The Board proposes the rule amendment to clarify guidelines for disposition of disciplinary cases by substantially rewording the rule.

DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION

RULE NO.:RULE TITLE:

61G14-17.004Guidelines for the Disposition of Disciplinary Cases

PURPOSE AND EFFECT: The Board proposes the rule amendment to clarify guidelines for disposition of disciplinary cases by substantially rewording the rule.

SUMMARY: The rule amendment will clarify guidelines for disposition of disciplinary cases by substantially rewording the rule.

SUMMARY OF STATEMENT OF ESTIMATED REGULATORY COSTS AND LEGISLATIVE RATIFICATION: The Agency has determined that this will not have an adverse impact on small business or likely increase directly or indirectly regulatory costs in excess of $200,000 in the aggregate within one year after the implementation of the rule. A SERC has not been prepared by the Agency.

The Agency has determined that the proposed rule is not expected to require legislative ratification based on the statement of estimated regulatory costs or if no SERC is required, the information expressly relied upon and described herein: During discussion of the economic impact of this rule at its Board meeting, the Board, based upon the expertise and experience of its members, determined that a SERC was not necessary and that the rule will not require ratification by the Legislature. No person or interested party submitted additional information regarding the economic impact at that time.

Any person who wishes to provide information regarding a statement of estimated regulatory costs, or provide a proposal for a lower cost regulatory alternative must do so in writing within 21 days of this notice.

RULEMAKING AUTHORITY: 310.101, 310.185, 455.2273 FS.

LAW IMPLEMENTED: 310.101, 455.227, 455.2273 FS.

IF REQUESTED WITHIN 21 DAYS OF THE DATE OF THIS NOTICE, A HEARING WILL BE SCHEDULED AND ANNOUNCED IN THE FAR.

THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE IS: Thomas Campbell, Executive Director, Board of Pilot Commissioners, 1940 North Monroe Street, Tallahassee, Florida 32399-0750

THE FULL TEXT OF THE PROPOSED RULE IS:

(Substantial rewording of Rule 61G14-17.004 follows. See Florida Administrative Code for present text.)

61G14-17.004 Guidelines for the Disposition of Disciplinary Cases.

(1) Sanctions to be imposed by the board for misconduct, inattention to duty, negligence or willful violation of any law or rule applicable to licensed state pilots or certified deputy pilots shall be divided into classes of sanctions in descending order of severity as follows:

(a) Class 1. Revocation of the license or certificate or refusal to certify to the department an application for license or certification.

(b) Class 2. Suspension of the license or certificate.

(d) Class 4. Placement of the licensed state pilot or certified deputy pilot on probation for such period of time and subject to such conditions as the board may specify, including, but not limited to, requiring the pilot to submit to treatment, submit to additional or remedial training, submit to reexamination, or undergo a complete physical examination.

(e) Class 5. Imposition of an administrative fine not to exceed $5,000 for each count or separate offense of which the offender is guilty.

(f) Class 6. Issuance of a reprimand.

(2) The following guidelines shall be used in disciplinary cases, absent aggravating or mitigating circumstances and subject to other provisions of this chapter. In order to be considered a second or subsequent piloting offense, the then current piloting offense must follow a previous finding of guilt of an offense for which an equal, or more severe, sanction is authorized.

VIOLATION

Class of Violation Guidelines

(a) Section 310.101(1), F.S., any act of misconduct, inattention to duty, negligence, or incompetence; any willful violation of any law or rule, including the rules of the road, applicable to a licensed state pilot or certificate deputy pilot; or any failure to exercise that care which a reasonable and prudent licensed state pilot or certificated deputy pilot would exercise under the same or similar circumstances may result in disciplinary action.

First Offense:

Second Offense:

Third Offense:

Class: 6, 5, 4, 3 or any combination thereof

Class: 5, 4, 3, 2, 1 or any combination thereof

Class: 2 or 1

1. Willful violation of any law or rule, including board rules and rules of the road, applicable to a licensed state pilot or certified deputy pilot.

First Offense:

Second Offense:

Third Offense:

Class: 6, 5, 4, 3 or any combination thereof

Class: 5, 4, 3, 2, 1 or any combination thereof

Class: 2 or 1

2. Engaging in any practice which does not meet the acceptable standards of safe piloting.

First Offense:

Second Offense:

Third Offense:

Class: 6, 5, 4, 3 or any combination thereof

Class: 5, 4, 3, 2, 1 or any combination thereof

Class: 2 or 1

3. Making misleading, deceptive, or fraudulent representations in or related to the practice of the piloting profession.

First Offense:

Second Offense:

Third Offense:

Class: 6, 5, 4, 3 or any combination thereof

Class: 5, 4, 3, 2, 1 or any combination thereof

Class: 2 or 1

4. Having been found liable in a civil proceeding for knowingly filing a false report or complain with the department against another licensee

First Offense:

Second Offense:

Third Offense:

Class: 6, 5, 4, 3 or any combination thereof

Class: 5, 4, 3, 2, 1 or any combination thereof

Class: 2 or 1

5. Failing to report to the department any person who the licensee knows is in violation of Chapter 455 or 310, F.S., or the rules of the department or the board.

