The Issue The issues for consideration in this case are whether Respondent’s Class D, Class DI, and Class G licenses, as a security guard, a security guard instructor, and to carry a firearm, respectively, should be disciplined because of the matters alleged in the Administrative Complaint filed herein.
Findings Of Fact At all times pertinent to the issues herein, Petitioner, Department of State, Division of Licensing, was the state agency in Florida responsible for the licensing of security guards and guard instructors, and for the issuance of licenses for security guards to carry firearms. The Division is also responsible for the regulation of the non-governmental security profession in this state. Respondent, at the times in issue, held Class "D" Security Officer’s License, D94-08184; Class "DI" Security Officer Instructor License, DI98-00070; and a Class "G" Statewide Firearms License, G95-01354. On or about February 28, 1999, Respondent, working as a security guard for APS, was assigned to guard duty at American Freightways truck terminal in or near Pinellas County. The terminal was not open for business at the time, since it was a weekend, but Richard W. Clark, the company’s operations supervisor, was there to do an equipment inventory. Because this was not during business hours, all the loading dock doors were supposed to be shut and locked to prevent uncontrolled access to the terminal. As he went down one side of the building he discovered that one bay door was open about four- and-a-half feet without any truck in the bay against the dock. He then checked other dock doors to the terminal and found another door, this one located on the other side of the terminal, open by about five-to- six feet up from the floor. This bay had a truck parked in it up against the dock, but there was a space of about one-and-a-half feet on either side of the truck that afforded access to the open bay door. When he discovered the open doors, Mr. Clark went to find the security guard, Respondent, and asked how long he had been on duty. Respondent indicated he had been there for from six-to-eight hours. Clark asked Respondent if, during that time, he had seen any doors open and Respondent said he had not. When Clark asked Respondent if he had toured the building, he indicated he had seen some employees of PDQ truck line in the back, but they were not near the open doors. According to Tara Jean Colon, formerly the personnel manager for APS and Respondent’s indirect supervisor, Respondent, at the times in issue here, was first a roving security officer, and then assigned to the Albertson plant. APS develops "post orders" for each duty post. These orders define the particulars of each position and outline the scope of the duties to be performed. As a roving security officer, Respondent was given a copy of the order for each of the places at which he was assigned, including the American Freightways position. The American Freightways order became effective on November 1, 1996, and was in effect on February 28, 1999. The shift/post duties outlined in the order include the following comment. Officer will ensure any doors designated for security on weekends by American Freightways remain locked. Though this page bears date of December 21, 1999, after the date of the incident, Ms. Colon is certain that the original edition, first promulgated in November 1996, a copy of which had been furnished to Respondent, was identical. Ms. Colon also indicated that an additional copy of the post order for each post was on- site at the post, but Respondent denies having seen one at American Freightways. Respondent contends that on February 28, 1999, he was told at the American Freightways job site by the supervisor for APS to stay at the main gate and let no one except American Freightways or PDQ people come onto the property. He was also told he could use his car to drive around to do the door checks. As to that duty, he claims he was told that only the door to the driver’s lounge was available to him and there were none others that he could get to, so he should not worry about the doors. Respondent’s claim here is without merit. His job was to stay outside and he knew he had to patrol the area because he was advised he could use his automobile to do so. It is obvious that a visual check of the outer bay doors, which could be seen from his car, was a part of his duty. Notwitstanding that Investigator Floyd indicates Respondent admitted to having a weapon in his car the night he drove his post on February 28, 1999, Respondent claimed at hearing that at the American Freightways post that night he did not have a weapon in his car. He was driving his own vehicle, not a company car, and he admits he usually carries a 9mm pistol in the glove box for personal protection. When the weapon is there, the glove box is locked. Because he was driving his wife’s car quite a bit during the period, he claims he took the weapon out of his car and put it into his night stand. A 9mm pistol was found in Respondent’s glove box when Respondent was interviewed by Mr. Floyd on July 7, 1999. At the time, Mr. Floyd had