The Issue Pursuant to section 760.10(1)(a), Florida Statutes (2015), the issue is whether Respondent has unlawfully discriminated against Petitioner in employment on the basis of her age or national origin.
Findings Of Fact Petitioner was born on March 30, 1962. She is a Puerto Rican native who is fluent in English and Spanish. Respondent first employed Petitioner in April 2009 as a flight attendant. She worked continuously in this job until her termination on April 1, 2014. The primary duty of a flight attendant is to ensure the safety of the passengers. At the time of employment, Respondent provided Petitioner with four weeks' training as a flight attendant and a voluminous manual devoted to the responsibilities of a flight attendant. The training and manual identify as the critical stages of flight the periods of takeoff and landing, during which time the sole focus of the flight attendant is on passenger safety. During these critical stages of flight, the sterile cockpit rule prohibits all communications within the cabin, including any announcements by interphone, because of the potential to distract the pilots during the crucial activities of taking off and landing. On March 9, 2014, Petitioner was one of three flight attendants on a flight from Fort Lauderdale to San Juan, Puerto Rico. Among the passengers on the flight was another employee of Respondent, Tony Dali, who was the supervisor of Petitioner's supervisor. With an administrative assistant, Mr. Dali was traveling to Puerto Rico to recruit flight attendants, especially persons fluent in Spanish, due to Respondent's Language of Destination program. This program provides a small pay incentive to persons who are fluent in the language, other than English, of a JetBlue destination. On the flight on the day in question, Respondent was the flight attendant designated under the Language of Destination program. The flight was uneventful until the critical stage of landing. After she had performed her routine tasks of collecting service items, checking the positions of trays and seats, requiring the passengers to resecure all carry-on baggage that they had removed during flight, and ensuring that all passengers were wearing seat belts, Petitioner took her seat in preparation for landing. Her position was in the rear of the aircraft where she had additional responsibilities in connection with safety equipment stowed in that area of the plane. On final descent with the wheels down, suddenly a strange chirping sound was heard over the speakers in the cabin and in the cockpit. The sound had been produced by a battery- operated toy Coqui frog. Leaving the required brace position for a second or two during the enforced silence of final descent, Petitioner had held the toy to the interphone and activated the toy to make the chirping sound. Petitioner's intent had been to amuse the passengers and expose them to the local color of her--and, for some passengers, their--native country. Respondent conducted an investigation, but the material facts were never in dispute, as Petitioner readily admitted her actions. At the conclusion of the investigation, Respondent terminated Petitioner for her violation of safety rules in playing the sound and leaving the braced position during final descent. There is no direct or statistical evidence of discrimination based on age or national origin. The facts prove only an unsuccessful attempt at humor that probably became less humorous with each level of internal review within Respondent. Although the two safety violations did not compromise the safety of the flight, as opined by the pilot, they may have acquired greater urgency because they occurred in the presence of the boss of the boss of Petitioner. The ensuing termination of Petitioner seems somewhat harsh, but not so harsh as to support an inference of intentional discrimination.
Recommendation It is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief filed on January 12, 2016. DONE AND ENTERED this 20th day of January, 2017, in Tallahassee, Leon County, Florida. S Robert E. Meale Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of January, 2017. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 (eServed) Abigail Freytes 11043 Northwest 8th Court Plantation, Florida 33324 (eServed) Rebecca Anne Cox, Esquire Akerman, LLP 666 5th Avenue, 20th Floor New York, New York 10103 (eServed) Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 (eServed)
The Issue Whether Respondent committed the violations alleged in the Administrative Complaint in the manner specified therein and, if so, what penalty should be imposed.
Findings Of Fact Respondent is now, and has been since November 2, 2006, a Department-licensed state pilot. Respondent's license (License No. SP177), which is current and active, authorizes him to pilot vessels in and out of the Port of Palm Beach (Port). The Port has 17 berths at which vessels can dock. The navigable portions of the Port consist of an inner and an outer channel, two turning basins, and three slips. To aid mariners traversing the Port, there are navigation markers (herein referred to as "Beacons"), which are sequentially numbered in ascending order from east to west with odd-numbered markers to the port side and even-numbered markers to the starboard side of inbound vessels. The Tropic Carib (Ship) is a foreign-flagged container ship owned by Tropical Shipping (Tropical). With an overall length of 525 feet and a gross registered tonnage of 10,825, it is the largest vessel regularly accommodated at the Port. It is equipped with bow and stern thrusters and a Becker rudder and is otherwise designed to handle well in harsh conditions. At 12:50 p.m. on August 3, 2011, at around high water slack, the Ship was offshore, just to the east of the entrance to the Port's outer channel, drawing 21 feet four inches forward and 23 feet aft, when Respondent boarded and took command of the vessel from the Ship's captain for the final leg of its journey. The Ship was bound for the Port's Berth 7 (Assigned Berth) to offload its cargo. The Assigned Berth is a 464-foot, north-south oriented marginal wharf that lies directly on the western end of the Port's main turning basin (Main Turning Basin), into which the inner channel flows.2/ As the Ship, with Respondent on the bridge and in command,3/ entered the outer channel heading west to the Assigned Berth following the much smaller, 31-foot pilot boat (Pilot Boat) that had carried Respondent out to the Ship, there was no evidence of any storms in the area.4/ Precipitation, in the form of a light drizzle, was first encountered as the Ship was travelling in the inner channel between Beacon 8 and Beacon 10. Respondent, at this time, also observed lightning in the distance. He saw one bolt that struck a Port transformer5/ and another bolt that struck approximately one-half mile north of the Port causing a small explosion. After seeing these lightning strikes, Respondent decided to inquire as to whether the lightning had impacted the availability of Tropical's Port-based line handlers to assist with the mooring of the Ship at the Assigned Berth. He did not have the capability of communicating directly with Tropical's Port-based personnel, so he radioed the pilot of the Pilot Boat (Boatman), who did have such capability, and asked her to make this inquiry on his behalf. Respondent did not hear back from the Boatman until the Ship had passed Beacon 10 and was approaching Beacon 12, beginning its turn to the southwest toward the Assigned Berth. The Boatman informed him that the line handlers had been ordered to take cover, as a precautionary measure, due to the lightning