The Issue Whether subject signs violate state and federal laws and should be removed.
Findings Of Fact The following described signs are located in agriculture zones and violate set-back requirements, each being closer than 660 feet from the nearest edge of the road right of way. Copy on each sign advertises the Camp-A-Wyle Lake Resort. U.S. 19 5.29 miles South of Hernando/Citrus City Line U.S. 19 2.61 miles North of State Road 50 U.S. 19 6.04 miles South of Hernando/Citrus City-Line U.S. 19 8.83 miles South of Hernando/Citrus City Line Notice of violation regarding subject signs was properly sent by Complainant and received by Respondent. No application was made or permit for erecting subject signs issued and the signs have no permit tags placed on them.
The Issue Whether Respondent's sign, a nonconforming sign, was destroyed under the provisions of Chapter 479, Florida Statutes, and the federal laws so that said sign could not be repaired without first securing a permit from the Department of Transportation.
Findings Of Fact A sign owned by the Respondent with Permit No. 168-14 for 1974 with a copy: Silver Springs; location: 1 1/2 miles west of Grand Ridge City, limits; Highway: U.S. 90, was destroyed by a storm in January of 1975. The face of said sign was blown down and the structure was scattered over the north side of U.S. 90 which is across the street from the site of the original sign. Said sign was re-erected by the Respondent without first obtaining a permit and the copy on the sign was changed from the copy advertising Silver Springs to the present copy which advertises Salt Springs Campgrounds. The sign is in violation of Section 479.11(1), F.S., for the reason that it is nearer that 660 feet from the nearest edge of the right of way of a federal aid primary road.
Recommendation Remove subject sign. DONE and ORDERED this 7th day of May, 1976. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Philip S. Bennett, Esquire Office of Legal Operations Department of Transportation Haydon Burns Building Tallahassee, Florida 32304 William D. Rowland, Esquire 115 E. Morris Boulevard Winter Park, Florida
The Issue The issues to be decided in this case are those associated with the question of whether the Respondent is required to have a permit for the connection of his business property to State Road 206 or is exempt from that requirement. See Section 335.187, Florida Statutes. If he is required to have a permit the issue becomes the acceptability of his current drive, i.e., does it comply with the commercial use design criteria contemplated by Chapter 335, Florida Statutes, and further described in the Florida Department of Transportation "Policy and Guidelines for Vehicular Connections to Roads on the State Highway System," February, 1985, which was recognized and incorporated by reference through Rule 14- 15.013, Florida Administrative Code. These issues are raised through an alleged violation of the Florida Statutes and Florida Administrative Code set out in the Notice to Show Cause which was forwarded to Respondent from Petitioner leading to the formal hearing. The date of that Notice to Show Cause was July 18, 1989. Within the statement of violations there were also allegations concerning irregular signs as alleged under Section 479.11(8), Florida Statutes, associated with the commercial activities by Respondent and the unauthorized parking on the right-of-way at State Road 206 in violation of Section 337.406, Florida Statutes. These latter allegations were conceded by the Respondent at hearing and are resolved through those concessions.
Findings Of Fact At the time of the hearing Respondent operated a roadside fruit and vegetable stand at property adjacent to State Road 206 in St. Johns County, Florida. In addition to fruits and vegetables, by local ordinance of St. Johns County, Florida, he is allowed to sell poultry and fish. There is no indication that he has taken advantage of that opportunity other than to sell fresh shrimp from a cooler during 1989. In addition to these products he sells honeys, jellies, and jams. He also sells soft drinks from a dispensing machine. A mainstay in his business is peanuts which he sells fresh. Another product sold is pork skins. The drink machine that is described was added in March, 1989. Before that time he sold fountain drinks and cold drinks that were dispensed from a cooler. He has always had soft drinks available from the inception of his operation of the roadside stand. That began in March, 1985. At the time the Respondent purchased the property there was an operation ongoing whereby fruit was being sold on two tables. Respondent replaced those structures with a portable trailer which was anchored to the lot, and display and sell of fruit on a 16-foot table and use of an 8-foot table upon which tomatoes were displayed and sold. The trailer was used to store his products over night. The trailer described was a pop-up camper trailer. The principal products being dispensed at that time were peanuts, vegetables, and tomatoes. Through Ordinance No. 86-68, passed by St. Johns County, a copy of which may