The Issue The issue in the case is whether Albert E. and Renee Warner's application for an Airspace Obstruction Permit should be granted.
Findings Of Fact Charles W. Brammer owns the Tampa North Aero Park, Inc., which is a Florida-licensed public use landing strip surrounded by private home sites. The landing strip is located in Pasco County. Albert E. Warner and Renee Warner own a lot adjoining the Tampa North Aero Park, Inc. The Warners desire to construct and live in a single family home on the lot identified as Lot 123, Quail Hollow Village Subdivision. According to the Warners, the structure will be concrete block with a wood frame roof. The highest peak of the roof will be no more than 30 feet above ground level (98 feet above mean sea level.) Mr. Brammer is essentially concerned that his airport remain licensed for public use, and is wary of encroachments which may alter its licensing status in the future. The location of the proposed construction exceeds certain federally-established standards and triggers regulatory review of the Warner project. In November of 1995, the Warners began the process of obtaining the permits required for construction of the home at the airstrip. The evidence establishes that the Warners have been cooperative and forthcoming in their attempts to meet regulatory requirements related to their proposed construction. The Warners provided all information as requested by the Department. One of the requirements is that the Federal Aviation Administration (FAA) review the proposal and issue a "Determination of No Hazard to Air Navigation." On March 27, 1996, the FAA issued the "Determination of No Hazard to Air Navigation." The document states that an aeronautical study has been completed (study #96-ASO-286_OE) and identifies the location of the proposed residence as approximately 0.14 nautical miles northeast of the Tampa North Aero Park Airport. The FAA determination contained an incorrect latitude and longitude for the location of the proposed construction. 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. By letter of July 12, 1996, the Department issued notice of its intent to grant the Warner application for an Airspace Obstruction Permit. The letter states as follows: We have review results of the Federal Aviation Administration Aeronautical Study of your proposed construction. They have issued a determination your construction can be accommodated without a significant adverse impact on the safe and efficient use of navigable airspace for Tampa North Aero Park and is thus not a hazard to air navigation. We have been unable to identify any aviation activity not addressed by the Aeronautical Study that would necessitate altering flight operations to accommodate your proposed construction or be otherwise adversely impacted by its height at the location proposed.... The Department's permit contained the same incorrect latitude and longitude for the location of the proposed construction as had been set forth in the FAA determination. A condition of the permit requires the structure to be lighted with a red beacon and marked as an obstruction. At some point after issuing the initial determination, the FAA issued a correction to the determination. There is no date on the correction which identifies the date of issuance. Other than the location, the FAA's correction made no changes to the initial determination. The 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 Department has not issued a corrected notice of its intent to issue the Warner permit. Although the permit applicants have provided the information requested by the Department, the evidence fails to establish that the applicants have met the criteria set forth by statute for the issuance of an Airspace Obstruction Permit. The evidence fails to establish that the Department gave adequate consideration to the requirements of Section 333.025, Florida Statutes, in reviewing the permit application filed by the Warners.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Transportation enter a Final Order denying the Warner application for Airspace Obstruction Permit. RECOMMENDED this 4th day of March, 1997, in Tallahassee, Florida. _ WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 4th day of March, 1997. COPIES FURNISHED: Ben G. Watts, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450 Pamela Leslie, General Counsel Department of Transportation 562 Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450 Charles W. Brammer, Pro Se Tampa North Aero Park 4241 Birdsong Avenue Tampa, Florida 33549 Albert E. Warner, Pro Se Post Office Box 7084 Wesley Chapel, Florida 33543 Francine M. Ffolkes, Esquire Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0458
The Issue Under the standards established by Section 330.30, Florida Statutes, and Rule Chapter 14-60.05, Florida Administrative Code, the issues presented for resolution are: Whether the site is adequate for the proposed private seaplane base. Whether the proposed seaplane base will conform to minimum standards of safety. Whether safe air traffic patterns can be worked out for the proposed airport and for all existing airports and approved sites in the vicinity.
Findings Of Fact Based on the stipulations of the parties, the testimony of the witnesses, and the exhibits admitted in evidence at the hearing, I make the following findings of fact. On August 24, 1983, Mr. Ruzakowski of 159 San Remo Drive, Venetian Shores Subdivision, Islamorada, Florida, filed an application with attachments with the Department for a private seaplane base license. The application of the proposed private seaplane base to be known as Plantation Key seaplane base proposes that landing and taking off would be in the open water area known as Florida Bay or Cotton Key Basin and that the seaplane would be parked on a ramp at the applicant's home. In order to reach the applicant's waterfront home, the application proposes a taxi route along Snake Creek which connects Florida Bay to the applicant's home. The application had attached to it a letter of zoning approval from the Building and Zoning Department of Monroe County signed by Mr. Joseph E. Bizjak, Assistant Building Official, which letter stated that the ramp on the applicant's property ". . . has never been and is not now in violation of any Monroe County zoning codes." The Department of Transportation has never been notified by the Monroe County Zoning and Building Department of any withdrawal of this zoning approval. Also attached to the application was a letter from Robert Billingsley supervisor of the program development section of the Federal Aviation Administration which stated that the FAA airspace approval for applicant's seaplane was still current and in effect. Mr. Ruzakowski's 1976 application for a seaplane base proposed using Snake Creek as a take-off and landing area. The instant application only proposes to use Snake Creek as a taxi area to and from Mr. Ruzakowski's residence (where he proposes to park the airplane) and the take-off and landing area in Florida Bay. The distance from Mr. Ruzakowski's residence to the take- off and landing area is approximately one mile. Upon receipt by DOT of Mr. Ruzakowski's 1983 application, an on-site feasibility inspection of the site was made by Mr. Steve Gordon of the DOT's Sixth District in Miami, Florida. Mr. Gordon, a District Aviation Engineer, has extensive experience as an airplane pilot and as an airport site inspector. Mr. Gordon conducted an adequate on-site inspection and concluded that the proposed seaplane base appeared to be in compliance with the applicable statutory and rule provisions. Specifically, Mr. Gordon concluded that the take-off and landing operations would be away from the area of the homes in the development, that the ramp on Mr. Ruzakowski's property was adequate for safe approach upon his lot, that his lot was a safe place to park his seaplane, that Snake Creek was wide enough for taxiing the airplane, that the take-off and landing area contained no obstructions or hazards, and that there was no hazard to other airports in the area. Following the inspection, Mr. Gordon wrote to Mr. Ruzakowski and to the DOT officials and advised them that the proposed site was feasible for a private seaplane base under the applicable licensing requirements. Thereafter, the DOT sent notice to approximately 200 addressees advising them of the proposed private seaplane base application, the inspection results, the DOT's intent to issue site approval and advising of a public meeting on the matter. The notice was also published in The Florida Keys Keynoter newspaper on October 13, 1983. Among the addressees notified by mail were adjacent property owners, the Monroe County Building and Zoning Department, the Monroe County Board of County Commissioners, and the FAA. The Marine Patrol and the Coast Guard were also notified of the public hearing. Neither the Monroe County Board of County Commissioners nor the Monroe County Building and Zoning Department sent a representative to attend the public hearing. Following the public hearing and consideration of all of the objections stated at the public hearing, Mr. Gordon recommended that site approval be granted for the proposed seaplane base. There are other licensed seaplane bases in Florida in which the take- off and landing areas are in open water such as bays and in which seaplanes using the base taxi to and from the parking area in channels used by boats. The airplane owned by Mr. Ruzakowski which he proposes to use at the subject seaplane base is a modified Republic Seabee. The modifications include modifications which make the airplane more maneuverable, quieter, and dependable. When taxiing on the water the pilot of the Seabee has excellent visibility of everything from very close to the airplane to infinity. The airplane is very maneuverable on the water, due in part to the fact that it has both water and air rudders. The airplane can be stopped very quickly on the water because the direction of the propeller thrust can be reversed. The propeller reversal also makes it possible for the airplane to back up while on the water. The airplane can taxi on the water as slowly as 5 miles per hour. Once it reaches the take-off area, the actual take-off run lasts only about 18 or 20 seconds. The airplane is approximately 40 feet wide from wingtip to wingtip. The tip of the airplane propeller is at least four feet above the water. As a result of the excellent visibility from the airplane and the high degree of maneuverability of the airplane, it is easy for the pilot of the airplane to observe and avoid any boats or other objects in the vicinity of the airplane. While operating on the water the airplane is subject to the same navigation rules which apply to boats and ships. The applicant, Mr. Ruzakowski is a 73 year old retired airline pilot. He has between 20,000 and 22,000 hours of flying experience, approximately 75 percent of which was as pilot in command. He has flown a large number of different types of airplanes, including land based airplanes, seaplanes, and amphibians. He has had extensive experience in both single- engine and multi- engine aircraft. In 54 years of flying he has never had an accident. Safety is the main factor in all of his flying. Mr. Ruzakowski is an FAA consultant engineer and does all of the maintenance and repairs on his own airplane. He has invented an improved control system for the Republic Seabee aircraft and has received FAA approval for his invention to he installed on other Republic Seabees. Mr. Ruzakowski appears to be in excellent physical and mental condition; at the hearing he appeared to be strong, agile, and alert. These appearances are confirmed by the fact that he currently holds a valid FAA pilot's license and medical certificate. He has never been denied an FAA medical certificate. His vision is excellent and is perhaps getting better because several years ago his FAA medical certificate required him to keep reading glasses in the aircraft, but his current medical certificate contains no such restriction. Snake Creek is used by a variety of large and small commercial and pleasure boats. The volume of boat traffic varies from day to day and also by time of day. At times there are also swimmers and divers in Snake Creek and in the designated take-off and landing area. However, none of the boat traffic is incompatible with the operation of the applicant's airplane because the visibility from the airplane and the maneuverability of the airplane are such that the pilot of the airplane has as much or more ability to avoid or prevent a collision as does the operator of any of the boats and ships using the waterway.
