Findings Of Fact At all times pertinent to the allegations herein, the Petitioner, the Department, was the state agency responsible for the licensing and monitoring of the operation of interstate motor carriers in this state. The Respondent, PAT, was an interstate motor carrier of automobiles operating over the roads of this state. On October 10, 1991, Officer Ralph Vargas, an officer with the Department's Office of Motor Carrier Compliance stopped the Respondent's automobile carrier being operated by an employee of the Respondent in Boynton Beach, Florida, going north on US Highway #1. The stop was a random routine Level III safety inspection. Review of the documents carried by the driver reflected that the driver's driver license and the vehicle registration were in order. However, a review of the outside of the cab revealed that there was no required fuel decal being displayed. The driver showed Officer Vargas the cab card issued by the State of Florida for the fuel decal reflecting a decal had been issued for this vehicle. However, the decal was not displayed on the outside of the vehicle even though Mr. Vargas could see an area where an decal had been affixed. He can not recall whether he felt the area to see if it was sticky and he was unable to determine whether the former decal had been issued by the State of Florida or not. He did not see a CVSA, (Commercial Vehicle Safety Alliance) decal either. As a result of this infraction, Mr. Vargas assessed a penalty in the amount of $50.00 and issued a temporary permit at a cost of $45.00, both of which were paid by the driver at the scene. It is this penalty and permit which the Respondent contests. The pertinent statute in issue here required a vehicle of this kind to have both a cab card and a fuel decal which must be affixed to the vehicle. Mr. Vargas also issued the driver a warning for having an unauthorized passenger, (his son) on board and for not having his log book current. Mr. Hurley contends that just one week prior to this stop, the vehicle and driver were in California where a CVSA inspection was accomplished. While this was being done, Mr. Hurley personally inspected the vehicle to insure that all required decals were affixed. Again, before the truck left New Jersey on the instant trip, he again checked to insure the required decals were there. They were. Because he is aware of the extended time required to get a replacement decal for a vehicle, Mr. Hurley routinely purchases several extra $4.00 cab card and fuel decal sets for his trucks so that if, as here, one is lost or removed, he can, upon notice, get a replacement to the driver overnight. Here, he claims the decal must have been peeled off by someone while the vehicle was on this trip. It is his experience that Florida's decals are easily pulled off and, unlike the decals in some other states, there is no built in voiding process which would void the decal in the event it is stolen. Here, Mr. Hurley claims, the driver did not know the decal was gone. Had he known, he could have called the home office on the truck phone and have it delivered. It is so found.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that a Final Order be entered herein denying Professional Auto Transport, Inc.'s request for a refund of the $50.00 civil penalty and $45.00 permit fee. RECOMMENDED this 12th day of June, 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 Filed with the Clerk of the Division of Administrative Hearings this 12th day of June, 1992. COPIES FURNISHED: Vernon L. Whittier, Jr. Assistant General Counsel Department of Transportation 605 Suwannee Street, MS 58 Tallahassee, Florida 32399-0458 Richard L. Hurley President Professional Auto Transport, Inc. Box 492 Lakewood, N.J. 08701 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 Bldg. 605 Suwannee Street Tallahassee, Florida 32399-0458
Conclusions This matter came before the Department for entry of a Final Order upon submission of an Order Relinquishing Jurisdiction and Closing File by William F. Quattlebaum, an Administrative Law Judge of the Division of Administrative Hearings, entered October 7, 2011. The Department hereby adopts the Order Closing File as its Final Order in this matter. Said Order Closing File was predicated upon Petitioner’s notice of dismissal without prejudice of the Amended Complaint contesting the intended denial of Respondent’s application for licensure. Accordingly, it is hereby ORDERED AND ADJUDGED that Petitioner’s application for licensure as a DUI Program in the 13" Judicial Circuit is denied. — DONE AND ORDERED this | [ a day of October, 2011, in Tallahassee, Leon County, Florida. Sou _-“ SANDRA C, LAMBERT, Direct Division of Motorist Services Department of Highway Safety and Motor Vehicles Neil Kirkman Building 2900 Apalachee Parkway Tallahassee, Florida 32399 Filed with the Clerk of the Division of Motorist Services this { pte day of October, 2011. NOTICE OF APPEAL RIGHTS Judicial review of this order may be had pursuant to section 