gone to Respondent’s home to interview him about the allegations herein. At that time, Respondent admitted he had a 9mm pistol which he usually kept in the glove box of his car. When Floyd asked to see it, they went outside to the car where Respondent unlocked the car and the glove box and removed the weapon. From the evidence presented at hearing, it is found that Respondent owned a 9mm weapon that he usually kept in the glove box of his car where it was found on July 7, 1999. It is also found, however, that Respondent claims to have removed it from the car before he drove his post on February 28, 1999. There is no evidence at all that Respondent had the weapon in his car on February 28, 1999, at the American Freightways site, and no inference that he did can be drawn from the fact that he owned a weapon. Paul Summerall, a heavy equipment operator and part- time security guard for APS, was assigned to work at Albertson’s Distribution Center on the evening of March 16, 1999. He and Respondent arrived for work at the same time. When the assignments were passed out by the supervisor, Respondent was assigned to work with a female security guard, Stephanie Clopton, with whom he had worked before, and with whom he did not want to work again. He feelings on that point were quite strong. He called Ms. Clopton a bimbo, a whore, and a bitch, and Respondent asserted that if he were around her too much, he would kill her. Mr. Summerall advised Respondent not to talk like that, but Respondent said he didn’t care - they could put him in jail and he knew how to dispose of the body so that nobody would find it. Mr. Summerall believed that Respondent’s threat was serious and he thought Respondent had a gun in his car, though Respondent did not take it out. Because of this, Summerall called the other guard post and reported what Respondent had said. Other people, including a Mr. Bonner, also an employee of APS, were present when Respondent uttered his threat, but not Ms. Clopton. Summerall and Bonner agreed that at the time, Respondent was upset and angry. In fact, after his comments, he slammed the door and turned over a chair. Because of Respondent’s state, Summerall was concerned for Ms. Clopton’s safety and the safety of others. Respondent took no action to carry out his threat, however. In his interview with Mr. Floyd, Respondent admitted to making the threat as alleged in the Administrative Complaint. At hearing, however, he denied threatening to kill Ms. Clopton. He indicated that when he reported to work and found he was to work with her, he called the APS office and indicated he did not want to do so. He admits to saying that if he was forced to work with her he was afraid he’d kill her, but he denies having any intent to hurt her. He claims it was just his frustration coming out in a figure of speech. At the time, he claims, he was under a lot of stress due to the terminal illness of his brother in his care who subsequently died of esophageal cancer on February 16, 1999. Mr. Ray was telephoned at home by Ms. Colon who told him about the threats he had allegedly made. This call, he asserts, came the morning after he had worked all night at the IBM office complex. Ms. Colon told him that he had been removed from roving status, but that he would be allowed to work at the Albertson gate on a six hour shift. This would be a three-hour reduction in work time. Respondent claims he declined the offer and hung up. He also indicates this call was made on March 8, 1999, some eight days prior to the time given in the statements of the witnesses and contained in the Administrative Complaint. Ms. Clopton indicates that she did not telephone Respondent on March 16, 1999, as reflected on the employee action report sent to the Department of State, but on March 17, 1999, the day after the incident regarding the threat. He admitted making the alleged comment out of anger, and she terminated him effective immediately. The evidence is somewhat inconsistent in times and dates, but the central focus of the allegation is not in significant dispute. It does not matter exactly what day the threat was made. The evidence reflects the threat was voiced by Respondent, though it was not made to Ms. Clopton or in her presence.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that, the Department of State, Division of Licensing, issue a final order in this case finding Respondent not guilty of misconduct by making a threat to kill or injure another security guard; or by carrying a weapon with him on at a client site which was not designated as an armed post, as alleged in Counts I and III of the Administrative Complaint, respectively; but finding Respondent guilty of negligence and misconduct by failing to perform his assigned duties properly on February 28, 1999, in failing to assure that certain outside doorways at a client site were secure, as alleged in Count II thereof. It is further recommended that Respondent’s Class "D", "G", and "DI" licenses be placed on probation for a period of one year under such terms and conditions as the Division may specify, and that Respondent be administratively fined $1,000.00. DONE AND ENTERED this 21st day of June, 2000, in Tallahassee, Leon County, Florida. ARNOLD H. POLLOCK 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) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings This 21st day of June, 2000. COPIES FURNISHED: Steve Bensko, Esquire Department of State The Capitol, Mail Station 4 Tallahassee, Florida 32399-0250 Leonard J. Connors, Esquire 1017 East Reynolds Street Plant City, Florida 33566 Honorable Katherine Harris Secretary of State The Capitol, Plaza Level 02 Tallahassee, Florida 32399-0100 Deborah K. Kearney, General Counsel Department of State The Capitol, Lower Level 10 Tallahassee, Florida 32399-0250