Recommendation Based on all of the foregoing it is recommended that the Department of Transportation issue a Final Order approving the issuance of Site Approval Order No. 83-34. DONE and ORDERED this 15th day of May, 1985, at Tallahassee, Florida. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 FILED with the Clerk of the Division of Administrative Hearings this 15th day of May, 1985. COPIES FURNISHED: Joe Miklas Esquire Post Office Box 366 Islamorada, Florida 33036 James Baccus, Esquire Post Office Box 38-1086 Little River Station Miami, Florida 33138 Judy Rice, Esquire Department of Transportation Haydon Burns Building 605 Suwannee Street, MS-58 Tallahassee, Florida 32301-8064 Honorable Paul A. Pappas, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street, MS-58 Tallahassee, Florida 32301-8064
Findings Of Fact On September 22, 1981, the Respondent, Sonoma International (hereafter Sonoma) , through its vice president, Claudette Bruck, filed an application with the Florida Department of Transportation (hereafter D.O.T.) for a license to construct and operate a private airport to be known as Greener Pastures Private Airport. The proposed airport site is located on Loxahatchee Road (SR 827) in an unincorporated area of southwest Palm Beach County. The parcel on which the proposed airport is to be located consists of approximately 63.42 acres and is owned by Sonoma. The property is approximately 800 feet east to west and 3900 feet north to south. The proposed landing strip would be located on the western-most portion of the property and will run the entire length of the property except for any applicable setback requirements. Petitioner, John J. Burton, (hereafter Burton) owns approximately 15 to 20 acres of undeveloped land in the area of the proposed site. The eastern portion of Burton's property is directly north of the location of the proposed landing strip. The Burton property is approximately 300 feet north of the Hillsborough Canal and approximately 600 to 800 feet north of the proposed airport site. The Petitioner, Florida National Properties, Inc., owns the land contiguous to the southern boundary of the proposed site. This property is also undeveloped. The Loxahatchee National Wildlife Refuge is located approximately 3/4 of a mile north of the proposed site. The area where the proposed site is located remains undeveloped. Sonoma proposes to sell subdivided five (5) acre parcels with the landing strip located on the western portion of each lot. The landing strip is for the use of the owners of these parcels and their guests. The proposed landing strip will be a grass strip and will run the full length of the property. D.O.T. reviewed Sonoma's application, performed site inspections and found the proposed site was adequate to meet the site approval requirements set forth in Rule 14-60.05, Florida Administrative Code. The site inspections were performed by Mr. Boswell and Mr. Brown of D.O.T., who submitted reports of their findings. On October 20, 1982, D.O.T. entered a site approval order which contained the following conditions: All operations are to be conducted in VFR weather conditions. Use of the airstrip is limited to property owners and their invited guests. Left traffic patterns will be established for Runway 18 and Right traffic patterns will be established for Runway 36. Aircraft arriving or departing the airport will avoid overflying the Loxachatchee National Wildlife Refuge below 2000 feet AGL. Users of the airport and invited guests will be informed of possible bird activity in the vicinity of the site. Traffic patterns and operational procedures are subject to review by this Department prior to licensing or re-licensing. The landing strip surface for private airports must be a minimum of 1800 feet in length with a primary surface width of 100 feet and a usable width of 50 feet. The proposed site is more than adequate for a landing strip with these dimensions. A private airport must have and maintain approach zones which are a trapezoidal area increasing in width from 50 feet either side of the runway centerline at a distance of 3000 feet outward from the ends of each runway. Rule 14-60.07(5), Florida Administrative Code. These approach zones must be clear of obstructions above a glide path of 20:1 from the ends of each usable runway. Rule 14-60.07(6). It is not necessary for the applicant to own or control the ground area beneath the approach zones. The approach zones for the proposed airport will extend over property owned by the Petitioner Burton on the north and Petitioner Florida National on the south. Neither of the Petitioners has granted an easement or other right of use of the airspace above their property. There are presently no obstructions which will prevent Sonoma from obtaining the necessary approach zones at the time of licensing. There are Australian Pines located on the northern tip of Sonoma's property and along the right-of-way of Loxahatchee Road where it abuts Sonoma's property on the north. These trees are 80 to 90 feet in height. By constructing the landing strip the full length of Sonoma's property, the threshold for landing may be displaced to the south of these trees. The 90 foot height will require a displacement of 1800 feet in order to obtain the 20:1 glide path clear zone. With a runway length of 3700 feet (3900 feet minus 2 x 100 feet set back) leaves a usable runway length of 1900 feet. This exceeds the minimum 1800 feet requirement. The trees may be topped or removed prior to final inspection. Although there are bird-nesting areas within the Loxahatchee National Wildlife Refuge from which regular flights of birds occur, these flights are fairly predictable as to time and location and will not create an abnormal safety hazard for the proposed site. There are also microwave towers in the general area of the proposed site, but these towers do not constitute a hazard to planes landing or taking off from the proposed airport. Safe air traffic patterns can be developed on the site for takeoff and landing. Herbert L. Brown, an Aviation Specialist with D.O.T., flew low approaches over the proposed site on two different occasions on December 2, 1982, and April 22, 1983. Mr. Brown flew right-hand traffic patterns and approaches to Runway 36 and left-hand patterns and approaches to Runway 18. On each occasion, he could have landed safely on the proposed site but made a go- around. Mr. Brown did not detect any potential hazards on either of these flights and determined that safe air traffic can be developed on the proposed site. On April 29, 1982, the Board of County Commissioners of Palm Beach County approved Sonoma's petition for a Special Exception to the Palm Beach County zoning ordinance. This approval permits Sonoma to construct a private use airport on the proposed site with the following conditions: The developer shall convey to Palm Beach County within ninety (90) days of Special Exception approval 80 feet south of the south right-of-way line of the Hillsboro Canal for the ultimate right-of-way for State Road #827. The developer shall contribute Three Thousand Dollars ($3,000) toward the oust of meeting this project's direct and identifiable traffic impact, to be paid on a pro-rata basis at the time of issuance of the building permit(s). A 100 ft. setback shall be required between the runway edge and any property line. No structure or navigation aids shall be closer than 50 ft. from any property line. Use of this airstrip shall be limited to owners of this property and their guests. The developer has agreed, and shall limit the County's liability for any future condemnation to exclude any improvements constructed as a result of this Special Exception. Airspace approval for the proposed site was obtained from the FAA on February 24, 1982. A private use airport constructed on this site will conform to the minimum standards of safety for a private use airport if constructed in accordance with D.O.T. requirements. The determination of such conformity is made by D.O.T. in a final inspection prior to licensing. The procedure for obtaining a private use license is a two-step procedure. The first determination is site approval and basically addresses the question of whether it is feasible to establish a private use airport on the proposed site which will meet D.O.T. requirements. In this phase, no detailed construction plans or site plans are required. After site approval, the proposed licensee prepares the site and constructs the airport. Upon completion, D.O.T. makes a final inspection to determine if all D.O.T. requirements have been met. If the airport fails to meet any D.O.T. requirement, the license will not be issued.
