The Issue Whether Respondent, Department of Financial Services, Division of Workers' Compensation (Department or Respondent), should pay Petitioners’, Stephen Ogles, LLC, or RL Ogles Roofing, LLC (Petitioners), attorney's fees and costs under section 57.111, Florida Statutes (2013),1/ for initiating Division of Administrative Hearings (DOAH) Case Nos. 13-2448 and 13-2517.
Findings Of Fact Respondent is the state agency responsible for enforcing the statutory requirement that employers secure the payment of workers' compensation for the benefit of their employees and officers, pursuant to section 440.107, Florida Statutes. Petitioners are in the business of roofing, within the construction industry, as defined by subsection 440.02(8), and are Florida employers over whom Respondent has jurisdiction to enforce the payment of workers' compensation premiums for the benefit of Petitioners' employees. Petitioners are the sole members of their respective limited liability companies, each with one employee. An officer of a corporation may elect to be exempt from chapter 440, Workers' Compensation, by filing a notice of election with the Respondent. § 440.02(15)(b)1., Fla. Stat. An officer of a corporation who elects to be exempt from Florida's Workers' Compensation Law is not an employee. § 440.02 (15)(b)3., Fla. Stat. Jonas Hall is employed as an investigator for the Division of Workers’ Compensation. He has been conducting workers’ compensation compliance investigations for approximately five years, and during that time has been involved in between 2,000 and 3,000 investigations. On June 12, 2013, Respondent issued a Stop-Work Order and Order of Penalty Assessment to Stephen Ogles, LLC, and RL Ogles Roofing, LLC, and a Stop Work Order For Specific Worksite Only to Ogles Construction and Roofing, LLC. Findings of Fact 8 through 18 below set forth the specific facts and circumstances known to Respondent at the time the SWO was issued. These facts are based upon the testimony at hearing of Jonas Hall, which is found credible, as well as documentary evidence offered by Respondent, which is corroborative of Mr. Hall’s testimony. Mr. Hall began a random site investigation on June 12, 2013, after he noticed construction work about to be performed at a single-family dwelling located in Live Oak, Florida. Upon investigation, four men were found to be installing roofing at a private residence. One of those workers, Robert Ogles, advised Respondent's investigator that he was working with his three sons, Stephen, Matt, and Robert, Jr. Investigator Hall first spoke to the elder Robert Ogles who advised Investigator Hall that he was the general contractor on the job and that his sons were working as subcontractors. At no time during the interview did Robert Ogles state that his sons were employees of his company, Ogles Construction and Roofing, LLC. Investigator Hall next spoke to Stephen Ogles who stated that he owned his own business and had a valid workers’ compensation exemption. Investigator Hall then spoke to the younger Robert Ogles who also advised him that he owned his own business and had a valid workers’ compensation exemption. Finally, Investigator Hall spoke to the third son, Matt Ogles, who also stated that he owned his own business and had a valid workers’ compensation exemption. At no time during the interview of June 12, 2013, did any of the three sons state that they were employees of their father’s business. After interviewing the four Ogles, Investigator Hall left the jobsite in order to gain access to a wireless internet connection for his computer. Once he obtained a connection, Investigator Hall accessed the Division of Corporations website to look up the correct names of the businesses owned by the four Ogles. With respect to the two Petitioners, the website revealed that Stephen Ogles was the sole member of Stephen Ogles, LLC, and that Robert Ogles, Jr., was the sole member of RL Ogles Roofing, LLC. Investigator Hall then accessed the Coverage and Compliance Automated System (CCAS) to ascertain the status of workers compensation coverage for the four individuals. CCAS revealed that while both Petitioners had at one time held exemptions, both exemptions had expired at the time of Investigator Hall’s site visit on June 12, 2013. Based upon this information, Investigator Hall reasonably concluded that both Petitioners were not in compliance with Florida workers’ compensation coverage requirements. With respect to the third son, Matt, Mr. Hall’s investigation revealed that his company, Matt Ogles, LLC, held a valid exemption, and was therefore compliant with the workers compensation coverage requirements. As such, Investigator Hall did not issue an SWO to Matt Ogles, LLC. After accessing information about Petitioners’ status on his computer, Investigator Hall returned to the jobsite. Upon his return, he observed all four of the Ogles working at the jobsite, with two actively working on the roof of the home. Investigator Hall then called those on the roof down, and served the SWOs on Petitioners. The facts uncovered in Investigator Hall's investigation on June 12, 2013, provided the Department with a reasonable basis to issue the SWOs to Petitioners. On June 17, 2013, Petitioners timely filed a Request for Hearing alleging the affirmative defense that