120.68, Florida Statutes, in the District Court of Appeal! for the First District, State of Florida, or in any other district court of appeal of this state in an appellate district where a party resides. In order to initiate such review, one copy of the notice of appeal must be filed with the Department and the other copy of the notice of appeal, together with the filing fee, must be filed with the court within thirty days of the filing date of this order as set out above, pursuant to Rules of Appellate Procedure. Copies furnished: Lilja Dandelake, Esquire Judson M. Chapman, Esquire Assistant General Counsels Department of Highway Safety and Motor Vehicles Donna Blanton, Esquire Bert Combs, Esquire Attorneys for Intervenor Radey Thomas Yon & Clark, P.A. 301 S. Bronough Street, Suite 200 2900 Apalachee Parkway, Rm. A-432 Tallahassee, Florida 32399-0504 Scott Boardman, Esquire David Scott Boardman, P.A. Attorney for Petitioner 1710 E. Seventh Ave. Tampa, Florida 33605 Tallahassee, FL 32301 William F. Quattlebaum Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399
Findings Of Fact At about 12:00 noon on January 31, 1971, an automobile collision occurred in Clay County, Florida, between David Earl Mattox and Douglas Jay Gilbert. Mattox, driving a Chevrolet pick-up, slid into the rear of Gilbert's Ford sedan after being unable to stop on the wet pavement. Mattox was uninjured and Gilbert complained of a slight headache. An acquaintance of Gilbert was riding in Gilbert's car as a passenger. Neither driver reported the accident at that time and, in fact, drove his own vehicle to Gilbert's place of business to talk about the accident. A decision was made at that meeting to handle the matter privately without notification of insurance companies or law enforcement, authorities. Later that day, Gilbert's head and neck began hurting so Gilbert's father took him to a doctor in Green Cove Springs. The doctor advised Gilbert that he had suffered whiplash. Gilbert continued to visit the hospital for about two days for treatment and diagnosis. That same evening, after the diagnosis was received, Gilbert's father called Mattox and advised him that the accident should be reported. Mattox agreed and at approximately 5:00 p.m. on the day of the accident, Mattox called Libby at home. Mattox had planned a trip to Daytona Beach that evening so Libby agreed to wait until the next day to make his investigation of the accident. At about 3:00 p.m., February 1, 1977, Libby met with Mattox and Gilbert's father at Mattox's place of business. At that time, Libby interviewed Mattox and Gilbert's father, inspected Mattox's vehicle and prepared the accident report. Gilbert was not present at the meeting and at no time did Libby interview him or Gilbert's passenger regarding the accident. At no time did Libby inspect Gilbert's vehicle. Although another Florida Highway Payroll trooper was on duty in the area, Libby agreed to conduct the accident investigation even though he was not on duty. Libby attended the meeting in civilian clothes. Libby did not investigate the scene of the accident. The accident report prepared by Libby fails to disclose that Gilbert's vehicle contained a passenger and fails to include a diagram of the collision. The accident report recites the amount and degree of damage to Gilbert's car, notwithstanding Libby's failure to inspect the vehicle. The stated damages in the accident report are $150.00 whereas the actual damages were closer to $400.00. As reflected in the accident report, no arrests or charges were made as a result of the collision. As of the time of the hearing, no charges had been made and no supplemental report had been filed. It is the policy of FHP that all vehicles be inspected and all principals be interviewed, if possible, prior to the final preparation of an accident report. In addition, it is policy that Highway Patrol officers be in uniform when performing their duties. The accepted procedure in these circumstances would have been for Libby to either contact an on duty trooper to go on duty himself in uniform prior to investigating the accident. Libby has been previously disciplined for negligence in the performance of his duty.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Career Service Commission sustain the action taken by FHP. DONE and ENTERED this 8th day of September, 1977, in Tallahassee, Florida. MICHAEL R.N. McDONNELL Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Mr. B. M. Libby Post Office Box 322 Green Cove Springs, Florida 32043 Edwin E. Strickland, Esquire General Counsel Neil Kirkman Building Tallahassee, Florida 32304 Mrs. Dorothy B. Roberts Room 530 Carlton Building Tallahassee, Florida 32304 Enoch J. Whitney, Esquire Assistant General Counsel Neil Kirkman Building Tallahassee, Florida 32304
