Findings Of Fact By application dated May 10, 1987, and subscribed to on December 18, 1987, the Petitioner applied to the Department for approval and licensing of a seaplane airport site for his own private usage (P-2) . The Petitioner is appropriately licensed as a seaplane pilot. The location of the proposed airport is Pate Lake, located near Caryville, in Washington County, Florida. Pate Lake is approximately one mile by three-quarters of one mile in size, large enough to accommodate the Petitioner's proposed airport. The Petitioner's seaplane is currently and would remain based on the west side of the lake, where the Petitioner owns a parcel of land. The Petitioner has utilized Pate Lake as a base of operation for the seaplane on an irregular basis for several years. The seaplane is a single-engine Balanca Citaba, similar in size to a Piper Cub. The plane carries a maximum of two persons, including the pilot. The engine produces 150 horsepower and has a muffled exhaust. There was no reliable evidence which would indicate the decibel level or amount of noise that is generated by the seaplane on takeoff, however the noise at landing is minimal because landings are accomplished with the engine thrust significantly reduced. Pate Lake is relatively remote with limited population, however the population residing near the water is generally concentrated on the western side of the lake. The lake is used primarily for fishing and other recreational activities. A public boat ramp is also located on the west side of Pate Lake, approximately 400 to 500 feet from the Petitioner's property, according to a map prepared by the Department and introduced by the Petitioner (P-12). The number and type of recreational users of the lake depend on the weather and time of year, with an estimated 15 to 20 fishing boats on the lake simultaneously when conditions warrant. In December, 1987, an on-site inspection of the proposed airport area was performed by Larry Parker, an aviation specialist with the Department. Parker determined that the site was feasible for use as proposed by the Petitioner and "can meet the requirements set forth in Airport Licensing and Zoning Rule Chapter 14-60" (P-4). By letter dated December 30, 1987, the administrator for the Washington County Commission advised the Department that there were no restrictions which would prohibit the establishment of the seaplane base (P-5). There is no relevant zoning ordinance applicable to Washington County. By letter dated March 2, 1988, the Petitioner was advised by the Federal Aviation Administration that the proposed airport would "not adversely affect the safe and efficient use of airspace by aircraft" provided that operations were limited to VFR (visual flight rules) weather conditions, and that the airport were limited to private use. The F.A.A. specifically "did not consider the interaction of sea plane operations with surface craft traffic..." (P-6). On May 2, 1988, the department issued a "Notice of Intent" to approve the airport and issue the license (P-3). A public meeting was subsequently held on June 8, 1988, at which time an unknown number of persons apparently objected to the Department's intended approval of the license application. On June 16, 1988, a resolution was adopted by the Washington County Board of County Commissioners at which time the Board expressed opposition "to the permitting of a Seaplane operation on Pate Pond" (P-8). The resolution clearly indicates that the Board acted, at least in part, in the belief that "a commercial Seaplane operation is contemplated on the lake..." and that property owners in the area objected to the proposal. By memo dated July 11, 1988, Larry Parker, the district aviation specialist for the Department forwarded materials from the public meeting to his supervisor, Bobby Grice (P-9). At that time, Parker reiterated his opinion that the proposed airport site met "the safety standards as outlined in Rule 14-60", and that the Petitioner could operate in a safe manner from Pate Lake. By letter dated July, 27, 1988, the Petitioner received notice from the Department that it intended to deny his application for approval of his Pate Lake seaplane base (P-10). The Department stated that the denial was based on the County Commission resolution of June 16th, which "the department accepts...as equivalent to zoning refusal by the Washington County Commission." Further the Department cited comments "submitted by many of the nearby landowners and they are opposed to a seaplane base on Pate Lake on the basis of noise and safety." The Department's action followed the recommendation of Mr. Grice to deny the application. Mr. Grice based his recommendation on safety concerns related to utilization of the recreational lake as a seaplane base. Mr. Grice has visited the Pate Lake area, but has not viewed the Petitioner's seaplane in operation. At the administrative hearing the Department presented the testimony of several persons who reside on or near Pate Lake. The property owners had on infrequent occasions heard or seen a seaplane, allegedly the Petitioner's, flying over their homes at an altitude they believed to be unreasonably low or in a manner which caused what they felt was excessive noise. 1/ No one recalled more than two such incidents over the several years that the Petitioner has utilized the lake as a seaplane base. Other complaints were directed towards the maintenance of the Petitioner's property, which was identified by one witness as an "eyesore". Concerns were voiced related to the witnesses fear of property value depreciation, but there were no facts to support the theoretical depreciation. One witness, a helicopter instruction pilot who visits the area on occasion, observed the seaplane, approximately seven or eight months prior to the hearing, take off and land twice on the same day. The witness testified that the pilot on both occasions flew at an excessively low altitude over the houses on the west side of the lake. The witness estimated the altitude over the houses to be less than 500 feet, an altitude which he believed was a "major judgement error" of the pilot, because an emergency maneuver at that altitude, if necessary, would have been difficult to accomplish. However, the witness, who has no experience with seaplane operations, did not register the incident with any regulatory agency, although he believed it to be a violation of minimum safe altitude regulations. He has not otherwise viewed the seaplane in operation. One witness, a seasonal resident of the lake area who utilizes the lake for fishing, recalled an incident in January or February, 1988, where the Petitioner's plane landed on the lake while the witness was fishing from a small boat in the same vicinity as where the Petitioner was attempting to land. The witness had not heard the plane's approach due to the lack of engine noise until the plane began landing. Although uninjured, he was fearful for his safety during the incident. The witness explained that he was concerned about the personal safety of boaters in the water during the times the seaplane was landing, because the noise level is minimal, and boaters may not be aware of the aircraft's approach. There was no explanation or response offered by the Petitioner to the allegations of the Department's witnesses other than assertions that a seaplane could be operated in such a manner as to prevent low flight over residences and minimize risk to users of the lake. Although there was testimony related to lakes, similar or smaller than Pate Lake, which are allegedly licensed as private seaplane airports, the testimony did not provide evidence sufficient to provide for an accurate comparison between other lakes and Pate Lake.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED: That the Petitioner's application for licensure of Pate Lake as a seaplane base be DENIED. DONE and ORDERED this 20th day of December, 1988, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of December, 1988.
