Findings Of Fact The applicant for site approval is Downtown Heliport Corporation, Inc., a corporation with headquarters in Orlando, Florida, engaged in operating heliport facilities throughout Florida and other states. Its related company is Bulldog Airlines, which owns and operates helicopters for hire. Robert Uttal is President of both companies. On January 4, 1990, Downtown Heliport Corporation filed its application for site approval by the Department of Transportation (DOT), proposing to establish a .23 acre (10,000 square feet) helicopter pad within the jurisdictional territory of the Canaveral Port Authority. The Port Authority had already approved a land use permit and lease for the applicant on July 19, 1989 and November 14, 1989. The Federal Aviation Authority (FAA) also gave its approval. In a letter dated January 10, 1991, addressed to McDonald Smith, Director of Operations, Downtown Heliport Corporation, the FAA granted approval of the subject heliport under the following conditions: All operations are conducted in VFR weather conditions. The landing area is limited to private use. All approach/departure route helicopter operations are conducted in an area from 090 degrees clockwise to 160 degrees and from 250 degrees clockwise to 330 degrees using the touchdown pad as the center of a compass rose. The takeoff/landing area is appropriately marked. A nonobstructing wind indicator is maintained adjacent to the takeoff/landing area. The approval letter provides, in pertinent part: This determination does not mean FAA approval or disapproval of the physical development involved in the proposal nor is it based on any environmental or land-use compatibility issue. It is a determination with respect to the safe and efficient use of airspace by aircraft and with respect to the safety of persons and property on the ground. In making this determination, the FAA has considered matters such as the effect the proposal would have on existing or planned traffic patterns of neighboring airports or heliports, the effects it would have on the existing airspace structure and projects or programs of the FAA, the effects it would have on the safety of persons and property on the ground, and the effects that existing or proposed man-made objects (on file with the FAA) and known natural objects within the affected area would have on the heliport proposal. The FAA cannot prevent the construction of structures near a heliport. The heliport environs can only be protected through such means as local zoning ordinances or acquisitions of property rights. (DOT Exhibit #4) On January 30, 1990, Bronson Monteith, DOT District Aviation Specialist, inspected the proposed site and found it feasible for the proposed use and consistent with the requirements of DOT Rule Chapter 14-60, F.A.C. More specifically, he reviewed the facility diagram provided by the applicant and determined that the size of the pad, the location of the pad and the air corridor were appropriate. He considered that the Port Canaveral and FAA approval established compliance with ground and air safety standards. He determined from his inspection that existing structures would not interfere with an 8:1 glide slope to and from the pad. Once cleared from the pad the helicopters will use an existing ships' channel as the flight path. Mr. Monteith considered the distance of the streets from the heliport and the objects around it, including trees, the parking area and any major buildings that would be occupied. There are no schools close to the site. A Notice of Intent to issue a site approval for the proposed heliport was issued by the Department and advertised in an area newspaper; notices were sent, as provided in Rule 14-60, F.A.C. John Monteith conducted a public meeting, received comments and submitted a report to the DOT Aviation Bureau in Tallahassee recommending site approval. The heliport application, documentation and comments from the public meeting were reviewed by the Department's Licensing Coordinator and the Aviation Office Manager, and they determined that the application met all requirements under Chapter 330, Florida Statutes, and Chapter 14-60, F.A.C. for site approval. Site approval order no. 91-17 imposes the following conditions: All operations are to be conducted in VFR weather conditions. Operations are limited to private use. There are to be no flights over the City of Cape Canaveral. That the provisions in FAA Airspace Approval letter dated January 10, 1991, be complied with. Traffic patterns and operational procedures are subject to review by this Department prior to licensing or relicensing. (DOT Exhibit #9) Bulldog Airlines and Downtown Heliport Corporation intend to comply with, and enforce the conditions imposed by DOT. The flight path will be at 800 feet elevation along the corridor until the final approach for landing or takeoff, and that final approach will only be over the port itself. It will not include any flights over the Trident nuclear submarine or over storage tanks. The heliport will be private, primarily for the use of Bulldog Airlines, who flies for NASA, for the Port Authority, for various governmental agencies, including environmental monitoring agencies, and for other private hire. The heliport is open only to commercial pilots, will be used during daylight hours and only under conditions which allow for visual, noninstrument flying. Bulldog Airlines commenced operation in 1985 and has never experienced an incident, accident, or any notice of violation from the FAA, DOT or local law enforcement agencies. Because of its safety record it is able to maintain $100 million liability insurance. McDonald Smith, Director of Operations for Bulldog Airlines, is a pilot with approximately 10,000 hours of flight time. He also inspected the site and is aware of existing structures. In his opinion the flight corridor is wide enough to fly a helicopter, even if it is necessary to avoid unforeseen obstacles. Norma Townsend is a resident of the City of Cape Canaveral, approximately one-half mile south of the proposed site. She has attended the series of public meetings which preceded the DOT's proposed decision. She has amassed an impressive array of letters, maps, tapes and other documents related to the proposed site. She describes herself as a citizen and is neither a pilot nor trained in safety. Ms. Townsend is concerned about the existence of the nuclear submarine base, fuel storage tanks and other hazardous materials in the proximity of the proposed site. She feels that no amount of care by the pilots will insure that a helicopter in an emergency might not collide with an existing structure, with disastrous results. She has heard that used parts are sold for new, causing a helicopter to drop from the sky. She believes that ultra-light airplanes, low flying airplanes and weather balloons will provide extraordinary flying hazards in the Port Canaveral area. She suspects that no meaningful study was done by any agency prior to approving the site. Ms. Townsend presented no witnesses to substantiate these concerns and relies on her own common sense. In many instances this would be sufficient, but here the agency and applicant presented knowledgeable, competent expertise in support of a finding that the site is appropriate. Anything is possible, but instances of helicopters dropping out of the sky are virtually unheard of. Pilots are conscious of ultra-light planes and other possible obstacles to flying. Even large birds are a hazard. Heliports are routinely sited near or on top of buildings, in downtown areas or other places where traffic and population are congested. Helicopters are highly maneuverable, and for that reason are relied on in providing transportation and observation in circumstances where planes or ground vehicles are prohibited, for example after a hurricane or after a fire or other calamity. The substantial weight of evidence establishes that the proposed heliport at Port Canaveral can and will be safely operated.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED: That the agency enter its final order finding that site approval order no. 91-17 is valid and appropriate. DONE AND RECOMMENDED this 18th day of December, 1991, in Tallahassee, Leon County, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of December, 1991. Copies furnished: Robert R. Uttal Downtown Heliport Corporation, Inc. P.O. Box 621148 Orlando, FL 32862-1148 Joy C. Salamone, Mayor City of Cape Canaveral P.O. Box 326 Cape Canaveral, FL 32920 Karen S. Andreas, Commissioner Brevard County Board of County Commissioners 900 E. Merritt Island Cswy. Merritt Island, FL 32952 Vernon L. Whittier, Jr., Esquire Dept. of Transportation 605 Suwannee Street Tallahassee, FL 32399-0450 Norma E. Townsend P.O. Box 883 Cape Canaveral, FL 32920-0883 Ben G. Watts, Secretary Attn: Eleanor F. Turner, M.S. 58 Dept. of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, FL 32399-0458 Thornton J. Williams General Counsel Dept. of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, FL 32399-0458
The Issue Under the standards established by Section 330.30, Florida Statutes, and Rule Chapter 14-60.05, Florida Administrative Code, the issues presented for resolution are: Whether the site is adequate for the proposed private seaplane base. Whether the proposed seaplane base will conform to minimum standards of safety. Whether safe air traffic patterns can be worked out for the proposed airport and for all existing airports and approved sites in the vicinity.
Findings Of Fact Based on the stipulations of the parties, the testimony of the witnesses, and the exhibits admitted in evidence at the hearing, I make the following findings of fact. On August 24, 1983, Mr. Ruzakowski of 159 San Remo Drive, Venetian Shores Subdivision, Islamorada, Florida, filed an application with attachments with the Department for a private seaplane base license. The application of the proposed private seaplane base to be known as Plantation Key seaplane base proposes that landing and taking off would be in the open water area known as Florida Bay or Cotton Key Basin and that the seaplane would be parked on a ramp at the applicant's home. In order to reach the applicant's waterfront home, the application proposes a taxi route along Snake Creek which connects Florida Bay to the applicant's home. The application had attached to it a letter of zoning approval from the Building and Zoning Department of Monroe County signed by Mr. Joseph E. Bizjak, Assistant Building Official, which letter stated that the ramp on the applicant's property ". . . has never been and is not now in violation of any Monroe County zoning codes." The Department of Transportation has never been notified by the Monroe County Zoning and Building Department of any withdrawal of this zoning approval. Also attached to the application was a letter from Robert Billingsley supervisor of the program development section of the Federal Aviation Administration which stated that the FAA airspace approval for applicant's seaplane was still current and in effect. Mr. Ruzakowski's 1976 application for a seaplane base proposed using Snake Creek as a take-off and landing area. The instant application only proposes to use Snake Creek as a taxi area to and from Mr. Ruzakowski's residence (where he proposes to park the airplane) and the take-off and landing area in Florida Bay. The distance from Mr. Ruzakowski's residence to the take- off and landing area is approximately one mile. Upon receipt by DOT of Mr. Ruzakowski's 1983 application, an on-site feasibility inspection of the site was made by Mr. Steve Gordon of the DOT's Sixth District in Miami, Florida. Mr. Gordon, a District Aviation Engineer, has extensive experience as an airplane pilot and as an airport site inspector. Mr. Gordon conducted an adequate on-site inspection and concluded that the proposed seaplane base appeared to be in compliance with the applicable statutory and rule provisions. Specifically, Mr. Gordon concluded that the take-off and landing operations would be away from the area of the homes in the development, that the ramp on Mr. Ruzakowski's property was adequate for safe approach upon his lot, that his lot was a safe place to park his seaplane, that Snake Creek was wide enough for taxiing the airplane, that the take-off and landing area contained no obstructions or hazards, and that there was no hazard to other airports in the area. Following the inspection, Mr. Gordon wrote to Mr. Ruzakowski and to the DOT officials and advised them that the proposed site was feasible for a private seaplane base under the applicable licensing requirements. Thereafter, the DOT sent notice to approximately 200 addressees advising them of the proposed private seaplane base application, the inspection results, the DOT's intent to issue site approval and advising of a public meeting on the matter. The notice was also published in The Florida Keys Keynoter newspaper on October 13, 1983. Among the addressees notified by mail were adjacent property owners, the Monroe County Building and Zoning Department, the Monroe County Board of County Commissioners, and the FAA. The Marine Patrol and the Coast Guard were also notified of the public hearing. Neither the Monroe County Board of County Commissioners nor the Monroe County Building and Zoning Department sent a representative to attend the public hearing. Following the public hearing and consideration of all of the objections stated at the public hearing, Mr. Gordon recommended that site approval be granted for the proposed seaplane base. There are other licensed seaplane bases in Florida in which the take- off and landing areas are in open water such as bays and in which seaplanes using the base taxi to and from the parking area in channels used by boats. The airplane owned by Mr. Ruzakowski which he proposes to use at the subject seaplane base is a modified Republic Seabee. The modifications include modifications which make the airplane more maneuverable, quieter, and dependable. When taxiing on the water the pilot of the Seabee has excellent visibility of everything from very close to the airplane to infinity. The airplane is very maneuverable on the water, due in part to the fact that it has both water and air rudders. The airplane can be stopped very quickly on the water because the direction of the propeller thrust can be reversed. The propeller reversal also makes it possible for the airplane to back up while on the water. The airplane can taxi on the water as slowly as 5 miles per hour. Once it reaches the take-off area, the actual take-off run lasts only about 18 or 20 seconds. The airplane is approximately 40 feet wide from wingtip to wingtip. The tip of the airplane propeller is at least four feet above the water. As a result of the excellent visibility from the airplane and the high degree of maneuverability of the airplane, it is easy for the pilot of the airplane to observe and avoid any boats or other objects in the vicinity of the airplane. While operating on the water the airplane is subject to the same navigation rules which apply to boats and ships. The applicant, Mr. Ruzakowski is a 73 year old retired airline pilot. He has between 20,000 and 22,000 hours of flying experience, approximately 75 percent of which was as pilot in command. He has flown a large number of different types of airplanes, including land based airplanes, seaplanes, and amphibians. He has had extensive experience in both single- engine and multi- engine aircraft. In 54 years of flying he has never had an accident. Safety is the main factor in all of his flying. Mr. Ruzakowski is an FAA consultant engineer and does all of the maintenance and repairs on his own airplane. He has invented an improved control system for the Republic Seabee aircraft and has received FAA approval for his invention to he installed on other Republic Seabees. Mr. Ruzakowski appears to be in excellent physical and mental condition; at the hearing he appeared to be strong, agile, and alert. These appearances are confirmed by the fact that he currently holds a valid FAA pilot's license and medical certificate. He has never been denied an FAA medical certificate. His vision is excellent and is perhaps getting better because several years ago his FAA medical certificate required him to keep reading glasses in the aircraft, but his current medical certificate contains no such restriction. Snake Creek is used by a variety of large and small commercial and pleasure boats. The volume of boat traffic varies from day to day and also by time of day. At times there are also swimmers and divers in Snake Creek and in the designated take-off and landing area. However, none of the boat traffic is incompatible with the operation of the applicant's airplane because the visibility from the airplane and the maneuverability of the airplane are such that the pilot of the airplane has as much or more ability to avoid or prevent a collision as does the operator of any of the boats and ships using the waterway.
