Findings Of Fact Respondent, Clyde Vetter (hereafter Vetter), has made application to the Respondent, Department of Environmental Regulation (hereafter DER), for maintenance dredging and construction of boat docks on his property located in Isle of Capri, Collier County, Florida. Petitioner, Rosanna Loach (hereafter Loach), requested a hearing on the permit request and objected to the issuance of the permit on the grounds that the proposed project would create an offensive odor. The uncontradicted evidence shows that the proposed project poses no serious impediment to navigation and will create no adverse environmental impact. DER has recommended approval of the permit application. Loach presented the testimony of herself and other residents of the area which testimony established that each witness was concerned about possible trash from boats using the proposed facilities, noise, odors, additional boat traffic, the creation of an eyesore and resultant danger to sport fishing. There was no evidence presented which would, in fact, demonstrate that the proposed project would have an adverse environmental impact or would constitute a serious impediment to navigation.
Findings Of Fact Gordy is the owner of Tracers. He holds an R Recovery Agency license for Tracers, #R91-00031, and an E Recovery Agent license, #E91-00027. On the afternoon of August 20, 1992, in Duval County, Florida, Gordy and Jessica Clark repossessed a 1989 Hyundai Excel from Lisa Clouse based on an Order to Repossess from Sport Acceptance Corporation. The car was parked under the carport attached to the house where Clouse resided with her parents, Russell and Grace Bonitatibus, and her children. The various witnesses related radically different versions of what transpired in the course of this repossession. Having considered the demeanor of the witnesses and the consistency or inconsistency of their stories, it is found that the versions told by Clouse and her parents are contradictory, implausible, and unworthy of belief. The findings set forth below represent the version of the events which is most credible. On August 20, 1992, at around 3:30 p.m., Gordy and Clark located the vehicle for which an Order to Repossess had been issued. They backed the tow truck into the driveway and chained and lifted the car. The car was parked in the carport facing forward such that the car was lifted from its rear and would be towed backwards. Clouse came out and tried to persuade Gordy not to take the car so that she could make a payment by 5:00 p.m. Gordy insisted that he was taking the vehicle. Clouse asked him to come in the house while she called Bob Burnes at Sport Acceptance Corporation. Clouse was cussing at Burnes before and during the telephone call. After speaking with Burnes, Clouse handed the keys to Gordy and said "you can take the damn car, but I want my shit," meaning that she wanted her possessions from inside the car. Gordy told her that would be no problem. Gordy and Clouse went outside to the car. Gordy unlocked it using Clouse's keys. Clouse removed some personal items from the rear hatch. She then opened the driver's door and removed some other items. Clark went to the cab of the truck to get a garbage bag into which Clouse could place her belongings. Meanwhile, Clouse partially closed the driver's door and asked Gordy for a screwdriver to remove her license plate. Gordy went to the driver's door of the truck to get a screwdriver. Clouse was swearing loudly and frequently at the car and Sport Acceptance Corporation, but she seemed to be cooperating in the repossession. While Gordy was in the cab of the truck at the driver's side, Clouse was standing near the rear of the truck and the car, on the opposite side. Clark was coming back from the passenger side of the truck toward the driver's side of the car when Clouse, without warning, picked up a five foot length of chain with a wrecker hook attached from the back of the truck. Clouse swung the hook at Clark. Clark heard the "woosh" of the chain swinging just in time to look up and then duck. Gordy heard the chain rattling and looked back just as Clark ducked the first swing. Clouse gathered herself to swing again and Clark backed up to the open truck door. Gordy yelled at Clouse to stop and he grabbed a 200,000 volt stun gun from inside the truck. While standing by the truck's driver's door and with Clouse on the opposite side of the truck near its rear bumper, Gordy held the stun gun in the air and fired it up into the air. The loud zapping sound from the stun gun got Clouse's attention, she dropped the chain and just stood there. Gordy yelled at Clark to get in the truck and he immediately drove out of the driveway towing the car. Because he had not had an opportunity to release the emergency brake in the car, the car's front tires were dragging. The windows of the truck were open and both Gordy and Clark heard Clouse's father yelling at her to stop and to let go. They looked back and saw Clouse running along and trying to get into the car. The car door on the driver's side was open. Her father was chasing her. Neither Gordy nor Clark had any idea that Clouse was trying to get into or had gotten into the car until they heard her father yelling. As soon as Clouse was away from the car, they stopped and Clark ran back to close the open car door because it was on her side of the truck. Clouse claims that she was in the car and that somehow she was thrown clear. However, a neighbor who witnessed the incident, Gordy and Clark all say that Clouse was standing by the side of the street. Clouse also says she was beinging dragged with one foot out of the car, yet no one, including Clouse, noticed any scrapes or blood on her feet. Clouse's parents describe these events quite differently from Clouse. She also claims that Gordy pressed the stun gun against her stomach when he fired it. However, she was not rendered unconscious and she did not notice any burn or bruise on her stomach. A 200,000 volt stun gun is only effective if in direct contact with the body and it renders the victim unconscious and causes extensive bruising and burning.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of State, Division of Banking, enter a Final Order dismissing the Administrative Complaint against David Gordy individually and as owner of Tracers. DONE and ENTERED this 13th day of July, 1993, in Tallahassee, Florida. DIANE K. KIESLING 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 13th day of July, 1993. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 93-0011 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, Department of State, Division of Licensing Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(2) and 2(3). Proposed findings of fact 3-5 and 8-12 are unsupported by the credible, competent and substantial evidence. Proposed findings of fact 6 and 7 are subordinate to the facts actually found in this Recommended Order. Proposed finding of fact 13 is irrelevant. COPIES FURNISHED: Henri C. Cawthon Assistant General Counsel Department of State, Division of Licensing The Capitol, MS #4 Tallahassee, FL 32399-0250 David B. Gordy c/o Tracers 7135 Beach Boulevard Jacksonville, FL 32216 Honorable Jim Smith Secretary of State The Capitol Tallahassee, FL 32399-0250 Phyllis Slater General Counsel Department of State The Capitol, PL-02 Tallahassee, FL 32399-0250