Findings Of Fact At all times pertinent to the issues herein, Alfred T. Rose held a Class "MB" investigator's license issued by the State of Florida, and the Department of State was and is the agency responsible for licensing private investigators and security guards in this State. James T. Hurley, a former law enforcement officer in New York and the United States Marines, was hired by Mr. Rose approximately fifteen months ago, initially as a patrolman in Mr. Rose's company, Secure Plus, located in Pinellas County, Florida. As the business improved, Mr. Hurley was promoted to Lieutenant and then to Captain, and given responsibility for all Secure Plus business in the south end of the northern part of Pinellas County. On June 20, 1988, while working at his automobile body shop located next to Mr. Rose's office, Mr. Hurley overheard an argument erupt between Mr. Rose and his son Cudhay Rose. As he recalls it, the argument centered around the fact that Cudhay has purchased a Cadillac automobile and Mr. Rose was upset about it, feeling that a car more suitable for company business should have been purchased. After about five minutes of alternating argument and silence, Mr. Hurley, at work in the back of his building, heard a window break. He observed Cudhay come out of the Secure Plus building, bloody and cut. Cudhay stated to Mr. Hurley that his father had tried to kill him. He asked Mr. Hurley to see if he could get his car keys out of the office and when Mr. Hurley went into the Secure Plus office, he saw Mr. Rose putting shells in his gun. When Cudhay thereafter came in, Mr. Rose pointed his gun at Cudhay's face and threatened to blow his "fucking" head off. At this point, according to Mr. Hurley, Mr. Rose appeared wild eyed and shaking. Mr. Hurley tried to clam him down and, after Cudhay left, Mr. Rose went to his office with Hurley and commented that the company was finished. At no time during this period did Mr. Rose fire his gun nor did he point it at Mr. Hurley though he advised Mr. Hurley to mind his own business. Mr. Hurley's body shop is located at the rear of Mr. Rose's building, and while the above altercation was going on, he could observe Mr. Rose and his son through the window scuffling and "bouncing off the walls. Mr. Rose admits to an altercation with his son on June 20, 1988. He contends that his son has been in a foul mood all that day and when he asked what was wrong, Cudhay indicated his wife had threatened to divorce him because he was not bring home enough money. According to Mr. Rose, at this point in time, with the business just getting started, funds were short and neither he nor his son was taking much money out of it. Mr. Rose also admits to a physical confrontation between the two of them. He contends, however, that Cudhay had become quite belligerent earlier in the morning. Mr. Rose left the office and went home. When he came back later on, he told Cudhay that his wife had called and wanted to talk with him "now." At this, Cudhay got angry and went into his office. When he came out and Mr. Rose asked what, if anything, he could do, Cudhay got furious and knocked a chair across the room. When Mr. Rose tried to grab him and clam him down, Cudhay tried to kick his father in the groin. With this, Mr. Rose grabbed Cudhay and shoved him across the room as a result of which Cudhay hit his head against the wall. Cudhay then grabbed Mr. Rose's gun from it's holster and threw it across the floor. Mr. Rose got it, and ejected the shells onto the floor. Mr. Rose retrieved his weapon and put it in the car trunk along with all six shells. Mr. Rose denies pointing the gun at Cudhay and denies even having the gun in his hand until he picked it up after Cudhay threw it aside. He denies threatening to kill Cudhay but admits threatening to "whip his butt" in an effort to get him to settle down. According to Mr. Rose, he and his son shook hands to end the disagreement and he heard nothing more about it until approximately two weeks later during which time Cudhay was in the office each day without any further argument erupting. After this two week period of calm, Mr. Chastain, the Department's investigator came to the office and when Mr. Rose asked what it was about, Cudhay indicated someone had reported the fight. It was not Cudhay who reported it, however, but Mr. Hurley. While Cudhay indicated to Hurley, Cook, and Sorenson shortly after the fight that his father had