Findings Of Fact On May 8, 1979, a representative of DOT observed a sign located on State Road 13, 1.8 miles north of the Duval-St. Johns line in Duval County, Florida. State Road 13 is a federal aid primary highway. The sign in question bore the following advertising copy: "Quail Ridge, New Homes, straight ahead to St. Augustine Rd., Right to Caron Dr." At the time the sign was initially observed it was constructed of new lumber, with fresh dirt around the holes in which the standards were placed which supported the sign. The sign was located within the corporate limits of tie City of Jacksonville, Florida, in an area which is zoned "Commercial Intensive". At the time the sign was initially inspected on May 8, 1979, no permit tag was affixed. In addition, the sign was located within two feet of another larger sign which had been properly permitted, was on the same side of the highway, and faced the same direction. The DOT representative, upon inspection of the sign, contacted Joseph Pepe, the President of Respondent to discuss the sign in question. Mr. Pepe admitted that his company owned and erected the sign with its own work crew. The sign was again inspected one day prior to the final hearing in this cause, and was still located in the same position and had no permit tag affixed to the structure.
Findings Of Fact The Respondent's sign which is the subject of this proceeding was erected on Bennett Road, approximately 280 feet north of the intersection of Bennett Road with State Road 50, in Orange County, Florida. This location is approximately 1.4 miles west of SR 436, as alleged in the violation notice. The subject sign is located on the west side of Bennett Road facing north and south which is parallel to State Road 50. State Road 50 is a federal-aid primary highway. Bennett Road is a non-controlled road. The parties stipulated that it was the position of personnel of the Fifth District of the Department of Transportation prior to May of 1985 that state permits for outdoor advertising structures were not required when such structures were to be erected on a non-controlled highway, although said structures might be within 660 feet of a federal- aid primary highway. In 1984, the Respondent had applied for a permit to erect a sign along a non-controlled road within 660feet of a federal-aid primary highway, and had been advised by Department personnel that a state permit was not required (See Case No. 85- 3017T which was heard contemporaneously with the subject case). The sign which is the subject of this proceeding was erected without a permit based on the Respondent's knowledge of the Department's position that a permit was not required, as expressed to the Respondent previously in 1984. The subject sign is visible to traffic on State Road 50, although it is perpendicular to Bennett Road and parallel to State Road 50. There is another permitted sign owned by National Advertising Company located on the north side of State Road 50, east of the Bennett Road intersection, approximately 114 feet from the subject sign. The National sign faces east and west, not north and south, and it is not on Bennett Road. Another permitted sign owned by Peterson Outdoor Advertising is located on the north side of State Road 50, approximately 475 feet west of the Bennett Road intersection. This sign faces east and west, not north and south as the subject sign does, and it is not on Bennett Road as the subject sign is.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the charges against the Respondent, Peterson Outdoor Advertising Corporation, in the violation notice issued on August 21, 1985, be dismissed, and that the sign which is the subject of this proceeding be given the classification of non-conforming sign. THIS RECOMMENDED ORDER entered on this 23rd day of October, 1986, in Tallahassee, Florida. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of October, 1986. COPIES FURNISHED: Philip S. Bennett, Esquire Haydon Burns Building, MS-58 Tallahassee, Florida 32301-8064 Gerald S. Livingston, Esquire Post Office Box 2151 Orlando, Florida 32802-2151 Thomas Drawdy Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301 A. J. Spalla General Counsel Department of Transportation 562 Haydon Burns Building Tallahassee, Florida 32301 =================================================================
The Issue Whether the signs of Respondent, Cannon Motel, should be removed for violation of Chapter 499, Florida Statutes, improper setback and no permit to erect the signs.
Findings Of Fact Cannon Motels, Inc. was served with a violation notice on October 18, 1976. The alleged violation was that the Cannon Motel signs were in violation of the state statute inasmuch as they had been erected without first obtaining a permit from the Petitioner, Department of Transportation, and they violate the setback requirements of Chapter 479. Petitioner, by certified letter dated November 11, 1976, requested an administrative hearing. Respondent moved to continue the hearing on the grounds of improper venue, lack of jurisdiction and failure by Petitioner to follow the technical rules. The motion was denied for the reason that the venue was proper being in the district in which a permit for an outdoor advertising sign must be obtained; the Hearing Officer has jurisdiction under Chapter 120, Florida Statutes, and the parties were fully advised of the issue to be heard. The subject signs each read "Cannon Motel." One is located one-half mile west of State Road 85 facing Interstate 10 and the other is located 1.3 riles east of State Road 85 facing Interstate 10. The sign east of State Road 85 is 30 by 12 and is approximately 18 feet from the nearest edge of the right of way. The sign that is west of State Read 85 is approximately 38 feet from the nearest edge of the right of way. Both signs were erected within 660 feet of the federal aid primary road without applying for or securing a permit from the Florida Department of Transportation. At some time prior to the hearing but after the erection of the signs, the area in which the sign located west of State Road 85 was erected was annexed by Crescent City, Florida. That area in which the signs are located is unzoned by the city and zoned agriculture by Okaloosa County.
