The Issue Whether the subject assessment of taxes, interest and penalties should be upheld.
Findings Of Fact By "Notice of Assessment and Jeopardy Findings" dated July 31, 1989, Respondent assessed Petitioner with taxes, interest, and penalties in the total amount, as of the date of the notice, of $161,724.75. This assessment was made pursuant to Section 212.0505, Florida Statutes, following an incident on February 4, 1988. The parties stipulated that this assessment was properly issued, that notice thereof was properly given to Gary Wayne Chitty, and that the mathematical calculations contained therein are accurate and correct. The following findings are made as to Petitioner, Gary Wayne Chitty, pursuant to the stipulation of the parties. His full name is Gary Wayne Chitty. His social security number is 261-17-0682. His date of birth is April 27, 1953. His present residence is 6840 S.W. 12th Street, Miami, Florida. He has never declared himself a citizen of any country other than the United States. On, or before, February 1988, he knew Rafael Silvio Pena. On February 4, 1988, he held a valid multi-engine pilot's license which was issued to him by the Federal Aviation Authority. On, or about February 4, 1988, he and Rafael Silvio Pena boarded and flew an aircraft designated N6726L. He and Mr. Pena planned to fly a multi-engine aircraft (N6726L) from a point outside of the United States and to enter the airspace of the United States near Cedar Key, Florida and travel within the airspace of Florida to Marathon, Florida. He filed, or caused to be filed, a flight plan for said trip with Mr. Pena in advance of the trip. He loaded or caused to be loaded marijuana on the aircraft (N6726L) prior to its departure. On, or about, February 4, 1988, he and Mr. Pena flew said airplane (N6726L) from a point in the vicinity of Cedar Key, Florida, to Marathon, Florida. During said flight, the aircraft made no other landings. During the entire flight on February 4, 1988, he and Mr. Pena were the sole occupants of said aircraft. During said flight he was the pilot of N6726L. He flew this aircraft on February 4, 1988 with the full knowledge and/or consent of the airplane's owners and/or official lessees. When he took off from the aircraft's departure point on February 4, 1988, it was loaded with a large quantity of marijuana. When he took control of said aircraft and took off, he knew it was loaded with said marijuana. He discussed his plans to transport the marijuana with Mr. Pena. When he took control of the aircraft, the aircraft (N6726L) contained nineteen (19) bales of marijuana which weighted six hundred ninety-nine (699) pounds. He and Mr. Pena flew this airplane along a course towards Marathon, Florida in a manner which took it over or near Lake Okeechobee, Florida. At a point along his route, he and/or Mr. Pena caused the bales of marijuana to be jettisoned from the aircraft. The marijuana was jettisoned as part of a conscious plan or design. The marijuana that was jettisoned from N6726L during its flight on February 4, 1988, weighed a total of 699 pounds. He did not know that during this flight of February 4, 1988, his aircraft was being observed by law enforcement officers. As part of his original plan, he piloted this aircraft to Marathon, Florida, where he landed. AA. During this entire flight the aircraft performed adequately and experienced no mech- anical difficulties. BB. Upon his landing at Marathon, he and Mr. Pena were arrested. CC. He knew the estimated retail value of the marijuana on board his aircraft (N6726L) was $600 per pound.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered which upholds the subject Jeopardy Findings and Assessment. RECOMMENDED in Tallahassee, Leon County, Florida, this 28th day of January, 1991. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of January, 1991. COPIES FURNISHED: James McAuley, Esquire Mark Aliff, Esquire Assistant Attorneys General Department of Revenue Tax Section, Capitol Building Tallahassee, Florida 32399-1050 Mel Black, Esquire 2937 S.W. 27th Avenue Miami, Florida 33133 J. Thomas Herndon Executive Director Department of Revenue 104 Carlton Building Tallahasseee, Florida 32399-0100 William D. Moore General Counsel 203 Carlton Building Tallahassee, Florida 32399-0100
The Issue Whether Petitioner should be granted a license for a private airport some four miles east of Dundee, Florida.
Findings Of Fact Frank J. Drewniany, Petitioner, is the owner of 153 acres of undeveloped land some 4 miles east of Dundee, Florida, which he proposes to develop and on which he proposes to operate a private airport. On October 28, 1988, Petitioner applied for a site permit and license for a private airport (Exhibit 1). The application provided the information required by statute and the rules of the Department of Transportation (DOT), Respondent. This information included evidence of Applicant's right to so use the property, a list of airports within 15 miles of the proposed facility, mailing addresses of all landowners within 1000 feet of the proposed facility, FAA airspace approval and the prescribed fees. The proposed site was inspected by John Roeller, the Florida DOT airport program administrator in the district office having jurisdiction over the area. This inspection revealed the site to be adequate for the proposed airport; the airport, if constructed, would conform to minimum standards of safety; the local zoning was appropriate for the airport; the Applicant had provided a list of all airports and municipalities within 15 miles of the proposed airport and all property owners within 1000 feet of the proposed airport; and that safe air traffic patterns can be worked out for the proposed airport. Following this inspection Roeller, on October 31, 1988, executed the prescribed certification that the site is feasible for the proposed use and can meet the requirements set forth in Chapter 14-60, Florida Administrative Code (Exhibit 5). By letter dated August 22, 1988, the Federal Aviation Administration (Exhibit 6) determined the proposed airport would not adversely affect the safe and efficient use of airspace by aircraft if operations are conducted in VFR weather conditions and the landing area is limited to private use. By Notice of Intent to issue site approval dated March 22, 1989 (Exhibit 7), the DOT published the intent to issue the requested permit and advised protestors would be allowed to air their views at a public meeting on May 10, 1989. Following this public meeting, Site Approval Order 89-13 (Exhibit 8) was issued, a hearing was requested to contest the issuance of the requested license and these proceedings followed. Intervenors presented evidence of a general concern for the safety of residents living in the vicinity of the airport and hearsay evidence regarding crashes of private planes in various areas of the United States. No evidence was presented by Intervenors to rebut the evidence that the Applicant had complied with the requirements for site approval and licensure contained in Chapter 14-60, Florida Administrative Code.
