Jr., Esquire DUVALL & COULTER Mr. Jerry Gullo 118 S. Gadsden Street Department of Agriculture Tallahassee, Florida 32301 Mayo Building Tallahassee, Florida 32304
Findings Of Fact Tampa Tri-County Pilots Association (TRICO) was founded January 1, 1984, by Captain Rabren to provide piloting and shifting services in Tampa Bay in competition with the Tampa Bay Pilots Association. Captains Murphy, Cropper, and Farrell are members of TRICO and hold U. S. Coast Guard issued unlimited pilots' licenses for Tampa which authorize them to pilot vessels enrolled in the coastwise trade which enter or leave Tampa Bay. Captain Rabren holds a state pilot's license for Tampa Bay in addition to his federal unlimited pilot's license for Tampa Bay. In 1984 the Chairman of the Board of Pilot Commissioners received a letter from Captain Valenti, U. S. Coast Guard, the captain of the Port of Tampa, calling attention to the Board that certain pilots within Tampa Bay were asserting that neither the State of Florida nor the Coast Guard had jurisdiction over shifting activities of foreign flag vessels. Vessels engaged in the coastwise trade (which generally must be built in the United States and carry the U. S. flag) are piloted, while in waters requiring a pilot, by a U. S. Coast Guard licensed pilot for those waters; and a foreign flag vessel on similar waters is piloted by a state pilot licensed for those waters. Since state licensed pilots also provide piloting services for U. S. flag vessels, all of the state licensed pilots also hold federal pilot licenses. The only pilots that could claim neither the state nor federal government had jurisdiction over their activities were those pilots holding only federal licenses who were piloting foreign flag vessels while being shifted within Tampa Bay. Within Tampa Bay there are four separate and distinct ports as well as several anchorages to which vessels are taken from these ports and from which vessels are taken to these ports. Additionally, vessels are shifted from port to port within Tampa Bay. The distance vessels are shifted within Tampa Bay varies from a few feet alongside the dock to more than 20 miles a vessel would travel from a berth in upper Tampa Bay to the Port of St. Petersburg. Having a tug alongside a ship for a short move of less than one mile is prudent and, perhaps, necessary. However, for a longer trip a tug alongside is unnecessary, dangerous (to the tug) and an unnecessary and unwarranted expense to the ship owner. Prior to the adoption of Rule 21SS-8.10, Florida Administrative Code, members of TRICO performed piloting services on both United States and foreign flag vessels shifting moorings within Tampa Bay. Since its formation TRICO has been in competition with the Tampa Bay Pilots Association to obtain exclusive contracts with shipping companies to perform piloting services on the company vessels while the vessels are shifted to different moorings in Tampa Bay. Upon Rule 21SS-8.10 becoming effective, TRICO members, not holding a state pilot's License, are precluded from shifting foreign flag vessels between moorings in Tampa Bay except when in the docking mode.
Findings Of Fact Petitioner, Ferdinand C. Irrgang, was employed by the Department of Agriculture and Consumer Services, Division of Forestry on May 9, 1988 as a single engine airplane pilot. At the time of hire, Petitioner's pay grade was 17 in the Florida career service system. He earned the base pay for grade 17 plus 10 percent, or about $19,000 per annum. In 1989, at the request of the Department of General Services (DGS) which also employs pilots to fly State owned aircraft, the Department of Administration conducted a market survey to determine whether the State's classes of airplane pilots were paid competitively, especially the multi-engine and jet aircraft pilots. The survey indicated that labor market conditions reflected that minimum base pay should be raised. In its survey, the Department of Administration (DOA) did not evaluate whether the duties of the Division of Forestry pilots had changed, or whether they were certified firefighters. Although personnel within the Department of Agriculture and Consumer Services (DACS) believed that pilots' duties and responsibilities had changed over time, requests for new or revised job classifications for single engine airplane pilots within the agency were denied in 1989 and the Department of Agriculture did not join in the request for a survey submitted by DGS to DOA. However, effective July 3, 1989, the Department of Administration (now the Department of Management Services) approved a job title revision and an upward pay grade adjustment for all State pilots, including those employed at DGS, DACS and other agencies. As a result, the class of single engine airplane pilots, of which Respondent was a member, was retitled as "single engine reciprocal aircraft pilots" and a pay grade adjustment from pay grade 17 to pay grade 18 was approved. Respondent, and all other pilots in his class, did not receive pay raises as a result of the class pay range adjustment, unless their present salary was below the new minimum base pay. In such cases they received pay adjustments up to the new minimum. Respondent's pay grade on July 3, 1989 was below the new minimum pay for grade 18 and the adjustment in his pay resulted in an increase of about $15.00 per pay period. The Department of Agriculture and Consumer Services sought title and position pay range adjustments for forestry center managers in May 1989. The request was made when DACS determined that these managers positions had evolved over time and became more complex. The Department determined that the position developed a larger and more dispersed staff with additional responsibilities. DACS sought to have the title changed to forestry district manager, as well as a pay range adjustment. The title and pay grade adjustment request for district managers was denied while Adis Vila was Secretary of the Department of Administration. The official denial came on July 13, 1989, after Andy McMullian III became Acting Secretary. On July 19, 1989, a request was made to the Acting Secretary to change the policy for pay grade adjustments such that all employees would receive "difference pay" as set forth in Rule 22A-2.006(3) which was approved. A second request