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, as well as the parties' stipulations of fact, the following facts are found: At all times pertinent to the charges herein, respondent Harry J. Williams was acting under his State pilot's license number 0000047. The J. LOUIS, which respondent was piloting at the time of the subject incidents, is a foreign registered vessel required to be piloted by a State licensed pilot. Respondent graduated from the Merchant Marine Academy in 1943, and sailed on U.S. merchant ships continuously until 1962. He became a full-time licensed Tampa Bay pilot in 1962, and has never had disciplinary action taken against his license. Over the past three years, respondent has piloted about 300 ships a year, and about 25 percent of those trips have involved the Port Tampa Canal. The respondent had piloted the vessel J. LOUIS approximately ten to fifteen times prior to the incidents occurring on November 6 and 7, 1985. The J. LOUIS is a Liberian registered vessel which is 669 1/2 feet in length, with a beam of 90 feet. She was built in 1961, is single screw, steam turbine and backs to port. On November 6 and 7, 1985, the J. LOUIS had a forward draft of 33 1/2 feet and an aft draft of 33 feet. On November 6, 1985, at 2050 hours, respondent boarded the J. LOUIS off the sea buoy for the purpose of piloting her to the gypsum dock located on the Port Tampa Canal. It was his intent to arrive at the Port Tampa Canal on the high water slack tide which would have occurred between 12:30 and 12:45 a.m. on November 7, 1985. During the evening and morning hours of November 6 and 7, 1985, there were no adverse weather, wind or visibility conditions. Respondent made arrangements for the harbor tugs YVONNE and PALMETTO to assist him on his journey, and those tugs timely arrived toward the west end of G cut, about 1 1/2 miles from the G cut turn into J cut. The harbor tug PALMETTO is 105 feet in length, has a beam of 26 feet (30 feet with the ship docking tires), a 13 foot draft, and 3,300 horsepower. The dimensions of the harbor tug YVONNE were not described, but it had assisted ships the size of the J. LOUIS on prior occasions. Upon meeting the tugs in G cut, respondent ordered the PALMETTO to make up on the center chock of the stern of the J. LOUIS, and the YVONNE was ordered to make up on the port bow. The turn from G cut to J cut is a ninety degree turn from a westerly heading to a northerly heading. The tugs were directed to assist in making the turn. The YVONNE was ordered to come ahead full speed and get out on a ninety degree angle with the port bow. The PALMETTO was directed to push the starboard stern full ahead on a ninety degree angle. A tug is able to provide the greatest amount of assistance to a vessel when it is on a ninety degree angle with the vessel. The maximum vessel speed for a tug to make up at a ninety degree angle, and thereby provide the maximum amount of assistance, is three to four knots. While attempting to make the turn from G cut to J cut in Tampa Bay, the J. LOUIS ran aground at approximately 2355 hours. While it is impossible to determine the vessel's precise speed near the time of grounding, the average speed of the J. LOUIS from its turn from F cut into G cut until its grounding was somewhere between 8.2 and 12 knots. Respondent believed that he was going very slow, some 2 knots or less, when the bow of the J. LOUIS went aground. He felt that his vessel was sluggish coming to the right and that he was not getting full power from the tug YVONNE, perhaps because of mechanical problems. The captains of the YVONNE and the PALMETTO both felt that the speed of the J. LOUIS reduced their ability to get on a ninety degree angle so as to provide maximum assistance during the turn. The Captain of the PALMETTO estimated the speed of the J. LOUIS to be 6 knots when approaching the turn from G cut to K cut. The chief officer of the J. LOUIS felt that the speed of the J. LOUIS was faster than normal under the circumstances. The YVONNE was able to swing out only to a forty- five degree angle due to the speed of the J. LOUIS. The PALMETTO was able to get to a sixty degree angle. At the time of the grounding, and prior thereto, the engine of the YVONNE was working fine. It was only after the YVONNE attempted to unground the J. LOUIS from some eight or nine different positions over a period of several hours that the YVONNE suffered problems with its reduction gear. The reduction gear alarm on the YVONNE came on about 0210 hours. The evidence supports a finding that the cause of the grounding was the inability of the tugs to provide maximum assistance during the turning maneuver due to the excessive speed of the J. LOUIS. As noted above, tugs are increasingly ineffective as a ship's speed exceeds three knots. The speed of the J. LOUIS prevented the tugs from working on a ninety degree angle, thereby reducing their effectiveness in assisting with the turn. The J. LOUIS remained grounded at the west end of G cut for about two and a half hours. After the YVONNE developed a problem with its reduction gear, she was replaced by the more powerful tug TAMPA, which released the J. LOUIS within ten minutes by pushing on her stem. The J. LOUIS apparently sustained no damage as a result of the grounding. The tug TAMPA was christened in October of 1985. She is a twin diesel, 6000 horsepower tug, with twin propellers and ten rudders. The TAMPA is 100 feet in length, with a beam of 32 or 33 feet, a draft of 13 feet, and is considered the most powerful and maneuverable tug on Tampa Bay. Having been freed from the bottom at the west end of G cut at 0230 on November 7, 1985, the J. LOUIS, the TAMPA and the PALMETTO proceeded onward northerly up K cut toward Port Tampa. Although