Findings Of Fact There is created within the Division of Professions of the Department of Professional Regulation a board known as the Board of Pilot Commissioners. See Section 310.011; Florida Statutes. That board, in conformance with Section 310.061, Florida Statutes, has authority to license state pilots for ports in Florida. This includes pilots for the St. Johns River, to include the Port of Jacksonville. In furtherance of this arrangement; the Department of Professional Regulation examines candidates for the positions of pilot and deputy pilot as a prerequisite to appointment and licensure or certification, depending on whether the position sought is that of pilot or deputy pilot. Out of this examination process; the Board; within its discretion, may decide how many pilots or deputy pilots it wishes to appoint and license or certify for a given port within the state. See Section 310.051, Florida Statutes. Petitioners and Intervenor, Captain Shiras M. Walker, and others stood examination for appointment and certification as deputy pilot for the port of Jacksonville in an examination given on August 26 and 27, 1985. All told, eleven candidates stood the examination for the position of deputy pilot in the Port of Jacksonville as held in August 1985. (There was one other candidate who was being examined for an unrelated port pilot position.) It was the intention of the Board to appoint and certify only one deputy pilot from this group of candidates. The candidates who stood the examination in August 1985 were required to be mariners who held a Master's License. This is a requirement of the Port of Jacksonville and is unique to that port. Petitioners and Captain Walker were qualified candidates in that sense. The candidates for examination in the August 1985 sitting, including Petitioners and Captain Walker, had been provided certain test information from the Department of Professional Regulation, Office of Examination Services, prior to being examined. Among those items was a document described as a "NOTICE TO APPEAR." Within those materials was found the admission slip to the examination, a description of the format of the examination and a suggested reading list which the candidates were encouraged to utilize in preparing for the examination session. The facets of the subject examination were as required by Rule 2155- 5.13, Florida Administrative Code which sets forth the seven test areas. They were: International Rules of the Road. Inland Rules of the Road and the Pilot Rules. Seamanship, Shiphandling and other subjects relating to piloting. Aids to Navigation. Local or specific knowledge of the port area for which the candidates are being examined. Chartwork for the port area for which the candidates are being examined. Knowledge of the federal and state pilotage laws. In carrying forward the examination process, the Department of Professional Regulation, in accordance with Section 455.217.(1), Florida Statutes, through the Office of Examination Services, is charged with the responsibility to ensure that the examination for deputy bar pilot in the Port of Jacksonville as given in August 1985, "adequately and reliability measures an applicant's ability to practice the profession" of deputy pilot. Further, this office must insure that the examination questions are a reliable measurement of the general areas of competence specified in the aforementioned rule. Those responsibilities as imposed upon the Department of Professional Regulation were adequately addressed in the examination process pertaining to deputy bar pilot for the Port of Jacksonville, August 1955 examination session. This examination as given in August 1985 was one related to placement of the top candidate in the one available position for a deputy pilot in the Port of Jacksonville. In order to gain that position, the candidates had to be successful in passing the various sections within the examination instrument. However, only the candidate who had passed the various sections within the examination process and attained the highest score would be selected. Rule 2155-5.13(3), Florida Administrative Code, mandates that a candidate correctly answer 90 percent of the subject matter set forth in the first two sections to the examination, described previously as (a) and (b) and 75 percent of the material in the five remaining subject areas. Failure in any one of these seven sections means that the candidate was unsuccessful, notwithstanding his overall percentage score as an average of the several sections within the examination instrument. The deputy pilot examination for the Port of Jacksonville administered in August 1955 was designed and written by the consultant to the Board of Pilot Commissioners, Captain John C. Hanson, with the assistance of Marty Persanpieri of the Office of Examination Services. These two individuals had the necessary expertise to design and ensure the fairness of the examination document. Captain Hanson is experienced and has gained expertise in the field of nautical science and seamanship and has sufficient appreciation of the circumstances in the Port of Jacksonville to test the candidates on matters of local knowledge of that port. Captain Hanson and Persanpieri graded the examination in question and carried out the review of protests to the examination scores. Based upon the examination and review of the test papers of Captains Dull and Walker, they were found to have successfully completed all portions of the examination. Captain Walker received an overall score of 90.71 percent, and Captain Dull received an overall score of 90.47 percent. Although Captain Flint achieved an overall score of 91.17 percent, the highest overall average, he was deemed by the graders to have failed the examination in that he scored only 86 percent on the Inland Rules portion of the examination, short of the required 90 percent score. On October 4; 1985, Captain Walker was informed by Fred Roche, Secretary of the Department of Professional Regulation, that Walker was the successful candidate in the examination for appointment and certification as deputy pilot for the Port of Jacksonville. Upon receipt of this notification, and following confirmation of this communication through a letter from Secretary Roche Walker left his position as captain of a ship operating out of Valdez Alaska and took the position as deputy pilot for the Port of Jacksonville. In doing ; he sold his home in Merritt Island, Florida, and relocated his family to Jacksonville; Florida. He then executed a contract with the St. Johns Bar Pilots Association, through which that association obligated itself to afford Walker the necessary training to become a licensed state Pilot. Following the signing of that contract; Walker has performed the duties associated with deputy piloting in the St. Johns River related to the Port of Jacksonville. Around the time Walker had been notified of his success; the Petitioners were made aware of their examination results and followed the necessary procedures for review of their examination responses. They then offered timely written objections to certain questions within the examination, which should have been considered prior to the appointment and certification of Captain Walker as deputy pilot. Through his protest, Captain Flint objected to the following questions: Inland Rules No. 52; Inland Rules No. 54; Inland Rules No. 63; State and Federal Laws No. 154; Local Knowledge No. 2; Local Knowledge No. 19; Chartwork No. 15; Chartwork No. 27; Chartwork No. 9; the overall point total assigned for Chartwork; the Chartwork in general; and Chartwork sample questions. Captain Dull objected to the following questions: International Rules No. 20; Inland Rules No. 67; Inland Rules No. 65; Inland Rules No. 76; Navigational Aids No. 106; Navigational Aids No. 125; Federal Laws No. 165; Federal Laws No. 166; Local Knowledge No. 19; Chartwork No. 1; Chartwork No. 7; Chartwork No. 14; Chartwork No. 29; Chartwork No. 52; Chartwork light list reference; Chartwork No. 595; Chartwork No. 5300; and the Chartwork in general. These specific objections were considered by the Office of Examination Services and Captain Hanson. The protests were found to be without merit based upon an adequate analysis of the questions, an assessment of the recommended answers and the responses made by the candidates in answering the examination questions. Through this process, all candidates were given credit for answers for two examination questions unrelated to the challenges by the Petitioners. Having been unsuccessful in an attempt to gain adjustments to their examination scores; Petitioners individually petitioned for formal Section 120.57(1), Florida Statutes, hearings. Those petitions were timely submitted. The cases were then referred to the Division of Administrative Hearings leading to the formal hearing of May 5 and 9, 1956. Prior to the date of formal hearing, Captain Walker and the St. Johns Bar Pilots Association offered a timely motion to intervene in these actions and intervention was allowed. Those Intervenors have demonstrated their standing in the record developed at the final hearing. In the course of the final hearing, Captain Flint abandoned his objection to the questions: Inland Rules No. 54; Local Knowledge No. 2; Local Knowledge No. 19; Chartwork No. 27; and the chart sample questions. This left for consideration these matters: Inland Rules No. 52; Inland Rules No. 63; State and Federal Laws No. 154; Chartwork No. 9; Chartwork No. 15; the Chartwork in general; and the chartwork point total. Captain Dull also abandoned objections pertaining to questions: International Rules No. 20; Inland Rules No. 68; Inland Rules No. 76; Navigational Aids No. 106; Federal Laws No. 166; Local Knowledge No. 19; Chartwork No. 29; Chartwork No. 895; and Chartwork 5300. He continued to protest the Questions: Inland Rules No. 67; Navigational Aids No. 125; Federal Laws No. 165; Chartwork No. 1; Chartwork No. 7; Chartwork No. 14; Chartwork No. 52; Chartwork in general; and the Chartwork light list reference. In the NOTICE TO APPEAR which the Petitioners and Captain Walker received, reference is made to the seven sections within the examination instrument. This notification gave the following information about the chartwork that was to be done in the Chartwork and Local Knowledge portions of the examination. It stated: Chartwork and local knowledge will be admin- istered in the afternoon. Chartwork requires you to draw on a tracing of the chart of the port, all channels aids to navigation and their characteristics (type, color, shape, number, light/sound characteristic, elevation when appropriate as listed in the 1985 C.O. Light List for more recent information see note at end of No. 3), shoaling areas, precautionary signs, anchorage areas, obstructions, COLRBGS demarcation lines, danger areas, pipelines and cable crossings and any other inclusions on the chart relevant to navigation. Indicate true course to be steered on ranges and straightaways as appropriate. You may also be responsible for indication of direction of tide flow as indicated in the Tidal Current Tables. Local knowledge requires you to recall, from memory, information contained in the Coast Pilot relevant to the chart. Included is information concerning controlling widths lengths and depths of channels. Four (4) hours will be allowed to complete this portion of the examination. By the NOTICE TO APPEAR the candidates were also referred to the examination study sources as follows: Listed below are some general sources that may aid you in your study for some of the examination areas. This list of sources is not exhaustive. Questions may appear from other sources. Abbreviations used: CG = Coast Guard Publication USC = U.S. Code FS = Florida Statutes BPC = Board of Pilot Commission Rules Area Source International CG: Navigation Rules: Inter- Rules and national-Inland (COMDTINST Inland Rules M16672.2)(including all rules, appendices and colregs) Federal Pilot- 46 USC 11; 211-215; 232. age Laws Coast Pilot Chapter 2; Parts 162 and 164. 