First Offense:

Second Offense:

Third Offense:

Class: 6, 5, 4, 3 or any combination thereof

Class: 5, 4, 3, 2, 1 or any combination thereof

Class: 2 or 1

6. Aiding, assisting, procuring, employing, or advising any unlicensed person or entity to practice a profession contrary to Chapter 455 or 310, F.S., or the rules of the department or the board.

First Offense:

Second Offense:

Third Offense:

Class: 6, 5, 4, 3 or any combination thereof

Class: 5, 4, 3, 2, 1 or any combination thereof

Class: 2 or 1

7. Making deceptive, untrue, or fraudulent representations in or related to the practice of the profession or employing a trick or scheme in or related to the practice of a profession.

First Offense:

Second Offense:

Third Offense:

Class: 6, 5, 4, 3 or any combination thereof

Class: 5, 4, 3, 2, 1 or any combination thereof

Class: 2 or 1

8. Violating any provision of Chapter 455, or 310, F.S., or the rules of the department or the board, or a lawful order of the department or the board, or failing to comply with a lawfully issued subpoena of the department.

First Offense:

Second Offense:

Third Offense:

Class: 6, 5, 4, 3 or any combination thereof

Class: 5, 4, 3, 2, 1 or any combination thereof

Class: 2 or 1

9. Improperly interfering with an investigation or inspection authorized by statute, or with any disciplinary proceeding.

First Offense:

Second Offense:

Third Offense:

Class: 6, 5, 4, 3 or any combination thereof

Class: 5, 4, 3, 2, 1 or any combination thereof

Class: 2 or 1

10. In any jurisdiction being convicted or found guilty of, or entering a plea of nolo contendere to, regardless of adjudication, a crime, which relates to the practice of, or the ability to practice, the piloting profession.

Class: 2 or 1

11. Regardless of adjudication, having ever been found guilty of, or pled guilty of, or pled guilty or nolo contendere to (i) a charge which was a felony or first degree misdemeanor which directly related to the navigation or operation of a vessel, or (ii) a felony involving the sale of or trafficking in, or conspiracy to sell or traffic in, a controlled substance as defined by Chapter 893, F.S., or an offense under the laws of any state or country which, if committed in this state, would constitute a felony of selling or trafficking in, or conspiracy to sell or traffic in, such controlled substance.

Class: 1

12. Attempting to obtain, obtaining, or retaining a license or certificate to practice a profession by bribery, by fraudulent misrepresentation, or through an error of the department or the board.

Class: 1

(b) Section 310.101(1)(a), F.S., failure to make allowances for the foreseeable effects of wind, current, and tide.

First Offense:

Second Offense:

Third Offense:

Class: 6, 5, 4, 3 or any combination thereof

Class: 5, 4, 3, 2, 1 or any combination thereof

Class: 2 or 1

First Offense:

Second Offense:

Third Offense:

Class: 6, 5, 4, 3 or any combination thereof

Class: 5, 4, 3, 2, 1 or any combination thereof

Class: 2 or 1

(d) Section 310.101(1)(c), F.S., failure to navigate with caution in limited visibility.

First Offense:

Second Offense:

Third Offense:

Class: 6, 5, 4, 3 or any combination thereof

Class: 5, 4, 3, 2, 1 or any combination thereof

Class: 2 or 1

(e) Section 310.101(1)(d), F.S., navigating in channels where the depth of water under the keel is less than the prescribed bottom clearance as recommended by the licensed state pilots of that port and approved by the board.

First Offense:

Second Offense:

Third Offense:

Class: 6, 5, 4, 3 or any combination thereof

Class: 5, 4, 3, 2, 1 or any combination thereof

Class: 2 or 1

(f) Section 310.101(1)(e), F.S., excessive speed.

First Offense:

Second Offense:

Third Offense:

Class: 6, 5, 4, 3 or any combination thereof

Class: 5, 4, 3, 2, 1 or any combination thereof

Class: 2 or 1

(g) Section 310.101(1)(f), F.S., having a license or certificate to practice piloting revoked, suspended, restricted, placed on probation, or in any way acted against, including, but not limited to, the relinquishing or depositing of the license or certificate in lieu of further disciplinary action, in anticipation of the filing of charges, or in lieu of prosecution, by the regulatory authority of another state, the Federal Government, a territory, or another country for an act which would constitute a ground for discipline if the act had occurred while piloting under authority of the Florida state pilot’s license or deputy pilot’s certificate.

Class: 2 or 1

(h) Section 310.101(1)(g), F.S., making or filing, or inducing another person to make or file, a report which the pilot knows to be false or intentionally or negligently failing to file, or willfully impeding or obstructing the filing of, a report or record required by state law or by rule of the board or the department. Such reports or records include on those which are signed by the pilot in his or her capacity as a licensed state pilot or certificated deputy pilot.

