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 Documentary evidence was received that Hangar Two, Inc. was chartered on April 4, 1980, and had "Hangar Two, Inc." and its unique logo registered as a service mark on June 18, 1980. See Exhibits 1, 2, 3 and 6. Documentary evidence was received that Hanger Two Aviation, Inc. was incorporated on November 25, 1980. See Exhibits 4 and 5. Wallace I. Garrick testified on behalf of Hangar Two, Inc. Garrick has been the attorney for Carl Knight for a number of years and handled the incorporation of Hangar Two, Inc. for Knight. For several years, Knight has been engaged in the business of repairing, rebuilding and maintaining aircraft. Garrick has been to Knight's place of business many times. The business was located at North Perry Airport for a number of years and did business as Hangar Knight was forced to move his business and incorporated his business as Hangar Two, Inc. The business of the corporation is the repair and maintenance of aircraft. Knight moved his business to a building on the southeast corner of the same airport, which he caused to be identified and marked with his service mark "Hangar 2." See Exhibit 6. Located in this building when Knight moved there was an aircraft repair and maintenance business operated by George Ritch. Thereafter, Ritch retained a one-room office and leased a small portion of the floor space for his business use. Hanger Two Aviation, Inc. was incorporated by Milton Margulies, a local attorney. Its primary Director and agent for service of process is Jean S. Morse, an employee of Margulies. Garrick was advised by Margulies that he had incorporated Hanger Two Aviation, Inc. for George Ritch, and that he had no further relationship with the corporation or with Ritch. Incorporation of Hanger Two Aviation, Inc. was sought after the date that Knight's business moved into the same building occupied by Ritch and after the date Knight's business was incorporated in the name Hangar Two, Inc. Incorporation of Hanger Two Aviation, Inc. was not in good faith. Both corporations are engaged in the same business, aircraft repair and maintenance, and their principal places of business are located in the same building at the same airport. Garrick has seen bills and other mail intended for Ritch's business delivered to Knight's business.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the Department of State revoke the reservation for the corporate name Hanger Two Aviation, Inc. DONE and ORDERED this 26th day of October, 1981, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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 26th day of October, 1981. COPIES FURNISHED: Wallace I. Garrick, Esquire Concord Building, Suite 1000 66 West Flagler Street Miami, Florida 33130 Jean S. Morse, Registered Agent Hanger Two Aviation, Inc. 2020 NE 163rd Street North Miami Beach, Florida 33162 Stephen Nall, Esquire Office of the General Counsel Department of State The Capitol Tallahassee, Florida 32301 George Firestone, Secretary Department of State The Capitol Tallahassee, Florida 32301
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: At all times pertinent to this proceeding respondent was licensed by the petitioner as a pilot. He began sailing as a seaman in 1945, received a pilot's license in Texas in 1954, was a captain of tugs from 1954 to 1969 and has been a member of the Tampa Bay Pilots Association from 1969 to the present time. Respondent has made close to sixty (60) trips per month in and out of Tampa Bay since 1969. On August 6, 1981, at approximately 1500 hours, Captain Baggett was aboard the M/V IFNI, a medium-sized oceangoing vessel, and was proceeding outbound in Tampa Bay. The tug DIXIE PROGRESS and Barge B-103 were proceeding inbound. The DIXIE PROGRESS, which is 115 feet long and 35 feet wide, was pushing Barge B-103, which is 430 feet long and 80 feet wide. The Barge was carrying 147,000 barrels of gasoline at the time. As the IFNI was in "G" Cut, Captain Baggett noticed the tug and barge proceeding inbound in "D" Cut, approximately three to five miles from him. He radioed the DIXIE PROGRESS in order to make arrangements for the meeting and passage of the two vessels. Respondent inquired if there was a pilot aboard the tug. In arranging meeting situations, it is customary for one pilot to communicate directly with the pilot on the other vessel. Donald Hyde, the first mate aboard the DIXIE PROGRESS responded to Captain Baggett's call and informed him that there was no pilot aboard the tug. Respondent informed Hyde that he would meet them in Cut "E" on one whistle. Walter H. Williams, the Captain aboard the DIXIE PROGRESS, was standing near the radio when respondent called from the IFNI. At the time, Captain Williams felt that respondent would try to break up the tug and barge on passing because the tug did not have a pilot on board. For that reason, he relieved his mate and took control of the tug. The DIXIE PROGRESS was the last vessel in Tampa Bay to start using pilots, and did not start taking pilots until September of 1981. Respondent Baggett's son wads employed by Dixie Carriers, Inc., the owner of the DIXIE PROGRESS. At the time of the radio communication with Captain Baggett, the DIXIE PROGRESS was travelling at a speed of about 5.5 knots. Its speed was reduced to ensure that the meeting would occur in Cut "E". As the IFNI passed through "F" Cut, two dredged were working in the vicinity. Captain Baggett decreased the speed of the IFNI as he approached each dredge, and stopped the engine after passing each dredge. After passing the second dredge in "F" Cut and while making the turn into "E" Cut, Captain Baggett ordered the engines full ahead. Captain Williams and first mate Hyde noticed a puff of black smoke emit from the IFNI after it passed the last dredge in "F" Cut and turned into "E" Cut. At this point, as the IFNI began to gain speed, the two vessels were approximately eight-tenths to one mile apart. Some seven to eight minutes later, the IFNI and the tug and barge passed each other in "E" Cut at a distance of approximately 75 feet. The channel in "E" Cut is about 400 feet wide. After the IFNI passed the tug and barge, waves of approximately five or six feet in height caused the barge to dive under the water and, as it came back up, a push wire two inches in diameter broke. After passing the DIXIE PROGRESS, respondent looked astern and noticed the tug and barge at odd angles to each other. He radioed the tug and inquired as to what had happened. When informed by Captain Williams that a push wire had broken, respondent replied that he was sorry and that he had not realized that the IFNI had caused such a large wake. At no time during the incident in question did DIXIE PROGRESS Captain Williams feel that his vessel was in danger or that there was going to be a loss of property or life. He considered this to be a minor incident. It is not unusual for another vessel to pass the DIXIE PROGRESS and its barge at a speed of full ahead. The DIXIE PROGRESS and Barge B-103 frequently "push out" of the Mississippi River in six foot seas using the same "in the notch" configuration as was used during the incident in question. It is not unusual for the push wires which connect a tug and barge together to snap. The Captain and first mate aboard the DIXIE PROGRESS estimated that the IFNI was travelling at a speed of approximately 15 knots as it passed the tug and barge. Captain Baggett believed that he was travelling at a speed of about 7.5 knots as he passed the DIXIE PROGRESS. To travel a distance of approximately eight-tenths of a mile in seven or eight minutes would result in an average speed of about six to seven knots. It could take the vessel IFNI anywhere from six to twelve minutes to reach full speed from a stopped engine, depending upon the currents and other factors. The speed which a reasonable and prudent pilot should maintain when approaching and passing a tug and barge is dependent upon the circumstances, including the weather conditions and currents, the swell or wake the vessel is pulling, the size and configuration of the channel, the amount of water outside the channel and the configuration and weight of the vessels. While a passage within 200 feet with the IFNI travelling at a speed of 15 knots would not be something that a reasonable and prudent pilot would do, it cannot be determined without knowledge of the surrounding circumstances whether a passage at 8 knots would constitute incompetence, negligence or misconduct. By a "Final Order" signed by the Chairman of the Board of Pilot Commissioners and filed on July 28, 1981, it was ordered that a proposed Stipulation in Case No. 0007227 was approved, adopted and incorporated by reference and that Thomas A. Baggett "is reprimanded and is placed on probation for a period of one (1) year. . . ." The Stipulation reveals that that case was the subject of a proposed complaint in a case factually unrelated to the present case and that part of the consideration for the Stipulation was that the proposed administrative complaint in that case be held in abeyance. Among the terms of the Stipulation were that "The Respondent shall be placed on probation for a period of one year from the date of the final order of the Board accepting this sti- pulation. The order of Probation will be deemed to have been violated, subject to proving the allegations, if the Respondent is found by the Probable Cause Panel of the Board to have engaged in any conduct which constitutes negligence, incompetence or mis- conduct as presently embodied within section 310.101, Florida Statutes. In such case both a new proposed Administrative Complaint may be filed and the instant proposed Admini- strative Complaint may be instituted. In this respect, the Respondent specifically waives any procedural objections to insti- tuting the instant proposed Administrative Complaint." In October of 1981, by a vote of 2-2, the Board of Pilot Commissioners refused to modify the Final Order of July 28, 1981, so as to delete the word "probation" from its terms.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the Administrative Complaint filed against the respondent on January 18, 1982, be DISMISSED. Respectfully submitted and entered this 5th day August, 1982, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 Filed with the Clerk of the Division of Administrative Hearings this 6th day of August, 1982. COPIES FURNISHED: C. Steven Yerrid Holland and Knight Post Office Box 1288 Tampa, Florida 33601 W. B. Ewers, Esquire Special Trial Counsel 2170 SE 17th Street Suite 204 Ft. Lauderdale, Florida 33316 Jane Raker, Executive Director Board of Pilot Commissioners 130 North Monroe Street Tallahassee, Florida 32301
