Findings Of Fact Based upon all of the evidence, the following findings are fact are determined: In this examination for licensure challenge, petitioner, Mason L. Flint, contends that he is entitled to a higher score on the March 1994 deputy pilot examination for the Port of Jacksonville. The examination is administered by the Department of Business and Professional Regulation (DBPR) on behalf of respondent, Board of Pilot Commissioners (Board). Although the original petition challenged the grade in twelve respects, petitioner now contends that only two items are in issue, item 21 relating to the local knowledge part of the examination, and item 270 relating to the aids to navigation part of the examination. Both are true-false questions. Unlike the more than fifty other professional licensure examinations administered by the DBPR, the seven-part pilot examination requires a candidate to achieve a minimum passing grade on each part, but candidates doing so then compete with each other for vacant positions. In other words, if only one position at a particular port is open, the candidate achieving the highest score above the minimum passing grade is the only candidate receiving a license. In this case, three deputy pilot positions were available at the Port of Jacksonville, and thus the candidates having the three highest scores among those exceeding the minimum passing grade would be given a license. Petitioner finished sixth on the original grading, but after having his examination regraded by the Board prior to hearing, he was ranked number four. By this challenge, he seeks to have his grade changed on items 21 and 270 so as to raise his ranking to number three. In order to preserve the confidentiality of Item 21 for future examinations, it is suffice to say that the item required a response of true or false concerning limitations on vessels leaving the Talleyrand Docks in Jacksonville, Florida. The examination answer key shows true as the correct response. In preparing all questions pertaining to local knowledge, including item 21, the Board's consultant used the U. S. Coast Pilot, a compilation of operational guidelines governing the movement of vessels in the St. Johns River (and Port of Jacksonville). The specific source of authority for item 21 was paragraph (16) on page 153 of the 1993 edition of the U. S. Coast Pilot. That paragraph reads in pertinent part as follows: (16) Outbound vessels: Vessels with a draft of over 23 (sic) feet sailing between Main Street Bridge to, and including, U. S. Gypsum Co. Pier, shall get underway after 1-1/2 hours after flood current with a cut off time at the beginning of ebb current . . . Because Talleyrand Docks lies between the Main Street Bridge and the U. S. Gypsum Company Pier, this paragraph has application to vessels leaving those docks. The 1993 version of the U. S. Coast Pilot contained a typographical error. Rather than "23" feet, the guidelines should have read "32" feet. To correct this error, paragraph (16) was revised in mid-March 1994, or the same month the examination was given, to provide that any vessel drawing more than 32 feet would be subject to the above movement restrictions. However, candidates were advised that only revisions to the U. S. Coast Pilot through January 1, 1994, would be included in the March 1994 examination. Besides the limitation described in paragraph (16), two other paragraphs on the same page of the U. S. Coast Pilot made reference to the correct 32 foot limitation. In addition, the Guidelines of Vessel Movements on St. Johns River, which form the basis for the data in the U. S. Coast Pilot, used the correct 32 foot limitation. Candidates familiar with those provisions should have been on notice that a typographical error existed in paragraph (16). Although the Board's suggested response is arguably correct, the more persuasive evidence shows that the statement in item 21 was confusing and unclear due to the typographical error in the U. S. Coast Pilot and the conflicting provisions on the same page of the source material. Thus, item 21 does not reliably measure the specified area of competency. Under these circumstances, a candidate should be given credit for either a true or false response, or alternatively, the question should be discarded in calculating a candidate's final score. Accordingly, petitioner's grade should be adjusted in this respect. Petitioner has also contended that only a false response is correct since the question implies that a restriction exists because of its use of the words "up to the beginning of ebb current." The evidence shows, however, that a candidate could reasonably reject that suggested implication and properly make a true response. Item 270 requires a true or false response to a statement regarding identifying marks or buoys marking a channel. The item identifies a set of conditions and then states that such a marking "could" properly be made. The examination answer key shows true as the correct response. The primary source of authority for item 270 is 33 CFR 62.43. According to that federal regulation, buoys marking the side of a channel (lateral aids) are always a solid color, and all solid color buoys marking a channel are numbered. The regulation goes on to provide that, in addition to a number, all solid color numbered buoys may also carry a letter suffix to aid in their identification, or to indicate their purpose. They cannot, however, be identified by letter only, but only by number and letter. Because the more credible and persuasive evidence shows that the question, as stated on the examination, clearly suggests that only a letter could be used for identification of a sidemark buoy, the correct response should be false. Therefore, petitioner should be given credit for his answer. The record is not altogether clear as to how changing petitioner's overall grade will impact his ranking. According to the DBPR psychometrician who is in charge of the pilot examination development, both petitioner and the third ranked candidate gave the same response on one of the challenged questions. On the other item, the two gave different responses, but if either response is deemed to be a correct response, it would have no bearing on their overall ranking. The pychometrician added that if an item is challenged and credit given to the protesting candidate, the answer key is changed and all candidates' scores are adjusted to reflect the change in the answer key.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered by the Board regrading petitioner's examination consistent with the above findings and conclusions. DONE AND ENTERED this 18th day of January, 1995, 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 18th day of January, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-5327 Petitioner: 1-2. Partially accepted in finding of fact 1. 3. Partially accepted in finding of fact 2. 4-5. Rejected as being unnecessary. 6-8. Partially accepted in finding of fact 2. Partially accepted in finding of fact 12. Rejected as being unnecessary. Partially accepted in finding of fact 2. Partially accepted in finding of fact 12. Partially accepted in finding of fact 3. 14-27. Partially accepted in findings of fact 3-8. 28-39. Partially accepted in findings of fact 9-11. Respondent: 1. Partially accepted in finding of fact 1. 2. Partially accepted in finding of fact 2. 3. Partially accepted in finding of fact 3. 4. Partially accepted in finding of fact 4. 5. Partially accepted in finding of fact 5. 6. Partially accepted in finding of fact 7. 7. Partially accepted in finding of fact 8. 8. Partially accepted in finding of fact 9. 9-11. Partially accepted in finding of fact 10. 12. Rejected. See finding of fact 11. Note: Where a proposed findings has been partially accepted, the remainder has been rejcted as being unnecessary, irrelevant, subordiante, not supported by the evidence, or cumulative. COPIES FURNISHED: Mason L. Flint 1605 Brookside Circle East Jacksonville, Florida 32207 Wellington H. Meffert, II, Esquire 1940 North Monroe Street, Suite 60 Tallahassee, FL 32399-0792 Jack L. McRay, Esquire 1940 North Monroe Street, Suite 60 Tallahassee, FL 32399-0792 Susan J. Foster, Executive Director Board of Pilot Commissioners 1940 North Monroe Street Tallahassee, FL 32399-0773
Findings Of Fact At all times relevant hereto, respondent, Raymond T. Grady, Jr., held registered specialty contractor license number RX DO32138 issued by petitioner, Department of Profession Regulation, Florida Construction Industry Licensing Board. 1/ According to the official records of petitioner, Grady was first licensed in 1977. He later qualified F & L Contracting, Inc., a contracting company doing business in Palm Bay, Florida, in February, 1982. The 1983 annual report filed by F & L Contracting, Inc., with the Department of State reflected that Grady was secretary-treasurer and resident agent of the corporation while a Fred James Henderson served as president. Grady continued to qualify F & L Contracting, Inc. until February 27, 1984, when he notified petitioner that he was no longer its qualifying agent. Presently, his license is on an inactive status. Fred James Henderson did business under the name of F & L Contracting, Inc., F & L Contractors, Inc. and F & L Construction, Inc. All had the same street address and telephone number and were the same for all practical purposes. Only F & L Contracting, Inc. was qualified by Grady with the State. On or about August 25, 1983, Lyman and Dawn Crowshaw of 356 Holiday Park, Palm Bay Florida, entered into a contract with F & L Contractors, Inc., to have a utility room added to their residence for a price of $5,835. The contract was negotiated by Henderson. When the contract was signed, Henderson gave the Crowshaws his business card which reflected the name "F & L Contracting, Inc.," and had the same telephone number and address as F & L Contractors, Inc. Under the agreement, Lyman Crowshaw gave F & L Contractors, Inc. a check in the amount of $1,945 as the first of three payments for the work. The check was deposited into the bank account of F & L Contracting, Inc., the company which Grady had qualified. Because Henderson held no license from the State, he could not pull job permits in the City of Palm Bay. Therefore, it was necessary for Grady to sign all applications and pick up the permits on behalf of Henderson. In this regard, the city building officials perceived Grady to be the individual who qualified Henderson to do business as a contractor. For this reason, the official notified Grady that no permit could be pulled on the Crowshaw job because of a setback restriction on Crowshaw's property. When Crowshaw learned of this, he immediately requested a refund of his money, but Henderson did not oblige. After the Crowshaws sent a letter to F & L Contracting, Inc. on November 18, 1983 demanding payment, and their attorney did the same on January 4, 1984, Henderson and his wife finally executed a promissory note on January 11, 1984 promising to pay the Crowshaws $500 per month plus 18 percent interest until the $1,945 was repaid. Henderson signed the note individually and as president of F & L Contractors, Inc. Mr. Crowshaw received one $500 payment on January 21, 1984 from Henderson. After he received no other payments, Crowshaw filed a complaint against Grady in an effort to recover his money. That prompted the instant proceeding. The Crowshaws and Grady had never seen each other prior to the final hearing. The Crowshaws did have two telephone conversations with someone who represented himself to be Grady in late 1983 and early 1984, and in those conversations, Grady assured them that he would get Henderson to repay the money owed.