in the area and therefore were not at the Assigned Berth waiting for the Ship to arrive. Respondent, however, did not receive any report from the Boatman, who was in front of him on the Pilot Boat, that there were any squally conditions ahead about which Respondent needed to be concerned in navigating the Ship to its ultimate mooring position. By the time Respondent heard back from the Boatman, the intensity of the rain had increased somewhat, but weather conditions had not worsened to the extent that Respondent's ability to maneuver the Ship was impacted. Visibility was still good and the winds, which were predominantly westerly, did not present a problem. The Ship was about ten minutes away, under ordinary circumstances, from its intended destination to the southwest alongside the Assigned Berth. Respondent had the Ship continue on course, in a southwesterly direction, toward the Assigned Berth, a decision that was reasonable under the circumstances that existed at the time. That line handlers might still be unavailable when he arrived did not make heading toward the Assigned Berth a foreseeably more risky or imprudent choice than any other option that Respondent may have had at the time. Respondent had no reason to believe that, if there no line handlers at the Assigned Berth to catch and secure the Ship's mooring lines, the Ship, equipped as it was, would not be able to hover in the water alongside the Assigned Berth and wait for the line handlers to appear. Moreover, even if there were stronger than anticipated westerly winds and the Ship, for some reason, were unable to hold its position, it would be blown, not toward, but away from the Assigned Berth, in the direction of the center of the Main Basin. A few minutes later, as the Ship was approaching the Assigned Berth, it ran into a sudden and unexpected rain squall, with west-southwesterly wind gusts over 30 knots and blinding rains which reduced visibility to zero. Radio communications from the boatswain at the bow of the Ship, who was providing Respondent with needed information concerning the Ship's position in relation to the Assigned Berth, became garbled and unreliable. Reasonably fearing an allision if the Ship continued its forward motion under these conditions, Respondent prudently ordered that the port anchor be dropped, with 1.5 shots (135 feet) on deck,6/ and that the Ship's engines be put astern, orders that were followed. After determining, from the prop wash that he saw on the starboard side of the vessel, that the Ship was no longer closing on the Assigned Berth, Respondent ordered slow ahead, but the Ship's bow thrusters were overcome by the wind, causing the bow of the Ship to swing and the anchor to drag. As a result, the Ship's starboard stern corner touched the sandy bottom approximately 30 feet west of Beacon 12 in the northern part of the Main Turning Basin, where recorded water depths are from 13 to 15 feet and, at high water slack, are generally three to four feet higher. The grounding produced minor, cosmetic damage to the Ship's rudder. No other damage to the Ship was sustained. The squally conditions lasted a mere two minutes. When the weather cleared, Respondent ordered engines ahead. The Ship proceeded to its mooring position alongside the Assigned Berth, where it was serviced by the Tropical line handlers, who had emerged from the shelter they had sought from the lightning. Thereafter, at the recommendation of the Ship's captain, Tropical had divers inspect the underbody of the Ship. The inspection revealed the damage to the rudder caused by the grounding of the Ship during the rain squall (Grounding Incident).7/ Respondent was notified by Tropical of the outcome of the divers' inspection at around 3:30 p.m. on August 3, 2011, and, within a matter of minutes of receiving such notification, he telephonically reported the Grounding Incident to the United States Coast Guard (USCG) and to the Department's Pilot Consultant/Investigator, Lieutenant Commander Galen Dunton, USCG (Ret.).8/ The following day, Respondent provided Commander Dunton with a written report of the incident, as required by section 310.111 and Florida Administrative Code Rule 61G14-15.002. On August 30, 2011, Commander Dunton issued his Investigative Report concerning the Grounding Incident. It contained the following "Conclusions" and "Recommendation": Conclusions: It is concluded that Captain Hansen was operating under the auspices of his state license and therefore subject to disciplinary action by the State of Florida. The proximate cause [of the grounding of the Ship on August 3, 2011] is unknown. The most probable cause was the failure of the pilot to seek a better position within the [Main] Turning Basin to anchor instead of trying to come alongside the intended berth. The pilot made an error in judgment in deciding to approach the berth without any line handlers to assist versus seeking a better position within the [Main] Turning Basin to anchor and ride the storm out. Had the pilot proceeded further to the SW in the [Main] Turning Basin and then anchored,[9] he may not have grounded or at least bought more time to ride out the storm. The anchor began to drag once the bow started to swing with the wind, and as a result the stern quickly touched bottom near Beacon #12. There is evidence of a violation of FS 310.101(1)(a) on the part of the pilot, in that he failed to make allowances for the wind by anchoring off the berth instead of seeking a better position within the [Main] Turning Basin. There is evidence of a violation of FS 310.101(1)(k) on the part of the pilot in that he failed to (1) seek a better position to anchor within the [Main] [T]urning [B]asin, (2) [a]ttempted to approach the berth knowing that there were no line handlers available, practices not in keeping with the acceptable standards of safe piloting. Recommendation: It is recommended that 1. This case be forwarded to the Probable Cause Panel and that probable cause be found to exist for the following violations: FS 310.101(1)(a) on the part of the pilot in that he failed to make allowances for the wind by anchoring off the berth instead of seeking a better position within the [Main] Turning Basin. FS 310.101(1)(k) on the part of the pilot in that he failed to (1) seek a better position to anchor within the [Main] [T]urning [B]asin, (2) [a]ttempted to approach the berth knowing that there were no line handlers available, practices not in keeping with the acceptable standards of safe piloting.[10] The probable cause finding Commander Dunton recommended was made, and an Administrative Complaint, based on this finding, was thereafter filed. Respondent subsequently requested a "formal hearing" on the allegations against him. This administrative proceeding ensued, with the final hearing being held on February 27, 2012. Ultimate Finding The evidence presented at the final hearing did not clearly and convincingly establish that, in having the Ship approach the Assigned Berth and anchor where it did during its inbound journey through the Port on August 3, 2011, Respondent failed to exercise the care a reasonable and prudent Department- licensed pilot would have exercised under the same or similar circumstances or otherwise violated some professional standard of care or safety he was obligated to follow as a Department- licensed pilot.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Pilot Commissioners dismiss the Administrative Complaint against Respondent in its entirety. S DONE AND ENTERED this 29th day of March, 2012, in Tallahassee, Leon County, Florida. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of March, 2012.