Recommendation Based on all of the foregoing it is recommended that the Department of Transportation issue a Final Order approving the issuance of Site Approval Order No. 83-34. DONE and ORDERED this 15th day of May, 1985, at Tallahassee, Florida. MICHAEL M. PARRISH 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 15th day of May, 1985. COPIES FURNISHED: Joe Miklas Esquire Post Office Box 366 Islamorada, Florida 33036 James Baccus, Esquire Post Office Box 38-1086 Little River Station Miami, Florida 33138 Judy Rice, Esquire Department of Transportation Haydon Burns Building 605 Suwannee Street, MS-58 Tallahassee, Florida 32301-8064 Honorable Paul A. Pappas, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street, MS-58 Tallahassee, Florida 32301-8064
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: At all relevant times, respondent, Passport Internationale, Inc. (Passport or respondent), was a seller of travel registered with the Department of Agriculture and Consumer Services (Department). As such, it was required to post a performance bond with the Department conditioned on the performance of contracted services. In this case, petitioner, R. Jane Frazier, has filed a claim against the bond in the amount of $813.00 alleging that Passport failed to perform on certain contracted services. On June 4, 1990, petitioner purchased a travel certificate from Jet Set Travel, a Maryland telemarketeer authorized to sell travel certificates on behalf of Passport. The certificate entitled the holder to fourteen nights' accommodations in Hawaii plus roundtrip airfare for two persons, with all travel arrangements to be made by Passport. The certificate carried the name, address and logo of Passport. During petitioner's dealings with Passport's agent, it was represented to her that for $89.00 per night, she would receive a two bedroom, oceanfront condominium. This constituted a misrepresentation on the part of the agent since the rooms were actually more expensive. Relying on that representation, petitioner authorized a $328.00 charge on her credit card payable to Jet Set Travel to be used as a credit on services purchased in Hawaii. She also paid a $50.00 refundable deposit to Passport. In August 1990, petitioner contacted Passport regarding travel dates and was told the charge on her room would be $124.00 per night, and not $89.00 per night as promised by Jet Set Travel. In charging this amount, Passport relied upon its brochure which priced the accommodations in the range of $89.00 to $124.00 per night, with the highest price for the type of room selected by petitioner. Fearing that she would lose her $328.00 fee and $50.00 deposit if she did not pay the higher amount, petitioner reluctantly agreed to send a cashier's check in the amount of $1,406.00 to Passport, which represented fourteen nights' lodging at $124.00 per night. Finally, before she departed on the trip, petitioner was required to pay another $25.00 miscellaneous fee to Passport, the basis for which was never explained. When petitioner arrived in Hawaii on October 11, 1990, she discovered that her assigned accommodations for the first week at the Kona Reef were unavailable because Passport had failed to make a reservation. Accordingly, she was forced to purchase five nights accommodations at the Kona Reef for $524.02 plus two nights at another facility for $248.00. The accommodations for the second week were satisfactory. After petitioner brought this matter to the attention of Passport, she acknowledged that she received a refund check for the first seven nights' stay, although she says she can't remember if it was for all or part of her out-of- pocket costs. Passport's contention that its books reflect an entry that she was paid for the entire amount was not contradicted although neither party had a cancelled check to verify the actual amount of the payment. Passport's testimony is accepted as being the more credible on this issue. Because petitioner relied on a misrepresentation by Passport's agent as to the type and price of accommodations being offered, she is entitled to be reimbursed her $50.00 refundable deposit (which was never returned), the $25.00 miscellaneous fee paid on September 26, 1990, for which no justification was shown, and the difference between the originally agreed on price ($89.00 per night) and the actual price ($124.00) for the last seven nights accommodations, or $245.00. Accordingly, she is entitled to be paid $320.00 from the bond.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the claim of petitioner against the bond of respondent be granted, and he be paid $320.00 from the bond. DONE AND ENTERED this 13th day of December, 1994, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of December, 1994. COPIES FURNISHED: R. Jane Frazier 3070 Meadow Lane Mobile, Alabama 36618-4634 Michael J. Panaggio 2441 Bellevue Avenue Daytona Beach, Florida 32114 Robert G. Worley, Esquire 515 Mayo Building Tallahassee, Florida 32399-0800 Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, Florida 32399-0810 Richard D. Tritschler, Esquire The Capitol, PL-10 Tallahassee, Florida 32399-0810
The Issue Whether the application of the Biscayne Bay Pilots' Association for an increase in the pilotage rates for the Port of Miami should be granted in whole or in part or denied.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: In their Prehearing Stipulation, the parties stipulated to the following facts, which are deemed admitted: The Cargo Carriers Association is a Florida not-for- profit corporation with its principal office in Miami, Florida. The purpose of the Cargo Carriers Association is to promote, advance, and secure laws, rules, and regulations concerning vessels utilizing the navigable waters of the State of Florida, in particular the Port of Miami and Port Everglades, in order that the waters, harbors, and ports of the state and the environment and property of all persons be protected to the fullest possible extent consistent with sound financial principles. A substantial number of the members of the Cargo Carriers Association are affected by the rates of pilotage currently set for the Port of Miami, inasmuch as they are required by Florida law, Chapter 310, Florida Statutes, to utilize and compensate the Port of Miami pilots whose rates are established by the Board, and they are, in fact, utilizing and compensating pilots in accordance with the rates established for the Port of Miami. Accordingly, the Cargo Carriers Association is substantially affected by and has standing to maintain this challenge to the Board's Decision dated March 9, 2000. The Board is an agency of the State of Florida created pursuant to Section 310.151, Florida Statutes, which is invested with the authority and responsibility to determine the rates of pilotage at the various ports of Florida, including the Port of Miami. Section 310.151, Florida Statutes (2000). The Pilots' Association is an association of harbor pilots that is treated as a partnership for tax purposes and that performs the pilotage services at the Port of Miami. The offices of the Pilots' Association and its affiliate, Biscayne Bay Pilots, Inc., are located in Miami, Florida. In October 1999, the Pilots' Association submitted to the Board an application for an increase in the pilotage rates for the Port of Miami. On October 28, 1999, the Investigative Committee for the Board convened a fact-finding public hearing on the Pilots' Association's application in Miami, Florida, at which numerous interested persons provided comments and testimony, both for and against the Pilots' Association's requested rate increase. On November 29, 1999, the Pilots' Association submitted to the Board a version of its application that, in its words, "has been edited to correct scrivener's errors." On December 9, 1999, the Investigative Committee for the Board completed its review and investigation of the Pilots' Association's application and presented its written findings to the Board as required by Rule 61E13-2.007(4), Florida Administrative Code. On January 21, 2000, the Board met in Miami, Florida, to review the rate increase application of the Pilots' Association and heard comments and testimony from persons who supported or opposed the application in whole or in part. At the conclusion of this meeting, the Board preliminarily determined to grant the Pilots' Association's application in part with a phased-in increase in rates. The Board's written decision was filed with the agency's clerk on March 9, 2000. The Cargo Carriers Association timely filed its petition for a proceeding under Sections 120.569 and 120.57(1), Florida Statutes (1999). The Pilots' Association requested in its application a 10 percent increase in the rate for draft charges, for tonnage charges, for shifting or anchoring charges, and for minimum fees, effective immediately, with an additional increase of 5 percent in these rates and fees six months after the effective date of the initial increase. The requested increase would result in a total 15.5 percent increase in pilotage rates and minimum fees at the Port of Miami. The Board hired an Investigative Committee composed of two consultants, one a Certified Public Accountant and the other a retired Coast Guard officer, to examine the Pilots' Association's application in light of the statutory factors set forth in Section 310.151(5)(b) and (c), Florida Statutes (1999). The Investigative Committee held a public hearing in which it received testimony from interested parties. The Investigative Committee Report was presented to the Board at the public hearing on January 21, 2000. The Board included in its written Decision findings of fact and comments with respect to each of the criteria set forth in Section 310.151(5), Florida Statutes (1999), 3/ an analysis and statement of its decision to approve an increase in the pilotage rates at the Port of Miami, and an order specifying the approved increases. The Board stated its intention to grant the Pilots' Association's application in part and to increase the rates of pilotage at the Port of Miami 3 1/2 percent for draft charges, tonnage charges, shifting or anchoring charges, and the minimum fees, effective on the date of its order, 4/ with an additional 3 percent rate increase in each of the charges effective 12 months from the effective date of the first increase and another 3 percent increase in each of the charges effective 24 months after the effective date of the first increase. This increase is 63.16 percent of the increase requested by the Pilots' Association. The public interest in having qualified pilots available to respond promptly to vessels needing their service. Section 310.151(5)(b)1., Florida Statutes (2000). 5/ In its Decision, the Board accepted the findings in the Investigative Committee Report with regard to this statutory criterion, which facts are found at page 11 of the report. 6/ The record of the hearing held before the Division of Administrative Hearings does not contain any evidence sufficient to form a basis for findings of fact different from, or in addition to, the facts relied on by the Board in its Decision with respect to this criterion. 7/ A determination of the average net income of pilots in the port, including the value of all benefits derived from service as a pilot. For the purposes of this subparagraph, "net income of pilots" refers to total pilotage fees collected in the port, minus reasonable operating expenses, divided by the number of licensed and active state pilots within the ports. Section 310.151(5)(b)2., Florida Statutes (2000). In its Decision, the Board accepted the findings in the Investigative Committee Report with regard to this statutory criterion, which facts are found at pages 12 and 13 of the report, with the following modification to the depreciation adjustment included in the calculation of the pilots' total compensation if the requested rate increase were approved in toto and the resulting modification in the projected "adjusted (all inclusive) income per pilot": The depreciation adjustment projected for the year 2000 was decreased from $6500.00 to $1600.00, resulting in an adjusted (all inclusive) income per pilot for the year 2000 of $340,800.00; the depreciation adjustment projected for the year 2001 was decreased from $6500.00 to $4800.00, resulting in an adjusted (all inclusive) income per pilot for the year 2001 of $340,000.00. The Investigative Committee Report included in the computation of average net pilot income the value of health and retirement benefits, pension valuation, and discretionary costs such as political contributions, lobbying expenses, and business promotion expenses. The Investigative Committee identified the actual total pilot compensation for pilots at the Port of Miami, including adjustments for pension valuation and discretionary costs but not for depreciation, as $308,200.00 for 1998, and it projected the total pilot compensation for 1999, 2000, and 2001, without a rate increase, as $288,200.00, $296,200.00, and $290,200.00, respectively. The record of the hearing held before the Division of Administrative Hearings does not contain evidence sufficient to form a basis for findings of fact different from, or in addition to, the facts relied on by the Board in its Decision with respect to this criterion, except as specifically set forth in the following paragraphs. Since 1993, the Pilots' Association has tried to maintain a roster of 18 active pilots at the Port of Miami, although this number has fluctuated from time to time. Currently, there are 17 pilots and one deputy at the Port of Miami. Excluding adjustments for pension valuation and discretionary costs, compensation in 1997 and 1998 for pilots at the Port of Miami was $281,000.00 and $278,000.00, respectively; compensation at Port Everglades was $329,000.00 and $344,000.00, respectively; compensation at the Port of Palm Beach was $154,000.00 and $230,000.00, respectively; and compensation at the Port of Jacksonville was $250,000.00 and $254,000.00, respectively. Because of the exclusions noted above, these amounts understate actual compensation. Compensation for the Port of Miami pilots increased 38.4 percent between 1989 and 1996. In 1989, pilot income at the Port of Miami was $203,000.00, and, in 1990, it was $181,000.00. The pilots received an effective 32 percent rate increase as a result of a 26 percent rate increase in 1992 and a 5 percent rate increase in 1993, and gross pilotage revenue increased 72 percent between 1989 and 1996, an increase primarily attributable to an increase in the number of larger vessels using the port. As a result of the revenue increase, pilot income rose to over $281,000.00 in 1997. In addition to piloting, the pilots at the Port of Miami carry out the duties of Harbor Master, which involve coordinating all of the ship traffic in the port. The pilots receive no additional compensation for this service. Reasonable operating expenses of pilots. Section 310.151(5)(b)3., Florida Statutes (2000). In its Decision, the Board accepted the findings of the Investigative Committee Report with regard to this statutory criterion, which facts are found at pages 13 through 16 of the report. In the report, the Investigative Committee found that, with the exception of the costs associated with the Pilots' Association's retirement plan, the operating expenses included in the Pilots' Association's application were reasonable. The Investigative Committee Report included a detailed discussion of the Pilots' Association's retirement plan. The retirement plan of the Pilots' Association is a non-qualified plan under the Internal Revenue Code and is unfunded and, therefore, contingent on the future operations at the Port of Miami. The plan is in the form of a consulting agreement between the Pilots' Association and its retirees, pursuant to which each pilot who reaches 55 years of age and completes 20 years of service as a full-time active pilot, and who agrees to act in the best interests of the Pilots' Association, is eligible to be paid up to 50 percent of an active pilot's income, provided that the aggregate amount paid to retirees may not exceed 20 percent of the annual total gross pilotage revenue. The payments are to be made from future pilotage revenue. The total costs associated with retired pilot compensation and benefits (equity buy-outs, surviving spouse accrual, and health insurance) included in the Investigative Committee Report for 1998 were $2,093,086.00, of which $1.4 million was attributable to payments to 11 retirees for consulting services. The Investigative Committee questioned the reasonableness of this operating expense at page 16 of its report, although it noted that there are similar plans in other Florida ports. The record of the hearing held before the Division of Administrative Hearings does not contain evidence sufficient to form a basis for findings of fact different from, or in addition to, the facts relied on by the Board in its Decision with respect to this criterion, except as specifically set forth in the following paragraphs. In 1998, payments to the five retired pilots at Port Everglades totaled $962,714.00. The retirement plan for the Port Everglades pilots has the same limits as the plan for the pilots at the Port of Miami: A Port Everglades retiree's benefit is limited to 50 percent of the income of an active pilot, and the aggregate benefits paid to Port Everglades retirees may not exceed 20 percent of the pilots' annual gross revenue. The plan at Port Canaveral limits the aggregate benefits paid to retirees to 33 1/3 percent of gross annual revenue; the limitation at the Port of Jacksonville for current retirees is 28 percent of gross annual revenue and 22 percent for new retirees. There are no aggregate limits on the amounts paid to retirees at the ports in Charleston, South Carolina, or Savannah, Georgia. Pilotage rates in other ports. Section 310.151(5)(b)4., Florida Statutes (2000). In its Decision, the Board accepted the findings of the Investigative Committee Report with regard to this statutory criterion, which facts are found at pages 16 and 17 of the report, and stated its intention to confine its comparative rate analysis to ports in Florida and the southeastern seaboard. It was noted in the Investigative Committee Report that, in 1998, the Port of Miami was ranked the seventh highest of 12 Florida ports with respect to the cost for piloting both a standard large and a standard small vessel and the eighth highest out of the 12 Florida ports in the amount of revenue per handle. 