The Issue Petitioners' alleged liability for sales tax, interest and penalties under Chapter 212, Florida Statutes.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the arguments of counsel and the stipulation of facts entered herein, the following facts are found. Petitioners are Florida corporations having their principal place of business at Palm Beach International Airport, West Palm 8each, Florida. Petitioners conduct a fixed base aircraft operation by which they provide services to both aircraft owners and aircraft users. Petitioners are licensed, qualified and certified by the Federal Aviation Administration, the Civil Aeronautics Board, the State of Florida, and Palm Beach County to conduct its operation. Petitioners employ qualified mechanics, technicians, flight instructors, pilots, and consulting and sales personnel for conducting these services, which are described in detail below. Petitioners lease and occupy facilities appropriate for the storage, use, and repair of aircraft. Petitioners have written contractual agreements with aircraft owners in which Petitioners obtain the use of the aircraft. Petitioners pay the owners an agreed amount per hour for the use of the aircraft, which amount varies with the aircraft age and type. (Examples of said agreements are attached to Joint Exhibit number 1.) These agreements use the term "lease" to describe the Petitioners' rights to use the aircraft. The agreements provide that Petitioners will have exclusive supervision, control, and custody of the aircraft during the term of the agreement. The agreements permit the owner of the aircraft to use the aircraft for personal needs, however, so long as such use does not conflict with Petitioners' scheduled use thereof. Petitioners use the aircraft to conduct approved flight instruction for the public, to engage in charter transportation of passengers and property, and to rent to qualified pilots. Petitioners charge the third parties for instruction, charter, or rental and report the proceeds as "income" on their federal tax returns. Petitioners' payments to the aircraft owners are reflected as an "operating or overhead expense" for federal tax purposes. When using the aircraft, Petitioners employ and pay qualified flight instructors, pilots, crews and mechanics to fly and service the aircraft. The aircraft owners have no contractual agreement with these persons. Petitioners are responsible for providing all required inspection, maintenance, and repair services to the aircraft, subject to reimbursement by the owners. The aircraft owners pay the costs of fuel and lubricants used during Petitioners' use of the aircraft. Petitioners provide property damage insurance on the aircraft and liability insurance for the pilots, crew, and third parties who charter or use the aircraft. Petitioners are responsible, at the expiration of the agreement, to return the aircraft to the owner in substantially the same condition as at the commencement of the agreement, except for normal wear and depreciation. Petitioners advertise themselves to the public as a charter flying service and flying instruction service and actively solicit customers for these services. Petitioners are also in the business of selling aircraft and are authorized dealers for Cessna and Piper aircraft companies. Some of Petitioners' purchasers enter into agreements like those attached hereto, granting Petitioners exclusive use and control of the aircraft. Petitioners' purchasers properly pay sale tax under Chapter 212, Florida Statutes, when they purchase aircraft. They do not, insofar as Petitioners are aware, furnish Petitioners with resale certificates which certify that the purchase is solely for resale, in the manner designated by Rule 12A-1.38, Florida Administrative Code. Some of the purchasers have furnished exemption certificates, however, so those purchases were not taxed. Petitioners contend that they are an integrated business for the selling, storing, maintenance, and servicing of aircraft for aircraft purchasers and the provision of chartering and instruction services for third parties. Petitioners contend that their experience and expertise in providing all these services to owners and the general public is economically feasible only through an integrated operation of this nature, or through a substantially greater capital investment. Petitioners assert that the agreements by which they obtain exclusive use of the aircraft are agreements to provide expert management services to the owners, and are not subject to sales tax under Chapter 212, Florida Statutes. Respondent contends that the agreements by which Petitioners obtain exclusive use of the aircraft are separate and distinct from the rest of Petitioners' business, for sales tax purposes. Respondent also contends that the remainder of Petitioners' business is immaterial to the incidence of the tax. Respondent asserts that the agreements described herein are agreements to lease tangible personal property which are taxable as "sales" under Chapter 212, Florida Statutes. Petitioners also assert that certain of the agreements are not taxable because the aircraft owner paid sales tax on the initial purchase of the aircraft, as described in Paragraph 13 above. The Respondent contends that the prior payment of tax at the time of purchase is immaterial, since the purchase was not for resale. The issues thus presented herein are: whether the agreements are taxable transactions, as disputed in Paragraphs 14 and 15; and whether certain of the agreements are specifically nontaxable by virtue of the owner's payment of tax at the time of purchase, as disputed in Paragraph 16. The Respondent originally assessed Petitioners for tax, penalty, and interest in the amount of $19,149.08. It then appeared that in certain of Petitioners' transactions, the aircraft owners were already remitting sales tax. Respondent thereupon revised its assessment. The Respondent now alleges that the following amounts were due on March 15, 1978: Tax $11,144.68 Penalty 557.22 Interest 1,652.86 Total $13,354.76 The penalty and interest figures are subject to revision with the passage of time. The Respondent will update those figures upon issuance of a final order. Petitioners have paid no part of the foregoing assessment. Petitioners have not placed the computation of the amount due in issue, however, in the event they are held to be liable.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby, RECOMMENDED: That the Revised Notice of Proposed Assessment of Tax, Penalties, and Interest under Chapter 212, Florida Statutes, dated March 15, 1978, be asserted against Petitioners pursuant to applicable law, with interest computed to reflect the passage of additional time. ENTERED this 20th day of August, 1979, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: John A. Gentry, III, Esquire David K. Miller, Esquire Moyle, Gentry, Jones, Flanigan Assistant Attorney General & Groner, P.A. Department of Legal Affairs Post Office Box 3888 The Capitol, LL04 West Palm Beach, Florida 33402 Tallahassee, Florida 32301
The Issue Whether the application of the Fort Pierce Pilots Association for an increase in the pilotage rates for the Port of Fort Pierce should be granted in whole or in part, or denied.
Findings Of Fact Based on the testimony and documentary evidence presented at the hearings on April 26- 28 and August 23, 2011, and on the entire record of this proceeding, the following findings of fact are made: The Parties Petitioner ACL is the largest user of the Port of Fort Pierce (the Port). ACL operates three vessels on a regular "liner" schedule operating six days per week from the Port to a few foreign ports. Approximately 95 percent of the vessel traffic at the Port is generated by these three vessels. ACL is affected by the rates of pilotage set for the Port since it is required by chapter 310, Florida Statutes, to utilize and compensate a state-licensed pilot each time one of its vessels enters or departs the Port. The rates that must be paid by ACL are established by Respondent, Department of Business and Professional Regulation, Pilotage Rate Review Committee. Accordingly, ACL is substantially affected by and has standing to maintain this challenge to the former Board's preliminary decision set forth in the Notice of Intent. Petitioner IRT owns the terminal at the Port, as well as warehouses, offices and equipment at the Port. The pilotage rate increase preliminarily approved by the Board in the Notice of Intent will make the pilotage rates at the Port higher for the small vessels which can utilize the Port than the rates these same size vessels would pay at the Port of Palm Beach, Port Canaveral and/or Port Everglades. This is significant because IRT competes to attract new business from vessel owners and/or operators whose vessels call on South Florida. Accordingly, IRT is substantially affected by and has standing to maintain this challenge to the Board's preliminary decision set forth in the Notice of Intent. The Pilotage Rate Review Committee (formerly the Pilotage Rate Review Board), Department of Business and Professional Regulation (DBPR), is a state agency created by section 310.151, Florida Statutes. It is established as part of the Board of Pilot Commissioners, and consists of seven members. With regard to an application for a change in pilotage rates, the Committee must investigate and determine whether a rate change will result in fair, just and reasonable rates of pilotage pursuant to chapter 310, Florida Statutes, and rules implementing those provisions. The decisions of the Committee however, are made independent of the Board of Pilot Commissioners, and are not appealable to the Board of Pilot Commissioners. Intervenor Fort Pierce Pilots Association (FPPA) is an association of harbor pilots with one member, William Wetzel, LLC. Captain William Wetzel is, in turn, the sole member of William Wetzel, LLC and is the state-licensed pilot for the Port. The FPPA, through Captain Wetzel and occasionally a cross-licensed pilot from the Port of Palm Beach, perform the pilotage services at the Port. The Florida State Pilots Association, Inc. (FSPA) has a business address in Tallahassee, Florida. FSPA is a voluntary organization representing the interests of Florida’s 97 state- licensed harbor pilots, who participate in the FSPA through the 11 local pilot associations that serve Florida’s deepwater ports. The Piloting Profession Chapter 310, Florida Statutes, sets forth a comprehensive body of regulation addressing the practice of piloting in this state. The purpose of such regulation, as elsewhere in the country, is to ensure the efficient movement of maritime commerce while guarding against vessel incidents that could injure persons and property, as well as the state’s economy and environment. From this standpoint, the most dangerous part of any sea voyage for the ship and for the public at large is when the ship is moving into or out of port. In the maritime industry, the crew of a vessel, which is employed by the ship’s owner or operator, is under significant pressure to bring that vessel into and out of port efficiently and without delays. In light of the risks posed if those economic interests were to override public safety, Florida, and every other state with a significant maritime industry, requires vessels to utilize the services of an independent state-licensed pilot. The pilot is a mariner with many years of experience who is thoroughly familiar with every facet of a particular port and who has the skills necessary to maneuver a wide variety of ships. Because the pilot is not employed by the vessel owner, the pilot can exercise independent judgment, free from the pressures normally associated with the ship’s business operations. The value added by the pilot in terms of safety is widely recognized throughout the maritime industry, as evidenced by the fact that even ships calling on U.S. ports for which a pilot is not required by state law, i.e., U.S.