Findings Of Fact Respondent, Thomas A. Baggett, was at all times material hereto licensed by the State of Florida as a pilot in Tampa Bay. On May 15, 1984, Captain Baggett was employed to undock the M/V Hybur Tropic (Tropic) from Berth 264, Port of Tampa, and to pilot her outbound through Tampa Bay. The Tropic is 238 feet long, with approximately a 32 foot beam, and a draft of over 7 feet. She is powered by a direct drive diesel engine and backs to port. Because the Tropic is direct drive, it takes a minute to a minute and a half to shift the direction of the engine; and another minute to a minute and a half to make headway in the opposite direction. At slow astern, the Tropic will achieve a speed of 2-3 knots in less than two ships' lengths. At or about 1820 hours, May 15, 1984, Captain Baggett ordered the Tug Dorothy to make up a hawser to the center chock aft of the Tropic and pull the stern of the Tropic, which was moored port side to Berth 264, away from the dock. Captain Baggett maneuvered the Tropic's stern around the bow of the M/V Carib Haven which was moored within 100 to 150 feet of Berth 264 on the south side of the slip, and positioned the Tropic in the center of the west end of the slip. Captain Baggett then ordered the Tug Dorothy to pull the Tropic backward out of the slip and ordered the Tropic's engine to slow astern. As the stern of the Tropic exited the slip into Ybor Channel, Captain Baggett ordered the Tug Dorothy to pull the stern of the Tropic to the north, but did not order any engine change. Finally, as the bow of the Tropic cleared the slip, and was in the Ybor Channel, Captain Baggett ordered the Tropic's engines to slow ahead. When she entered the Ybor Channel the Tropic was making a minimum of 2-3 knots, and with the assist provided by the Tug Dorothy more probably 4-5 knots. Captain Baggett's handling of the Tropic placed the Tug Dorothy in a position of peril, and rendered her ineffectual. By continuing slow astern, after ordering the tug to pull the Tropic's stern to the north, the Tropic's tendency to back to port worked against the tug's efforts. By continuing to back the Tropic's engine until her bow had cleared the slip, the Tropic backed past the tug and began to trip her. With water coming over the tug's port side, and the danger of tipping over imminent, the tug's deckhand released the hawser to the Tropic, and the Tropic backed past her into the side of the barge IOS 3301, which was moored on the east side of the Ybor Channel immediately east of the slip the Tropic exited. Captain Baggett's assertion that a collision would have been avoided if the Tug Dorothy had not released the hawser is unpersuasive. At the time the hawser was released, Captain Baggett's handling of the Tropic had already rendered the tug ineffectual, and a collision with the barge 105 3301 inevitable. When Captain Baggett finally ordered the Tropic's engine slow ahead, her bow had cleared the slip and she was moving astern at a minimum of 2 knots. By that time, the Tropic's stern was only 180 feet from the side of the barge 105 3301. At 2 knots the Tropic would cover 200 feet in one minute. Accordingly, before the Tropic's engine could even start ahead, she had backed into the barge. Captain Baggett sought to justify his backing of the Tropic through testimony that he used the Tropic's tendency to back to port to keep her bow from falling down on the M/V Carib Haven. However, by the time the Tropic's stern exited the slip, her bow was already clear of the M/V Carib Haven. Further, Captain Baggett conceded that the Tug Dorothy, even with existing shipping in the slip, was capable of safely towing the Tropic into the Ybor Channel without any assist from the Tropic's engine. Captain Baggett failed to offer any persuasive evidence which would exculpate him. 1/ Wind, weather and current conditions were not unfavorable at the time of the collision, and the Tropic did not experience any mechanical problems.
The Issue The central issue in this case is whether the Respondents unlawfully discriminated against the Intervenors in violation of Section 760.23, Florida Statutes.
Findings Of Fact The Commission is the state agency charged with the responsibility of promoting and encouraging fair treatment in housing in accordance with the provisions of Chapter 760, Florida Statutes. Such authority includes, but is not limited to, issues involving the fair housing act found at Sections 760.20- 760.37, Florida Statutes In 1986 or 1987, the Intervenor, Edward Divito, purchased a home located within a subdivision known in this record as Duckwood which was subject to the authority of the Respondent, Duckwood Homeowners Association, Inc. The Duckwood development is a residential community located in Martin County, Florida consisting of 139 single family units. Each Duckwood unit is subject to covenants, conditions and restrictions. At all times material to the allegations of this case, Mr. Divito resided in his home at Duckwood. Sometime subsequent to 1986, Mrs. Divito began residence at the Divito home in Duckwood. Between 1987 and January, 1992, Mr. Divito's minor daughters from a prior marriage did, from time to time, reside with the father at the Duckwood residence. Although the visits were longer than two weeks, the Respondent did not take any action related to such visits. More specifically, Respondent did not request that the minors vacate the Duckwood home. In January, 1992, Andrew Divito was born and took permanent residence with his parents at the Duckwood home. In February, 1992, the Duckwood Homeowners Association, Inc. reminded the Divitos that Andrew was not allowed to reside in the Duckwood home. The Respondent never demanded that Kathy Divito, aged more than 18 years but less than 55 years, not reside in the Divito's home. The Respondent never demanded that Edward Divito, aged more than 18 years but less than 55 years, not reside in his Duckwood home. At all times material to this case, Respondent had a restriction which prohibited persons under 18 years age from permanently residing in the Duckwood subdivision. This prohibition applied to Mr. Divito's minor daughters as well as to Andrew. Restrictions also limited permanent residency to those persons 45 years of age or older. This age limit was later changed to 55 years or older. Neither Mr. nor Mrs. Divito was 45 years of age when Andrew was born. Moreover, Mr. Divito was not 45 years old at the time he purchased the Duckwood property or when such restriction was enacted. In 1992, neither Mr. nor Mrs. Divito was 55 years of age. On August 2, 1992, Duckwood sent another letter to the Divitos reiterating that Andrew's residence violated the restrictions and that litigation would ensue if the Divitos refused to comply. Duckwood's present facilities were designed and constructed when Duckwood was intended to be housing for persons 45 and older, and there has not been any specific or significant modification to convert Duckwood facilities for use by older persons. With the exception of the case at bar, Duckwood has never previously enforced its age restriction. Duckwood failed to enforce the restriction when Edward Divito's daughters resided with him. Prior to October of 1992, Duckwood had not put in place formal procedures to screen new residents or to verify the ages of its then existing residents. In October of 1992, at least eighty percent of the Duckwood residents were age 55 or older. Mr. Divito placed his Duckwood residence on the market long before Andrew was born. The Divitos had effectively decided to move before the notice was issued by Respondent. The Divito home eventually sold in November, 1993 for at least fair market value. The Divitos were annoyed and felt harrassed by the action of Respondent in requesting that Andrew not reside at the Duckwood property. The situation created an understandable tension between the Divitos and their neighbors. At all times material to this case, Duckwood did not have significant facilities and services specifically designed to meet the physical or social needs of older persons. All facilities at Duckwood have remained as initially designed and do not offer special accessibility other than that expected for handicap usage unrelated to age. Prior to this incident with the Divitos, the housing community did not publish and enforce policies and procedures related to providing housing for persons over 55 years of age.