Findings Of Fact Citizens for Responsible Boating, Inc., the Petitioner, is a not-for- profit corporation organized under the laws of Florida. Its approximately 500 members own, sell and use boats and boat related products on the waters regulated by the State. Their purposes are to promote boating and water sports and to protect the boating public's right to access and use of Florida waters. The Department of Environmental Protection ("DEP") is the state agency with primary responsibility for rulemaking to regulate boat speeds incident to protection of manatees, pursuant to Subsection 370.12(2), Florida Statutes. After a series of public hearings on earlier versions of the rule, the Secretary of DEP approved the rules on August 11, 1993, to be effective on September 9, 1993. Subsection 370.12(2), Florida Statutes, the Florida Manatee Sanctuary Act, was enacted to give DEP the authority to regulate: (f). . . the operation and speed of motorboat traffic, only where manatee sightings are frequent and it can be generally assumed, based on available scientific information, that they inhabit these areas on a regular or continuous basis . . . . The challenged rules enacted pursuant to the Act have the effect of limiting boat speeds in western Volusia County in the Hontoon Dead River, and the parallel St. Johns River, roughly from a point just south of the Beresford Peninsula at Marker 63 extending south to Marker 81; and in eastern Volusia County on the Indian River from the North Bridge in New Smyrna Beach through Ponce Inlet to Rock House Creek, and on the Indian River in Edgewater and Oak Hill from Marker 65 to Marker 9A. The waterways are designated year round slow speed zones. Slow speed zones are, according to the definitions in Rule 16N- 22.002, designated areas . . . "within which it has been established that manatees are known to congregate." Eastern Volusia County (Halifax and Indian River) In the slow speed zone north of New Smyrna Beach, Michael Godfrey, Sr., a boat dealer from Edgewater who formerly water-skied in the area, reported seeing probably 6 manatees over 27 years. His average speed on the water was 45 miles per hour in boats, and in excess of 38 miles per hour on water-skis. The only manatees he is able to see are the ones which have come to the surface of the water to feed. High speed corridors are included in most of the Volusia County waterways. Exemptions from the speed limits are available for boat dealers with service departments, but no application has been made based on Mr. Godfrey's unexplained conclusion that it is not economically feasible. What was a 15 minute demonstration ride for boats from his Edgewater dealership through the Ponce Inlet prior to the enactment of speed restrictions, now takes 45 minutes. Water-skiing is impossible in the slow speed zone, and because he is a professional skier, Mr. Godfrey has to use a freshwater lake in Volusia County to ski at speeds exceeding 35 miles per hour. The nearest available freshwater lake is 35 miles from Edgewater. For nonprofessionals, water-skiing is still available in a 35 mile per hour designated water sports area near a power plant. That area is particularly congested on weekends. The water temperature is usually below 68 degrees in December, January and February. Surface temperatures go as low as 58 degrees. The rule also applies to jet skis and other types of personal watercraft, skies which average 300 pounds in weight, and extend approximately three inches into the water and have no propellers. These watercraft are not equipped with speedometers. Some barges on the St. Johns River extend six feet into the water and have not had the speed at which they operate affected by the rule. The speed allowed for boats depends, in part, on the type of hull. Mr. Godfrey knows how to determine if a boat is operating on a plane, not causing a wake, and coming off plane. A United States Coast Guard licensed ocean master, Edward J. Stupack, Jr., operated commercial fishing, diving and tour boats in Volusia County to see shuttle launches and to tour Tomoka State Park. The speed limits have caused him to eliminate Tomoka State Park tours, because trips that took four hours now take a full day. Shuttle launch tours which previously took 1 1/2 hours to the shuttle, now take 3 to 4 1/2 hours to the shuttle site. Registration for the Greater Daytona Strike and Fish Tournament has fallen from 250 boats to less than 200 in the past two years. At slower speeds, more carbon collects in boat engines, and more maintenance is required. In addition, exhaust fumes and heat make boat rides less comfortable at slow speeds. In eleven years of boating in eastern Volusia County, Mr. Stupack has