intending to arrive at the Port during the high water slack tide, the grounding delayed the arrival to about the time of maximum ebb tide. However, the predicted ebb tide of .54 knots was not particularly strong. The entrance to the Port Tampa Canal is 250 feet wide, and requires an almost ninety degree turn from K cut. Respondent directed the PALMETTO to push on the starboard stern and directed the TAMPA to position itself on the starboard bow of the J. LOUIS. However, the Captain of the TAMPA represented that since the TAMPA had flanking rudders, it could do just as well backing as pushing. He therefore suggested that the TAMPA be positioned on the port bow, thereby removing the necessity of shifting to that side once the ship got up to the slip. Respondent accepted that suggestion and the TAMPA was positioned on the port bow of the J. LOUIS at about 60 feet aft of the stem with one line. The line was some 10 inches in circumference and, initially, about 50 feet in length between the vessels. As respondent made the approach to the Port Tampa Canal, the J. LOUIS was travelling between four and six knots, again making it difficult for the assisting tugs to work on ninety degree angles. Perhaps to compensate for the anticipated ebb current, respondent's approach into the Canal was much closer to the north bank and its caissons than the normal approach. The tug TAMPA pushed on the port bow of the J. LOUIS until it became very close, as close as 10 feet, to the outer caisson (referred to locally as the "can opener"). Fearful that the TAMPA could be crushed between the J. LOUIS and that caisson, the Captain of the TAMPA ordered his crew to slack the line so that the TAMPA could slide back. The evidence is unclear as to whether respondent was informed that the TAMPA's line had been slacked, but respondent was informed by the TAMPA's Captain that the TAMPA was getting very close to the north bank and did not have much room. The TAMPA's deckhands slacked out approximately 150 feet of line to enable the TAMPA to clear the outermost caisson. This action positioned the TAMPA close to the midship house of the J. LOUIS. After clearing the caisson, the TAMPA crew began retrieving the line. It was impossible to manually retrieve the ten inch line, so the crew used the bow capstan. This was the first time it had been used and the line was new. About 50 feet of the line was retrieved when the TAMPA received an emergency order from the respondent to start backing full astern. The TAMPA began backing full astern. Although the TAMPA deckhands had taken four turns around the capstan drum and put two figure- eights on the H-bitts up front, the line slipped about four or five feet. The TAMPA had to then slow down while another figure-eight was placed on the bitt. The line then being secured, the TAMPA began backing again, but the J. LOUIS struck the Chevron dock. While the dock sustained substantial damage, the vessel J. LOUIS was not damaged as a result of the collision. There is no doubt that the slack in the line between the tug TAMPA and the J. LOUIS rendered the TAMPA less effective to assist in stopping the bow of the J. LOUIS from swinging starboard to the south. However, the evidence demonstrates that the TAMPA slacked the line in order to avoid hitting the caisson or being squashed between the caisson and the J. LOUIS. While there may have been other options available to the TAMPA, slacking the lines to avoid a collision with the caisson was not inappropriate or unreasonable given the close proximity of the caisson at the time that action was taken. At least five experienced crew members on the TAMPA, the PALMETTO and the J. LOUIS, all of whom had entered the Port Tampa Canal on previous occasions, believed that the J. LOUIS, piloted by the respondent, entered the Canal with more speed and closer to the north than is normal. The Master of the J. LOUIS was satisfied with respondent's piloting.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED THAT respondent, Harry J. Williams, be found guilty of negligently piloting the vessel J. LOUIS on November 6 and 7, 1985, so as to cause it to run aground and to strike the Chevron loading facilities, and that, for such offenses, an administrative fine in the amount of $1,000.00 be imposed. Respectfully submitted and entered this 10th day of July, 1987, in Tallahassee, Florida. DIANE D. TREMOR 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 10th day of July, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-3935 The proposed findings of fact submitted by the petitioner and the respondent have been fully considered and have been accepted and/or incorporated in this Recommended Order, except as noted below. Petitioner 13. Partially rejected as contrary to the evidence. The tugs were unable to carry out respondent's orders due to the speed of the J. LOUIS. 30. Rejected as contrary to the evidence. Circumstances created by the respondent prevented respondent's orders from being carried out. Respondent 13, third sentence. Rejected as contrary to the evidence. 14 - 16. Rejected as contrary to the evidence. Partially rejected as contrary to the evidence. The tug TAMPA obviously encountered problems. Partially rejected. The greater weight of the evidence supports a finding that the initial entrance into the Canal was at a speed greater than normal. 37. Rejected as contrary to the evidence. 40, second sentence. Rejected. See Finding of Fact 15. 53. Accepted as being Coleman's testimony, but opinion rejected as contrary to the greater weight of the evidence. Rejected as contrary to competent, substantial evidence. Rejected; not supported by competent, substantial evidence. 58. Rejected as contrary to competent, substantial evidence. 60. Rejected as contrary to the greater weight of the evidence. COPIES FURNISHED: David C. Banker, Esquire Shackleford, Farrior, Stallings & Evans, P.A. Post Office Box 3324 Tampa, Florida 33601 Nathaniel G. W. Pieper, Esquire Lau, Lane, Pieper & Asti, P.A. Post Office Box 838 Tampa, Florida 33601 Linda Biedermann, Executive Director Board of Pilot Commissioners Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Van Poole, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Joseph A. Sole, General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 =================================================================
The Issue The issue for consideration in this matter is whether Respondent's operation of an overweight truck over the low-limit bridge involved herein is a violation and if so, what penalty should be assessed.