Recommendation Remove the subject signs within ten (10) days of the filing of the Final Order. DONE and ORDERED this 31st day of October, 1977, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings The Carlton Building Room 530 Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Philip S. Bennett, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32304 James E. Moore, Esquire Moore and Anchors Post Office Box 746 Niceville, Florida 32578
Findings Of Fact It was stipulated by the parties that Exhibits 1 and 2 are photographs depicting the signs of the Respondent that are the subject of the allegations of statutory violations. One of the signs (Exhibit 1) is located 9/10 of a mile west of state road 81 on the south side of Interstate Highway I-10. It is located approximately 15 1/2 feet from the edge of the right-of-way of 1-10. The other sign (Exhibit 2) is 1 4/10 of a mile east of state road 81 on the north side of Interstate Highway I-10. It is located approximately 16 feet from the edge of the right-of-way of I-10 (testimony of Mr. Jordan). The two signs, which are commercial in nature, are located outside the limits of any incorporated city or town and are not in zoned or unzoned commercial or industrial areas (testimony of Mr. Jordan). The limits of Ponce de Leon, Florida, generally are located approximately one mile away from the sign locations (testimony of Mr. Jordan; Exhibits 1,2,5,6). Prior to the erection of the signs, the Respondent leased the property where they are presently located after contacting the Mayor of Ponce de Leon, Florida, who advised him that the leased property was located within the city limits of Ponce de Leon. By application dated August 19, 1975, Respondent applied for a state permit for the Signs. This application was denied by Petitioner on August 28, 1975, because the signs were deemed to be in violation of Section 479.11(1), F.S., as being within 660 feet of the Interstate Highway right-of-way (testimony of Mr. Jordan; and Mr. Mosier).
The Issue Based upon the testimony received the primary issue is whether the poles were erected before the highway, I-10, was opened to the public. If so, do such poles constitute a sign within the meaning of Section 479.23, Florida Statutes, for the purposes of "grandfathering" such a structure?
Findings Of Fact These double-faced, stacked signs are located 1.4 miles east of State Road 276 on I-10. These signs were inspected on October 22, 1980, by an inspector of the Department of Transportation, who observed that the signs' messages were visible from the main traveled way of I-10 and did not bear the permits required by Chapter 479, Florida Statutes. At the time of this inspection I-10 was open to the public and was a part of the interstate highway system. See DOT Exhibit 1 and DOT Exhibit 3. The signs were located in an unincorporated area of Jackson County, Florida, which does not have a zoning ordinance. (Transcript, page 39.) Prior to the date of the hearing, name plates identifying Henderson signs as responsible for the signs were attached to the signs. (Transcript, page 29.) The Department had notified Henderson Signs of the Notice of Violation, and Henderson Signs requested a formal hearing by letter of its Counsel dated December 19, 1980. See files, Cases Nos. 81-106T and 81-107T. The foregoing facts establish that the subject signs are signs regulated by the Department pursuant to Chapter 479, Florida Statutes, and that Henderson Signs had a substantial interest in the signs. Gene Henderson testified concerning the erection of the poles and the attachment of sign faces to the poles. According to Henderson, the sign poles were erected during the latter part of 1975, and the first sign face (Case No. 81-106T) advertising "Quality Inn" was affixed to the sign on January 15, 1977. On June 15, 1978, a second sign face was affixed to the sign poles in the opposite direction (Case No. 81-107T) advertising "Shell Food Store." W. B. Reddock, affiliated with Arrowhead Camp Grounds, appeared and testified. Although Reddock may have some interest in these signs, it is concluded that the signs are the responsibility of Henderson Signs, which erected the poles prior to the time I-10 was opened to the public. The Department introduced DOT Exhibit 3, which shows that the section of I-10 along which the subject signs are located was opened to the public on October 14, 1977. The Department introduced DOT Exhibit 8, an aerial photograph of the section of I-10 along which the subject signs are located. This photograph bears the number PD 2193 and is Sheet 4 of 28 sheets taken on November 14, 1977. The photograph's legend reflects it has a scale of one inch equal to 50 feet. The Department's engineer, who established that the scale was accurate, indicated by a red mark the measured location of the signs 1.4 miles east of SR 276 on I-10. The photograph was examined by the Department's engineer, who observed the presence of six poles at the location. No sign faces were attached to the poles on November 14, 1977, 30 days after the highway was opened to the public.