Findings Of Fact Petitioner is male and Cuban. He is a member of a protected group and a qualified individual. Petitioner was employed by the Fleet Manager for Orange County, Florida in February, 1981, as a Mechanic I. He was later reclassified as a Mechanic II as part of an internal reorganization. Petitioner's duties require him to drive County vehicles to various locations to repair other County vehicles. The parties stipulated that Petitioner is a good mechanic and has always performed mechanical repairs competently. Orange County is a subdivision of the state. It employs a substantial number of people. The Fleet Manager maintains Orange County vehicles, operates and maintains the County's refueling system, and operates and manages emergency rescue vehicles and emergency generators for the County. The Fleet Manager is responsible for all personnel matters for County employees assigned to the fleet system. Mr. James Brock is the Fleet Manager who took the employment actions on behalf of Orange County that are the subject of this proceeding. Orange County employed Mr. Brock as a traffic engineer in 1987 and promoted him to Assistant Fleet Manager and Fleet Manager, respectively, in 1989 and 1992. Orange County and the Fleet Manager are referred to hereinafter as "Respondent." Respondent maintains a progressive discipline policy. Discipline progresses from counseling or verbal reprimand, to written reprimand, suspension, and then termination. The purpose of the progressive discipline policy is to make individual employees productive workers by modifying their behavior from inappropriate to appropriate behavior. The purpose of the progressive discipline policy is not to punish employees. Respondent prohibits discrimination, including that based on national origin. Respondent prohibits the implementation of its progressive discipline policy in a manner that discriminates against employees. Petitioner has a long history of discipline that began in his first year of employment. In November, 1981, Petitioner wrecked at least three vehicles. He received a written reprimand. In 1982, Petitioner ran over a battery charger. In 1985, after repeated warnings and notices, Petitioner was suspended for approximately three days for refusing to follow County policies. In 1991, Petitioner wrecked a County vehicle in an automobile accident with another vehicle driven by a member of the public. The truck driven by Petitioner was totally destroyed. The employment actions at issue in this proceeding began in April 1993. Respondent received information that Petitioner kept his County vehicle at his house on work days and used it for personal purposes, including hauling bricks to build a fence. Respondent convened a meeting with Petitioner, Petitioner's foreman, and an interpreter. Respondent and the foreman advised Petitioner that it was a violation of County policy to take a County vehicle home, to take the vehicle outside of the County where Petitioner resides, and to falsify work records. In September 1993, Respondent issued a written reprimand to Petitioner for threatening a co worker with Petitioner's vehicle. Respondent concluded that Petitioner drove his vehicle toward a co worker at a rapid speed and stopped just before impact. In October 1993, Respondent received repeated telephone calls from a third party that Petitioner was home during work days with his County vehicle. Respondent verified the reports with its own investigation and charged Petitioner with insubordination, taking a County vehicle home, and falsifying work records. Respondent conducted a predetermination hearing in accordance with due process requirements. Respondent notified Petitioner of his right to have a representative, attorney, or union steward present and to appeal any adverse determination. Petitioner attended the predetermination hearing. Both Petitioner and Respondent presented evidence including the testimony of witnesses under oath. The hearing was recorded. Respondent suspended Petitioner for four days without pay. In February 1994, Petitioner wrecked another County vehicle. He backed over a County lawn mower while backing his own vehicle out of the heavy equipment shop. Respondent counseled Petitioner after the incident. Petitioner does not have a good driving record. He has numerous speeding tickets. In August 1994, Respondent required Petitioner to attend a cultural awareness course. The course teaches cooperation among individuals from diverse cultural or ethnic backgrounds. Respondent requires all employees to attend the course. Petitioner argued with the instructors and refused to stay in the course. In September 1994, Respondent issued a letter of direction requiring Petitioner to attend the course. In September 1994, Petitioner took his County vehicle home again. Respondent counseled Petitioner for the violation and conducted an investigation that was still pending in October 1994. On October 14, 1994, Petitioner responded to a request for emergency repair of another County vehicle. Respondent drove his County vehicle recklessly and made an obscene gesture to another motorist. Petitioner followed the motorist up an access ramp on the East West Expressway at a speed of 35 40 mph, made