Findings Of Fact At all times pertinent to the issues herein, the Department of Transportation was the state agency responsible for enforcing the statutes involving commercial carrier and truck vehicle weights on covered vehicles operated on the streets and highways of this state. It does so through its Office of Motor Carrier Compliance staffed with uniformed certified law enforcement officers who have the authority to conduct random safety and compliance inspections of commercial vehicles being operated in this state. The parties agree that on August 8, 1991, Respondent, P.J. Constructors, Inc. was prime contractor to the Petitioner, Department of Transportation for the removal and replacement of a highway bridge over the Florida Turnpike where it intersects with Hood Road in Palm Beach Gardens, Florida. At the time in issue, Respondent was operating a 1981 MAC tractor trailer low boy on which it was transporting a piece of heavy construction equipment. At the time in issue, Officer Neff stopped the vehicle for crossing over this bridge which was clearly posted as having a maximum weight limit for tractor trailers of 15 tons, (30,000 pounds). Following standard Department weighing procedures measuring weight at each axle and combining those weights to arrive at a total, and using portable Department scales which are calibrated every 6 months for accuracy, Officer Neff determined the vehicle weight at 54,800 pounds. This was 24,800 pounds over the legal weight and resulted in a penalty assessment of $1,240.00 at 5 per pound of overweight. The approaches to this bridge were clearly marked at several locations with signs indicating the maximum weight permitted for this type vehicle was 15 tons. These signs were located at sites which were far enough away from the bridge to give a driver ample notice of the restrictions and ample opportunity to turn around or to take an alternate route over roads situated between the signs and the bridge. In addition to the signs, however, earlier the same day, as warnings were issued to users of the bridge who were going to a construction site on the other side, Respondent's driver was specifically told of the bridge's low limits and advised of an alternate route to avoid it. Admittedly, the alternate routes would be longer than the route over the bridge, but no evidence as presented by either party as to how much the difference was. Respondent's General Manager, Mr. McAllester, claims the signs were not in position on the two occasions he visited the site during the bid process in February or March, 1991. He cannot say that he knew where the signs might have been located (away from the site), but avers only that he did not see any. However, officer Neff specifically checked to see that the signs were in place before issuing the citation on August 8, 1991 and it is, therefore, found that the signs were properly in place on that date. Mr. McAllester also urges in the alternative, however, that even if the signs were in place, as contractor on the bridge replacement project, the terms of the bid specifications, which directs contractors from operating equipment in excess of the maximum weights set out by law, exempts the contractor where the existing road or bridge is to be removed as a part of the work included in the project. The bridge in issue here was removed and replaced as a part of the project on which Respondent was contractor and the current bridge has no limit. Mr. McAllester admits that when the instant citation was issued, Respondent had no special permit to cross the bridge with an excess load. Once the citation was issued, however, Respondent quickly retained an engineer to do a structural analysis of the bridge in issue. Based on that analysis, Respondent thereafter sought and obtained permission to cross the bridge with an overload provided all other traffic was stopped on Hood Road while the excessively laden vehicle was on the bridge so it would be the only vehicle thereon at the time, and provided that vehicle kept to the center of the road while on the bridge. Subsequent to the citation and before the permit was issued, Respondent did not operate any excessively laden vehicles on the bridge. Respondent admits that at the time the citation was issued, there was traffic operating both on the Turnpike and on Hood Road. Therefore, a potential danger to the public existed. Nonetheless, traffic was maintained on both roadways throughout the entire project without incident. None of the weight limits or a need to maintain weight standards was discussed at the pre-bid conference, however.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that a Final Order be entered assessing a civil fine in the amount of $1,240.00 against the Respondent. P.J. Constructors, Inc. RECOMMENDED this 22nd day of July, 1992, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 COPIES FURNISHED: Filed with the Clerk of the Division of Administrative Hearings this 22nd day of July, 1992. Vernon L. Whittier, Jr., Esquire Department of Transportation 605 Suwannee Street Tallahassee, Florida 32399-0458 Foster McAllester Vice President and General Manager P.J. Constructors, Inc. 4100 S.W. 70th Court Miami, Florida 33155 Ben G.Watts Secretary Department of Transportation Haydon Burns Bldg. 605 Suwannee Street Tallahassee, Florida 32399-0458 Thornton J. Williams General Counsel ]Department of Transportation 562 Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0458
The Issue The issue is whether a penalty should be imposed on Pettegrove Equipment for driving a truck over a bridge when the truck weighed more than the posted bridge weight limit.
