RABREN v. BOARD OF PILOT COM'RS

ZEHMER, Judge, dissenting.

I would uphold the validity of the challenged rule because it can be permissibly construed by 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). I do not agree that the rule must be construed to "require a state pilot on a vessel that is underway on the navigable waters of the State of Florida, except when docking or undocking". (Opinion, p. 4.), in the sense that such pilot must be aboard whenever a vessel is moved in any state "navigable waters," regardless of the purpose of movement. The majority's construction of the rule is, in my opinion, unnecessarily overbroad because it ignores the phrase that limits the rule's application to "any vessel requiring a state pilot," which, by statutory requirement, means a state pilot must be aboard only when the vessel is in the bays, harbors, rivers, and ports incident to entering or leaving ports of this state. Nor do I agree that the rule must be construed as having a broader meaning and application than the organic statute because the phrase "or when operating in pilot waters of this state" was deleted from the statute just prior to enactment in 1975.

Addressing this issue, the hearing officer stated in his order:

Petitioners place their greatest emphasis in this rule challenge on the statutory language in which the Legislature requires state licensed pilots on all vessels, except those exempted by the laws of the United States, while entering or leaving ports of this state. 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. The proposed language requiring state licensed pilots included in the requirement vessels "operating on the pilot waters of the state." This phrase was deleted and, as enacted in 1975, vessels subject to pilotage were the same as they are today.

Petitioners contend that by deleting "pilot waters of this state" from the requirement the Legislature intended only to require state pilots on vessels entering or leaving ports of the state. Petitioners also refer to legislation proposed in 1976 and 1977 which introduced the phrases "pilot waters of the state" and "navigable waters of the state" as those areas requiring state pilots. Petitioners argue that by failure to pass this language the Legislature intended to strictly limit the requirement for a state pilot only on foreign flag vessels entering or leaving a port in this state.

A better reason for deleting the phrase "pilot waters of the state" from the 1975 legislation may be found in Section 310.002, Florida Statutes (1975), which provides:

(5) The term `pilotage waters of state' means the navigable waters within the boundaries of the state.

This definition includes the high seas within the boundaries of the state. United States laws guarantee the right of innocent passage to foreign flag merchant vessels in these waters and preclude the state from requiring these vessels to take pilots while on the high seas. 46 USCS § 8502, above quoted, limits state regulations on pilotage to bays, rivers, harbors, and ports. 46 USCS § 8304 provides:

. . . `high seas' means water seaward of the Boundary Line.

The Boundary Line divides the waters in which Inland and International Rules of the Road apply. This boundary line is established by the Commandant, U.S. Coast Guard and, in the vicinity of a port, generally runs from the entrance sea buoy towards the nearest prominent landmark north and south of the entrance sea buoy.

Accordingly, little weight is given to the omission of either phrase "pilot waters of the State" or "navigable waters of the State" from the statute providing which vessels are required to take a state pilot. The phrase used "except vessels exempted by the laws of the United States" is a more accurate description of the vessels that may be required to take state pilots in bays, harbors, rivers, and ports of a state.

Section 310.001, Florida Statutes (1983), provides it is the legislative intent to regulate pilots and pilotage on navigable waters of this state in order to protect the resources, environment, life, and property to the fullest extent possible.

Rule 21SS-8.10, Florida Administrative Code, is a simplistic rule that states 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 strictest interpretation of this rule, if necessary to conform to the statute, would result in state pilots being required on all foreign flag vessels leaving any of the ports in Tampa Bay or entering any of the ports in Tampa Bay either from an anchorage or a mooring facility if such a facility is located outside any of the four ports in Tampa Bay.

It is somewhat incongruous to hold the state has plenary power to require state pilots on foreign flag vessels entering or leaving Tampa Bay but is without any authority to require state pilots on those vessels after they clear customs and proceed through the channels of Tampa Bay. This is especially true when the legislative intent is clearly expressed to require state pilots on foreign flag vessels so as to protect the resources, environment, life, and property of the state and its citizens to the fullest extent possible. Those vessels moving through congested channels of Tampa Bay pose the same threat to life, property, etc. whether entering or leaving a port or shifting anchorages.

Where, as here, the agency's interpretation of a statute has been promulgated in rulemaking proceedings, the validity of such rule must be upheld if it is reasonably related to the purposes of the legislation interpreted and is not arbitrary and capricious. The burden is on the petitioner in a rule challenge to show by a preponderance of the evidence that the rule or its requirements are arbitrary and capricious. Department of Professional Regulation, Board of Medical Examiners v. Durrani, 455 So.2d 515, 517; Agrico Chemical Co. v. State Department of Environmental Regulation, 365 So.2d 759 (Fla. 1st DCA 1978); Florida Beverage Corp. v. Wynne, 306 So.2d 200 (Fla. 1st DCA 1975). Moreover, the agency's interpretation of a statute need not be the sole possible interpretation or even the most desirable one; it need only be within the range of possible interpretation. Durrani, supra, at p. 517.

In the instant rule challenge the statute clearly requires a state pilot on foreign flag vessels entering and leaving a port. This would cover any vessel movement within Tampa Bay which commenced or terminated at any of the four ports within Tampa Bay, with the exception of vessels in the docking or undocking mode. If Respondent interprets the rule to require a state pilot on foreign flag vessels moving between anchorages in Tampa Bay where none of the ports is involved, this would constitute a reasonable interpretation of the statute to require state pilots on foreign flag vessels in Florida ports for the protection of the environment, life, property, and resources of the state and the citizens thereof.