be seen as Respondent's exhibit No. 1, the property was recognized as C1, commercial intensive, with the conditions that the property would be limited to outdoor sale of produce, vegetables, fruit, poultry, and fish. It was also stated that there would be no access/egress to United States Highway 1, which is also known as State Road 5. This property is located at the intersection of State Road 5 and State Road 206. Present access/egress to the property is from State Road 206 and that has been the situation since Respondent purchased the property. The ordinance described dates from August 12, 1986. Over time Respondent has taken a number of steps to improve his business. In March, 1988, Respondent obtained permission from St. Johns County to place a storage shed on his property. In August of that year he obtained permission to install a metal awning or carport of dimension 18 feet by 45 feet which is anchored to the ground. At that same time he placed the body from an old milk truck on the property for purposes of cold storage. In March, 1988, he had received an electrical permit from St. Johns County. Prior to that time he did not have electricity. In the spring of 1989, a well was drilled to provide running water. Prior to that time Respondent used bottled water. Respondent's composite exhibit No. 2 admitted into evidence describes various permits obtained from St. Johns County. If Respondent was required to remove the structures on his property it could be done in three days. This goes to identify the nature of the structures and to demonstrate that they are not permanent fixtures to the realty. According to Respondent, whose testimony is accepted, the business that he is experiencing at present has remained fairly constant in dollar amounts. He does not sell as many peanuts as he did before. Concerning traffic, Respondent indicates, and his testimony is accepted, that the number of cars that are located at his business would be a maximum of 12 on a busy Sunday afternoon and that at most times there are one or two cars. The hours of the business are from 8:00 a.m. until 6:00 p.m. in the winter time and somewhat longer in the summer time. The business is open seven days a week. A rough description of the nature of the property by design may be found in the documents contained in Respondent's exhibit No. 2 admitted into evidence. The property is approximately 280 front feet and 280 feet at the rear with 41 feet on each side. The frontage runs approximately east-west on State Road 206 and one of the sides abuts State Road 5. The basic design of the driveway entrance from State Road 206 is also set out in those drawings. As Marshall W. Sander, engineer in the permit department for Petitioner in its St. Augustine, Florida, maintenance office, explains the driveway is an unimproved dirt shell connection. This is the same driveway that was there at the time that Respondent purchased the property and has remained in that state since that time. Notwithstanding Mr. Sanders' concern that the driveway is not up to current commercial business criteria for access/egress, there have been no accidents as a result of access/egress from the business. There are two turnouts or turn- ins into the property. Mr. Sander believes that at least one paved driveway is needed leading into the property. The dimensions of that drive would be 24-foot wide which allows a 12-foot wide lane in and a 12-foot wide lane out. This impression of Mr. Sander is drawn in the face of the Respondent's presenting himself at the office of Petitioner in St. Augustine, Florida, with an application and plan showing the intention to improve the property to include restrooms, a beer and wine cooler with parking on site. Under those circumstances Mr. Sander felt it necessary to improve the drive connection. At hearing there was no suggestion that restrooms are available on the premises or will be in the near future, nor was there any indication that a beer and wine cooler would be installed. Therefore it cannot be said that the basic nature of the business has changed from its inception to the present. Mr. Sander concedes that within the records of the Petitioner there are no indications that the business has increased by way of records concerning traffic flow or otherwise. His remarks about increased traffic at Dupont Center is not specific enough to gain a useful impression of that circumstance. Mr. Sander relies upon the observations of the State of Florida, Department of Health and Rehabilitative Services and the St. Johns County Public Health Unit as were testified to by George L. Sigman, Environmental Health Director II for that organization. He also spoke to certain records of the health unit which may be found as Petitioner's composite exhibit 1 admitted into evidence. Nothing about his testimony or that exhibit identifies a noteworthy change in the basic nature of the business from Respondent's establishment of the roadside stand in March, 1985 until the present. Throughout the existence of his business Respondent has operated without the benefit of a driveway permit issued by Petitioner.