Findings Of Fact Raymond S. Cran drove a loaded dump truck owned by Pettegrove Equipment over a bridge on State Road 850 which crosses over Florida's Turnpike on September 26, 1990. The truck weighed 69,100 pounds. The truck was a straight truck, not a tractor trailer combination. The bridge which Mr. Cran drove across is a low limit bridge. Signs were posted in five places on the approaches to the bridge of the 26 ton limit for straight trucks. The first is at the intersection of State Road 850 and East Highland Pines Drive, which states "Weight Limit Restriction Ahead." One mile from the bridge at the intersection of Green Meadows Road is a second sign which states "Weight Limit" and has silhouettes of a straight truck and of a tractor trailer combination, showing a 26 ton limit for the straight truck and a 38 ton limit for the tractor trailer combination (tractor trailers have a higher limit because their weight is distributed differently). Similar signs are posted one half mile from the bridge, two tenths of a mile from the bridge, and at the foot of the bridge. Officer Joseph Barkas, a Department of Transportation Motor Carrier Compliance Officer, stopped Mr. Cran and prepared the Load Report and Filed Receipt describing the incident. The Respondent did not dispute that the truck was 17,100 pounds overweight, nor that the penalty for crossing the bridge based on that weight is $865, as shown on the Load Report and Field Receipt. Pettegrove Equipment disputes the fine because it's driver misunderstood the weight limit signs on the approach to the bridge. The silhouette of the straight truck is much shorter than the silhouette of the tractor trailer combination. Mr. Cran believed that the 26 ton limit for a straight truck applied to only small trucks, such as pickup trucks, and not to a large dump truck like the one he was driving. This contention is unpersuasive. Ordinary pickup trucks are incapable of carrying loads any where near 26 tons. Mr. Cran's interpretation is simply unreasonable. The limitations for straight trucks were clearly posted, and were violated.
Recommendation It is RECOMMENDED that a final order be entered by the Department of Transportation sustaining the fine of $865 assessed against Pettegrove Equipment. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 4th day of June 1992. COPIES FURNISHED: Vernon Whittier, Esquire Assistant General Counsel WILLIAM R. DORSEY, JR. 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 4th day of June 1992. Florida Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Ann Porath, Esquire Wellington Country Plaza Suite 209 12773 Forrest Hill Boulevard West Palm Beach, Florida 33414 Ben G. Watts Secretary Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Attn: Eleanor F. Turner Thornton J. Williams General Counsel Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street Tallahassee, Florida 32399-0458
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following facts are found: Approximately four years ago, petitioner Howard Meyers purchased an old steel barge for the purpose of using it as a surface to put a crane on for other repair work. The crane work apparently vibrated so much that the deteriorated sides of the barge collapsed. The barge was moved closer to the shoreline, and it sunk. Efforts to remove the whole barge from the water were unsuccessful. Presently only about one-third of the original barge remains in the water. In February of 1979, the petitioner submitted an application to the Department of Environmental Regulation for a permit to move the dismantled sunken barge hull to an adjacent shoreline area, fill the moved barge with fill removed from an excavated shoreline and an upland source and place riprap around the hull. Petitioner had a permit to do maintenance dredging to clean out an existing, channel or basin, and desired the subject permit for the purposes of getting rid of the barge, using it in furtherance of the maintenance dredging work and preventing erosion of the shoreline. Upon receipt of the permit application, the respondent requested further information from the petitioner and conducted an on site inspection. Richard F. Dumas performed the field inspection and recommended that the permit be denied due to the advanced stage of deterioration of the barge, the increase in shoreline discontinuity and the proposed destruction of established marine vegetation in the area. Mr. Dumas was concerned with the adverse impact which would be caused from turbidity as the barge is dragged into place, the continued discharge of rust into the waters, and the alteration and hindrance of established lateral currents. He suggested that the applicant move the barge from the water to an upland area. Thereafter, petitioner unsuccessfully attempted to move the barge out of the water and, in the process, a deteriorated portion of the sunken hull was rolled or folded back on itself, thus reducing the amount resting on the bay bottoms. Revised drawings were submitted to respondent by petitioner. Richard Dumas submitted a modified project appraisal and again concluded that the proposed dragging of the barge to its new site would detach most or all of the vegetation and disturb benthic organisms over a 3,300 square foot area, would increase the prominence of the existing shoreline discontinuity, and could hasten the refilling of the areas for which petitioner holds a maintenance dredging permit. Thereafter, the respondent's branch office gave notice of its intent to deny the application for the subject permit. The grounds for such denial included violations of turbidity standards caused by the physical dragging of the barge and the backfilling operation, the discharge of rust from the deteriorating barge, the destruction and elimination of 3,300 square feet of productive bay bottoms and the entrapment of debris caused by the further protrusion of the shoreline. The water body in question is a Class III body of water which is designated for recreation and the promulgation and maintenance of fish and wildlife. The area through which the barge is to be moved by dragging is vegetated with turtle grasses and brown, green and red algae. The area is one of productivity with types of vegetation that supports important marine organisms. The most remote portion of the barge presently rests approximately 35 feet from the proposed site of placement, thus requiring the dragging of the barge across some 3,300 square feet of a viable, benthic community. This will result in the disturbance or complete elimination of such community. Because the area is one of high energy, it would be quite some time before the area could revegetate itself. The placing and filling of the barge on the adjacent shoreline would displace the benthic community currently present at that site, and the extension of the shoreline would cause further entrapment. The material proposed to be used as fill for the barge is not stable material suitable for fill. Rust would be discharged and thus deteriorate the waters. The applicant has not supplied the Department with any evidence of local approval of the proposed project.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the application for a permit to drag the sunken barge across productive bay bottoms to an adjacent shoreline, backfill the barge and place riprap around it be DENIED. Respectfully submitted and entered this 20th day of March, 1980, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Jake Varn, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Mr. Howard Meyers Jolly Roger Trailer Park R.D. Number 1, Box 525 Marathon, Florida 33050 H. Ray Allen, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301