Recommendation Based upon the foregoing findings of fact and conclusions of law it is RECOMMENDED: That the Department of Transportation issue its site approval order to Sonoma International for the proposed private airport, subject to those specific conditions set forth in the Notice of Intent and proposed Site Approval Order. DONE and ENTERED this 18th day of January, 1984, in Tallahassee, Florida. MARVIN E. CHAVIS Hearing Officer Division of Administrative Hearings Department of Administration 2009 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 FILED with the Clerk of the Division of Administrative Hearings this 18th day of January 1984. COPIES FURNISHED: Gerald K. Burton, Esquire Mark A. Seff, Esquire 2740 Hollywood Boulevard Hollywood, Florida 33020 Paul A. Pappas, Secretary Department of Transportation 605 Suwannee Street Tallahassee, Florida 32301 Thomas G. Wright, Jr., Esquire Gregory S. Sollitto, Esquire 3300 University Drive Coral Springs, Florida 33065 Leslie T. Ahrenholz, Esquire Post Office Box 2656 Fort Myers, Florida 33921 Vernon L. Whittier, Jr., Esquire Department of Transportation 605 Suwannee Street Tallahassee, Florida 32301
The Issue The issue in this case is whether the Homeowner’s Association of Eagle Creek, Inc., (Respondent) discriminated against Stanley Byrdsell (Petitioner) based on race or disability.
Findings Of Fact At all times material to this case, the Petitioner was a homeowner at, and resident of, a residential community identified as “Eagle Creek” in Orlando, Florida. The Petitioner is an African-American male. On occasions during his residency at Eagle Creek, the Petitioner relied on a wheelchair for mobility following surgeries related to injuries sustained in automobile accidents. The Respondent is the legal entity created, in relevant part, to manage common areas at Eagle Creek, to enforce various Eagle Creek property restrictions, and to collect assessments from Eagle Creek homeowners. The Petitioner’s complaint of discrimination by the Respondent was essentially focused on his interactions with Maria Loffredo, the Respondent’s manager during the time the Petitioner resided at Eagle Creek. Ms. Loffredo is no longer employed by the Respondent. The evidence is insufficient to establish that the Respondent, or any person employed by the Respondent, discriminated against the Petitioner in any manner based on his race or disability. The evidence is insufficient to establish that the Respondent, or any person employed by the Respondent, treated the Petitioner in any manner differently than any other resident of Eagle Creek. UNPAID ASSESSMENTS Collection of assessments from Eagle Creek homeowners appears to have been a substantial issue for the Respondent. At one point during the relevant period, approximately 60 percent of Eagle Creek homeowners, including the Petitioner, were delinquent in paying assessments to the Respondent. The Respondent routinely provided delinquent homeowners with an opportunity to become current on unpaid assessments by making periodic installment payments of the funds due. The periodic payment plans were documented by written agreements executed between the Respondent and the participating homeowners. The Petitioner was offered the opportunity to enter into such an installment payment plan to satisfy the unpaid assessments, but did not do so. The evidence fails to establish that the Respondent’s efforts to collect the unpaid assessments from the Petitioner were in any manner different from the collection efforts routinely applied to all Eagle Creek homeowners who were in arrears on assessment payments. The Petitioner testified that he and Ms. Loffredo entered into a verbal agreement whereby he would provide web design services to the Respondent in an amount equal to his unpaid assessments. The Petitioner offered no documentation to support the assertion. Ms. Loffredo denied entering into such an agreement and testified that she had no authority to enter into a contract with the Petitioner without approval by the Respondent’s board of directors. There is no evidence that the board of directors ever considered any such agreement between the Petitioner and the Respondent. The evidence fails to establish the existence of any agreement between the Petitioner and the Respondent regarding web design services. THE PLYWOOD RAMP As previously stated, the Petitioner occasionally relied on a wheelchair for mobility. During those times, the Petitioner placed a sheet of plywood across an entry step at the front of his house to facilitate his entry into the home. On more than one occasion, Ms. Loffredo contacted the Petitioner to inquire about his use of the plywood ramp. The Petitioner has asserted that Ms. Loffredo harassed him about the ramp, and that her inquiries were discriminatory. At the hearing, the Petitioner’s former girlfriend testified that she believed Ms. Loffredo was rude or disrespectful during the inquiries. The evidence fails to establish that Ms. Loffredo’s inquiries were discriminatory in any manner. The Respondent took no action whatsoever to prohibit or restrict the Petitioner’s use of the ramp. COMMUNITY INSPECTIONS The Petitioner has asserted that Ms. Loffredo targeted his home for various inspections in order to harass or intimidate him because of his race or disability. The evidence fails to establish that the Petitioner’s residence was inspected more frequently than that of other homeowners in Eagle Creek, or that the Petitioner was subjected to property restrictions different from those applied to other homeowners. RACIAL SLUR The Petitioner has asserted that, on one occasion, he observed Ms. Loffredo parked in front of his house, and alleged that when he approached her to ask about her presence, she responded by directing a racial slur towards him and then driving off. Ms. Loffredo testified that she routinely went through the Eagle Creek community to monitor homeowner compliance with property restrictions, but denied making the statement attributed to her by the Petitioner. The evidence is insufficient to establish that the alleged racial statement occurred. ENTRY GATE REMOTE CONTROLS Eagle Creek is a private community. Entry into Eagle Creek is through gated and guarded access points. Residents entering the community use coded electronic devices to open the gate. Residents, as well as non-residents, can also gain entry into the community by stopping at a guardhouse, where security personnel are present on a 24-hour basis. The Respondent’s governing documents provide that a resident’s electronic gate access can be suspended for non- payment of assessments. At some point after the Petitioner became delinquent in payment of assessments, the Respondent disabled the Petitioner’s entry codes, thereby suspending the Petitioner’s ability to enter the development through the electronic gate. The Respondent suspended electronic gate access for numerous residents who were delinquent in paying assessments. The evidence fails to establish that the suspension of the Petitioner’s electronic access codes was related to the Petitioner’s race or disability. Notwithstanding the Petitioner’s non-payment of assessments, the Petitioner’s ability to enter through the electronic gate system was restored after he provided a letter to the Respondent asserting that one of the Petitioner’s children had a medical condition. GATE INCIDENT At some point as the Petitioner drove a vehicle through an open electronic entry gate, the wooden gate came down onto the Petitioner’s vehicle before it had cleared the entry point. The gate was damaged as the Petitioner continued to drive as the gate came down. Ms. Loffredo became aware of the incident when witnesses who observed the Petitioner driving through the entry reported it to her. The gates are common property owned by the Respondent. Ms. Loffredo thereafter contacted law enforcement authorities to document the incident, and she went to the gate to observe the damaged gate. The evidence fails to explain why the gate closed while the Petitioner’s vehicle was proceeding through it. Although the Petitioner generally asserted that Ms. Loffredo committed some type of discriminatory act towards him in relation to these events, there is no evidence to support the assertion. VANDALISM On one occasion, a group of juveniles accompanied by an adult drove through a part of Eagle Creek while tossing raw eggs at presumably random houses and cars. The Petitioner’s residence and vehicle were hit and damaged by the eggs. Before the vandals managed to escape from Eagle Creek, the Petitioner and a neighbor managed to stop and detain them, and then contacted local law enforcement authorities. Ms. Loffredo became aware of the incident, and came to the scene while the law enforcement authorities were present. Ms. Loffredo determined that there was no damage to the Respondent’s property and apparently so advised the law enforcement authorities. The Petitioner has asserted that Ms. Loffredo also told law enforcement officers to refrain from prosecuting the vandals for the apparent damage to private property caused by the event, and that her actions in this regard were discriminatory towards him. There is no evidence that the Petitioner filed any complaint with local law enforcement or pursued any legal action against the vandals. Ms. Loffredo denied telling the law enforcement authorities not to prosecute the vandals for damage to private property. There is no evidence that Ms. Loffredo had any authority to prevent the prosecution of the vandals. Even presuming that Ms. Loffredo somehow had the authority to prevent prosecution of neighborhood vandals, the Petitioner’s claim that Ms. Loffredo discriminated against him based on race or disability would suggest that the vandals were prosecuted for damage to houses or vehicles owned by other residents of Eagle Creek. There was no evidence presented that the vandals were prosecuted on behalf of any Eagle Creek homeowner. The evidence fails to establish that Ms. Loffredo had any authority or took any action to prevent criminal prosecution of the vandals for damage to the Petitioner’s private property, or to that of any other Eagle Creek resident. LOCAL GOVERNMENT CODE ENFORCEMENT The Petitioner has asserted that the Respondent targeted his residence by frequently filing various complaints with the local housing code enforcement agency. While local housing code enforcement inspectors apparently received a number of complaints about the condition of the Petitioner’s residence, the evidence fails to establish that the Respondent was the source of the complaints. Further, there is no evidence that such complaints were related to the Petitioner’s race or disability.