Recommendation Based upon the consideration of the facts found and in view of the conclusions of law reached, it is, RECOMMENDED: By way of disposition of the Notice to Show Cause, that a Final Order be entered which recognizes the concessions made by the Respondent concerning the sign in question, calling for its removal if still in existence and his acknowledgment of the problem of parking on the right-of-way and which absolves the Respondent of any necessity to obtain a driveway permit. DONE and ENTERED this 9th day of March, 1990, in Tallahassee, Florida. CHARLES C. ADAMS 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 9th day of March, 1990. APPENDIX The following discussion is given concerning proposed facts. Petitioner' s Facts Paragraphs 1 and 2 are subordinate to facts found. The first sentence in Paragraph 3 is subordinate to facts found. The second sentence is contrary to facts found. The third sentence is subordinate to facts found. Sentences 4 and 5 depict testimony as opposed to suggesting fact finding. However, the last sentence in that paragraph is one upon which facts were found in the Recommended Order. Respondent' s Facts Paragraphs one and two pertain to withdrawal of the request for hearing concerning signs and parking and are not part of fact finding. The first sentence in paragraph 3 is subordinate to facts found. The remaining sentence is legal argument, as are paragraphs 4 and 5. Paragraphs 6-11 are subordinate to facts found. Paragraph 12 is not relevant. Paragraphs 13 and 14 are subordinate to facts found. COPIES FURNISHED: Vernon L. Whittier, Jr., Esquire Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street Tallahassee, FL 32399-0458 Leo O. Myers, Esquire Post Office Box 1621 Jacksonville, FL 32201 Ben G. Watts, Secretary Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street Tallahassee, FL 32399-0458
The Issue The issue is whether Respondent discriminated against Petitioner on the basis of Petitioner's race in violation of the Florida Civil Rights Act, Chapter 760, Florida Statutes (2008).1
Findings Of Fact Petitioner is an "aggrieved person" within the meaning of Subsections 760.02(6) and (10). Petitioner is a 41-year-old African-American male, who was terminated from his employment with Respondent on September 9, 2008. Respondent is an "employer" within the meaning of Subsection 760.02(7). Respondent is a company engaged in the business, in relevant part, of distributing food from a warehouse in Fort Myers, Florida. Respondent employed Petitioner as a warehouse worker from some time in the fall of 2006 through September 9, 2008. On September 9, 2008, Respondent terminated Petitioner's employment. A preponderance of the evidence does not show that Respondent terminated Petitioner's employment because of Petitioner's race. Rather, a preponderance of the evidence shows that Respondent terminated Petitioner's employment for non-discriminatory reasons. Petitioner worked the evening shift from 3:00 p.m. until some time between 10:00 p.m. and 1:00 a.m., depending on the requirements for unloading trucks each day and manpower availability. Mr. Courtney Ward supervised the evening shift. All other supervisors left the warehouse by 6:00 p.m. each workday. In the fall of 2008, product shortages began to appear at the warehouse. Management investigated the shortages and focused the investigation on the evening shift because that shift was relatively under-supervised. During the investigation, corporate security officers interviewed all employees in the evening shift, including Petitioner; Mr. Ward; and warehouse workers, Mr. Don Kane and Mr. Mike Petersen. All of the named workers except Petitioner are Caucasian. On September 4, 2008, each warehouse worker submitted a written statement regarding the worker's knowledge or participation in product shortages. Petitioner admitted in his statement to taking product from the floor regularly and trading it once or twice for marijuana. Petitioner also admitted to drinking beer on the job. It is undisputed that Petitioner knew that taking product and drinking beer were offenses for which Petitioner could be terminated from his employment. The practice had been tolerated by a previous supervisor of Mr. Ward. However, the new supervisor had issued a memorandum advising employees to terminate the practice, but Petitioner continued the practice. On the same day that Respondent terminated Petitioner's employment, Respondent terminated the employment of Mr. Ward. Mr. Ward admitted in his statement to drinking beer on the job and to knowing that Petitioner consumed alcohol and used marijuana on the job. Even though Mr. Ward did not admit to taking product or using marijuana, Respondent held Mr. Ward to a "higher standard" because Mr. Ward was a supervisor. Respondent did not terminate either Mr. Kane or Mr. Petersen from employment. However, Respondent had valid, non-racial reasons for its action. Mr. Kane did not admit in his statement to taking product off the floor, and Respondent had no independent proof to dispute the denial. While Mr. Kane did admit to consuming alcohol on the job, there was no independent proof that Mr. Kane used marijuana on the job. Respondent placed Mr. Kane on "final warning" for one year. The final warning required Mr. Kane to submit to mandatory counseling in the company's Employee Assistance Program and to submit to random drug and alcohol testing. Mr. Petersen was "cleared from any involvement" in the product shortages during the investigation. He was also "cleared" of any allegations of drinking on the job.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order finding Respondent not guilty of the allegations against Respondent and dismissing the Charge of Discrimination and Petition for Relief. DONE AND ENTERED this 13th day of July, 2010, in Tallahassee, Leon County, Florida. S DANIEL MANRY 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 13th day of July, 2010.
The Issue The issues in this case are: a) whether White Construction Company, Inc. timely filed its requests for hearing with the Department of Transportation in response to notices of intent to suspend White's certificate of qualification because of alleged delinquencies on State Project Nos. 97770-3305 and 97770-3306 and; (b) if not, whether the doctrine of equitable tolling, waiver, estoppel or other legal or equitable principles apply under the facts of this case such that White is entitled to a formal hearing on the merits of the department's determination of delinquency.