Findings Of Fact On or about September 11, 1989, a commercial, dump truck owned by Petitioner, Alamazan Brothers Trucking, Inc., was travelling on State Road 807. Mr. Michael Roberts, Safety and Hazardous Materials Officer for Respondent, Department of Transportation, noticed that the truck did not have the required identification on the door and stopped the truck for further investigation. After the truck stopped, Mr. Roberts noted that the truck possessed an expired temporary license tag, and the driver did not have a valid registration for the truck. Mr. Roberts, then, weighed the truck with his portable scale and calculated a gross weight of 65,900 pounds. Mr. Roberts gave the driver the opportunity to contact the owner of the truck about the registration and, in accordance with policy of the Department, allowed the owner over one hour to produce a valid registration. A representative of the owner appeared and showed Mr. Roberts a duplicate registration certificate purchased the same day as the incident which indicated that the authorized gross weight for the truck was 24,680 pounds. Mr. Roberts made the determination that the registration was not valid at the time of the stop and imposed a fine for overweight of $1,545. The fine was calculated for the amount of the gross weight in excess of 35,000 pounds times five cents per pound. Existent law establishes that, for the purposes of calculation of a penalty such as the one at issue, the authorized gross weight for an unregistered vehicle is 35,000 pounds. An additional $50 was imposed as the fine for not having the required identification on the door of the truck. The total penalty of $1,595 was paid under protest. However, Petitioner did, in fact, have a valid registration on the day of the stbp. Through administrative delay, the registration certificate had not been mailed to Petitioner. On or around September 7, 1989, Petitioner purchased the truck and a temporary tag was issued to Petitioner by the dealer from which he purchased the truck. At that time, an application for registration was made to the Department of Highway Safety and Motor Vehicles. The application was for a registration authorizing a gross weight of 64,000 pounds. Petitioner had not received the permanent tag or registration by the date the stop occurred. After Petitioner was alerted at the stop, Petitioner obtained a duplicate registration within the time allotted to him by Respondent. This duplicate, the one shown to Mr. Roberts on the day of the stop, indicated an authorized gross weight of 24,680 pounds, an obvious typographical error. The gross weight did not match the gross weight applied for, instead, it duplicated the amount of the empty weight into the gross weight category. On September 13, 1989, Petitioner returned the form to the issuer and requested a corrected duplicate registration. The second duplicate also was in error. This time the form indicated the correct gross weight of 64,000 pounds, but, also, repeated that gross weight amount in the empty weight category. At the hearing, Petitioner also presented the application for registration which indicated it had applied for and was taxed for a gross weight of 64,000 pounds. It was only due to administrative delay that the correct registration was not presented at the time of the stop. However, no competent evidence was received which indicated that the truck did possess the required identification on the door, and Mr. Robert's testimony about the lack of such identification is deemed credible. Although the correct gross weight for which Petitioner is licensed is 64,000, his load at the time of the stop was 65,900 or 1,900 in excess of his 64,000 pound authorized amount. At five cents a pound his penalty for overweight should be $95.00 and not $1,545.00. The $95.00 plus the $50.00 for the failure to display the required identification yields a corrected fee of $145.00 and a refund due to Petitioner of $1,400.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the Department of Transportation issue a Final Order correcting the fine imposed on Petitioner, establishing the appropriate fine at $145.00 and refunding $1,400 to Petitioner. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 5th day of June, 1990. JANE C. HAYMAN 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 5th day of June, 1990. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-2088 The following represents the rulings on the proposed findings of fact submitted by the parties. The rulings are by paragraph within the proposed findings of fact and indicate the paragraph in the findings of fact portion of the attached recommended order which addresses the proposed finding of fact, if deemed appropriate. RESPONDENT Adopted in relevant part in paragraphs 1,2 and 3. Adopted in relevant part in paragraphs 4,5 and 9. Adopted in relevant part in paragraphs 6,7,8 and 10. COPIES FURNISHED: Dewey H. Varner, Esquire Varner, Cole & Seaman 2601 Tenth Avenue, North, Suite 410 Lake Worth, Florida 33461 Vernon T. Whittier, Jr., Esquire Department of Transportation 605 Suwannee Street Tallahassee, Florida 32399-0450 Ben G. Watts, Secretary Attn: Eleanor F. Turner Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Robert Scanlan Interim General Counsel Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street Tallahassee, Florida 32399-0458
Findings Of Fact The applicant proposes to construct a concrete boat ramp on the south bank of the Eau Gallie River in Brevard County. The Eau Gallie River is a tributary of the Indian River and is a Class III water body as defined in Chapter 17-3, Florida Administrative Code (F.A.C.). 1/ The ramp would be 17 feet wide and 64 feet long. Approximately half the length would extend into waters of the Eau Gallie River over which DER has. Jurisdiction under Chapters 403 and 253, F.S. The construction would involve the removal of 47 cubic yards of soft bottom material waterward of ordinary high water and the filling of 35 cubic yards of compacted material also waterward of ordinary high water. In addition, 38 cubic yards would be excavated landward and 72 cubic yards would be filled landward of ordinary high water. The boat ramp is to be a private facility not once to the general public. The applicant sought this permit in conjunction with the upland development of its river front property. The applicant's property extends for approximately one-half mile along the north bank of the Eau Gallie River. At build out, the applicant estimates that the property will contain several hundred apartment units which may eventually be converted to condominiums. The lessees or condominium owners would have access to the proposed boat ramp. Petitioner, Tom Hall, is an adjacent property owner who is concerned that increased boat traffic on the Eau Gallie River