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty of violating Subsection 489.129(1)(g), Florida Statutes, and that his license be suspended for one year, unless Grady obtains a signed release from the Crowshaws indicating restitution has been made. DONE and ORDERED this 1st day of March, 1985, in Tallahassee, Florida. DOANLD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of March, 1985.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: At all times pertinent to this proceeding respondent was licensed by the petitioner as a pilot. He began sailing as a seaman in 1945, received a pilot's license in Texas in 1954, was a captain of tugs from 1954 to 1969 and has been a member of the Tampa Bay Pilots Association from 1969 to the present time. Respondent has made close to sixty (60) trips per month in and out of Tampa Bay since 1969. On August 6, 1981, at approximately 1500 hours, Captain Baggett was aboard the M/V IFNI, a medium-sized oceangoing vessel, and was proceeding outbound in Tampa Bay. The tug DIXIE PROGRESS and Barge B-103 were proceeding inbound. The DIXIE PROGRESS, which is 115 feet long and 35 feet wide, was pushing Barge B-103, which is 430 feet long and 80 feet wide. The Barge was carrying 147,000 barrels of gasoline at the time. As the IFNI was in "G" Cut, Captain Baggett noticed the tug and barge proceeding inbound in "D" Cut, approximately three to five miles from him. He radioed the DIXIE PROGRESS in order to make arrangements for the meeting and passage of the two vessels. Respondent inquired if there was a pilot aboard the tug. In arranging meeting situations, it is customary for one pilot to communicate directly with the pilot on the other vessel. Donald Hyde, the first mate aboard the DIXIE PROGRESS responded to Captain Baggett's call and informed him that there was no pilot aboard the tug. Respondent informed Hyde that he would meet them in Cut "E" on one whistle. Walter H. Williams, the Captain aboard the DIXIE PROGRESS, was standing near the radio when respondent called from the IFNI. At the time, Captain Williams felt that respondent would try to break up the tug and barge on passing because the tug did not have a pilot on board. For that reason, he relieved his mate and took control of the tug. The DIXIE PROGRESS was the last vessel in Tampa Bay to start using pilots, and did not start taking pilots until September of 1981. Respondent Baggett's son wads employed by Dixie Carriers, Inc., the owner of the DIXIE PROGRESS. At the time of the radio communication with Captain Baggett, the DIXIE PROGRESS was travelling at a speed of about 5.5 knots. Its speed was reduced to ensure that the meeting would occur in Cut "E". As the IFNI passed through "F" Cut, two dredged were working in the vicinity. Captain Baggett decreased the speed of the IFNI as he approached each dredge, and stopped the engine after passing each dredge. After passing the second dredge in "F" Cut and while making the turn into "E" Cut, Captain Baggett ordered the engines full ahead. Captain Williams and first mate Hyde noticed a puff of black smoke emit from the IFNI after it passed the last dredge in "F" Cut and turned into "E" Cut. At this point, as the IFNI began to gain speed, the two vessels were approximately eight-tenths to one mile apart. Some seven to eight minutes later, the IFNI and the tug and barge passed each other in "E" Cut at a distance of approximately 75 feet. The channel in "E" Cut is about 400 feet wide. After the IFNI passed the tug and barge, waves of approximately five or six feet in height caused the barge to dive under the water and, as it came back up, a push wire two inches in diameter broke. After passing the DIXIE PROGRESS, respondent looked astern and noticed the tug and barge at odd angles to each other. He radioed the tug and inquired as to what had happened. When informed by Captain Williams that a push wire had broken, respondent replied that he was sorry and that he had not realized that the IFNI had caused such a large wake. At no time during the incident in question did DIXIE PROGRESS Captain Williams feel that his vessel was in danger or that there was going to be a loss of property or life. He considered this to be a minor incident. It is not unusual for another vessel to pass the DIXIE PROGRESS and its barge at a speed of full ahead. The DIXIE PROGRESS and Barge B-103 frequently "push out" of the Mississippi River in six foot seas using the same "in the notch" configuration as was used during the incident in question. It is not unusual for the push wires which connect a tug and barge together to snap. The Captain and first mate aboard the DIXIE PROGRESS estimated that the IFNI was travelling at a speed of approximately 15 knots as it passed the tug and barge. Captain Baggett believed that he was travelling at a speed of about 7.5 knots as he passed the DIXIE PROGRESS. To travel a distance of approximately eight-tenths of a mile in seven or eight minutes would result in an average speed of about six to seven knots. It could take the vessel IFNI anywhere from six to twelve minutes to reach full speed from a stopped engine, depending upon the currents and other factors. The speed which a reasonable and prudent pilot should maintain when approaching and passing a tug and barge is dependent upon the circumstances, including the weather conditions and currents, the swell or wake the vessel is pulling, the size and configuration of the channel, the amount of water outside the channel and the configuration and weight of the vessels. While a passage within 200 feet with the IFNI travelling at a speed of 15 knots would not be something that a reasonable and prudent pilot would do, it cannot be determined without knowledge of the surrounding circumstances whether a passage at 8 knots would constitute incompetence, negligence or misconduct. By a "Final Order" signed by the Chairman of the Board of Pilot Commissioners and filed on July 28, 1981, it was ordered that a proposed Stipulation in Case No. 0007227 was approved, adopted and incorporated by reference and that Thomas A. Baggett "is reprimanded and is placed on probation for a period of one (1) year. . . ." The Stipulation reveals that that case was the subject of a proposed complaint in a case factually unrelated to the present case and that part of the consideration for the Stipulation was that the proposed administrative complaint in that case be held in abeyance. Among the terms of the Stipulation were that "The Respondent shall be placed on probation for a period of one year from the date of the final order of the Board accepting this sti- pulation. The order of Probation will be deemed to have been violated, subject to proving the allegations, if the Respondent is found by the Probable Cause Panel of the Board to have engaged in any conduct which constitutes negligence, incompetence or mis- conduct as presently embodied within section 310.101, Florida Statutes. In such case both a new proposed Administrative Complaint may be filed and the instant proposed Admini- strative Complaint may be instituted. In this respect, the Respondent specifically waives any procedural objections to insti- tuting the instant proposed Administrative Complaint." In October of 1981, by a vote of 2-2, the Board of Pilot Commissioners refused to modify the Final Order of July 28, 1981, so as to delete the word "probation" from its terms.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the Administrative Complaint filed against the respondent on January 18, 1982, be DISMISSED. Respectfully submitted and entered this 5th day August, 1982, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 Filed with the Clerk of the Division of Administrative Hearings this 6th day of August, 1982. COPIES FURNISHED: C. Steven Yerrid Holland and Knight Post Office Box 1288 Tampa, Florida 33601 W. B. Ewers, Esquire Special Trial Counsel 2170 SE 17th Street Suite 204 Ft. Lauderdale, Florida 33316 Jane Raker, Executive Director Board of Pilot Commissioners 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact Petitioner is the agency of the State of Florida charged with the responsibility to administer and to enforce the Florida Yacht and Ship Broker's Act, Chapter 326, Florida Statutes. At times prior to June 21, 1991, Respondent Bongiovi was licensed by Petitioner as a yacht broker. Respondent Bongiovi did not hold any license as a yacht broker at any time after June 21, 1991. Respondent AJB Yachts was not licensed as a yacht broker at any time pertinent to this proceeding. Respondent Bongiovi does business as AJB Yachts or AJB Yacht Sales, Inc. There was no evidence that AJB Yacht Sales, Inc., is legally incorporated. On various dates in September and October 1994, Respondent Bongiovi placed two separate advertisements in the classified ads section of the Fort Lauderdale, Florida, Sun-Sentinel newspaper. The first of these ads offered for sale a 41' Hatteras yacht for the sum of $150,000. The second of these advertisements offered for sale a 43" Portofino yacht for the sum of $125,000. Both advertisements contained the Respondent's telephone number, 305-942-7425. On or about May 28, 1993, Respondent, acting as a yacht broker, represented Charles Robbins in the purchase of a 66' Pacemaker yacht named the Sea Cow. The owner of the yacht, Dennis Gaultney, was represented by Mauch Yacht Sales, Inc., the listing broker. As part of the offer made by Mr. Robbins, he gave to Respondent Bongiovi a check in the amount of $33,000 as earnest money. Respondent Bongiovi deposited this money in a bank account at First Union National Bank of Florida, Pompano Beach branch on June 1, 1993. This account is entitled "AJB Yacht Sales, Inc., Escrow Account." Respondent Bongiovi was the sole signatory on this account. Respondent Bongiovi immediately began making withdrawals from this account that were not related to the Robbins transaction. 1/ As of June 10, 1993, the balance in this account was $29,575.54. As of June 21, 1993, the balance was $23,570.83. As of June 30, 1993, the balance was $21,554.04. Negotiations for the sale of the Sea Cow continued between the purchaser and the owner until July 20, 1993. The final version of the owner's proposal was a response to the last proposal made by Mr. Robbins and contained several changes to the last offer made by Mr. Robbins, including a change in the price of the vessel and an extension of the closing date to July 22, 1993. These changes were initialed by the owner of the boat, but they were not initialed by Mr. Robbins. Mr. Robbins never received a signed copy of the final proposal from the owner of the Sea Cow. A survey to evaluate the condition of the vessel was conducted and a copy of the inspection report faxed to Respondent Bongiovi by Jan Mauch of Mauch Yacht Sales on June 9, 1993. The transmittal note that accompanied the fax stated the following: "Here is the 'Schedule A' 2/ to go with the contract. After Charlie sees the survey, have him sign this and Acceptance of Vessel on contract and fax back both to me and I'll have Denny sign." Included in the inspection report was the following information: ". . . an engine inspection did not include a detailed mechanical inspection or test of components. A complete engine survey by a qualified mechanic is recommended in all cases." Mr. Robbins thereafter requested that Respondent Bongiovi arrange for an inspection of the vessel's engines before he accepted the vessel. Mr. Robbins never received an inspection report for the engines, he did not obtain his own financing for the vessel, and he never tendered the balance of the purchase price. The transaction involving Mr. Robbins did not timely close because the inspection of the engines were not completed. Because there was a delay in closing the transaction, the owner sold the yacht to another buyer. Neither Mr. Gaultney nor Mauch Yacht Sales demanded a