Petitioners had valid workers' compensation exemptions. The Request for Hearing filed on behalf of Stephen Ogles, LLC, specifically stated: The Respondent disputes the SWO, to wit: The Owner’s exemption was not expired. And although worded somewhat differently, the Request for Hearing filed on behalf of RL Ogles Roofing, LLC, stated: The Respondent disputes the SWO, to wit: The WC Exemption was current. The Requests for Hearing filed by Petitioners on June 17, 2013, are consistent with the representations made to Investigator Hall on June 12, 2013, to wit, both Petitioners were subcontractors on the job, and held valid exemptions. On September 10, 2013, Petitioners filed an Amended Request for Hearing disputing the penalty assessment, and contending that Petitioners were employees of Ogles Construction and Roofing, LLC. The Amended Request for Hearing stated in pertinent part: The Respondents disputes the SWO, to wit: Ogles Construction and Roofing LLC disputes the penalty assessment. RL Ogles, LLC contends that he was an employee of Ogles Construction and Roofing, LLC. Stephen Ogles, LLC contends that he was an employee of Ogles Construction and Roofing, LLC. On October 8, 2013, Respondent issued an Order Releasing Stop-Work Order (Revocation) to Stephen Ogles, LLC, and RL Ogles Roofing, LLC. Two witnesses testified as to the reasonableness of the attorney’s fees being sought by Petitioners. Petitioners’ witness on the subject, John Middleton, is a Jacksonville attorney with eight years’ experience in handling workers’ compensation defense matters. Mr. Middleton opined that the $5,000 in fees being claimed by each Petitioner was not excessive, particularly in view of the successful outcomes for Petitioners in the underlying cases. Respondent’s witness, Ralph Paul Douglas, Jr., is a Tallahassee attorney who has concentrated his practice on workers’ compensation matters for twenty years. Mr. Douglas testified that Petitioners’ attorney in the underlying cases claimed 13.3 hours per case for legal services. However, according to Mr. Douglas, at least 1.3 hours of the total hours should be deducted as not awardable due to those hours relating to the preparation of a motion in response to an order to compel. Such fees “cannot be related to any delay, any confusion caused by that party claiming the fees, . . . obfuscation, . . . anything that does not move the case along in the docket.” It was Mr. Douglas’s opinion that 12 hours of legal services is a reasonable number for the underlying cases. However, since the same itemized list of services was submitted for both cases, Mr. Douglas concluded that the second itemized list was duplicative and mostly amounted to only ministerial work. The second itemized list should be, therefore, apportioned. Mr. Douglas testified that a $10,000 fee for the work done on the underlying cases would not be appropriate or reasonable based on the pleadings, the deposition testimony of the attorney performing the work, and the itemization of services. Rather, a reasonable fee would be 12 hours at $200 per hour for one case ($2,400) and $1,200 on the second case. Thus, the total fees that should be awardable for both cases would be $3,600. While the testimony of both Mr. Middleton and Mr. Douglas is credible, the undersigned gives greater weight to the testimony of Mr. Douglas due to his greater experience in the field of workers’ compensation law, and his more detailed analysis of the legal services performed in the underlying cases. The unrebutted testimony presented by Stephen Ogles and Robert Ogles, Jr., established that their respective LLC’s employ fewer than 25 full-time employees and have a net worth of less than $2 million each.
Findings Of Fact Respondents Murphy's and Lyons' are both engaged in the business of removing wrecked, disabled, stolen or abandoned motor vehicles on Florida highways. Pursuant to Section 321.051, Florida Statutes, Petitioners are eligible for, and participate in, the system established by the DHSMV for utilizing qualified, reputable wrecker operators for removal of wrecked or disabled vehicles from accident scenes or the removal of abandoned vehicles when the owner or operator is incapacitated, unavailable, or leaves the procurement of wrecker service to the officer at the scene (hereafter referred to as "FHP wrecker rotation system"). Respondents are each charged in an Administrative Complaint indicating that FHP intends to remove Respondents from each respective zone's wrecker rotation system list for Respondents' respective alleged failure, among other offenses, to comply with the "place of business" requirement of Rule 15B- 9.003(2), Florida Administrative Code, and the unpromulgated non-rule "policy" interpreting the term, "place of business" as used in that rule. Petitioners received such notice by hand-delivery of the respective Administrative Complaints dated July 22, 1987. The FHP wrecker rotation system includes designated zones and qualified wrecker operators within those zones. When a wrecker is needed to respond to an accident or to a motorist, FHP calls the wrecker at the top of the list and then rotates this wrecker down to the bottom of the list. By rotating each wrecker on the rotation list following dispatch by FHP, each participating wrecker service is afforded an equal opportunity