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing the allegations of this case as moot since the Divitos suffered no damages and have voluntarily moved. DONE AND ENTERED this 10th day of June, 1996, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH, 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 10th day of June, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-1177 Rulings on the proposed findings of fact submitted by the Petitioner: Paragraphs 1 through 12, 14, 15, 20, 21, 22, and 23 are accepted. Paragraph 13 is rejected as contrary to the weight of the credible evidence or not supported by the record. See, however, findings of fact number 23. Paragraphs 16 through 19 are rejected as unnecessary or irrelevant; it is undisputed that the development sought to exclude minors. The time frame for the restrictions is relevant only as it relates only to Duckwood's claim as a community for persons over 55 which it did not attempt to establish until this case ensued. Paragraph 24 is rejected as contrary to the weight of the credible evidence or argumentative. Rulings on the proposed findings of fact submitted by the Intervenors: Paragraphs 1, 3 through 7, 9 through 17, 22, 23, 24, and 26 through 32 are accepted. With regard to paragraph 2, it is accepted that the purchase occurred in 1987; otherwise, rejected as not supported by the weight of the credible evidence. Paragraph 8 is rejected as irrelevant (since asking price would not necessarily reflect fair market value) and not supported by the evidence presented (the more likely amount was $97,000 not $97,000,000). Paragraphs 18 through 21 are rejected as irrelevant or unnecessary; it is undisputed that the development sought to exclude minors. The time frame for the restrictions is relevant only as it relates only to Duckwood's claim as a community for persons over 55 which it did not attempt to establish until this case ensued. With regard to paragraph 25, with the deletion of the phrase "either prior to or subsequent to the Divitos constructive eviction" which is rejected as contrary to the weight of the credible evidence, the paragraph is accepted as it relates to the times material to this case. Rulings on the proposed findings of fact submitted by the Respondent: 1. Paragraphs 2, 3, 7 through 12, 14, 15, 16, 21, 27, 28, 34 through 38, 41, 42, 45, 46, 47, 51 through 59 are accepted. Paragraph 1 is rejected as comment or statement of case. Paragraphs 4, 5, and 6 are rejected as comment or allegations of the statement of the case. Paragraph 13 is rejected as comment or statement of the case. Paragraphs 17 through 20 are rejected as irrelevant or contrary to the weight of the credible evidence. Paragraphs 22 through 26 are rejected as contrary to the weight of the credible evidence. The association did not begin to conscientiously perform the duties described until this case arose. Record keeping, surveys, an active welcoming committee, etc. all began in earnest in October, 1992. Presumably, in response to this issue. Paragraphs 29 through 33 are rejected as contrary to the weight of the credible evidence or not supported by the record. See comment above. With the correction to state "A verification" and not "Another verification" which is rejected as contrary to the weight of the credible evidence, paragraph 39 is accepted. With regard to paragraph 40, it is accepted that the Association was attempting to verify that at least one member of each home was 55 or older. With regard to paragraph 43, it is accepted that as of October, 1992, the Association has updated its records, etc. Paragraph 44 is rejected as contrary to the weight of the credible evidence or not supported by the record. With regard to paragraph 48, it is accepted that all of the facilities and most of the programs or services were available to residents prior to 1989. Duckwood has no services or programs or facilities specially designed or implemented for persons over 55 years of age. Paragraph 49 is rejected as contrary to the weight of the credible evidence. Paragraph 50 is rejected as irrelevant or vague. COPIES FURNISHED: Sharon Moultry, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32308 Dana Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32308 Larry Corman, Esquire HODGSON, RUSS, ANDREWS, WOODS & GOODYEAR 2000 Glades Road, Suite 400 Boca Raton, Florida 33431 Jane L. Cornett, Esquire WACKEEN, CORNETT & GOOGE, P.A. Post Office Box 66 Stuart, Florida 34994 Dana Baird, Esquire Harden King, Esquire Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue The issues in this case are whether Respondent discriminated against Petitioner on the basis of her sex or national origin in violation of 42 USCA Section 3604(a)(8) ("Section 8") and Sections 760.20(1)-(3), Florida Statutes (1997), by allegedly refusing to rent an apartment to Petitioner and by allegedly not renewing Petitioner's lease when it expired. (All chapter and section references are to Florida Statutes (1997) unless otherwise stated.)
Findings Of Fact Petitioner is a member of a protected class. Petitioner is a Hispanic female. Respondent rents dwelling units to the public at Ravens Crossing Apartments ("Ravens"). Ravens is located at 825 Ravens Circle, Altamonte Springs, Florida. Concord Management is located at 2200 Lucien Way, Suite 410, Maitland, Florida. Sometime in May 1996, Respondent applied for an apartment at Ravens. Respondent rejected the application. Petitioner subsequently returned to Ravens and submitted another application for an apartment. Respondent accepted the second application. Petitioner signed a written lease agreement with Respondent for the period August 1, 1996, through June 30, 1997. The written lease prohibited any additions or improvements to the lease premises without the "prior written consent of the manager." During the term of the lease, Petitioner violated the lease. Petitioner constructed an entry gate around the front of her apartment. Petitioner did not obtain the prior written consent of Respondent to construct the entry gate. Respondent never authorized or approved the gate. Petitioner constructed the entry gate to keep neighbors away from her front door. Petitioner testified that: from February 2, 1997, through April 29, 1997, a female neighbor named "Virginia" repeatedly knocked on Petitioner's front door for no reason; and another neighbor named "Robert" began knocking on her door on June 24, 1997, for no reason. Petitioner confronted both Virginia and Robert without result. Petitioner filed complaints with the Altamonte Springs Police Department on three different occasions. When the police department first investigated the matter, Petitioner identified two vehicles that Petitioner said belonged to the two neighbors who had been knocking on Petitioner's door. The investigating officer requested dispatch to identify the vehicle owners from the license plate of each vehicle. The owners of the vehicles