CopyCited 5 times | Published | Florida 1st District Court of Appeal | 1990 WL 146906
...Thereafter, we will review such of the historical facts bearing on the parties' disagreement as are necessary to place the issues on appeal in some understandable perspective. STATUTORY BACKGROUND The statutes and administrative rules pertinent to the instant case are as follows: Section 310.141, Florida Statutes (1987), requires the use of state pilots on certain vessels....
...fied by training, experience, or license to perform them. (Emphasis added). Thus, a state-licensed pilot would be in violation of section
310.101(1)(j) if he were to direct a pilot who held only a federal license to pilot a ship in a situation where section
310.141 required a state license....
...e pilot requirement was divorced from the definition of "port." Thus, under Rule 21SS-8.10, a vessel drawing at least 7 feet of water and not exempted by federal law had to have a state licensed pilot regardless of its entering or leaving port under section 310.141, Florida Statutes....
...Because of the shifting rule, Rabren would be subject to discipline under section
310.101(1)(j) and Rule 21SS-8.007 whenever he assigned one of his federally licensed TRICO pilots to shift a vessel. This court found that Rule 21SS-8.10 was an invalid exercise of delegated legislative authority. The majority found that when section
310.141 was originally enacted, the House version contained *1286 a similar provision which would have required state pilots whenever vessels were in navigable state waters. Since the House's version was not adopted, the court viewed the BPC's shifting rule as an expansion of section
310.141 which ran contrary to legislative intent. However, the court noted: Section
310.141, Florida Statutes, requires state-licensed pilots on foreign vessels entering or leaving the ports of the state. Since Tampa Bay consists of at least four ports, section
310.141 may already apply to shifting activities in Tampa Bay. Rabren, supra, at 1249. THE PRESENT CONTROVERSY On July 20, 1987, The Department of Professional Regulation (DPR) filed an administrative complaint against appellant alleging four violations of Rule 21SS-8.007(1)(j) and sections
310.101(1)(j) and
310.141....
...Appellant presented two defenses to the charges: (1) it was not appellant but his wife, TRICO's business manager, who made the assignments, and (2) CFI, Gadsden Anchorage, Rockport and Big Bend are not "ports" within the definition of section
310.002(4) so as to require a state pilot under section
310.141....
...Accordingly, in his conclusions of law, the hearing officer stated: Gadsden Anchorage, C.F. Industries, Rockport and Big Bend are all located in the port of Tampa. Accordingly, vessels moving between these locations are not entering and leaving port, and under the specific provisions of Section 310.141 do not require the presence of a licensed state pilot, or a deputy pilot, on board during these maneuvers....
...lidated in Rabren v. Board of Pilot Commissioners,
497 So.2d 1245 (Fla. 1st DCA 1986), would have required a state licensed pilot on the vessels OCEAN LORD and VOMAR during the movements challenged in these proceedings. The holding in Rabren is that
310.141 requires a state licensed pilot aboard foreign flag vessels when entering or leaving a port....
...Petersburg and Clearwater is considered to be one port. Moving a foreign flag vessel between any of these ports requires the presence on board of a licensed state pilot or a certified deputy pilot. This is implicit in Rabren, supra, at p. 1249 that: Since Tampa Bay consists of at least four ports, section 310.141 may already apply to shifting activities in Tampa Bay....
...contradicts the statute. For this proposition, he cites Rabren v. Board of Pilot Commissioners, supra . Rabren, however, did not involve the definitional provision that is the subject of BPC's latest action. Rather, it involved a rule which altered section 310.141 in a way that the legislature specifically rejected when the statute was enacted....
CopyCited 2 times | Published | Florida 1st District Court of Appeal | 11 Fla. L. Weekly 1881
...he Department of Professional Regulation. Section
310.001, Florida Statutes, empowered the Board to perform such duties and exercise such powers to protect the waters, harbors and ports of the State as are conferred by Chapter 310, Florida Statutes. Section
310.141, Florida Statutes (1975) provided that: All vessels, except vessels exempted by the laws of the United States or vessels drawing less than 7 feet of water, shall have a licensed state pilot or certificated deputy pilot on board when entering or leaving ports of this state......