Findings Of Fact White Construction Company, Inc. (White) is a contractor prequalified to bid on Department of Transportation (Department) construction projects in excess of $250,000. It was incorporated in 1951 and maintains a home office in Chiefland, Florida. White was the successful bidder on three projects that are included within the Department's Seminole Expressway Project in Seminole County which is being funded and supervised by the Department's Turnpike Office. The projects are three contiguous segments and are identified as State Project Nos. 97770-3304, 97770-3305 and 97770-3306. The Seminole Expressway Project consists of twelve separate projects. HNTB Corporation is the Department's Resident Engineer for Project Nos. 97770-3304 and 97770-3306 and maintains an office at 2927 US 17-92 in Sanford. ICF Kaiser Engineers is the Resident Engineer for Project No. 97770-3305 and maintains an office in a trailer at the job site. The Resident Engineers are the main liaison between White and the Department on the Project. The Department's Turnpike Office maintains a local office at 112 Beider Avenue in Casselberry. The Resident Engineers are supervised from that location by Mr. Gary Geddes, the Department's Program Manager, in conjunction with Mr. Ray Daniel, an Area Engineer who is employed by Post, Buckley, Schuh and Jernigan, which is under contract with the Department. The Resident Engineers, though employed by private consultants, serve as the Department's representatives and are delegated the title of Engineer of the Project for the Department. On July 30, 1993, the Department issued notices of intent to suspend White's certificate of qualification because of alleged delinquencies in White's performance on State Project Nos. 97770-3305 and 97770-3306. The Department's notices of intent to suspend were received by White at its Chiefland offices on August 3, 1993. Each notice contained the following language: Pursuant to Florida Administrative Code Rule 14-23 and in accordance with this determination, we intend to suspend your Certificate of Qualification and those of your affiliates. This suspension will become conclusive final agency action unless you request an Administrative Hearing within ten (10) days of receipt of this notice. Your request for a hearing shall be in writing and shall be filed with the Clerk of Agency Proceedings, Mail Station 58, Haydon Burns Building, 605 Suwanee Street, Tallahassee, Florida 32399-0450 within ten days of receipt of this notice. A copy of the request for hearing shall also be provided to the State Construction Engineer, Mail Station 31, Haydon Burns Building, 605 Suwanee Street, Tallahassee, Florida 32399-0450. The request for hearing shall include: The name and address of the party making the request; A statement that the party is requesting a formal or informal proceeding; and All specific facts and circumstances which the Contractor believes legally excuses the unsatisfactory progress on the project. A request for hearing is filed when it is delivered to and received by the Clerk of Agency Proceedings. If a hearing is timely requested after the receipt of the notice of the intent, the hearing shall be held within 30 days after receipt by the Hearing Officer of the request for hearing in accordance with 337.16 of the Florida Statutes. In addition to a request for an Administrative Hearing and in accordance with Article 8-8.2 of the Special Provisions of this project, you are hereby given opportunity to request an extension of allowable contract time in an amount of cause progress on this contract to be acceptable or to submit other information to show that progress of work is not delinquent. (Petitioner's Exhibit #7, emphasis added) White forwarded the two Notices of Intent to its attorneys, Cummings, Lawrence and Vezina, P.A. On August 11, White's attorneys sent to Mr. Burney Keen of White Construction, via Federal Express Priority Morning Delivery, a package containing originals and copies of requests for formal hearing and for contract time extensions for both projects, with written instructions to have the requests executed and delivered to the Clerk of Agency Proceedings and James Lairscey, via Federal Express, and to hand deliver copies to the Project Engineers no later than August 13. The package from White's attorneys did not arrive at White's offices until late in the afternoon on August 12, when Mr. Keen was no longer in the office. Mr. Keen did not receive the package from White's counsel until the morning of August 13. Notwithstanding the Priority Delivery designation, Federal Express delivery to White's Chiefland office occurred between 3:00 p.m. and 5:00 p.m. Mr. Keen instructed his secretary, Patti Cook, to have the documents executed by an officer of White, and to have them hand-delivered to the Department's Resident Engineers and delivered to the Department's Tallahassee offices by Federal Express, in accordance with counsel's instructions. On Friday afternoon, August 13, 1993, White hand-delivered its request for hearing, along with its requests for contract time extension, to the Department's two Resident Engineers. On that same day, White sent out a package containing copies of these documents by Federal Express addressed to