were identified as Caucasion blond male and female. Petitioner had previously described the individuals who knocked on her door as a black female and a white male with balding, reddish hair. Petitioner testified that other neighbors repeatedly knocked on her door for no reason. One of those neighbors was identified by Petitioner as "Mrs. Toppel." Mrs. Toppel is a very old woman with emphysema. She weighs approximately 80 pounds and is barely able to walk. Petitioner occupied her apartment until her lease expired on June 30, 1997. Respondent gave timely notice to Petitioner that her lease would not be renewed. Petitioner vacated the premises and moved to Hollywood, Florida. On September 4, 1997, Petitioner filed her initial Complaint of Discrimination with the Commission. The Complaint alleged that Respondent discriminated against Petitioner by denying her application for an apartment in May 1996, by fostering harassment of Petitioner by her neighbors, and by failing to renew Petitioner's lease. The Commission investigated the Complaint. On June 26, 1998, the Commission determined there was "No Reasonable Cause" to support allegations of discrimination. On July 20, 1998, Petitioner filed a Petition for Relief. The Petition contained the same allegations as those in the Complaint. The Commission referred the matter to the Division of Administrative Hearings. The undersigned conducted a hearing on December 1, 1998. Petitioner presented her case and rested. Respondent cross-examined Petitioner and Petitioner's witness.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a Final Order dismissing Petitioner's Petition For Relief for failure to establish a prima facie case of discrimination. DONE AND ENTERED this 3rd day of February, 1999, in Tallahassee, Florida. DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of February, 1999. COPIES FURNISHED: Bill McCabe, Esquire Shepherd, McCabe and Colley Suite 200 1450 State Road 434 West Longwood, Florida 32750 Lydia Cortes Apartment 21 1400 North 17th Avenue Hollywood, Florida 33020 Sharon Moultry, Clerk Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Dana Baird, General Counsel Human Relations Commision 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
Findings Of Fact Documentary evidence was received that Hangar Two, Inc. was chartered on April 4, 1980, and had "Hangar Two, Inc." and its unique logo registered as a service mark on June 18, 1980. See Exhibits 1, 2, 3 and 6. Documentary evidence was received that Hanger Two Aviation, Inc. was incorporated on November 25, 1980. See Exhibits 4 and 5. Wallace I. Garrick testified on behalf of Hangar Two, Inc. Garrick has been the attorney for Carl Knight for a number of years and handled the incorporation of Hangar Two, Inc. for Knight. For several years, Knight has been engaged in the business of repairing, rebuilding and maintaining aircraft. Garrick has been to Knight's place of business many times. The business was located at North Perry Airport for a number of years and did business as Hangar Knight was forced to move his business and incorporated his business as Hangar Two, Inc. The business of the corporation is the repair and maintenance of aircraft. Knight moved his business to a building on the southeast corner of the same airport, which he caused to be identified and marked with his service mark "Hangar 2." See Exhibit 6. Located in this building when Knight moved there was an aircraft repair and maintenance business operated by George Ritch. Thereafter, Ritch retained a one-room office and leased a small portion of the floor space for his business use. Hanger Two Aviation, Inc. was incorporated by Milton Margulies, a local attorney. Its primary Director and agent for service of process is Jean S. Morse, an employee of Margulies. Garrick was advised by Margulies that he had incorporated Hanger Two Aviation, Inc. for George Ritch, and that he had no further relationship with the corporation or with Ritch. Incorporation of Hanger Two Aviation, Inc. was sought after the date that Knight's business moved into the same building occupied by Ritch and after the date Knight's business was incorporated in the name Hangar Two, Inc. Incorporation of Hanger Two Aviation, Inc. was not in good faith. Both corporations are engaged in the same business, aircraft repair and maintenance, and their principal places of business are located in the same building at the same airport. Garrick has seen bills and other mail intended for Ritch's business delivered to Knight's business.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the Department of State revoke the reservation for the corporate name Hanger Two Aviation, Inc. DONE and ORDERED this 26th day of October, 1981, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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 26th day of October, 1981. COPIES FURNISHED: Wallace I. Garrick, Esquire Concord Building, Suite 1000 66 West Flagler Street Miami, Florida 33130 Jean S. Morse, Registered Agent Hanger Two Aviation, Inc. 2020 NE 163rd Street North Miami Beach, Florida 33162 Stephen Nall, Esquire Office of the General Counsel Department of State The Capitol Tallahassee, Florida 32301 George Firestone, Secretary Department of State The Capitol Tallahassee, Florida 32301
The Issue The issue is whether the Division of Administrative Hearings has jurisdiction over an alleged unlawful employment practice which occurred on the premises of a federal enclave.
Findings Of Fact Respondent asserts that Petitioner's allegations arose during her employment at Eglin Air Force Base, Florida. Respondent also asserts that Petitioner never worked for it in Florida at a site other than Eglin Air Force Base. Petitioner's Charge of Discrimination and Petition for Relief do not refute these assertions. It is uncontested that Eglin Air Force Base, Florida, is a federal enclave. The land on which the base is located was ceded by the State of Florida to the United States on April 26, 1937. At that time, the federal government was given exclusive jurisdiction over the land. The cession deed was recorded on April 27, 1937, and states as follows in pertinent part: I Fred P. Cone, Governor of the State of Florida, in the name and by the authority of said State and pursuant to the statutes of said State in such cases made and provided, do hereby cede to the United States of America, exclusive jurisdiction over said lands so acquired. Secretary of State (Florida), Deeds, Book A, pages 349-352.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That FCHR enter a final order determining that the Division of Administrative Hearings does not have jurisdiction over the issues raised in the instant Petition for Relief and dismissing said petition with prejudice. DONE AND ENTERED this 13th day of May, 1999, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of May, 1999. COPIES FURNISHED: Cynthia K. Faulconer 145 Wright Circle Niceville, Florida 32578 Edmund J. McKenna, Esquire Ford and Harrison, LLP Suite 900 101 East Kennedy Boulevard Tampa, Florida 33602 Sharon Moultry, Clerk Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Dana Baird, General Counsel Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149
The Issue Under the standards established by Section 330.30, Florida Statutes, and Rule Chapter 14-60.05, Florida Administrative Code, the issues presented for resolution are: Whether the site is adequate for the proposed private seaplane base. Whether the proposed seaplane base will conform to minimum standards of safety. Whether safe air traffic patterns can be worked out for the proposed airport and for all existing airports and approved sites in the vicinity.