...ard) that certain pilots in Tampa Bay were claiming that neither the State of Florida nor the Coast Guard had jurisdiction to regulate shifting activities in Tampa Bay (moving ships from one place to another). Acting pursuant to sections
310.001 and
310.141, Florida Statutes, the Board promulgated *1247 Rule 21SS-8.10, Florida Administrative Code, to deal with shifting activities in Tampa Bay....
...As used in this act: (5) The term "pilotage waters of the state" means the navigable waters within the boundaries of the state. *1248 F.A.C. Rule 21SS-8.10 would require a state pilot on a vessel that is underway on the navigable waters of the State of Florida, except when docking or undocking. The statute, section
310.141, requires a state-licensed pilot on board "when entering or leaving ports of this state." When the legislation on this was introduced, House Bill 1358 proposed this language for section 310.14, Florida Statutes (now
310.141, Florida Statutes): All vessels, except vessels exempted by the laws of the U.S., shall when entering or leaving ports of this state or when operating in pilot waters of this state, at all times have on board a licensed state pilot or certificated deputy pilot for the port or waters in question. (emphasis added) House Bill 1358, thus, contained the language "or when operating in pilot waters of the state." However, when the bill was passed into law and became section
310.141 it did not contain the words "or when operating in pilot waters of the state." Since these words, which section
310.002, Florida Statutes, defines as "navigable waters within the boundaries of the state" were omitted, we are required to note the significance of the omission....
...The statute without the rule gives no authority to the State to require a licensed state pilot or certificated deputy pilot on board except when in the docking or undocking mode, on any vessel requiring a state pilot that is underway on the navigable waters of the state. Section 310.141, Florida Statutes, requires state-licensed pilots on foreign vessels entering or leaving the ports of the state. Since Tampa Bay consists of at least four ports, section 310.141 may already apply to shifting activities in Tampa Bay....
...y the Board of Pilot Commissioners and Department of Professional Regulation as requiring a state licensed pilot aboard a vessel incident to entering and leaving ports of this state, and this construction falls well within the language and intent of section 310.141, Florida Statutes (1983)....
...It is contended the rule language, that prescribes a state pilot be carried on any vessel requiring a state pilot that is underway on the navigable waters of the state, is in conflict with the statute. To bolster this position, Petitioners refer to the language in proposed legislation that was rejected when Section 310.141, Florida Statutes (1975), was enacted....
...possible. Rule 21SS-8.10, Florida Administrative Code, is a simplistic rule that states *1251 any vessel requiring a state pilot shall, while underway, have such pilot on board, except when in the docking or undocking mode. It does not conflict with Section 310.141, Florida Statutes, which requires a state pilot on all vessels entering or leaving a port, except those vessels exempted by United States law and vessels drawing less than seven feet of water....
...The hearing officer's findings of fact are supported by competent, substantial evidence, and I detect nothing in the record that would require this court to repudiate the hearing officer's conclusion that "shifting" operations in Tampa Bay may be legally regulated under the present language of section 310.141....
...d discharge cargo, or to take on cargo and leave the port for the high seas. As the parties challenging the validity of the rule, appellants bore the burden of proving before the hearing officer that such "shifting" is beyond the intent and reach of section 310.141....
...ecord does not require this court to find as a matter of law that the act of moving vessels around Tampa Bay from one anchorage to another, or to one of the ports on the bay, does not constitute entering or leaving a state port within the meaning of section 310.141....
...Nor does Amos require this court to accept a construction of a rule that invalidates it when the agency contends for a different construction that is valid under the enabling statute. In contrast to the situation in Amos, in the instant case the explicit purpose of section
310.141 is to regulate pilotage in the waters of Florida "to the full extent of any congressional grant of authority, except as limited in this chapter." §
310.001, Fla....
...se "pilotage waters" was already statutorily defined to mean "the navigable waters within the boundaries of the state" in section
310.002(5), Florida Statutes. But, most importantly, the Board has in no sense attempted to construe either the rule or section
310.141 as requiring a licensed pilot on board any vessel moving on navigable or pilotage waters of the state irrespective of whether the movement is upon the state's bays, harbors, and rivers incident to entering or leaving ports of the state....