seen two manatees both hugging the shoreline, one going out Ponce Inlet to sea and another around Rock House Creek. There is undisputed expert testimony in this case, however, that manatees do not always, or as a general rule, travel along the shoreline. Mr. Stupack has not applied for an exemption from the rules because he does not believe his small, part-time business has enough clout. In the 50 miles of Intercoastal Waterway from Flagler to Brevard County, eight of the total ten and a half miles regulated were regulated idle speed areas for boating safety prior to the manatee protection speed limits. The manatee slow speed zone resulted in the addition of two and a half miles of regulated area. There are two designated recreational areas along the 50 miles. DEP relied, in part, on the 1988 report of the Marine Manual Commission to support regulation in Eastern Volusia County. Western Volusia County (St. Johns River) Richard E. Rawlins, the owner and operator of a fish camp in Deland with a 150 boat slip and 59 unit campground, operates guided fishing tours exclusively in the St. Johns River Basin from Lake George at Putnam County to Lake Monroe in Seminole County. Prior to the adoption of the rule, idle zones existed around bridges and marinas on the St. Johns. Mr. Rawlins operated guided fishing tours at speeds of 40 to 45 miles per hour. The camp is close to bankruptcy having gone from 8 to 3 employees, from 80 to 85 percent to 10 percent wet storage occupancy and 30 to 35 percent dry storage occupancy. Having received three tickets and many warnings for exceeding the speed limit, Mr. Rawlins has reduced, by approximately half, his own recreational boating and fishing. Pulling persons on innertubes has also been eliminated by slow speeds, which he estimates equates to 5 to 7 miles per hour, as compared to innertubing at 40 miles per hour prior to the rule. Although, innertubing at 40 miles per hour was probably unsafe. Mr. Rawlins 20 foot boat with a 200 horsepower engine gets up on a plane at approximately 28 miles per hour and maintains a plane at 25 miles per hour. Prior to the rule, water-skiing on the St. Johns occurred primarily between Markers 38 and 20 at Cross Creek. The area now has a 30 mile per hour speed limit above Marker 32 and 25 miles below it. From the fish camp to the lower basin of the Hontoon Dead River takes over four hours, as compared to 45 to 50 minutes by boat prior to the adoption of the rule. The camp's operation of bass fishing tournaments has been eliminated by the inability to cover greater distances in shorter periods of time. In 32 years of St. Johns River boating and fishing, Mr. Rawlins estimates having seen manatees on one of every 18 to 20 trips, although the waters of the St. Johns River and its tributaries are relatively dark. He recalls one boat related manatee killing near his camp two and a half years ago, and a couple more at the Hontoon Dead River at about the same time. Recently, he has seen manatees outside of the Blue Springs area near Marker 20. Prior to that, he had not seen manatees in the area for 60 to 70 days. Although it varies, generally in December, January and February, the guide sees up to 70 manatees congregating in Blue Springs. When water temperature drops below 68 degrees in the rest of the river basin, the manatees move to Blue Springs because of its constant water temperature of 72 degrees. Mr. Rawlins does not need a speedometer to determine whether his boat is settled in the water. Because different boats settle differently depending on the type of hull, Mr. Rawlins believes Marine Patrol enforcement is not uniform. The speed limits in the areas north of the camp in the Norris Dead River to Lake Woodruff are at least 25 miles per hour, except for areas of idle zones established for marinas and for public safety, but not under the manatee protection rules. Access to southern fishing areas through the Hontoon Dead River have been adversely affected by the rule. Mr. Rawlins has not filed any written application for an exemption from the rule. He claims to have applied and been turned down by telephone. One boat manufacturer in Volusia County has received an exemption to test its boats at higher speeds. William B. Flowers, Sr., is a fishing guide who lives near the Lake Beresford Peninsula, and operates a 14 foot boat powered by a 48-horsepower motor at slower speeds than 300 foot long barges pushed by tugboats with two five foot propellers. It now takes approximately 4 hours to reach the areas of the Wekiva, River which he could reach in 35 minutes prior to the adoption of the rule. He will not apply for an exemption from the rule based on concern for his neighbors who would