an obscene gesture, and passed the motorist improperly. Petitioner followed the motorist at a distance of less than one foot. Petitioner then turned on the yellow warning lights on his County vehicle. When the motorist did not pull over and allow Petitioner to pass, Petitioner made an obscene gesture and passed the motorist while on the access ramp. The motorist pulled up beside Petitioner and wrote down the number of the vehicle. The motorist reported the incident to Respondent on the same day. Respondent investigated the incident and conducted a predetermination hearing on November 2, 1994. Petitioner participated in the predetermination hearing. Respondent terminated Petitioner on November 11, 1994. While Petitioner was employed by Respondent, Petitioner applied for promotion to Mechanic III approximately three times. Respondent never promoted Petitioner. Promotions are determined by a board composed of four mechanics who sit for a prescribed period and then are replaced by other mechanics. The mechanics are appointed to the board by management. The board is racially diverse. It typically includes Hispanics. The board conducts a separate interview of each candidate for promotion. The board members ask each candidate identical questions and score the responses from each candidate. The board then recommends the candidate with the highest score. The board never recommended Petitioner for promotion. Respondent has never deviated from the recommendation of the board. The candidates recommended by the board are racially diverse. They include Hispanics. Respondent has never taken any employment action against Petitioner on the basis of Petitioner's national origin. Respondent has never taken any employment action against Petitioner for a discriminatory reason.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a Final Order finding Respondent not guilty of discriminating against Petitioner on the basis of his national origin. RECOMMENDED this 9th day of June, 1997, in Tallahassee, Florida. DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 9th day of June, 1997 COPIES FURNISHED: Dana Baird, General Counsel Florida Commission On Human Relations Building F. Suite 240 325 John Knox Road Tallahassee, Florida 32399 0700 Sharon Moultry, Clerk Florida Commission On Human Relations Building F. Suite 240 325 John Knox Road Tallahassee, Florida 32399 0700 Peter T. Hickey, Esquire Post Office Box 1323 Orlando, Florida 32802 Jeffrey J. Newton, Esquire Orange County Attorney's Office Orange County Administration Center Post Office Box 1393 Orlando, Florida 32802 1393
The Issue At issue is whether Respondent represented to Ms. Renee Benton that she had to purchase an auto club in order to buy automobile insurance, which is not true, contrary to the law, and a violation of various statutes.
Findings Of Fact 1 On February 1, 1991, Renee Benton went to Mid County Insurance Agency in Jacksonville, Florida for the purpose of obtaining automobile insurance. At all times material hereto, Mid County Insurance Agency was a general lines insurance agency licensed by the State of Florida. Respondent, Eric Thomas Fromme, was the President and owner of Mid County Insurance Company. On February 1, 1991, Complainant, Renee Benton, purchased an automobile insurance policy from Mid County, more specifically from its owner, Eric Thomas Fromme. Complainant, Renee Benton, testified that the Petitioner told her that he could not sell her automobile insurance unless she purchased a membership in a motor club. Respondent, Eric Thomas Fromme, testified that he personally dealt with Complainant, Renee Benton, and that he did not tell Renee Benton that he could not sell her insurance without Motor Club Coverage. Complainant, Renee Benton, was in a hurry on the day and time she went to Mid County to purchase automobile insurance and as a result did not read any of the documents she signed on February 1, 1991. Renee Benton did not complain about the contract and was unaware of the matter until approached by agents of the Department. Until she reviewed the policy documents, she was unaware that she paid $100 to join the auto club. At the time of the purchase the automobile insurance policy from Respondent, Renee Benton paid Respondent $153.00 and entered into a premium finance agreement to finance a portion of the policy premium. That agreement stated that Renee Benton had paid a $53.00 down payment. (Pet. No. 4.) A fee of $100.00 for the motor club was deducted from her payment at the time she purchased the insurance and motor club. (Testimony of Renee Benton.) At the time that she purchased the automobile insurance, Renee Benton executed a form which stated that a motor club purchase was voluntary and that she was not required to purchase a motor club in order to purchase that insurance. (Pet. No. 7.) Renee Benton testified she would not have financed any of premium, had she been able to purchase the automobile insurance without purchasing a motor club. (Testimony of Renee Benton.)