8/ As part of its comparison of pilotage rates in other ports, the Investigative Committee included in its report a chart based on 1998 data setting out the number of handles in each of the 12 Florida ports surveyed, together with 1998 revenue, average handle time, number of pilots, revenue per handle, and revenue per handle hour for each of the 12 ports. In 1998, the Port of Miami had 8,909 handles, revenue of $8,433.539.00, average handle time of 2.0 hours, 18 pilots, revenue per handle of $947.00, and revenue per handle hour of $473.00. Based on 1998 data, Port Everglades, the port closest geographically to the Port of Miami, had 10,168 handles, revenue of $6,899,006.00, average handle time of 1.9 hours, 16 pilots, revenue per handle of $679.00, and revenue per handle hour of $357.00. In its Decision, the Board recognized that pilotage rates cannot be considered in a vacuum and that a rate increase or decrease is not justified simply because a rate is comparatively low or high. Rather, the Board found that consideration must be given to the size and number of vessels using the port, the time required to service the vessels, and the characteristics of the port that impact positively or negatively on the gross revenue and net income derived from the rate structure. The record of the hearing held before the Division of Administrative Hearings does not contain evidence sufficient to form a basis for findings of fact different from, or in addition to, the facts relied on by the Board in its Decision with respect to this criterion, except as specifically set forth in the following paragraphs. The Investigative Committee determined that Port Everglades was the closest and most relevant competitive port to the Port of Miami. The Port of Miami handles primarily cruise ships, excluding daily cruise ships, and container cargo vessels. Port Everglades handles both container cargo vessels and vessels containing bulk and neo-bulk products such as petroleum, cement, steel, and lumber, as well as a mix of large cruise ships and smaller, daily cruise ships. Port Everglades is one of the largest petroleum ports in the southeastern United States. The Port of Miami handles fewer but generally larger vessels than Port Everglades. The distance between the sea buoy 9/ and the turning basin where the pilots turn and dock cruise ships in the Port of Miami is approximately six miles; the distance between the sea buoy and the turning basin where the pilots turn and dock cruise ships in Port Everglades is approximately two miles. In Port Everglades, the distance from the sea buoy to the channel is short, so that there is little room to position the vessel properly for entry into the channel. The channel is, however, straight. In the Port of Miami, there is a 40-degree turn mid- channel. Currently, Port Everglades has 16 pilots and two deputies. A comparison of the pilotage rates in the Port of Miami and in Port Everglades shows that, without considering the rate increase proposed by the Board, the current draft rate in the Port of Miami is 38 percent higher than that in Port Everglades and the current tonnage rate is 7.5 percent higher in the Port of Miami than in Port Everglades. With the Board's proposed rate increase, the draft rate at the Port of Miami is roughly 40 percent higher than that at Port Everglades, and the tonnage rate is roughly 16 percent higher. Without a rate increase, total pilotage fees at the Port of Miami are 18 percent higher for small vessels and 14 percent higher for large vessels than the total pilotage fees at Port Everglades. Using the cruise ship Enchantment of the Seas as an example, without the rate increase, pilotage fees are $5,700.00 per trip in and out of the Port of Miami, or $260,000.00 annually; with the Board's proposed rate increase, pilotage fees are $6,270.00 per trip, or $326,000.00 annually. In contrast, the pilotage fees for the Enchantment of the Seas at Port Everglades are $5,150.00 per trip in and out of the port, or $268,000.00 annually. 10/ The amount of time each pilot spends on actual piloting duty and the amount of time spent on other essential support services. Section 310.151(5)(b)5., Florida Statutes (2000). In its Decision, the Board accepted the findings in the Investigative Committee Report with regard to this statutory criterion, which facts are found at page 18 of the report. The record of the hearing held before the Division of Administrative Hearings does not contain any evidence sufficient to form a basis for findings of fact different from, or in addition to, the facts relied on by the Board in its Decision with respect to this criterion. The prevailing compensation available to individuals in other maritime services of comparable professional skill and standing as that sought in pilots, it being recognized that in order to attract to the profession of piloting, and to hold the best and most qualified individuals as pilots, the overall compensation accorded pilots should be equal to or greater than that available to such individuals in comparable maritime employment. Section 310.151(5)(b)6., Florida Statutes (2000). In its Decision, the Board accepted the findings in the Investigative Committee Report with regard to this statutory criterion, which facts are found at pages 18 and 19 of the report. In its report, the Investigative Committee recognized that the Board, in the Port Everglades case, concluded in its Final Order that the profession most comparable to that of a port pilot is that of a captain of a large United States-flagged vessel. The Investigative Committee further recognized that the Board, in the Port Everglades case, concluded that pilot compensation should be equal to or greater than $203,000.00, represented by the Investigative Committee in its report as the annualized compensation of a "U.S. master." The Investigative Committee found, further, that the skills, risks, and working conditions of a ship's captain and a pilot are considerably different in that a pilot must have a wider range of technical skills to pilot a variety of vessels of different sizes; a pilot assumes more physical risks because of the need to board and disembark each vessel; a pilot is constantly in a stressful situation while piloting a vessel into port; and a pilot is a private businessman rather than an employee and must face all of the attendant risks and obligations. In its Decision, the Board established the "floor" compensation for pilots at approximately $200,000.00 to $220,000.00, which represents the wage of the highest-paid ship's master on a United States-flagged ship. 11/ The Investigative Committee found in its report that the amount of compensation above the floor established by the Board depends on several factors, including the size of the ships calling on the port, the difficulty of the port, the cost of living in the surrounding community, and pilot compensation in other United States ports. Finally, the Board expressly recognized in its Decision that, unlike ships' masters, pilots are not employees of a corporation but are independent businessmen, with all of the financial risks that status implies. The record of the hearing held before the Division of Administrative Hearings does not contain evidence sufficient to form a basis for findings of fact different from, or in addition to, the facts relied on by the Board in its Decision with respect to this criterion, except as specifically set forth in the following paragraphs. 12/ The education and training of a pilot and a ship's master is, in many cases, the same. A ship's master operating on the high seas, however, has the responsibility for the ship's well-being 24 hours a day, seven days a week during the course of the voyage. The scope of responsibility of a ship's master requires a wider array of skills than those of a pilot; he or she must make judgments regarding matters extending beyond the navigation of the ship. The ship's master is responsible for the ship's crew and, if the ship is a cruise ship, for the welfare of the passengers, and he or she must deal with the hazards of the ship catching fire, disease onboard, and a variety of other matters requiring non-technical skills. A ship's master must have navigational skills and must be knowledgeable about many ports throughout the world and many weather systems. Even when a ship is being piloted into port, the ship's master retains the ultimate responsibility for the ship, and the ship's master will sometimes dock the ship once the pilot has brought it to the docking area. Pilots are licensed to operate in a particular port, and they must have an intimate knowledge of that port. Because pilots must handle almost every vessel calling at the Port of Miami, they must be familiar with the peculiarities of numerous types and sizes of vessels, and they must continually take courses to keep up with the changing technology used on new vessels. Consequently, the knowledge and skills required of a pilot are more specialized and more narrowly focused than those required of a ship's master. When a vessel is ready to come into the Port of Miami, the pilot is taken to the vessel, which, depending on its size, may be located two-to-three miles east of the sea buoy. The pilot must, therefore, board and disembark from a vessel in open water. A pilot at the Port of Miami must guide vessels, sometimes exceeding 1,000 feet in length, through a 500-foot wide channel cut in rock, make a 40-degree turn, and guide the vessel into the port's turning basin and, ultimately, to its berth. There is little maneuvering room, and the pilot must deal with the ever-changing winds, currents, and tides that affect a vessel's passage to the berthing area. For ships of 1,000 feet or longer, there is adequate but not generous room for maneuvering in the turning basin. The number of large vessels using the Port of Miami has increased since 1989. Piloting large vessels increases the complexity of the pilot's job and increases the potential for an accident, necessarily increasing the amount of stress experienced by pilots routinely bringing such vessels into the Port of Miami. A pilot must direct the crew of a vessel when bringing the vessel into and through the channels leading to the turning basin and from the turning basin to the berths, and his or her success depends on his ability to communicate instructions to crewmembers. This communication is becoming more difficult because crewmembers are recruited from many different countries, including those from Eastern Europe, and they may or may not understand English. The stress experienced by a pilot is significantly increased when he must depend on crewmembers who do not understand English, because disaster could result if the pilot's instructions are not followed precisely. The stress experienced by pilots when they are on the job is much more intense, though of shorter duration, than that experienced by ship's masters. A pilot at the Port of Miami will pilot between six and 18 ships each week and is on-call 24 hours each day while on piloting duty, under conditions that are physically and mentally stressful. The pilots at the Port of Miami are not employees of the Pilots' Association. Rather, the Pilots' Association is operated as a partnership of the pilots, and it is funded from the pilotage revenue at the Port of Miami. There are significant operating expenses deducted from gross pilotage revenue before the pilots are paid. The Pilots' Association owns and maintains a building at the far eastern end of the Port of Miami that houses the pilots' business office and also contains bedrooms, restrooms, a lounge, and a chart room for use by the pilots. The Pilots' Association employs office staff to handle billing and accounting functions. The Pilots' Association owns and operates four pilot boats used to transport pilots to and from vessels arriving at and departing from the Port of Miami, and it employs six full- time boat operators. Replacement costs for the pilot boats exceed $2 million. The pilots must absorb rising fuel costs, which cannot be passed on as a surcharge to those using the port and are also responsible for the costs of maintaining the boats. The pilots provide communications services to the vessels entering the Port of Miami, and the Pilots' Association maintains three Federal Communications Commission licenses, a marine coastal station, a high power UHF repeater, and VHF radios in all of the pilot boats. The pilots have invested approximately $50,000.00 in communications equipment that they make available to the Port of Miami, including a 100-watt VHF long range radio and tower, as well as the UHF repeater, and they also maintain the equipment. In addition, the pilots employ dispatchers who handle the radios. The pilot's income is a function of the volume and size of traffic in and out of the port, and they are, consequently, affected by decisions made by the Port of Miami authorities with respect to services to be provided vessels using the port and with respect to port charges. The financial risks faced by the pilots at the Port of Miami are, for the most part, shared by all independent business owners. However, even though pilots of the Pilots' Association are the only pilots allowed to provide services in the Port of Miami and even though pilotage rates are highly regulated and, to an extent, non-competitive, pilots, unlike most private independent business owners, cannot pass on increases in operating expenses; rather, the pilots must absorb these increases until, and unless, an application for a rate increase is approved. 13/ The impact rate change may have in individual pilot compensation and whether such change will lead to a shortage of licensed state pilots, certificated deputy pilots, or qualified pilot applicants. Section 310.151(5)(b)7., Florida Statutes (2000). In its Decision, the Board accepted the findings in the Investigative Committee Report with regard to this statutory criterion, which facts are found at page 19 of the report. In its report, the Investigative Committee found that all-inclusive pilot compensation for the pilots at the Port of Miami would increase 8.76 percent if the increase requested by the Pilots' Association were approved by the Board. As a result, the compensation of pilots at the Port of Miami would still be lower than that of the pilots at Port Everglades, but only slightly. The Investigative Committee noted that an opening at any of the four major Florida ports, the Port of Miami, Port Everglades, Tampa, and Jacksonville, draws 20 to 30 applicants from all over the United States. The Investigative Committee observed that, with or without a rate increase, any of these four ports would attract qualified pilots because they are likely to find more attractive compensation and working and living environments than provided by their present situations. The record of the hearing held before the Division of Administrative Hearings does not contain any evidence sufficient to form a basis for findings of fact different from, or in addition to, the facts relied on by the Board in its Decision with respect to this criterion. Projected changes in vessel traffic. Section 310.151(5)(b)8., Florida Statutes (2000). In its Decision, the Board accepted the findings in the Investigative Committee Report with regard to this statutory criterion, which facts are found at pages 20 and 21 of the report. The Investigative Committee accepted the estimated handles provided by the Pilots' Association in its application, which reflects an increase from 8,909 handles in 1998, to an estimated 9,200 handles in 1999, 2000, and 2001. The Investigative Committee noted in its report that the number of cruise passengers at the Port of Miami has remained steady since 1991 and that, although the number of handles decreased between 1992 and 1995, there was steady growth in cargo tonnage between 1988 and 1998. Even with the decrease in the number of handles, the average revenue per handle increased from $545.00 in 1990 to $978.00 in 1998, accounting for a 73 percent increase in the gross annual revenue and a 79 percent increase in the average revenue per handle. The Investigative Committee found that the data suggests that the increase in the pilots' average revenue per handle, and, therefore, its gross annual revenue, is more a function of the increase in the size of the vessels calling at the Port of Miami than a function of the 32 percent rate increase in 1992 and 1993. The Investigative Committee found in its report, and the Board recognized in its Decision, that Port Everglades and the Port of Miami have a strong competitive relationship and that a large increase in pilotage rates at the Port of Miami might result in a decision by Maersk Shipping, a large shipping company currently calling at the Port of Miami and at Port Everglades, to consolidate its operations and use Port Everglades rather than the Port of Miami, resulting in a material decrease in the revenue of the Port of Miami pilots. Prior to the rate increase proposed by the Board, Maersk Shipping paid the pilots at the Port of Miami $1.08 million each year in pilotage fees. A change in operations to Port Everglades would result in a decrease in each pilot's annual income of approximately $48,000.00, with a $24,000.00 decrease in each retiree's benefits. 