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief filed by Stanley Byrdsell. DONE AND ENTERED this 15th day of December, 2014, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of December, 2014. COPIES FURNISHED: Karen Wonsetler, Esquire Suite 135 860 North Orange Avenue Orlando, Florida 32601 (eServed) Stanley Byrdsell Post Office Box 1645 Windermere, Florida 34786 (eServed) Cheyanne Michelle Costilla, General Counsel Florida Commission on Human Relations Suite 100 2009 Apalachee Parkway Tallahassee, Florida 32301 (eServed) Sarah Elizabeth Gammon, Esquire Law Office of Karen Wonsetler, P.A. Suite 135 860 North Orange Avenue Orlando, Florida 32801-1011 (eServed)
The Issue The issue in this case is whether Respondent, Parsec, Inc. ("Respondent" or "Parsec"), is liable to Petitioner, Yoandra Lopez Garcia ("Petitioner" or "Ms. Lopez Garcia"), for discrimination based on pregnancy.
Findings Of Fact Based on the demeanor and credibility of the witnesses, the documentary evidence admitted, and the record as a whole, the following facts are found: The Parties and Complaint Allegations Parsec is an intermodal transportation operator that contracts with railroads to load and unload shipping containers. Parsec hired Ms. Lopez Garcia on November 18, 2013, as an administrative clerk. At all times relevant to this proceeding, Petitioner held the position of Administrative Manager at Parsec’s Miami Terminal. On June 11, 2019, Petitioner filed a complaint, under penalty of perjury, with the Commission. Petitioner’s complaint claims, in its entirety: I am a female. I was discriminated against because of my gender (pregnancy). I began working for Respondent on November 23, 2013, as an Administrative Manager. I was given a promotion after being discriminated against. When I complained to the Regional Manager that individuals with no knowledge or seniority were given positions that I had applied for and I was never given an interview, the Regional Manager "offered" me the position. While I was in training and had fully trained someone else in my old position, I found out that I was pregnant. My supervisor, (Terminal Manager) demoted me without telling me and brought in a family member to occupy my position for no reason other than the fact that I was pregnant. I went out on maternity leave and my supervisor asked me if I was going to come back to work in my old position. I told him "no" and I felt I had no other choice but to quit my job. Parsec’s Structure Aside from Petitioner’s administrative position, the duties of which she performed inside the office, Parsec’s Miami Terminal also employed Gate Inspectors and Load Out Clerks, which were also categorized as office positions. Parsec’s operations also required a number of outdoor, or "yard" positions, including Ground Person/Tie-Down, Hitch Verifier, Driver, and Crane Operator. Finally, Parsec’s Miami Terminal had the following supervisory positions: Lead Man, Yard Supervisor, and Terminal Manager. The Terminal Manager position was the highest-level position at Parsec’s Miami Terminal. Mr. Bladen was Parsec’s General Manager. Mr. Fardales was the Regional Manager for Parsec’s Florida locations. Mr. Fardales had also worked as Parsec’s Terminal Manager in the Miami Terminal. At Parsec, it was not uncommon for employees to train for other positions in addition to their present job duties. If an employee voiced an interest in a different position or a promotion within the company, additional training was commonly accommodated. Petitioner’s Desired Promotion and Training In her role as Administrative Manager, Petitioner was the highest-level administrative employee in Parsec’s Miami terminal. However, because it was an administrative position inside the office, the Administrative Manager position was not eligible for promotion to higher-level supervisory positions at Parsec, which required training outdoors, or "in the yard." The Terminal Manager position at the Miami Terminal required overseeing all of the operations and personnel in the terminal, including office, gate, and yard operations. Additionally, the Terminal Manager had to have the necessary training, skill, and ability to physically perform the duties of all other positions in the yard. In order to sufficiently master all of the duties that were supervised and performed by the Terminal Manager, at least two years of experience in the yard was necessary. Around April of 2017, Petitioner went to lunch with Mr. Bladen and Mr. Fardales. During that lunch, Petitioner expressed her desire to become the Terminal Manager. Mr. Bladen and Mr. Fardales agreed to allow Petitioner to train in the yard to give her the opportunity to acquire the yard experience she would need to move up within the company. At that time, there was an open Yard Supervisor position at the Miami Terminal. Mr. Fardales intended to consider Petitioner for the Yard Supervisor position if she completed the requisite training. Petitioner was not promoted to, or offered, the Terminal Manager position. Her job classification of Administrative Manager at Parsec never changed. Petitioner was, however, allowed to train in the yard to give her the opportunity to earn a promotion in the future. In August of 2017, Parsec hired Ms. Ochoa, whom Petitioner recommended for the position, to assist Petitioner with her job duties in the office, thereby allowing Petitioner to train in the yard. Petitioner’s Pregnancy and Cessation of Training In September of 2017, Ms. Lopez Garcia learned that she was pregnant. Her testimony as to when she informed Mr. Fardales of her pregnancy was inconsistent. During the hearing, Petitioner first testified that she informed Mr. Fardales of her pregnancy in November, then she testified that she told him in the beginning of December, or a few days before he allegedly removed her from the training program. On October 6, 2017, an email was sent from Petitioner’s email account to Mr. Fardales, wherein Petitioner informed Mr. Fardales that she was changing her shift because she had an appointment for an ultrasound. Mr. Fardales testified credibly that he knew by that time that Petitioner was pregnant and assumed that the ultrasound was related to her pregnancy. Ms. Lopez Garcia testified that she may not have been the sender of the email, although it was from her account. Ms. Lopez Garcia also suggested that the ultrasound referenced in the email may not have been related to her pregnancy, but instead related to a completely different medical issue affecting her leg. Petitioner’s obstetrician, Dr. Aldabbagh, however, testified that Petitioner had an appointment with him on the date of the email, which included an abdominal ultrasound. Petitioner’s testimony on this topic was not persuasive when balanced with other, more credible, contradictory evidence. Ms. Lopez Garcia testified that Mr. Fardales called her into his office and told her that she would no longer be training in the yard, but would instead return to her duties inside the office. Petitioner further testified that Ms. Ochoa overheard the conversation, and when Petitioner left Mr. Fardales’s office, Petitioner and Ms. Ochoa both cried. Ms. Ochoa, however, testified that this event never took place and that she would have recalled it if it had. Ms. Lopez Garcia’s testimony on this topic is rejected to the extent that it conflicts with the testimony of Ms. Ochoa. Although Petitioner claims that Mr. Fardales removed her from the training program against her will because of her pregnancy, she testified that she never asked him for an explanation. Additionally, Petitioner never notified Parsec’s human resources department to complain about her removal from training. Parsec had anti-discrimination policies in place, which included a reporting procedure for employees. There is no evidence in the record that Petitioner mentioned alleged discriminated to anyone prior to filing her complaint with the Commission. Mr. Fardales testified that Petitioner left the training program voluntarily, but he did not remember her specific reasons. Parsec’s Corporate Representative testified that Petitioner asked to stop training in the yard because of complications with her pregnancy. The evidence did not conclusively establish why Petitioner stopped training. The evidence also did not establish exactly when Petitioner stopped training in the yard, but the evidence did establish that she had ceased training by December 2017. After she stopped training in the yard, Petitioner continued performing