Recommendation Based upon the foregoing proposed Findings of Fact and Conclusions of Law, it is, recommended that the Administrative Complaint be dismissed. RECOMMENDED this 8th day of June, 1992, in Tallahassee, Florida. STEPHEN F. DEAN 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 8th day of June, 1992. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-0019 The parties presented proposed findings of fact which were read and considered. The following findings, as indicated, were adopted, or rejected for the reason stated: Petitioner's Findings of Fact: Paragraph 1-3 Rejected in favor of Respondent's statement of these facts. Paragraph 4,5 Rejected as conflicting with more credible evidence. Paragraph 6-9 Adopted, but reordered. Respondent's Findings of Fact: Paragraphs 1-8 Adopted. COPIES FURNISHED: David D. Hershel, Esquire Department of Insurance Division of Legal Services 412 Larson Building Tallahassee, FL 32399-0300 Shane C. Maddox, Esquire 337-C East Bay Street Jacksonville, FL 32202 Bill O'Neil, General Counsel Department of Legal Affairs The Capitol, Plaza Level 11 Tallahassee, FL 32399-0300 Tom Gallagher, State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, FL 32399-0300
Findings Of Fact At all times pertinent to the issues herein, the Petitioner, Department of Transportation, was responsible for the licensing and regulation of the operation of commercial motor vehicles on all streets and roads in this state. The Respondent, Florida Mining & Materials operates and, at the time of the alleged violation, operated commercial vehicles over the roads of this state. By letter dated June 11, 1990, George L. Crawford, P.E., Acting Director of Lee County's Department of Transportation and Engineering, notified the Petitioner's Office of Motor Carrier Compliance that it appeared trucks were exceeding the posted weight limits of the Ortiz Road Culvert, located 0.3 miles south of SR - 80 in Lee County. As a result of this letter, the Department began to monitor the cited culvert and on July 19, 1990, Officer Ellis K. Burroughs observed Respondent's cement dump truck cross the culvert in front of and to the side of which, in plain view, was a sign indicating that trucks weighing over 5,000 pounds should detour and go down Luckett Road without crossing the culvert. According to Mr. Burroughs, Respondent's vehicle did not detour as directed and went north on Ortiz Avenue, over the culvert. Mr. Burroughs gave chase and finally stopped the driver of Respondent's truck some 6 or 7 blocks north of the culvert. When asked why he had failed to use the detour and had crossed the culvert, the driver of the truck said his office had told him to do so and he had done so before. This comment is introduced not to show aggravation but to dispel any inference of lack of knowledge of the limitation. The sign in question had been erected on December 4, 1980. Some months after this incident, the sign was changed and the current permissible weight is 20 tons. No reason was given for the change nor was any information presented as to whether any modifications were done to the culvert before or since the change. The culvert in issue was described as of light construction - a culvert pass-through underneath the roadway. Mr. Burroughs weighed the offending truck at the scene and determined it had a gross weight of 45,700 pounds. The legal weight on that bridge at the time was only 5,000 pounds and, therefore, the Respondent's truck was overweight by 40,700 pounds. At a penalty of 5 cents per pound of violation, the penalty was assessed at $2,035.00 which was paid by the Respondent on August 3, 1990. Respondent's representative, Mr. Watson, was not present at the time and had no personal knowledge of the incident. He claims, however, that his company was operating under the impression that even at the time, the weight limit over that culvert was 20 tons. He does not concede that at the time of the incident the load limit was only 5,000 pounds. The weight of the evidence, however, is that it was. He claims this road is the only way they have of getting to certain jobs and if cut off from crossing, they are cut off from their business. Mr. Watson admittedly is not familiar with the area and overlooks the fact that there are alternative routes to the other side of that culvert, albeit somewhat longer. He discounts the somewhat longer, (2 1/2 miles additional), route claiming, "That's a lot of milage when what you're hauling is redi-mix concrete." Mr. Watson introduced several pictures of other large trucks going over that same culvert in an effort to show that other vehicles may also have been in violation. Some of those pictures were taken subsequent to the limit change and reflect that the limit is 20 tons. Further, Mr. Burroughs and Mr. Thompson indicate that subsequent to the letter from the County requesting increased surveillance, at least 45 to 50 citations were issued at that culvert. Some carriers were cited several times. Respondent was cited only once. After paying the penalty assessed, Respondent appealed it to the Department's Commercial Vehicle Review Board which reviewed it at its November 8, 1990 meeting and determined that a refund was not appropriate.