still have to adhere to the slow speeds. Lake Beresford is too crowded with fishermen to also accommodate water-skiers. Lake Woodruff and Lake Dexter are in a Federal Wildlife Refuge infested with alligators. On the St. Johns River, three miles of idle speed zone is imposed for boating safety and an additional nine-tenths of a mile for manatee protection, seven miles around Blue Springs and south of it, and another four and a quarter miles going into the southern Norris Dead River. The best estimate is that two thousand manatees live in Florida waters. Up to 76 manatees spend some time during the winter months in Blue Springs, particularly when water temperatures elsewhere drop to 20 degrees Centigrade or 68 degrees Fahrenheit. As water temperature approaches 50 degrees, manatees stop feeding and must get to warmer water to survive. Except for times of the most severe cold fronts, manatees in Blue Springs venture out into the St. Johns River system on a daily basis. In general, they venture out 12 kilometers from the springs, but have been known to go to Jacksonville. Mr. Flowers sees manatees around the springs from December to early March, and a few in Lake Beresford when there is grass left in the lake. The Regulations Rule 16N-22.003(6) authorizes exemptions for commercial fishermen and professional fishing guides and adopts, by reference, a written application form. Exemptions may not be granted for speeds in excess of 20 miles per hour nor in "motorboat prohibited" and "no entry" zones. There have been no denials of exemption applications from Volusia County. One exemption has been granted in Volusia County, other applications are pending. DEP relied, in part, on the Bengston study of manatees in the St. Johns River, which shows manatees move from one area to another depending on the availability of grasses for feeding. DEP also relies on the federal Endangered Species Recovery Plan for Manatees, which lists as its first priority reducing boating speeds in order to reduce boating-related accidental manatee deaths. A killing of a manatee by personal watercraft has been reported in Puerto Rico. There are no documented cases of manatees being killed by airboats. The rules apply to personal watercraft and airboats. Although, there was undisputed expert testimony that exemptions are available for airboats in some slow zones. In the last 15 to 20 years, an average of two manatees a year have been killed in Volusia County. There was no evidence of the types of watercraft causing the fatal injuries. Average boating speeds in Broward, Palm Beach and Pinellas Counties are 26 to 28 miles per hour, and lower in the rest of Florida. The majority of smaller recreational boats plane safely at speeds of 25 miles per hour or less. Because of its size and depth of the hull, DEP acknowledges that a barge going 5 miles per hour may pose more danger to manatees than smaller vessels traveling faster. The meaning of slow speed, as taught to Marine Patrol officers, is that a vessel is fully settled and level in the water and the wake does not endanger other vessels operating on the water or tied up along the shore. If an officer approaches a boat which settles into the water after reducing its speed, then the boat has not been operating at a slow speed. The view from a moving boat is a poor vantage point to determine the presence of manatees. Manatees are only able to move at speeds up to 15 miles per hour for short distances. To allow vessels to plane at approximately 20 miles per hour, 25 miles per hour zones have been adopted due to the absence of lower effective boat speeds between slow and 25 miles per hour, at which a boat could plane. The regulations also include 30 and 35 mile per hour speed zones. At 30 miles per hour, virtually all vessels, except the largest cigarette boats, can plane. At 35 miles per hour, innertubing, parasailing and water-skiing are possible if the water is deep and wide enough, except for barefoot and professional water- skiing. Although many boats are not equipped with speedometers, relatively accurate and inexpensive ones are available to determine speeds in excess of 10 miles per hour. Personal watercraft and jet skis cannot be equipped with speedometers. Other methods for determining speed are frequently used by boaters. Some of the higher speed zones in Volusia County decrease to 25 miles per hour at night, although moving boaters are unlikely to see manatees and manatees are unlikely to see boats. Manatees are able to see only two or three feet ahead, depending on water clarity, but there was unrefuted expert testimony that they are more aware of surroundings in daylight and better able to sense where to move to avoid boats.