her duties in the office. In February of 2018, Petitioner went on maternity leave due to complications with her pregnancy. Parsec approved Petitioner’s request for leave under the Family and Medical Leave Act ("FMLA"), from February 26, 2018, through May 20, 2018. Parsec approved Petitioner’s request for non-FMLA medical leave from May 21, 2018, through June 20, 2018. Hiring of New Terminal Manager In December of 2017, Mr. Fardales hired Mr. Garcia as the Terminal Manager at Parsec’s Miami Terminal. Mr. Garcia first began working for Parsec, in a yard position, in 1997. Subsequently, Mr. Garcia spent years in other yard positions at Parsec, including six months as a Tie-Down Person and four years as a Crane Operator. He also drove tractors and held the position of Lead Man for Parsec. Mr. Garcia performed similar duties for another intermodal company for ten years, between 2002 and 2012; again at Parsec from 2012-2013; and at a different company as a railcar inspector from 2013-2017. Mr. Fardales hired Mr. Garcia for the Terminal Manager position, having determined that he was the most qualified for the position based on his experience. Mr. Fardales testified credibly that he is not related to Mr. Garcia. Petitioner did not present any evidence that Mr. Garcia was related to Mr. Fardales, although a familial relationship was alleged in her complaint to the Commission. Several other individuals applied for the Terminal Manager position, including Ms. Lopez Garcia. Ms. Lopez Garcia was not selected for the position because she did not have the requisite qualifications. The other individuals whom Mr. Fardales interviewed for the Terminal Manager position, but were not selected, include: Jorge Fernandez, Raciel Crespo, Lazaro Paredes, Ariel Peraza, and Jorge Torres. All of the other applicants for the Terminal Manager position were non-pregnant and male. Jorge Fernandez worked at Parsec for approximately ten years and had experience as a Gate Inspector, Load Out Clerk, Ground Person, and Driver. Mr. Fardales did not select him for the Terminal Manager position. Raciel Crespo had over ten years of experience working for Parsec, including working as a Gate Inspector, Ground Person, Driver, and Crane Operator. Mr. Fardales did not select him for the Terminal Manager position. Lazaro Paredes had over twenty years of experience in Parsec’s industry. He had experience in load-out, grounding, driving, and supervisory duties in the yard. Mr. Fardales did not select him for the Terminal Manager position. Ariel Peraza had between eight and ten years of experience in Parsec’s industry. He had worked as a Gate Inspector, Ground Man, Driver, And Crane Operator. Mr. Fardales did not select him for the Terminal Manager position. Jorge Torres had between three and five years of experience in Parsec’s industry. He had worked as a Ground Man, Driver, Lead Man, and Supervisor. Mr. Fardales did not select him for the Terminal Manager position. Alleged Discriminatory Comments Ms. Lopez Garcia testified that Mr. Fardales made comments to her or in her presence on a number of occasions that were generally disparaging to women in the workplace; and specifically with respect to pregnancy, motherhood, and sexual orientation. Petitioner did not identify other witnesses to Mr. Fardales’s alleged discriminatory comments, nor did any witness in this case corroborate her testimony on the comments. Mr. Fardales denied ever making any of the alleged disparaging comments about women in the workplace. Given the totality of the evidence, or lack thereof, about the negative comments about women, Petitioner’s testimony on the subject lacks credibility and is rejected. Petitioner’s Resignation Ms. Ochoa testified that she knew Petitioner planned to leave Parsec prior to Petitioner’s resignation. Ms. Ochoa declined to pursue another job opportunity to remain at Parsec based on her belief that Petitioner would not be returning, thereby allowing Ms. Ochoa to remain in Petitioner’s previous position permanently. Ms. Ochoa believed that Petitioner resigned because she had a daughter; she had her whole life in front of her; she had another business to take care of, specifically, a beauty salon; and Parsec was no longer important to her. On her 2019 tax return, Petitioner listed herself as the proprietor of a beauty salon. Petitioner testified, however, that the tax return was inaccurate in this respect and she did not know how such a mistake could have been made, because her taxes were done by an accountant. Ms. Lopez Garcia’s denial of any accountability for, or knowledge of, the information contained in her tax return was not believable, and therefore undermined her credibility. On May 30, 2018, while she was still out on maternity leave, Ms. Lopez Garcia called Mr. Fardales. Although Ms. Lopez Garcia and Mr. Fardales recalled different accounts of their phone conversation, both agreed that Petitioner resigned from Parsec during the call. Ms. Lopez Garcia testified that she resigned because Mr. Fardales refused to let her resume training in the yard when she returned from maternity leave. Mr. Fardales, however, denies that they discussed Petitioner’s training status at all during the conversation. Further, Petitioner testified that although she resigned, she told Mr. Fardales that she would reconsider contingent on him changing his mind about removing her from training in the yard. The details of the content of the conversation were not conclusively established. Mr. Fardales documented Petitioner’s verbal resignation in an email dated May 30, 2018. On the same day, Ms. Ochoa drafted a separation letter regarding Petitioner’s employment to send to Parsec’s corporate office in Cincinnati. She did so at the direction of Mr. Fardales. When Petitioner resigned, Parsec’s human resources department did not record the resignation as being effective immediately in order to afford Petitioner the continued coverage of her short-term disability benefits for the remainder of her maternity leave. Petitioner’s medical certification from her physician indicated that Petitioner could return to work on Wednesday, June 20, 2018. Human Resources made the decision to deem Petitioner’s resignation effective on Friday, June 22, 2018, so that she would receive short-term disability benefits for a full week.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that FCHR enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 29th day of January, 2021, in Tallahassee, Leon County, Florida. S BRITTANY O. FINKBEINER Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of January, 2021. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 Jamie Goetz-Anderson, Esquire Jackson Lewis, P.C. PNC Center 26th Floor 201 East Fifth Street Cincinnati, Ohio 45202 Naveen Paul, Esquire Jackson Lewis, PC Suite 3500 2 South Biscayne Boulevard Miami, Florida 33131 Javier A. Basnuevo, Esquire Roberts, P.A. Suite 300 2665 South Bayshore Drive Coconut Grove, Florida 33133 Jennifer A. Schwartz, Esquire Jackson Lewis PC One Biscayne Tower, Suite 3500 2 South Biscayne Boulevard Miami, Florida 33131 Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020
Findings Of Fact Petitioner Castelli originally applied for licensure as a physician in the state of Florida by application signed, notarized, and dated July of 1985. In conjunction with his application for licensure, Petitioner Castelli submitted a FLEX application that was signed and dated July 27, 1985. The 1985 application was accompanied by several documents, including Castelli's "Titulo" signed by him, dated September 15, 1972, and notarized by Norma Perez as a true and correct copy of the original. Petitioner Castelli was permitted by the Board of Medicine to take the December, 1985, FLEX, which Castelli did take and fail. By letter signed and dated August 30, 1986, Petitioner Castelli requested that he be allowed to re-take the FLEX examination in December of 1986. A notice dated October 15, 1986, was sent by the Board to the address provided by Castelli informing him that, among other things, he was required to complete a new application because his previous application was over one year old. Petitioner Castelli did not respond to that notification. On November 17, 1986, Petitioner Granado-Villar telephoned Respondent's employee Chandra Prine to inquire as to the status of her pending application to take the FLEX examination on December 5, 1986. Petitioner Granado-Villar was advised by Prine that her application was in order and that she should be receiving her admission card for the examination. Granado-Villar then asked Prine the status of the application of Petitioner Castelli. Prine told Granado- Villar that Castelli's application was incomplete because updated pages 2-5 had never been received and because no current ECFMG certificate was in his file. Prine further advised Granado-Villar that the deadline for applications for the December 5, 1986 FLEX examination had passed. In response to Granado-Villar's inquiries as to what could be done to help Castelli, Prine advised her that if his application file could be completed by 5:00 p.m. on November 18, 1986, Prine would discuss the matter with her supervisor and attempt to place Castelli's application on the agenda for the November 22, 1986 meeting of the Board of Medicine. Granado-Villar advised Prine that Castelli was a resident of Spain and that she would attempt to get an updated application form to Castelli by overnight mail. Prine told Granado-Villar to include copies of the receipts for overnight mail with Castelli's updated application. Petitioner Granado-Villar called