-flagged vessels, routinely use the services of the port’s state-licensed pilots. The risks faced by pilots are unique. Pilots are transferred from their pilot boat out at sea onto and off of large moving vessels. Once the pilot boat maneuvers alongside the vessel, the pilot typically boards the ship by stepping from the pilot boat onto a ladder hanging from the ship’s side. Unfortunately, pilots are frequently injured and sometimes killed in the course of this dangerous transfer, particularly in bad weather. One expert in the piloting profession testified that over the course of a 30-year career, a pilot has a one-in-20 chance of being killed in a boarding accident. Once on board, the pilot must familiarize himself or herself with the ship’s navigational equipment, performance characteristics, and mechanical condition. The pilot conducts a conference with the ship’s master, during which the two exchange technical information on the ship, as well as details of the planned passage. If the vessel is fit for the transit, the pilot then “takes the conn,” assuming navigational control of the vessel and directing the ship’s movements by giving verbal commands on steering and engine power to the ship’s crew. The crew will have varying levels of maritime experience and often speak little or no English. The pilot must deal with a wide variety of ships and equipment. The vast majority of ocean-going vessels are flagged in foreign countries rather than the U.S., thus avoiding a great deal of regulation, as well as taxation. Piloting Selection and Training A mariner wanting to become a state pilot in Florida must await an opening declared by the state’s Board of Pilot Commissioners in one or more ports where he or she has an interest in serving. If the mariner is determined to have sufficient experience and qualifications, the next step in the process of deputy pilot selection is successful completion of a very difficult written examination, designed and administered by the State of Florida. This comprehensive two-day examination encompasses International & Inland Rules of the Road, Seamanship & Shiphandling, Federal & State Pilotage Laws, and port-specific Chart Work & Local Knowledge, and requires the candidate to reproduce from memory a complete and accurate chart of the port and its channels. These examinations are extremely difficult, and candidates will have typically spent several months and hundreds of hours in preparation. Only about 20 percent of those who sit for the exam will pass. The examination, however, is not one where the applicant is only required to achieve a minimum score to demonstrate basic competency. Rather, in Florida, the goal of the deputy pilot candidate is to achieve the top score among all candidates taking the exam. This is because the DBPR Secretary will be presented with a list of the top five scores on the exam and will typically appoint as the deputy pilot the person scoring highest. Once the DBPR Secretary has selected a deputy pilot to fill an opening at a Florida port, the deputy is issued a 12-month temporary certificate. The temporary certificate becomes permanent when the deputy has proven suitable in all respects for continued training as a state pilot. Once in receipt of the temporary certificate, the deputy pilot then begins a minimum two-year training program at the port, as approved and monitored by the Board of Pilot Commissioners. Under the supervision of the fully licensed pilots of the port, this training program allows the deputy pilot to initially handle smaller vessels of limited size and tonnage, with gradual increases in size and tonnage over time. While in training, the deputy earns only a portion of what a full pilot would earn. The Board of Pilot Commissioners approves each deputy pilot’s advancement to a higher level in the training program, after thorough review of the records and the recommendations of the local pilots in the port. Some deputy pilots “wash out” of training and fail to complete the program, never becoming pilots. Upon completion of all training, the deputy pilot must pass yet another rigorous exam administered by the state before he or she can be appointed and licensed by DBPR as a full state pilot for the specific port in which the deputy pilot has trained. The Rate Application and Review Process On or about March 30, 2009, the FPPA submitted an application (the Application) to the former Board, requesting an increase in pilotage rates at the Port. The Application sought an increase in the rates of pilotage at the Port over a four- year period, as follows: 157% in year one, 13.9% in year two, 16.7% in year three and 18.7% in year four. The total requested increase from year one to year five was 206%, from a $150.00 minimum fee before the Application, to a $608.00 minimum fee after the final requested year four rate increase. As prescribed by statute and the Committee’s rules, two contract consultants were assigned to be the Investigative Committee. One consultant, Richard Law, is a CPA, and has served as an investigative consultant on pilotage rate proceedings for DBPR for 16 years. The other consultant, Galen Dunton, is a retired Coast Guard commander with 18 years of experience as an investigative consultant for DBPR in pilotage matters. The Investigative Committee made its initial visit to the Port on July 10, 2009. During this process of investigation, several interested persons provided comments in opposition to the requested rate increase. Following the investigation, the Investigative Committee submitted its findings to the former Board on September 8, 2009. The FPPA requested the following pilotage rate increases in its application: Draft Charge $12.50 Year 1 $26.60 Year 2 $30.25 Year 3 $35.20 Year 4 $41.20 (min. of 10 feet) Tonnage $.015 (min. of 1667 GT) $.060 $.0685 $.080 $.098 Total Min. Fee $150.00 $386.00 $439.50 $512.00 $608.00 % Increase 157% 13.9% 16.7% 18.7% On December 11, 2009, at a Board public meeting, a number of interested persons provided comments and testimony in opposition to and in support of, the requested change in rates. Captain Wetzel, as well as representatives of both Petitioners, addressed the Board. The Investigative Committee included in its Report findings and comments relating to each of the criteria enumerated in section 310.151(5), Florida Statutes (2009). The Board reviewed the Investigative Committee’s findings and the statutory criteria and approved the requested rate increase for Year 1 only. The increases requested for Years 2, 3 and 4 were denied. The statutory criteria reviewed by both the Investigative Committee and the Board (now Committee) consisted of the following: (5)(a) In determining whether the requested rate change will result in fair, just, and reasonable rates, the board shall give primary consideration to the public interest in promoting and maintaining efficient, reliable, and safe piloting services. The board shall also give consideration to the following factors: The public interest in having qualified pilots available to respond promptly to vessels needing their service. A determination of the average net income of pilots in the port, including the value of all benefits derived from service as a pilot. For the purposes of this subparagraph, "net income of pilots" refers to total pilotage fees collected in the port, minus reasonable operating expenses, divided by the number of licensed and active state pilots within the ports. Reasonable operating expenses of pilots. Pilotage rates in other ports. The amount of time each pilot spends on actual piloting duty and the amount of time spent on other essential support services. The prevailing compensation available to individuals in other maritime services of comparable professional skill and standing as that sought in pilots, it being recognized that in order to attract to the profession of piloting, and to hold the best and most qualified individuals as pilots, the overall compensation accorded pilots should be equal to or greater than that available to such individuals in comparable maritime employment. The impact rate change may have in individual pilot compensation and whether such change will lead to a shortage of licensed state pilots, certificated deputy pilots, or qualified pilot applicants. Projected changes in vessel traffic. Cost of retirement and medical plans. Physical risks inherent in piloting. Special characteristics, dangers, and risks of the particular port. Any other factors the board deems relevant in determining a just and reasonable rate. The board may take into consideration the consumer price index or any other comparable economic indicator when fixing rates of pilotage; however, because the consumer price index or such other comparable economic indicator is primarily related to net income rather than rates, the board shall not use it as the sole factor in fixing rates of pilotage. § 310.151(5), Fla. Stat. On March 31, 2010, the Board issued a Notice of Intent to approve in part and deny in part the application by FPPA to increase the pilotage rates at the Port. In its decision, the Board determined findings of fact with respect to each of the criteria listed in section 310.151(5), Florida Statutes. In granting the FPPA’s requested rate increase for the first year the Board approved the following charges at the Port, effective May 1, 2010: A draft charge of $26.60 per draft foot, measured up to the next 1/10th foot, with a minimum charge for ten (10) feet; i.e., $266.00; A tonnage charge of $.0600 per Gross Registered Ton (GRT) with a minimum charge for 2000 GRT, i.e., $120.00; Docking/undocking fees are eliminated; Shifting rates are increased as follows: Same Slip - $250.00 Different Slip - $386.00 A towed barge charge of .0300 per GRT with no minimum charge. Pursuant to section 310.151(5)(a), the Committee “shall give primary consideration to the public interest in promoting and maintaining efficient, reliable, and safe piloting services” when dealing with a requested pilotage rate change. However, the Board is also required to consider additional specific factors in determining whether to approve or deny a requested rate change. Statutory Pilotage Rate Review Criteria The public interest in having qualified pilots available to respond promptly to vessels needing their service. (section 310.151(5)(b)1, Florida Statutes) In its Notice of Intent, the Board accepted the findings of the Investigative Committee as reflected on page C-1 of the Investigative Committee Report. Among other things, the Investigative Committee observed with respect to this criterion: The pilots are essential to the safe movement of vessels within the pilotage waters of the State. In addition to their navigation and supervisory skills, they must be knowledgeable of local weather, hazards, silting, speed and direction of currents, and timing and direction of tidal movements. They provide development of safety and operational guidelines for the port operation and participate in the process of port and professional regulations. Petitioners assert that this record does not support a finding that the use of a state-licensed pilot at the Port is "essential" to safety at the port. Petitioners argue that the captains of ACL's three small vessels have more experience entering and exiting the Port than does Captain Wetzel, and that the use of a state-licensed pilot, although mandated by law, does not increase safety for ACL's vessels, the Port, or the public at large. Petitioner's contention in this regard is rejected. As noted above, harbor pilots must not only possess excellent navigational skills, they must also be knowledgeable of a host of constantly-changing variables that affect the safe transit of vessels within their home port. Moreover, even if the current captains of ACL's three vessels have more experience entering and exiting the Port than does Captain Wetzel, there is no assurance that those same captains will continue in the employ of ACL in the future. The record of the hearing held before DOAH does not contain any evidence to form a basis for findings of fact different from, or in addition to, the facts relied on by the Board in its Notice of Intent with respect to this criterion. A determination of the average net income of pilots in the port, including the value of all benefits derived from service as a pilot. For the purposes of this subparagraph, “net income of pilots” refers to total pilotage fees collected in the port, minus reasonable operating expenses, divided by the number of licensed and active state pilots within the ports. (section 310.151(5)(b)2, Florida Statutes) There are approximately 1,200 state-licensed harbor pilots in the United States. The average compensation for a state-licensed pilot nationally is about $400,000.00 per year. However, state regulatory boards do not set pilot compensation, they set pilotage rates. Thus, a pilot’s compensation depends upon how much revenue is generated by the vessel traffic in that port, net of operating expenses. The pilot in a small port like Ft. Pierce would not be expected to make the same amount as a pilot in a larger port, such as Miami or Tampa. In these larger ports, large draft and tonnage vessels generate higher pilotage fees and this revenue supplements the cost of bringing in smaller vessels. In Ft. Pierce, that is not possible because of the physical limitations of the Port, which will not accommodate large vessels. Higher minimum rates therefore have to be set in Ft. Pierce because of the small size of the vessels, and to compensate a Palm Beach pilot (cross-licensed for Ft. Pierce) for making the two-hour plus drive to Ft. Pierce to handle a vessel if the Ft. Pierce pilot is unavailable for some reason. In its Notice of Intent, the Board accepted the findings of the Investigative Committee, as reflected on page C-2 of the Investigative Committee Report, as corrected at the public hearing, which set the pilot’s net income for years 2007 and 2008 at $112,800.00 and $92,700.00 respectively. In the "Analysis and Decision" section of the Notice of Intent, the Board also stated: Further, the pilots are charged with maintaining or securing adequate pilot boats, office facilities and equipment, and other equipment and support services necessary for a modern, dependable piloting operation. Although the Pilot currently has an arrangement with the Port’s largest user regarding the use of a converted crew boat, the evidence presented to the Board shows that in some aspects this assignment has been less than satisfactory. The Board opines that an increase in pilotage rates sufficient to permit the Pilot to procure an adequate pilot boat and/or secure such services is warranted. (Notice of Intent, p. 10, 11) Compared to the typical piloting operation in which the pilots in a port provide their own pilot boat to ferry them to and from transiting ships, the Investigative Committee determined that Captain Wetzel’s operating expenses were very low, since ACL had been providing the pilot boat in Ft. Pierce. In its Notice of Intent, the Board approved the first year schedule of rate increases only, specifically noting that the increase was intended in part to address the unsatisfactory pilot boat arrangement between FPPA and ACL: Based upon these findings, the Board determines that the proposed three-year schedule of rate increases sought by the Pilot should not be granted in its entirety at this time. The Board finds that a more modest increase to account for the progressively higher operating costs, inflation, and to permit the Pilot to obtain or secure pilot boat services, will provide fair, just and reasonable rates, and will continue to ensure that sufficient back-up pilots will be available to serve Fort Pierce. Accordingly, the Board approves the requested first-year schedule of increase only. (Notice of Intent, p. 12) The FPPA application projected the pilot boat as an expense of $325,000.00, with annual depreciation of $32,500.00. After the issuance of the Board’s decision in March 2010, granting only the first year of the FPPA’s requested rate increase, circumstances dictated that the FPPA purchase a less expensive pilot boat than the one anticipated in the FPPA rate application.2/ Specifically, when Captain Wetzel began to look for a suitable pilot boat, he was significantly hindered by the pending challenge to the Board’s decision. Pursuant to section 310.151(4)(b), the difference between the old rate and the new rate for each vessel movement was being deposited into an escrow account pending resolution of the Petitioners’ challenge, so the increased cash flow could not be relied upon by a lender to secure the loan necessary to obtain the desired $325,000.00 boat. Captain Wetzel and the Petitioners discussed the possibility of continuing to use the Kacey Lynn (owned by I.R.T) as a pilot boat, but negotiations were unsuccessful. Captain Wetzel then had to obtain his own pilot boat and settle on getting a much less expensive one that will not be as durable or long-lived as necessary. Ultimately, FPPA purchased a temporary pilot boat from Ameracat for about $92,000.00 and it was delivered to Captain Wetzel in mid-May 2010. As noted, the evidence established that the type of pilot boat purchased by Captain Wetzel will have a shorter lifespan than a typical pilot boat, because it will not be able to withstand the banging and pounding that occurs when a pilot boat comes alongside a commercial vessel. In order to purchase the Ameracat pilot boat, Captain Wetzel had to withdraw money from his retirement account so he could pay cash for the boat. Petitioners do not take issue with the Board’s decision that an increase in pilotage rates in Ft. Pierce is warranted so that Captain Wetzel can procure an adequate pilot boat. However, they contend that Captain Wetzel’s decision to purchase a pilot boat that cost significantly less than the one contemplated in the Application results in undue income to Captain Wetzel, which should result in the rates being decreased to reflect reduced expenses, including the boat’s purchase price, maintenance costs and interest expense. As will be discussed in greater detail infra, FPPA’s projected costs as set forth in the Application were accurate at the time submitted. The evidence of record does not support a finding that Captain Wetzel intended to mislead the Board in the projected cost of $325,000.00 for a pilot boat, or that he does not intend to purchase a more durable replacement once the escrowed funds from the approved rate increase are released. Rather, given the circumstances of the administrative challenge to the rate increase, Captain Wetzel acted reasonably and of necessity in purchasing a less expensive, temporary pilot boat. Petitioners' contention that Captain Wetzel’s purchase of a pilot boat costing less than the one projected in his rate application will result in undue income to Captain Wetzel (justifying elimination or reduction in the approved rates) is not supported by the greater weight of evidence in this record, and is rejected. The record of the hearing held before DOAH does not contain evidence sufficient to form a basis for findings of fact different from, or in addition to, the facts relied on by the Board in its Notice of Intent with respect to this criterion, except as specifically set forth in the preceding paragraphs. Reasonable Operating Expenses of Pilots (section 310.151(5)(b)3, Florida Statutes) In its Notice of Intent, the Board accepted the findings of the Investigative Committee shown on pages C-2 and C-3 of the Report. The record of the hearing held before DOAH does not contain evidence sufficient to form a basis for findings of fact different from, or in addition to, the facts relied on by the Board in its decision with respect to this criterion, except as specifically set forth in the following paragraphs. Prior to the rate increase under challenge in this proceeding, the pilotage rates in effect at the Port were unchanged since their initial adoption in 1980 -– a minimum draft and tonnage charge of $150.00 plus a docking/undocking fee of $60.00, for a total minimum pilotage fee of $210.00. In late 2007, ACL stopped having the pilot perform docking and undocking of ACL’s vessels and discontinued payment of the corresponding $60.00 fee to the pilot, reducing the effective minimum pilotage fee for ACL and most other vessels to $150.00. A rate increase application in 2003 filed by the previous Ft. Pierce pilot was withdrawn, based