Recommendation It is recommended that a Final Order be entered granting Frank J. Drewniany a license to operate a private airport at Latitude 28 -00'-40" North and Longitude 81 -31'40" West, subject to restrictions established by the FAA and DOT to insure safe air patterns are established for the proposed private airport. ENTERED this 27th day of November, 1989, in Tallahassee, Florida. K. N. AYERS 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 27th day of November, 1989. COPIES FURNISHED: Roger W. Sims, Esquire Post Office Box 1526 Orlando, Florida 32802 Thomas J. Patka, Esquire Post Office Box 1288 Tampa, Florida 33601 Vernon L. Whittier, Jr., Esquire 605 Suwannee Street Tallahassee, Florida 32399-0458 Thomas J. Hirt 1 Cypress Run Sun Air Country Club Haines City, Florida 33844 Ben G. Watts Interim Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450 Thomas H. Bateman, III General Counsel 562 Haydon Burns Building Tallahassee, Florida 32399-0450
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 Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: As of December 18, 1984, the number of individuals licensed or certificated by the Board of Pilot Commissioners for Tampa Bay was twenty (20) state pilots and four (4) deputy pilots. This number has remained constant since 1981. The petitioner Tampa Tri-County Pilots Association (TRICO) was formed and began operations on January 1, 1984, to provide pilotage services on Tampa Bay. TRICO's membership includes only one state licensed pilot and no certificated deputy pilots. As of December 18, 1984, the membership of the intervenor Tampa Bay Pilots Association included nineteen (19)licensed state pilots and four (4) certificated deputy pilots. While a Tampa shipping agent expressed his feeling of a need for additional pilots on Tampa Bay, no factual basis for this opinion was demonstrated. Indeed, the testimony of this witness indicates that the number of vessels operated by hisagency requiring the use of state pilots was virtually the same in 1984 as it was in 1981 or 1982. This witness did not have knowledge as to the number of licensed pilots and deputy pilots in Tampa Bay between 1981 and 1984 and was not totally familiar with the distinction between state pilots and federal pilots. The number of foreign vessels calling upon Port Manatee has increased over the last several years. However, the Assistant Port Director had no opinion as to whether additional state pilots or deputy pilots were needed to safely or adequately handle this increased traffic. While the Port of St. Petersburg has experienced a slight increase in the total number of vessels coming in and out, the Assistant to the Director of the Port Authority was unaware of which vessels required a state pilot. The number of foreign vessels in and out of the Port of Tampa decreased for each year from 1980 through 1983, and then increased for the year 1984, but still did not reach the number of vessels using the Port in 1980. Tampa Bay's main ship channel is going through a harbor deepening project which will enable it to accommodate deeper draft vessels. These vessels will be capable of carrying larger tonnage amounts, giving rise to the possibility of a reduction in the total number of vessels entering and leaving the ports of Tampa Bay. At the present time, however, there is a lack of docking or berthing facilities available to accommodate the larger vessels. The petitioner TRICO, with only one licensed state pilot, has had to turn down piloting jobs. While there have been three occasions when the intervenors were not able to provide a pilot to a vessel immediately upon its request, it was not established whether the reasons for such occurrences were because the vessel arrived unexpectedly or because there was, at the time, a shortage of available pilots. The intervenor's business records indicate that in 1980, approximately 6,000 vessels were moved by 18 state pilots and 7 deputies providing a total work capacity equivalent to approximately 22 individuals. In 1981, 20 pilots and 4 deputies handled 5,803 vessel movements. The same number of pilots and deputies handled 5,506 vessel movements in 1982 and 5,728 vessel movements in 1983. In 1984, with 19 licensed state pilots and 4 deputy pilots, the intervenor provided piloting services for 5,563 vessel movements. In the same year, the petitioner's one state licensed pilot handled 672 vessel movements. Approximately 35% to 40% of these vessel movements did not require state licensed pilots, but merely federally licensed pilots. These vessel handling statistics for the years between 1980 and 1984 demonstrate that the average number of jobs or vessel movements per pilot were 293 in 1980, 235 in 1981, 230 in 1982, 240 in 1983 and 259 in 1984. Pilot members of the Tampa Bay Pilots Association work a schedule of three weeks on-duty and three weeks off-duty. At any given time, one-half of the licensed pilots are on-duty with the remaining one-half being off-duty, but subject to being recalled for duty should weather conditions or other circumstances dictate the need for additional pilots. As a result of this rotation system, which is similar to that utilized by pilots in other ports, the intervenor has a 100% relief capacity. It is also the policy of the intervenor to guarantee a rest period between vessel movements for all pilots during their three weeks of duty. If a pilot or deputy pilot has less than six hours of rest between piloting assignments, he is guaranteed eight hours of rest after the second assignment. Additional pilots remain on standby to assure that this rest policy is effectuated. The intervenor also maintains individual cottages on Egmont Key which the pilots on duty may use for sleep or rest between jobs. Egmont Key, located at the mouth of Tampa Bay, is ideally located for the quickest transit out to any entrances from the sea.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the petitioner's request that additional pilot and deputy pilot openings for Tampa Bay be declared be DENIED. Respectfully submitted and entered this 6th day of September, 1985, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of September, 1985.
Findings Of Fact 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 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