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the Respondent's request for a refund of the $2,035.00 fine paid for the violation of the weight limits on the culvert in question here be denied. RECOMMENDED this 8th day of July, 1991, 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 Filed with the Clerk of the Division of Administrative Hearings this 8th day of July, 1991. APPENDIX TO RECOMMENDED ORDER 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. COPIES FURNISHED: H. Robert Bishop, Jr., Esquire Department of Transportation 695 Suwannee Street, M.S. 58 Tallahassee, Florida 32399-0458 Ray Watson Operations Manager Florida Mining & Materials Post Office Box 2367 Tallahassee, Florida 33902 Ben G. Watts Secretary Department of Transportation Haydon Burns Building 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
Findings Of Fact Respondent, Mary Jean Brooker, is a teaching veteran of approximately 18 years, and most recently was employed by Petitioner as a specific learning disabilities (SLD) teacher at Bear Creek Elementary School in St. Petersburg, Florida, pursuant to an annual contract. Respondent received worker's compensation benefits from June 8, 1992, to November 30, 1992, based on the recommendation of Petitioner's worker's compensation doctor, Scott Russell, M.D., her treating physician, and Terry Dillon, M.D., who conducted an independent medical exam (IME) at Petitioner's request. Respondent's leave (and claim for benefits) was caused by an accident in which she was injured on June 8, 1992, when a recycling truck backed into her vehicle while she was driving on school grounds. The injury in the above accident aggravated a previous back injury that Petitioner sustained when she was "rear ended" in an automobile accident in December 1990. Upon being placed on worker's compensation leave, Respondent was not advised by Petitioner's employees or agents what her limitations were in terms of working at home or elsewhere. Dr. Terry P. Dillon, a self-employed physician employed by Medical Doctors of Morton Plant, Inc., conducted an IME on Respondent. Dr. Dillon specializes in treating and evaluating patients who sustain on the job injuries and consults with industrial managers on work place injuries. Dr. Dillon's evaluation was requested by Petitioner's risk management section. Dr. Dillon took a medical history of Respondent and conducted muscular, skeletal and imaging studies. Dr. Dillon also reviewed Respondent's prior medical records. Dr. Dillon's first examination of Respondent was on September 17, 1992. He noted that Respondent had a long history of low back pain; facial joint pain with some symptoms which were spontaneous and other lower back and neck pain and facial joint injuries stemming from the motor vehicle accident during December 1990. During the more recent accident of June 8, 1992, Dr. Dillon observed an increase in the symptoms and Respondent also consulted with a chiropractor and a neurologist who observed tenderness over Respondent's neck muscles and shoulder blades. Dr. Dillon observed no evidence of injuries to Respondent's upper extremities other than a mild compression of nerves in the upper torso area. Dr. Dillon evaluated the tenderness in Respondent's low back but he detected no spasms. He found some sciatic tenderness in the lower extremities although he noted no lower nerve deficits during the normal clinical exam. Dr. Dillon observed some degenerative changes associated with age and the accident related injuries. He was unable to tell if bony changes were due to the more recent August 1992 motor vehicle accident or were a result of the earlier accident. He opined that it was more likely than not that the injury was not related to the '92 accident. Finally, Dr. Dillon speculated that Respondent evidenced some "psychological investment of pain" however he could not confirm his speculation. Dr. Dillon opined that Respondent should "go forward with an active rehabilitation program" and that after approximately four weeks she should be able to return to work part-time in light duty status and perhaps after eight weeks of following such a regimen, Respondent should be able to return to work full-time after 16 weeks. In concluding, Dr. Dillon opined that Respondent was totally unable to work the entire month of September 1992, although he felt that thereafter she should have been able to work on a part-time basis. Respondent was not issued any work restrictions by Dr. Dillon. Respondent was rated "temporary total disability" by Dr. Dillon which means that she was unable to do a combination of sitting, standing and walking during a three to four hour period. Respondent also served as an SLD coordinator while employed at Bear Creek. As an SLD teacher and coordinator, Respondent had to assess and work with the development of skills for SLD students. Her class sizes ranged from a high of 20 to a low of 8 students and the instruction was individualized. In 1992, Respondent advised her principal, Susan Daniels, that she had an auto accident during 1990 although she did not request any specific accommodation based on the injuries sustained in that accident. During the summer of 1992, while employed as a summer