Findings Of Fact The facts reveal that Jose Gonzalez, a driver for the Respondent, operating one of Respondent's tractor/trailer pieces of Respondent, went to a rock company located in Hollywood, Florida, on February 13, 1978, for the purpose of picking up a load of "P" rock. This rock was purchased from Miramar Lakes, d/b/a Miramar Rock on that date and the driver, Gonzalez, was given a weight ticket. The weight ticket from Miramar Rock reflected a gross weight of 72,360 pounds, which is the total of the equipment and load. (The scales at Miramar peck used to weigh the Respondent's equipment and load had been certified by the Petitioner to be accurate on June 7, 1977, and again on April 11, 1978.) The weather on February 13, 1978, was clear and the purchase, loading and weighing done on the subject equipment was without incident, until the driver attempted to pull away from the weight scales. At that moment the universal joint and yoke snapped and this caused the vehicle to be inoperable. Gonzalez left the truck at the Miramar Rock Company. At that point, the load was covered by a canvas and the trailer was not seeping or leaking water from the rock aggregate. Later, on February 13, 1978, a mechanic employed by the Respondent came to effect repairs to the vehicle, but due to the unavailability of certain parts necessary to complete the repairs, did not finish the work until February 14, 1978. When the repairs had been completed on that date, the driver, Gonzalez, removed the truck from the Miramar Rock compound and entered the roads of Broward County, Florida. At around 9:15 a.m. on February 14, 1978, Gonzalez arrived at the intersection of Hollywood Boulevard and Flamingo Road in Broward County, Florida, eastbound on Hollywood Boulevard. At that intersection, officers employed by the Florida Highway Patrol, Weights Division, intercepted the Des Rocher truck and caused the vehicle to stop. After the stop the equipment being operated at that time was established to be a vehicle measuring between 37 feet to 38 feet from the front axle to the rear axle, and the peak of the rock load was located in the center rear portion of the trailer. Officer Wilkerson of the Florida Highway Patrol observed water dripping out of the rear tailgate after making the stop. Gonzalez was asked to produce a weight ticket and in response to this request produced the weight ticket given him by Miramar Rock on February 13, 1978. Officer Wilkerson commented that this ticket was from the day before and that a ticket bearing the current date was required. Gonzalez was then told that the truck would be weighed with the method for weighing the truck being by two portable scales. Officer Wilkerson weighed one side of the truck and Officer Herron went to the other side of the truck. Wilkerson weighed the steering axle on his side of the truck; the drive axle on his side of the truck, and two tires on the rear tandem axles on his side of the truck. It is not known what Officer Herron did, if anything, in effecting the purposes of this inspection and weigh-in, because Officer Herron did not appear at the hearing in this cause and was not seen by Officer Wilkerson in conducting his inspection activities, if any. Therefore, the total weight of the truck as ascertained from the inspection ostensibly conducted by these officers was not shown by competent evidence. However, it was demonstrated through the testimony in this hearing that the plan which the officers had for making the roadside inspections was one which called for basically stopping all trucks of the category of aggregate haulers that were eastbound through the intersection on Hollywood Boulevard, to the exclusion of pickup trucks and moving vans. After stopping the former category of trucks, some were weighed and others were not. As a result of the stop, Gonzalez was ticketed for a weight violation and that ticket was in the amount of $136.45 as an assessed penalty. Gonzalez then took the truck back to the Des Rocher installation which contained a set of scales and between 10:15 a.m. and 10:30 a.m. the truck was weighed and shown to be 35.64 tons, or 71,280 pounds as the gross weight including the equipment and load. (The scales that were utilized had been certified by the Petitioner on June 7, 1977, and again on May 8, 1978.)
The Issue The issues in this case are (1) whether the Petitioner, the Department of Transportation, should assess against the Respondent, Cypress Creek Landscape Supply, Inc., a penalty for violating the Taylor Road bridge weight restriction, and (2), if so, the amount of the penalty.