Findings Of Fact Based on the stipulations of the parties, the testimony of the witnesses, and the exhibits admitted in evidence at the hearing, I make the following findings of fact. On August 24, 1983, Mr. Ruzakowski of 159 San Remo Drive, Venetian Shores Subdivision, Islamorada, Florida, filed an application with attachments with the Department for a private seaplane base license. The application of the proposed private seaplane base to be known as Plantation Key seaplane base proposes that landing and taking off would be in the open water area known as Florida Bay or Cotton Key Basin and that the seaplane would be parked on a ramp at the applicant's home. In order to reach the applicant's waterfront home, the application proposes a taxi route along Snake Creek which connects Florida Bay to the applicant's home. The application had attached to it a letter of zoning approval from the Building and Zoning Department of Monroe County signed by Mr. Joseph E. Bizjak, Assistant Building Official, which letter stated that the ramp on the applicant's property ". . . has never been and is not now in violation of any Monroe County zoning codes." The Department of Transportation has never been notified by the Monroe County Zoning and Building Department of any withdrawal of this zoning approval. Also attached to the application was a letter from Robert Billingsley supervisor of the program development section of the Federal Aviation Administration which stated that the FAA airspace approval for applicant's seaplane was still current and in effect. Mr. Ruzakowski's 1976 application for a seaplane base proposed using Snake Creek as a take-off and landing area. The instant application only proposes to use Snake Creek as a taxi area to and from Mr. Ruzakowski's residence (where he proposes to park the airplane) and the take-off and landing area in Florida Bay. The distance from Mr. Ruzakowski's residence to the take- off and landing area is approximately one mile. Upon receipt by DOT of Mr. Ruzakowski's 1983 application, an on-site feasibility inspection of the site was made by Mr. Steve Gordon of the DOT's Sixth District in Miami, Florida. Mr. Gordon, a District Aviation Engineer, has extensive experience as an airplane pilot and as an airport site inspector. Mr. Gordon conducted an adequate on-site inspection and concluded that the proposed seaplane base appeared to be in compliance with the applicable statutory and rule provisions. Specifically, Mr. Gordon concluded that the take-off and landing operations would be away from the area of the homes in the development, that the ramp on Mr. Ruzakowski's property was adequate for safe approach upon his lot, that his lot was a safe place to park his seaplane, that Snake Creek was wide enough for taxiing the airplane, that the take-off and landing area contained no obstructions or hazards, and that there was no hazard to other airports in the area. Following the inspection, Mr. Gordon wrote to Mr. Ruzakowski and to the DOT officials and advised them that the proposed site was feasible for a private seaplane base under the applicable licensing requirements. Thereafter, the DOT sent notice to approximately 200 addressees advising them of the proposed private seaplane base application, the inspection results, the DOT's intent to issue site approval and advising of a public meeting on the matter. The notice was also published in The Florida Keys Keynoter newspaper on October 13, 1983. Among the addressees notified by mail were adjacent property owners, the Monroe County Building and Zoning Department, the Monroe County Board of County Commissioners, and the FAA. The Marine Patrol and the Coast Guard were also notified of the public hearing. Neither the Monroe County Board of County Commissioners nor the Monroe County Building and Zoning Department sent a representative to attend the public hearing. Following the public hearing and consideration of all of the objections stated at the public hearing, Mr. Gordon recommended that site approval be granted for the proposed seaplane base. There are other licensed seaplane bases in Florida in which the take- off and landing areas are in open water such as bays and in which seaplanes using the base taxi to and from the parking area in channels used by boats. The airplane owned by Mr. Ruzakowski which he proposes to use at the subject seaplane base is a modified Republic Seabee. The modifications include modifications which make the airplane more maneuverable, quieter, and dependable. When taxiing on the water the pilot of the Seabee has excellent visibility of everything from very close to the airplane to infinity. The airplane is very maneuverable on the water, due in part to the fact that it has both water and air rudders. The airplane can be stopped very quickly on the water because the direction of the propeller thrust can be reversed. The propeller reversal also makes it possible for the airplane to back up while on the water. The airplane can taxi on the water as slowly as 5 miles per hour. Once it reaches the take-off area, the actual take-off run lasts only about 18 or 20 seconds. The airplane is approximately 40 feet wide from wingtip to wingtip. The tip of the airplane propeller is at least four feet above the water. As a result of the excellent visibility from the airplane and the high degree of maneuverability of the airplane, it is easy for the pilot of the airplane to observe and avoid any boats or other objects in the vicinity of the airplane. While operating on the water the airplane is subject to the same navigation rules which apply to boats and ships. The applicant, Mr. Ruzakowski is a 73 year old retired airline pilot. He has between 20,000 and 22,000 hours of flying experience, approximately 75 percent of which was as pilot in command. He has flown a large number of different types of airplanes, including land based airplanes, seaplanes, and amphibians. He has had extensive experience in both single- engine and multi- engine aircraft. In 54 years of flying he has never had an accident. Safety is the main factor in all of his flying. Mr. Ruzakowski is an FAA consultant engineer and does all of the maintenance and repairs on his own airplane. He has invented an improved control system for the Republic Seabee aircraft and has received FAA approval for his invention to he installed on other Republic Seabees. Mr. Ruzakowski appears to be in excellent physical and mental condition; at the hearing he appeared to be strong, agile, and alert. These appearances are confirmed by the fact that he currently holds a valid FAA pilot's license and medical certificate. He has never been denied an FAA medical certificate. His vision is excellent and is perhaps getting better because several years ago his FAA medical certificate required him to keep reading glasses in the aircraft, but his current medical certificate contains no such restriction. Snake Creek is used by a variety of large and small commercial and pleasure boats. The volume of boat traffic varies from day to day and also by time of day. At times there are also swimmers and divers in Snake Creek and in the designated take-off and landing area. However, none of the boat traffic is incompatible with the operation of the applicant's airplane because the visibility from the airplane and the maneuverability of the airplane are such that the pilot of the airplane has as much or more ability to avoid or prevent a collision as does the operator of any of the boats and ships using the waterway.