portion of the $33,000 earnest money deposit. Mr. Robbins demanded the return of his money from the Respondent after he learned that the Sea Cow had been sold to another purchaser. Respondent Bongiovi refused to return the deposit and asserted the position that he was entitled to keep all of the deposit as liquidated damages because the transaction had not closed. Respondent Bongiovi relies on Paragraphs 3 and 4 of the form agreement for his contention that he was entitled to retain the $33,000 deposit as liquidated damages. Those provisions are as follows: The purchase of the vessel is subject to survey - seatrial - capt (sic) - inspection showing condition subject to purchasers (sic) sole judgment and approval to be conducted as soon as practicable after execution of this agreement at the option and expense of the PURCHASER. The PURCHASER shall give written acceptance or rejection of the Vessel by June 10, 1993, and if written notification is not received by the BROKER (A.J.B. Yacht Sales) on or before said date, it shall be construed as acceptance of the Vessel by PURCHASER. In the event, after written or construed acceptance of the Vessel, the PURCHASER fails to pay the balance of the purchase price and execute all papers necessary to be executed by him for the completion of his purchase, pursuant to the terms of this contract, on or before July 10, 1993, the sum this date paid shall be retained by A.J.B. Yacht Sales as liquidated and agreed damage and the parties shall be relieved of all obligations under this contract. In paragraph 2 of the agreement executed by Mr. Robbins on May 28, 1993, there was a provision that the offer submitted by Mr. Robbins was withdrawn if not accepted by June 5, 1993. There was no evidence that there was a final and complete agreement sufficient to bind the parties by June 5, 1993, or at any time thereafter. The agreement executed by Mr. Robbins on May 28, 1993, also contained the following provision: In the event that this sale is not consummated by reasons of unsatisfactory survey . . . the deposit shall be returned, providing all expenses incurred by the PURCHASER against the Vessel have been paid, and this agreement shall be null and void. Mr. Robbins verbally notified Respondent Bongiovi that he would require additional testing on the engine before accepting the vessel. Mr. Robbins did not receive the results of those additional tests and learned soon thereafter that the vessel had been sold to another purchaser. Following the failure and refusal of the Respondents to return the deposit, Mr. Robbins sued the Respondents in the Circuit Court in and for Broward County, Florida, pursuant to the provisions of Sections 772.11 and 812.014, Florida Statutes. Based on the evidence presented, the Circuit Judge in that civil proceeding entered a final judgement for treble damages ($99,000) in favor of Mr. Robbins and against the Respondents based, in part, on the following: . . . On the evidence presented, the Court finds: * * * Plaintiff (Mr. Robbins) gave Defendants (Mr. Bongiovi and his corporation) a check in the amount of $33,000.00 on May 28, 1993, to be held in escrow as a deposit pending accep- tance by the owner of a vessel for the purchase of said motor vessel. Said $33,000.00 was deposited into a bank account owned and/or controlled by Defendants. The owner of the vessel failed to accept Plaintiff's offer within the time provided in the written contract attached to the Amended Complaint; and, therefore, Plaintiff was entitled to return of his $33,000.00 deposit. Plaintiff demanded return of said $33,000.00 deposit, but Defendants failed and refused to return same, which sum has been due with interest since June 5, 1993. Defendants breached the Purchase Agree- ment on June 5, 1993, by failing and refusing to return Plaintiff's deposit of $33,000.00 when the offer to purchase the vessel was not accepted by the owner by that date. Defendants had a fiduciary responsibility to Plaintiff as escrow agents under the Purchase Agreement, and they breached their fiduciary responsibility by failing and refusing to return the $33,000.00 deposit when the offer to purchase the vessel was not accepted by the owner by June 5, 1993. . . .
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner enter a final order in this proceeding that adopts the findings of fact and conclusions of law and which imposes an administrative fine jointly and severally against the Respondents in the amount of $10,000 for the violations of Count I and imposes an additional administrative fine jointly and severally against the Respondents in the amount of $10,000 for the violation of Count II. DONE AND ENTERED this 29th day of December, 1995, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of December, 1995.
Conclusions This cause came on to be heard before the Pilotage Rate Review Board (Board) at regularly scheduled meetings held in Fort Lauderdale, Florida on April 29, 1998 and in Boca Grande, Florida on May 19, 1998, pursuant to a Recommended Order entered by ALJ Linda M. Rigot on February 94, 1998. Exceptions to the Recommended Order were filed by the Port Everglades Pilots' Association (PEPA). Responses to the Exceptions were filed by the South Florida Cargo Carriers Association, Inc. (SFCCA). Both PEPA and SFCCA appeared at the Fort Lauderdale meeting through counsel and extensive argument was heard on the Exceptions. The Board's rulings on the Exceptions, made after a review of the complete record (including the prehearing stipulation, the transcript, exhibits and the submissions of the parties), are set forth below. Preliminary Statement-The Standards to be Applied in Reviewing the Findings of Fact Contained in a Recommended Order It is a settled rule of administrative law in this state that the findings of fact of an administrative law judge may not be rejected or modified, "unless the agency first determines from a review of the entire record, and states with particularity in the order, that the findings of fact were not based on competent substantial evidence." Section 120.57(1)(j), Florida Statutes. Accord Belleau v. Dept. of Environmental Protection, 695 So. 2d 1305 (Fla. 1st DCA 1997); Martuccio v. Dept. Of Professional Regulation, 622 So.2d 607 (Fla. 1st DCA 1993); Freeze v. Dept. Of Business Regulation, 510 So. 2d 1122 (Fla. 1st DCA 1987). Florida case law holds that an agency reviewing a recommended order is not authorized to reevaluate the quantity and quality of the evidence presented as at DOAH final hearing beyond a determination of whether the evidence is competent and substantial. Brogan v. Carter, 671 So. 2d 822, 823 (Fla. 1st DCA 19963. A reviewing agency may not reweigh the evidence, resolve conflicts therein, or judge the credibility of witnesses, as those are evidentiary matters within the province of the ALJ as the finder of the facts. Martuccio, supra, at 609; Heifetz v. Dept. Of Business Regulation, 475 So. 2d 1277, 1281 (Fla. 1st DCA 1985). Consequently, if the record of the DOAH Proceedings discloses any competent substantial evidence to support the findings of fact made by the ALJ in the Recommended Order, the Board is bound by such factual findings. Bradley. supra, at 1123. There is, however, a fundamental difference, first elucidated in McDonald v. Department of Banking and Finance, 346 So. 2d 569, 578-579 (Fla. 1st DCA 1977), between evidentiary findings of fact, which involve resolving conflicts of perception, judging credibility of witnesses and drawing permissible inferences therefrom and those ultimate factual findings which are usually couched in terms of statutory or rule language and which resolve the legal issues between the parties.2 As the court in Mcdonald, supra, stated at 346 So. 2d at 579 an ALJ's findings as to credibility, weight and other matters which are susceptible of "ordinary methods of proof "should be accorded-great deference. However, the court went on to hold that an AlJ's findings regarding matters of opinion and issues which must be resolved by reference to agency expertise, because they are "infused by policy considerations," are entitled to agency deference but with "correspondingly less weight."3 The agency must be circumspect, however, in exercising its authority to reject an ALJ's findings even if they could be labeled as "ultimate findings of fact." If factual disputes underlying an ultimate issue of fact can be resolved by "ordinary methods of proof " then an agency may not reject or modify an ALJ's ultimate factual findings without finding that they also were not supported by competent substantial evidence and complying with the requirements of Section 120.57(1); see Harac v. Dept. of Prof. Reg. Board of Architecture, 484 So. 2d 1333 (Fla. 3rd DCA 1986); Dunham v. Highlands County School Board, 652 So. 2d 895 (Fla. 2nd DCA 1995). If, in an appropriate instance, the question as to what legal standards should be applied to ultimately resolve the issues involves policy considerations (at least to the extent an agency has discretion to interpret its statutes and rules), it follows that an ALJ's findings as to such mixed questions of law and fact should be entitled to weight only to the extent they correctly apply the agency's interpretation of its statutory mandate, not simply the interpretation of that mandate by the witnesses at the hearing or even by the ALJ herself.4 The policy reason for not allowing an ALJ's ultimate findings of fact to always obtain practicable immutability and thus usurp an agency's ability to explicate its positions and interpretations of law in its own jurisprudence, is clear. Agencies, such as the Board, are appointed to oversee and implement the police power of the state and have obtained expertise in doing so. The agency is well aware of its own history and policy, as well as the legal positions set forth therein. ALJ's are likely not to have this intimate familiarity with the policy issues that comes with enforcing a regulatory scheme on a regular basis. Bearing the aforementioned principles in mind the Board hereby renders its rulings on the Exceptions. B Rulings on Exceptions Rejection of PEPA's Exceptions The Board hereby rejects PEPA's Exceptions 1, 2, 4, 5, 9 10, 12, and 13 insofar as the ALJ's findings are supported by competent substantial evidence. Exception 7 was withdrawn Exceptions 16-20 and 22-23 are addressed to the ALJ's Conclusions of Law, were treated as legal argument, and thus require no rulings by the Board. Exception 21 to the ALJ's proposed Conclusion of Law 89 was addressed by the Board as an exception to a proposed finding of fact insofar as COL 89 is actually a factual finding. After properly recasting COL 89 as a finding of fact, the Board determines that the finding is supported by competent substantial evidence and the Exception is rejected. The Board's rejection of Exception 5 is based upon its reading of the ALJ's findings to mean that the amount of time spent by pilots on clerical and administrative tasks, while "extensive" was not suffciently documented as to place a numerical amount (hourly, daily or monthly) upon the time spent. The reason for this separate discussion is that the Board finds that the ALJ's finding, while correct, could be somewhat misleading. The Board also sets forth its reasoning below on several of the legal issues raised by PEPA as part of those Exceptions which were rejected by the Board. PEPA asserted, as the basis for several of its Exceptions, that the Board had made certain legal conclusions in earlier rate cases that may have been contradicted by the analysis of the ALJ in the Recommended Order. PEPA argued that certain of the ALJ's findings are thus erroneous because they contradict other, earlier, conclusions of the Board. While it is true that stare decisis and a respect for precedent