in the vicinity of the boat ramp would adversely impact manatee and other wildlife and marine resources. At various times of the year, manatees can be observed in the Eau Gallie River in the vicinity of the proposed boat ramp. The river also contains a variety of fish and supports a local population of water fowl. The river in the vicinity of the proposed boat ramp is generally not more than one to two feet in depth. The boat ramp is designed to launch only small craft such as canoes, rowboat or jonboats with small trolling motors. The application does not request the issuance of a permit to dredge a navigational channel to enable the beat ramp to accommodate larger power craft. The testimony of DER's expert witness established that the small craft which could be launched from the boat ramp would not pose a threat to the manatees that frequent the area. Rather, it is the larger power boats that endanger this marine mammal. There are no other wildlife or marine resources which would be impacted significantly by the construction of the boat ramp. Additionally, it should be noted that this project would benefit the several hundred residents of Brevard County who would eventually have access to the boat ramp. The testimony of DER's expert witness established that there would be no long-term violations of DER water quality standards as a result of the construction and use of the boat ramp. Short-term impact during construction would be minimal since turbidity screens are to be employed. Thus, the applicant has provided reasonable assurance that the short-term and long-term effects of the construction and use of the boat ramp will not result in violation of DER's water standards. It is important to note that, as long as no dredging of filling is involved, there is no legal impediment preventing riparian landowners from launching boats from their river front property or engaging in recreational boating activities in the portion of the boat ramp could cause continuous turbidity problems and damage valuable habitat along the river front. By confining the alteration of the littoral zone to such a small area as that involved in the application and thus guaranteeing adequate, comfortable access for the riparian owner, the survivability of the remaining littoral in its natural state would be significantly enhanced. Petitioner Hall theorizes that boats who would otherwise use downstream public boat ramps will instead launch at the site of the proposed ramp. However, there was no evidence submitted to support this theory. Given the ease with which small boats could be launched without any ramp at this site, it does not appear that the ramp itself would generate additional activity involving canoes and other small craft. Since the launching of power boats is not feasible because of the shallow river depth, such traffic is not likely to be affected by construction of the proposed ramp.
The Issue The issue presented is whether Respondent terminated Petitioner's employment due to Petitioner's disability.
Findings Of Fact Respondent Ryan Companies is in the business of site development, including underground utility work. Ryan employed Petitioner in September 1995 to operate a front-end loader for Ryan's pipe division. A front-end loader is a heavy machine used to carry heavy materials in a front-end bucket. Petitioner's duties involved unloading materials with the front- end loader and laying the materials out with the loader in an area adjacent to where the piping crews were working. At the time of his employment, Petitioner wore a brace on his left leg as a result of complications from back surgery which Petitioner had undergone approximately ten years before his employment by Ryan. Petitioner disclosed on his written application that he wore the brace on his left leg but that he needed no reasonable accommodation to assist him in performing the essential functions of his job. Petitioner was able to climb in and out of the cab of the front-end loader without assistance. He also drove his own vehicle to and from work. His only restriction on driving was that he was not able to operate a vehicle which had a clutch. Although Petitioner asserts that he was disabled at the time he was employed by Ryan, Petitioner did not represent himself to be disabled to Ryan's other employees. Further, other Ryan personnel did not perceive him to be disabled. They only noticed that Petitioner walked stiff-legged with a limp, using a cane. Petitioner admits that he was able to perform his duties. Although Petitioner was not able to lift heavy objects, his duties did not require him to do so, and no evidence was offered that any inability to lift heavy objects was related to his left leg. Petitioner's position only required him to drive the front-end loader and move material for the pipe crews. Although Petitioner successfully completed his probationary period with Ryan, there were problems with his performance. On more than one occasion, Petitioner destroyed materials and knocked down grade stakes while operating his front-end loader. Petitioner's supervisor told him on more than one occasion that if it happened again, he would be replaced. Replacing the materials and having the survey crew return to the job site to re-position stakes cost Ryan money. However, Petitioner's supervisor was also concerned with the safety of the men laying pipe as a result of Petitioner's driving skills. It was ultimately decided by Ryan supervisory personnel that it was too risky to allow Petitioner to continue to operate a front-end loader. Rather than terminating Petitioner for inadequate performance, his supervisor first inquired of other supervisors if any of them could give Petitioner a different position in the company. Another supervisor said he had a position for Petitioner. Petitioner was transferred to the position of "ticket writer," in which Petitioner was to keep track of the material being trucked out from Ryan's haul pit at Winston Trails. Petitioner was required to write down the amount of material being hauled by each truck and was instructed in proper procedure by his new supervisor. His supervisor wrote out a sample for Petitioner to follow and filled out the first few tickets to show Petitioner what to do. Each time a new company came to the haul pit, Petitioner's supervisor wrote out a new form for Petitioner to follow. The amount of information to be recorded on the ticket was minimal: the name of the company taking the material, the date, the job site, and how many yards of material were being taken. The driver of the truck then signed the ticket. Petitioner was capable of performing his duties as a ticket writer. He never advised anyone that he could not read or write well enough. Rather, Petitioner admits he was capable of writing the tickets. However, Petitioner was careless in completing the tickets accurately, sometimes writing the name of the wrong company or incorrectly noting whether the truck was hauling 16 yards or 18 yards. He also put tickets in the wrong piles, causing the wrong customer to be billed. The tickets represent a bill of sale, and Petitioner was advised by his supervisor more than once that it was important that Petitioner complete the tickets more accurately. Petitioner