for a job title change and pay grade adjustment for forestry district managers was sent to the DOA. This request was granted on August 17, 1989. Under the State system, a promotion, by definition, results in placement into a position in a higher pay range. However, a promotion, which also indicates more complex or expanded duties or responsibilities, does not automatically result in a pay increase. The positions of aircraft pilots and Division of Forestry district managers are distinct in a number of ways beyond the responsibilities of the positions. State airplane pilots are a universal class, hired by a number of agencies; forestry district managers are a unique class used by only the Department of Agriculture. Pilots are covered by the Fair Labor Standards Act and district managers are not, pilots being eligible for overtime pay while managers are not. Single engine reciprocal airplane pilots with the Division of Forestry may have more dangerous duties than other single engine pilots, such as low- level flying, fire control, and off-airport landings. Unlike other single engine reciprocal airplane pilots, they are certified firefighters; however, they are in the same class as all other single engine reciprocal airplane pilots for the State, with one exception for certified law enforcement pilots. Under the various Secretaries of the Department of Administration, there have been different philosophies of compensation, and different applications of present Rule 60K-2.006. Adis Vila (Vila) was Secretary to the Department of Administration from April 24, 1987 until June 30, 1989; Andy McMullian, III (McMullian) was Secretary of the Department from July 1, 1989 to November 1, 1989; and Aletta Shutes (Shutes) was Secretary of the Department from November 1, 1989 to January 31, 1991. Vila's philosophy was to give pay raises as pay ranges were adjusted when there was a significant change in the responsibilities of the position. Her philosophy was performance based. She sought to further the goal of the Martinez administration of conserving public tax dollars. Vila's application of the rule was to pay employees who received below the minimum of a new pay range up to the new minimum, insuring that employees were paid within the pay range without further adjustments. In that manner, Irrgang's salary was adjusted. Under Vila's administration, over 700 employees in over twenty classes did not receive pay adjustments when pay ranges were adjusted upward unless they received below the new minimum. Under interim Acting Secretary McMullian, an alternative application of the rules was applied. When pay ranges were adjusted upward, employees' salaries were adjusted upward in an amount equal to the difference between the minimums of the old and new pay ranges. In that manner, district managers' pay was adjusted, which was the usual application of the rule applied under the Graham and Askew administrations. McMullian's application of the rule was based upon the fact that employees had not received pay raises for a year and a half, and employees' salaries were stagnant. The Department's interpretation of Rule 60K-2.006 is that it authorizes pay increases when pay ranges are adjusted upward, but the rule does not mandate pay increases. The Department interprets the rule so that it permits managerial discretion by the various Secretaries of the Department in its application. Factors related to the application of the rule, and the Department's interpretation that the rule authorizes, but does not mandate pay increases, include whether funding is available, whether there are significant changes in responsibilities for employees in a class, whether there are labor market changes, or whether there are recruitment and retention problems. The turnover rate for single engine airplane pilots since 1989 has been approximately four percent. The State turnover rate for all employees has been over eight percent which indicates that the State has not experienced a recruitment and retention problem with single engine reciprocal airplane pilots. The Department's interpretation and application of Rule 60K-2.006 does not conflict with the collective bargaining agreement between the State and AFSCME, which controls the terms and conditions of Irrgang's employment. The Department's application of the rule, which has resulted in some classes of employees receiving pay increases when pay ranges have been adjusted, and other classes of employees not receiving pay increases, is not grievable under the contract that covers the terms of Irrgang's employment.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Petitioner's request for retroactive pay be denied. The collateral issue of the Petitioner's recalculation of potential future retirement benefits is, therefore, moot. DONE and ENTERED this 15th day of June, 1993, in Tallahassee, Florida. DANIEL M. KILBRIDE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of June, 1993. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on proposed findings of fact submitted by the parties. Proposed findings of fact submitted by Petitioner. Accepted in substance: paragraphs 1, 2, 3, 4, 5, 6, 7 (in part), 8, 9, 11, 12, 13, 14, 15, 16, 17, 18, 20, 26 (in part), 31. Rejected as argument: paragraphs 7 (in part), 26 (in part), 27, 28, 29. Rejected as subsumed, irrelevant or immaterial: paragraphs 10, 19, 21, 22, 23, 24, 25, 29, 32, 33, 34. Proposed findings of fact submitted by Respondent. Accepted in substance: paragraphs 1, 2, 3, 4, 5, 6, 7 (in part), 8, 9, 10, 11, 12, 13, 14 (in part), 16, 17, 18, 19, 20, 21, 22, 23, 24, 25. Rejected as argument or comment on the evidence: paragraphs 7 (in part), 14 (in part). Rejected as subsumed, irrelevant or immaterial: paragraph 15. COPIES FURNISHED: William H. Lindner, Secretary Department of Management Services Knight Building, Suite 307 Koger Executive Center 2737 Centerview Drive Tallahassee, FL 32399-0950 Susan B. Kirkland, Esquire General Counsel Department of Management Services Knight Building, Suite 309 Koger Executive Center 2737 Centerview Drive Tallahassee, FL 32399-0950 Robert B. Button, Esquire Department of Management Services Knight Building, Suite 308 Koger Executive Center 2737 Centerview Drive Tallahassee, FL 32399-0950 Dana H. Hankins, Esquire 1115 E. Concord Street Orlando, FL 32803