are recognized in administrative law (albeit to a lesser degree than in traditional judicial fore), there must be an order of the Board that has precedential value before these principles may be invoked. Here PEPA points to various "orders" of the Board which were entered in previous rate application review proceedings in support of its position. Where PEPA's argument misses the point is that none of these previous "orders" ripened to Board precedent due to the fact that no Section 120.569 and 120.57 proceedings-ever occurred in those previous rate proceedings. Thus the findings of the Board in those previous proceedings were based only upon the untested-in an evidentiary sense-material submitted to the Board by the applicants and their opposition at a Board meeting- see Section 310.151(3), Florida Statutes. Until the Board has the benefit of a record which has gone through the crucible of a evidentiary proceeding under Chapter 190 and a judicially reviewable final order is entered, the holdings of the Board in unchallenged rate orders are only persuasive and not precedential in nature. The Board further agrees with PEPA (Exception I ) that the determination as to what constitutes a "reasonable operating expense" as that term is used in Section 310.15 l (5)(b)3, Florida Statutes, is a legal conclusion which requires the Board to interpret the statute and apply it to the pilot lobbying and political expenses found by the ALJ; Schnmsher v. School Board of Palm Beach County, 694 So. 2d 856, 860-862 (Fla. 3rd DCA 1997), Macpherson v. School Board of Monroe County, 505 So. 2d 682, 683-684 (Fla. 3rd DCA 1987). To the extent that the ALJ placed the determination of what is a "reasonable operating expense" in her findings of fact her Recommended Order is erroneous. Here, however, although the ALJ erroneously found that lobbying expenses and political contributions by pilots are not "reasonable operating expenses" as a finding of fact, the Board finds that they should be so treated as a matter of law. Thus the ALJ's findings, while erroneously labeled, reached the correct result. Therefore the Exception was properly rejected. As has been long held by the Public Service Commission, lobbying expenses as well as political and charitable contributions are not to be considered as reasonable operating expenses for purposes of determining the rate base for rate setting purposes, PSC Docket # 950495-WS, Order # PSC-96-1320- FOF-WS at 150-153; PSC Docket # 960234-WS, Order # 97-0847-FOF- WS at 66-71. The rationale for such a decision is based upon the fact that, while for tax and accounting purposes such expenses are appropriately classified as ordinary business expenses and/or may be deductible from taxable income, to place the burden of paying for such discretionary expenditures upon the user of the regulated service is inappropriate. The Board accepts this reasoning. The Board's ruling when rejecting PEPA's Exception 2 is based upon an identical analysis. Once again, the Board determines for rate setting purposes, as a matter of law, that the present value of the unfunded portion of PEPA's pilot retirement program must be considered as a "book" component of pilot income if, as was found by the ALJ, its value can be reasonably quantified-see Sections 3] 0.151 (5)(b) 2 and 9, Florida Statutes. A similar position has been taken by the PSC- see Rule 25-14.012, F. A. C. Acceptance of PEPA's Exceptions The Board accepts in part PEPA's Exception 3. The Exception addresses Proposed Findings of Fact 25 and 49-52. The Board finds that the ALJ's finding in the first sentence of Finding of Fact 25 is not supported by competent substantial evidence and, to the extent that the final sentence of Finding of Fact 25 and Findings of Fact 49-52 are based upon that specific finding, they are not accepted by the Board.5 Nevertheless PEPA does not dispute that the ALJ's a projected range of increase in annual revenue growth from 5.9% and 7.3% at the port is reasonable and is supported by the facts. As a result, the Board, based upon the remaining testimony and data, accepts the ALJ's projected range for the growth of revenue at the port. The Board accepts PEPA's Exception 6 to Finding of Fact 33 to the extent that it objects to the ALJ's findings that the examination and licensing process of a deep-sea deck officer is comparable to that of a Florida licensed pilot. While the findings of the ALJ in the other areas of "comparability" are accepted by the Board, there was no evidence from any source as to the examination and licensing procedures of pilots and deep- sea officers from which the ALJ could have drawn her conclusion. The Board accepts PEPA's Exception 8 to Finding of Fact 39 to the extent that it objects to the "explicit" recognition of the similarity of "deep-sea masters and harbor pilots'' (E.S.) in 33 CFR Part 407. While the Board would agree that the provision of the CFR compares "deep-sea masters and Great Lakes pilots"(E. S.) it does not, on its face, generally address "harbor pilots." The remainder of the Finding of Fact appears to be simply a discussion of the CFR provision which7 as a provision of law, speaks for itself. The Board accepts in part PEPA's Exception 11 to Findings of Fact 56-58. The ALJ's conclusory statement in the first sentence of FOF 56 that "the job of piloting does not present any serious physical risks" is simply not supported by the record. While the Board accepts the ALJ's other findings, it is clear (and not disputed by any of the experts in navigation and seamanship) that there are serious risks in piloting in periods of heavy weather and/or at night. The remainder of the Finding is accepted by the Board. Similarly, the second sentence in FOF 57 regarding embarkation and disembarkation is flawed because of its categorical finding that such actions are not particularly dangerous. Once again, had the ALJ qualified her finding with a reference to "under normal circumstances" or "in fair weather" the statement would be unexceptional and would be supported by the record. The rest of the Finding is accepted by the Board. The Board also finds that the ALJ's conclusion in the last sentence of FOF 58 that the Board members were not engaged in a strenuous act when they boarded a vessel at Port Everglades during the initial rate hearing is not supported by any evidence adduced at the hearing. The remainder of FOF 58 is accepted by the Board. The Board accepts PEPA's Exception 14 to Findings of Fact 72-74. There was competent substantial evidence in the record to sustain the ALJ's findings. The findings are, however, struck because the ALJ has failed to give effect to a stipulation (Pre- Hearing Stipulation at p. 9 ¶20) contained in the Pre-Hearing Stipulation entered into between the parties.6 In the Pre-Hearing Stipulation the parties agreed that to certain facts contained in various tables in the Investigative Report did not require proof at the hearing. Notwithstanding this fact, the ALJ found a revised "handle" time in her Recommended Order which was different (1 hour per vessel as opposed to 1.5 hours) than that contained in the stipulation. The Board finds that, as asserted by PEPA, this was error, Schrimsher, supra at 694 So. 2d 856, 863; Coq v. Fuchs Baking Company, 507 So. 2d 138, 140 (Fla. 1st DCA 1987).7 The Board accepts in part PEPA's Exception 15. The evidentiary findings in FOF 75-76 are supported by the evidence in this proceedings and are unexceptional. Nevertheless, the provisions of Section 310.151(5)(c), Florida Statutes, specifically grant to the Board the discretion to apply the CPI or other economic indicators to a rate change request. Thus the ALJ's statement that "the CPI and employment cost index (sic) are not suitable bases of comparison for measuring pilotage rates" does appear to "read out" this discretionary statutory factor from consideration in all rate cases. The Board can not agree with this position as a matter of law The Board does find, however, that while not the sole factor in determining the rates in these proceedings that the CPI is of material value in the consideration of the rates to be established at Port Everglades. C Conclusion With the foregoing amendments, the Board accepts the Findings of Fact of the ALJ and the same hereby become the Findings of Fact of the Board. II
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: On August 14, 1980, respondent Warwick G. Cahill applied to the Board of Pilot Commissioners for certification to take the examination to become a deputy pilot. To the questions on the application "Have you ever been a party in a criminal proceeding?" and "Have you ever been arrested?," respondent answered "No." On April 16, 1975, respondent was arrested and charged with "driving under the influence" in violation of Section 316.028, Florida Statutes. He was convicted of the misdemeanor charge, his driver's license was suspended for ninety days, he was fined $150.00 and he was placed on probation for six months. Respondent's record shows no prior or subsequent involvement in any criminal or traffic court proceedings. On November 24, 1976, respondent applied for tug employment with the St. Phillip Towing Company. On that application, the following responses were made to the question: "Have you ever been arrested?": Yes, one time, on charges of DWI. On August 4, 1980, Rickie Wayne Baggett applied to the Board of Pilot Commissioners to take the same pilot's examination for which the respondent had applied. To the question, "Have you ever been arrested?," Mr. Baggett answered "Yes," explaining that he had been arrested for driving while intoxicated and his license had been suspended for one year. In the space provided for him to state his driver's license number, Mr. Baggett noted that it had been suspended for one year. At a meeting held on September 5, 1980, the Board of Pilot Commissioners considered the applications of respondent and Mr. Baggett, along with others, to take the October 17, 1980, examination for certificated deputy pilot. The Board unanimously approved a motion to give conditional approval to the applicants Baggett and Cahill pending the receipt of information confirming their maritime background. At a later date, both Baggett and respondent were certified as eligible to take the October 17, 1980 pilot's examination. An investigator with the Department of Professional Regulation who has routinely investigated matters pertaining to licensed pilots since March of 1980 has never been requested to investigate any pilot for a DWI-related offense. The respondent's DWI offense was discovered during an investigation concerning an unrelated matter. While fully aware of the fact that he had been arrested for a driving while intoxicated charge, respondent Cahill claims to have forgotten about the arrest at the time he made application for examination and did not realize that such was a criminal proceeding. Mr. Cahill was born in Australia, came to the United States in 1972 and is a naturalized citizen.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is RECOMMENDED that the Administrative Complaint filed on November 9, 1981, as amended on March 16, 1982, be DISMISSED. Respectfully submitted and entered this 21st day of July, 1982, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of July, 1982. COPIES FURNISHED: W. B. Ewers, Esquire Suite 204 2170 S. E. 17th Street Ft. Lauderdale, Florida 33316 C. Steven Yerrid, Esquire Holland & Knight Post Office Box 1288 Tampa, Florida 33601 Jane Raker, Executive Director Board of Pilot Commissioners 130 North Monroe Street Tallahassee, Florida 32301
The Issue The issue is whether Florida Administrative Code Rule 61G14-22.012 is an invalid exercise of legislatively delegated authority in violation of section 120.52(8), Florida Statutes (2014).