was advised that if he continued to be careless, he would be terminated. Petitioner was terminated in August 1996 for continuing to write incorrect information on the truck loading tickets. The brace on Petitioner's left leg had no impact on Petitioner's ability to write tickets. Although Petitioner's representative appeared to argue at the final hearing that Petitioner cannot read or write, Petitioner disagrees with that suggestion. Petitioner was able to read maps and bills of lading when he had previously worked as a truck driver. He was also able to pass the Coast Guard four-hour written examination for a captain's license. He was also able to write for his daughter's use in his litigation a detailed report of his experiences at Ryan from the time he was hired until he was terminated. Petitioner had worked as a charter boat captain for about ten years prior to going to work for Ryan. The brace he wore on his left leg did not impede his ability to operate a charter boat in the open ocean, regardless of rough weather conditions. Since being terminated by Ryan, Petitioner has been employed as a security guard and does not have any problem fulfilling his duties.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding Respondent Ryan Companies not guilty of terminating Petitioner due to his disability and dismissing Petitioner's complaint filed in this cause. DONE AND ENTERED this 22nd day of March, 2002, in Tallahassee, Leon County, Florida. LINDA M. RIGOT Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of March, 2002. COPIES FURNISHED: Deborah Rogers, Qualified Representative 445 Australian Circle Lake Park, Florida 33403 Paul M. Woodson, Esquire Houston & Shahady, P.A. 316 Northeast Fourth Street Fort Lauderdale, Florida 33301 Cecil Howard, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Violet D. Crawford, Agency Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue The issue is whether Respondent should correct a health violation and have a $500.00 fine imposed for violating an agency rule and statute, as alleged in the Citation for Violation issued by Petitioner on December 22, 1999.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: This case involves an allegation that Respondent, Steve DeLuca, violated an agency regulation and statute by making repairs to a drainfield on property located at 1444 East New York Avenue, Deland, Florida, without obtaining the necessary permits from the Volusia County Department of Health (Health Department). That department is under the direction and control of Petitioner, Department of Health (Department). Respondent denies the charge and, as clarified for the first time at hearing, contends that the repairs were minor in nature and thus did not require a permit, no authorization was given to the excavation firm which performed the repairs, and the Citation was not issued to the actual owner of the property. On October 29, 1999, William N. VanderLugt (Vanderlugt), a Health Department environmental specialist, received a complaint regarding a septic tank repair being undertaken at 1430 East New York Avenue, Deland, Florida. During the course of inspecting that property, Vanderlugt observed excavation activities on the drainfield located next door at 1444 East New York Avenue. More specifically, Vanderlugt observed an area in the back yard approximately 6 feet by 20 feet in size which had been recently excavated and a large pile of sand nearby. In the excavated site, he saw a rock bed of the size commonly used in drainfields, "clean" and "newly installed" rocks, and a "black paper" covering a part of the rocks. Therefore, he concluded that the excavating firm had just installed a new rock drainfield. This type of activity constitutes a repair to an existing drainfield and requires that such work be performed by a licensed septic tank contractor. It also requires that appropriate permits be obtained from the Health Department. Although Respondent contended that the work was merely to correct a "minor structural flaw" which would not require a permit, Vanderlugt's testimony is more persuasive on this issue, and it is found that a more substantial repair to the drainfield was made. Further inquiry by Vanderlugt revealed that no permits had been obtained for the repair of a drainfield from the Health Department by the excavating company, Collier Enterprises. After a brief conversation with a Collier Enterprises employee, the substance of which is hearsay in nature and cannot be used, Vanderlugt visited the offices of Delco Oil Company and spoke with Respondent, who is employed by that firm. In doing so, Vanderlugt was under the impression that Respondent owned the property in question. During his brief conversation with Repondent, Vanderlugt pointed out that he had to issue a citation because no permit had been obtained for the work at the property in question. DeLuca responded with words to the effect that "they [Collier Enterprises] broke a pipe and they fixed what they broke." Apparently, there was no discussion as to whether Respondent or someone else actually owned the property. Vanderlugt returned to the property in question and performed a second inspection on November 3, 1999. Because no permits had been obtained by that date, and the drainfield site had been covered, a recommendation for a citation was prepared by Vanderlugt. A Citation for Violation was later issued by the Department on December 22, 1999, alleging that Respondent had failed to obtain permits before making a drainfield repair. The Citation was delivered to Respondent at Delco Oil Company. Because Collier Enterprises was not licensed to perform the work, it was given a first violation "warning" letter by the Health Department, as required by a Department rule. During later meetings with Respondent and others, Vanderlugt learned that the actual owner of the property in question was Deluca Properties, Inc., and not Steve DeLuca. For some reason, however, the Department declined to amend its citation and charge the actual owner with the alleged violation. Although Petitioner asserted at hearing and in its Proposed Recommended Order that Respondent is the owner's registered agent, there is no competent evidence of record to support this assertion. According to the general manager of Delco Oil Company, which is apparently owned by Steve Deluca and others, no permission was given to the excavating company to make any repairs. Indeed, Deluca Properties, Inc. has a licensed septic tank contractor who makes all septic tank repairs, when needed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health enter a final order dismissing the Administrative Complaint for lack of jurisdiction. DONE AND ENTERED this 14th day of June, 2000, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of June, 2000. COPIES FURNISHED: Angela T. Hall, Agency Clerk Department of Health Bin A02 2020 Capital Circle, Southeast Tallahassee, Florida 32399-1703 Charlene J. Petersen, Esquire Department of Health 420 Fentress Boulevard Daytona Beach, Florida 32114 Christopher R. Ditslear, Esquire Post Office Box 41 Deland, Florida 32721-0041 William W. Large, General Counsel Department of Health Bin A02 2020 Capital Circle, Southeast Tallahassee, Florida 32399-1701