14 USC 51-59, 642, etc. Knowledge of U.S. Coast Pilot for the Local Port particular port (State Pilots and Deputy Pilots) Aids to CG 193, Chart No. 1: Nautical Navigation Chart symbols and abbrevi- ations, 14 USC 51-59, 33 CFR 64.01. State Pilotage Chap. 310 FS, BPC 21-55 Laws Chartwork St. Johns River from the sea buoy to the fixed bridge at Red Bay Point above Green Cove Springs and the ICW from its junction with the St. Johns River South to the Atlantic Boulevard Bridge Chart Nos. 11491 7 July 1954 11459 1 Sept 1954 11492 5 Sept 1954 Seamanship Various seamanship textbooks (for example; Basic Ship- handling for Masters, Mates and Pilots by Willerton; Practical Ship Handling by Armstrong; Ship Handling in Narrow Channels by Plummer, Knights Modern Seamanship) NOTE: Basic publications utilized in developing Jacksonville exam; in addition to the charts listed above were: 1985 CGT Light List 1985 Coast Pilot Vol. 4 If more recent information is used from CO notice to Mariners or Corps of Engineers reports, please indicate source and date so proper credit may be given. Flint Challenge Question No. 52 in the Inland Rules portion of the examination, among the choices of answers, indicated that the "lookout," "shall not be assigned other duties." Petitioner Flint did not feel that this choice was a correct answer. Six of the twelve candidates gave the prescribed answer, to include Captains Walker and Dull. The prescribed answer contemplated the proposition that lookouts shall not be assigned other duties. The prescribed answer is found to be correct, and Petitioner in his suggestion that it is appropriate for a lookout to have other duties in an inland water situation is not credited. Having considered the presentation at hearing, it is determined that the lookout in that setting must give full attention to those duties. Question No. 63 in the Inland Rules portion of the examination states that: "Rule 2(b); known as the General Prudential Rule; could be properly applied in which of the following situations?" Seven of the twelve candidates correctly answered that examination question, to include Captains Walker and Dull in that they indicated that the only correct answer to the question was the choice "action contrary to the rules as proposed by one vessel and accepted by another." Petitioner Flint felt that this answer; as well as the answer which said, "When the stand-on vessel first has doubts as to the intentions of the give-way vessel," should be considered correct. Flint also believes that it is unreasonable to require that the candidates know rules by number reference and contends that this particular rule is not known as the "General Prudential Rule." This concern about the need to know the rule by number and the reference to the term "General Prudential Rule" is a reasonable requirement given that one of the source materials which the candidates were encouraged to study was that source Farnsworth & Young, Nautical Rules of the Road, wherein it is stated that Rule 2(b) is known as the "General Prudential Rule." On the merits of the protest, as to the answer given, Captain Flint is wrong to apply the ideas expressed in the "General Prudential Rule" to a situation in which the stand-on vessel first has doubts as to the intentions of the give-way vessel. Other steps must he taken before resorting to the subject rule. An example of those initial steps would be the sounding of a signal. In the section dealing with state and federal laws, in Question No. 154, it is indicated that the number of state pilots in the various ports is: (1) determined by the supply and demand for pilots and services, (2) determined by investigation conducted by the Department of Professional Regulation. The answer prescribed by the examination was the first choice only. Captain Flint did not feel that either of the choices of answer was correct. He is struck by the language of Section 310.061(2), Florida Statutes, which says, The Board shall determine the number of pilots in conformance with Subsection (1) based upon the supply and demand for piloting services and the public interest in maintaining efficient and safe piloting services. Therefore, according to Captain Flint, since there are fixed limits set forth in Subsection (1) on the number of pilots that may be available in a given port, in order to determine the number of pilots, one must not only be mindful of supply and demand, but also recognition of the finite number of available pilots as set forth in Subsection (1) should be taken into account. This interpretation by Captain Flint is sufficiently legitimate that he should be afforded credit for the answer to the examination question in which he selected the answer that indicated that neither of the two choices was correct. In the Chartwork referred to as No. 9, Petitioner Flint argues that the instructions were, "The chart drawing is to cover up the St. Johns River to the highway bridge at Red Bay Point," meaning that only the features within the system before the point of the bridge needed to be indicated. This would preclude necessity to set forth any of the characteristics of the Red Bay Point Bridge, per Flint. Those characteristics are matters which a pilot should reasonably be expected to be examined on as to horizontal and vertical clearances of the bridge. This is a more persuasive interpretation of the examination instruction than the literal reading which Captain Flint gave in determining to cut short his chartwork before describing the characteristics of the bridge and points should have been deducted from his score. Another challenge described as Chartwork No. 15 dealt with Captain Flint's belief that the area of the St. Johns River described as St. Johns Bluff Reach is not a range or straightaway. Consequently, he did not believe that it was necessary to set out a true course through that portion of the river in keeping with instructions which indicated that the candidates should establish courses in ranges and straightaways in the chartwork. St. Johns Bluff Reach is of sufficient dimension in length that the candidate should have identified a course. For failure to set forth the course; it was appropriate to deduct points from Petitioner Flint's score in the chartwork. Generally speaking, Captain Flint believed that no points should have been deducted from his examination for his failure to relate items set forth on the Coast Guard Light List 1985, in setting up his chart drawing. He premises his argument on the fact that the instructions allowed the candidate to use either the chart information from the various charts which the candidate was referred to or to set forth on the chart examination that information reflected in the Coast Guard Light List 1985. It is not possible to set out complete characteristics of the navigational aids without reference to both the charts and the Coast Guard Light List 1985. Taking this into account, and in view of the basic instructions given the candidates prior to and at the point of examination, it was an unreasonable interpretation to suggest that it was unnecessary to refer to the Coast Guard Light List 1995 and offer information from that source on the examination chart, and points should have been deducted for this oversight. Petitioner Flint had initially contended that the total score related to his points in the chartwork was incorrectly computed in that he was entitled to 577 Points when the examination was graded as contrasted with the 575 points which he was awarded. In his fact proposal this position is abandoned in that he concedes that 575 points was the correct total to be awarded when the examination was graded. No adjustment has been made to that score, and 575 points remain his entitlement. Although some slight adjustment is indicated in the overall score for Captain Flint, the critical matter of the point total for the Inland Rules questions has not been overcome, and having failed to pass that portion of the examination, Captain Flint has failed the entire examination. Dull's Challenge In the Inland Rules portion of the examination at Question No. 67; it is stated that "A vessel proceeding with a following current in a narrow channel or fairway shall have the right of way over a vessel proceeding against the current in/on, and the choices were (1) western rivers, (2) all inland waters; (3) Great Lakes. The correct answer is (1) and (3). The answer is taken from reference material which the candidates were referred to, Farnsworth & Young, Nautical Rules of the Road, which points out that these vessels are given the right of way in operating on the Great Lakes, western rivers, and waters specified by the Secretary. Captain Dull was incorrect when he indicated that the answer should have been "all inland waters." Captain Dull objected to Question No. 125 in the portion of the examination related to navigational aids. That question states, "A preferred channel buoy indicating the preferred channel will be followed by leaving it on your port hand could:" (1) show red and black horizontal bands, (2) show a composite group flashing light; (3) show red or white light. Captain Dull rightly asserts that all three of those items would be correct in the instance in which a ship was proceeding to sea; however, the available answers for the question did not include the possibility that all three items were correct. If the ship were to be proceeding inbound, away from the sea, (1) and (2) are correct and (3) is incorrect in that the buoy could not show a red or white light. Therefore, the correct answer to the question is (1) and (2) only, and that answer was available to the candidates. The question asked was a legitimate question which was missed by Captain Dull. In that portion of the examination dealing with knowledge of federal and state pilotage laws there is Question No. 165. That item states, "To legally provide pilot service to a foreign flag vessel arriving at a Florida Port, a person must hold a valid" (1) state license or certificate, (2) federal license. The prescribed answer was that it is only necessary to hold a state license or certificate. Captain Dull felt that the answer which pertained to choices (1) and (2) was the correct answer in that in order to gain a license or certificate in Florida one must have a federal license. Nonetheless, once the Florida license has been obtained; it is no longer necessary for the federal license to be in force and effect in order to legally provide pilotage service to the foreign flag vessel arriving at a Florida Port. Under these circumstances; Captain Dull is not entitled to receive credit for his answer. In chartwork under Question No. 1 Captain Dull contends that the four anchorage positions which he failed to indicate on his chart were set forth on chart sheets not described in the instructions given to the candidates prior to examination or at the point of examination. He states that those four anchorage Positions are areas which the candidates were not alerted to study for. One of the charts which is referenced as a study source, No. 11491; has a Note A making reference to the anchorages in question by referring the reader to the Coast Pilot No. 4 which provides the information as to location of the four anchorages at issue. Moreover, the anchorages at issue are within the approaches to the St. Johns River which the candidates were instructed to depict in the chart which they prepared in response to the chartwork requirement in the examination. By failing to note these anchorages on his chart, he was subject to have points deducted from his examination, which deductions were made. In the Chartwork Questions No. 7 and 14, Captain Dull failed to set forth true courses from various locations at issue by not giving response in degrees and minutes. This relates to May Point Cut Range and White Shells Cut Range in which it was possible to give the answer in degrees and minutes. Captain Dull did not do his, although the instructions required that he give the answers in degrees and minutes. It was appropriate to deduct points from his score for failure to give the more exact responses to the requirements. Captain Dull in Question No. 52 related to chartwork also believed, as did Captain Flint, that the alternative was presented to the candidates to use either the charts or Coast Guard List 1985 in preparing the chartwork. For reasons discussed in the challenge to this matter fostered by Captain Flint Captain Dull is also incorrect in his assertions. Therefore he is not entitled to any adjustment in points for this matter. Captain Dull has not established the entitlement to further points; and Captain Walker remains the high scorer of all candidates who passed the deputy pilot examination at issue.