Findings Of Fact Petitioner BBP is an association of harbor pilots that performs the pilotage services at PortMiami. BBP consists of pilots licensed by the State of Florida in accordance with chapter 310, Florida Statutes. Petitioner PEPA is an association of harbor pilots that performs the pilotage services at Port Everglades. PEPA consists of pilots licensed by the State of Florida in accordance with chapter 310. FHPA is a statewide organization representing the interests of Florida’s approximately 100 state-licensed harbor pilots, the membership of which is comprised of the eleven local pilot associations that serve each of Florida’s 14 deep-water ports. BBP and PEPA are members of FHPA. Chapter 310 governs pilots, piloting, and pilotage in the waters, harbors, and ports of Florida. Section 310.141, Florida Statutes, requires that, except in certain narrow circumstances, all vessels shall have a licensed state pilot or deputy pilot on board to direct the movements of the vessel when entering or leaving ports of the state or when underway on the navigable waters of the state’s bays, rivers, harbors, and ports. Section 310.011 creates the 10-member Board of Pilot Commissioners (“BOPC” or “Board”); each member is appointed by the Governor “to perform such duties and possess and exercise such powers relative to the protection of the waters, harbors, and ports of this state as are prescribed and conferred on it in this chapter.” In addition to other responsibilities, the Board determines the number of pilots in each port (section 310.061) and disciplines licensed pilots when appropriate (section 310.101). Although the BOPC has numerous statutory responsibilities, setting the rates of pilotage in each port is not one of them. Florida Administrative Code Rule 61G14-22.012 (“challenged rule” or “rule”) is entitled “Determination of Disputed Issues of Material Fact; Formal or Informal Hearings.” 5. Rule 61G14-22.012 cites section 310.151(1)(c) as specific authority. The challenged rule lists as “Law Implemented” sections 310.151 and 120.57. The former Pilotage Rate Review Board originally adopted the rule in 1995. When the Legislature amended chapter 310 in 2010, the former Pilotage Rate Review Board’s name was changed to the Pilotage Rate Review Committee (“PRRC” or “Committee”). The Committee consists of seven members, all of whom are also members of the BOPC. The PRRC is responsible for setting rates of pilotage in each port. On November 5, 2014, the BOPC/PRRC published a notice in the Florida Administrative Register announcing a telephone conference call meeting for consideration of “Rate Review Committee Rules.” PRRC members voted at that meeting to repeal rule 61G14-22.012, but determined they did not have enough information to know if a Statement of Estimated Regulatory Costs was required. On December 11, 2014, the BOPC/PRRC published a second notice in the Florida Administrative Register announcing a telephone conference call meeting for consideration of “Rate Review Committee Rules.” At that meeting, the PRRC voted to reconsider its original vote to repeal rule 61G14-22.012, but because the issue of potential reconsideration had not been properly noticed, no official vote on reconsideration was taken. On January 7, 2015, the BOPC/PRRC published a notice in the Florida Administrative Register announcing a meeting on January 22, 2015, and January 23, 2015. Among the subjects noticed for consideration was “Reconsideration of Repeal of Rule 61G14-22.012, F.A.C.” This matter was considered by the PRRC on January 23, 2015. By a 5-2 vote, the Committee voted against repealing rule 61G14-22.012. FCCA is a trade association representing cruise lines that are subject to pilotage fees pursuant to chapter 310, Florida Statutes. FCCA has filed petitions to reduce the rates of pilotage in both PortMiami and in Port Everglades.
Findings Of Fact At the time of the final hearing the parties stipulated in writing as set forth in Hearing Officer Exhibit #1 to certain stipulations of fact refer to certain times a day. The stipulation was entered into between the parties with the state understanding that those times of day are approximate with the exception of Paragraph 7 of Hearing Officer Exhibit #1 (Paragraph 1G of this order) wherein the time recited is deemed to be precise. Those stipulations of fact are set forth below: John Eugene Lerro is a duly licensed deputy pilot pursuant to Chapter 310, Florida Statutes (1979). On June 17, 1980, the pilotage license of Captain Lerro was suspended pursuant to an "emergency order" entered by the Department of Professional Regulation on the grounds that his continued pilotage constituted an immediate danger to the public health, safety, and welfare. On May 9, 1980, Captain Lerro boarded the M/V SUMMIT VENTURE at approximately 6:30 a.m. for the purpose of piloting that vessel into the Port of Tampa Bay. Accompanying Captain Lerro, as an observer, was deputy pilot Bruce Atkins. The M/V SUMMIT VENTURE is a 608 foot (LOA) Phosphate Rock Carrier registered in Monrovia, Liberia. On May 9, 1980, the said vessel was in ballast and drew nine feet six inches forward, twenty-one feet three inches aft. Between 6:30 and 7:30 a.m. on May 9, 1980, the tide in Tampa Bay was at flood with an approximate current of 1 knot. During that time period, maritime traffic in Tampa Bay was normal, with vessels proceeding both inbound and outbound. As the M/V SUMMIT VENTURE proceeded into Tampa Bay, it passed abeam of Buoy 16 in Mullet Key Channel at 7:23 a.m. A lookout (bosun) was ordered forward by Captain Lerro at 7:13 a.m. At approximately 7:15 a.m. Captain Lerro ordered an anchor watch (carpenter) posted on the bow. Both the lookout and anchor watch arrived at the bow of the vessel at 7:23 a.m. The M/V SUMMIT VENTURE collided with the Sunshine Skyway Bridge at approximately 7:34 a.m., May 9, 1980. The M/V SUMMIT VENTURE was equipped with a Sperry Mark IV course recorder. This device, driven by a gyrocompass repeater motor, operates electrically from the ship's master gyrocompass. The recorder is equipped with a clock mechanism which drives a roll of graph paper under a pair of marking pens. Graduated time and heading increments are printed on the paper. The markings on this paper produce a permanent record of the ship's heading with respect to time. The rudder, steering mechanism, engine telegraph and other related mechanical equipment of the M/V SUMMIT VENTURE were in proper working order and functioned normally on May 9, 1980. The rudder of the M/V SUMMIT VENTURE was operated hydraulically and required approximately 22 seconds of time to travel from the hard starboard to hard port position. For the past three and one-half years Respondent has been a certificated deputy pilot at the Port of Tampa, Florida, and at all times material hereto was duly licensed by Petitioner to perform piloting duties. Respondent is a graduate of the merchant marine Academy of the State of New York, and possess an unlimited Master's License for the ports of Tampa, Miami, and Fort Lauderdale. The Respondent served for one year as a pilot in the Panama Canal Zone prior to becoming a certificated deputy pilot at the Port of Tampa. Respondent is of above-average intelligence, mentally competent, and possesses the ability and judgment to make the types of decisions required of a certificated deputy pilot. Respondent has never had a any disciplinary action taken against his maritime licenses other than that which is the subject of this proceeding. At midnight on May 8, 1980, the Respondent, John E. Lerro, (hereinafter referred to as Lerro) was asleep at the pilot's station at Egmont Key. He had been asleep since the night of May 8, 1980, after taking a ship outbound. Between 4:00 a.m. and 4:20 a.m. on May 9, 1980, Lerro was awakened by Steve Pimental, a Tampa Bay pilot boatman. After being awakened Lerro proceded to the pilot station's reading room, arriving there between 4:30 a.m. and 4:35 a.m. on May 9, 1980. While walking to the reading room Lerro could see Buoy #11 and noted that visibility was roughly two miles. Upon arriving at the reading room Lerro instructed the pilot boatman to contact the M/V SUMMIT VENTURE to inquire about the weather. Lerro was scheduled to be transferred to the SUMMIT VENTURE for the purpose of piloting the vessel into Tampa Bay. Based on the SUMMIT VENTURE's reply, Lerro concluded that the visibility was not sufficient to start the vessel inbound to Tampa Bay. Lerro told the Captain of the SUMMIT VENTURE to stay where he was until further instructions. Approximately 30 to 45 minutes later Lerro contacted the tugboat DIXIE PROGRESS inquiring about the weather. The DIXIE PROGRESS, then located in Egmont Channel, reported visibility of approximately three miles. Lerro concluded that visibility was sufficient to transfer to the SUMMIT VENTURE and start her inbound. Lerro and Bruce Atkins were then ferried to the lighthouse by Steve Pimental on the pilot boat TAMPA. Atkins was duly licensed to act as a deputy pilot on Tampa Bay. He had just become a new pilot and as such had to ride for thirty days with an existing pilot. May 9, 1980 was his thirtieth day. The next day he was scheduled to begin work as a deputy pilot on Tampa Bay. Lerro and Atkins transferred from the pilot boat TAMPA to the pilot boat EGMONT at the lighthouse between 5:35 a.m. and 5:45 a.m. on May 9, 1980. At approximately 6:30 