threatened to kill him, when initially interviewed by Chastain, he denied anything serious had happened because, he claims, he didn't want to get his father in trouble. It was only several months later that he went to Chastain and indicated he had lied, asking to make another, correct, statement. There can be no doubt that an altercation took place between Mr. Rose and his son on June 20, 1988, and that physical violence ensued. There is also no doubt that the weapon was displayed and words were spoken in anger. Cudhay Rose was not present to testify and all the adverse direct testimony regarding this incident comes from former employees of Mr. Rose who no longer are in his employ. Mr. Rose, while admitting an altercation, puts a different face on it. Upon consideration of all the available evidence, it is found that the gun was displayed, and while the threat to kill by Mr. Rose may not have been serious, he did assault Cudhay with it. This action is mitigated by the direct physical altercation which preceded it, however. During the months of May and June 1988, Secure Plus had a contract to provide security services for the Manatee Mall construction project located adjacent to a predominantly black area in Pinellas County. According to Mr. Hurley, on several occasions Mr. Rose would take his company car and go down to the area near the site and slowly drive past a bar known to be a place where crack cocaine was available. On these occasions, while in uniform, he would drive slowly past the bar, shining his spotlight on the building and patrons outside, turn around at the end of the street, come back and park on the construction site with his headlights shining on the bar entrance. When he would do this, according to Mr. Hurley, it would create a negative response from the black citizens and as a result, on one occasion, rocks were thrown. Hurley relates that on June 11 or 12, 1988, when he was on patrol at the project, Mr. Rose came by to visit and he saw him do it. Similar actions were recounted by Mr. Cook, also a past employee, who indicated that on one occasion while he was patrolling in the area, Mr. Rose told him that he had driven by the back of the site, a known drug dealer area, and shone his light on the people there because he wanted to "jack" the blacks. At this time, Mr. Rose stayed on the project and did not cross the road to the residential area. Mr. Sorenson, also a former employee of the company, relates that on one occasion, shortly after he was hired in late May 1988, Mr. Rose told him that he had shone his lights on some blacks near the Manatee construction project and they had thrown rocks at him. Mr. Rose had joked about this, stating he had "jacked" with the "niggers." According to Mr. Rose, when he got the job to guard the construction site, he went to the bartender at the bar related here and reached an agreement from him to keep the people from the area off the construction site. Since that time, there has been no problem at all. Mr. Rose denies having bragged about "jacking the niggers." He states he may have used the term "jacked" but denies using any racial epithet. Considering the evidence as a whole, including the repeated independent reports of Mr. Rose's use of the term, "jacking the niggers," it is found that he did harass the patrons of the bar as alleged. Mr. Hurley also related that on one occasion, when he was performing duty at the project, Mr. Rose called him to meet him for breakfast. While they were eating, Mr. Rose allegedly told Mr. Hurley that while at a car dealership he services in Pasco County, he was "spooked" by two individuals at whom he fired his .357 caliber pistol. Thereafter, according to Hurley, Mr. Rose reported the incident to a deputy sheriff but omitted the fact that he fired his weapon, and also failed to report the firing to the Department as it was a requirement to do. Mr. Rose also denies any trouble at a car lot and claims he did not discharge a firearm at the lot. In fact, the only time he has ever fired his weapon was when he took his qualification test. He denies having discussed having reported trouble at a car lot with a deputy in Pasco County because, he claims, he has never had any problem there and such an incident never happened to him. Considering the evidence presented on this issue, consisting only of hearsay admissions by the Respondent and no direct evidence to confirm any element of the allegation, it is found that no such misconduct on the part of Mr. Rose took place. Mr. Rose currently owes Mr. Hurley in excess of $500.00 but Hurley contends this debt does not have any effect on his testimony. He claims he is testifying because, in his opinion, Rose's conduct in all three incidents was dangerous. Though he has asked Mr. Rose for the money several times Mr. Rose has indicated he will not pay. Mr. Hurley claims to like Mr. Rose, describing him as a jovial and good humored individual, but the temper displayed in the altercation with Cudhay surprised him. Mr. Rose cannot understand why Hurley, Sorenson, and Cook, would make the "false" statements they made against him. He admits