Recommendation Based on all of the foregoing it is recommended that the Department of Transportation issue a Final Order approving the issuance of Site Approval Order No. 83-34. DONE and ORDERED this 15th day of May, 1985, 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 15th day of May, 1985. COPIES FURNISHED: Joe Miklas Esquire Post Office Box 366 Islamorada, Florida 33036 James Baccus, Esquire Post Office Box 38-1086 Little River Station Miami, Florida 33138 Judy Rice, Esquire Department of Transportation Haydon Burns Building 605 Suwannee Street, MS-58 Tallahassee, Florida 32301-8064 Honorable Paul A. Pappas, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street, MS-58 Tallahassee, Florida 32301-8064
Findings Of Fact Petitioner Castelli originally applied for licensure as a physician in the state of Florida by application signed, notarized, and dated July of 1985. In conjunction with his application for licensure, Petitioner Castelli submitted a FLEX application that was signed and dated July 27, 1985. The 1985 application was accompanied by several documents, including Castelli's "Titulo" signed by him, dated September 15, 1972, and notarized by Norma Perez as a true and correct copy of the original. Petitioner Castelli was permitted by the Board of Medicine to take the December, 1985, FLEX, which Castelli did take and fail. By letter signed and dated August 30, 1986, Petitioner Castelli requested that he be allowed to re-take the FLEX examination in December of 1986. A notice dated October 15, 1986, was sent by the Board to the address provided by Castelli informing him that, among other things, he was required to complete a new application because his previous application was over one year old. Petitioner Castelli did not respond to that notification. On November 17, 1986, Petitioner Granado-Villar telephoned Respondent's employee Chandra Prine to inquire as to the status of her pending application to take the FLEX examination on December 5, 1986. Petitioner Granado-Villar was advised by Prine that her application was in order and that she should be receiving her admission card for the examination. Granado-Villar then asked Prine the status of the application of Petitioner Castelli. Prine told Granado- Villar that Castelli's application was incomplete because updated pages 2-5 had never been received and because no current ECFMG certificate was in his file. Prine further advised Granado-Villar that the deadline for applications for the December 5, 1986 FLEX examination had passed. In response to Granado-Villar's inquiries as to what could be done to help Castelli, Prine advised her that if his application file could be completed by 5:00 p.m. on November 18, 1986, Prine would discuss the matter with her supervisor and attempt to place Castelli's application on the agenda for the November 22, 1986 meeting of the Board of Medicine. Granado-Villar advised Prine that Castelli was a resident of Spain and that she would attempt to get an updated application form to Castelli by overnight mail. Prine told Granado-Villar to include copies of the receipts for overnight mail with Castelli's updated application. Petitioner Granado-Villar called Petitioner Castelli in Spain, and they decided to send the application to Castelli by commercial airlines in hopes of completing the round-trip in time to file it in the Board's office by 5:00 p.m. on November 18, 1986. During that conversation Castelli gave Granado-Villar the information she requested so that she could complete the updated application form for him. Granado-Villar typed some of the information on a photocopy of an application and subsequently filled in another portion by hand. Castelli advised Granado-Villar to write the name of Monserrat Compano, a former- stewardess for Iberia Airlines on the outside of the envelope so that the envelope might be accorded special treatment. Upon contacting Iberia Airlines, Granado-Villar discovered that there were no flights from Miami to Madrid on November 17 and that the only option was to utilize an Eastern Airlines flight from Miami to New York and then a connecting Iberia flight from New York to Madrid. Granado-Villar placed the updated application in a manila envelope bearing only the names of Monserrat Compano and Petitioner Castelli on the outside. She took the envelope to Carmen Rojas, an employee of Eastern Airlines and a friend of hers. She explained that the envelope must be placed on the Eastern flight leaving for New York at 1:00 p.m. on November 17 so that it could subsequently be placed on the Iberia flight from New York to Madrid. Rojas took the envelope to the flight crew for the Eastern flight to New York and gave it to one of the stewardesses, telling her to take the envelope and deliver it to the Iberia ticket counter at John F. Kennedy Airport in New York. Rojas gave the stewardess no instructions other than to simply leave the envelope at the Iberia ticket counter in New York. No arrangements were made by Rojas, Granado-Villar, or Castelli for getting the envelope from the Iberia ticket counter in New York to the Iberia flight to Madrid. During the morning of November 18 Petitioner Granado-Villar arranged for a delivery service to pick up an envelope from her at the hospital where she is employed and deliver it to Respondent in Tallahassee with specific directions that the envelope must be on the Piedmont Airlines flight leaving Miami for Tallahassee at 5:00 p.m. on November 18, 1986. Also on the morning of November 18 Petitioner Granado-Villar made arrangements with Erma Shockley, an employee at Miami Children's Hospital and a notary public, for Shockley to notarize Castelli's signature on his application later that day. On November 18, 1986, Petitioner Granado-Villar took to Shockley a completed application form. She told Shockley that the signature on the form was that of Petitioner Castelli and that Castelli had signed the application form on the previous day at the airport in Madrid. Although both Shockley and Granado-Villar knew that Castelli was not present, Shockley notarized the signature on Castelli's application. Further, Shockley and Granado-Villar decided that Shockley would date her notarization as having been done on November 17 in order that the date of the notarization would be consistent with the date of the signature. After the document was notarized, Petitioner Granado-Villar went to the emergency room area to await the arrival of the courier that she had previously arranged. The courier arrived within 5 to 10 minutes thereafter. Edna Evenson, a courier for Crown Courier Services, Inc., picked up an envelope containing an application for Petitioner Castelli from Petitioner Granado-Villar at Miami Children's Hospital, 6125 Southwest 31st Street in Miami on November 18, 1986. She gave Petitioner Granado-Villar a receipt for that package. Evenson subsequently delivered it to Piedmont Airlines at Miami International Airport at approximately 3:49 on November 18, 1986, for transport on Piedmont flight number 814 from Miami to Tallahassee, departing at 5:00 p.m. Piedmont's airbill, which corroborates the testimony of Evenson and the records of Crown Courier Services, Inc., shows that Piedmont received the package from Evenson for shipment on flight 814 to Tallahassee at 3:47 p.m. on November 18, 1986. On November 19, 1986, at 9:00 a.m., C. Prine signed a Sonicair receipt for a package containing Castelli's 1986 licensure application. The Sonicair shipping form contained information including the shipper's name--'D Granado-Villar"; the recipient--"Department of Professional Regulation"; the date"11/18/86"; a job number/bill of lading number "A58408"; original airport code-- "MIA" and destination airport code "THL." The spaces provided for commercial value and declared value are blank, and other than the time of receipt written by C. Prine, there is no time indicated on the Sonicair shipping form. The signature and designation "#10" for the shipper's signature and pickup agent on the Sonicair air shipping form were written by Edna Evenson, the courier for Crown Courier Services, Inc. Accompanying the application from Petitioner Castelli was a hand written letter dated 11/18/86 from Petitioner Granado-Villar. Petitioner Castelli's application bears a signature which was notarized by Erma M. Shockley in Dade County, Florida, with a date of November 17, 1986. The notarization states that the document was subscribed and sworn to before Shockley on the date of the notarization. On November 20, 1986, Petitioner Castelli was notified that he was required to make a personal appearance before the Board at its November 22, 1986 meeting in Tampa. He failed to appear. Petitioner Granado-Villar was also notified on November 20, 1986, that she was required to make a personal appearance on November 22, 1986, and she did appear. At the proceeding on November 22 Dorothy Faircloth, Executive Director of the Board, specified the concerns of the Board's staff regarding Petitioner Castelli's application. The staff questioned whether the application had actually been received in Spain and completed by Castelli and returned to Granado-Villar for delivery in