Recommendation Having considered the proposed findings of fact submitted by the parties, and based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the Department of Transportation enter its final order directing the removal of the subject signs within 30 days and without compensation to the signs' owner. DONE and ORDERED this 16th day of September, 1981, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of September,1981. COPIES FURNISHED: Charles G. Gardner, Esquire Department of Transportation Hayden Burns Building Tallahassee, Florida 32301 Charles M. Wynn, Esquire 310 Jackson Street Post Office Box 793 Marianna, Florida 32446 Jacob D. Varn, Secretary Department of Transportation Haydon Burns Building, MS 57 Tallahassee, Florida 32301
Findings Of Fact Based on the record transmitted to the Division of Administrative Hearings by the Petitioner, the following are found as the relevant facts: The Respondent, Hinson Oil Company, owns four outdoor advertising signs in Gadsden County, Florida, located on the south side of I-10, in the proximity of County Road 270-A. On October 3, 1984, the Department of Transportation notified the Respondent in writing that these signs violated Section 479.11, Florida Statutes, in that they were alleged to be located in an area which is not a zoned or unzoned commercial or industrial area. The return receipt was signed by E. W. Hinson, Jr., on October 9, 1984. Paragraph 2 of the notices of violation served on October 3 and received on October 9, 1984, sets forth the following procedural requirements: You must comply with the applicable provisions of said Statute(s) and Cede(s) within thirty (30) days from the date of this notice, . . . or in the alternative, an administrative hearing under Section 120.57, Florida Statutes, must be requested by you within thirty (30) days of the date of this notice . . . E. W. Hinson, Jr., on behalf of the Respondent, requested an administrative hearing by letter dated November 16, 1984. This request was received by the Department of Transportation clerk on November 19, 1984.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation enter a Final Order dismissing with prejudice the Respondent's request for an administrative hearing in each of these cases. THIS RECOMMENDED ORDER entered this 24th day of January, 1985, in Tallahassee, Florida. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of January, 1985. COPIES FURNISHED: Philip S. Bennett, Esquire and Maxine Fay Ferguson, Esquire Haydon Burns Building, M.S. 58 Tallahassee, Florida 32301-8064 E. W. Hinson, Jr. Hinson Oil Company P.O. Box 1168 Quincy, Florida 32351 John Curry, Esquire P.O. Drawer 391 Quincy, Florida 32351
Findings Of Fact The Petitioner is Gail C. Selvaggio, who currently resides in Palm Beach Gardens Florida, and at the time of the events complained of resided in Tallahassee, Florida. The Respondent is the Knight-Ridder Publishing Company, doing business as The Tallahassee Democrat (hereafter "The Democrat"). The Democrat is located in Tallahassee, Florida. The Petitioner commenced her employment with the Respondent as a secretary in its advertising department on February 13, 1978, at a salary of $160 per week. Petitioner's supervisor in the advertising department and the person for whom she primarily performed her secretarial duties was the advertising director, Martin Steinberg. Petitioner was hired to replace Judy McGinnis, who had been an administrative assistant to the previous advertising director whom Steinberg had replaced. McGinnis, who had supervisory duties in her position, had terminated her employment approximately six months prior to the time Petitioner was hired. When McGinnis left, her vacancy was advertised in August, 1977, as administrative assistant pursuant to the instructions of John Veenstra, the then advertising director. No one was hired at that time. When Veenstra left The Democrat in late 1977, the position was frozen. When Steinberg was hired by Respondent as its advertising director, he informed Personnel that he wanted a secretary and not an administrative assistant. Personnel then contacted the people who had earlier applied for the administrative assistant position and invited them to apply again, but informed them that the position had been changed to that of a secretary. Petitioner was referred to The Democrat on February 9, 1978, by Snelling and Snelling, an employment agency. A job counselor at that agency advised Petitioner that The Democrat had an opening for an administrative assistant, information given in a job order when McGinnis left The Democrat in August, 1977. The employment agency did not have any official business connection with The Democrat, and The Democrat had not informed the agency of any job opening when the agency referred Petitioner to The Democrat six months after the agency's job order was written. Based upon the information given her by the agency, Petitioner completed an application for employment with The Democrat by stating that she was applying for the position of administrative assistant. Petitioner was interviewed for employment by Tracy Rowe, who was at that time the personnel assistant at The Democrat. Ms. Rowe conducted approximately ninety percent of the initial employment interviews for The Democrat. She would then refer qualified applicants to the department head where the position was open. Rowe informed Petitioner during the initial interview that the position was not an administrative assistant position but rather was a secretarial position. Petitioner took a typing test as part of this initial interview. Petitioner then interviewed with Mr. Steinberg on February 9, 1978, and on February 10, 1978. Steinberg told Petitioner that the position was that of a secretary and explained to her the history of the position as it was held by Ms. McGinnis and his reasons for not wanting an administrative assistant. Steinberg had earlier told Rebecca Bradner when she interviewed for the position that the position was secretarial. He had also earlier told Mr. Harwell, the publisher of The Democrat, that he expressly did not want an administrative assistant because he did not want anyone with that much authority. Steinberg discussed with Petitioner possibilities of advancement during both her interviews and early employment, including agreeing with Petitioner's suggestion that she might write a training manual, which she never did, and conduct a sales training program. He did not make any promises to her regarding her future advancement or