upon an informal, unwritten agreement that Petitioners would provide an old crew boat formerly used on the Great Lakes (the Kacey Lynn) to ferry the pilot to and from vessels at no cost, dropping the $75.00 fee previously charged to the pilot for each use of the crew boat. At that time, the Port was primarily being served by cross-licensed pilots from other ports, as the permanent pilot in Ft. Pierce was injured and unable to continue working. In light of the circumstances, the cross-licensed pilots were not eager to invest in a pilot boat and other infrastructure, so use of the Kacey Lynn, while not ideally suited for safely transferring the pilot to or from a transiting ship, was a useful accommodation while a new permanent pilot was sought for Ft. Pierce. For non-ACL vessels, IRT billed the owners of some of those vessels from $75.00 up to $150.00 for the use of the Kacey Lynn to ferry the pilot to or from a ship. In the only other Florida port in which the pilots do not provide their own pilot boats, Pensacola, the pilot is ferried to and from transiting ships by a tug company that charges $400.00 per trip. As set forth in its application, FPPA’s projected pilot boat cost of $325,000.00 with $32,500.00 per year depreciation is reasonable, especially when compared to the costs of pilot boats serving other ports. Credible testimony established that a pilot boat in a major port would cost $1.2 million to $2 million, with annual maintenance costs typically at 5% of the purchase price. The pilot association in Jacksonville, Florida, recently spent $1.2 million on a pilot boat, while pilots in Miami purchased a pilot boat several years ago for approximately $600,000.00. More recently, the Miami pilots association rebuilt two of their pilot boats at a cost of approximately $350,000.00. In comparison to the cost of pilot boats in other ports, FPPA’s projected operating costs as set forth in its application are relatively conservative. As noted above, Captain Wetzel's purchase of a temporary pilot boat (with correspondingly lower operating expenses) for use during the pendency of this administrative challenge does not render the projected operating expenses in the application unreasonable. Pilotage Rates in Other Ports (section 310.151(5)(b)4, Florida Statutes In the Notice of Intent, the Board accepted the findings of the Investigative Committee as reflected on pages C- 4 through C-7 of the Investigative Committee Report. The record of the hearing held before DOAH does not contain evidence sufficient to form a basis for findings of fact different from, or in addition to, the facts relied on by the Board in its Notice of Intent with respect to this criterion, except as specifically set forth in the following paragraphs. Petitioners assert that Table 4 on page C-6 of the Investigative Committee Report understates the FPPA's revenue per handle hour by overstating the FPPA's average "handle time." "Handle time" is generally defined as the time "that the pilot takes the conn to the time he relinquishes it", i.e., the time that the pilot is actually directing the guidance of the navigation of a vessel. According to Petitioners, the average handle time for pilots operating in the Port is closer to 30 minutes per handle than the 1.5 hours per handle used by the Investigative Committee. When a handle time of 30 minutes per handle is applied, Petitioners argue, the FPPA is currently earning $370.00 per handle hour, rather than the $123.00 per handle hour shown in the Investigative Committee Report.3/ There is evidence in this record that until recently, there has not been a statewide standard for measuring handle times. Although the Board of the Florida State Pilots Association recently adopted a definition, the data appearing in Table 4 of the Investigative Committee Report relies upon older historical data (2007 and 2008), which in some cases may be outdated due to the change in the size of ships using various ports.4/ As such, it would be inappropriate to compare the Ft. Pierce revenue per handle hour using a handle time of 30 minutes without also updating the handle times of the other ports used in the comparison. Approval of the Year 1 rate increase would not create a competitive disadvantage at the Port. The pilotage fee is a very small and relatively insignificant factor in the overall decision on whether to bring a ship into a particular port. In light of the considerable operating costs of a commercial vessel, the $175.00 difference between the new minimum pilotage fee in Ft. Pierce and the lower minimum pilotage fee in Palm Beach (the closest competing port) would not be significant enough to warrant shifting a subject vessel from Ft. Pierce to Palm Beach. The amount of time each pilot spends on actual piloting duty and the amount of time spent on other essential support services. (section 310.151(5)(b)5, Florida Statutes In the Notice of Intent the Board accepted the findings of the Investigative Committee as reflected on pages C7 and C8 of the Investigative Committee Report. The record of the hearing held before DOAH does not contain any evidence to form a basis for findings of fact different from, or as a supplement to, the facts relied on by the Board in its decision with respect to this criterion, except as specifically set forth in the following paragraphs. Time spent on actual piloting duty includes handle time, transit time to and from the vessel, and administrative time related to that handle. Time spent on other essential support services generally involve matters pertaining to the port in question, e.g., dealing with the Coast Guard on port security or safety issues, dealing with the Army Corp of Engineers regarding the ship channel, etc. In its Report, the Investigative Committee considered "handle time' to be the time the pilot is actually engaged in traveling to a ship, piloting the ship, and returning to home port, i.e., dock to dock. The Investigative Committee did not attempt to verify the historical data regarding handle time but did utilize a shorter figure of 1.5 hours per handle.5/ No compelling evidence was presented that indicates that this 1.5 hour handle time figure was grossly incorrect. While ACL operates a “liner service” with a published schedule that its ships adhere to most of the time, actual arrival and departure times for ACL ships frequently vary from this schedule. Moreover, the pilot must be available to respond to vessels requiring his assistance 24-hours a day, seven days a week. Although the Petitioners argue that actual handle time might make a part-time job for the Ft. Pierce pilot, it does not matter if it is an hour or two hours, it is still a huge time commitment throughout each week to be available and on call to serve the needs of the port. The Investigative Committee also observed: The schedule varies for each day of the week. On Mondays, Wednesdays and Fridays he must “mobilize” early in the mornings to meet vessels arriving at 7:00 A.M. and then re-mobilize later in the afternoon to handle the 5:00 P.M. departures. Consequently, the two-step mobilizations increase his daily time requirements by an amount greater than the average handle times. The schedule also requires additional standby time between some of the back-to-back handles. (Investigative Committee Report, P. C-7) The prevailing compensation available to individuals in other maritime services of comparable professional skill and standing. (section 310.151(5)(b)5, Florida Statutes) In its Notice of Intent, the Board accepted the findings of the Investigative Committee, reflected on page C-8 of the Investigative Committee Report, supplemented as follows: As was discussed in the Port Everglades Order, supra, the Board accepts the proposition that the pre-pilot career path is the same for persons who remain as senior bridge officers on American-flagged ships and for those who become pilots. As was noted in the Port Everglades Order, however, pilots are not employees but are rather professional consultants and self-employed business persons who take the risks and accept the benefits of such status. In addition, section 310.151(5)(b)6, F.S., sets the wage rate of “comparable professions” as the floor for pilot income – not the ceiling. As was also noted in the Port Everglades and Tampa Orders, the Board has accepted that the wage rate of senior masters on American-flagged ships varies greatly and, thus, the Board can find no specific number to use as the only acceptable “floor” for pilot compensation. The Board, thus, uses the range of masters’ salaries as a range of “floors” on pilots’ income to be applied depending on the amount of vessel traffic at a port, the characteristics of a port, and the need for pilotage services at a port. Thus, a pilot’s berth at the major ports, such as the Port of Tampa Bay, Port Everglades, Miami, Jacksonville or Palm Beach would be considered as akin to the most prestigious, responsible, and highly paid masters’ berths (Master, Mates and Pilots scale – c. $220,000.00 - $230,000.00 per year) while lesser ports, with correspondingly lesser amounts of traffic and need for pilotage services would have a lower “floor” for income. Nonetheless, the Board also finds that the pilotage rates need to be sufficient to ensure that licensed pilots remain willing and financially able to serve the ports of this State. As reflected in the Report of the Investigative Committee, the current Pilot’s schedule has grown to a full-time position, with no backup pilot available. Thus, the Pilot must rely on cross-licensed pilots from Palm Beach for backup, who currently earn substantially more at their home port. Accordingly, the Board finds that the rates must be increased sufficiently to continue to attract cross-licensed pilots to serve as back up at Fort Pierce, and eventually, if traffic warrants, candidates for a deputy pilot position. (Notice of Intent, pages 7, 8) The record of the hearing held before DOAH does not contain evidence sufficient to form a basis for findings of fact different from, or in addition to, the facts relied on by the Board in its Notice of Intent with respect to this criterion, except as specifically set forth in the following paragraphs. While background as a master or mate is useful, a pilot must possess superior close-quarter ship handling skills and the ability to handle a wide variety of vessels. Foreign licensed mariners are not allowed to become a pilot in Florida. There was contradictory evidence on the prevailing annual compensation for masters serving on US-flagged ships of comparable skill and standing to Florida state-licensed pilots, ranging from $143,000.00 - $181,000.00 (inclusive of wages and benefits) to $300,000.00 for union personnel. However, it is significant that these are salaried positions that do not require the employee to invest in infrastructure or training, or to directly participate in the economic risks of the business. Petitioners argue that there are other maritime industry positions, in addition to master of a U.S.