Findings Of Fact Sworn testimony was presented on behalf of the Department by Bronson Monteith, an Aviation Specialist employed by the Department. Mr. Monteith testified as to the application process, the document received by the Department (DOT Exhibit No. 1) and his analysis and conclusions regarding the application. According to Mr. Monteith's testimony, the application was complete and met all Department requirements for issuance of site approval. An application for site certification was filed with the Department on February 19, 1990 (DOT Exhibit No. 1, page 1). The application was revised to "ultralight private" on March 3, 1990 (DOT Exhibit No. 1, page 7). A landing area proposal was filed with the Federal Aviation Administration on February 19, 1990 by Mr. Sarra (DOT Exhibit No. 1, page 13). FAA approval of the application was issued April 10, 1990 and contained the following finding: the subject airport will not adversely affect the safe and efficient use of airspace by air craft provided the landing area is limited to private use. (DOT Exhibit No. 1, page 15) The FAA approval also stated: In making this determination, the FAA has considered matters such as the effects the proposal would have on existing or planned traffic patterns of neighboring airports or heliports, the effect it would have on the existing airspace structure and projects or programs of the FAA, the effects it would have on the safety of persons and property on the ground, and the effect that existing or proposed manmade objects (on file with the FAA) and known natural objects within the affected areas would have on the airport proposal. (DOT Exhibit No. 1, page 15) Conditional Use Permit No. 89/4/5/2 was issued for the construction and operation of an airport at the proposed site by the County Commission of Lake County on August 10, 1989 (DOT Exhibit No. 1, Page 20). The property in question is owned by Romar Agricultural Development Corporation, which is owned by Mr. Sarra (DOT Exhibit No. 1, page 26). The site was inspected and certified by Mr. Monteith as suitable for a private ultralight airpark site under Chapter 14-60 on August 21, 1990 (DOT Exhibit No. 1, page 30-33). Mr. Monteith conferred with the FAA and pilots at a nearby glider port and determined that the application should sign an agreement governing the operation of the proposed airport to ensure that safe air traffic patterns can be maintained (DOT Exhibit No. 1, page 34). The agreement was signed by the applicant (DOT Exhibit No. 1, page 36). During the hearing, Mr. Uchitel's attorney proposed that an additional condition be placed on site approval: that the applicant indemnify nearby landowners for all injury and liability associated with the operation of the airport and post a bond or other guarantee to support the indemnification. The rationale for this condition was that ultralight aircraft were not as well- regulated as other aircraft and posed a particular danger to nearby landowners. Mr. Uchitel's counsel expressed Mr. Uchitel's concern that the local zoning may have been obtained without due notice to him. The FAA regulations for operation of ultralight aircraft were introduced. These regulations prohibit flight below 1500 feet except when landing and taking off. The sketch accompanying the application reveals that the proposed airport will have a grass runway 500 feet wide and 1500 feet long, running north and south. A diagram of the proposed airstrip shows that the first 500 feet of the north and south ends of the airport are for approaching the primary landing zone. Ultralight aircraft landing at the airport would commence their descent flying parallel to the airstrip, make a 90 degree turn towards the airstrip at the end of the approach area, fly toward the airstrip centerline and execute another 90 degree turn towards the landing zone. Because of the flight characteristics of ultralights, their descent from their approach altitude of 1500 feet generally would be over the airport itself. The aircraft's flight over the property of adjoining property owners would be at the required minimum altitude of 1500 feet. Although ultralight aircraft are licensed in a manner similar to experimental aircraft, and are not subject to all of the inspections which certified non-experimental aircraft must have, they are generally flown by their owner-builders, who want to avoid any accidents for obvious reasons. Further, these aircraft, as their classification indicates, are very light, kite like aircraft with light aluminum bracing. It is inconceivable that one would cause major damage to property on the ground if it did crash. Power plants for these aircraft are typically small engines similar to those used in snow mobiles. Although they are noisy, they do not generate as much noise as standards aircraft engines. Flying at their assigned altitudes, they will not be a major source of noise for adjoining property owners.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED: That a Final Order be entered granting site approval for the proposed airport, under the terms and conditions provided in Site Approval Order No. 91- 36. DONE and ENTERED this 20th day of July, 1992, in Tallahassee, Florida. STEPHEN F. DEAN, 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 day of July, 1992. COPIES FURNISHED: Ben G. Watts, Secretary ATTN: Eleanor F. Turner Department of Transportation Haydon Burns Building, M.S.-58 605 Suwannee Street Tallahassee, FL 32399-0458 Jeffrey J. Pardo, Esquire 8323 N.W. 12th Street Miami, FL 33126 Paul Sexton, Esquire Department of Transportation Haydon Burns Building, M.S.-58 605 Suwannee Street Tallahassee, FL 32399-0458 .
The Issue The issue in the case is whether Albert E. Warner's application for an Airspace Obstruction Permit should be granted.