From the foregoing it is concluded that Petitioners have failed to prove, by a preponderance of the evidence, that Rule 21SS-8.10, Florida Administrative Code, is an invalid exercise of delegated legislative authority.

(R. 90-94) I agree with the hearing officer's findings and find no error in his reasoning and conclusions of law.

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. I fully agree with the majority opinion that there are several ports in Tampa Bay. I likewise agree with the majority opinion that the state has authority to regulate "shifting" activities of vessels in Tampa Bay. There is, however, no competent evidence in the record to show that, in admiralty parlance and under the custom of the shipping industry, "shifting" of ships in the manner described in this case does not constitute an integral part of entering and leaving a port of this state. Since all vessels affected by the rule must be, by definition, engaged in foreign commerce, the only reason for such vessels to be involved in "shifting" activity in Tampa Bay would be to facilitate entry to or exit from the ports on the bay. Temporarily stopping at an anchorage while entering or leaving the harbor or bay does not change the dominant purpose for which the vessel is in Tampa Bay, i.e., to enter ports and 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. The only testimony before the hearing officer explaining that "shifting" is not covered by the statute, was presented by one of the appellants. His testimony was based on the premise that Tampa Bay is a single port and that once a ship clears the customs house at Tampa it is no longer involved, when moving about the bay, in entering or leaving the port. That premise and testimony was rejected by the hearing officer, and properly so in my view. Since the hearing officer correctly found that there are several ports on Tampa Bay, the record 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. It is elemental that we cannot substitute our judgment of the facts for that of the hearing officer. § 120.68(10), Fla. Stat. (1985).

Since section 310.001 states that chapter 310 is intended to regulate piloting of vessels in "the waters, harbors, and ports of the state" to the "fullest extent possible," I find no legal or factual basis for concluding that rule 21SS-8.10 exceeds the statutory jurisdiction granted to the Board of Pilot Commissioners. The rule is limited to "any vessel requiring a state pilot," and requires only that such vessels "shall have a state pilot aboard except when in the docking or undocking mode." The rule then defines "docking" and "undocking mode" in language which does not exclude the "shifting" activities described in this case. The legal import of the rule is to clarify the reach of the statute and make clear that any vessel required to have a state pilot in pilotage waters of this state (as defined in section 310.002(5), Florida Statutes (1983)), shall have such pilot on board during the course of moving the vessel incident to entering or leaving ports of this state, except in the docking and undocking mode. This is the "simplistic" construction of the rule argued to us by the Board and accepted by the hearing officer, and it is within the statutory authority of the Board. There is nothing unreasonable about this construction, and we must approve a reasonably permissible construction of the rule which sustains its validity, rather than adopt a construction that renders it invalid.

The majority opinion relies on State ex rel. Finlayson v. Amos, 76 Fla. 26, 79 So. 433 (1918), as requiring reversal because the challenged rule contains language similar to that deleted by the legislature when enacting the organic statute. I believe reversal is neither mandated nor even supported by the holding in that decision. In Amos it was perfectly clear from the recited legislative history that the amendment in question did not merely strike certain language from the bill; rather, the amendment deleted the words "automobiles of not more than 25 h.p. $7.00" and inserted in lieu thereof the words "For any automobile and other motor-driven vehicle with a seating capacity of one and not more than five persons $5.00." The substitution of specific language for that deleted from the bill was a clear expression of legislative intent that vehicles having a seating capacity of not more than five persons should pay only $5.00, irrespective of horsepower, and the Supreme Court properly held that the Comptroller could not give it a contrary construction.

The holding in Amos is a far cry from the question presented in this case, and I believe the majority has misapplied it. Amos did not hold that merely deleting language from a statute (without substituting new language), when the record fails to show the precise reason for the deletion, means that the use of similar words in an implementing rule is conclusively forbidden as a matter of law. Yet that is essentially what the majority opinion has cited Amos for in this case. 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. Stat. (1985). Since rule 21SS-8.10, as construed by the Board, is limited in application to "vessels requiring a state pilot" under the applicable federal and state statutes, no obvious conflict exists between the intent of the statute and the intent of the rule, as was the case with the Comptroller's construction of the licensing statute in Amos. Moreover, the instant case contains no competent evidence of statutory history explaining why the phrase "when operating in pilot waters of this state" was deleted from House Bill 1358. Certainly the record does not refute the hearing officer's finding that the subject phrase was probably deleted as surplusage because "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.

The challenged rule is applicable throughout the state of Florida, not just Tampa Bay. Although the appellants' argument might be properly characterized as an attack on the rule's validity as applied to "shifting" activity in Tampa Bay, the rule has been held facially invalid by this court. The impact of this decision on other ports of Florida, although not considered in the majority decision, may well be of substantial importance to the safety of operations in such ports. For example, the port of Jacksonville is not defined as including the length of the St. John's River from the jetties in the Atlantic Ocean off Mayport to the docks downtown, yet it seems doubtful, under the reasoning of the majority opinion, that the Board could require state-licensed pilots aboard foreign vessels moving up the St. John's River from the jetties to an anchorage point to await entry to the docks in downtown Jacksonville. Permitting the movement of large foreign flagships up that river without requiring any licensed pilot on board would be ridiculous, and certainly not within the contemplation of any intelligent member of the legislature. Surely we must not ascribe to the legislature any collective intent to deprive the Board of power to ensure that state licensed pilots must be used in these circumstances.

In summary, the rule should be construed as applying only to vessels lawfully regulated by chapter 310 upon the navigable waters of this state incident to entering or leaving the ports of this state. I decline to hold that the rule is an invalid exercise of delegated legislative authority and would hold that the appealed order should be affirmed.