school teacher, Respondent was involved in the August 1992 accident. As a result of that accident, Respondent incurred injuries and advised Daniels that she would be unable to continue teaching during the summer and the beginning of the 1992-93 school year. Respondent also told Daniels during the summer of 1992 that she, at times, experienced severe pain from the 1992 accident. Respondent's husband purchased a daycare center during 1991. When the business was purchased, Respondent often assisted her husband in the operation of the daycare after school hours and on weekends. For her services, Respondent was paid a salary until July 1993. While Respondent was convalescing after the 1992 accident, she often went to the daycare center, out of boredom, to assist the daycare staff. The daycare center has a staff of approximately eight teachers who work a full time schedule. Prior to the accident during 1992, Respondent worked approximately eight to ten hours per week at the center. After the accident, she has been working approximately 2 1/2 to 4 hours per week doing such things as answering the phones, responding to inquiries about rates, assisting in billings and other related chores. Respondent and her husband moved to a new residence on September 18, 1992. Respondent assisted in the move by doing such things as loading clothing, lamps and light items such as pictures and other small memorabilia into her car. Additionally, Respondent assisted in cleaning the old home that they were moving from and she did some cleaning of the new home before they placed heavy furniture and appliances in the home. Respondent did not do any heavy lifting or pulling during the move on September 18, 1992. Respondent has "good" and "bad" days. In other words, her level of pain fluctuates from day to day. Respondent was placed under surveillance by the worker's compensation carrier for Petitioner. During the surveillance, Respondent was observed assisting in the move from periods up to two hours during the a.m. and approximately three hours during the p.m. on September 19, 1992. However, Respondent did not lift any heavy items and the videotape of the move did not establish anything to the contrary. To the extent that she was seen lifting a large trash bin, it could not be determined how heavy that trash bin was. Respondent was assisted, by another female, in lifting the trash bin and taking it to the sidewalk. Investigators Angela Elliott and Clifford Froggat placed Respondent under surveillance during September and November 1992. On November 5, Respondent was observed travelling from her residence to the daycare center where she remained an undetermined amount of time. Respondent has been paid worker's compensation benefits for the injuries sustained in the June 8, 1992, motor vehicle accident. Respondent has filed a tort claim against the alleged tortfeasors and she expects to repay the Petitioner for any worker's compensation benefits that she recovers as a result of that claim. Respondent reported for work when she was released by her treating physician.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Petitioner enter a final order withdrawing the suspension and ultimate dismissal of Respondent and reinstate her to the position of an SLD teacher and make her whole for any loss of pay she sustained as a result of her dismissal. DONE AND ENTERED this 6th day of April, 1994, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL 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 6th day of April, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-2293 Rulings on Petitioner's proposed findings of fact: Paragraph 6, adopted as relevant, paragraphs 2 and 3, Recommended Order. Paragraph 8, adopted as modified, paragraph 7, Recommended Order. Paragraph 12, adopted as modified, paragraph 17, Recommended Order. Paragraph 14, adopted as modified, paragraph 15, Recommended Order. Paragraph 15, adopted as relevant, paragraph 14, Recommended Order. Paragraphs 16 and 17, rejected irrelevant. Paragraphs 18 and 19, adopted in the Preliminary Statement, paragraph 1. Rulings on Respondent's proposed findings of fact: Paragraphs 5 and 6, adopted as modified, paragraph 22, Recommended Order. Paragraph 9, adopted as modified, paragraph 20, Recommended Order. Paragraphs 10 and 11, rejected, irrelevant and/or subordinate. Paragraphs 15 and 16 rejected, argument. Paragraph 18, rejected, not probative. COPIES FURNISHED: Robert G. Walker, Jr., Esquire 1432 Court Street Clearwater, Florida 34616-6147 Lawrence D. Black, Esquire 650 Seminole Boulevard Largo, Florida 34640-3625 Douglas L. "Tim" Jamerson Commissioner of Education The Capitol Tallahassee, Florida 32399-0400 Dr. J. Howard Hinesley Superintendent Pinellas County Schools 301 Fourth Street, Southwest Largo, Florida 34640-3536
The Issue The issue is whether the definition of the term "Limousine" in Rule 1.4 of the Rules of the Hillsborough County Public Transportation Commission (Effective August 10, 2010) (Rule 1.4)1 is an invalid exercise of delegated legislative authority within the meaning of Subsections 120.52(8) and 120.56(1)(a), Florida Statutes (2010).2