to owing Hurley money, but thought his relationship with the others was good. Be that as it may, there is direct evidence as to two of the alleged offenses by witnesses who were present at the scene. Mr. Rose has shown no motive for them to lie and their testimony is, therefore, believable. During Mr. Chastain's investigation, he spoke with several witnesses, including Cudhay Rose, from whom he took a sworn statement regarding the assault in which he initially denied his father had pulled a gun on him. His change of heart was prompted by concerns about his father's mental health and the safety of the public. While Mr. Rose admits to carrying a .357 revolver, he claims that when he took his qualification test, his instructor advised him that he must carry only the gun he qualified with, and since it was a .357, that is what he carries.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Mr. Rose's application for a Class MB license be denied, that he be find $1,000.00, and that his Class B, D, G, and ZB licenses be suspended for 90 days. RECOMMENDED this 21st day of April ,1989 at Tallahassee, Florida. ARNOLD H. POLLOCK, 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 21st day of April, 1989. APPENDIX TO RECOMMENDED ORDER IN CASE NOS: 88-6454 AND 89-0001 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. For the Department: 1. Accepted and incorporated herein. 2-4. Rejected as unproven. 5. Accepted and incorporated herein. For Mr. Rose: The Proposed Recommended Order submitted by Mr. Rose's counsel does not contain proposed Findings of Fact but is more in the nature of argument on the evidence. Consequently, no specific rulings are made. COPIES FURNISHED: R. Timothy Jansen, Esquire Asst. General Counsel Department of State The Capitol, Mail Station 4 Tallahassee, Florida 32399-0250 Howard J. Shifke, Esquire Anthony F. Gonzalez, P.A. 701 N. Franklin Street Tampa, Florida 33602 Hon. Jim Smith Secretary Of State The Capitol Tallahassee, Florida 32399-0250 Ken Rouse, Esquire General Counsel Department of State The Capitol, LL-10 Tallahassee, Florida 32399-0250
Findings Of Fact Dennis W. Brown is licensed to practice electrical contracting in Florida and was so licensed at all times here relevant. He holds license No. ECO 00494. In May, 1983, Respondent, while doing business as AAA Electrical Contractors, Inc., contracted to perform the electrical work at the St. Luke's Eye Clinic in New Port Richey, Florida, in conjunction with some remodeling work being done by Dennis R. Garrett, the construction supervisor, for Dr. Gill, the owner of St. Luke's Eye Clinic and other properties in the area. Garrett is licensed as a building contractor and was so licensed at all times here relevant. The oral contract entered into between Respondent and Garrett provided for relocating some electrical fixtures in conjunction with the remodeling. This consisted principally of replacing one 4-foot by 4-foot fixture with three 2-foot by 2-foot fixtures. No additional electrical load was added by this alteration. The original plan started as cabinet work in the front-desk area of the clinic and the electrical work involved replacing switches and receptacles. Both Garrett and Respondent concluded no permit was required for this remodeling, and no permit was obtained. During the remodeling, a wall was relocated by the owner's maintenance man who did all of the work or supervised subcontractors other than electrical. On May 11, 1983, William Kropick, Jr., a building official of the City of New Port Richey, visited the site. Because of the relocation of the wall, Kropik concluded that a building permit was required, and he issued a Stop Work Order until permits were obtained for contract and structural work. Kropik also observed a journeyman electrician, employed by Respondent, working at the site while Respondent was not present. It is virtually impossible for the master electrician to be on one job site continually, and it is a generally accepted practice in Pasco County for the master electrician to visit the site daily and thereby meet the code requirement for supervision of journeyman electricians.
The Issue The following issues were presented by the Petitioner or arose at hearing: Was a proper investigation and showing of interest made in this Petition? Should Assistant Sorensen be included or excluded from the proposed unit? Whether the appropriate unit should be composed solely of personnel within the Road and Bridge Department.
The Issue The ultimate issue is whether Florida Power Corporation (FPC) engaged in an unlawful employment practice by discriminating against James A. Brand on account of handicap in violation of Section 760.10, Florida Statutes (1989)