Mr. J. Lairscey, 605 Suwanee Street, MS 58, Tallahassee, Florida 32399. Mr. Keen and Ms. Cook both believed that J. Lairscey was the Clerk of Agency Proceedings. This is not surprising since at his deposition, J. Lairscey, who is the State Construction Engineer for the Department, did not know who the Clerk of Agency Proceedings was either. Standard operating procedure for the Project established by the Department at the preconstruction conference required that all correspondence from White be sent to the Department's Resident Engineers. Mr. Keen believed it to be of utmost importance to timely hand-deliver the requests for formal hearing to the Department's Resident Engineers. Although White had filed notices or requests with the Department Clerk in the past, this was Mr. Keen's first experience with the delinquency filing procedures. The package arrived at the Department's offices in Tallahassee on Saturday, August 14, 1993, and was delivered to Mr. Lairscey's office, MS 31, and not MS 58 (which is the Clerk of Agency Proceedings' Mail Station and office) on the morning of August 16, 1994. The package delivered to ICF Kaiser contained an original letter from White addressed to Michael Landry, which requested an extension of time on Project No. 97770-3305 and referred to an enclosed request for hearing. The package also contained an original letter addressed to: Clerk of Agency Proceedings, 605 Suwanee Street, MS 58, Tallahassee, Florida 32399. The letter to the Clerk requested a formal hearing in response to the Department's July 30th Notice of Intent and referred to three large appendices which were enclosed. Upon its receipt on August 13, 1993, a secretary and the office engineer at ICF Kaiser's office recognized that they received misdirected originals of important legal documents. The office engineer and secretary telephoned Ray Daniel, the Department's Area Engineer, at the Department's office in Casselberry and told him that they had received from White what looked like an original legal document, which they did not think they were supposed to have. They questioned whether the documents should be redirected to the Department. Mr. Daniel instructed them not to send the documents to him. Mr. Daniel knew that requests for hearing should be sent to the Clerk of Agency Proceedings in Tallahassee, but was not sure that a mistake was made and took no action regarding the request for hearing. The documents were filed away at ICF Kaiser until August 27, 1993, when Michael Landry followed up an inquiry from Ray Daniel and had the originals forwarded to the Turnpike's Casselberry office. The package delivered to HNTB Corporation also on August 13 contained an original letter from White addressed to Ralph Burrington which requested an extension of time on Project No. 97770-3306 and referred to an enclosed request for hearing. Like its counterpart, this package also contained an original letter addressed to: Clerk of Agency Proceedings, 605 Suwanee Street, MS 58, Tallahassee, Florida 32399. The letter to the Clerk requested a formal hearing in response to the Department's July 30th Notice of Intent and referred to three large appendices which were enclosed. The Resident Engineer at HNTB, Mr. Ralph Burrington, did not note that the documents were originals and filed them away. Mr. Burrington's normal procedure is to forward such documentation by facsimile to the Department's Casselberry office, but in this instance he feels he made a mistake. The package delivered to the Department's Tallahassee offices on Saturday, August 14, 1993, contained one signed photocopy of the requests for formal hearing for Project No. 97770-3305 addressed to the Clerk of Agency Proceedings, unsigned copies of the requests for formal hearing in Project Nos. 97770-3305 and 97770-3306 addressed to the Clerk of Agency Proceedings, as well as copies of the request for time extension for Project Nos. 97770-3305 and 97770-3306 and appendices. The documents were received by J. Lairscey on Monday, August 16, 1993, and were filed away until they were inspected on August 27, 1993, as a result of an inquiry by Ava Parker, a Department attorney. Sometime before August 27, 1993, Ava Parker, as a result of an inquiry from Gary Geddes, the Department's Program Manager, began to investigate whether White had filed its requests for hearing. Ms. Parker first checked with the Clerk of Agency Proceedings and was informed that nothing had been filed at that location. Ms. Parker then contacted Charles Peterson, the Department's Area Construction Engineer, to discern whether White had filed a request for hearing. Mr. Peterson searched his files and the Department's central files; he questioned various people in the Department's Tallahassee office and telephoned Ray Daniel in the Department's Casselberry office. Ray Daniel told Mr. Peterson that he had no knowledge concerning White's requests for hearing and no idea where they were. Mr. Daniel in fact knew at that time that White had delivered its requests for hearings to both Resident Engineers on August 13, based upon previous conversations with the Department's Resident Engineers and office staff. Mr. Peterson later discovered from Jimmy Lairscey that Mr. Lairscey had received the requests for