assignments. Petitioner received a salary increase to $180 per week within two weeks after beginning her employment, in accordance with her agreement with Steinberg. This was done to enable Petitioner to pay a lower fee to her employment agency. Steinberg did not promise any other pay increase to Petitioner. Petitioner was given an orientation program at The Democrat so that she could become familiar with the various departments of the newspaper and know who to consult with if problems arose when Steinberg was not in the office. Petitioner had no supervisory responsibilities in her position at The Democrat. During the initial months of her employment, Petitioner was basically a satisfactory employee, although she made mistakes in typing correspondence and various monthly reports. Steinberg brought these errors to her attention during the early months of her employment. Steinberg's practice in correcting documents and correspondence was to circle or underline the error in ink, thereby requiring the page to be retyped even if the error were minor. At times, he would sign correspondence without first reading it and later would find errors on the copy returned to him prior to filing, after the original of the letter had been mailed. Steinberg followed the practice of marking errors in ink from the beginning of Petitioner's employment. This practice was a personal habit of his which he followed with other employees as well. This practice was not an attempt on his part to harass Petitioner. Karen Sheffield, who sometimes handled secretarial duties for Steinberg, did not interpret this practice as harassment, although she frequently retyped the same document several times because of this practice. Petitioner made errors in the addresses and salutations of Steinberg's correspondence, which errors were especially noticeable to those to whom the letters were addressed. Several of the people with who Mr. Steinberg corresponded informed him of errors that had been made, and one person received a letter so full of typographical errors that he involved the publisher of The Democrat in the matter. Petitioner had the responsibility to correct correspondence. Steinberg did not instruct her to leave incorrect punctuation or grammar or spelling in a letter. Steinberg discussed Petitioner's unacceptable performance of her job duties with other management personnel, including Keith Helen, Walter Harwell, and Vernelle Tucker, on several occasions. Mr. Harwell advised Steinberg that it was necessary for Steinberg to turn out better work and that the secretary should be more careful. Steinberg counseled Petitioner about her mistakes and told her she needed to improve her performance on several different occasions. Petitioner was informed specifically about errors in the "Merchant letter" in May, 1978, and about errors in other letters as they occurred. Petitioner occasionally filled in for outside salespersons and made their calls for them when they were on vacation or sick. She performed as well as could be expected, although she made more errors than the regular salespersons made. Steinberg and Petitioner had a friendly, personal relationship in the earlier months of her employment and exchanged confidences with each other. Petitioner is a friendly, outgoing, gregarious person, and it was not unusual for her to put her arms around male employees while at work and hug them and even kiss them. On one occasion, Tracy Rowe observed Petitioner walk up behind Steinberg when he was sitting at a desk and throw her arms around him and kiss him. Steinberg, as a supervisor, was demanding but fair. Petitioner had marital problems in the fall of 1978 and discussed those problems with Steinberg. Her marriage terminated in a divorce in November, 1970. Beginning approximately in August and September, Petitioner's job performance suffered as she began to spend more time away from her desk. Part of the reason for her time away from her duties was her participation as co- chairperson of The Democrat's United Way campaign. She voluntarily assumed duties in connection with that campaign above any required of her and more than her co-chairperson. She frequently returned from United Way luncheons much later than the other employees who were in attendance at those luncheons. Although she chose to entertain at some of the luncheons, she had time to eat during the business portion of the meetings and could have returned to work sooner. During this time period, Steinberg discussed with Petitioner and with other management personnel problems with correspondence typed by Petitioner and with her tardiness. Prior to her divorce, Petitioner began to date another employee of The Democrat, Ron Selvaggio, her present husband, who was then head of the promotion department at The Democrat. Petitioner was frequently observed in his office to an extent greater than her United Way role required. Additionally, she often went to lunch with him and frequently returned late. Petitioner frequently socialized with others in the department. She would leave her desk to socialize with other employees, and other employees would come by her desk. Many employees noticed that Petitioner spent an unusual amount of time not working, and this fact was conveyed to Steinberg by other management personnel. The time spent by Petitioner socializing and participating in the United Way campaign prevented her from completing her work in a timely manner. Steinberg discussed this with her and with other management personnel. There was always work to be done in the advertising department, and Petitioner's neglect of her duties was noticed by other employees of The Democrat who depended on her to get their work done. Steinberg, complained to Vernelle Tucker that his work was not being completed because of Petitioner's activities in the United Way. Mrs. Tucker counseled Petitioner and told her that her job duties still had to be fulfilled despite her participation in the United Way campaign and that her work was priority. Steinberg began to write private memoranda on Petitioner's performance and work habits beginning in November, 1978, at the suggestion of Mrs. Tucker. Steinberg told Tucker that he did not believe Petitioner should get a raise because of her poor work performance, and Tucker told him to start documenting problem areas. Steinberg did not show those memoranda to Petitioner, nor did he forward them immediately to the personnel office to be included in her file. However, in most of these instances, Steinberg counseled Petitioner