14/ The record of the hearing held before the Division of Administrative Hearings does not contain evidence sufficient to form a basis for findings of fact different from, or in addition to, the facts relied on by the Board in its Decision with respect to this criterion, except as specifically set forth in the following paragraphs. In choosing ports of call, ship owners, particularly cargo lines, consider many factors, including marketing factors, the availability of berths, the availability of terminal space, the availability of inland transportation, and port congestion, as well as port costs. Port costs, also known as port call expenses, at the Port of Miami are composed of many elements in addition to pilotage fees, such as terminal fees ($8,800.00) 15/ , dockage fees ($3,349.00), wharfage fees ($3,400.00), tug boat fees ($3,009.00), agent fees ($1,500.00), custom and agriculture entry fees ($1,995.00), and harbor fees ($162.00), for a total of $5,570.00; pilotage fees at the Port of Miami for a standard large vessel, according to 1998 data, were $1,085.40, or approximately 15-to-20 percent of port call expenses for a standard large vessel. Therefore, while pilotage fees are a significant part of the mix of port call expenses considered by ship owners in determining whether to call at the Port of Miami, pilots have no control over most of the fees and tariffs comprising port call expenses or over the many other factors that might influence the competitive posture of the Port of Miami vis-à-vis Port Everglades or changes in vessel traffic in the Port of Miami. The Port of Miami consists of Lummus and Dodge Islands, and it is run by the Miami-Dade County Seaport Department. The port rates at the Port of Miami increased approximately 30 percent between 1991 and 1998, generating a revenue increase of approximately 76 percent. Operating expenses increased approximately 44 percent during that time period, but, in general, the port's rate increases have gone primarily to finance improvements in the port's infrastructure and to provide its customers with facilities to accommodate their larger vessels. The port has also received a number of federal and state grants to fund construction programs to improve the port, as well as federal funds for the Port of Miami's dredging program. POMTOC, the Port of Miami Terminal Operating Company, recently received approval to raise its gate fee and empty container storage fee 2.7 percent. The Miami-Dade County Seaport Department also increased its harbor fee for large vessels from $195.00 in 1999 to $235.00 in 2000. In addition, the majority of the port's tariff items increased between 1999 and 2000. Competition is very aggressive among the ports along the eastern seaboard of the United States and along the Gulf of Mexico. As one response to the competitive nature of the market, the Port of Miami has, since 1998, entered into volume incentive agreements with several of its largest customers. The purpose of these agreements is to increase the level of activity at the port by offering a reduction in the port's tariff rate, while at the same time having a guaranteed minimum level of revenue for the port. The Port of Miami has entered into volume incentive agreements with Carnival Cruise Lines, Royal Caribbean Cruise Lines, Seaboard Marine, Maersk, Columbus Lines, and Chilean, and it is in the process of negotiating other such agreements. As a result of the agreements, these lines have brought additional business to the port or have brought new lines to the port. Cost of retirement and medical plans. Section 310.151(5)(b)9., Florida Statutes (2000). In its Decision, the Board accepted the findings in the Investigative Committee Report with regard to this statutory criterion, which facts are found at pages 22 through 25 of the report. In its report, the Investigative Committee determined that the estimated cost of the medical plan available to active and retired pilots for 1999, 2000, and 2001 was $8,125.00, $8,235.00, and $8,400.00, respectively, for each active pilot (or a gross for active pilots of $143,000.00, $140,000.00, and $148,000.00, respectively), and $4,636.00, $5,083.00, and $5,083, respectively, for each retiree (or a gross for retirees of $51,000.00, $61,000.00, and $61,000.00, respectively). The Pilots' Association funds both a money purchase pension plan and a 401k plan for all of its employees, after they have completed one year's service. The total annual contribution averages $6,000.00 per employee. Because the pilots are members of a partnership, they are not considered Pilots' Association employees. Their retirement plan is unfunded, and, as noted above, is in the form of a lifetime consulting agreement pursuant to which eligible pilots receive income that is limited to 50 percent of an active pilot's income, with the aggregate payments to retirees capped at 20 percent of the pilots' gross annual revenue. A surviving spouse of a retired pilot is entitled to receive 25 percent of an active pilot's income for life. The equity interests of retiring pilots in the Pilots' Association are also purchased by the Pilots' Association. These benefits result in an aggregate cost to the Pilots' Association of $2,093,086.00 per year. The Investigative Committee valued the pension plan at a conservative $30,000.00 per year, a figure that the Board accepted over objections by the Pilots' Association. The record of the hearing held before the Division of Administrative Hearings does not contain evidence sufficient to form a basis for findings of fact different from, or in addition to, the facts relied on by the Board in its Decision with respect to this criterion. Physical risks inherent in piloting. Section 310.151(5)(b)10., Florida Statutes (2000). In its Decision, the Board accepted the findings in the Investigative Committee Report with regard to this statutory criterion, which facts are found at pages 25 and 26 of the report. The Investigative Committee found that boarding a vessel at sea is the most difficult and dangerous aspect of a pilot's job, and that several pilots were injured between 1996 and 1999. Pilots board vessels in the open sea under many different conditions, with considerable risk, and the pilot often receives minimal support from a vessel's crew. The record of the hearing held before the Division of Administrative Hearings does not contain evidence sufficient to form a basis for findings of fact different from, or in addition to, the facts relied on by the Board in its Decision with respect to this criterion, except to the extent specifically set forth in the immediately following paragraphs. Even though they may refuse if conditions are unsafe, as a general rule pilots board and disembark from vessels in the open sea, in all kinds of weather, day and night, on rope ladders that are not fixed, that are sometimes not consistent with standards established by the International Maritime Organization, and that are sometimes in poor repair. Whenever possible, the vessels turn to create a lee, or sheltered side, where the pilot can board and disembark from the vessel with less risk, although it is always possible, even in a calm sea, for a cross swell to hit the vessel during boarding or disembarking. Another point at which a pilot is physically at risk is upon moving from the ladder to the deck of the vessel. Many cruise ships have pilot doors low on the side of the vessel to shorten the distance a pilot must ascend or descend a ladder to board and disembark from the ship. Once the pilot is on board the vessel, he is escorted to the bridge, which is accessible only by stairs, sometimes totaling 100 steps in many modern cargo ships. Special characteristics, dangers, and risks of the particular port. Section 310.151(5)(b)11., Florida Statutes (2000). In its Decision, the Board accepted the findings in the Investigative Committee Report with regard to this statutory criterion, which facts are found at pages 26 and 27 of the report. In its report, the Investigative Committee identified several special characteristics, dangers, and risks of the Port of Miami. It recognized that, due to the velocity and direction of the currents, the proximity of the Gulf Stream presents a variety of challenges to pilots as vessels approach the Outer Bar Channel and that the Gulf Stream, together with northerly winds and a flooding current, make transiting the jetties especially difficult. Because the channel bottom is hard coral from the sea buoy to the berths, it is extremely difficult to handle large, deep-draft vessels to and from the gantry berths, and the current and wind conditions require special handling of these vessels when they dock or turn. In addition, reefs lining the approaches to the Port of Miami are unmarked, and the background light from Miami-Dade County makes it difficult to identify land and navigational marks. Weather can cause hazards to navigation in the Port of Miami, with rapidly changing wind conditions resulting from thunderstorms and with changing tidal conditions resulting from heavy rains. In addition, northwesterly and northeasterly winds cause heavy sets on a flood tide for vessels passing through the jetties. The record of the hearing held before the Division of Administrative Hearings does not contain evidence sufficient to form a basis for findings of fact different from, or in addition to, the facts relied on by the Board in its Decision with respect to this criterion, except to the extent specifically set forth in the immediately following paragraphs. 16/ The complexity of the waterway poses a high risk to vessels being piloted into the Port of Miami. Waterway complexity at the Port of Miami includes the amount of crossing traffic, turns in the channel, converging traffic from different channels, background lighting, and the large number of small pleasure craft in and around the channels. The hard rock bottom of the channels poses a high risk to vessels being piloted into the Port of Miami. The channel is dredged in a "U" shape, forming a narrow underwater trench through which vessels must pass, and vessels can be seriously damaged if they come into contact with the sides of the trench. Any other factors the board deems relevant in determining a just and reasonable rate. Section 310.151(5)(b)12., Florida Statutes (2000). In its Decision, the Board determined that there were no such factors. The record of the hearing held before the Division of Administrative Hearings does not contain any evidence sufficient to form a basis for findings of fact different from, or in addition to, the Board's finding. The board may take into consideration the consumer price index or any other comparable economic indicator when fixing rates of pilotage; however, because the consumer price index or such other comparable economic indicator is primarily related to net income rather than rates, the board shall not use it as the sole factor in fixing rates of pilotage. Section 310.151(5)(c), Florida Statutes (2000). In its Decision, the Board accepted the findings in the Investigative Committee Report with regard to this statutory criterion, which facts are found at pages 28 and 29 of the report and in the attachments thereto. In its report, the Investigative Committee found that the Consumer Price Index ("CPI") had increased 17.8 percent since January 1, 1993, the date of the last pilotage rate increase, and 22.9 percent since October 1991, the date of the Pilots' Association's last application for a rate increase. In reaching its conclusion that some increase in pilotage rates at the Port of Miami is justified, the Board noted in its Decision that it considered it compelling that the CPI had increased 17.8 percent since the last rate increase and that pilotage rates at the Port of Miami had not increased for seven years. The record of the hearing held before the Division of Administrative Hearings does not contain any evidence sufficient to form a basis for findings of fact different from, or in addition to, the facts relied on by the Board in its Decision with respect to this criterion. Taken in its entirety, the evidence presented by the Cargo Carriers Association and the Pilots' Association in this proceeding with respect to the statutory factors set forth in Section 310.1151(5)(b) and (c), Florida Statutes (2000), yielded findings of fact in addition to those found by the Board in its Decision. There was not sufficient credible and persuasive evidence presented by the Cargo Carriers Association to support a finding of fact contrary to the findings of the Board in its Decision.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Pilotage Rate Review Board consider the additional facts established by the evidence presented at the hearing before the Division of Administrative Hearings in determining, in accordance with its interpretation of its statutory mandate, its expertise, and the appropriate policy considerations, whether the Decision on the Biscayne Bay Pilots' Association Pilotage Rate Increase Application in the Port of Miami, filed March 9, 2000, will result in fair, just, and reasonable pilotage rates at the Port of Miami. DONE AND ENTERED this 11th day of January, 2001, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of January, 2001.
The Issue The issue is whether Petitioner owes tax, penalty, and interest under Section 212.05(1)(a)2., Florida Statutes,1/ for an aircraft that it allegedly purchased and used in Florida.
Findings Of Fact Petitioner is a national banking and trust company headquartered in Utah. It does not have any operations or personnel in Florida. Petitioner routinely serves as “owner trustee” for non- U.S. citizens who want to register aircraft with the Federal Aviation Administration (FAA). Petitioner charges a fee (typically $4,000) to set up the trust, as well as an annual fee (typically $2,000) for its services as “owner trustee.” Petitioner holds legal title to the aircraft in its capacity as “owner trustee” because the FAA regulations do not allow non-U.S. citizens to register aircraft. Petitioner does not have any operational control over the aircraft even though it holds legal title. The tax assessment at issue in this case relates to a Cessna Citation 650 jet, tail number N385EM (hereafter “the aircraft”), which Petitioner holds legal title to as “owner trustee” pursuant to a Trust Agreement dated April 28, 2007. The trustor and beneficiary under the Trust Agreement is MAW.ZC, LLC, which is a Delaware limited liability company, controlled by a non-U.S. citizen, Nelson Ceballos. The sole purpose of the trust was to “ensure the eligibility of the Aircraft for United States registration with the [FAA].” The aircraft was purchased from Southern Jet Center (SJC) in Sanford, Florida, on May 3, 2007, for $3.74 million. The “purchaser” identified on the Bill of Sale was “Wells Fargo Bank Northwest, NA as Owner Trustee under Trust Agreement dated 4/28/07.” MAW.ZC, LLC, was not mentioned on the Bill of Sale. Petitioner’s witness, Jon Croasman, testified that MAW.ZC, LLC, negotiated the purchase of the aircraft with SJC, and then assigned the purchase right to Petitioner as “owner trustee” so that the aircraft would not lose its tail number and it would be easier to register the aircraft with the FAA. The record does not contain a written purchase agreement between MAW.ZC, LLC, and SJC or a written assignment of the purchase right from MAW.ZC, LLC, to Petitioner. According to Mr. Croasman, SJC was “kind of an unsophisticated seller” and it did not require these documents. Mr. Croasman was the only witness with personal knowledge of the events surrounding the purchase of the aircraft who testified at the final hearing. His testimony was logical and persuasive and is accepted as credible despite the absence of corroborating documentation. Petitioner did not pay anything to SJC for the purchase of the aircraft. The entire $3.74 million purchase price was paid by MAW.ZC, LLC. Petitioner was the purchaser of the aircraft in name only. The real purchaser was MAW.ZC, LLC. On May 4, 2007, Petitioner filed an application to register the aircraft with the FAA. The applicant listed on the application form was “Wells Fargo Bank Northwest, National Association, not in its individual capacity but solely as Owner Trustee under a Trust Agreement dated as of 4/28/07.” On the same day, the FAA issued a certificate of registration for the aircraft. The certificate was issued to “Wells Fargo Bank Northwest NA Trustee.” Registration of an aircraft with the FAA has no bearing on its ownership. Indeed, the official registration document for the aircraft issued by the FAA states: “This certificate is issued for registration purposes only and is not a certificate of title. The Federal Aviation Administration does not determine rights of ownership as between private parties.” On May 7, 2007, Petitioner filed with the Department an Affidavit for Exemption of Aircraft Sold for Removal from the State of Florida by a Nonresident Purchaser (hereafter “the Removal Affidavit”). The affidavit identified the purchaser of the aircraft as “Wells Fargo bank Northwest, NA, not in its individual capacity but solely as Owner