-flagged vessel, which are comparable in professional skill and standing as that of a Florida state-licensed pilot. Specifically, Petitioners assert that masters and deck officers of inland vessels and U.S.-flagged integrated tug and barge units (ITBs) require a comparable level of professional skill and standing. Petitioners' witness on this issue opined that the master of an "upper end" inland vessel (e.g., jumbo barge) would make a salary ranging from $116,000.00 to $131,000.00, while a deck officer would make less than $100,000.00. Similarly, the annual salary for the master of a "premier" ITB would range from $106,000.00 to $132,000.00, while senior mates would have total compensation of less than $100,000.00. Generally, pilots receive about 50% more in total compensation than masters on US-flagged ships. This disparity is necessary in order to motivate the most desirable professional mariners (a master or chief mate with 10-12 years of experience) to leave their current maritime employment, including giving up valuable pension benefits, to take on the risks of self-employment as a pilot. This career change entails significant physical risks, civil and criminal liability risks in the event of accidents, investment in infrastructure, management of a business, etc. While Petitioner may be correct that masters and deck officers in other maritime industries are generally compensated less than state-licensed pilots, those employees bear none of the risks of self-employment. The pool of professional U.S. mariners qualified to move into the pilot career path is relatively small -– a little over 2,000, and ports across the U.S. compete against each other to attract the best individuals to piloting. Indeed, ports within Florida compete with each other for the best qualified candidates. While large Florida ports historically would have had 20-30 applicants for a pilot opening, the number of applicants for even large ports like Miami and Jacksonville has decreased in the last 4-5 years. Most recently there were only 11 mariners testing for two openings at Jacksonville and eight mariners testing for three openings in Miami. The pilot in a small port like Ft. Pierce would not be expected to receive the same compensation as the master of a large container ship (or a pilot in a large Florida port like Tampa or Miami), but the compensation must still be high enough to attract and retain a qualified pilot and to pay for cross- licensed pilots as back-up. Pilots in the port of Palm Beach, where each of the five pilots recently worked about 600 handles per year (similar to the number of pilot handles in Ft. Pierce), netted annual income of approximately $150,000.00. Even in a best case scenario, Captain Wetzel’s net income would only match those of Palm Beach pilots, and it is more likely that, due to increased expenses, it will still fall below that level even with the approved rate increase. The impact rate change may have in individual pilot compensation and whether such change will lead to a shortage of licensed state pilots, certificated deputy pilots, or qualified pilot applicants. (section 310.151(5)(b)7, Florida Statutes) In the Notice of Intent, the Board accepted the findings of the Investigative Committee as reflected on page C-9 of the Investigative Committee Report. The record of the hearing held before DOAH does not contain any evidence to form a basis for findings of fact different from, or in addition to, the facts relied on by the Board in its Notice of Intent with respect to this criterion. At the hearing before the former Board, Petitioners disputed the need for any pilotage rate increase to enable the FPPA to purchase and operate its own pilot boat. As of the time of the administrative hearing, the pilot had already purchased a temporary pilot boat, and Petitioners assert that the increase approved by the former Board should be reduced to cover the expenses relating to the pilot boat actually purchased, and operating such boat, but not provide for an increase in net revenue (compensation) to the pilot. For the reasons stated in paragraphs 34-40 above, the Petitioners' contention in this regard is rejected as not supported by the greater weight of the evidence. In addition, the undersigned notes that the operating expense projections contained in the Application were merely that. . . projections. Moreover, the expense projections, including the $325,000.00 expenditure for a pilot boat, were expressly predicated upon approval of the rate increases requested in the application.6/ Although an applicant must certify that the statements contained in a pilotage rate change application are true and correct when made, expense projections set forth in an application are not binding on the applicant, and the Board (now Committee) has no authority to compel the expenditure of specific funds identified in an application. Given the Board's denial of the requested rate increases (with the exception of Year 1) it was not unreasonable for Captain Wetzel to refrain from making the specific expenditures projected in the application, particularly for a $325,000.00 pilot boat. As noted above, the projections when made were reasonable, but changed circumstances necessitated adjustment of those expenditures. In the Notice of Intent, the Board did not "earmark" a specific portion of the revenue increase for the purchase of a pilot boat, but rather recognized the need for "a modest increase to account for the progressively higher operating costs, inflation, and to permit the Pilot to obtain or secure pilot boat services . . ." (Notice of Intent, p. 12) Projected changes in vessel traffic. (section 310.151(5)(b)8, Florida Statutes) Cost of retirement and medical plans. (section 310.151(5)(b)9, Florida Statutes) Physical risks inherent in piloting. (section 310.151(5)(b)10, Florida Statutes) Special characteristics, dangers, and risks of the particular port. (section 310.151(5)(b)11, Florida Statutes) Any other factors the board deems relevant in determining a just and reasonable rate. (section 310.151(5)(b)12, Florida Statutes) The board may take into consideration the consumer price index or any other comparable economic indicator when fixing rates of pilotage; however, because the consumer price index or such other comparable economic indicator is primarily related to net income rather than rates, the board shall not use it as the sole factor in fixing rates of pilotage. (section 310.151(5)(c), Florida Statutes) The record of the hearing held before DOAH does not contain any evidence sufficient to form a basis for findings of fact different from, or in addition to, the facts relied on by the Board in its Notice of Intent with respect to the criteria set forth in 310.151(5)(b)8-12, and 310.151(5)(c), above. Taken in its entirety, the evidence presented by the Petitioners, Respondent and Intervenors in this proceeding with respect to the statutory factors set forth in section 310.151(5)(b) and (c), yielded findings of fact in addition to those found by the Board in its Notice of Intent. There was not sufficient credible and persuasive evidence presented by the Petitioners to support any findings of fact materially contrary to the findings of the Board in its Notice of Intent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Pilotage Rate Review Committee consider the additional facts established by the evidence presented at the hearing before the Division of Administrative Hearings in determining, in accordance with its interpretation of its statutory mandate, its expertise, and the appropriate policy considerations, whether the decision on the PFFA Pilotage Rate Increase Application in the Port of Ft. Pierce, filed March 30, 2009, will result in fair, just, and reasonable pilotage rates at the Port of Ft. Pierce. DONE AND ENTERED this 31st day of January, 2012, in Tallahassee, Leon County, Florida. S W. DAVID WATKINS 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 31st day of January, 2012.
The Issue The issue is whether Petitioner owes tax, penalty, and interest under Section 212.05(1)(a)2., Florida Statutes,1/ for an aircraft that it allegedly purchased and used in Florida.
Findings Of Fact Petitioner is a national banking and trust company headquartered in Utah. It does not have any operations or personnel in Florida. Petitioner routinely serves as “owner trustee” for non- U.S. citizens who want to register aircraft with the Federal Aviation Administration (FAA). Petitioner charges a fee (typically $4,000) to set up the trust, as well as an annual fee (typically $2,000) for its services as “owner trustee.” Petitioner holds legal title to the aircraft in its capacity as “owner trustee” because the FAA regulations do not allow non-U.S. citizens to register aircraft. Petitioner does not have any operational control over the aircraft even though it holds legal title. The tax assessment at issue in this case relates to a Cessna Citation 650 jet, tail number N385EM (hereafter “the aircraft”), which Petitioner holds legal title to as “owner trustee” pursuant to a Trust Agreement dated April 28, 2007. The trustor and beneficiary under the Trust Agreement is MAW.ZC, LLC, which is a Delaware limited liability company, controlled by a non-U.S. citizen, Nelson Ceballos. The sole purpose of the trust was to “ensure the eligibility of the Aircraft for United States registration with the [FAA].” The aircraft was purchased from Southern Jet Center (SJC) in Sanford, Florida, on May 3, 2007, for $3.74 million. The “purchaser” identified on the Bill of Sale was “Wells Fargo Bank Northwest, NA as Owner Trustee under Trust Agreement dated 4/28/07.” MAW.ZC, LLC, was not mentioned on the Bill of Sale. Petitioner’s witness, Jon Croasman, testified that MAW.ZC, LLC, negotiated the purchase of the aircraft with SJC, and then assigned the purchase right to Petitioner as “owner trustee” so that the aircraft would not lose its tail number and it would be easier to register the aircraft with the FAA. The record does not contain a written purchase agreement between MAW.ZC, LLC, and SJC or a written assignment of the purchase right from MAW.ZC, LLC, to Petitioner. According to Mr. Croasman, SJC was “kind of an unsophisticated seller” and it did not require these documents. Mr. Croasman was the only witness with personal knowledge of the events surrounding the purchase of the aircraft who testified at the final hearing. His testimony was logical and persuasive and is accepted as credible despite the absence of corroborating documentation. Petitioner did not pay anything to SJC for the purchase