Findings Of Fact On February 9, 1990, a commercial motor vehicle owned and operated by the Respondent, Cypress Creek Landscape Supply, Inc., was driven over the bridge over Alligator Creek on Taylor Road (County Road 765A), a federal aid primary highway near Punta Gorda, Charlotte County, Florida. The vehicle, loaded with mulch, was weighed at 71,760 pounds. The Taylor Road bridge is part of a route that can be taken by I-75 traffic wishing to bypass one of the Department's I-75 weight stations. The bridge is posted as being restricted to a maximum weight of 22 tons. The weight restriction is posted at the bridge, and warnings that the weight restricted bridge is ahead appear at conspicuous places at terminals of all intermediate crossroads and road junctions with the section of Taylor Road containing the weight restricted bridge. Notices are posted twice near the exit from I the Respondent's vehicle used to bypass the Department weight station. From these locations, the Respondent's vehicle could have been turned around to avoid the weight restricted bridge. A Department Compliance Officer cited the Respondent for violating the maximum weight restriction for the Taylor Road bridge and assessed a $1,388 penalty, calculated at five cents per pound by which the scaled weight of the vehicle (71,760) exceeded the maximum weight (44,000 pounds). The Department's Form 509-13, Revised 05/89, titled the "Load Report and Field Receipt," specifies that, in subtracting the legal weight from the the scaled weight to determine the amount of overweight, a ten percent tolerance should be added to the legal weight. This is how the Department interprets and applies the requirement of Section 316.545(2)(a), Fla. Stat. (1989), that, for enforcement purposes, all scaled weights of the gross or axle weight of vehicles and combinations of vehicles shall be deemed to be not closer than 10 percent to the true gross weight.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Transportation enter a final order finding the Respondent, Cypress Creek Landscape Supply, Inc., guilty of violating the Taylor Road bridge weight restriction and assessing a $1,168 penalty (reduced from $1,388). RECOMMENDED this 29th day of May, 1991, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of May, 1991. COPIES FURNISHED: Vernon L. Whittier, Jr., Esquire Assistant General Counsel Department of Transportation 605 Suwannee Street Tallahassee, Florida 32399-0450 Steven P. Lewis, President Cypress Creek Landscape Supply, Inc. 12734 North Florida Avenue Tampa, Florida 33612 Ben G. Watts Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0458 Thornton J. Williams, Esquire General Counsel Department of Transportation 562 Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0458 Elyse S. Kennedy Executive Secretary Commercial Motor Vehicle Review Board Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450
Findings Of Fact Petitioner McGowan was dismissed from his position as State Trooper by Respondent by letter dated 31 January 1978 (Composite Exhibit 1) which recites that the action in dismissing Petitioner is based upon Petitioner's violation of General Order No. 43 2.1C, Insubordination, third offense, and Rule 22A- 7.10(7)(a) Florida Administrative Code. McGowan was advised of his right to file a grievance pursuant to the agreement between Florida and the PBA or appeal the dismissal to the Career Service System. McGowan opted for the former and during the course of that hearing raised the issue before the Arbitrator that G.O.'s 40 and 43 were rules and invalid because not promulgated as required by Chapter 120 Florida Statutes. Respondent contested the jurisdiction of the Arbitrator to resolve this question, the parties stipulated that this issue be submitted to DOAH for determination, and the Petition here involved was filed. G.O. 40 relates to physical fitness of members of the Florida Highway Patrol and, after pointing out that weight control is an important part of physical fitness, provides in pertinent part: Members shall maintain control of their weight in relation to their height, age, and body build. There are several charts and tables available indicating the ideal or desirable weight based on the above factors. The maximum allowable weight by height for all ages and body builds for the members of the Florida Highway Patrol shall be those used by the Federal Bureau of Investigation. See G.O. 41, Appendix A. Exception to the maximum limits may be made for members who have a large amount of muscle weight (without excessive fat) and a physician certifies that the individual is not overweight due to excess fat. Failure to comply with the maximum weight limits will result in a low rating for personal appearance on the employee evaluation form and disciplinary action may be taken for violation of this regulation, as provided in G.O. 43. G.O. 43 contains guidelines for establishing standards of disciplinary actions and for appeals to the Career Service Commission. Guidelines for disciplinary actions are contained in Section 2.1 of G.O. 43 which provides in pertinent part: C. Guidelines: The following guidelines are established to insure that all supervisors are being reasonably consistent in taking disciplinary actions against employees involved in similar situations. These guidelines may be expanded or modified from time to time to meet changing conditions and to make their use more effective. They shall be followed generally; however, it is realized that some of the offenses and deficiencies will be more frequent in some cases, and the supervisor may take or recommend another course of action. In no case will these guidelines be binding on the Department as the disciplinary action it shall take. G.O. 43 goes on to provide in the recommended table of Disciplinary Actions following the above quoted provision that for the third offense of insubordination the offender may be dismissed. By letter dated August 10, 1976 (Composite Exhibit 1) Petitioner was advised by Respondent that he was 60 pounds overweight, that his doctor had stated Petitioner's back problem is greatly aggravated and brought about by the overweight problem, and he was directed to make a concerted effort to reduce weight. By letter dated April 7, 1977 (Composite Exhibit 1), Petitioner was suspended from duty for 8 hours without pay for insubordination based upon failure to lose weight as directed in the August 10 letter. By letter dated September 28, 1977 (Composite Exhibit 1) Petitioner was suspended from duty for 16 hours without pay for insubordination for not conforming to weight regulations. By letter dated January 31, 1977 (Composite Exhibit 1) Petitioner was dismissed for the third offense of Insubordination for not conforming to weight regulations. On one or more occasions petitioner was granted sick leave by reason of back problems associated with being overweight.