Petitioner Castelli in Spain, and they decided to send the application to Castelli by commercial airlines in hopes of completing the round-trip in time to file it in the Board's office by 5:00 p.m. on November 18, 1986. During that conversation Castelli gave Granado-Villar the information she requested so that she could complete the updated application form for him. Granado-Villar typed some of the information on a photocopy of an application and subsequently filled in another portion by hand. Castelli advised Granado-Villar to write the name of Monserrat Compano, a former- stewardess for Iberia Airlines on the outside of the envelope so that the envelope might be accorded special treatment. Upon contacting Iberia Airlines, Granado-Villar discovered that there were no flights from Miami to Madrid on November 17 and that the only option was to utilize an Eastern Airlines flight from Miami to New York and then a connecting Iberia flight from New York to Madrid. Granado-Villar placed the updated application in a manila envelope bearing only the names of Monserrat Compano and Petitioner Castelli on the outside. She took the envelope to Carmen Rojas, an employee of Eastern Airlines and a friend of hers. She explained that the envelope must be placed on the Eastern flight leaving for New York at 1:00 p.m. on November 17 so that it could subsequently be placed on the Iberia flight from New York to Madrid. Rojas took the envelope to the flight crew for the Eastern flight to New York and gave it to one of the stewardesses, telling her to take the envelope and deliver it to the Iberia ticket counter at John F. Kennedy Airport in New York. Rojas gave the stewardess no instructions other than to simply leave the envelope at the Iberia ticket counter in New York. No arrangements were made by Rojas, Granado-Villar, or Castelli for getting the envelope from the Iberia ticket counter in New York to the Iberia flight to Madrid. During the morning of November 18 Petitioner Granado-Villar arranged for a delivery service to pick up an envelope from her at the hospital where she is employed and deliver it to Respondent in Tallahassee with specific directions that the envelope must be on the Piedmont Airlines flight leaving Miami for Tallahassee at 5:00 p.m. on November 18, 1986. Also on the morning of November 18 Petitioner Granado-Villar made arrangements with Erma Shockley, an employee at Miami Children's Hospital and a notary public, for Shockley to notarize Castelli's signature on his application later that day. On November 18, 1986, Petitioner Granado-Villar took to Shockley a completed application form. She told Shockley that the signature on the form was that of Petitioner Castelli and that Castelli had signed the application form on the previous day at the airport in Madrid. Although both Shockley and Granado-Villar knew that Castelli was not present, Shockley notarized the signature on Castelli's application. Further, Shockley and Granado-Villar decided that Shockley would date her notarization as having been done on November 17 in order that the date of the notarization would be consistent with the date of the signature. After the document was notarized, Petitioner Granado-Villar went to the emergency room area to await the arrival of the courier that she had previously arranged. The courier arrived within 5 to 10 minutes thereafter. Edna Evenson, a courier for Crown Courier Services, Inc., picked up an envelope containing an application for Petitioner Castelli from Petitioner Granado-Villar at Miami Children's Hospital, 6125 Southwest 31st Street in Miami on November 18, 1986. She gave Petitioner Granado-Villar a receipt for that package. Evenson subsequently delivered it to Piedmont Airlines at Miami International Airport at approximately 3:49 on November 18, 1986, for transport on Piedmont flight number 814 from Miami to Tallahassee, departing at 5:00 p.m. Piedmont's airbill, which corroborates the testimony of Evenson and the records of Crown Courier Services, Inc., shows that Piedmont received the package from Evenson for shipment on flight 814 to Tallahassee at 3:47 p.m. on November 18, 1986. On November 19, 1986, at 9:00 a.m., C. Prine signed a Sonicair receipt for a package containing Castelli's 1986 licensure application. The Sonicair shipping form contained information including the shipper's name--'D Granado-Villar"; the recipient--"Department of Professional Regulation"; the date"11/18/86"; a job number/bill of lading number "A58408"; original airport code-- "MIA" and destination airport code "THL." The spaces provided for commercial value and declared value are blank, and other than the time of receipt written by C. Prine, there is no time indicated on the Sonicair shipping form. The signature and designation "#10" for the shipper's signature and pickup agent on the Sonicair air shipping form were written by Edna Evenson, the courier for Crown Courier Services, Inc. Accompanying the application from Petitioner Castelli was a hand written letter dated 11/18/86 from Petitioner Granado-Villar. Petitioner Castelli's application bears a signature which was notarized by Erma M. Shockley in Dade County, Florida, with a date of November 17, 1986. The notarization states that the document was subscribed and sworn to before Shockley on the date of the notarization. On November 20, 1986, Petitioner Castelli was notified that he was required to make a personal appearance before the Board at its November 22, 1986 meeting in Tampa. He failed to appear. Petitioner Granado-Villar was also notified on November 20, 1986, that she was required to make a personal appearance on November 22, 1986, and she did appear. At the proceeding on November 22 Dorothy Faircloth, Executive Director of the Board, specified the concerns of the Board's staff regarding Petitioner Castelli's application. The staff questioned whether the application had actually been received in Spain and completed by Castelli and returned to Granado-Villar for delivery in Tallahassee in such a short timespan. It also appeared that the signature of Castelli on the application did not match his signature on previous applications and documents. The staff further questioned how the application could have been notarized in Dade County, Florida, while Castelli was in Spain. Petitioner Granado-Villar testified under oath at that proceeding that the application did make the trip from Miami to New York to Madrid to Miami to Tallahassee and that the signature on the application was that of Castelli. She admitted completing part of his application and arranging for a notary public who was very familiar with Castelli to notarize his application in Miami after she received it from Castelli who remained in Spain. Although Granado-Villar testified before the Board that Shockley was "well acquainted" with Castelli, it was established at the final hearing in this cause that Shockley and Castelli knew each other only incidentally. Some months earlier, Shockley notarized a copy of a document belonging to Castelli to be a true copy of the original, and they once passed each other in the hall at Miami Children's Hospital. Shockley had never before notarized Castelli's signature. Petitioner Granado-Villar's testimony before the Board and testimony at the final hearing is corroborated by that of Petitioner Castelli at the final hearing. According to them, on November 17, 1986 Castelli drove from Seville, Spain, to Madrid, Spain, where he found the envelope containing his application waiting for him at the Iberia ticket counter in the Madrid airport. He signed the application, placed it back in the envelope, and gave it to a passenger on Iberia flight number 965. He instructed that passenger to give the envelope to a woman whom he described (Petitioner Granado-Villar). He advised the passenger that if the woman were not there to meet her when she "cleared customs," then the passenger was to take the envelope to the Iberia ticket counter in Miami International Airport. Castelli later telephoned Granado-Villar to inform her that the application would be on Iberia flight number 956 or 965 arriving in Miami at 4:00 p.m. Granado-Villar left the hospital to go to the airport at approximately 3:30 p.m. arriving there at approximately 4:00 p.m. She went to the Iberia ticket counter where she picked up the envelope which now bore her name. She drove back to Miami Children's Hospital, parked her car, and went directly to Shockley's office arriving there between 4:20 and 4:30 p.m. She had Castelli's signature notarized. She then went to the emergency room area and waited approximately 5 to 10 minutes for Evenson to arrive. Evenson arrived at the hospital at approximately 4:40 p.m., completed the necessary paperwork, and left. The testimony recited in this finding of fact is specifically rejected as being incredible. According to flight arrival information maintained by the United States Customs Service, Iberia flight number 965 had a "block time" in Miami of 4:05 p.m. on November 18, 1986. Block time signifies the actual time that an aircraft comes to a complete halt at its arrival gate, and that time is provided to the Customs Service by the airlines as required by the United States Government. Although Petitioners presented evidence that Iberia Airlines recorded in the form of a telex its "official" block time to have been 3:55 p.m., Iberia Airlines' "official" block time is specifically rejected in favor of the block time it gave to the United States Government on the general declarations form required by law to be filed by it. It normally takes from 15 to 30 minutes for a passenger