Trustee for MAW.ZC, LLC.” The aircraft remained in Florida undergoing repairs at SJC from the date of purchase until July 2, 2007, when it was flown to Venezuela where it was based. It is undisputed that the aircraft left Florida within 20 days after the initial repairs were completed and, therefore, the sale was exempt from the sales tax. The Department informed Petitioner in a letter dated July 13, 2007, that the aircraft could not be brought back into Florida for a period of six months without its becoming subject to Florida’s use tax. Petitioner forwarded this letter to Mr. Ceballos, since he and MAW.ZC, LLC, were responsible for the operation of the aircraft. Petitioner did not exercise any control over the operation of the aircraft after its purchase. In April 2007, prior to the purchase of the aircraft, Petitioner and MAW.ZC, LLC, entered into an Aircraft Operating Agreement. This agreement was executed in conjunction with the Trust Agreement in anticipation of the purchase of the aircraft. The Aircraft Operating Agreement gave MAW.ZC, LLC, “an exclusive right to possess, use and operate the Aircraft.” The agreement required MAW.ZC, LLC, to pay all costs associated with the operation and maintenance of the aircraft. And, with respect to the operation of the aircraft, the agreement required only that MAW.ZC, LLC, cause the Aircraft to be operated by competent personnel in accordance with the manufacturer’s manuals and FAA and other government regulations. On June 15, 2007, Petitioner authorized Captain Alexander Nunez to pilot the aircraft “wherever necessary and specifically including but not limited to Venezuelan air space.” Petitioner interprets the Trust Agreement and the Aircraft Operating Agreement to preclude it from exercising any control over the operation of the aircraft even though Section 9.01(a) of the Trust Agreement gives Petitioner “absolute and complete discretion” in connection with matters involving the ownership and operation of the aircraft so as to protect the interests of the United States. According to Mr. Croasman, the language in Section 9.01 is required verbatim by the FAA for the sole purpose of ensuring that Petitioner, as “owner trustee,” will be able to operate the aircraft without violating its obligations under the Trust Agreement in the unlikely event that the U.S. government needs to use the aircraft for some reason.2/ And, as Mr. Croasman pointed out, Section 9.01(a) requires Petitioner to “exercise this discretion in all matters involving ownership and operation of the Aircraft by the Owner Trustee with due regard for the interests of the Trustor.” The Trust Agreement and the Aircraft Operating Agreement provided that MAW.ZC, LLC, was responsible for keeping records concerning the use of the aircraft. MAW.ZC, LLC, was also responsible for paying any taxes or expenses related to purchase or use of the aircraft. The aircraft crashed in Venezuela on February 18, 2008, killing Mr. Ceballos, Captain Nunez, and the copilot. The original flight records for the aircraft were destroyed in the crash, and no copies of those records were presented at the final hearing. No witness with personal knowledge regarding the operation of the aircraft was presented at the final hearing. The only evidence presented concerning the operation of the aircraft was flight data obtained from two Internet sources, FlightAware and fboweb.com. The FlightAware data was obtained by Department staff as part of their monitoring of the aircraft’s operation during the six-month period after its initial departure from Florida. The fboweb.com data was provided to the Department by David McDonald, the attorney for MAW.ZC, LLC, and Mr. Ceballos, who was acting as Petitioner’s authorized representative during the investigation and protest phase of this case. There is no evidence that Mr. McDonald had any personal knowledge of the information contained in the fboweb.com data, and he did not present it to the Department as his understanding of the aircraft’s operation. Indeed, the letter by which Mr. McDonald transmitted the fboweb.com data to the Department stated that he was “having trouble trying to decipher the information provided by fboweb.com” and that he was providing it to the Department because it appeared to be inconsistent with the FlightAware data conveyed to him by the Department staff. Mr. McDonald never expressly contested the assertion by the Department staff that the aircraft returned to Florida within the six months after it initial departure. His failure to do so was not, under the circumstances, an admission or acquiescence to the Department’s position that the aircraft did return to Florida within that period. Indeed, he informed the Department staff on several occasions that he had not been able to obtain information concerning the aircraft’s operation because the aircraft’s flight records were destroyed in the crash. No credible evidence was presented as to what the FlightAware or fboweb.com services are, or how they obtain the flight data included in their records. For example, when asked to explain her “understanding of what Flight Aware is,” the Department witness used to introduce the data testified only that “[i]t’s a service that the Department subscribes to to track the flights for the aircraft.” The FlightAware data indicates that the aircraft made eleven flights into Florida between September 2007 and January 2008: Flight Date Destination 1 9/22/07 from Arturo Michelena International Airport (Arturo) in Venezuela to Kendall-Tamiami Executive Airport, and then to Simon Bolívar International Airport in Venezuela by way of Ft. Lauderdale Executive Airport on the same day 2 9/29/07 from Arturo to Hollywood International Airport (FLL), and then to Simon Bolivar International Airport the following day 3 10/1/07 from Arturo to FLL, and then back to Arturo the same day 4 10/4/07 from Arturo to FLL, then to Orlando Sanford International Airport (SFB) the following day, with a return to Arturo by way of FLL and Nassau International Airport on October 14 5 10/15/07 from Arturo to FLL, then to SFB on the same day 6 12/16/07 from Arturo to FLL, then to SFB the same day, with a return to Arturo on December 20 7 12/21/07 from Arturo to FLL, and then back to Arturo on the same day 8 12/23/07 from Arturo to FLL, and then back to Arturo on the same day 9 1/3/08 from Punta Cara International Airport to FLL, then to SFB on the same day, with a return to Arturo by way of FLL on January 6 10 1/10/08 from Arturo to FLL, and then back to Arturo on January 12 11 1/13/08 from Arturo to FLL, and then back to Arturo on the same day The fboweb.com data is, as Mr. McDonald noted, difficult to decipher. However, it appears to include most, if not all, of the flights that were listed in the FlightAware data. The fboweb.com data also lists flights on September 8- 9, 2007, between Arturo, FLL, and SFB. Those flights were not listed in the FlightAware data. No findings can be made as to whether the aircraft was indeed in Florida on the dates reflected in the FlightAware or fboweb.com data because that data is uncorroborated hearsay. Even if the FlightAware and fboweb.com data could be relied upon to establish that the aircraft was in Florida on the dates referenced above, only the September 8-9 flights listed in the fboweb.com data and the first eight flights listed in the FlightAware data would be relevant. The other three flights listed in the FlightAware data -– 1/3/08, 1/10/08, and 1/13/08 - – occurred more than six months after the aircraft’s initial departure from Florida on July 2, 2007. Mr. McDonald was able to locate and provide to the Department repair invoices related to only four of the nine relevant flights listed in the FlightAware and fboweb.com data – - 9/8/07, 10/4/07, 10/15/07, and 12/16/07. On each of those occasions, there is documentation showing that the aircraft underwent repairs at SJC in Sanford. There is no evidence that the aircraft underwent repairs in connection with the other five flights listed in the FlightAware data -– 9/22/07, 9/29/07, 10/1/07, 12/21/07, and 12/23/07. Mr. McDonald provided an invoice for a part that was purchased for the aircraft at FLL on September 29, 2007, but there is no evidence that the part was installed in Florida on that trip. No sales or use tax was paid on the aircraft by Petitioner or any other entity or person to Florida or to any other state or country. Petitioner does not dispute the amount of the tax, penalty, or interest calculated by the Department in the Notice of Reconsideration. The tax is $224,400, which is six percent of the sales price of the aircraft; the penalty is $224,400, which is 100 percent of the tax as required by Section 212.05(1)(a)2., Florida Statutes; and interest is accruing at a rate of $67.44 per day, with $27,273.10 of interest having accrued through the date of the Notice of Reconsideration. These amounts were assessed against Petitioner in its capacity as “owner trustee,” not its individual capacity.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department issue a final order rescinding the assessment at issue in this case. DONE AND ENTERED this 19th day of August, 2009, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II 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 19th day of August, 2009.
The Issue The issue is whether the Department of Transportation (the "Department") properly issued an Airport Site Approval Order to Monroe Airport, a private airport in Putnam County, in accordance with section 330.30, Florida Statutes, and Florida Administrative Code Rule 14-60.005.
Findings Of Fact The Department is the agency of the State of Florida granted authority to issue Airport Site Approval Orders, license public airports, and register private airports. § 330.30, Fla. Stat. A "public airport" is an airport, publicly or privately owned, that is open for use by the public. A "private airport" is an airport, publicly or privately owned, that is not open for use by the public but may be made available to others by invitation of the owner or manager. § 330.27(5)&(6), Fla. Stat. With some exceptions not relevant to this case, the owner or lessee of any proposed airport must obtain site approval from the Department "prior to site acquisition or construction or establishment of the proposed airport." § 330.30(1), Fla. Stat. Section 330.30(1) provides that applications for approval of a site "shall be made in a form and manner prescribed by the department." The statute requires the Department to grant the site approval if it is satisfied: that the site has adequate area for the proposed airport; that the proposed airport will conform to licensing or registration requirements and will comply with local land development regulations or zoning requirements; that all affected airports, local governments, and property owners have been notified and any comments submitted by them have been given adequate consideration; and that safe air-traffic patterns can be established for the proposed airport with all existing airports and approved airport sites in its vicinity. § 330.30(1)(a), Fla. Stat. Michael Monroe is the owner of property in Crescent City on which he proposes to place a private airport. Mr. Monroe has in fact constructed an airstrip on the property. In constructing his airstrip in 2008, Mr. Monroe caused the dredging and filling of jurisdictional wetlands without a permit. An enforcement action by the Department of Environmental Protection led to a consent order dated October 28, 2009. The consent order required payment of a civil penalty and required Mr. Monroe to undertake various actions in mitigation of his unpermitted wetlands activities. The Department's Aviation Office sent a cease and desist letter to Mr. Monroe, dated April 27, 2010, and signed by Micki Liddell, then the Department's Private Airport Registration Manager. The letter stated as follows, in relevant part: This letter is follow-up to our telephone conversation of this date regarding a citizen complaint received by the Florida Department of Transportation (FDOT) April 27, 2010, concerning allegations of flight operations to and from your property. The law (section 330.30, F.S.) states that the owner or lessee of any proposed airport shall obtain approval of the airport site by the Department and subsequently shall have either a public airport license or private airport registration "prior to the operation of aircraft to or from the facility." Our records show that neither an Airport Site Approval Order nor airport license or private airport registration have been issued by the Department for your residence. Flight operations to and from your residence would confirm that your residence is being used as an "airport" and being unauthorized by the Department would constitute a violation of Florida law and could put a site approval request in jeopardy. In that regard, the Department hereby advises you to cease all flight operations to and from your residence until such time as you have followed the appropriate procedures to obtain airspace approval from the Federal Aviation Administration (FAA), local zoning approval, airport site approval and private airport registration from the Department, provided your site meets the criteria of chapter 330, Florida Statutes. At the final hearing, Mr. Monroe testified that he had flown planes in and out of his property on four occasions prior to the issuance of the cease and desist letter. He stated that he has only flown a plane out of his property on one occasion since receiving the cease and desist letter, and that he had received verbal approval from the Department for the flight. On July 30, 2010, Mr. Monroe received airspace approval from the FAA for a private use landing area, with the following provisos: a) all operations will be conducted in VFR weather conditions; b) the landing area will be limited to private use; and c) an operational letter of agreement ("LOA") will be entered between Mr. Monroe, and the owners of nearby airfields Eagle's Nest Aerodrome, Mount Royal Airport, Jim Finlay Airport, and Thunderbird Airpark, to provide for compatible traffic pattern operations, considering common radio frequencies, traffic pattern altitudes, and other items as appropriate. The FAA also recommended certain approach slope ratios and centerline separation from roads and other objects. On November 15, 2010, the FAA issued an amended determination providing a fourth condition to its approval: that all arrivals, departures and traffic pattern operations remain clear of a nearby military restricted area. In August 2010, Mr. Monroe applied to the Putnam County Zoning Board of Adjustment for a special use permit ("SUP") to allow a private airport on his property, which was zoned Agricultural. At its public meeting on October 20, 2010, the Zoning Board unanimously denied the SUP after hearing Petitioner and a representative of the U.S. Navy speak in opposition. The Navy had initially contended that the airport would be located within the restricted airspace of the Lake George bombing range. Further review confirmed that the airport was outside that particular restricted airspace, but the Navy continued to assert that the airport was within the generally restricted airspace of its military operating area. After clarifying that the airport property was not in restricted airspace, Mr. Monroe reapplied for the SUP in September 2011. By Final Order dated November 16, 2011, the Zoning Board issued SUP-11-009 to Mr. Monroe and his wife, finding that the Putnam County Land Development Code allowed for a private aircraft landing facility by SUP in an Agricultural zoning district and that the proposed special use "will not adversely affect the general public health, safety and welfare of the residents of Putnam County." Appended to the Final Order were minutes of the public hearings, schematics of Mr. Monroe's property, and a Department of Environmental Protection closure request form stating that the conditions of the October 28, 2009, consent order had been satisfactorily completed. On January 27, 2012, Mr. Monroe submitted a site approval application to the Department, using the interactive internet-based system established under rule 14-60.005(3)(b). Rule 14-60.005(4) sets forth the following as conditions for site approval: The Department shall grant site approval for a proposed airport that complies with all the requirements of section 330.30, Florida Statutes, subject to any reasonable conditions necessary to protect the public health, safety, or welfare. Such conditions shall include operations limited to VFR flight conditions,[2/] restricted approach or takeoff direction from only one end of a runway, specified air-traffic pattern layouts to help prevent mid-air collision conflict with aircraft flying at another nearby airport, airport noise abatement procedures in order to satisfy community standards, or other environmental compatibility measures. Rule 14-60.005(5)(a)-(m) sets forth the supporting documentation that an applicant for a public airport site approval must submit to allow the Department to make its site approval determination and "to ensure the applicant's satisfaction of conditions" set forth in subsection (4) above. The supporting documentation is as follows: Property Rights. Provide a copy of written legal confirmation of ownership, option to buy, or lease agreement for the real property that comprises the site on which the proposed airport would be located. Although adequate safety areas surrounding an airport site are important and a factor in the Department’s approval determination, the applicant is not required to hold property rights over those real property