Findings Of Fact At all times material hereto, Petitioners were inmates incarcerated at Union Correctional Institution under the custody and control of the Department of Corrections. Respondent stipulated at final hearing that Petitioners have "standing" to maintain this rule challenge proceeding. During 1982 Respondent amended its Rule 33-3.045, Florida Administrative Code, entitled Package Permits. The final version of the amended rule was filed with the office of the Secretary of State on December 23, 1982, and became effective January 12, 1983. The text of the proposed rule was published in the October 22, 1982, issue of the Florida Administrative Weekly. Subsequent thereto, changes were made in the text of the proposed rule which had the effect of deleting from the list of items which inmates could receive in Christmas packages the following: apples, candies, chewing gum, cookies, and nuts. No person affected by the proposed rule requested a public hearing pursuant to Section 120.54(3) Florida Statutes. Respondent filed with the office of the Secretary of State a Statement of Changes and a Notice of Changes indicating the above-referenced deletions apparently at the time the rule was filed for adoption. In addition, Respondent filed with the proposed rule an economic impact statement which estimated that there would be no cost or economic benefit to persons affected by the rule as a result of the proposed amendments. Although the record in this cause establishes, and common sense confirms, that some cost saving might result to persons wishing to send the deleted items to inmates, there is no evidence of record in this cause to establish how Respondent's failure to take this factor into account affected the fairness of the rule adoption proceeding. At the time of final hearing in this cause there were approximately 2,500 inmates incarcerated at Union Correctional Institution. Each of these inmates is entitled to two Christmas package permits during the months of November and December. As a result as many as 5,000 Christmas packages could be received by the institution during that time period. Respondent's experience with Christmas packages has shown that apples, candies, chewing gum, cookies, fruit cakes, and nuts lend themselves to the introduction of contraband into correctional facilities. Because of the volume and character of Christmas packages, Respondent experienced both staffing and liability problems, particularly in the area of food stuffs. Respondent found that it was particularly difficult to examine food stuffs for contraband because it often would require chemical analysis to determine whether contraband items, such as drugs or alcohol, were baked or otherwise placed into the food stuff themselves. In addition, because of the volume of packages received Respondent often had to transfer employees from other areas of operation into the mailroom in order to process the packages, thus creating additional problems because employees had to be taken from their assigned tasks. Further, Respondent received notification from the Division of Risk Management indicating a precipitous rise in claims for damages from inmates whose food stuffs had been necessarily damaged in checking for contraband items. Finally, Respondent determined that most, if not all, of the items deleted from the Christmas package permit list were available to inmates through institution canteens.
The Issue Whether Respondent engaged in unlawful employment practices with regard to Petitioner.