a.m. Lerro and Atkins transferred from the EGMONT to the SUMMIT VENTURE near the sea buoy. As Atkins and Lerro boarded the SUMMIT VENTURE a light tanker named the PURE OIL piloted by John G. Schiffmacher, a licensed Tampa Bay pilot, started outbound from the Port of Tampa. At approximately that same time a 7,000 ton motor bulk carrier named THE GOOD SAILOR was passing outbound under the Sunshine Skyway Bridge piloted by Earl G. Evans, also a licensed Tampa Bay pilot. Upon boarding the SUMMIT VENTURE Lerro introduced himself and Atkins to the Captain and told him that Atkins might take the con during the inbound trip. Lerro properly acquainted himself with the vessel's correct draft, radar equipment, engine speed, compass error, and other facts peculiar to that particular vessel. Lerro then took the con and the SUMMIT VENTURE began its inbound trip into Tampa Bay. After ordering the ship to proceed half-ahead to the north of the channel in order to avoid an outbound vessel grounded near Buoy #3, Lerro turned the con over to Atkins. When the SUMMIT VENTURE passed Buoy #3 Lerro sighted the tugboard DIXIE PROGRESS by radar as it neared Buoy #8. Lerro did not have visual contact with the tugboat's running lights. Lerro radioed the DIXIE PROGRESS to make arrangements to overtake and pass her and was told that the tug was in a rain squall. When the DIXIE PROGRESS was halfway between Buoys #8 and #10 Lerro could visually see the range lights and correctly surmised that the rain squall had dissipated, or moved elsewhere. As the SUMMIT VENTURE arrived at Buoy #8 Lerro visually sighted THE GOOD SAILOR which was just passing Buoy #13. By that sighting Lerro estimated that visibility was approximately three miles. The SUMMIT VENTURE passed the lighthouse on Egmont Key at 7:06 a.m. At 7:13 a.m. the SUMMIT VENTURE passed Buoy #11 and Lerro noticed drizzling rain for the first time. Because of the drizzling rain Lerro instructed the ship's captain to place a lookout and anchor watch on the bow. The Captain of the SUMMIT VENTURE complied with Lerro's instructions. As the SUMMIT VENTURE passed Buoy #14 the rain began to fall harder whereupon Lerro relieved Atkins of the con. At that time Lerro had visual contact with the next buoy, Buoy #16. In addition the radar on board the SUMMIT VENTURE was working very well, giving Lerro a clear picture of the buoys ahead. Lerro testified that it was the best radar with which he had ever worked. The radar mast was approximately 500' aft of the bow. Hereafter distances are radar ranges, not distance from the bow. As the SUMMIT VENTURE passed Buoy #14 it made radar contact with the outbound PURE OIL being piloted by Schiffmacher. At that time Lerro contacted Schiffmacher by radio and ascertained that the PURE OIL was 2.3 miles east of the Sunshine Skyway Bridge outbound and that the SUMMIT VENTURE was 3 miles west of the same bridge inbound. Schiffmacher told Lerro that the PURE OIL was making 12 knots. Assuming constant speed thereafter Lerro could reasonably expect that the PURE OIL would reach the Sunshine Skyway Bridge before the SUMMIT VENTURE. At 7:23 a.m. the SUMMIT VENTURE passed Buoy #16. Lerro had noted no increase in rainfall between Buoys #14 and #16. Upon arriving at Buoy #16 Lerro was unable to visually sight Buoys #1A and #2A, but was able to make radar contact with them. Since he had a clear radar picture of the next buoys, #1A and #2A, he proceeded inbound. When the SUMMIT VENTURE got within .2 miles of Buoys #1A and #2A the rainfall rate increased suddenly and dramatically as did the wind velocity. Because of the heavy rainfall radar contact with Buoys #1A and #2A was lost. The radar screen was solid yellow and no return could be distinguished on it. Lerro knew that the SUMMIT VENTURE was in extreme difficulty and immediately began reviewing his options. Lerro's first thought was to turn hard to port. He immediately tried to contact Schiffmacher on the PURE OIL to determine that vessel's position outbound. He knew that if the PURE OIL had continued outbound from her last known position a turn hard to port would take the SUMMIT VENTURE across her path. Because the PURE OIL was light and therefore explosive Lerro was properly concerned about the catastrophic consequences of a collision between the two vessels. Lerro's attempt to communicate by radio with Schiffmacher was unsuccessful. The radio response he received to his call was garbled and he was unable to garner from it any useful information. Therefore, because he reasonably believed the PURE OIL to be outbound in his vicinity Lerro discarded the option of turning hard to port. When the SUMMIT VENTURE was .1 mile from Buoys #1A and #2A radar contact was momentarily reestablished and Atkins, monitoring the radar, reported sighting the two buoys and further reported that the SUMMIT VENTURE was within the A Cut Channel. This radar contact was maintained for two sweeps of the radar and then lost permanently. At that point an option considered by Lerro was to go hard to starboard into a spoil area. He discarded that option because the depth of the spoil area is unknown and not marked on the charts and he did not wish to expose the vessel broadside to the wind with the potential effect that would have on the control of the vessel. Lerro was concerned that such a turn would result in a collision with the bridge. In addition to the options of going port and starboard, Lerro considered stopping the vessel by reversing the engines and dropping anchor. He discarded that option because he did not think the ship could stop under control before it hit the bridge. Seconds after Atkins reported radar contact on the buoys at .1 mile, the bow lookout reported a buoy on the starboard bow. That buoy was 1A or 2A and probably 2A. It was not positively identified by the bow lookout. Having discarded the above three options Lerro waited no more than 15 seconds after the bow lookout reported "buoy starboard bow" and started a turn to port to the next course which he thought would successfully bring the SUMMIT VENTURE underneath the Sunshine Skyway Bridge. A normal turn was made using port 10 degrees rudder. Lerro made a normal turn from a late turning point because on the trip up the Bay the prevailing wind had been from the southwest which, during the turn, would push the vessel to port. Further, Lerro wanted to stay on the right side of the channel to clear Schiffmacher in the PURE OIL which Lerro believed to be outbound. During the turn Lerro maintained the ship's speed at half- ahead, approximately 11 knots, so as not to jeopardize control of the vessel in the high wind. After completion of the turn Lerro changed the speed of the vessel from half-ahead to slow-ahead. When Lerro saw the Sunshine Skyway Bridge he immediately realized he was not in the proper position in the channel and put the engines on double- full-astern while ordering both anchors dropped, and the helm hard to port. The port anchor was dropped but, through no fault of Lerro, the starboard anchor was not dropped. Lerro made visual contact with the Sunshine Skyway Bridge more than a ship's length from the bridge. At 7:34 a.m. the starboard bow of the SUMMIT VENTURE impacted the Sunshine Skyway Bridge. Within seconds after the SUMMIT VENTURE struck the bridge Lerro broadcast a mayday call over the radio to the Coast Guard. He then had the captain of the vessel get the crew on deck to look for survivors. Prior to boarding the SUMMIT VENTURE Lerro obtained all information normally obtained concerning the weather conditions then existing and which he would confront during his transit into Tampa Bay. He reasonably concluded that the weather conditions were such that the SUMMIT VENTURE could successfully transit the Bay to its destination. The heavy storm that hit the SUMMIT VENTURE as it approached Buoys #1A and #2A was not reasonably foreseeable in its intensity. Several ships and smaller vessels on the Bay were also caught unaware by the sudden and intense storm. Captain Earl G. Evans, a Tampa Bay pilot for twenty-three years, was piloting the vessel THE GOOD SAILOR outbound between the Sunshine Skyway Bridge and the sea buoy. When THE GOOD SAILOR was in the vicinity of Buoy #10 off Egmont Key heading into the direction from which the storm came, Captain Evans was hit unexpectedly by the storm. According to his testimony he had no warning that the storm was coming until it was actually upon him and his visibility was reduced to zero. He also lost the use of his radar because of the rain clutter. Captain Evans reported that when the storm hit his ship there was an explosion sounding like the firing of a high powered rifle in a closed room which occurred in the wheel house of THE GOOD SAILOR. He assumed the explosion was caused by a lighting strike, though he was not able to confirm that supposition. The SUMMIT VENTURE's inbound transit on the morning of May 9, 1980 was normal with weather conditions commonly encountered and normal traffic on the Bay until the vessel reached a point in Mullet Key Channel .9 miles from the Sunshine Skyway Bridge, and .2 miles from the turning buoys #1A and #2A which mark the entrance to A Cut Channel. At that point the SUMMIT VENTURE and Lerro encountered a sudden, unexpected and intense storm which reduced visibility to zero. Prior to that storm the prevailing wind throughout the ships's transit had been from the southwest at 15 to 20 