hearing but they had been filed away. On Friday, August 27, 1993, Joe Lawrence, counsel for White, telephoned Ava Parker to discuss consolidation of the hearings and discovery. Ms. Parker advised White's counsel that no requests for hearing had been filed with the Clerk in response to the two Notices of Intent. Ms. Parker knew prior to her conversation with counsel for White that the requests had not been filed with the Clerk of Agency Proceedings, yet made no attempt to contact White or its counsel to notify them that the Clerk had not received the request. On Monday, August 30, 1993, copies of the requests for hearing were delivered to the Department's Tallahassee offices from counsel for White, via Federal Express addressed to Ava Parker and Clerk of Agency Proceedings, Florida Department of Transportation, 605 Suwanee Street, MS 58, Haydon Burns Building, Tallahassee, FL 32399-0450. The documents were received by Ms. Parker who delivered the requests for hearing to the Clerk and they were stamped in by the Clerk of Agency Proceedings on that same date. The Clerk of Agency Proceedings' function is to docket and maintain a record of documents and to send a copy of any requests for hearing in contractor suspension cases to the legal section and to Jimmy Lairscey. The Department's standard procedure after receipt of requests for hearing and contract time extension is to have the documents reviewed by Jimmy Lairscey and the Project Resident Engineer to determine whether the time extension should be granted. The legal section then determines whether to send the matter to the Division of Administrative Hearings. The Department's purpose in soliciting a request for contract time extension in conjunction with its Notice of Intent to Suspend is to afford the contractor the opportunity to cure the delinquency. The Department, prior to taking action on the request for hearing, reviews the time extension request to determine whether it may obviate the need for further delinquency proceedings. The Department's Resident Engineers are primarily responsible for evaluating and making recommendations concerning time extension requests. It is generally after the Department makes a determination concerning the appropriateness of the request for contract time that it proceeds to act upon the request for hearing. The Department did not deny White's request for contract time extension until August 30, 1993, the same date that White's requests for hearing were docketed in by the Clerk. The Department's review, analysis and decision can take up to five months. The delay in docketing the requests for hearing did not, therefore, delay the process. There was no prejudice to the Department by White's delivery of its requests for hearing to the Department's Resident Engineers on August 13, 1993, rather than to the Clerk of Agency Proceedings. There was no harm to the Department by Jimmy Lairscey's receipt of White's requests for hearing on Monday August 16, 1993, rather than the Clerk receiving it on Friday, August 13, 1993. The Department was aware, prior to and on August 13, 1993, that White disputed the Department's determination of delinquency on State Project Nos. 97770-3305 and 97770-3306. The Department expected White to file requests for formal hearing challenging the Department's determination of delinquency on State Project No. 97770-3305 and 97770-3306. White had verbally notified the Department prior to August 13 that it was challenging the delinquency notices. No evidence established any prejudice or harm to the Department from the Clerk's receipt of White's requests for hearing on August 30, 1993 rather than August 13, 1993. White will be severely prejudiced if not afforded a hearing, and therefore automatically declared delinquent, because it will be precluded from bidding and acquiring much needed additional work. White's work is primarily for the Department, in all phases of highway construction. At the time of hearing White had Department contracts of approximately $100 million, which contracts carry over a several year period, and it employed approximately 500 people. No culpability or blame can be ascribed to either party in the series of gaffes surrounding the filing of White's requests for hearing. Mr. Keen, a novice to the process, thought he was doing the right thing by assuring timely filing with the Resident Engineers, who had always received other correspondence related to the Project. Mr. Daniel, who was immediately informed that the original documents were filed in the wrong place, did nothing to correct the error, but neither did he deliberately frustrate the process (as argued by White) since the message he received about some original legal documents was ambiguous. Mr. Lairscey had no idea that his packet was intended for the Agency Clerk; moreover, he had no idea who the agency clerk was. Under these circumstances, and in the absence of any more than mere inconvenience to the Department, it is patently unfair to deny White its hearing on the merits.