Findings Of Fact Graham is a black male. He filed an employment application with Pier 1, a "chain retailer," on August 23, 1999. The application indicated that he applied for a position as a sales associate but in fact he was to be employed as a stockroom assistant. His employment application included a block denominated, "Work Availability." Graham completed this block indicating that he was available to work between 6:00 a.m., and 12 p.m., Monday through Saturday. The employment application stated in the block denominated, "Work Availability," the following: "Although an effort will be made to accommodate individual work schedule preferences and availability, work schedules such as start time, number of daily or weekly hours and assigned work days are subject to change at any time. Availability to work on weekends is required. Number of hours may vary based on business necessity and could change an individual's employment status." Graham was hired on August 30, 1999, as a full-time employee. He worked primarily in the back stockroom. A meeting of store personnel was scheduled at the store on Sunday, November 17, 1999, at 6:30 p.m. Graham was aware of the meeting. He was 20 minutes late because he was participating in a church service at Macedonia Primitive Baptist Church. As a result of his tardiness he was presented with an Associate Corrective Action Documentation, which is a confidential Pier 1 form. The form noted that this was his first "tardy." The form as completed took no action such as suspension or loss of pay. It merely informed him that further instances of tardiness could lead to disciplinary action. Graham testified that he was treated differently from a white woman employee, one Christy Musselwhite, who did not attend the meeting, because Musselwhite did not receive a counseling form. However, Graham's personal knowledge of Musselwhite's situation was insufficient to demonstrate that Musselwhite was treated differently from Graham because of race or gender. Graham felt humiliated because he received the Associate Corrective Action Documentation form. Graham resigned from Pier 1 effective November 12, 1999, so that he could begin employment with the Florida Department of Children and Family Services at a rate of pay in excess of that which he received at Pier 1.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Florida Commission Human Relations enter a final dismissing Petitioner's claim of discrimination. DONE AND ENTERED this 15th day of November, 2001, in Tallahassee, Leon County, Florida. HARRY L. HOOPER 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 15th day of November, 2001. COPIES FURNISHED: Russell D. Cawyer, Esquire Kelly, Hart & Hallman 201 Main Street, Suite 2500 Fort Worth, Texas 76102 Kenneth Terrell Graham 2811 Herring Drive Tallahassee, Florida 32303-2511 Cecil Howard, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Denise Crawford, Agency Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Ronni Morrison Pier 1 Imports Post Office Box 961020 Fort Worth, Texas 76161-0020
The Issue The issue in this case is whether the $490 fine assessed by the Respondent against the Petitioner was unwarranted or incorrect.
Findings Of Fact On May 1, 1989, Wando Trucking, Inc. ("Wando") obtained a trip permit from the Florida Department of Transportation ("DOT") authorizing the transportation of an overweight load. Wando proposed to transport one sealed containerized cargo unit. The permit was valid for one trip from Jacksonville, Florida to the Georgia border and expired on May 5, 1989. The permit contained several special requirements, including the typing, on the cargo packer's bill of lading, of the identification number stamped on the container seal. The DOT considers a permit to be void if permit requirements are not met. Packers of containerized cargo affix numbered seals to the containers. The seals are constructed so as to prevent the opening of a container without destruction of the seal. The DOT's requirement that the seal number be typed is to lessen the opportunity for a carrier to alter the cargo or substitute contraband for a sealed and permitted load. On May 1, 1989, the Wando truck stopped at the DOT weigh station on I- 95 in Yulee, Florida. Upon weighing the vehicle, the DOT employee found the truck, at 89,800 pounds, to be over the legal statutory weight of 80,000 pounds. The DOT employee examined the excess weight permit offered by the Wando driver and found that the container seal number was handwritten, across the bill of lading, rather than typed as the permit requirements stated. The DOT employee completed the appropriate documentation and assessed a fine of $490. The fine was calculated at five cents per pound for the 9,800 pound overage. Wando paid the fine. The evidence does not establish that the assessed fine was inappropriate. The assertion by Wando Trucking, Inc., that there was no intent to violate the permit provisions is irrelevant.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Transportation enter a Final Order dismissing the petition of Wando Trucking, Inc. DONE and RECOMMENDED this 13th day of March, 1990, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM 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 March, 1990. APPENDIX The Petitioner did not file a Proposed recommended order. The following constitute rulings on Proposed findings of facts Submitted by the Respondent. Respondent The Respondents Proposed findings of fact numbered 1-3 are accepted as modified in the Recommended Order. COPIES FURNISHED: Ben G. Watts, Secretary Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0458 Paul F. Tecklenburg, Esq. Post Office Box 1430 Charleston, South Carolina 29401 Vernon L. Whittier, Jr., Esq. Department of Transportation 605 Suwannee Street, M.S. 58 Tallahassee, Florida 32399-0458