areas that would constitute runway approach surfaces. Facility Diagram. Provide a scale drawing showing the size and dimensions of the proposed facility; property rights of way and easements; lighting, power, and telephone poles; location of building(s) on property and surrounding areas; and direction, distance, and height of all structures over 25 feet within 1,000 feet of the site perimeter. Geodetic Position. Provide a copy of a U.S. Geological Survey quadrangle map or equivalent with the proposed site plotted to the nearest second of latitude and longitude. Location Map. Provide a copy of a map or sketch, at least 8.5 x 11 inches in size, showing the location of the proposed site, with respect to recognizable landmarks and access roads to the site clearly marked. Aviation Facilities. Provide a list of names and mailing addresses for adjacent airports, including a sample copy of the letter submitted as proposal notification to these airports, and attach a copy of all airport reply correspondence. For a proposed airport or seaplane landing facility, list all VFR airports and heliports within five nautical miles and all IFR airports within 20 nautical miles. For a proposed heliport, list all VFR airports and heliports within three nautical miles and all IFR airports within 10 nautical miles. Local Government. Provide a copy of each of the letters of notification, showing the recipient's name and mailing address, that have been submitted to each zoning authority having jurisdiction, for the municipality and county in which the site lies or which is located within five nautical miles of the proposed airport site. The applicant shall also include a copy of all related correspondence from each city or county authority, including a statement that the proposed airport site is in compliance with local zoning requirements or that such requirements are not applicable. Adjacent Property. Provide a list of the names and mailing addresses of all real property owners within 1,000 feet of the airport site perimeter, or within 300 feet of the heliport or helistop site perimeter, including a single copy of the letter of notification submitted as notification to these adjacent real property owners, and include a copy of all real property owner correspondence in reply. If notification was provided by a local government as part of its review and approval process for the airport, provide written confirmation of the fact, in lieu of the above required submittal by the applicant. Public Notice. Provide a copy of the notice and of the letter, showing the recipient's name and mailing address, requesting publication of notification of the proposed airport site in a newspaper of general circulation in the county in which the proposed airport site is located and counties within five nautical miles of the proposed airport site. If this condition has been accomplished by a local government as part of its review and approval process for the airport, provide written confirmation of the fact, in lieu of the above required submittal by the applicant. Waste Sites. Provide written confirmation that the runway(s) on the proposed airport would not be located within 5,000 feet of any solid waste management facility for a proposed airport serving only non-turbine aircraft, or within 10,000 feet of any solid waste management facility for a proposed airport serving turbine-driven aircraft. Air Traffic Pattern. Provide written confirmation, including a graphical depiction, demonstrating that safe air traffic patterns can be established for the proposed airport with all existing and approved airport sites within three miles of the proposed airport site. Provide a copy of written memorandum(s) of understanding or letter(s) of agreement, signed by each respective party, regarding air traffic pattern separation procedures between the parties representing the proposed airport and any existing airport(s) or approved airport site(s) located within three miles of the proposed site. Safety Factors. Provide written confirmation that the runway and taxiway design criteria and airport design layout of the proposed airport have appropriately taken into account consideration of the manufacturer's performance characteristics for the type(s) of aircraft planned to be operated; the frequency and type(s) of flight operations to be anticipated; planned aviation-related or non-aviation activities on the airport; and any other safety considerations, as necessary, to help ensure the general public health, safety, and welfare of persons located on or near the airport. Security Factors. Provide written confirmation that the proposed airport site owner or lessee will take appropriate steps to help protect the general public health, safety, and welfare through secure airport operations and that they will develop and implement adequate airport security measures to safeguard airport and aviation-related assets from misappropriation or misuse in order to prevent potential loss or public endangerment. FAA Approval. Provide a copy of the notification to the FAA regarding the proposed airport site and a copy of the FAA's airspace approval correspondence given in response. Rule 14-60.005(6) provides that an applicant for private airport site approval is subject to the same requirements as stated for a public airport site approval applicant. However, private airport applicants are not required to submit a hard copy, written site approval application nor the supporting documentation set forth in the preceding paragraph. Private airport site approval applicants are required to "retain for their records all of the required documentation related to the site approval application, in order to be able to respond to any possible future local, state, or federal inquiry." The private airport site approval applicant submits his application through a Department website. Once the applicant obtains a user ID and password to the site, he proceeds to an interactive site approval screen that requires him to provide the following data: type of facility (airport, heliport, or ultralight); personal information (name, address, phone number, fax number, and email address); facility data (facility name, physical location, geographical information -- latitude, longitude, and elevation -- and primary type of facility use); and landing area data (runway/helipad magnetic bearing, length, width, and type of surface -- paved/unpaved). The applicant is also required to certify that he has completed all the conditions set forth in rule 14-60.005(5)(a)- (m). The applicant must check a certification box next to each and every requirement of the rule. For example, as to the requirement of rule 14-60.005(5)(c), the applicant checks a box next to the following statement: Geodetic Position -- I certify that I have a copy of a U.S. Geological Survey quadrangle map or equivalent with the proposed site plotted to the nearest second of latitude and longitude. In other words, as a private airport applicant, Mr. Monroe was not required under the rule to submit the supporting documentation demonstrating his satisfaction of the conditions set forth in rule 14-60.005(5), but he was required to certify that at the time of his application he possessed all such documentation and was capable of submitting it in response to a governmental inquiry. On March 1, 2012, the Department issued an Airport Site Approval Order to Mr. Monroe, to be effective April 15, 2012. On April 6, 2012, Petitioner timely filed a challenge to the site approval order. Petitioner is the owner of property directly abutting the southeast corner of Mr. Monroe's property. Petitioner raises goats on her property, and contends that low- flying planes frighten her animals, causing them to stampede and injure themselves. Petitioner's challenge has stayed the effective date of the site approval order. David Roberts, the Department's aviation operations administrator, testified that in preparation for this proceeding he asked Mr. Monroe to produce all the documentation which he had certified to meet the requirements of rule 14-60.005(5)(a)- (m). The Department introduced into evidence all of the documents that Mr. Monroe provided in response to Mr. Roberts' request. As to rule 14-60.005(5)(a), Mr. Monroe provided copies of his deed for and mortgage on the Crescent City property sufficient to establish his property rights to the site on which the proposed airport is to be located. As to rule 14-60.005(5)(b), Mr. Monroe provided a hand drawing of the property indicating the configuration of the airstrip and showing the general locations of the entrance gate, barn, pond, bridge, and trailer on the property. The map is not drawn to scale and does not show property rights of way and easements or lighting, power and telephone poles. The map does not indicate the "direction, distance, and height of all structures over 25 feet within 1,000 feet of the site perimeter," but Mr. Monroe's testimony that there are no such structures is credited. As to rule 14-60.005(5)(c), Mr. Monroe provided a personally commissioned survey map of the property that the Department accepted as the "equivalent" of a U.S. Geological Survey quadrangle map. As to rule 14-60.005(5)(d), Mr. Monroe provided a map, but not one that showed "recognizable landmarks and access roads." As to rule 14-60.005(5)(e), Mr. Monroe submitted a list of five airports that met the notification requirement: Eagle's Nest Aerodrome, Mount Royal Airport, Jim Finlay Airport, Thunderbird Airpark, and Palatka Municipal Airport, also known as Kay Larkin Field. Mr. Monroe also included a sample copy of the letter providing proposal notification to these airports. The only direct reply correspondence that Mr. Monroe submitted was an emailed letter of congratulations from the manager of Palatka Municipal Airport, dated May 15, 2012. Mr. Monroe also submitted a June 10, 2012, email from Jim Manus of Royal Park Airport in support of Mr. Monroe's intent to align his common traffic advisory frequency ("CTAF") with that of Mount Royal and Eagle's Nest. The tone of Mr. Manus' correspondence indicates approval of Mr. Monroe's airport. No response was provided from Jim Finlay, Thunderbird, or Eagle's Nest.3/ As to rule 14-60.005(5)(f), Mr. Monroe provided copies of his letters of notification to the Marion County director of growth management and the Volusia County growth and resource management office. Volusia County responded by stating that it took no issue with the proposed airport and that the FAA had informed the county that it needed to take no action on the matter. Mr. Monroe provided no response from Marion County. As to the notice requirements of rule 14- 60.005(5)(g)&(h), Mr. Monroe provided a list of names and addresses of nearby property owners along with a letter of notification dated August 30, 2004, stating Mr. Monroe's intention to establish an airstrip on his property. He included no reply correspondence. Petitioner rightly argues that an eight-year-old letter cannot be held to meet the notice requirement of the rule. Though the rule does not state a temporal limitation as to the notice, the context of the notice requirement clearly requires the applicant to provide his neighbors with notice of the pending site approval. However, Mr. Monroe also provided the receipt from a newspaper notice that he ran in 2010 regarding his SUP application and he credibly testified that the county notified his neighbors prior to issuance of the SUP. Thus, the requirements of rule 14- 60.005(5)(g)&(h) were met. As to rule 14-60.005(5)(i), Mr. Monroe submitted documentation that demonstrated there are no active solid waste management facilities within the prescribed distances. As to rule 14-60.005(5)(j), Mr. Monroe provided a graphical depiction of the traffic pattern and approaches to his own proposed airport. The depiction also lists radio frequencies for Mr. Monroe's airport, Mount Royal, and Eagle's Nest. Mr. Monroe did not submit any documentation to demonstrate that safe traffic patterns can be established for the proposed airport with all existing airport sites within three miles of the proposed airport. Mr. Monroe also did not submit written memoranda of understanding or letters of agreement with the other airports as regards air traffic pattern separation procedures. As to rule 14-60.005(5)(k)&(l), Mr. Monroe submitted an opinion letter from aviation consultant Robert E. Babis, dated April 19, 2012, addressing safety and security factors at the proposed airport. Mr. Babis stated that he was a retired Department public transportation manager, a flight instructor, airport inspector, and aviation planner. Mr. Babis further stated that he has inspected and landed at over 200 private airports in Florida. Mr. Babis concluded that Mr. Monroe's airport "is a safe and secure facility with a very low risk for operational accidents or illegal activities." The Department reasonably accepted this letter as satisfying the criteria of rule 14-60.005(5)(k)&(l). As to rule 14-60.005(5)(m), Mr. Monroe submitted a copy of his amended FAA approval determination, dated November 15, 2010. Petitioner noted that Mr. Monroe has yet to fulfill one of the conditions of the FAA determination: he has yet to produce an operational LOA with the owners of Eagle's Nest, Mount Royal, Jim Finlay, and Thunderbird to provide for compatible traffic pattern operations, common radio frequencies, traffic pattern altitudes, and other items as appropriate. In summary, the evidence presented at the hearing demonstrated that, despite his certification otherwise, Mr. Monroe did not possess all the documentation required by rule 14-60.005(5)(a)-(m). Mr. Monroe did not meet the requirement of paragraph (b) that he provide a scale drawing showing property rights of way or easements, lighting, power and telephone poles. He did not meet the requirement of paragraph (d) that his map show recognizable landmarks and access roads. Most importantly, Mr. Monroe did not meet the requirement of paragraph (j) that he submit documentation demonstrating that safe traffic patterns can be established for the proposed airport with all existing airports within three miles. This failure, coupled with Mr. Monroe's failure to fulfill his commitment to the FAA that he would enter an LOA with the owners of four nearby airports, not to mention Mr. Monroe's history of building his airstrip and flying in and out of his property before obtaining legal permission to do so, indicates a casual approach to regulatory compliance that should give the Department pause in granting site approval. At the final hearing, Mr. Roberts of the Department testified that because a private applicant such as Mr. Monroe is not required to submit his supporting documentation to the Department to demonstrate compliance with rule 14-60.005(5)(a)- (m), the Department may not deny the site approval to Mr. Monroe once he has certified that he has all the documentation. Mr. Roberts testified that the Department's only recourse upon learning that Mr. Monroe in fact does not have the documentation would be to revoke the site approval order. The Department's rule sets forth the criteria for revocation of a site approval order. One of the grounds for revocation is a Department determination that "aircraft have operated on the site prior to airport licensing or registration, except as required for an in-flight emergency." Fla. Admin. Code R. 14-60.005(8)(b)3. By his own admission, Mr. Monroe flew into and out of his property prior to registration.4/ However, Mr. Roberts testified that the Department could not base a revocation action on those flights because they occurred prior to the date on which Mr. Monroe applied for site approval. Mr. Roberts could cite to no language in the rule that supported his restrictive view of the revocation provision. The Department does not persist in supporting Mr. Roberts' reasoning in its Proposed Recommended Order. The Department concedes that Mr. Monroe has failed to meet all the documentation criteria set forth in the rule and that it has the authority to deny the site approval order. The Department does not concede that the maps submitted in response to paragraphs (b) and (d) of rule 14-60.005(5) are deficient, but it does concede that Mr. Monroe failed to comply with paragraph (j) regarding the LOA setting forth jointly agreed-upon departure and arrival routes and common radio frequencies with the other nearby airports. The Department argues that Mr. Monroe should nonetheless be granted a Site Approval Order, subject to the condition that Mr. Monroe enter into an LOA establishing safe traffic patterns and radio frequencies with all airfields within three miles of his facility. The Department notes that if Mr. Monroe's application were denied in this proceeding, he could immediately procure the LOA and reapply. Granting the site approval in this proceeding would merely obviate the need for Mr. Monroe to take that largely redundant step. As authority for its contention that it may issue a site approval order prior to an applicant's compliance with all provisions of rule 14-60.005(5), the Department cites section 330.30(1)(d), which states: "Site approval may be granted subject to any reasonable conditions the department deems necessary to protect the public health, safety, or welfare."5/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation enter a final order denying the site approval application of Michael D. Monroe and withdrawing the Airport Site Approval Order issued to Mr. Monroe on March 1, 2012, Site Approval Number SW2012-FLA-0117-AP. DONE AND ENTERED this 21st day of February, 2013, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of February, 2013.