arriving on an international flight to "clear" the customs area at Miami International Airport. That time frame is extended by whatever time it takes for a passenger to disembark from an aircraft the size of an international flight and is also extended if the passenger is not an American citizen and must also go through immigration clearance. No evidence was offered as to how long it took a passenger arriving at approximately 4:00 p.m. on November 18, 1986, to clear customs. Keeping in mind the fact that it took Granado-Villar one-half an hour to drive from the hospital to the airport, it is physically impossible for Granado-Villar's and Costelli's version of the movement of that envelope containing his application to be true. Except for the testimony of Granado- Villar and Costelli there is no evidence to show that the application ever reached Castelli in Spain. Carmen Rojas only sent it to the Iberia ticket counter at Kennedy Airport in New York. Even if the application reached Castelli, it is impossible that Granado-Villar retrieved the envelope containing the application from the Iberia Airlines ticket counter at Miami International Airport at the same time that the Iberia aircraft was arriving at the gate. There is no evidence that the unknown passenger was the first person off the aircraft, that she hastened to be the first in line at customs, that she was able to clear customs without going through the immigration check point in the minimum time of 15 minutes, or that she hastened to wherever the Iberia ticket counter might be in relationship to customs in order to have left the envelope in the custody of the persons at the Iberia ticket counter in order that Granado-Villar could retrieve that envelope and be back at Miami Children's Hospital and in Shockley's office by 4:20 or 4:30 p.m. Even if it could have happened as Granado-Villar testified, Evenson could not have picked up the package at 4:40 p.m. accomplishing the one-half hour drive to the airport in order to check in the package at Piedmont in time for that package to have been placed on an airplane which left at 5:00 p.m. The application which was delivered to Piedmont Airlines for transmittal to Tallahassee by Evenson prior to the arrival in Miami of Iberia flight number 965 was not the same application as the one Granado-Villar sent to Castelli in Spain for his signature. The application which the Board received contained information regarding Castelli's medical education and surgical residency that conflicted with the application submitted by Castelli in 1985 and was incorrect. Even Castelli's height was reported to be different on those applications. In addition to containing incorrect information, the application submitted on behalf of Castelli in November of 1986 did not contain his signature and was not properly notarized. Petitioner Granado-Villar submitted a fraudulently prepared application on behalf of Castelli and attempted to perpetuate the subterfuge by her testimony before the Board and by her testimony at the final hearing in this cause. Petitioner Castelli participated fully in the submittal of his fraudulently prepared application to the Board. Even if an application had reached him in Spain for his signature at the airport in Madrid as he testified, that application was not notarized and it contained incorrect information at the time that he signed it.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that Final Orders be entered denying the applications of Petitioner Guiseppe Castelli and of Petitioner Deise C. Granado-Villar for licensure by examination as physicians in the state of Florida. DONE AND RECOMMENDED this 22nd day of January, 1988, at Tallahassee, Florida. LINDA M. RIGOT, 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 22nd day of January, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NOS. 87-1594 and 87-2194 Petitioners' proposed findings of fact numbered 1-3, 11, and 15 have been adopted either verbatim or in substance in this Recommended Order. Petitioners' proposed findings of fact numbered 4-8, 10, 12, 13, 24, and 25 have been rejected as not being supported by the weight of the credible evidence. Petitioners' proposed findings of fact numbered 9, 14, 16, 18, 23, and 26 have been rejected as being contrary to the weight of the credible evidence in this cause. Petitioners' proposed finding of fact numbered 17 has been adopted either verbatim or in substance in this Recommended Order except for the third sentence contained therein which is rejected as being contrary to the weight of the credible evidence in this cause. Petitioners' proposed findings of fact numbered 19, 20, and 28 have been rejected as being irrelevant to the issues under consideration herein. Petitioners' proposed findings of fact numbered 21 and 29 have been rejected as being subordinate. Petitioners' proposed findings of fact numbered 22 and 27 have been rejected as not constituting findings of fact but rather as being either argument of counsel or mere recitations of the testimony. Respondent's proposed findings of fact numbered 1-34 have been adopted either in substance or verbatim in this Recommended Order. COPIES FURNISHED: Dorothy Faircloth, Executive Director Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Deborah J. Miller, Esquire One Biscayne Tower, Suite 2400 Two South Biscayne Boulevard Miami, Florida 33131 Allen R. Grossman, Esquire Department of Legal Affairs Suite 1601, The Capitol Tallahassee, Florida 32399-1050 William O'Neil, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
Findings Of Fact The airport security officers are principally involved in enforcing parking regulations and directing traffic at the airport. Although they carry basically the same equipment as do Orlando City police officers, they wear blue shirts and the Orlando police wear brown shirts. Further, the Orlando police are civil service, and the airport guards are not. There was some testimony that the security officers are not sworn officers, and do not have the peace officer's powers of arrest; however, those so testifying demonstrated less than a full understanding of the meaning of arrest. These security officers are sworn in by the mayor of the city, are issued badges, guns, handcuffs, nightsticks, mace, radios, etc.; and Exhibit 51, General Rules for Airport Security Officers contains a section on arrest and provides that arrests shall be made in the manner provided for peace officers. Accordingly, it seems clear, despite the apparent opinion of the Orlando police department to the contrary, that airport security officers are peace officers within the meaning of the Florida Statutes. Several witnesses testified to numerous interfaces between the security officers and other airport employees such as directing traffic while emergency road, or other, repairs are being made; providing security when a gate must be kept open for repairs; and assisting in turning off valves, placing or removing barricades when emergency conditions require. The Operations Technician exercises certain authority over security officers during emergencies or at nighttime when other supervisory personnel are off duty. The exercise of this authority is normally through the duty security sergeant. Airport security officers stand duties on 8 hour shifts as do Operations Technicians and Communications clerks. No testimony was presented that maintenance personnel stand similar shifts, but, it would be presumed that if not actually on duty during the 24 hour day, certainly some of these employees are on immediate call during the period normally regarded as other than normal working hours. Security Officers are paid on a biweekly schedule as are some other airport personnel; most maintenance employees are paid on a weekly basis. The pay scales of security officers and other airport employees proposed to be included in the appropriate bargaining unit are comparable. Some of these employees have a higher pay grade and others a lower pay grade than that of the security officers. There is little, if any, interchange in jobs or duties between security officers and maintenance personnel; nor is there interchange of jobs between electricians and plumbers, for example, within the Maintenance Division. The City and County (Orange) have approved the formation of an airport authority to operate both Herndon Airports and Orlando Jetport, and await legislative approval from the State. When approved and established, the authority will be the public employer for all airport employees. In a separate representation hearing, Laborer's International Union, Local 517, in a proceeding involving so called blue collar workers employed by the City of Orlando, has disclaimed any interest in including airport employees in their proposed unit. Disputes have arisen in the past regarding inspecting and servicing vehicles used by security officers, and the City takes the position that if security officers and maintenance personnel are not in the same bargaining unit a greater likelihood of jurisdictional disputes exists. The City takes the position that having fewer unions with which to bargain will simplify or reduce the problems associated therewith and permit more efficient administration. Such benefit would perhaps be more significant when, and if, the airport authority is created. Concrete facts to support this position could not be presented since there is no history of collective bargaining at the City airports; however, it would not be unreasonable to conclude that reaching bargaining agreements with two unions would be easier than reaching agreements with three.