Findings Of Fact Charles W. Brammer owns the Tampa North Aero Park, Inc., a Florida-licensed public use landing strip located in Pasco County. The Tampa North Aero Park is surrounded by platted lots intended for use as private homesites. Albert E. Warner owns one of the lots, (Lot 123, Quail Hollow Village Subdivision) which adjoins the Tampa North Aero Park, Inc. Mr. Warner intends to construct and live in a single family home on his lot. Because the location of the proposed Warner construction exceeds certain standards, regulatory review is required and Mr. Warner’s proposed structure must be obtain a permit from the DOT. On June 18, 1997, the Mr. Warner filed his application for an Airspace Obstruction Permit with the DOT. According to Mr. Warner, the proposed structure will be concrete block with a wood frame roof, with a roof peak no more than 98 feet above mean sea level One of the requirements is that the Federal Aviation Administration (FAA) review the proposal and issue a "Determination of No Hazard to Air Navigation." The FAA has issued a "Determination of No Hazard to Air Navigation." Because the initial FAA document included incorrect site information, the FAA subsequently issued a "Correction to the Determination of No Hazard to Air Navigation." The "Determination of No Hazard to Air Navigation" sets forth the factors considered by the FAA and concludes as follows: Therefore, it is determined that the proposed structure would have no substantial adverse effect on the safe and efficient utilization of the navigable airspace by aircraft or on the operation of air navigation facilities and would not be a hazard to air navigation. The FAA’s document of correction states as follows: This corrects a minor change in the latitude and longitude based on survey data provided regarding actual runway location and which moves proposal 2 feet closer to runway. Because this minor move will not change the results of the determination, a new circularization and determination was not considered necessary. All else remains same as on original determination. The Petitioner challenges the reliability of the FAA’s review of the Warner project and the determination that the proposed construction will create no hazard to airspace navigation. The Petitioner offered no credible evidence to support the assertion that the FAA study was incomplete or unreliable. Given the minor change in the relative location of the runway to the proposed Warner construction, the FAA’s correction of the initial determination without conducting an entirely new review is inconsequential. As set forth in the FAA determination, a condition of the permit requires the structure to be marked as an obstruction and lighted with a red beacon. There is no evidence that Mr. Warner is unwilling or unable to comply with this requirement. The Department reviewed the FAA determination and subsequent correction. The Department determined that the corrected location information was correct and that the FAA review included a valid aeronautical evaluation. The evidence establishes that the Department considered the required factors set forth in the applicable statute. The evidence establishes that the DOT completed the review and made the determination within the appropriate timeframes. The Department considered the nature of the terrain and height of existing structures. The land surrounding the airfield is relatively flat. Existing structures include houses across the residential street from the Warner lot, and other houses to be constructed along the airfield. Numerous trees, some located closer to the airstrip than the proposed Warner house, are as tall or taller than the proposed Warner home, except where such trees were recently cut by Mr. Brammer for reasons unknown. The Department considered public and private interests and investments in the area of the proposed construction. No public investments will be impacted. There is no credible evidence that public aviation interests will be impacted. Private investments, specifically that of the Petitioner and his airport, will not be adversely impacted by construction of the home. One witness asserted that the private investments of the other homeowners would be adversely impacted by the Warner construction, but offered no credible evidence to support the assertion. The Department considered the character of flying operations and planned development of airports. The proposed construction will have no adverse impact on the character of flying operations and planned development of airports. The Department considered federal airways as designated by the FAA and determined there would be no adverse impact because the proposed structure is below the airspace height of the federal aviation system. The Department considered whether the construction of the proposed structure would cause an increase in the minimum descent altitude or the decision height at the affected airport, and determined there would be no increase. The Department considered technological advances and determined that there are none which would be adversely impacted by issuance of this permit. The Department reviewed concerns related to the safety of persons on the ground and in the air and determined that there would be no adverse impact created by issuance of the permit. The Department considered land use density. There is no adverse impact to land use density related to this permit. The Department considered the safe and efficient use of navigable airspace. There is no adverse impact created by issuance of the subject permit. Existing objects of similar height and distance have posed no hazard to operation of the airport. Considering the airport’s characteristics, runway capability, and the types of aircraft using the facility, the proposed structure will not adversely impact the facility or any aircraft using the facility. The Department considered the cumulative effects on navigable airspace of all existing structures, proposed structures identified in the applicable jurisdictions comprehensive plans, and all other known proposed structures in the area. There is no adverse impact caused by the cumulative effects of this structure, and other proposed or existing structures. The evidence establishes that Mr. Warner has met the criteria set forth by statute for the issuance of an Airspace Obstruction Permit.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Transportation enter a Final Order granting the Warner application for Airspace Obstruction Permit. The permit shall include the requirements related to lighting as set forth by the FAA. DONE AND ENTERED this 19th day of October, 1998, in Tallahassee, Leon County, Florida. WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 19th day of October, 1998. COPIES FURNISHED: Kelly A. Bennett, Assistant General Counsel Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Albert E. Warner, III Post Office Box 7084 Wesley Chapel, Florida 33543-7084 Charles W. Brammer, General Manager Tampa North Aero Park, Inc. 4241 Birdsong Boulevard Lutz, Florida 33549 Pamela Leslie, General Counsel Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Thomas F. Barry, Secretary Attention: James C. Myers, Clerk Agency Proceedings Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0458
Findings Of Fact Petitioner Richard L. Hensch submitted to the Department of Transportation (DOT) an Airport Site Approval and License Application dated December 8, 1987, for a private seaplane base on Lake Fairview in Orange County. On the application, Mr. Hensch indicated that flight activities that would be conducted from the proposed site could be sight-seeing flights, seaplane rides and tours and occasional seaplane instruction. Mr. Hensch plans to offer these activities to the public and charge fees for them. Attached to the Application was a letter dated December 17, 1987, from Ms. Sharon Smith, the Orange County Zoning Director, in which she states: Please be advised that insofar as Orange County Zoning requirements are concerned, our department has no jurisdiction over the use of water bodies of lakes; rather such use falls under the jurisdiction of the State of Florida. This letter was written at the request of the Petitioner. While the above-referenced application was under consideration by DOT, Petitioner applied for and received from the County tentative approval for an occupational license for his proposed operation. F.A.A. airspace determination approval letter for the proposed site was dated June 1, 1989. A Notice of Intent about the "proposed Private Seaplane Base" was issued by the Department of Transportation on June 21, 1989. A public meeting in connection therewith was conducted on August 28, 1989. Bronson Monteith, working for the DOT in Orange County, conducted the public meeting and recommended site approval relying on the letter by Orange County, dated December 17, 1987, as to the zoning. The Orange County Commission at its meeting held on August 14, 1989, objected to the placement of a seaplane base at Lake Fairview based on a determination by the zoning director and the county attorney's office that the proposed seaplane base did not comply with the zoning ordinance. The Lake Fairview area property is zoned predominantly residential, R- 1A, R-1AA with some C-2, R-T and R-3 zoning within the lake. Included within the commercial-type operations along and on the lake are jet-ski, sailboat and other watercraft rentals. Airports can be located only by special exception in A1 and A-2, agricultural zoning districts, and are permitted outright in I-5, Industrial Airport Zoning District. None of the lake area or shoreline areas are zoned A-1, Z-2 or I-5. During August of 1989, the Assistant Zoning Director, Joanne McMurray, who as Acting Zoning Director, received a memorandum from Mr. Hartman, Acting Director of the County's Administrative Services Office, about the seaplane base proposal whereby she researched the zoning regulations as to airport facilities and zoning districts and permitted uses. She determined the proposed seaplane site would not comply with the Orange County zoning requirements. Ms. McMurray had received information from the county legal department that Zoning had jurisdiction to govern the use of lakes. Lacy Moore, DOT's Chief of Airport Inspection, indicated that licensing followed site approval and was subject to annual renewal. Licensing was subject to revocation or denial of renewal if zoning changes occurred that made the airport out of compliance with zoning. DOT sought clarification from the County as to whether the proposed site was in compliance with the Orange County zoning regulations. Phillip N. Brown, Orange County Administrator, sent a letter to Mr. Moore dated October 30, 1989, advising that the proposed seaplane site was not a permitted use in the County zoning district for Lake Fairview. As a result of Mr. Brown's letter, Petitioner's application was denied on November 1, 1989, based on failure to comply with local zoning requirements. An "airport" is defined by the Orange County Zoning Ordinance as "any area of land or water designated and set aside for the landing and taking off of aircraft and utilized or to be utilized in the interest of the public for such purpose." No amendments to the zoning ordinance or zoning district map have been enacted since the filing of Petitioner's Application of December 8, 1987. On or about November 11, 1988, Ms. Smith, Orange County Zoning Director, by letter, stated that there were no zoning regulations in force in connection with another unrelated application for site approval and licensure of a private seaplane base on Big Sand Lake in Orange County, Florida. Licensed private airports have been authorized by DOT to provide services to the public such as airplane rides and flight instruction and charge fees. At the formal hearing held on this matter, several residents of the Lake Fairview area expressed opposition to the proposed seaplane site and indicated their concerns as to noise and safety because of extensive activity on the lake. Some people spoke in favor of the seaplane base indicating operational safety. Members of the public, including lake residents and others who spoke at the hearing, were not under subpoena by either party.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that a Final Order be entered by the agency head denying site approval for a private seaplane base on Lake Fairview in Orange County, Florida, because it does not comply with applicable county zoning as required by law. DONE AND ENTERED this 14th day of June, 1990, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of June, 1990. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-6714 The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's Proposed Findings of Fact: Accepted in substance: Paragraphs 1,2,3,4,5,6,7,9,10 (discussed in Preliminary Statement). Rejected as argument: 8,11. Respondent's Proposed Findings of Fact: Accepted in substance: 1,2,3,4,5 COPIES FURNISHED: Vernon L. Whittier, Jr., Esquire Department of Transportation Haydon Burns Building 605 Suwannee Street, MS 58 Tallahassee, Florida 32399-0458 Brian D. Stokes, Esquire Post Office Box 538065 Orlando, Florida 32853-8065 Ben G. Watts Secretary Department of Transportation 605 Suwannee Street Tallahassee, Florida 32399-0450 Attn: Eleanor F. Turner, MS 58 Thornton J. Williams General Counsel Department of Transportation 562 Haydon Burns Building Tallahassee, Florida 32399-0450
The Issue The issue is whether the application meets the standards found in Section 330.30, Florida Statutes, and Chapter 14-60, Florida Administrative Code. The specific factual issues presented for resolution are: Whether the site is adequate for the proposed helistop. Whether the proposed helistop will conform to minimum standards of safety. Whether safe air-traffic patterns could be worked out for the proposed helistop and for all existing airports and approved sites in the vicinity.