at the time about the matters he had noted. Other supervisors at The Democrat followed the same practice with regard to private memoranda. This practice allowed them to record their observations and counsel the offending employee in the hope that whatever problem existed might be eliminated. If the problems were not resolved in that manner, the memoranda could then become part of the employee's file. Otherwise, the memoranda could be destroyed without ever being sent to Personnel, so that temporary problems need not become a part of the employee's permanent file. The memoranda by Steinberg were made at the time of the events recorded and were not manufactured as after-the-fact justification for Petitioner's termination. It is the policy of The Democrat to include raises for its employees in the annual budget. The supervisors actually determine which employees will get raises and how much they will receive. The supervisors have authority to withhold any or all of the budgeted raise from an employee. Petitioner did not receive a raise budgeted for December, 1978, because her job performance did not warrant a pay raise. The paperwork Petitioner was required to complete increased during the fall of 1975 due to the normal increase in advertising business experienced by The Democrat from the return of students to school and the Thanksgiving and Christmas holiday seasons. Other reasons for the increase in workload at that time are that budgeting and forecasting for the following year is conducted during the fall, as is preparation of the next year's rate structure. The workload increases for everyone in the advertising department at that time of year. Petitioner's workload did not increase as a result of any attempt by Steinberg to harass her. In December, 1978, Petitioner approached Karen Sheffield about a transfer because of the increased paperwork. Sheffield was the secretary to Mrs. Tucker and Mr. Selvaggio at that time. She did not work in personnel. Petitioner did not approach anyone in Personnel about a transfer. Petitioner was not overworked in comparison with other employees. Petitioner was assigned the responsibility for answering a bank of telephones during the time that the advertising department was in a temporary working area due to construction in the building. Steinberg could give that task to no one else due to spacing in the temporary work area. Petitioner was assigned the task of copying multiples because Jean Ash Webb, who had been performing the duty, had been incurring a considerable amount of overtime because of that duty together with her other duties. Steinberg reassigned this task to Petitioner to reduce that overtime. The amount of overtime worked is a matter of great importance to management at The Democrat. Steinberg instructed Petitioner to use carbons in making copies where practicable rather than using a copying machine. He told her that the reason for using carbons was to save money. This change was effected at the direction of Mr. Harwell, the publisher, who was concerned over expenses at that time. There was a valid business reason for the use of carbons. This policy was instituted throughout The Democrat and not simply against Petitioner. Petitioner resented being given what she considered to be menial tasks and complained to other employees about having to perform such tasks. She complained about having to collate the Belden (Building) Study. She complained about having to perform the task of copying multiples. She complained about being overworked. She complained about having to retype letters. Petitioner's hours of employment were changed to 10:00 a.m. to 7:00 p.m., effective January 18, 1979. Petitioner had changed her own work hours to suit her personal schedule on several occasions prior to her hours being changed to 10:00 a.m. to 7:00 p.m. Her method of changing her hours was simply to begin coming in at a different time and then to secure approval from Steinberg after he noticed the change. The reason for the change to 10:00 a.m. to 7:00 p.m. was to provide assistance to the outside sales staff upon their return to the office in the afternoon after making sales calls. Outside salespersons in the advertising department frequently work late to finish the required paperwork and layouts for ads sold during the day. Persons used to provide such assistance to the outside sales staff after normal hours are known as "ad-assists." Petitioner was assigned ad-assist duties only for part of the day, from 5:00 p.m. to 7:00 p.m. There had been a need for an additional person in the ad-assist position for some time. The need for an additional person in that position had been under discussion by outside salespersons and by the management of the advertising department for several months. Steinberg had discussed the problem with Petitioner and had solicited her advice on how to handle the problem. Mr. Harwell would not approve hiring a new employee for the position because of the financial pressures on The Democrat at that time. Steinberg, with Keith Balon, considered and evaluated the secretaries, clerks and others in the department to see whose hours could be changed and who had the most work flexibility. Steinberg also discussed his selection with Mr. Harwell. Petitioner's duties as secretary were more flexible and less demanding than those of Jean Ash Webb, Dianna Moyer, Becky Savilla, and Linda Crews, who were other employees of the advertising department considered for the move. Jean Ash Webb and Linda Crews could not be moved into the ad-assist position because they had specialized jobs to perform and because they had deadline functions which required their presence at a specific time in the morning and, thus, dictated their departure time in the evening. Also, Dianna Moyer worked for Keith Balon and the sales staff, and Ms. Savilla worked for other supervisors. Steinberg did not have anyone other than Petitioner to place into the ad-assist position. Harwell agreed with Steinberg's decision. There was a legitimate business reason for changing Petitioner's hours to 10:00 a.m. to 7:00 p.m. The Democrat is a twenty-four-hour business. Employees other than Petitioner have left the company because they would not work the hours they were assigned. Petitioner informed Steinberg and others that she would not accept the change in her hours and that she would look for another job. Petitioner complained to other employees about the change in her hours and made derogatory remarks about Steinberg. Mr. Harwell told Steinberg