Tallahassee in such a short timespan. It also appeared that the signature of Castelli on the application did not match his signature on previous applications and documents. The staff further questioned how the application could have been notarized in Dade County, Florida, while Castelli was in Spain. Petitioner Granado-Villar testified under oath at that proceeding that the application did make the trip from Miami to New York to Madrid to Miami to Tallahassee and that the signature on the application was that of Castelli. She admitted completing part of his application and arranging for a notary public who was very familiar with Castelli to notarize his application in Miami after she received it from Castelli who remained in Spain. Although Granado-Villar testified before the Board that Shockley was "well acquainted" with Castelli, it was established at the final hearing in this cause that Shockley and Castelli knew each other only incidentally. Some months earlier, Shockley notarized a copy of a document belonging to Castelli to be a true copy of the original, and they once passed each other in the hall at Miami Children's Hospital. Shockley had never before notarized Castelli's signature. Petitioner Granado-Villar's testimony before the Board and testimony at the final hearing is corroborated by that of Petitioner Castelli at the final hearing. According to them, on November 17, 1986 Castelli drove from Seville, Spain, to Madrid, Spain, where he found the envelope containing his application waiting for him at the Iberia ticket counter in the Madrid airport. He signed the application, placed it back in the envelope, and gave it to a passenger on Iberia flight number 965. He instructed that passenger to give the envelope to a woman whom he described (Petitioner Granado-Villar). He advised the passenger that if the woman were not there to meet her when she "cleared customs," then the passenger was to take the envelope to the Iberia ticket counter in Miami International Airport. Castelli later telephoned Granado-Villar to inform her that the application would be on Iberia flight number 956 or 965 arriving in Miami at 4:00 p.m. Granado-Villar left the hospital to go to the airport at approximately 3:30 p.m. arriving there at approximately 4:00 p.m. She went to the Iberia ticket counter where she picked up the envelope which now bore her name. She drove back to Miami Children's Hospital, parked her car, and went directly to Shockley's office arriving there between 4:20 and 4:30 p.m. She had Castelli's signature notarized. She then went to the emergency room area and waited approximately 5 to 10 minutes for Evenson to arrive. Evenson arrived at the hospital at approximately 4:40 p.m., completed the necessary paperwork, and left. The testimony recited in this finding of fact is specifically rejected as being incredible. According to flight arrival information maintained by the United States Customs Service, Iberia flight number 965 had a "block time" in Miami of 4:05 p.m. on November 18, 1986. Block time signifies the actual time that an aircraft comes to a complete halt at its arrival gate, and that time is provided to the Customs Service by the airlines as required by the United States Government. Although Petitioners presented evidence that Iberia Airlines recorded in the form of a telex its "official" block time to have been 3:55 p.m., Iberia Airlines' "official" block time is specifically rejected in favor of the block time it gave to the United States Government on the general declarations form required by law to be filed by it. It normally takes from 15 to 30 minutes for a passenger arriving on an international flight to "clear" the customs area at Miami International Airport. That time frame is extended by whatever time it takes for a passenger to disembark from an aircraft the size of an international flight and is also extended if the passenger is not an American citizen and must also go through immigration clearance. No evidence was offered as to how long it took a passenger arriving at approximately 4:00 p.m. on November 18, 1986, to clear customs. Keeping in mind the fact that it took Granado-Villar one-half an hour to drive from the hospital to the airport, it is physically impossible for Granado-Villar's and Costelli's version of the movement of that envelope containing his application to be true. Except for the testimony of Granado- Villar and Costelli there is no evidence to show that the application ever reached Castelli in Spain. Carmen Rojas only sent it to the Iberia ticket counter at Kennedy Airport in New York. Even if the application reached Castelli, it is impossible that Granado-Villar retrieved the envelope containing the application from the Iberia Airlines ticket counter at Miami International Airport at the same time that the Iberia aircraft was arriving at the gate. There is no evidence that the unknown passenger was the first person off the aircraft, that she hastened to be the first in line at customs, that she was able to clear customs without going through the immigration check point in the minimum time of 15 minutes, or that she hastened to wherever the Iberia ticket counter might be in relationship to customs in order to have left the envelope in the custody of the persons at the Iberia ticket counter in order that Granado-Villar could retrieve that envelope and be back at Miami Children's Hospital and in Shockley's office by 4:20 or 4:30 p.m. Even if it could have happened as Granado-Villar testified, Evenson could not have picked up the package at 4:40 p.m. accomplishing the one-half hour drive to the airport in order to check in the package at Piedmont in time for that package to have been placed on an airplane which left at 5:00 p.m. The application which was delivered to Piedmont Airlines for transmittal to Tallahassee by Evenson prior to the arrival in Miami of Iberia flight number 965 was not the same application as the one Granado-Villar sent to Castelli in Spain for his signature. The application which the Board received contained information regarding Castelli's medical education and surgical residency that conflicted with the application submitted by Castelli in 1985 and was incorrect. Even Castelli's height was reported to be different on those applications. In addition to containing incorrect information, the application submitted on behalf of Castelli in November of 1986 did not contain his signature and was not properly notarized. Petitioner Granado-Villar submitted a fraudulently prepared application on behalf of Castelli and attempted to perpetuate the subterfuge by her testimony before the Board and by her testimony at the final hearing in this cause. Petitioner Castelli participated fully in the submittal of his fraudulently prepared application to the Board. Even if an application had reached him in Spain for his signature at the airport in Madrid as he testified, that application was not notarized and it contained incorrect information at the time that he signed it.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that Final Orders be entered denying the applications of Petitioner Guiseppe Castelli and of Petitioner Deise C. Granado-Villar for licensure by examination as physicians in the state of Florida. DONE AND RECOMMENDED this 22nd day of January, 1988, at Tallahassee, Florida. LINDA M. RIGOT, 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 22nd day of January, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NOS. 87-1594 and 87-2194 Petitioners' proposed findings of fact numbered 1-3, 11, and 15 have been adopted either verbatim or in substance in this Recommended Order. Petitioners' proposed findings of fact numbered 4-8, 10, 12, 13, 24, and 25 have been rejected as not being supported by the weight of the credible evidence. Petitioners' proposed findings of fact numbered 9, 14, 16, 18, 23, and 26 have been rejected as being contrary to the weight of the credible evidence in this cause. Petitioners' proposed finding of fact numbered 17 has been adopted either verbatim or in substance in this Recommended Order except for the third sentence contained therein which is rejected as being contrary to the weight of the credible evidence in this cause. Petitioners' proposed findings of fact numbered 19, 20, and 28 have been rejected as being irrelevant to the issues under consideration herein. Petitioners' proposed findings of fact numbered 21 and 29 have been rejected as being subordinate. Petitioners' proposed findings of fact numbered 22 and 27 have been rejected as not constituting findings of fact but rather as being either argument of counsel or mere recitations of the testimony. Respondent's proposed findings of fact numbered 1-34 have been adopted either in substance or verbatim in this Recommended Order. COPIES FURNISHED: Dorothy Faircloth, Executive Director Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Deborah J. Miller, Esquire One Biscayne Tower, Suite 2400 Two South Biscayne Boulevard Miami, Florida 33131 Allen R. Grossman, Esquire Department of Legal Affairs Suite 1601, The Capitol Tallahassee, Florida 32399-1050 William O'Neil, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