Findings Of Fact By application dated May 10, 1987, and subscribed to on December 18, 1987, the Petitioner applied to the Department for approval and licensing of a seaplane airport site for his own private usage (P-2) . The Petitioner is appropriately licensed as a seaplane pilot. The location of the proposed airport is Pate Lake, located near Caryville, in Washington County, Florida. Pate Lake is approximately one mile by three-quarters of one mile in size, large enough to accommodate the Petitioner's proposed airport. The Petitioner's seaplane is currently and would remain based on the west side of the lake, where the Petitioner owns a parcel of land. The Petitioner has utilized Pate Lake as a base of operation for the seaplane on an irregular basis for several years. The seaplane is a single-engine Balanca Citaba, similar in size to a Piper Cub. The plane carries a maximum of two persons, including the pilot. The engine produces 150 horsepower and has a muffled exhaust. There was no reliable evidence which would indicate the decibel level or amount of noise that is generated by the seaplane on takeoff, however the noise at landing is minimal because landings are accomplished with the engine thrust significantly reduced. Pate Lake is relatively remote with limited population, however the population residing near the water is generally concentrated on the western side of the lake. The lake is used primarily for fishing and other recreational activities. A public boat ramp is also located on the west side of Pate Lake, approximately 400 to 500 feet from the Petitioner's property, according to a map prepared by the Department and introduced by the Petitioner (P-12). The number and type of recreational users of the lake depend on the weather and time of year, with an estimated 15 to 20 fishing boats on the lake simultaneously when conditions warrant. In December, 1987, an on-site inspection of the proposed airport area was performed by Larry Parker, an aviation specialist with the Department. Parker determined that the site was feasible for use as proposed by the Petitioner and "can meet the requirements set forth in Airport Licensing and Zoning Rule Chapter 14-60" (P-4). By letter dated December 30, 1987, the administrator for the Washington County Commission advised the Department that there were no restrictions which would prohibit the establishment of the seaplane base (P-5). There is no relevant zoning ordinance applicable to Washington County. By letter dated March 2, 1988, the Petitioner was advised by the Federal Aviation Administration that the proposed airport would "not adversely affect the safe and efficient use of airspace by aircraft" provided that operations were limited to VFR (visual flight rules) weather conditions, and that the airport were limited to private use. The F.A.A. specifically "did not consider the interaction of sea plane operations with surface craft traffic..." (P-6). On May 2, 1988, the department issued a "Notice of Intent" to approve the airport and issue the license (P-3). A public meeting was subsequently held on June 8, 1988, at which time an unknown number of persons apparently objected to the Department's intended approval of the license application. On June 16, 1988, a resolution was adopted by the Washington County Board of County Commissioners at which time the Board expressed opposition "to the permitting of a Seaplane operation on Pate Pond" (P-8). The resolution clearly indicates that the Board acted, at least in part, in the belief that "a commercial Seaplane operation is contemplated on the lake..." and that property owners in the area objected to the proposal. By memo dated July 11, 1988, Larry Parker, the district aviation specialist for the Department forwarded materials from the public meeting to his supervisor, Bobby Grice (P-9). At that time, Parker reiterated his opinion that the proposed airport site met "the safety standards as outlined in Rule 14-60", and that the Petitioner could operate in a safe manner from Pate Lake. By letter dated July, 27, 1988, the Petitioner received notice from the Department that it intended to deny his application for approval of his Pate Lake seaplane base (P-10). The Department stated that the denial was based on the County Commission resolution of June 16th, which "the department accepts...as equivalent to zoning refusal by the Washington County Commission." Further the Department cited comments "submitted by many of the nearby landowners and they are opposed to a seaplane base on Pate Lake on the basis of noise and safety." The Department's action followed the recommendation of Mr. Grice to deny the application. Mr. Grice based his recommendation on safety concerns related to utilization of the recreational lake as a seaplane base. Mr. Grice has visited the Pate Lake area, but has not viewed the Petitioner's seaplane in operation. At the administrative hearing the Department presented the testimony of several persons who reside on or near Pate Lake. The property owners had on infrequent occasions heard or seen a seaplane, allegedly the Petitioner's, flying over their homes at an altitude they believed to be unreasonably low or in a manner which caused what they felt was excessive noise. 1/ No one recalled more than two such incidents over the several years that the Petitioner has utilized the lake as a seaplane base. Other complaints were directed towards the maintenance of the Petitioner's property, which was identified by one witness as an "eyesore". Concerns were voiced related to the witnesses fear of property value depreciation, but there were no facts to support the theoretical depreciation. One witness, a helicopter instruction pilot who visits the area on occasion, observed the seaplane, approximately seven or eight months prior to the hearing, take off and land twice on the same day. The witness testified that the pilot on both occasions flew at an excessively low altitude over the houses on the west side of the lake. The witness estimated the altitude over the houses to be less than 500 feet, an altitude which he believed was a "major judgement error" of the pilot, because an emergency maneuver at that altitude, if necessary, would have been difficult to accomplish. However, the witness, who has no experience with seaplane operations, did not register the incident with any regulatory agency, although he believed it to be a violation of minimum safe altitude regulations. He has not otherwise viewed the seaplane in operation. One witness, a seasonal resident of the lake area who utilizes the lake for fishing, recalled an incident in January or February, 1988, where the Petitioner's plane landed on the lake while the witness was fishing from a small boat in the same vicinity as where the Petitioner was attempting to land. The witness had not heard the plane's approach due to the lack of engine noise until the plane began landing. Although uninjured, he was fearful for his safety during the incident. The witness explained that he was concerned about the personal safety of boaters in the water during the times the seaplane was landing, because the noise level is minimal, and boaters may not be aware of the aircraft's approach. There was no explanation or response offered by the Petitioner to the allegations of the Department's witnesses other than assertions that a seaplane could be operated in such a manner as to prevent low flight over residences and minimize risk to users of the lake. Although there was testimony related to lakes, similar or smaller than Pate Lake, which are allegedly licensed as private seaplane airports, the testimony did not provide evidence sufficient to provide for an accurate comparison between other lakes and Pate Lake.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED: That the Petitioner's application for licensure of Pate Lake as a seaplane base be DENIED. DONE and ORDERED this 20th day of December, 1988, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM 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 20th day of December, 1988.
The Issue Whether the Department of Management Services' (Department) intent to award the contract pursuant to Invitation to Bid (ITB), Bid Number 33-840-980-E, to Frebon International Corporation, (FREBON), the second low bidder by price discount, and to reject the bid offered by Telecom Response, Inc. (TELECOM or TRI), the low bidder by price discount, was contrary to the Department's governing statutes, rules, policies, or the ITB? Further, whether the Department's proposed action was clearly erroneous, contrary to competition, arbitrary, or capricious? See Section 120.57(3), Florida Statutes.
Findings Of Fact The ITB During the spring of this year, the Department developed an ITB for video teleconferencing equipment and video bridging equipment for all State of Florida agencies and other eligible users. Department staff developed the specifications for the ITB. The ITB was a revision of the existing contract held by TRI, which expired on August 20, 2000, rather than a new contract. During the ITB/specifications review process, a new condition was added to require vendors to give a percentage discount from a list price to aid users in getting more choices and complete systems. On May 9, 2000, the Department advertised ITB 33-840- 980-E actively soliciting bids. The bid title refers to "videoteleconferencing equipment." Vendors were notified that bids would be opened on June 14, 2000, at 2:00 p.m. and that the bid tabulations would be posted on July 20, 2000. The ITB contains two (2) pages of general conditions which are used in most if not all Department ITB solicitations. The ITB also contains special conditions which, among other things, provide for the "purpose" and "scope" of the bid. "The purpose of this bid is to establish a 12-month contract for the purchase of Video Teleconferencing Equipment & Video Bridging Equipment by all State of Florida agencies and other eligible users in accordance with the Eligible Users paragraph, General Conditions." (emphasis added). Under the "scope" section, the Department provided: The objective of this Invitation To Bid (ITB) is to establish a contract for the purchase, installation and a maintenance of video teleconferencing systems and bridging equipment. The prospective bidder must offer the complete line of videoconferencing products and/or video bridge products to configure desktop and/or room videoconferencing systems, for each manufacturer bid. In addition the bidder must provide replacement parts as needed for repairs. In accommodating the specific agencies needs for auxiliary hardware necessary to make the videoconferencing equipment and video bridges operationally complete, the bidder must also provide and support the Optional Bid Items as shown in the Price Sheets section of this bid. (bold emphasis in original). This section requires the bidder to offer the complete line of a manufacturer's products to configure desktop and/or room videoconferencing systems for each manufacturer bid, and to further provide optional equipment by brand name, which could include more than one manufacturer. The "prices" section of the ITB also states: [p]rices shall be submitted in the form of a percentage(%) discount off manufacturer's current published price list. Only a single discount may be offered for each category. List Prices & percentage discount will remain firm for the entire contract period. Discounted prices shall be firm net delivered price to ordering agency. A copy of the Manufacturer's unaltered list price sheet as originally published, in general distribution and in effect on the date of bid opening must be submitted with the bid. Failure to include this with bid package will result in rejection of bid. (bold emphasis in original). The "evaluation/award" special condition provides: "Award shall be by manufacturer's products, based on the highest discount given from the manufacturer's list price sheet for each item, on a multiple award basis. If the same manufacturer's brand is bid by more than one bidder, only the bid with the highest discount percentage shall be considered for an award. All other provisions of Awards Paragraph, General Conditions, shall prevail." (emphasis added). Compare with Findings of Fact 12. The Department also provided several specific specifications for video teleconferencing equipment. Subsection 1.1 provides that the specifications were specifically written for two (2) categories of equipment: "(1) Videoconferencing Systems (includes Set-top, Desktop & Room Systems) (2) Video Bridging Systems." There were two types of commodities listed, i.e. videoconferencing equipment and video bridging equipment, types 1 and 2, respectively. Vendors, including TRI, understood that they could bid on either type or both at their choosing. The Department offered detailed specifications for the videoconferencing systems, category one. Specification 3.1.1 deals with "completeness of systems" and provides for room, set- top, and desktop systems. No other systems are discussed in the ITB. "A typical room system would include the codec, monitor(s), rollabout cart, and control unit." "A typical set-top system would include an integrated codec/camera unit; an external microphone pickup, and a control unit." A desktop system would "minimally include the PC codec card, a desktop video camera, a microphone/headset, and all associated cables for network connections & required peripherals." The remaining specifications, Sections 3.1.2 through 3.1.12.8, provide additional requirements for the room, set-top and desktop systems. Specification 3.3 provides for "optional bid items" which are provided for the convenience and benefit of the contract users as well as the awarded vendors. The optional bid items allow the purchaser a 'one-stop' procurement mechanism, as well as facilitating the ability of a contractor to provide a 'complete system' for the purchaser. It is incumbent on the purchaser to 'shop' the contract and purchase products that meet their needs at the lowest net delivered costs. The optional bid items shall never exceed the manufacturer's suggested list price (MSRP). Vendors must list all options to the contract that are to be offered as indicated on the attached bid sheets. The list must describe the item brand name/manufacturer, model number, and the net prices (see optional bid items price sheets). These "optional bid items" are products, which are not subject to the discount referred to in the "prices" or "evaluation/award" sections of the ITB. The ITB contains a price sheet for "videoconferencing systems" which, among other things, requires the vendor to provide the manufacturer's name bid, brand name bid, and the discount to be used with the manufacturer's price list. The price sheet has a "note" which provided: "Percentage discount applies to the entire manufacturer's line of videoconferencing equipment." (emphasis added). Immediately following the price sheet, the Department provided the vendor with a sheet to be used for "optional bid items" which required an item description, brand name, model number, and net price to be filled in by the vendor. The ITB does not require the vendor to apply the discount to the optional items. The ITB also contains a "manufacturer's certificate." A "special condition" provided: "All bids submitted, must include a certification executed by the manufacturer, stating that the bidder is an authorized dealer/representative of the manufacturer. Manufacturers must complete this form even if they own their own equipment. Dealer agreements shall not be accepted in lieu of manufacturer certification. Bids requiring manufacturer certification will not be considered if certification is not submitted with the bid." (bold emphasis in original). The certificate provided a "NOTE" which stated: "THIS MUST BE EXECUTED BY THE MANUFACTURER. DEALERS/REPRESENTATIVES ARE NOT AUTHORIZED TO SIGN THE CERTIFICATION FORM ON BEHALF OF THE MANUFACTURER. THIS CERTIFICATION MUST BE EXECUTED BY THE MANUFACTURER EVEN IF THEY ARE BIDDING THEIR OWN EQUIPMENT. FAILURE TO SUBMIT THIS CERTIFICATION WITH YOUR BID SHALL RESULT IN DISQUALIFICATION OF BID." The manufacturer certifies that the vendor is authorized to represent the manufacturer in the State of Florida. TRI did not believe the ITB, including the specifications and conditions, were unreasonable. There was no challenge to the ITB. TRI Inquiry On May 31, 2000, at the request of Mr. Brown of TRI, Ms. Brock of TRI, asked Mr. Hinson whether bidders were required to submit a bid response for categories one and two, mentioned above. Mr. Hinson advised her that a vendor could bid on either category. On June 12, 2000, and less than ten (10) days before the bid opening, Ms. Brock asked Mr. Hinson to clarify whether the Department was asking for a single or multiple discount, as to the set-top, desktop, and room teleconferencing systems. However, the general conditions of the ITB, paragraph 7, interpretations/deputes, provides that "[a]ny questions concerning conditions and specifications shall be directed in writing to this office for receipt no later than ten (10) days prior to the bid opening." This letter was untimely submitted pursuant to paragraph 7. The Department's Interpretation of the ITB Mr. Steve Welsh is an engineer. He received a Bachelor of Science degree in electrical engineering and a Master of Science degree in civil engineering. He has been employed by the Department's state technology office two and one-half years. He is not an expert in videoconferencing systems and this ITB was his first exposure to video teleconferencing systems. Mr. Hinson has been a purchasing specialist with the Department for more than five (5) years. He currently administers twelve (12) to thirteen (13) state contracts including the State's existing video teleconferencing contract with TRI. Mr. Welsh drafted the technical specifications for the videoconferencing equipment or systems in the ITB, including pages eleven (11) through seventeen (17), excluding Section 3.3, Optional Bid Items, which were prepared by Mr. Hinson. Mr. Welsh also drafted pages nineteen (19)(price sheet) and twenty (20)(optional bid items), with Mr. Hinson. Pages twenty-one (21) through twenty-seven (27) are standard forms. Set-tops, desktops, and room systems are three (3) generic types of videoconferencing systems. The definitions of these systems were general. Mr. Welsh was unaware of any industry standard regarding desktop, set-top, and room systems. The specifications required each vendor to offer a complete line of the manufacturer's videoconferencing equipment and systems, which might be included under these categories. The Department intended that the percentage discount apply to the complete manufacturer's line of videoconferencing equipment. Conversely, a vendor's offer of a manufacturer's partial line of equipment under "optional bid items" would be inconsistent with the objective of the "scope" section of the ITB. In general terms, Mr. Welsh knew that state agencies have differing needs for videoconferencing equipment and systems to communicate more effectively. However, he was able to give only one example; he knew that community colleges were looking for videoconferencing equipment for distance learning-type needs. Nevertheless, it was important for each vendor to offer a manufacturer's pre-configured or packaged systems, or configured systems from components and prices as the customer needed, or both. The ITB was not written to specifically address health care systems. Mr. Welsh did not consider certain industry specialties, such as education and health care systems, when he drafted the specifications, and