to service a call. See Rule 15B- 9.003(3), Florida Administrative Code. In Palm Beach County, FHP designated six zones; twenty-two wrecker businesses have qualified to participate as rotation wreckers. These wrecker companies vary according to their size and operation; qualified wrecker operators include companies with as few as one or two wreckers to as many as thirty trucks. Murphy's Towing, Lyons' Auto Body, and Kauff's Towing are among those currently operating in Palm Beach County in one or more zones of the FHP wrecker rotation system. Petitioner Murphy's Towing has participated in the wrecker FHP rotation system for eight years. Murphy's Towing maintains approximately thirty trucks and operates in four zones in Palm Beach County. It maintains storage areas in each zone. As a result of its fleet of wreckers, Murphy's is able to use a roving patrol operation. When a call is received by Murphy's Towing from FHP, a central dispatcher operating 24 hours per day assigns a Murphy's truck which is patrolling in an assigned zone to respond to the call. In individual instances, this system may actually cut or increase response time within zones from what it might be if a truck were dispatched each time from a stationary place of business within the zone. Presently, wrecker services in Palm Beach County will dispatch the closest vehicle, regardless of the address of the wrecker truck or the location of the wrecker, even across zone lines. Murphy's operates in Zones 2, 3, 4 and 5, and has obtained an occupational license in each of those zones without difficulty concerning whether it maintains a place of business at these locations. The Administrative Complaint seeks to remove Murphy's from rotation lists for Zones 2, 4, and 5. Murphy's location in Zone 2 is part of an auto paint and body shop owned by another individual. The body shop has a phone, office space and personnel on duty from 9:00 a.m. to 4:00 p.m. These personnel are not on Murphy's payroll, but Murphy's has an understanding with the body shop owner that the body shop will answer for Murphy's and assist the public as necessary. Murphy's locations in Zones 4 and 5 are run in the same manner as his Zone 2 location. Murphy's does not own these locations but has an arrangement with the owner to use space at these locations. In Zones 2, 4 and 5, Murphy's informal arrangements do not include employment of personnel on the premises and do not regulate those persons' work hours or work performed. Although a telephone is on the premises, that business telephone number is not necessarily made available to the public. Murphy's maintains no offices, telephone service, wreckers, or personnel at any of these locations. Murphy's maintains trucks within each of the zones and requires the truck drivers to live in the zone they service so that the trucks remain in the zone. Murphy's uses a central dispatch system to receive incoming calls from FHP and the public. The central dispatch is manned 24 hours a day and contacts the trucks which are roving within their designated zone via radio to dispatch them to the accident scene. Murphy's tows vehicles to the storage location in the zone in which the vehicle is picked up unless the owner requests otherwise. The owner is given a card by the driver which has four phone numbers, including the central dispatch number on it, in order to assist the owner in retrieving the vehicle. When owners call Murphy's to pick up their vehicles, their call is received by central dispatch. Arrangements are made for a truck within the zone to meet the owner to release the vehicle. Alternatively, an employee of the property owner will assist the public with release of the vehicle. Murphy's has received no public complaints of untimely response to requests for release. Petitioner Lyons' Auto Body, Inc., has participated in the FHP wrecker rotation system for twenty years. Lyons' Auto Body, Inc. maintains seventeen trucks and operates in three zones in Palm Beach County. Lyons' Auto Body, Inc. also uses a central dispatch operation similar to that employed by Murphy's Towing. Lyons' operates in three zones and has obtained an occupational license in each of those zones. The Administrative Complaint seeks to remove Lyons' from the rotation lists for Zones 1 and 3. In Zone 1, Lyons' maintains a fenced storage yard, and in Zone 3, Lyons' maintains a fenced storage yard with an office and phone. Lyons' trucks are located in the respective zones and remain in the respective zones, unless they have a request to go outside to deliver a car. After hours, the trucks are taken to the respective driver's home and the drivers are required to live in their respective zones. When Lyons' tows for FHP, owners are given a card when the vehicle is picked up. If the owner is not present, the card is given to the FHP Trooper. There is a zone number on the card so the owner may make arrangements to release the vehicle. Lyons' has received no public complaints about release time response. Until FHP promulgated rules which took effect January 22, 1986, including the challenged Rule 15B-9.003(2), Florida Administrative Code, the general operation of the wrecker rotation system was governed by written guidelines and policies established by the local troop commanders, but these written guidelines apparently never