that he should get a timetable for Petitioner's departure so that new people could be interviewed for the position, and he suggested a two-week period. Harwell also instructed Steinberg to caution Petitioner about "bad-mouthing" either the company or Steinberg during her remaining time at The Democrat. He instructed Steinberg that if Petitioner made statements which could hurt the morale of the department, she should be terminated immediately. Steinberg initially advised Petitioner that she could continue to work at The Democrat until she found a new job so long as she did not make derogatory remarks about him or The Democrat. Petitioner initiated conversations with other employees in which she complained about Steinberg. These remarks were creating a morale problem in the department. She also told other employees that her telephone was being tapped. On January 22, 1979, Steinberg asked Petitioner for a timetable for her expected departure so that plans could be made for her replacement. Petitioner refused to provide a timetable. Petitioner continued to make derogatory remarks about Steinberg. Upon the instructions of Mrs. Tucker, Steinberg discharged Petitioner on January 23, 1979. Upon Petitioner's termination, another person assumed the ad-assist duties in the 10:00 a.m. to 7:00 p.m. time slot. The day Petitioner was discharged, she interviewed with Keith Balon, the retail advertising manager, for a position as an outside salesperson in the advertising department. Steinberg was aware of this interview and did nothing to prevent Petitioner from interviewing or from obtaining the position. In fact, he did not include his private memoranda in her personnel file and did not inform Mr. Balon of the existence of such memoranda or their contents. Outside salespersons for The Democrat regularly worked until 7:00 p.m. and frequently as late as 8:30 p.m. in order to complete their duties for that day. Petitioner gave no explanation regarding how she could work those hours for Mr. Balon when she had refused to work until 7:00 p.m. for Mr. Steinberg. Balon hired another person whom he believed to be more qualified than Petitioner. His decision was not made to discriminate against Petitioner in any way. In October, 1978, Steinberg gave Petitioner a 3" X 5" card stating "from one who is one to one who could be one Thanx Marty." Above that notation was drawn a large six-pointed star. Steinberg gave the card to Petitioner in response to several gifts given to him by her and her statement to him that she wanted to be his "Jewish mother." The card did not have any sexual connotation, and Petitioner did not perceive any sexual connotation to the card. Steinberg frequently worked on Saturdays after having been out of the office during the latter part of the workweek. He called Petitioner on occasion at her home on Saturday mornings when he had a question about what had happened at work. Steinberg also called his other employees at their homes on Saturday mornings for the same purpose. Although some social conversation did occur during the calls to Petitioner, the calls were not used to sexually harass her. There were no statements made about sex during these calls. When Petitioner announced her engagement to Mr. Selvaggio, Steinberg expressed a concern since an employee of his would be married to another department head. There was no sexual connotation to this remark. By Petitioner's own testimony, this remark related to Steinberg's concern for the confidentiality of certain information concerning his department. He also discussed his concern about confidentiality with Mr. Harwell and with Mrs. Tucker during this same time period. Steinberg once mentioned to James Reeves, Petitioner's then husband, that Petitioner was like an "office wife." Reeves did not consider the remark to have any sexual connotation but rather understood that Steinberg meant that Petitioner was his confidant. Petitioner married Mr. Selvaggio, who was then the promotion manager of The Democrat, on December 21, 1978. There was some confusion between Steinberg and Petitioner regarding the time she was to take off for her wedding. However, Petitioner admits that this was simply a misunderstanding. This confusion was not an incident of sexual harassment. There were two romantic interludes between Petitioner and Steinberg which occurred in the board room at The Democrat. The first incident occurred in September, 1978, when Petitioner was helping to compile and collate the Belden (Building) Study, which was an advertising research study that had been made. Petitioner complained about having to perform such a menial task although Rebecca Bradner, a supervisor, participated in the collating as did several other employees. Petitioner told Ms. Bradner that the collating was not Petitioner's job, that she was going to lunch, that she would take a long lunch, and that if Steinberg did not like that, he could come in and tell her so. Bradner relayed this information to Steinberg. Steinberg then came to the board room. While Petitioner and Steinberg were alone in the board room, he kissed her, and she kissed him. This was a voluntary act on the part of both persons. The second incident occurred several weeks later when Steinberg invited Petitioner to walk to the board room with him. When they got there, they began kissing each other. Steinberg touched Petitioner's breasts, and Petitioner placed her hands on his genitals. Again, each participated willingly and voluntarily. Steinberg's only superiors at The Democrat were Mrs. Tucker and Mr. Harwell. Petitioner admitted she never reported the board room incidents or any alleged incidents of sexual harassment to either of those persons, to any other management or supervisory personnel at The Democrat, or to any other employee of The Democrat. Further, neither Harwell nor Tucker, nor any other management or supervisory personnel at The Democrat had any knowledge of any alleged incidents of sexual harassment. Petitioner admitted that Steinberg never expressly or indirectly conditioned her continued employment or any term or condition of her employment upon acceptance of sexual advances. Petitioner does not know of anyone who was ever terminated from employment at The Democrat because he or she filed a complaint about a supervisor for any reason, nor of any employee who was ever fired because of making allegations of sexual harassment against a supervisor. On one occasion, Petitioner told Mrs. Tucker that Steinberg wanted to know where and with whom Petitioner