Findings Of Fact Based upon all of the evidence, the following findings are fact are determined: In this examination for licensure challenge, petitioner, Mason L. Flint, contends that he is entitled to a higher score on the March 1994 deputy pilot examination for the Port of Jacksonville. The examination is administered by the Department of Business and Professional Regulation (DBPR) on behalf of respondent, Board of Pilot Commissioners (Board). Although the original petition challenged the grade in twelve respects, petitioner now contends that only two items are in issue, item 21 relating to the local knowledge part of the examination, and item 270 relating to the aids to navigation part of the examination. Both are true-false questions. Unlike the more than fifty other professional licensure examinations administered by the DBPR, the seven-part pilot examination requires a candidate to achieve a minimum passing grade on each part, but candidates doing so then compete with each other for vacant positions. In other words, if only one position at a particular port is open, the candidate achieving the highest score above the minimum passing grade is the only candidate receiving a license. In this case, three deputy pilot positions were available at the Port of Jacksonville, and thus the candidates having the three highest scores among those exceeding the minimum passing grade would be given a license. Petitioner finished sixth on the original grading, but after having his examination regraded by the Board prior to hearing, he was ranked number four. By this challenge, he seeks to have his grade changed on items 21 and 270 so as to raise his ranking to number three. In order to preserve the confidentiality of Item 21 for future examinations, it is suffice to say that the item required a response of true or false concerning limitations on vessels leaving the Talleyrand Docks in Jacksonville, Florida. The examination answer key shows true as the correct response. In preparing all questions pertaining to local knowledge, including item 21, the Board's consultant used the U. S. Coast Pilot, a compilation of operational guidelines governing the movement of vessels in the St. Johns River (and Port of Jacksonville). The specific source of authority for item 21 was paragraph (16) on page 153 of the 1993 edition of the U. S. Coast Pilot. That paragraph reads in pertinent part as follows: (16) Outbound vessels: Vessels with a draft of over 23 (sic) feet sailing between Main Street Bridge to, and including, U. S. Gypsum Co. Pier, shall get underway after 1-1/2 hours after flood current with a cut off time at the beginning of ebb current . . . Because Talleyrand Docks lies between the Main Street Bridge and the U. S. Gypsum Company Pier, this paragraph has application to vessels leaving those docks. The 1993 version of the U. S. Coast Pilot contained a typographical error. Rather than "23" feet, the guidelines should have read "32" feet. To correct this error, paragraph (16) was revised in mid-March 1994, or the same month the examination was given, to provide that any vessel drawing more than 32 feet would be subject to the above movement restrictions. However, candidates were advised that only revisions to the U. S. Coast Pilot through January 1, 1994, would be included in the March 1994 examination. Besides the limitation described in paragraph (16), two other paragraphs on the same page of the U. S. Coast Pilot made reference to the correct 32 foot limitation. In addition, the Guidelines of Vessel Movements on St. Johns River, which form the basis for the data in the U. S. Coast Pilot, used the correct 32 foot limitation. Candidates familiar with those provisions should have been on notice that a typographical error existed in paragraph (16). Although the Board's suggested response is arguably correct, the more persuasive evidence shows that the statement in item 21 was confusing and unclear due to the typographical error in the U. S. Coast Pilot and the conflicting provisions on the same page of the source material. Thus, item 21 does not reliably measure the specified area of competency. Under these circumstances, a candidate should be given credit for either a true or false response, or alternatively, the question should be discarded in calculating a candidate's final score. Accordingly, petitioner's grade should be adjusted in this respect. Petitioner has also contended that only a false response is correct since the question implies that a restriction exists because of its use of the words "up to the beginning of ebb current." The evidence shows, however, that a candidate could reasonably reject that suggested implication and properly make a true response. Item 270 requires a true or false response to a statement regarding identifying marks or buoys marking a channel. The item identifies a set of conditions and then states that such a marking "could" properly be made. The examination answer key shows true as the correct response. The primary source of authority for item 270 is 33 CFR 62.43. According to that federal regulation, buoys marking the side of a channel (lateral aids) are always a solid color, and all solid color buoys marking a channel are numbered. The regulation goes on to provide that, in addition to a number, all solid color numbered buoys may also carry a letter suffix to aid in their identification, or to indicate their purpose. They cannot, however, be identified by letter only, but only by number and letter. Because the more credible and persuasive evidence shows that the question, as stated on the examination, clearly suggests that only a letter could be used for identification of a sidemark buoy, the correct response should be false. Therefore, petitioner should be given credit for his answer. The record is not altogether clear as to how changing petitioner's overall grade will impact his ranking. According to the DBPR psychometrician who is in charge of the pilot examination development, both petitioner and the third ranked candidate gave the same response on one of the challenged questions. On the other item, the two gave different responses, but if either response is deemed to be a correct response, it would have no bearing on their overall ranking. The pychometrician added that if an item is challenged and credit given to the protesting candidate, the answer key is changed and all candidates' scores are adjusted to reflect the change in the answer key.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered by the Board regrading petitioner's examination consistent with the above findings and conclusions. DONE AND ENTERED this 18th day of January, 1995, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of January, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-5327 Petitioner: 1-2. Partially accepted in finding of fact 1. 3. Partially accepted in finding of fact 2. 4-5. Rejected as being unnecessary. 6-8. Partially accepted in finding of fact 2. Partially accepted in finding of fact 12. Rejected as being unnecessary. Partially accepted in finding of fact 2. Partially accepted in finding of fact 12. Partially accepted in finding of fact 3. 14-27. Partially accepted in findings of fact 3-8. 28-39. Partially accepted in findings of fact 9-11. Respondent: 1. Partially accepted in finding of fact 1. 2. Partially accepted in finding of fact 2. 3. Partially accepted in finding of fact 3. 4. Partially accepted in finding of fact 4. 5. Partially accepted in finding of fact 5. 6. Partially accepted in finding of fact 7. 7. Partially accepted in finding of fact 8. 8. Partially accepted in finding of fact 9. 9-11. Partially accepted in finding of fact 10. 12. Rejected. See finding of fact 11. Note: Where a proposed findings has been partially accepted, the remainder has been rejcted as being unnecessary, irrelevant, subordiante, not supported by the evidence, or cumulative. COPIES FURNISHED: Mason L. Flint 1605 Brookside Circle East Jacksonville, Florida 32207 Wellington H. Meffert, II, Esquire 1940 North Monroe Street, Suite 60 Tallahassee, FL 32399-0792 Jack L. McRay, Esquire 1940 North Monroe Street, Suite 60 Tallahassee, FL 32399-0792 Susan J. Foster, Executive Director Board of Pilot Commissioners 1940 North Monroe Street Tallahassee, FL 32399-0773
Findings Of Fact 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