there are no specifications expressly relating to videoconferencing products for use in educational or health care settings nor any mention of education or health care systems. However, it was his intent to draft flexible and wide-open specifications, so there may have been several types of industry specialties that he did not consider. The eligible users of this contract include any state, city, or county government, community and state universities, private colleges and universities, and any federal agency located within the State of Florida. The Department intended to award one contract with multiple manufacturers. The vendor could bid either category of equipment. The contract would be awarded to the vendor giving the highest discount for a particular manufacturer's products within each category. If a vendor did not offer a complete line of the manufacturer's products, the vendor could offer a greater discount and achieve a competitive advantage over other vendors who may have provided a more complete list. It was important to the Department to be able to compare each vendor's manufacturer's price list and then apply the vendor's discount in order to appropriately compare their bids. The Department was unable to compare TRI's bid because it submitted a discount for only one (1) page of Tandberg products versus the twenty-two (22) pages of discounted products offered by FREBON. Mr. Hinson explained that Tandberg's complete manufacturer's list price must consist of all items offered by Tandberg. However, Mr. Hinson did not know of the complete line of Tandberg video teleconferencing equipment and/or bridging equipment. The Department interprets the word "includes," which appears on TRI Exhibit 1, page 11, paragraph 1.1(1) of the specifications, to mean that desktop, set-top, and room systems could be included as part of a manufacturer's product line. However, it was not meant to be exclusive. The Department asserts that TRI's bid was non- responsive because TRI did not submit a complete, unaltered price list for all of Tandberg's video telecommunication products at a discount. TRI would have been awarded the contract for the Tandberg products if the bid had been responsive. On the other hand, the Department contends that FREBON's bid, containing approximately twenty-two (22) pages seemed complete and appeared to have included a complete line of Tandberg products. But, like TRI, GLOBAL's bid containing eight (8) pages, and DIGITAL's bid containing twelve (12) pages of discounted Tandberg products, were likewise non-responsive for being incomplete. TRI's one-page price list would not have been complete, in the Department's view, even if TRI had submitted a complete line of Tandberg products in the options portion of TRI's bid because TRI did not offer the discount for the options. Mr. Buddy Barker explained that a minor irregularity is a deviation from a specification which does not affect price and does not give one vendor a competitive advantage over another. He did not consider TRI's omission of other Tandberg's products to be a minor irregularity. The Tandberg Products There appears to be a major distinction between Tandberg videoconferencing systems, such as desktops, set-tops, and room systems, and Tandberg special "Application" products, such as health care and education products, in both appearance and functionality. Mr. Richard Grace is an Executive Vice President employed by the Applications Group at Tandberg, Inc. The term "Applications" within Tandberg, Inc. refers to market segments within their business. In this case, "Applications" pertains to distance education and health care products. During his deposition, admitted over objection as TRI Exhibit 18, Mr. Grace reviewed several documents, which were identified as DMS 0001, DMS 0006-0027, DMS 0029, and a memorandum dated June 9, 2000. These DMS numbered documents appear in TRI Exhibit 5. The DMS labeled documents were submitted with FREBON's bid. DMS 0006-0027 is the price list for the "Business Solutions" products manufactured by Tandberg, as well as the maintenance costs for various products, and also include the Tandberg health care and education products. These documents include the entire product lines price list for Tandberg's "Business Solutions" and "Applications" products. DMS 0006 is the first page from FREBON's bid and lists the "systems" products from Tandberg's "vision products price list." Tandberg's "vision products" are considered Tandberg "Business Solution" products, i.e., standard CODEC's or what Tandberg refers to as "off-the-shelf roll-abouts or set-top boxes." Off the shelf products are standard video conferencing systems that Tandberg designs and sells. They are also called roll-abouts, set-tops, and CODEC's. According to Mr. Grace, the Department's ITB asked vendors to offer to bid, material here, Tandberg's "Business Solutions" systems products. Mr. Grace said that Tandberg "education" and "health care" products would be considered room systems, but "the nature of the bid was looking for a more traditional answer of roll-abouts, which are administrative-type devises," and the "roll-abouts" are the systems referenced on TRI Exhibit 5, DMS 0006 and 0007, above the line, "Tandberg Educator," which were offered by TRI and FREBON. The products listed on TRI Exhibit 5, DMS 0006 to DMS 0007, above the notation "Tandberg Educator," are the videoconferencing systems manufactured and sold by Tandberg and, from a systems standpoint, are all of the "Business Solutions" products sold by Tandberg. The "systems" listed on these pages, (TRI Exhibit 5, DMS 0006 and the top of DMS 0007), include the only desktop, set-top, and room systems manufactured by Tandberg. Except for the omission of three (3) portable products listed in TRI Exhibit 5, DMS 0006 and 0007, of the FREBON bid, TRI's Tandberg "vision product price list" contained the same "systems" products as in FREBON's bid. (TRI Exhibit 2, BID 0033). The portables listed in FREBON's bid at DMS 0007, are not desktop, set-top, or room systems. TRI Exhibit 5, DMS 0007 through DMS 0013, lists accessories and optional items that can be attached to videoconferencing systems. DMS 0014 through DMS 0017, appear to be the maintenance pricing for the "Business Solution" products. DMS 0018 and 0019 refer to the "Application" products for Tandberg. DMS 0020 through DMS 0023 refer to the maintenance and service prices for the "Application"-based products, such as education systems, tutor products, and health care systems. Currently, Tandberg only focuses on the education and health care systems as part of its "Application" products. DMS 0024 through DMS 0027 are fees for the installation and on-site support for the Tandberg system throughout the world. Tandberg only manufactures the products listed on TRI Exhibit 5, DMS 0006-0027. However, Tandberg sells, but does not manufacture, other products such as "accord bridges," which are not included on these DMS pages. The Bids TRI TRI has been selling Tandberg video teleconferencing systems since February of 1998. TRI currently has the contract with the State of Florida for video teleconferencing equipment. TRI submitted a pricing sheet for videoconferencing systems and, in part, proposed to offer a 29.4 percent discount for "Tandberg Vision Business Solution Systems," the brand name for the bid. The discount applied to the "systems" products listed in the one-page, April 1, 2000, Tandberg price list. TRI's one-page price list, (TRI Exhibit 2, BID 0033), is the same as the first page of FREBON's Tandberg price list. (TRI Exhibit 5, DMS 0006). However, the second page of FREBON's price list (TRI Exhibit 5, DMS 0007), includes three (3) portable products which were included with the FREBON bid, but not included in the TRI bid. TRI felt that portables were not desktop, set-top, or room systems. Further, the products listed on TRI Exhibit 5, DMS pages 0007 (after the "portables" section) through DMS 0027, included by FREBON, were not included by TRI because they are not desktop, set-top, or room systems. TRI defines video teleconferencing systems to include only desktop, set-top, and room systems. Also, the terms videoconferencing systems and equipment are used interchangeably. Accordingly, TRI, consistent with its understanding of the Department's ITB, submitted a one-page price list for Tandberg desktop, set-top, and room system products. Having reviewed the ITB, TRI thought the Department, in requesting bids for video teleconferencing systems, was requesting a manufacturer's, here Tandberg's desktop, set-top, and room "systems" products only, and not the manufacturers, here Tandberg's, special "Application" products. TRI also offered a price list for optional items, which were accessories that could be attached and used as part of a system, with brand names including, but not limited, to Panasonic, Tandberg, and ELMO. TRI also provided a price schedule, 4.1.00, Exhibit A, which provided net prices for described systems, portables, CODEC's, for example. TRI's 29.4 percent discount does not apply to these items. FREBON, GLOBAL, and DIGITAL Three other vendors submitted bids offering discounts for the Tandberg line of video teleconferencing equipment. FREBON offered a 22.3 percent discount off Tandberg's price list consisting of twenty-two (22) pages of Tandberg products. Page one of FREBON's submission (TRI Exhibit 5, DMS 0006), provides the same information set forth in TRI's one (1) page price list, Exhibit B (TRI Exhibit 2, BID 0033). The remaining pages (TRI Exhibit 5, DMS 0007-DMS 00027), were not provided by TRI. GLOBAL offered a 21 percent discount off of Tandberg's price list for eight (8) pages of Tandberg products. (TRI Exhibit 5, DMS 0031-0038). DMS 0031-0032 provide the same information as TRI's price list, although GLOBAL adds three (3) products under the heading "portables," which are omitted from the TRI price sheet. DIGITAL also submitted a bid for video teleconferencing equipment offering the Tandberg line of products. However, DIGITAL offered multiple discounts. DIGITAL provided twelve (12) pages of Tandberg products. The Initial Bid Tabulation Posting On July 20, 2000, the Department posted the initial bid tabulation form for the video teleconferencing equipment. TRI received a copy of the bid tabulation. DIGITAL'S bid was deemed non-responsive because DIGITAL offered multiple discounts within the same product line, whereas the bid called for a single discount. The Department accepted the GLOBAL and FREBON bids. The Department rejected TRI's bid with a discount of 29.4 percent because TRI did not supply, at a discount, the complete, unaltered manufacturer's (Tandberg) price list with the bid offering all of the videoconferencing equipment and products manufactured by Tandberg, i.e., the twenty-two (22) pages offered by FREBON. This was the sole reason given by the Department for finding TRI's bid to be non-responsive. TRI's bid complied with all the other technical requirements required of the ITB. TRI filed a timely notice of protest, followed by a formal petition, challenging the Department's intended action to award the bid the FREBON and finding TRI's bid non-responsive. The Second Bid Tabulation Posting Unknown to TRI, on August 1, 2000, the Department posted a second bid tabulation involving the same bid and the same vendors. During the interval between the first and the second postings, the Department re-reviewed the bids. In the second posting, the Department again noticed its intent to award the contract to FREBON as an "SBN" i.e., "single bid negotiated," having determined that FREBON was the only responsive bidder. This was the only factor considered by the Department. In fact, the Department acknowledged that the products were available from multiple sources. Also, this bid was not an "exceptional purchase." Aside from the reference to "single bid negotiated" in the second tabulation, there is no written explanation for the Department's decision. See Section 287.057(4), Florida Statutes (". . . The agency shall document the reasons that such action [negotiate if less than two responsive bids are received] is in the best interest of the state in lieu of resoliciting competitive sealed bids. . . ."); Florida Administrative Code Rule 60A-1.002(5)(requiring, in part, the agency to document the conditions and circumstances when less than two (2) responsive bids are received). The Department changed its mind about the responsiveness of the GLOBAL bid and found GLOBAL's bid to be non-responsive on the ground that GLOBAL did not supply the complete manufacturer's price sheet with the bid. Mr. Hinson said that DIGITAL's bid was rejected on the same ground, although there is no documentation to support this testimony. The Department did not furnish TRI with a copy of the second posting nor notify TRI of the posting because the Department felt, pursuant to an unwritten policy, that TRI was not adversely affected by the decision, because the Department previously found TRI's bid non-responsive. FREBON and GLOBAL were notified of the second posting pursuant to the same policy. Resolution of the Conflict Between TRI and the Department It is undisputed that FREBON offered a discount for the entire product line price list for all of the "Business Solutions" and "Applications" products manufactured by Tandberg. The price lists include, among other products, Tandberg health care and education products. Conversely, TRI offered a discount based on a complete, unaltered price list for all of the videoconferencing systems manufactured by Tandberg, and, from a systems standpoint, all of the "Business Solutions" products sold by Tandberg. Specifically, TRI offered a discount for all of the desktop, set-top, and room systems manufactured by Tandberg. The resolution of this matter is not without some difficulty. We have heard from only one (1) vendor, TRI. All of the vendors offered different discounts for various products manufactured by Tandberg and no two vendors furnished the same Tandberg price list for the same products, although there was some overlap among the vendors. Yet no one, including TRI and the Department, suggests that the ITB was ambiguous or not clearly understood. Nonetheless, the ITB is not a model of clarity and, on this record, the ITB did not convey the intent of the Department expressed during the hearing. Notwithstanding the Department's expression of intent articulated during the final hearing, a plain reading of the entire ITB leads to several conflicting conclusions. The stated material objective of the ITB is to establish a contract for the purchase, installation, and maintenance of video teleconferencing systems, not video teleconferencing equipment, although the bid title says otherwise, and the purpose of the bid is to establish a contract for the purchase of video teleconferencing equipment. Another objective required each vendor to offer the complete line of videoconferencing products to configure desktop and/or room videoconferencing systems. Further, each vendor was required to offer a percentage discount for the entire Tandberg line of videoconferencing equipment. Stated differently within the ITB, the award is made by manufacturer's products, based on the highest discount given from the manufacturer's list price sheet for each item. But which item? The terms "videoconferencing systems" and "videoconferencing equipment" are used interchangeably in the ITB. The specifications were written specifically for two (2) categories of equipment, material here, videoconferencing systems, which include, set-top, desktop, and room systems, the only "systems" discussed within the four (4) corners of the ITB. The "systems" products offered by TRI, for a discount, are the only desktop, set-top, and room systems manufactured by Tandberg, and, from a systems standpoint, are the only videoconferencing systems that Tandberg manufactures. Thus, it follows that TRI provided the Department with a discount for the complete, unaltered list price sheet for these Tandberg products. While a decision to award the contract to TRI is contrary to the Department's intent expressed in the final hearing through its representatives, it is consistent with the ITB. The Manufacturer's Certificate A special condition of the ITB required each bidder to furnish a manufacturer's certificate, which certifies that a bidder is authorized to sell the manufacturer's equipment in the State of Florida. Mr. Hinson was advised by Mr. Grace of Tandberg that as of June 14, 2000, FREBON was authorized to sell and service Tandberg "Application" products, i.e., Tandberg's health care and education series products, only to the federal government in the State of Florida, and not to state governments, including the State of Florida. However, the Department accepted FREBON's certificate based solely on the representations made by Tandberg regarding FREBON's authorization. The Department feels it is unnecessary to investigate the veracity of a manufacturer's certificate because the Department can pursue a remedy against the vendor, here FREBON, if the vendor is not authorized after the contract is awarded. When he signed the manufacturer's certificates for the three (3) vendors, including FREBON, Mr. Grace meant the vendors were authorized resellers of Tandberg's products. Mr. Grace sent a memorandum of June 9, 2000, to any vendor who sent him the State of Florida's manufacturer's certificate for signature authorizing them to participate in the bid. Mr. Grace explained in his memorandum and during deposition, that authorization to act as an "Applications" dealer did not allow the vendor to sell "Business Solutions" products and vice-versa. For example, FREBON was limited to selling the Tandberg "Business Solution" products to the State of Florida and could not sell the Tandberg health care and intern products or education and tutor products to the State of Florida. Tandberg is in the process of discussing with FREBON to expand their capabilities of selling the "Application" products. Mr. Grace would discuss additional authorization with any vendor who wins the bid. Mr. Grace received and signed manufacturer's certificates for TRI, FREBON, and DIGITAL, because they were "authorized resellers of Tandberg's product that was being asked for in the statement of the work," i.e., for the "Business Solution" products that, in his judgment, the Department was requesting in the bid, and he "would sign them again under that" premise. TRI and DIGITAL are authorized to sell Tandberg's "Business Solution" and "Applications" products to the State of Florida.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Management Services enter a final order and award the contract to TRI because TRI offered the lowest discount for the required Tandberg products. If the Department declines to award the contract to TRI, it is further recommended that the Department re-bid the contract because an award to FREBON cannot be justified as a "single bid negotiated." DONE AND ENTERED this 14th day of December, 2000, in Tallahassee, Leon County, Florida. CHARLES A. STAMPELOS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of December, 2000. COPIES FURNISHED: F. Alan Cummings, Esquire Daniel Te Young, Esquire Cummings & Thomas, P.A. 1004 DeSoto Park Drive Post Office Box 589 Tallahassee, Florida 32302-0589 Terry A. Stepp, Esquire Department of Management Services 4050 Esplanade Way, Suite 260 Tallahassee, Florida 32399-0950 Cynthia Henderson, Secretary Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-0950 Bruce Hoffmann, General Counsel Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-0950
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