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED that the Department enter its final order granting a formal hearing to White Construction Co., Inc. on the substantive issue of whether it should lose its qualification to bid. DONE AND ENTERED this 29th day of August, 1994, in Tallahassee, Leon County, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of August, 1994. APPENDIX The following constitutes specific rulings on the findings of fact proposed by the parties. Petitioner's Proposed Findings Adopted in paragraph 1. - 4. Adopted in substance in paragraph 2; otherwise rejected as unnecessary and immaterial. Adopted in part in paragraph 10; otherwise rejected as unnecessary. Adopted in substance in paragraph 4. Adopted in paragraph 30. Adopted in paragraph 4. Except as to the conclusion that the notice was not filed with the clerk on August 13, rejected as contrary to the greater weight of evidence, considering the testimony of Keen in its entirety. Adopted in substance in paragraphs 5, 8, 9, 10 and 12. Rejected as argument and conjective unsupported by the weight of evidence. Adopted in substance in paragraph 5. Adopted in part in paragraphs 6-9, otherwise rejected as immaterial. Adopted in part in paragraph 9; otherwise rejected as statement of testimony or unnecessary. Adopted in substance in paragraph 13. 16.-18. Adopted in paragraphs 14 and 19; otherwise rejected as unnecessary. Adopted in paragraph 21. Adopted in substance in paragraph 22. Adopted in substance in paragraph 16; otherwise rejected as unnecessary. Adopted in substance in paragraph 18. Adopted in substance in paragraph 20. Adopted in part in paragraphs 23-26; otherwise rejected as unnecessary. Adopted in substance in paragraphs 27 and 29. Rejected as contrary to the weight of evidence. 27.-28. Adopted in part in paragraph 36; otherwise rejected as argument or unnecessary. White clearly proved it will be severely prejudiced, even if it is not "put out of business". 29. Rejected as contrary to the weight of evidence (as to prejudice to the agency). 30.-31. Rejected as unnecessary. 32. Rejected as contrary to the weight of evidence; more commonly, the agency rules on the extension request first. Respondent's Proposed Findings Adopted in paragraph 1. Adopted in paragraph 2. Adopted in paragraph 3. Adopted in paragraph 4. Adopted in paragraph 5. Adopted in paragraph 6. Adopted in paragraph 7. Adopted in paragraph 8. Adopted in paragraph 9. Adopted in paragraph 10. Adopted in paragraph 11. Adopted in paragraph 12. Adopted in paragraph 13. Adopted in paragraph 14. Adopted in paragraph 15. Adopted in paragraph 16. Adopted in substance in paragraph 17. Rejected as unnecessary. 19. Adopted in paragraph 18. 20. Adopted in paragraph 19. 21.-22. Adopted in substance in paragraph 20. 23. Adopted in paragraph 21. 24. Adopted in paragraph 22. 25. Adopted in paragraph 23. 26. Adopted in paragraph 24. 27. Adopted in substance in paragraph 25. 28. Adopted in paragraph 26. 29. Adopted in paragraph 27. 30. Adopted in paragraph 28. Rejected as unnecessary. Adopted in paragraph 29. Adopted in part in paragraph 30; otherwise rejected as contrary to the weight of evidence (as to being a "paper shuffler"). 34.-38. Adopted in paragraph 31. 39.-40. Adopted in paragraph 32. 41.-42. Adopted in paragraph 33. Adopted in paragraph 34. Adopted in paragraph 35. Adopted in paragraph 36, except that the implication that the company will absolutely go out of business is rejected as unsupported by the evidence. Rejected as unnecessary. COPIES FURNISHED: Paul Sexton, Esquire Department of Transportation Haydon Burns Building, MS 58 605 Suwanee Street Tallahassee, Florida 32399-0458 Joseph W. Lawrence, II, Esquire Cummings, Lawrence and Vezina, P.A. 1600 S.E. 17th Street, Suite 304 Fort Lauderdale, Florida 33316 Ben G. Watts, Secretary Attn: Eleanor F. Turner, M.S. 58 Department of Transportation Haydon Burns Building 605 Suwanee Street Tallahassee, Florida 32399-0450 Thornton J. Williams, General Counsel Department of Transportation 562 Haydon Burns Building 605 Suwanee Street Tallahassee, Florida 32399-0450
The Issue The issue presented for decision herein is whether or not Petitioner's Antiknock (octane) Index number of its petroleum product was below the Index number displayed on its dispensing pumps.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received, and the entire record compile herein, I make the following relevant factual finding. Rafael Ruiz is the owner/operator of Coral Way Mobil, an automobile gasoline station, situated at 3201 Coral Way in Coral Gables, Florida. Ruiz has operated that station in excess of ten (10) years. On or about May 13, 1987, Respondent, Department of Agriculture and Consumer Services, received a customer complaint alleging that the fuel obtained from Petitioner's station made her automobile engine ping. Respondent dispatched one of its petroleum inspectors to Petitioner's station at 3201 Coral Way on May 14, and obtained a sample of Respondent's unleaded gasoline. Inspector Bill Munoz obtained the sample and an analysis of the sample revealed that the produce had an octane rating of 86.9 octane, whereas the octane rating posted on the dispenser indicated that the octane rating of the product was 89 octane. On that date, May 14, 1987, Respondent issued a "stop sale notice" for all of the unleaded product which was determined to be 213 gallons. Petitioner was advised by Inspector Munoz that the unleaded produce should be held until he received further