First Offense:

Second Offense:

Third Offense:

Class: 5, 4, 3, 2, 1 or any combination thereof

Class: 2 or 1

(i) Section 310.101(1)(h), F.S., being unable to perform the duties of a pilot with reasonable skill and safety by reason of illness or use of alcohol, drugs, narcotics, chemicals, or any other type material or as a result of any mental or physical condition such as, but not limited to, poor eyesight or hearing, heart disease, or unable to perform the duties of a pilot with reasonable skill and safety by reason of illness or use of alcohol, drugs, narcotics, chemicals, or any other type material or as a result of any mental or physical condition such as, but not limited to, poor eyesight or hearing, heart disease, or diabetes.

Class: 4, 3, 2, 1 or any combination thereof

(j) Section 310.101(1)(i), F.S., practicing or offering to practice beyond the scope permitted by law or accepting and performing professional responsibilities that the pilot knows or has reason to know he or she is not competent to perform.

First Offense:

Second Offense:

Third Offense:

Class: 6, 5, 4, 3, 2, 1 or any combination thereof

Class: 5, 4, 3, 2, 1 or any combination thereof

Class: 2 or 1

(k) Section 310.101(1)(j), F.S., delegating professional responsibilities to a person when the pilot delegating such responsibilities knows or has reason to know that such person is not qualified by training, experience, or license to perform them.

First Offense:

Second Offense:

Third Offense:

Class: 6, 5, 4, 3, 2, 1 or any combination thereof

Class: 5, 4, 3, 2, 1 or any combination thereof

Class: 2 or 1

(l) Section 310.101(1)(k), F.S., engaging in any practice which does not meet acceptable standards of safe piloting.

First Offense:

Second Offense:

Third Offense:

Class: 6, 5, 4, 3, 2, 1 or any combination thereof

Class: 5, 4, 3, 2, 1 or any combination thereof

Class: 2 or 1

(m) Section 310.101(1)(l), F.S., failure to maintain a valid Untied States Coast Guard first-class unlimited pilot’s license covering the waters of the port in which the state pilot’s license was issued.

Class: 2 or 1

(n) Section 310.101(1)(m), F.S., Having a license to operate a motor vehicle revoked, suspended, or otherwise acted against by any jurisdiction, including its agencies or subdivisions, for operating the vehicle under the influence of alcohol or drugs.

First Offense:

Second Offense:

Third Offense:

Class: 5, 4, 3, 2, 1 or any combination thereof

Class: 2 or 1

(o) Section 310.101(1)(n), F.S., being unable to perform piloting with reasonable skill and safety by reason of illness or use of alcohol, drugs, narcotics, or chemicals.

Class: 4, 3, 2, 1 or any combination thereof

(3) Aggravating or mitigating circumstances to be considered if there is to be a deviation from penalties provided herein shall include:

(a) The danger to the public;

(b) The length of time since the date of the last violation(s);

(d) The deterrent effect of the penalty imposed;

(e) The effect of the penalty upon the licensee’s livelihood;

(f) Efforts by the licensee toward rehabilitation;

(g) Efforts by the licensee to correct or stop violations or evidence that the licensee has failed to correct or stop violations;

(h) Any other mitigating or aggravating circumstances.

(4) In addition to the conditions specified in paragraph (1)(d), any or all of the following conditions may be imposed as terms of probation:

(a) Restitution of the cost of probation;

(b) Payment of fine(s);

(d) Fulfilling continuing education requirements;

(e) Consent to indirect or direct supervision by board-approved supervisor;

(f) Consent to restriction of practice; including hours, days or type of practice;

(g) Submission of reports by licensee and consent to submission of reports by supervisor and/or helping professional;

(h) Consent to urine and blood testing;

(i) Fulfilling requirements of making personal appearance(s) before the board;

(j) Other conditions as are appropriate to the offense.

Rulemaking Specific Authority 310.101, 310.185, 455.2273 FS. Law Implemented 310.101, 455.227, 455.2273 FS. History–New 2-11-87, Formerly 21SS-7.005, 21SS-17.004, Amended 9-27-94, 5-1-02, 7-3-03, 12-5-06, .

NAME OF PERSON ORIGINATING PROPOSED RULE: Board of Pilot Commissioners

NAME OF AGENCY HEAD WHO APPROVED THE PROPOSED RULE: Board of Pilot Commissioners

DATE PROPOSED RULE APPROVED BY AGENCY HEAD: July 13, 2015

DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAR: September 23, 2015

Document Information

Comments Open:: 10/21/2015
Summary:: The rule amendment will clarify guidelines for disposition of disciplinary cases by substantially rewording the rule.
Purpose:: The Board proposes the rule amendment to clarify guidelines for disposition of disciplinary cases by substantially rewording the rule.
Rulemaking Authority:: 310.101, 310.185, 455.2273 FS.
Law:: 310.101, 455.227, 455.2273 FS.
Contact:: Thomas Campbell, Executive Director, Board of Pilot Commissioners, 1940 North Monroe Street, Tallahassee, Florida 32399-0750.
Related Rules: (1): 61G14-17.004. Guidelines for the Disposition of Disciplinary Cases