Findings Of Fact Memorial Hospital is operated by the South Broward Hospital District, an independent taxing authority created by Chapter 24415, Laws of Florida (1947), to operate public health care facilities in south Broward County and to serve the health care needs of residents of the district without regard to their ability to pay. The site of the proposed facility (known as "Memorial Hospital Helistop") is a rectangular-shaped area on the top level of a six-floor parking garage located on the west side of the hospital's property, near the emergency room. The helistop is a landing site for air ambulances. The site will not be used for regularly scheduled helicopter flights. The only landings will be those associated with emergency transportation of patients or supplies to Memorial Hospital. No basing facilities such as fueling facilities will be provided. The parking garage is owned by the hospital. Jay A. Burke, Jr., the Director of Safety and Security, and Helistop Manager for Memorial Hospital, filed an application for helistop site approval with the Department of Transportation, on September 1, 1987. Zoning approval was granted by the City of Hollywood, Florida, on July 1, 1987. An airspace determination for the proposed site was obtained by letter from the FAA dated March 1, 1988. A feasibility inspection of the site was made by Steve Kozman, District IV Aviation Engineer, on September 16, 1987. He determined the site was feasible for use as a helistop. Mr. Kozman conducted the public meeting on November 24, 1987, and submitted a report dated December 18, 1987, to the Chief of the Department of Transportation Aviation Bureau. The Kozman report contained the following conclusions: Many of the issues at the public hearing were unrelated to the requirements of the licensing law and cannot be affected by either issuance or denial of site approval. The elevated site as presented in drawings and as viewed from the existing garage is adequate for the proposed helistop. The helistop, if constructed, can meet the minimum standards of safety. Elevated helistops at Naples Hospital and Good Samaritan Hospital in West Palm Beach have been in operation without incident. Safe air traffic patterns can be decided after receipt of FAA airspace determination. No objections were received from nearby airports or approved sites. Mr. Kozman recommended, subject to FAA determination, that the helistop site application be approved. An evaluation report on the proposed emergency helistop prepared by an aviation engineer was admitted in evidence. The 151' x 125' site on the 6th level of the parking structure is adequate and will conform to the minimum standards of safety. The area of the landing pad limits the size of helicopters using it to 63' in length. The total live load factor of the proposed site is 94,000 pounds, which would be distributed on three wheels. The structure will accommodate use by most single rotor helicopters, which are the type of rotocraft used in life-flight operations. The site will not accommodate heavy dual rotor military rotocraft, usually referred to as "Jolly Green Giant" helicopters. The site also would meet the flight path requirements of Chapter 14-60, Florida Administrative Code. The proposal conforms with all published minimum safety standards. A Coast Guard flight surgeon testified that he would have no reservation about flying into the proposed site on emergency missions. A Coast Guard Officer, who has seventeen years experience flying helicopters, testified he frequently flies rescue missions transporting victims to area hospitals. He had inspected the proposed site and had viewed aerial photographs of the proposed site and had no reservations about utilizing the helistop. The proposed site is safe and has an adequate approach for landing in case of rotocraft emergencies. The air traffic patterns at the site would not interfere with adjacent airports utilizing the Fort Lauderdale control tower. The Petitioners expressed concern about noise, diminished property values and threats to safety of residents in the area resulting from the helistop. Memorial Hospital is located near a residential neighborhood. Mrs. Briglio agreed that emergency helicopter service was needed, but believed it should be located some place else. Mr. Worth doubts that air ambulances are safe. The evidence shows that the helistop will meet duly adopted safety standards. Lay doubts about whether the standards are adequate, or will be observed, cannot be reached in this hearing. Mr. Worth expressed concern about the site approval permitting providing transportation of medical supplies. An agreement between the City of Hollywood and the hospital as to helicopter operations from the proposed site provides as follows: That Memorial Hospital agrees that helicopter transports into or from Memorial Hospital between the hours of 10:00 p.m. and 8:00 a.m., will occur only when, in the opinion of the helicopter transport personnel, the flight is necessary to save the life or limb of a patient or if medical intervention available at Memorial is essential to prevent permanent disability. Routine helicopter transports into Memorial during all other hours will not be restricted. That Memorial Hospital will cooperate with Hollywood Fire Department's EMS Division in its monitoring of the provisions of this Agreement.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that a final order be entered by the Secretary of Transportation finding that Site Approval Order No. 88-06 is valid and should remain in full force and effect, having been issued in accordance with applicable statutes and rules. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 12th day of September 1988. WILLIAM R. DORSEY, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1050 (904) 488-9765 Filed with the Clerk of the Division of Administrative Hearings this 12th of September, 1988. COPIES FURNISHED: Robert C. Worth, Chairman Hollywood Hills Citizens Committee 3423 Garfield Street Tallahassee, Florida 33021 Mrs. Erna L. Dahmen 515 North Rainbow Drive Hollywood, Florida 33021 Mr. Jay Burke, Jr. Director Safety and Security Memorial Hospital 3501 Johnson Street Hollywood, Florida 33021 Phyllis and Eugene Briglio 507 North Rainbow Drive Hollywood, Florida 33021 Mrs. Roy Thompson 429 North Highland Drive Hollywood, Florida 33021 Rivers Buford, Jr., Esquire Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Clarke Walden, General Counsel Memorial Hospital Suite 533 Hollywood, Florida 33021 Kaye N. Henderson, Secretary Department of Transportation 605 Suwannee Street Tallahassee, Florida 32399-0450 Thomas H. Bateman, III, Esquire General Counsel Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0458
Findings Of Fact By application dated October 7, 1987, Petitioner applied to DOT for approval of a seaplane base on Deerpoint Lake in Bay County, Florida. The application originally provided for limited commercial flying and use by visiting seaplanes upon invitation by Petitioner. Petitioner also has submitted an October 21, 1987 letter from the Federal Aviation Authority (FAA) granting airspace approval and an October 29, 1987 letter from the Bay County Commissioners stating that no zoning existed in Bay County which would prohibit the location of the seaplane base at Deerpoint Lake. The application was subsequently amended to limit use of the proposed seaplane base to Petitioner's personal, non-commercial use, and at formal hearing, Petitioner bound himself to accept approval of a seaplane base permit restricted exclusively to his private usage and to flying only during daylight hours, and under Visual Flight Rules (VFR) which call for an altitude of 1,000 feet and three miles of visibility. By a resolution dated August 16, 1988, the Bay County Board of County Commissioners adopted a resolution opposing Petitioner's seaplane base. By letter dated August 30, 1988, DOT denied Petitioner's application because of zoning, noise, and safety. Petitioner owns land on a peninsula in the Highpoint area of Deerpoint Lake. Deerpoint Lake is a freshwater lake approximately seven miles long and approximately two miles across at the point it runs up into Bayou George. The landing area proposed by Petitioner would be 200 feet wide and 7,000 feet long, running in an east/west direction with a ramp and hangar located on the peninsula. Although Petitioner testified that the area is large enough to provide multiple landing areas, the landing approaches would be generally over Bayou George. The proposed site would permit takeoffs and landings of Petitioner's presently owned seaplane without flying over anyone's house at an altitude of less than 1,000 feet. Petitioner's seaplane is a four place Aeranca with a 145 horsepower engine. It has no wheels and is equipped with pontoons for water landings. The plane has a muffled exhaust, self contained fuel tanks, and does not discharge emissions into the water. Takeoff time takes approximately 15 seconds at full power with two people on board. Eight hundred feet is necessary for takeoff which produces the loudest noise the plane makes. Landing is accomplished at a low power setting, is generally silent, and requires only 400 feet. DOT