instructions from the Respondent respecting any proposed penalty. On May 15, 1987, Petitioner was advised by John Whittier, Chief, Bureau of Petroleum Inspection, Florida Department of Agriculture and Consumer Services, that the Antiknock Index number of the sampled product was 2.1 percent below the octane rating displayed on the dispenser and that an administrative fine would be levied in the amount of $200 based on the number of gallons multiplied times by the price at which the product was being sold, i.e., 213 gallons times 93.9 cents per gallon. Petitioner did not dispute Respondent's analysis of the product sample, but instead reported that he had been advised that three of the five tanks at his station were leaking and that this is the first incident that he was aware of wherein the product tested below the octane rating displayed on the dispenser.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby RECOMMENDED: That the Respondent, Department of Agriculture and Consumer Services, enter a Final Order imposing an administrative fine in the amount of $200 payable by Petitioner to Respondent within thirty (30) days after entry of the Respondent's Final Order entered herein. RECOMMENDED this 7th day of October, 1987, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL 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 7th day of October, 1987. COPIES FURNISHED: Rafael E. Ruiz c/o Coral Way Mobil 3201 Coral Way Miami, Florida 33145 Clinton H. Coulter, Jr., Esquire Senior Attorney Office of General Counsel Department of Agriculture and Consumer Services Room 514, Mayo Building Tallahassee, Florida 32399-0800 Honorable Doyle Conner Commissioner of Agriculture The Capitol Tallahassee, Florida 32399-0810 Robert Chastain, Esquire General Counsel Department of Agriculture, and Consumer Services Room 513, Mayo Building Tallahassee, Florida 2399-0800
The Issue Whether the Respondent is in violation of Sections 479.07(1)(4)(6) and 479.11(1), Florida Statutes. Whether subject signs violate state and federal laws and should be removed.
Findings Of Fact The following described sign is located in an unzoned area and violates the set back requirements being closer than 660 feet from the nearest edge of the road right-of-way: Highway: I-10 Location: 6/10 of a mile west of State Road 81 south side of I-10 Copy: Fina Gas-Diesel-Exit 1/2 Mile then Left Notice of violation regarding subject sign was properly sent by the Department of Transportation and received by the Respondent. No application was made prior the the erection of the subject sign, and the sign has been refused a permit. Mr. Curtis A. Miller, Jr., the President and major stockholder of Curt Miller Oil Company, Inc. in good faith discussed the erection of the subject sign with the councilmen and Mayor of Ponce de Leon, Florida, and proceeded to erect his sign without first obtaining a permit from the Department of Transportation. The Respondent contends that the sign is needed, that he spent a large amount of money on the erection and that he thought the sign would be in a properly zoned area at the time the erection was completed. Respondent admits that the sign at the time of the hearing is in violation of the set back requirements of Chapter 479, Florida Statutes. The Petitioner contends that it refused to permit the sign inasmuch as the set back was less than 660 feet from the nearest edge of the right-of-way of an interstate highway.
Findings Of Fact On or about January 27, 1988, a DOT sign inspector observed Respondent's sign along U. S. 19 in the vicinity of S. R. 595. The sign had no permit attached, and DOT records revealed no permit has ever been issued for this sign. The sign is visible from U. S. 19. U. S. 19 is a federal aid primary highway.
Findings Of Fact Six signs were described in a violation notice to Respondent Dandy Signs from Petitioner, Florida Department of Transportation dated July 7, 1977. The notice stated the signs were alleged to be in violation of Chapter 479 and rules 14-10.04; rule 14-10.03. By stipulation of the parties the charges on the signs listed were dropped except for the following two signs: a sign located one mile west of U.S. 1, State Road 44, Mile Post 28.25 with copy "Bob's Sandpiper Restaurant" and a sign located at Junction 17-92 Deland, U.S. Highway 17 (Section 35 Mile Post .02) with copy "Buddy Sheats". The foregoing signs have no permit and evidence was presented to show that each sign is nearer to a permitted sign than 500 feet. The Respondent admits that neither sign has been permitted and that both signs violate the spacing requirements. Respondent was given time to submit evidence that the signs had at one time been permitted, but no evidence was submitted to this hearing officer although the hearing was held in excess of three months before this order is being entered.
Recommendation Remove the subject signs and invoke penalty under Section 479.18, Florida Statutes. DONE and ENTERED this 3rd day of March, 1978. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of March, 1978. COPIES FURNISHED: Philip S. Bennett, Esquire Florida Department of Transportation Haydon Burns Building Tallahassee, Florida 32304 Dan Richardson, Owner Dandy Signs 324 Flagler Street New Smyrna Beach, Florida 32069