miles per hour. This caused Lerro to steer several degrees to the right of the normal couse in Mullet Key Channel to compensate for the effect of the wind on the vessel which was setting the SUMMIT VENTURE to the north. At the onset of the storm the wind velocity rapidly increased to approximately 50 to 60 miles per hour and possibly reached 70 miles per hour. Between 7:00 a.m. and 8:00 a.m. on the morning of May 9, 1980 the prevailing wind direction shifted from predominantly southwest through west to northwest. Several witnesses for Petitioner who experienced the storm pertinent to this proceeding estimated that the winds from the storm were westerly to northwesterly. One person testified that the winds at one time during the storm were predominantly out of the south. One of those witnesses, a bridge tender located on the Sunshine Skyway less than three nautical miles from the point of the collision, estimated the winds of the storm to be out of the northwest. The manager of the toll booth located on the northern end of the Sunshine Skyway less than six nautical miles from the point of collision estimated the winds of the storm to be out of the west. A third witness of Petitioner was a commuter who came to a stop within several hundred feet of the point of collision on the Sunshine Skyway Bridge. He also estimated the winds to be out of the west. A fourth witness for Petitioner was a pilot boat captain inbound from Buoy #8 outside Egmont Key who testified that at one point during the storm, as he headed his vessel into the wind, the wind was predominantly out of the south. Another witness for Petitioner, Earl G. Evans, a Tampa Bay pilot who was piloting THE GOOD SAILOR in the vicinity of Buoy #10 off the tip of Egmont Key, testified that he headed his ship into the wind and that by his compass the wind was out of 280 degrees. Evans and THE GOOD SAILOR were approximately five and one-half nautical miles from the point of collision at that time. In addition, a witness for the Respondent, Judge Mark McGarry, Circuit Judge for the Sixth Judicial Circuit, State of Florida, was camping at Fort DeSoto, approximately four nautical miles west of the point of collision at the time of the storm. He accurately estimated that the winds of the storm at his location were out of 330 degrees. It is therefore concluded as a matter of fact that at the time of the storm that struck the SUMMIT VENTURE approximately .9 miles from the Sunshine Skyway Bridge, the prevailing winds moved very quickly, in more than a few minutes, from the southwest to westerly to northwest a velocity of 50 to 60 miles per hours, perhaps reaching as high as 70 miles per hour. Of the several expert pilots who testified on the question, all agree that when Lerro lost visibility and radar contact at the onset of the storm approximately .9 miles from the Sunshine Skyway Bridge, his choice to attempt to navigate through the bridge as opposed to turning port, starboard, or going full-astern was a reasonable, prudent choice. Further, at least one expert pilot with twenty-three years experience testified that in his opinion Lerro's choice to attempt to navigate through the bridge was the only reasonable, prudent choice to make. The Petitioner's consultant, Ernest Clothier, an expert pilot with twenty-six years experience in New York Harbor, testified that in his opinion when Lerro lost radar contact with the buoys, he only had three viable options. In Clothier's opinion Lerro had the option of going hard port, hard starboard, or of going through the bridge. These are the same three options considered by Lerro. Clothier emphatically testified that going full-astern and attempting to stop the ship was not a viable option because in that attempt all control of the ship would have been lost, and Lerro would have had no idea where he was going or where he would end up. All of the other expert pilots testifying on the question agreed with Clothier that going full-astern was not a viable, reasonable, prudent option. Clothier further testified on behalf of Petitioner that he did not think Lerro's choice of the option of going through the bridge was wrong. Rather than being critical of Lerro's choice of options Clothier was critical of the manner in which Lerro executed what Clothier considered a valid option. Clothier felt that Lerro should have initiated his turn through the bridge approximately 600 feet earlier than the turn was initiated, and he was critical of Lerro for making a normal rate turn. In Clothier's opinion Lerro should have made a faster-than-normal rate turn. It is concluded as a matter of fact that upon losing visibility and radar contact in the storm Lerro had three reasonable options in trying to avoid an accident. Those three options included turning hard port, turning hard starboard, and attempting to steer successfully through the bridge. The options chosen by Lerro, steering through the bridge, was a reasonable, prudent option. Further, the evidence does not establish that Lerro, in deciding to make a late, normal rate turn failed to do or consider those things which any reasonable, prudent pilot under similar circumstances would have done or considered. Neither does the evidence establish that Lerro did or considered things which any reasonable, prudent pilot would not have done or considered under similar circumstances. Petitioner presented the testimony of Anthony Suarez, a collision analyst who by discipline is a hydrodynamicist. Suarez presented several calculations he had made for the purpose of showing that the SUMMIT VENTURE, as it was steered by Lerro, could not have successfully navigated under the Sunshine Skyway Bridge. However, Suarez testified that his calculations were based on the assumption that the wind remained constantly astern of the SUMMIT VENTURE. He further testified that if in fact the wind was out of the southwest or the northwest his calculations would not be representative of the trajectory of the SUMMIT VENTURE in those conditions. Since it has been concluded as a matter of fact that the winds were initially out of the southwest, swinging to the northwest, the testimony of Suarez, with regard to his calculations projecting a trajectory over the ground of the SUMMIT VENTURE purporting to show that it could not have been steered safely beneath the Sunshine Skyway Bridge, is rejected for the purposes of this proceeding because of its failure to be based on the facts as they occurred. As established by the testimony of the expert pilots appearing in this cause, the speeds maintained by Lerro on the SUMMIT VENTURE during her approach to the Sunshine Skyway Bridge were reasonable and prudent under the existing weather conditions. Slower speeds on the vessel would have risked control problems. No evidence was presented in this proceeding from which it could be concluded as a matter of fact that Lerro lacks either the ability, legal qualifications, or fitness to discharge the duties of a pilot. Respondent's Exhibit #5 is a summary of marine casualties or accidents in the Port of Tampa between October 1, 1975 and October 2, 1980, involving the pilots of the Port of Tampa. The twenty-one pilots working the port during that time averaged six accidents. Lerro had seven accidents. No evidence was presented which would show that any of the accidents in which Lerro was involved caused significant damage or any injury. Lerro's record with regard to the number of accidents was about average for the pilots of the Port of Tampa. With regard to Lerro's past experience as a pilot, he was employed by the Panama Canal Company from January 6, 1976 to November 12, 1976. During that time he served as a pilot in training and, upon completion of the normal training period, as a vessel pilot with that agency's Marine Bureau. At no time during his employment with the Canal Company was any adverse or disciplinary action taken against him and none was pending at the time he voluntarily terminated his service with the company. He terminated his service in Panama to accept a better position as a pilot in the Port of Tampa. During the course of his employment with the Panama Canal Company Lerro was not involved in any marine accidents investigated by the Canal Zone Government Board of Local Inspectors, the local organ responsible for such investigations.
Recommendation Petitioner having failed to establish the allegations of the Administrative Complaint that Respondent was guilty of negligence and incompetence in the performance of his piloting duties on May 9, 1980, it is therefore RECOMMENDED that: The Respondent, John Lerro, be found not guilty of negligence and incompetence and that the Administrative Complaint be DISMISSED. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 2nd day of January, 1981. CHRIS H. BENTLEY Hearing Officer Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of January, 1981. COPIES FURNISHED: Kenneth G. Oertel, Esquire Lewis State Bank Building, Suite 646 Tallahassee, Florida 32301 C. Steven Yerrid, Esquire Holland & Knight Post Office Box 1288 Tampa, Florida 33601 Kenneth E. Apgar, Esquire de la PARTE & BUTLER, P.A. Suite 102 403 North Morgan Street Tampa, Florida 33602 Michael Schwartz General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue Whether Respondent committed the violations alleged in the Administrative Complaint in the manner specified therein and, if so, what penalty should be imposed.