went to lunch. This occurred in connection with the concern of Steinberg that Petitioner was returning late from United Way luncheons. Tucker agreed to speak with Steinberg about Petitioner's duties with the United Way. Petitioner told Tucker during this conversation that Steinberg was infatuated with Petitioner; however, Petitioner did not indicate that she found the alleged infatuation to be a problem for her, and she specifically did not inform Tucker of any alleged sexual advance or sexual harassment. Further, Petitioner later told Tucker that things had improved. The Democrat conducts what are called "management coffee breaks," at which "rank and file employees" meet with the publisher, Mr. Harwell, and the personnel director, then Mrs. Tucker. Supervisors and department heads are specifically excluded from attending. These conferences are used so that the employees may present grievances, complaints, or discuss any other problems or policies that they wish. At these sessions, employees are encouraged to speak with management privately on matters that cannot be discussed in a group meeting. Petitioner attended one of these conferences and could have used it to bring her alleged problems to management's attention. The Tallahassee Democrat's employee handbook contains a statement of policy which prohibits discrimination. The Democrat has a policy regarding supervisors having affairs with employees. Two supervisors, one male and one female, had previously been terminated because of sexual relationships with their employees. Other employees of The Democrat knew about these supervisors being terminated, Mr. Harwell testified that he would have taken corrective action by terminating Steinberg had Harwell known of any sexual harassment by Steinberg. Petitioner presented no evidence of discrimination based upon her sex or marital status and failed to request any affirmative relief.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That a final order be entered by the Florida Commission on Human Relations declaring that Gail C. Selvaggio was not discriminated against on the basis of her sex or marital status and dismissing her Petition for Relief with prejudice. RECOMMENDED this 18th day of June, 1981, in Tallahassee, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of June, 1981. COPIES FURNISHED: Edward S. Jaffry, Esquire S. Jack Carrouth, Esquire Horne, Rhodes, Jaffry, Horne & Carrouth Post Office Box 1140 Tallahassee, Florida 32302 C. Gary Williams, Esquire Charles L. Early, Jr., Esquire Ausley, McMullen, McGehee, Carothers & Proctor Post Office Box 391 Tallahassee, Florida 32302 Dana Baird, Esquire Assistant General Counsel Florida Commission on Human Relations 2562 Executive Center Circle, East Suite 100, Montgomery Building Tallahassee, Florida 32301 Mr. Norman A. Jackson Executive Director Florida Commission on Human Relations 2562 Executive Center Circle, East Tallahassee, Florida 32301
Findings Of Fact The Respondent's sign which is the subject of this proceeding was erected on Kaley Avenue, approximately 124 feet east of the intersection of Kaley Avenue with U.S. 17/92/441, in Orange County, Florida. This location is approximately .64 mile north of 1-4, as alleged in the violation notice. The subject sign is located on the south side of Kaley Avenue facing east and west which is parallel to U.S. 17/92/441. U.S. 17/92/441 is a federal-aid primary highway. Kaley Avenue is a non-controlled road. The parties stipulated that it was the position of personnel of the Fifth District of the Department of Transportation prior to May of 1985 that state permits for outdoor advertising structures were not required when such structures were to be erected on a non-controlled highway, although said structures might be within 660 feet of a federal- aid primary highway. In March of 1981 the Respondent had applied to the Department for a permit to erect a sign at the location in question in this proceeding. By letter dated April 24, 1981, the Department returned the Respondent's application for the reason that the sign location requested does not face or serve a federal-aid primary highway, and no state permit is required. Based upon the Department's response to its permit application, the Respondent erected its sign at the location where its application sough a permit. The sign was erected in May of 1981. The sign that was erected is visible to traffic on U.S. 17/92/441, although it is parallel to U.S. 17/92/441 and at right angles to Kaley Avenue. There is another permitted sign located on the south side of U.S. 17/92/441, approximately 96 feet from the subject sign. This other sign faces north and south not east and west, and is not on Kaley Avenue. The notice of violation issued for the subject sign in August of 1985 seeks removal of this sign for not having the permit which the Respondent had applied for in 1981, but which had not been issued. It was as a result of the Department's erroneous interpretation of the applicable statutes and rules that the Respondent's application for a permit was returned in April of 1981 advising the Respondent that a permit was not required. As a result of this erroneous interpretation, the Respondent's sign was built.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the charges against the Respondent, Cashi Signs, in the violation notice issued on August 21, 1985, be dismissed, and that the sign which is the subject of this proceeding be given the classification of non-conforming sign. THIS RECOMMENDED ORDER entered on this 23rd day of October, 1986, in Tallahassee, Florida. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of October, 1987. COPIES FURNISHED: Philip S. Bennett, Esquire Haydon Burns Building, MS-58 Tallahassee, Florida 32301-8064 Gerald S. Livingston, Esquire Post Office Box 2151 Orlando, Florida 32802-2151 Thomas Drawdy Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301 A. J. Spalla General Counsel Department of Transportation 562 Haydon Burns Building Tallahassee, Florida 32301 =================================================================
The Issue By three separate and substantially identical Administrative Complaints each of the Respondents have been charged with violating specified statutory and rule provisions as a result of their having caused to be distributed a certain advertisement for chiropractic services. The Respondents admit that they caused the advertisement to be distributed, but deny that the advertisement constitutes a violation of any statutory or rule provision.