Findings Of Fact Respondent is an Independent Special District created by the Florida Legislature. Ch. 01-777, § 1, at 1, Laws of Fla. The Legislature created Respondent, in relevant part, for the purpose of regulating the operation of public vehicles upon the public highways of Hillsborough County, Florida (Hillsborough County), and its municipalities. Ch. 01-777, § 2, at 2, Laws of Fla. Petitioner previously operated vehicles for hire within Hillsborough County in conformity with the rule he now challenges. Petitioner previously held a Hillsborough County Public Transportation Commission (HCPTC) Certificate under the name of Moshe Leib, d/b/a TBLimo.com. (TBL), and operated a transportation service pursuant to that HCPTC Certificate. On or about August 27, 2009, Petitioner sold the intangible assets of TBL, including the right to operate under the HCPTC Certificate, to Ambassador Limo Services, Inc. (Ambassador). Mr. Kenneth Lucci is the president and chief executive officer of Ambassador and the witness for Respondent in this proceeding. As part of the sale transaction between Petitioner and Ambassador, Petitioner signed a document identified in the record as the Covenant Not to Compete (the CNC). The CNC prohibits Petitioner from conducting commercial transportation business in Hillsborough County for six years from the date of the CNC. It is undisputed that Petitioner has opened a website identified in the record as Blackcarservice.net (Blackcar). Petitioner intends to form and operate a commercial transportation business in which Petitioner may transport passengers from Citrus and Hernando counties to destinations in Hillsborough County and back to their origin. Conduct of part of the business proposed for Blackcar would not require an HCPTC Certificate. The remainder of the proposed Blackcar business would require an HCPTC Certificate. If a Blackcar trip were a continuous roundtrip from the place of origin in either Citrus or Hernando County and back to the place of origin, it is undisputed that Petitioner would not be required to obtain an HCPTC Certificate for such activity. However, Petitioner would be required to have an HCPTC Certificate if a proposed Blackcar trip were to originate in either Citrus or Hernando County, Petitioner were to drop the passenger at a destination in Hillsborough County, and later return to take the passenger back to Citrus or Hernando County; or, after dropping the passenger in Hillsborough County, Petitioner were to pick up another passenger in Hillsborough County for return to his or her place of origin in Citrus or Hernando County. Petitioner challenges Rule 1.4. Rule 1.4 provides: “Limousine” means any motor vehicle for hire not equipped with a taximeter, with the capacity for 15 passengers or less, including the driver. This definition consists of vehicles which are recognized by the industry as “luxury” vehicles, that are considered as high-end luxury vehicles by the manufacturer and vehicles that have been uniquely modified so as to provide “luxury” limousine service. The “luxury” quality of vehicles will be determined by assessing aesthetics of the interior and exterior of the vehicles, amenities provided to the passenger, spaciousness and comparison to current industry standards for vehicles performing limousine service in Hillsborough County. Unless otherwise indicated, use of the word “limousine” within these Rules shall be meant to include all varieties of limousines discussed in these rules, collectively. Limousines can be sub- categorized as follows: “Stretch Limousine” or a sedan/SUV model that was manufactured or remanufactured with an extended wheel base or; “Limousine Sedans” or luxury vehicles with space for at least two passengers behind the driver and additional space behind those passengers for luggage, or; “Sport Utility Vehicles” (SUV) that are top-of-the-line models and have the luxury package options included to provide a luxury service, or; “Limousine Buses” that are used for passenger transport for-hire. These buses can have forward facing seating or can be modified for circular or “party” seating. The Director, subject to Commission review, may develop and update a list of vehicles which qualify as Limousine Sedans and SUVs. A preponderance of the evidence does not show that Petitioner's intent to form and operate a commercial transportation business, as described in paragraph 5, is of sufficient immediacy to give Petitioner standing to challenge Rule 1.4. Any attempt by Petitioner to engage in business in Hillsborough County within the next six years in a manner that requires an HCPTC Certificate will violate the CNC and subject Petitioner to potential litigation with Ambassador. Assuming arguendo that Petitioner had standing, a preponderance of evidence does not show that the challenged rule creates the adverse economic effect alleged by Petitioner. For reasons stated in the Conclusions of Law, the burden of proof is on Petitioner. Petitioner did not testify, did not call any witnesses, and did not successfully admit any exhibits into evidence. The preponderance of evidence was submitted by Respondent. That evidence was credible and persuasive. Petitioner's cross-examination of Respondent's evidence was neither credible nor persuasive to the trier of fact.