has assembled no factual or scientific data for noise. The witnesses are not in agreement as to the volume of noise produced by this plane and there was no reliable evidence which would indicate the decibel level generated at takeoff, but similar descriptions from several pilot that Petitioner's takeoff is "no noisier than an average motor boat, if muffled" is credible and accepted. In weighing the evidence presented with regard to the noise factor, the testimony of several local residents who testified concerning their opinions that the noise made by Petitioner's seaplane upon takeoff and landing was "excessive" has been discounted because these respective opinions are largely not credible either because the witness had no experience with seaplanes, or because the witness was prejudiced against the Petitioner's project as a whole. Specifically, no witness had made a complaint about noise until after the hangar was built. Some witnesses erroneously assumed that Petitioner had erected his hangar without a building permit and further believed an unfounded rumor that the Petitioner must be starting a flying school, or they considered the hangar an "eyesore", or they felt "betrayed" that a neighbor would establish a flying school base. Deerpoint Lake is a low population density area, almost exclusively residential in nature. DOT has done no survey of any kind with regard to the recreational uses of this lake, however evidence adduced at hearing shows that it is used primarily for recreational fishing and water sports. The largest number of fishing boats traceable to lake visitors at one time is twelve, but this does not account for additional abutting owners' boats which are launched without trailers. The concentration of boaters tends to be 3-4 miles away from Petitioner's property. However, there are also private boat ramps on both sides of Petitioner's property. Deerpoint Lake is also a reservoir area and a source of potable water for the county. There are some power poles in the vicinity of Petitioner's property. Some poles support a new power line and others are only the remains of an abandoned power line. The old power poles are generally cut off to be only 3-4 feet above the waterline, and some are just even with the waterline. Both sets of power poles and the power line limit where seaplanes can take off and land on the surface of the water itself, although there is testimony that, under ideal conditions (i.e. if all conditions are met and no flying or boating rules are disobeyed), Petitioner's standard plan for takeoffs and landings would not encounter either power line or poles upon takeoff or landing. There is, of course, no guarantee that all conditions will be favorable all of the time. The more probable danger presented by the poles is that if a seaplane had to taxi or otherwise take evasive action on the surface of the water so as too avoid a fishing boat, swimmer, or water-skier, the plane could encounter a cut-off pole. Petitioner first located his plane on Deerpoint Lake in July, 1984 and has accomplished approximately 25 safe takeoffs and landings therefrom since that time. Since becoming aware of the need for a site permit, he has voluntarily not taken off or landed on the lake. He has never had an accident there, but two other planes have. Neither of the situations, planes, or pilot in these two accidents is comparable to Petitioner's circumstances. Neither accident involved recreational users of the lake. Bobby R. Grice, who ultimately denied the application on behalf of DOT, expressed "just my personal opinion" that boaters could not hear a plane on its final approach. He has fished on Deerpoint Lake. He is not familiar with he operation of seaplanes, the visibility from them, or FAA rules. Two witnesses complained about Petitioner's coming too close to their homes during landings. By County Ordinance 89-02, enacted January 17, 1989, the Bay County Board of County Commissioners prohibited seaplanes on Deerpoint Lake, but also provided for a variance procedure for those landowners in Petitioner's location. As of the date of formal hearing, Petitioner had not applied for, or received, a variance from the county. The October 29, 1987 letter obtained by the Petitioner from the County (see Finding of Fact No. 1) stating there were no zoning impediments to the application at that time has been superseded by the 1989 ordinance Mr. Frank Duke, Chief Planner for Bay County, was unable to give a firm and competent opinion on whether or not the Petitioner's application to DOT was consistent with the existing 1978 Bay County Comprehensive Plan, because he had never personally observed the Petitioner's property on Deerpoint Lake. Nonetheless, it is clear that if Petitioner were to apply to Bay County for a seaplane base variance on Deerpoint Lake, Petitioner's proposed use would have to be reviewed in relationship to the County Comprehensive Plan.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that Department of Transportation enter a Final Order denying Petitioner'S seaplane base application. DONE and ENTERED this 19th day of September, 1989, at Tallahassee, Florida. ELLA JANE P. DAVIS 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 19th day of September, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-4932 The following specific rulings are made pursuant to Section 120.59(2) F.S., upon the parties' respective Proposed Findings of Fact (PFOF): Petitioner's Proposed Findings of Fact Accepted: 1, 2, 3, 4, 5, 7, 8, 11, (12 is accepted as modified to conform to the record), 13, 15, 19 a-b, 20, 22, 24. Accepted except for material subordinate, unnecessary or cummulative to the facts as found: 6, 16, 21, 23. What is rejected is also not dispositive of the issue at bar. Rejected as subordinate or unnecessary: 9,10. Accepted in part; the remainder is rejected as not proven: 14, 17, 18. Respondent's Proposed Findings of Fact Accepted except for material subordinate, unnecessary, or cumulative to the facts as found: 1, 2, 4, 5. Rejected as subordinate, unnecessary, or cumulative to the facts as found: 3, 6, 7, 8. Moreover, these proposals are largely reiteration of unreconciled testimony or legal argument. COPIES FURNISHED: Vernon L. Whittier, Jr. Senior Attorney Department of Transportation 605 Suwannee Street, M.S. 58 Tallahassee, Florida 32399-0458 Bonnie K. Roberts, Esquire Post Office Box 667 Bonifay, Florida 32425 Ben C. Watts, Interim Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450
Findings Of Fact The Board of Pilot Commissioners, Respondent, is charged with the responsibility of regulating licensed state pilots and certified deputy pilots in the State of Florida. Respondent is also charged with the responsibility and given the authority to license state pilots in various ports in Florida including the Port of Tampa. Section 310.061, Florida Statutes, provides, inter alia, that there shall not be more than 22 licensed state pilots for Tampa Bay. The number of deputy pilots which may be certified by Respondent is not specified by statute. Respondent may certify as many as necessary to meet the demand for pilot services. Currently, there are 20 licensed state pilots for Tampa Bay and four certified deputy pilots. No applications for pilot or deputy pilot for Tampa Bay have been accepted by Respondent for at least the past two years. Captain Gary Murphy applied to take the state pilot examination in 1980 and was qualified to do so. He is still on Respondent's mailing list to be notified when applications for Tampa will next be accepted. Captain Murphy is a member of TRICO. Respondent does not accept applications for state pilot positions in any port, including Tampa Bay, nor is an examination administered until Respondent has first declared an opening or openings for state pilots for the particular port. TRICO was founded by Captain David Rabren to provide piloting and shipping services on Tampa Bay. The other Petitioners signed membership agreements with TRICO. TRICO began operations January 1, 1984, and is an association of pilots who contract with the ship owners to provide certain piloting services in Tampa Bay. These include docking and undocking vessels and other piloting services on vessels these pilots are legally entitled to pilot. Only Captain Rabren of TRICO is a licensed state pilot for Tampa Bay and authorized to pilot foreign ships into and out of the port. Captains Murphy, Cropper, and Farrell all hold first-class pilots licenses issued by the U. S. Coast Guard for Tampa Bay and they all meet the statutory criteria for experience needed to sit for the Tampa Bay state pilot examination. If the proposed rule becomes effective, none of these Petitioners will be qualified to sit for the state pilot licensing examination. By Chapter 84-185, Laws of Florida, Section 310.071 was amended by extensive modification of Subsection (1)(b) and renumbering Subsection (2) to Subsection (3). Section 310.071, Florida Statutes, establishes the qualifications of applicants for licensure as state pilots and certification for deputy pilots. Following the effective date of Chapter 84-185 of October 1, 1984, Respondent issued proposed Rule 21SS-5.125, Florida Administrative Code.