of the aircraft. The entire $3.74 million purchase price was paid by MAW.ZC, LLC. Petitioner was the purchaser of the aircraft in name only. The real purchaser was MAW.ZC, LLC. On May 4, 2007, Petitioner filed an application to register the aircraft with the FAA. The applicant listed on the application form was “Wells Fargo Bank Northwest, National Association, not in its individual capacity but solely as Owner Trustee under a Trust Agreement dated as of 4/28/07.” On the same day, the FAA issued a certificate of registration for the aircraft. The certificate was issued to “Wells Fargo Bank Northwest NA Trustee.” Registration of an aircraft with the FAA has no bearing on its ownership. Indeed, the official registration document for the aircraft issued by the FAA states: “This certificate is issued for registration purposes only and is not a certificate of title. The Federal Aviation Administration does not determine rights of ownership as between private parties.” On May 7, 2007, Petitioner filed with the Department an Affidavit for Exemption of Aircraft Sold for Removal from the State of Florida by a Nonresident Purchaser (hereafter “the Removal Affidavit”). The affidavit identified the purchaser of the aircraft as “Wells Fargo bank Northwest, NA, not in its individual capacity but solely as Owner Trustee for MAW.ZC, LLC.” The aircraft remained in Florida undergoing repairs at SJC from the date of purchase until July 2, 2007, when it was flown to Venezuela where it was based. It is undisputed that the aircraft left Florida within 20 days after the initial repairs were completed and, therefore, the sale was exempt from the sales tax. The Department informed Petitioner in a letter dated July 13, 2007, that the aircraft could not be brought back into Florida for a period of six months without its becoming subject to Florida’s use tax. Petitioner forwarded this letter to Mr. Ceballos, since he and MAW.ZC, LLC, were responsible for the operation of the aircraft. Petitioner did not exercise any control over the operation of the aircraft after its purchase. In April 2007, prior to the purchase of the aircraft, Petitioner and MAW.ZC, LLC, entered into an Aircraft Operating Agreement. This agreement was executed in conjunction with the Trust Agreement in anticipation of the purchase of the aircraft. The Aircraft Operating Agreement gave MAW.ZC, LLC, “an exclusive right to possess, use and operate the Aircraft.” The agreement required MAW.ZC, LLC, to pay all costs associated with the operation and maintenance of the aircraft. And, with respect to the operation of the aircraft, the agreement required only that MAW.ZC, LLC, cause the Aircraft to be operated by competent personnel in accordance with the manufacturer’s manuals and FAA and other government regulations. On June 15, 2007, Petitioner authorized Captain Alexander Nunez to pilot the aircraft “wherever necessary and specifically including but not limited to Venezuelan air space.” Petitioner interprets the Trust Agreement and the Aircraft Operating Agreement to preclude it from exercising any control over the operation of the aircraft even though Section 9.01(a) of the Trust Agreement gives Petitioner “absolute and complete discretion” in connection with matters involving the ownership and operation of the aircraft so as to protect the interests of the United States. According to Mr. Croasman, the language in Section 9.01 is required verbatim by the FAA for the sole purpose of ensuring that Petitioner, as “owner trustee,” will be able to operate the aircraft without violating its obligations under the Trust Agreement in the unlikely event that the U.S. government needs to use the aircraft for some reason.2/ And, as Mr. Croasman pointed out, Section 9.01(a) requires Petitioner to “exercise this discretion in all matters involving ownership and operation of the Aircraft by the Owner Trustee with due regard for the interests of the Trustor.” The Trust Agreement and the Aircraft Operating Agreement provided that MAW.ZC, LLC, was responsible for keeping records concerning the use of the aircraft. MAW.ZC, LLC, was also responsible for paying any taxes or expenses related to purchase or use of the aircraft. The aircraft crashed in Venezuela on February 18, 2008, killing Mr. Ceballos, Captain Nunez, and the copilot. The original flight records for the aircraft were destroyed in the crash, and no copies of those records were presented at the final hearing. No witness with personal knowledge regarding the operation of the aircraft was presented at the final hearing. The only evidence presented concerning the operation of the aircraft was flight data obtained from two Internet sources, FlightAware and fboweb.com. The FlightAware data was obtained by Department staff as part of their monitoring of the aircraft’s operation during the six-month period after its initial departure from Florida. The fboweb.com data was provided to the Department by David McDonald, the attorney for MAW.ZC, LLC, and Mr. Ceballos, who was acting as Petitioner’s authorized representative during the investigation and protest phase of this case. There is no evidence that Mr. McDonald had any personal knowledge of the information contained in the fboweb.com data, and he did not present it to the Department as his understanding of the aircraft’s operation. Indeed, the letter by which Mr. McDonald transmitted the fboweb.com data to the Department stated that he was “having trouble trying to decipher the information provided by fboweb.com” and that he was providing it to the Department because it appeared to be inconsistent with the FlightAware data conveyed to him by the Department staff. Mr. McDonald never expressly contested the assertion by the Department staff that the aircraft returned to Florida within the six months after it initial departure. His failure to do so was not, under the circumstances, an admission or acquiescence to the Department’s position that the aircraft did return to Florida within that period. Indeed, he informed the Department staff on several occasions that he had not been able to obtain information concerning the aircraft’s operation because the aircraft’s flight records were destroyed in the crash. No credible evidence was presented as to what the FlightAware or fboweb.com services are, or how they obtain the flight data included in their records. For example, when asked to explain her “understanding of what Flight Aware is,” the Department witness used to introduce the data testified only that “[i]t’s a service that the Department subscribes to to track the flights for the aircraft.” The FlightAware data indicates that the aircraft made eleven flights into Florida between September 2007 and January 2008: Flight Date Destination 1 9/22/07 from Arturo Michelena International Airport (Arturo) in Venezuela to Kendall-Tamiami Executive Airport, and then to Simon Bolívar International Airport in Venezuela by way of Ft. Lauderdale Executive Airport on the same day 2 9/29/07 from Arturo to Hollywood International Airport (FLL), and then to Simon Bolivar International Airport the following day 3 10/1/07 from Arturo to FLL, and then back to Arturo the same day 4 10/4/07 from Arturo to FLL, then to Orlando Sanford International Airport (SFB) the following day, with a return to Arturo by way of FLL and Nassau International Airport on October 14 5 10/15/07 from Arturo to FLL, then to SFB on the same day 6 12/16/07 from Arturo to FLL, then to SFB the same day, with a return to Arturo on December 20 7 12/21/07 from Arturo to FLL, and then back to Arturo on the same day 8 12/23/07 from Arturo to FLL, and then back to Arturo on the same day 9 1/3/08 from Punta Cara International Airport to FLL, then to SFB on the same day, with a return to Arturo by way of FLL on January 6 10 1/10/08 from Arturo to FLL, and then back to Arturo on January 12 11 1/13/08 from Arturo to FLL, and then back to Arturo on the same day The fboweb.com data is, as Mr. McDonald noted, difficult to decipher. However, it appears to include most, if not all, of the flights that were listed in the FlightAware data. The fboweb.com data also lists flights on September 8- 9, 2007, between Arturo, FLL, and SFB. Those flights were not listed in the FlightAware data. No findings can be made as to whether the aircraft was indeed in Florida on the dates reflected in the FlightAware or fboweb.com data because that data is uncorroborated hearsay. Even if the FlightAware and fboweb.com data could be relied upon to establish that the aircraft was in Florida on the dates referenced above, only the September 8-9 flights listed in the fboweb.com data and the first eight flights listed in the FlightAware data would be relevant. The other three flights listed in the FlightAware data -– 1/3/08, 1/10/08, and 1/13/08 - – occurred more than six months after the aircraft’s initial departure from Florida on July 2, 2007. Mr. McDonald was able to locate and provide to the Department repair invoices related to only four of the nine relevant flights listed in the FlightAware and fboweb.com data – - 9/8/07, 10/4/07, 10/15/07, and 12/16/07. On each of those occasions, there is documentation showing that the aircraft underwent repairs at SJC in Sanford. There is no evidence that the aircraft underwent repairs in connection with the other five flights listed in the FlightAware data -– 9/22/07, 9/29/07, 10/1/07, 12/21/07, and 12/23/07. Mr. McDonald provided an invoice for a part that was purchased for the aircraft at FLL on September 29, 2007, but there is no evidence that the part was installed in Florida on that trip. No sales or use tax was paid on the aircraft by Petitioner or any other entity or person to Florida or to any other state or country. Petitioner does not dispute the amount of the tax, penalty, or interest calculated by the Department in the Notice of Reconsideration. The tax is $224,400, which is six percent of the sales price of the aircraft; the penalty is $224,400, which is 100 percent of the tax as required by Section 212.05(1)(a)2., Florida Statutes; and interest is accruing at a rate of $67.44 per day, with $27,273.10 of interest having accrued through the date of the Notice of Reconsideration. These amounts were assessed against Petitioner in its capacity as “owner trustee,” not its individual capacity.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department issue a final order rescinding the assessment at issue in this case. DONE AND ENTERED this 19th day of August, 2009, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of August, 2009.
The Issue Whether the demotion of the Petitioner by the Respondent from an Airplane Pilot I to an Engineering Technician II position was supported by competent substantial evidence and complied with the Florida Statutes and rules and regulations.