Findings Of Fact Respondent is now, and has been since November 2, 2006, a Department-licensed state pilot. Respondent's license (License No. SP177), which is current and active, authorizes him to pilot vessels in and out of the Port of Palm Beach (Port). The Port has 17 berths at which vessels can dock. The navigable portions of the Port consist of an inner and an outer channel, two turning basins, and three slips. To aid mariners traversing the Port, there are navigation markers (herein referred to as "Beacons"), which are sequentially numbered in ascending order from east to west with odd-numbered markers to the port side and even-numbered markers to the starboard side of inbound vessels. The Tropic Carib (Ship) is a foreign-flagged container ship owned by Tropical Shipping (Tropical). With an overall length of 525 feet and a gross registered tonnage of 10,825, it is the largest vessel regularly accommodated at the Port. It is equipped with bow and stern thrusters and a Becker rudder and is otherwise designed to handle well in harsh conditions. At 12:50 p.m. on August 3, 2011, at around high water slack, the Ship was offshore, just to the east of the entrance to the Port's outer channel, drawing 21 feet four inches forward and 23 feet aft, when Respondent boarded and took command of the vessel from the Ship's captain for the final leg of its journey. The Ship was bound for the Port's Berth 7 (Assigned Berth) to offload its cargo. The Assigned Berth is a 464-foot, north-south oriented marginal wharf that lies directly on the western end of the Port's main turning basin (Main Turning Basin), into which the inner channel flows.2/ As the Ship, with Respondent on the bridge and in command,3/ entered the outer channel heading west to the Assigned Berth following the much smaller, 31-foot pilot boat (Pilot Boat) that had carried Respondent out to the Ship, there was no evidence of any storms in the area.4/ Precipitation, in the form of a light drizzle, was first encountered as the Ship was travelling in the inner channel between Beacon 8 and Beacon 10. Respondent, at this time, also observed lightning in the distance. He saw one bolt that struck a Port transformer5/ and another bolt that struck approximately one-half mile north of the Port causing a small explosion. After seeing these lightning strikes, Respondent decided to inquire as to whether the lightning had impacted the availability of Tropical's Port-based line handlers to assist with the mooring of the Ship at the Assigned Berth. He did not have the capability of communicating directly with Tropical's Port-based personnel, so he radioed the pilot of the Pilot Boat (Boatman), who did have such capability, and asked her to make this inquiry on his behalf. Respondent did not hear back from the Boatman until the Ship had passed Beacon 10 and was approaching Beacon 12, beginning its turn to the southwest toward the Assigned Berth. The Boatman informed him that the line handlers had been ordered to take cover, as a precautionary measure, due to the lightning in the area and therefore were not at the Assigned Berth waiting for the Ship to arrive. Respondent, however, did not receive any report from the Boatman, who was in front of him on the Pilot Boat, that there were any squally conditions ahead about which Respondent needed to be concerned in navigating the Ship to its ultimate mooring position. By the time Respondent heard back from the Boatman, the intensity of the rain had increased somewhat, but weather conditions had not worsened to the extent that Respondent's ability to maneuver the Ship was impacted. Visibility was still good and the winds, which were predominantly westerly, did not present a problem. The Ship was about ten minutes away, under ordinary circumstances, from its intended destination to the southwest alongside the Assigned Berth. Respondent had the Ship continue on course, in a southwesterly direction, toward the Assigned Berth, a decision that was reasonable under the circumstances that existed at the time. That line handlers might still be unavailable when he arrived did not make heading toward the Assigned Berth a foreseeably more risky or imprudent choice than any other option that Respondent may have had at the time. Respondent had no reason to believe that, if there no line handlers at the Assigned Berth to catch and secure the Ship's mooring lines, the Ship, equipped as it was, would not be able to hover in the water alongside the Assigned Berth and wait for the line handlers to appear. Moreover, even if there were stronger than anticipated westerly winds and the Ship, for some reason, were unable to hold its position, it would be blown, not toward, but away from the Assigned Berth, in the direction of the center of the Main Basin. A few minutes later, as the Ship was approaching the Assigned Berth, it ran into a sudden and unexpected rain squall, with west-southwesterly wind gusts over 30 knots and blinding rains which reduced visibility to zero. Radio communications from the boatswain at the bow of the Ship, who was providing Respondent with needed information concerning the Ship's position in relation to the Assigned Berth, became garbled and unreliable. Reasonably fearing an allision if the Ship continued its forward motion under these conditions, Respondent prudently ordered that the port anchor be dropped, with 1.5 shots (135 feet) on deck,6/ and that the Ship's engines be put astern, orders that were followed. After determining, from the prop wash that he saw on the starboard side of the vessel, that the Ship was no longer closing on the Assigned Berth, Respondent ordered slow ahead, but the Ship's bow thrusters were overcome by the wind, causing the bow of the Ship to swing and the anchor to drag. As a result, the Ship's starboard stern corner touched the sandy bottom approximately 30 feet west of Beacon 12 in the northern part of the Main Turning Basin, where recorded water depths are from 13 to 15 feet and, at high water slack, are generally three to four feet higher. The grounding produced minor, cosmetic damage to the Ship's rudder. No other damage to the Ship was sustained. The squally conditions lasted a mere two minutes. When the weather cleared, Respondent ordered engines ahead. The Ship proceeded to its mooring position alongside the Assigned Berth, where it was serviced by the Tropical line handlers, who had emerged from the shelter they had sought from the lightning. Thereafter, at the recommendation of the Ship's captain, Tropical had divers inspect the underbody of the Ship. The inspection revealed the damage to the rudder caused by the grounding of the Ship during the rain squall (Grounding Incident).7/ Respondent was notified by Tropical of the outcome of the divers' inspection at around 3:30 p.m. on August 3, 2011, and, within a matter of minutes of receiving such notification, he telephonically reported the Grounding Incident to the United States Coast Guard (USCG) and to the Department's Pilot Consultant/Investigator, Lieutenant Commander Galen Dunton, USCG (Ret.).8/ The following day, Respondent provided Commander Dunton with a written report of the incident, as required by section 310.111 and Florida Administrative Code Rule 61G14-15.002. On August 30, 2011, Commander Dunton issued his Investigative Report concerning the Grounding Incident. It contained the following "Conclusions" and "Recommendation": Conclusions: It is concluded that Captain Hansen was operating under the auspices of his state license and therefore subject to disciplinary action by the State of Florida. The proximate cause [of the grounding of the Ship on August 3, 2011] is unknown. The most probable cause was the failure of the pilot to seek a better position within the [Main] Turning Basin to anchor instead of trying to come alongside the intended berth. The pilot made an error in judgment in deciding to approach the berth without any line handlers to assist versus seeking a better position within the [Main] Turning Basin to anchor and ride the storm out. Had the pilot proceeded further to the SW in the [Main] Turning Basin and then anchored,[9] he may not have grounded or at least bought more time to ride out the storm. The anchor began to drag once the bow started to swing with the wind, and as a result the stern quickly touched bottom near Beacon #12. There is evidence of a violation of FS 310.101(1)(a) on the part of the pilot, in that he failed to make allowances for the wind by anchoring off the berth instead of seeking a better position within the [Main] Turning Basin. There is evidence of a violation of FS 310.101(1)(k) on the part of the pilot in that he failed to (1) seek a better position to anchor within the [Main] [T]urning [B]asin, (2) [a]ttempted to approach the berth knowing that there were no line handlers available, practices not in keeping with the acceptable standards of safe piloting. Recommendation: It is recommended that 1. This case be forwarded to the Probable Cause Panel and that probable cause be found to exist for the following violations: FS 310.101(1)(a) on the part of the pilot in that he failed to make allowances for the wind by anchoring off the berth instead of seeking a better position within the [Main] Turning Basin. FS 310.101(1)(k) on the part of the pilot in that he failed to (1) seek a better position to anchor within the [Main] [T]urning [B]asin, (2) [a]ttempted to approach the berth knowing that there were no line handlers available, practices not in keeping with the acceptable standards of safe piloting.[10] The probable cause finding Commander Dunton recommended was made, and an Administrative Complaint, based on this finding, was thereafter filed. Respondent subsequently requested a "formal hearing" on the allegations against him. This administrative proceeding ensued, with the final hearing being held on February 27, 2012. Ultimate Finding The evidence presented at the final hearing did not clearly and convincingly establish that, in having the Ship approach the Assigned Berth and anchor where it did during its inbound journey through the Port on August 3, 2011, Respondent failed to exercise the care a reasonable and prudent Department- licensed pilot would have exercised under the same or similar circumstances or otherwise violated some professional standard of care or safety he was obligated to follow as a Department- licensed pilot.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Pilot Commissioners dismiss the Administrative Complaint against Respondent in its entirety. S DONE AND ENTERED this 29th day of March, 2012, in Tallahassee, Leon County, Florida. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of March, 2012.
The Issue Whether Petitioner should be granted a license for a private airport some four miles east of Dundee, Florida.
Findings Of Fact Frank J. Drewniany, Petitioner, is the owner of 153 acres of undeveloped land some 4 miles east of Dundee, Florida, which he proposes to develop and on which he proposes to operate a private airport. On October 28, 1988, Petitioner applied for a site permit and license for a private airport (Exhibit 1). The application provided the information required by statute and the rules of the Department of Transportation (DOT), Respondent. This information included evidence of Applicant's right to so use the property, a list of airports within 15 miles of the proposed facility, mailing addresses of all landowners within 1000 feet of the proposed facility, FAA airspace approval and the prescribed fees. The proposed site was inspected by John Roeller, the Florida DOT airport program administrator in the district office having jurisdiction over the area. This inspection revealed the site to be adequate for the proposed airport; the airport, if constructed, would conform to minimum standards of safety; the local zoning was appropriate for the airport; the Applicant had provided a list of all airports and municipalities within 15 miles of the proposed airport and all property owners within 1000 feet of the proposed airport; and that safe air traffic patterns can be worked out for the proposed airport. Following this inspection Roeller, on October 31, 1988, executed the prescribed certification that the site is feasible for the proposed use and can meet the requirements set forth in Chapter 14-60, Florida Administrative Code (Exhibit 5). By letter dated August 22, 1988, the Federal Aviation Administration (Exhibit 6) determined the proposed airport would not adversely affect the safe and efficient use of airspace by aircraft if operations are conducted in VFR weather conditions and the landing area is limited to private use. By Notice of Intent to issue site approval dated March 22, 1989 (Exhibit 7), the DOT published the intent to issue the requested permit and advised protestors would be allowed to air their views at a public meeting on May 10, 1989. Following this public meeting, Site Approval Order 89-13 (Exhibit 8) was issued, a hearing was requested to contest the issuance of the requested license and these proceedings followed. Intervenors presented evidence of a general concern for the safety of residents living in the vicinity of the airport and hearsay evidence regarding crashes of private planes in various areas of the United States. No evidence was presented by Intervenors to rebut the evidence that the Applicant had complied with the requirements for site approval and licensure contained in Chapter 14-60, Florida Administrative Code.
Recommendation It is recommended that a Final Order be entered granting Frank J. Drewniany a license to operate a private airport at Latitude 28 -00'-40" North and Longitude 81 -31'40" West, subject to restrictions established by the FAA and DOT to insure safe air patterns are established for the proposed private airport. ENTERED this 27th day of November, 1989, in Tallahassee, Florida. K. N. AYERS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of November, 1989. COPIES FURNISHED: Roger W. Sims, Esquire Post Office Box 1526 Orlando, Florida 32802 Thomas J. Patka, Esquire Post Office Box 1288 Tampa, Florida 33601 Vernon L. Whittier, Jr., Esquire 605 Suwannee Street Tallahassee, Florida 32399-0458 Thomas J. Hirt 1 Cypress Run Sun Air Country Club Haines City, Florida 33844 Ben G. Watts Interim Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450 Thomas H. Bateman, III General Counsel 562 Haydon Burns Building Tallahassee, Florida 32399-0450