Findings Of Fact Based on the stipulations of the parties, on the admissions of the Respondents, on the testimony of the witnesses at the hearing, and on the exhibits received in evidence at the hearing, I make the following findings of fact. At all times material to this case the Respondent Stephen A. Jacobson was and is a licensed chiropractic physician, having been issued license number CH 0003555. At all times material to this case the Respondent Gary Jacobson was and is a licensed chiropractic physician, having been issued license number CH 0003660. At all times material to this case the Respondent Steven Paul Rosenberg was and is a licensed chiropractic physician, having been issued license number CH 0003784. At all times material to this case the address of each of the three Respondents was and is 9721 South Dixie Highway, Kendall, Florida. The advertisement which is the subject matter of these cases was distributed in Dade County, Florida, as an insert in a publication known as "The Flyer". The subject advertisement was placed by or at the direction of, or was acquiesced in, by all three of the Respondents, Stephen A. Jacobson, Gary Jacobson, and Steven Paul Rosenberg. Stephen A. Jacobson and Gary Jacobson initiated and caused the subject advertisement to be placed and Steven Paul Rosenberg was aware of the contents of the advertisement and acquiesced in its publication. The subject advertisement was an advertisement for chiropractic services, specifically an advertisement for the chiropractic services of the Respondents, each of whom was specifically named in the advertisement. At the time of the distribution of the subject advertisement each of the Respondents practiced at the Sunset Chiropractic Clinic located at 9721 South Dixie, Highway Kendall, Florida. The subject advertisement was distributed approximately two months after an incident in which bottles of Tylenol were found to be contaminated with deadly amounts of cyanide, which contamination resulted in at least one death. The incident involving cyanide contamination was known to all three of the Respondents as well as to the general public. 1/ The subject advertisement contains a prominent picture of a medicine bottle with a skull and crossbones, in conjunction with text urging the reader to try chiropractic and avoid medicine. The predominate theme of the advertisement is that medicine has many dangerous side effects, that one should avoid medicine because it will jeopardize one's health, and that medicine contains cyanide or acid. The subject advertisement contains the following specific statements: "Medicine Has Many Dangerous Side Effects" and "DON'T JEOPARDIZE YOUR HEALTH BY REACHING FOR A BOTTLE." In what turns out to be a statement about chiropractic, the opening text of the advertisement proclaims in large bold letters "IT DOES NOT CONTAIN CYANIDE OR ACID". By the juxtaposition of the picture of a medicine bottle besmirched with the skull and crossbones and the language of the text that follows, the clear import of the advertisement is that medicine is dangerous because it contains cyanide or acid. 2/ The subject advertisement is likely to appeal primarily to a lay person's fears, ignorance or anxieties regarding his state of health or physical well-being. Near the bottom of the subject advertisement are the words "Sunset Chiropractic Clinic." Beneath those words, and in smaller print, are the names of each of the three Respondents. Each name is preceded by the abbreviation "Dr.," but none of the names are followed by the abbreviation "D.C.," or the words "Chiropractor" or "Chiropractic Physician," or by any other designation specifically identifying the Respondents as chiropractors. Thus, the subject advertisement failed to conspicuously identify the Respondents as chiropractors. 3/
Recommendation For all of the reasons set forth above, it is recommended that the Board of Chiropractic Examiners enter a Final Order which would: Find each of the Respondents guilty of all of the violations charged in the Administrative Complaints; Assess a $1,000.00 administrative fine against the Respondent Stephen A. Jacobs, D.C.; Assess a $1,000.00 administrative fine against the Respondent Gary Jacobson, D.C.; and Assess a $1,000.00 administrative fine against the Respondent Steven Paul Rosenberg, D.C. DONE and ORDERED this 29th day of November, 1984, at Tallahassee, Florida. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of November, 1984.