Findings Of Fact Florida Power Corporation is an electrical utility engaged in the generation, transmission, and distribution of electricity. FPC operates and maintains electrical generating plants throughout its service area, including Crystal River, Florida, where it operates two fossil generating plants, Crystal River South and Crystal River North, and a nuclear generating plant, Crystal River 3. The maintenance of the plants' equipment is performed by plant maintenance employees and by employees assigned from the System Maintenance Crew (SMC). Both regular and temporary employees work as members of the SMC in the job classifications of mechanic, certified welder mechanic, and electrician. Petitioner, James Brand, was employed by FPC on nine separate occasions during the years 1985 through 1988 as a temporary employee in the job classification of mechanic and certified welder mechanic on FPC's SMC. Temporary employees, such as Mr. Brand, are hired by FPC for the SMC for time periods of less than six months to perform overhaul and maintenance work on boilers, turbines, generators, pumps, fans, and other plant equipment during a unit or plant outage. Temporary employees are laid off and their employment is terminated as the outage work is completed. Mr. Brand had a preemployment physical examination before being initially hired as a temporary employee on the SMC in 1985. Thereafter, he had preemployment physical examinations on two occasions prior to reemployment by FPC. In June 1988, Mr. Brand was notified by letter from his attorney, Alwyn Luckey, that he has an asbestos-related lung disorder known as asbestosis. In June 1988, Mr. Brand received a clinical evaluation from Dr. Lewis J. Rubin, Head, Division of Pulmonary Medicine, University of Maryland School of Medicine, that he has pulmonary asbestosis. In approximately January or February 1989, Kathleen Moyer, a human resources representative in FPC's Crystal River office, contacted Mr. Brand regarding reemployment as a mechanic or certified welder mechanic on the SMC to work during a unit or plant outage. Mr. Brand went to Ms. Moyer's office to update his records and, at that time, provided her with Dr. Rubin's clinical evaluation reflecting that he has pulmonary asbestosis and with a copy of Mr. Luckey's June 21, 1988, letter. Ms. Moyer provided Dr. Rubin's report to Dr. Alex Sanchez, FPC's regional medical director. Mr. Brand was thereafter scheduled for a physical examination with Dr. Sanchez in February 1989. Mr. Brand also provided Dr. Sanchez with copies of Dr. Rubin's clinical evaluation and Mr. Luckey's June 21, 1988, letter. Dr. Sanchez asked Mr. Brand to get a second medical opinion. On March 4, 1989, Mr. Brand went to a physician, Dr. Nikhil Shah, who conducted a pulmonary examination and a pulmonary function or spirometry test. The results were given to Dr. Sanchez. Dr. Sanchez thereafter received a letter dated March 16, 1989, from Dr. Lewis Rubin, who had initially diagnosed Mr. Brand's medical condition as pulmonary asbestosis. Dr. Rubin stated in his March 16 letter that he had reviewed the pulmonary function test performed by Dr. Shah on March 4, and that Mr. Brand's asbestosis "should in no way impair his ability to do his job as long as he is not being exposed to noxious fumes or other environmental irritants." Dr. Ronald S. Kline, Director of Health Services for FPC, thereafter reviewed Mr. Brand's medical records, including Dr. Rubin's clinical evaluation diagnosing Mr. Brand as having pulmonary asbestosis and Dr. Rubin's March 16 letter. As Director of Health Services for FPC, Dr. Kline is responsible for the overall function of the medical department, which includes responsibility for determining whether a person has a physical or mental impairment which might limit his/her activities as they relate to his/her employment. Dr. Rubin's clinical evaluation states that Mr. Brand is at risk for the progression of pulmonary asbestosis even-in the absence of further exposure to asbestos. Dr. Kline did not request that Mr. Brand undergo any additional tests to determine if he suffers from asbestosis nor did Dr. Kline make an independent diagnosis that Mr. Brand has asbestosis. Dr. Kline accepted Dr. Rubin's evaluation and diagnosis of Mr. Brand. Dr. Kline had no reason to disbelieve the diagnosis of Mr. Brand's own physician, especially when the information regarding his medical condition was presented by Mr. Brand to FPC. On April 5, 1989, Dr. Kline issued a guideline to the human resources department placing the following restriction on Mr. Brand's employment activities: "No exposure to irritating gases or fumes, or any other environmental irritant." Dr. Kline based his recommendation on Dr. Rubin's evaluation and assessment. Moreover, Dr. Kline agreed, on the basis of his own medical experience, training, and education, that Dr. Rubin's recommendation of restrictions on Mr. Brand's activities was entirely reasonable. In Dr. Kline's medical opinion, Mr. Brand's continued employment in a position where he would be exposed to noxious fumes, gases, or other environmental irritants would pose a substantial risk of injury or harm to Mr. Brand's health. Dr. Kline does not and did not make decisions or recommendations regarding the hiring or reemployment of employment applicants. At no time did Dr. Rline recommend or otherwise indicate that Mr. Brand should not be reemployed by FPC. Rather, it was Dr. Kline's recommendation that he be employed in jobs in which he would not be exposed to noxious