Findings Of Fact The applicant for site approval is Downtown Heliport Corporation, Inc., a corporation with headquarters in Orlando, Florida, engaged in operating heliport facilities throughout Florida and other states. Its related company is Bulldog Airlines, which owns and operates helicopters for hire. Robert Uttal is President of both companies. On January 4, 1990, Downtown Heliport Corporation filed its application for site approval by the Department of Transportation (DOT), proposing to establish a .23 acre (10,000 square feet) helicopter pad within the jurisdictional territory of the Canaveral Port Authority. The Port Authority had already approved a land use permit and lease for the applicant on July 19, 1989 and November 14, 1989. The Federal Aviation Authority (FAA) also gave its approval. In a letter dated January 10, 1991, addressed to McDonald Smith, Director of Operations, Downtown Heliport Corporation, the FAA granted approval of the subject heliport under the following conditions: All operations are conducted in VFR weather conditions. The landing area is limited to private use. All approach/departure route helicopter operations are conducted in an area from 090 degrees clockwise to 160 degrees and from 250 degrees clockwise to 330 degrees using the touchdown pad as the center of a compass rose. The takeoff/landing area is appropriately marked. A nonobstructing wind indicator is maintained adjacent to the takeoff/landing area. The approval letter provides, in pertinent part: This determination does not mean FAA approval or disapproval of the physical development involved in the proposal nor is it based on any environmental or land-use compatibility issue. It is a determination with respect to the safe and efficient use of airspace by aircraft and with respect to the safety of persons and property on the ground. In making this determination, the FAA has considered matters such as the effect the proposal would have on existing or planned traffic patterns of neighboring airports or heliports, the effects it would have on the existing airspace structure and projects or programs of the FAA, the effects it would have on the safety of persons and property on the ground, and the effects that existing or proposed man-made objects (on file with the FAA) and known natural objects within the affected area would have on the heliport proposal. The FAA cannot prevent the construction of structures near a heliport. The heliport environs can only be protected through such means as local zoning ordinances or acquisitions of property rights. (DOT Exhibit #4) On January 30, 1990, Bronson Monteith, DOT District Aviation Specialist, inspected the proposed site and found it feasible for the proposed use and consistent with the requirements of DOT Rule Chapter 14-60, F.A.C. More specifically, he reviewed the facility diagram provided by the applicant and determined that the size of the pad, the location of the pad and the air corridor were appropriate. He considered that the Port Canaveral and FAA approval established compliance with ground and air safety standards. He determined from his inspection that existing structures would not interfere with an 8:1 glide slope to and from the pad. Once cleared from the pad the helicopters will use an existing ships' channel as the flight path. Mr. Monteith considered the distance of the streets from the heliport and the objects around it, including trees, the parking area and any major buildings that would be occupied. There are no schools close to the site. A Notice of Intent to issue a site approval for the proposed heliport was issued by the Department and advertised in an area newspaper; notices were sent, as provided in Rule 14-60, F.A.C. John Monteith conducted a public meeting, received comments and submitted a report to the DOT Aviation Bureau in Tallahassee recommending site approval. The heliport application, documentation and comments from the public meeting were reviewed by the Department's Licensing Coordinator and the Aviation Office Manager, and they determined that the application met all requirements under Chapter 330, Florida Statutes, and Chapter 14-60, F.A.C. for site approval. Site approval order no. 91-17 imposes the following conditions: All operations are to be conducted in VFR weather conditions. Operations are limited to private use. There are to be no flights over the City of Cape Canaveral. That the provisions in FAA Airspace Approval letter dated January 10, 1991, be complied with. Traffic patterns and operational procedures are subject to review by this Department prior to licensing or relicensing. (DOT Exhibit #9) Bulldog Airlines and Downtown Heliport Corporation intend to comply with, and enforce the conditions imposed by DOT. The flight path will be at 800 feet elevation along the corridor until the final approach for landing or takeoff, and that final approach will only be over the port itself. It will not include any flights over the Trident nuclear submarine or over storage tanks. The heliport will be private, primarily for the use of Bulldog Airlines, who flies for NASA, for the Port Authority, for various governmental agencies, including environmental monitoring agencies, and for other private hire. The heliport is open only to commercial pilots, will be used during daylight hours and only under conditions which allow for visual, noninstrument flying. Bulldog Airlines commenced operation in 1985 and has never experienced an incident, accident, or any notice of violation from the FAA, DOT or local law enforcement agencies. Because of its safety record it is able to maintain $100 million liability insurance. McDonald Smith, Director of Operations for Bulldog Airlines, is a pilot with approximately 10,000 hours of flight time. He also inspected the site and is aware of existing structures. In his opinion the flight corridor is wide enough to fly a helicopter, even if it is necessary to avoid unforeseen obstacles. Norma Townsend is a resident of the City of Cape Canaveral, approximately one-half mile south of the proposed site. She has attended the series of public meetings which preceded the DOT's proposed decision. She has amassed an impressive array of letters, maps, tapes and other documents related to the proposed site. She describes herself as a citizen and is neither a pilot nor trained in safety. Ms. Townsend is concerned about the existence of the nuclear submarine base, fuel storage tanks and other hazardous materials in the proximity of the proposed site. She feels that no amount of care by the pilots will insure that a helicopter in an emergency might not collide with an existing structure, with disastrous results. She has heard that used parts are sold for new, causing a helicopter to drop from the sky. She believes that ultra-light airplanes, low flying airplanes and weather balloons will provide extraordinary flying hazards in the Port Canaveral area. She suspects that no meaningful study was done by any agency prior to approving the site. Ms. Townsend presented no witnesses to substantiate these concerns and relies on her own common sense. In many instances this would be sufficient, but here the agency and applicant presented knowledgeable, competent expertise in support of a finding that the site is appropriate. Anything is possible, but instances of helicopters dropping out of the sky are virtually unheard of. Pilots are conscious of ultra-light planes and other possible obstacles to flying. Even large birds are a hazard. Heliports are routinely sited near or on top of buildings, in downtown areas or other places where traffic and population are congested. Helicopters are highly maneuverable, and for that reason are relied on in providing transportation and observation in circumstances where planes or ground vehicles are prohibited, for example after a hurricane or after a fire or other calamity. The substantial weight of evidence establishes that the proposed heliport at Port Canaveral can and will be safely operated.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED: That the agency enter its final order finding that site approval order no. 91-17 is valid and appropriate. DONE AND RECOMMENDED this 18th day of December, 1991, in Tallahassee, Leon County, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of December, 1991. Copies furnished: Robert R. Uttal Downtown Heliport Corporation, Inc. P.O. Box 621148 Orlando, FL 32862-1148 Joy C. Salamone, Mayor City of Cape Canaveral P.O. Box 326 Cape Canaveral, FL 32920 Karen S. Andreas, Commissioner Brevard County Board of County Commissioners 900 E. Merritt Island Cswy. Merritt Island, FL 32952 Vernon L. Whittier, Jr., Esquire Dept. of Transportation 605 Suwannee Street Tallahassee, FL 32399-0450 Norma E. Townsend P.O. Box 883 Cape Canaveral, FL 32920-0883 Ben G. Watts, Secretary Attn: Eleanor F. Turner, M.S. 58 Dept. of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, FL 32399-0458 Thornton J. Williams General Counsel Dept. of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, FL 32399-0458