Findings Of Fact Petitioner John Clarkson was demoted by Respondent Department of Agriculture, Division of Forestry, after Petitioner failed to receive a satisfactory rating after having received ratings of "conditional" for a period of six months. The ratings were discussed and signed by the Petitioner. By certified letter, return receipt requested, dated April 15, 1976, the Petitioner was formally advised that the Commissioner of the Florida Department of Agriculture had approved his Division Director's recommendation that Respondent be demoted. Petitioner filed his appeal of the Respondent's action on May 6, 1976. On May 18, 1976, the Petitioner was notified by the Career Service Commission that his appeal had been accepted. Petitioner twice requested a continuation of the requested administrative hearing and subsequently filed a Motion for Default and Directed Verdict or Judgment on the pleadings. A response was filed and thereafter, the Motion was withdrawn by Petitioner. Petitioner is a 30-year State employee and has served more than twenty (20) years with the Department of Agriculture. He currently is employed by Respondent as an Engineering Technician II. The Petitioner admits that the demotion of Aircraft Pilot I to Engineering Technician II was procedurally correct and the essence of his argument against the demotion is that the Respondent concentrated on finding "little picky things" about the employee and used these to fortress his demotion. Petitioner contends: That matters in the Petitioner's personal record before 1975 should not be considered. That the major allegations of Respondent were related to his non- flying duties and that the demotion concerned his duties as an Airplane Pilot I. That the charges of tardiness, wasting time, inability to perform non-flying duties were, even if supported by competent and substantial evidence, immaterial to the issue. That Petitioner's actions in relation to a ferrying plane trip to California in 1975 did not endanger the life of colleagues or aircraft; that Petitioner was justified in his takeoff from an airport on a hot day and on his leaving the group on its return to Tallahassee on the said trip. That inaccuracies in reporting; fires, which was a major part of his duties, were not confined to Petitioner and that he considered it better to be "safe than sorry" than save a little money when reporting fires, and that further, he "called them as he saw them." That the supervisors and superiors failed to meet with Petitioner as required and were more intent on building up Petitioner's deficiencies than in trying to help him. Respondent contends: That Petitioner failed to follow instructions of his supervisors. Petitioner failed to adequately perform duties as fire control spotter pilot, which resulted in crews being dispatched unnecessarily. That Petitioner's ratings, letters of reprimand, memorandums, throughout his career showed he failed to follow instructions in performing his job adequately. The Hearing Officer further finds: Petitioner presented evidence and testimony relative to his employment prior to 1975. Contrary to the contentions of the Petitioner, the position of Airplane Pilot I includes not only flying duties and responsibilities of the fire patrol, it includes much paper work such as drawing and tracing and revising plans, revising maps, making maps, handling orders, disseminating fire weather forecasts to field offices, and the coordination of related incoming reports. Work with others is an integral part of the employment. An examination of the voluminous records submitted and entered into evidence at the hearing show that the Petitioner has had an employment history of conflict with his employer for a number of years and the same type of criticism continued from year to year up to the date of Petitioner's demotion. The Respondent presented evidence to show that Petitioner had been sent memorandums calling his attention to numerous complaints about the quality of his work and relationship with other people including many other employees of Respondent. Evidence was submitted to show Petitioner's repeated failure to follow instructions of his superiors. Evidence was submitted showing that during the years of Petitioner's employment there were some "conditional" ratings; some ratings below satisfactory; one previous demotion; memorandums citing Petitioner for failure to perform duties adequately; complaints from passengers, which ultimately resulted in the revision of Petitioner's duties so that he did not carry passengers. Taken as a whole, the various memorandums concerning Petitioner show that contrary to the contention of Petitioner, the supervisors and superiors endeavored to work with Petitioner and were consistently trying to fit him into the work organization so that he could work within his capacities. Other employees were moved within the Division to fill in where the Petitioner was deficient. The charges of tardiness, wasting time, poor work product, go directly to the employment of the Petitioner and no competent evidence was submitted to show that these charges were inaccurate. It was not conclusively shown that Petitioner actually endangered the lives of colleagues or aircraft on a September, 1975 flight to California from Florida during his ferrying duties, however Petitioner failed to follow prior instructions and caused confusion among the other members of the group on that trip. On one occasion he left the group without permission of the designated leader and the group was forced to change its plans and land at a different location. Petitioner failed to follow instructions, left the group and teak off and had to be called back. On the return trip to Tallahassee he left the group and returned to Tallahassee before the others contrary to flight plans that the group remain together. A hot day and eagerness to return home from a trip is insufficient reason to disobey instructions of supervisors. The fire logs show that Petitioner made relatively more errors in reporting fires than the other reporters and evidence was shown that errors wasted money and caused loss of needed services elsewhere. The report of fires was a central part of Petitioner's employment duties. Petitioner is an experienced and evidentally, good pilot, but the evidence shows he fails to follow closely the instructions of his supervisors in relation to his duties and is deficient in his non-flying work. He fails to work well with other employees.
Recommendation Affirm the action of the Agency in demoting Petitioner. DONE and ENTERED this 13th day of December, 1978, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Walter Kelly, Esquire Mrs. Dorothy Roberts Department of Legal Affairs Appeals Coordinator The Capitol Building Department of Administration Tallahassee, Florida 32304 Room 530 Carlton Building Tallahassee, Florida 32304 Clinton H. Coulter, Jr., Esquire DUVALL & COULTER Mr. Jerry Gullo 118 S. Gadsden Street Department of Agriculture Tallahassee, Florida 32301 Mayo Building Tallahassee, Florida 32304
The Issue The issue for determination is whether Petitioner has been discriminated against, as he has alleged, and if so, what relief is appropriate.
Findings Of Fact Respondent, F.I.T., is located at the Melbourne airport in Melbourne, Florida. The company provides maintenance support and other general aviation support services for Florida Institute of Technology's flight school. Balazs was hired in August 1987 by Thomas Thompson, Director of Maintenance. His primary duties were the cleaning and washing of aircraft. Thompson left for a 30-day vacation the end of August, and Shop Foreman, John D. Laudenslager, was in charge. Almost immediately, Laudenslager began receiving complaints from female employees regarding Balazs' over-friendly conduct. Laudenslager told Balazs to ignore the females, and when Thompson returned, he was informed of the problem. The complaints were that Balazs would watch the women arrive at work and would jump out from behind the door and scare them. He would also make them uncomfortable by asking about their personal lives. He would also meet them at the gate with exaggerated and unwarranted attention. Thompson spoke to the women involved and confirmed their complaints. On one occasion, Thompson himself observed Balazs at his work station washing an airplane. When a female arrived, Balazs dropped his brush and walked over to the gate. As she walked past him, he turned to face her, staring and leering. Thompson discussed the behavior with Balazs and told him to leave the women alone. Balazs' conduct appeared to improve for a while. His 60 days probationary employment terminated on October 18, 1987. Thompson was reluctant to elevate him to permanent status and to give him the usual merit raise, but by the end of October it appeared that the problem might have been resolved. Balazs received his raise on November 2, 1987. On November 6, 1987, the primary recipient of Balazs' attentions complained again. Virginia Toole has worked at F.I.T. for about nine years, and presently is the senior administrative clerk in charge of records. Balazs started bothering her almost as soon as he started working there. He jumped out from behind the door to scare her, he asked about her boyfriend and asked F.I.T. students about her personal life. When she brought roses she had received from her boyfriend, he told her he could bring bigger and better. Shortly thereafter, a bag of dead roses was found hanging on the gate. After Virginia Toole complained again, John Laudenslager wrote a memo to Balazs reminding him that he had been counselled previously and informing him that further complaints would result in his immediate termination. Balazs was given the memo on November 6th. He was counselled again by Thompson and Laudenslager and was told to avoid all women at work. His response to the memo was peculiarly cavalier. He asked the foreman if he could put the memo on the bulletin board because it was so ridiculous. That evening, after maintenance hours, the company hosted a social gathering to celebrate the dedication of a new building. Balazs attended the gathering and circulated among the females present, showing them the memo and making derisive remarks related to his claim that his accusers were not identified and that the phrase "too familiar and overly friendly" was not defined to his satisfaction in the memo. One female with whom he wittingly or unwittingly shared his comments was Thompson's wife. The next day, a Saturday, Virginia Toole arrived at work just as Balazs was leaving. He followed her to her office, put his arm around her and asked her to meet him at a local lounge for drinks. He also turned to a friend who was with him and said that she was the lady who was going to get him fired. On Monday, November 9, 1987, he was fired. Ms. Toole had reported his behavior again, and his flagrant actions on the evening of November 6th obviously had not escaped the attention of his supervisors. Although he denies leaving the dead roses and putting his arm around Ms. Toole, Balazs admits that he made a point of opening the entrance gate for the women and conversing with them. He denies that his approaches were improper, but admits that he was counselled repeatedly and was told to ignore the women. He also admits that he knew of no instance where females were overly friendly with other females or males and were not disciplined. His behavior, according to Thompson, was unique, but the company would discipline others of either sex if confronted with the same or similar complaints.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that John Balazs' Petition for Relief from an Unlawful Employment Practice be dismissed. DONE and RECOMMENDED this 1st day of May, 1989, in Tallahassee, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of May, 1989. COPIES FURNISHED: John S. Balazs 2007 Dunbar Avenue Melbourne, FL 32901 Wayne L. Helsby, Esquire 201 South Orange Avenue Barnett Plaza Suite 740 Orlando, FL 32801 Margaret Agerton Clerk of the Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1750 Dana Baird General Counsel Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1750 Donald A. Griffin Executive Director Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1750