fumes, gases, or environmenta1 irritants. After receiving Dr. Kline's report, a human resources representative contacted Carey Hamilton, senior mechanical supervisor, and asked if he could employ a person in the position of mechanic or certified welder mechanic on the SMC who could not be exposed to irritating gases, fumes, and other environmental irritants. As senior mechanical supervisor, Mr. Hamilton is responsible for hiring and supervising the" regular and temporary mechanics and certified welder mechanics on the SMC. Mr. Hamilton has working knowledge of the environment inside the power plants due to his experience as an employee and supervisor on the SMC. He has been employed by FPC for over fifteen years in the job classifications of temporary mechanic, lab technician, certified welder mechanic, first line supervisor, and senior mechanical supervisor. He has worked as a certified welder mechanic, first line supervisor, and senior mechanical supervisor in all of FPC's power plants. Moreover, approximately ten years of Mr. Hamilton's experience has involved working with the SMC and supervising regular and temporary employees on the SMC, including during unit or plant outages. Based on his experience and firsthand knowledge of the work environment in the plants, Mr. Hamilton determined that he could not employ a person to work as a mechanic or certified welder mechanic on the SMC who could not be exposed to irritating gases, fumes, and other environmental irritants. At the time Mr. Hamilton responded to the human resources employment inquiry, he was unaware of the identity of the individual human resources was inquiring about or that this person has asbestosis. All employees on the SMC are initially hired into the mechanic classification. However, the temporary employees who are hired to work during a plant outage are usually upgraded to the certified welder mechanic position after they pass certain tests. The mechanics and certified welder mechanics working in the plant during an outage are continuously exposed to noxious fumes, gases, and other environmental irritants. Pulverized coal and fly ash, both of which have the consistency of face powder, exist in abundance throughout the plant in areas where the mechanics and certified welder mechanics are assigned to work. They are also exposed to other major irritants including sulfur dioxide gas, flue gases, smoke and dust created by tools, and irritants created by sandblasting and grinding. Mr. Brand was hired as a temporary on the SMC because of his welding and pipe fitting skills. He was qualified and certified to make safety-related pressure welds. FPC expends a significant amount of money in testing and certifying persons employed on the SMC so they can be used as welders. Prior to each period of his employment on the SMC, Mr. Brand was required to take welding certification tests in order to qualify as a certified welder. He always passed the certification tests and therefore was qualified to work as a certified welder mechanic. As a certified welder mechanic, Mr. Brand would work primarily in and around the boiler and boiler cavity. The work that is performed inside the boiler cavity by certified welder mechanics involves inspection, repair, and replacement of boiler tubes, replacement of burner fronts and defusers, and refractory repair. The certified welder mechanics clean the boiler tubes with a grinder prior to inspection. Thereafter, their work typically consists of repairing boiler tube leaks with a weld and replacing sections of the boiler tubes. The performance of this work involves grinding, burning, cutting, and welding, all of which produces fumes, gases, and other airborne irritants. The burner replacement and refractory repair work also exposes the certified welder mechanics to similar fumes, gases ~ and irritants. In addition to the boiler area, the certified welder mechanics perform work on the precipitators. This work involves burning, welding, and cleaning. The bottom ash hopper and the pulverizers that are used to crush coal are cleaned and repaired by certified welder mechanics during an outage. This work involves cutting, burning, grinding, and welding which produces noxious fumes and gases. Working on the water front and in the turbine areas during an outage exposes these SMC employees to fumes and dust particles created by sandblasting. During an outage, the SMC employees will be working on one unit that is out of operation; however, they are working next to a unit that is in operation. The unit that is in operation produces gases, fumes, and airborne irritants. The fact that Mr. Brand might work as a mechanic instead of a certified welder mechanic would not insulate him from exposure to noxious fumes, gases, and other environmental irritants. The duties of a SMC mechanic include sandblasting and grinding dirty or rusty metal, burning with a cutting torch, welding non-safety related welds, and' wire brushing. These activities are performed on a daily basis by mechanics. The sandblasting or grinding work is done with an abrasive disk that creates airborne particulates that contaminate the air. The burning process is used in making repairs such as in the steel ducts that transport air and gases to and from the boilers. Sulfur-based deposits collect in these ducts and when a torch is used in that area, the burning creates sulfur dioxide gas and other fumes. In addition, oxygen blasts are used in the burning process to increase the heat and blow metal out of the weld. This causes fly ash, dust, and other irritants to become airborne. The welding that is performed by mechanics also produces fumes and gases. All of the tools used by the SMC in the power plant are air-driven tools. The air discharged by these tools stirs up the dust, fly ash, gases, and other irritants in the workplace environment. During the time periods that a mechanic is not directly engaged in grinding, burning, or welding, he is working in close proximity to other employees who are performing those tasks, and thus, is exposed to the noxious gases, fumes, and irritants. Mr. Hamilton determined that he could not employ a certified welder mechanic on the SMC with the following restriction: "No exposure to irritating gases or fumes, or any other environmental irritant." He did not know that Mr. Brand was the proposed employee or that Mr. Brand has asbestosis. Mr. Hamilton knew that employing an individual to work as a mechanic or certified welder mechanic would expose that individual to gases, fumes, and other environmental irritants. The only positions supervised by Mr. Hamilton on the SMC are mechanic, certified welder mechanic, and tool room attendant. The tool room is housed in a large trailer parked outside of the plant. The tool room attendant's duties include issuing and receiving tools and repairing tools. These duties are performed in the tool room trailer. Because of his work location, the tool room attendant is not exposed to fumes, gases, and environmental irritants in the same way as the mechanics and certified welder mechanics. Mr. Hamilton later determined that Mr. Brand could be employed in the tool room consistent with the restrictions issued by Dr. Kline. Mr. Hamilton discussed with a human resources representative the possibility of employing Mr. Brand in the tool room. Mr. Hamilton had no objection to employing Mr. Brand in the tool room. However, there were no vacancies in that position and there have been no vacancies since that time. During 1990, Mr. Brand worked in Fluor Constructors Corporation, at Crystal River 3. Fluor Constructors is an independent contractor that is employed by FPC to perform repair and maintenance work. Mr. Brand received the referral to this job site through the Pinellas Park Local of the Pipefitters Union. While working for Fluor at Crystal River 3, he was supervised by Fluor's supervisors and not by FPC's supervisors. Mr. Brand is not seeking back pay for the period from February 23, 1991, through June 6, 1991. He was employed by a number of different employers during the period from January 1989 through May 1991. Such employers include Fluor Contractors, Inc., Teco Electric, Nisco, and a nuclear power plant in Mississippi. Mr. Brand would not be entitled to recover back pay or other monetary relief for the periods while working for other employers insofar as such interim employment periods coincided with SMC outage work periods. The hourly rate as well as other benefits of employment for temporary employees are set forth in the labor agreement between FPC and the International Brotherhood of Electrical Workers. As of December 5, 1988, the hourly wage rate for a mechanic was $16.51 per hour and for a certified welder mechanic was $18.72 per hour.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Florida Commission on Human Relations enter a Final Order denying the Petition for Relief. DONE and ENTERED this 11th day of July, 1991, in Tallahassee, Florida. DIANE R. KIESLING Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of July, 1991. APPENDIX The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, James A. Brand 1. 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(1); 1(2); 3(3&4); 475 (5-7); 6(63); 7(8); and 8-16(10-17). 2. Proposed findings of fact 17-19, 21-35, 50-54, 65-70, 76, 77, 84, 85, 91, and 92 are subordinate to the facts actually found in this Recommended Order. Proposed findings of fact 36-49, 55-64, 82, 83 and 86- 90 are irrelevant. Proposed finding of fact 20 is unnecessary. Proposed findings of fact ,1-75 and 78-81 are unsupported by the credible, competent and substantial evidence. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Florida Power Corporation 1. 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: 1-63(1-62). COPIES FURNISHED: John Barry Relly II Attorney at Law Ray, Kievit & Kelly 15 West Main Street Pensacola, FL 32501 J. Lewis Sapp Sharon P. Morgan Attorneys at Law 800 Peachtree-Cain Tower 229 Peachtree Street, N.E. Atlanta, GA 30303 Ronald M. McElrath, Executive Director Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, FL 32399-1570 Dana Baird, General Counsel Florida Commission on Human Relations Building F, Suite 240 325 Johp Knox Road Tallahassee, FL 32399-1570