embraced the term "place of business" nor defined it. (TR 67-69, 102). Since that date, however, there has been such a duly promulgated rule, Rule 15B-9.003(2), Florida Administrative Code, which provides: To be eligible for approval to tow in a particular zone, the wrecker operator's place of business must be located in that zone, except that if there are no qualified operators in a particular zone, the Division Director or his designee may designate qualified out of zone wrecker operators to be called in that zone. This rule was determined to be a valid exercise of legislatively delegated authority in the rule challenge case originally consolidated herewith. At the time of the promulgation of Rule 15-9.003(2), Florida Administrative Code, in January, 1986, "place of business," as the term is used in that rule, was not defined under Chapter 321, Florida Statutes or Chapter 15- 9, Florida Administrative Code. Because Lt. Col. Carmody believed "place of business" was already defined by common sense and thirty-two years of common FHP interpretation so as to already include a sign, office space, personnel on location in the zone, wreckers on location in the zone, and zone addresses and phone numbers painted on each wrecker, Lt. Col. Carmody did not feel that it was necessary to promulgate an additional rule defining "place of business." Instead, Lt. Col. Carmody gave his "common sense" definition orally when occasional inquiries were made. By letter dated January 19, 1987, Howard Kauff, Chairman of the Board of Palm Beach Services, Inc., d/b/a, Kauff's Towing in three FHP zones in Palm Beach County requested of FHP the definition of "place of business." His letter set out six criteria stating what he understood to be the definition of "place of business." Lt. Col. Carmody responded to Howard Kauff by memorandum dated February 5, 1987. Carmody sent a copy of that memorandum to Inspector William Clark, Bureau Chief in charge of Troop L and to Major William R. Driggers, Troop Commander, Troop L, for the purpose of enforcing Rule 15B-9.003(2) and correcting alleged violations, but he intended for the six criteria identified in his memorandum to have statewide effect. The six non-rule policy criteria incidental to Rule 15B-9.003(2), which were identified by Lt. Col. Carmody in his memorandum to Howard Kauff, and circulated to all of Troop L, were as follows: There must be a sign on the building that identifies it to the general public as a wrecker establishment; There must be office space; They must have personnel on duty at least from 9:00 a.m. to 4:00 p.m., Monday- Friday. There must be a phone at the place of business; Tow trucks must be stationed at the place of business; The tow trucks must have the zone address and phone numbers on them. The non-rule policy in Carmody's memorandum, which for the first time interpreted, in writing, the term "place of business," virtually adopts the criteria suggested in Mr. Kauff's letter, with only two exceptions. Lt. Col. Carmody did not disseminate a similar memorandum to all troop commanders throughout the State of Florida until January 8, 1988. (See Finding of Fact 28). Upon receiving Lt. Col. Carmody's response of February 5, 1987, Howard Kauff wrote Captain Hardin of Troop L, asking for removal of several wrecker operators, among them, Murphy's and Lyons', which operators Kauff had identified as allegedly failing to comply with the six "place of business" criteria specified by Lt. Col. Carmody. Lt. Wessels subsequently conducted an investigation to determine if any of the wrecker services identified by Howard Kauff were in fact in violation of Rule 15B-9.003(2), as interpreted by Lt. Col. Carmody's memorandum of February 5, 1987. For varied reasons, including not being able to locate some satellite business addresses, Lt. Wessels concluded that eight companies did not comply with the policy criteria and recommended their removal from the appropriate rotation list. Lt. Wessels inspected the locations of Murphy's Towing in Zone 2 (Juno Beach and Riviera Beach), Zone 4 (Lake Worth) and Zone 5 (Hypoluxo) on April 7, 1987. The inspections revealed a vacant lot at the Juno Beach location with a sign indicating "Dad Auto Broker, Inc." and a business identified as "Elite Paint and Body Shop" at the Riviera Beach location. Members of the Highway Patrol could not locate the Lake Worth and Hypoluxo addresses, but admittedly, no one phoned ahead for directions. No wreckers were present at the addresses found. Lt. Wessels also inspected the locations of Lyons' Auto Body in Zone 1 (Jupiter) and Zone 3 (West Palm). The inspections revealed a small fenced lot at the Jupiter location with a sign, "Lyons Auto Body, Inc." and the address and phone number, and a fenced lot with an unoccupied building which maintained a sign indicating the name, address, and phone number at Palm Beach. No wreckers were present at Jupiter. At least three wreckers were present at the Zone 3 (West Palm Beach) location, but no personnel were observed. Petitioners Murphy's Towing and Lyons' Auto Body, Inc. were included in the eight wrecker services identified by Lt. Wessels. Following Lt. Wessels' investigation, FHP issued to the eight wrecker companies Orders to Show Cause why they should not be removed from the appropriate rotation list. Three of the wrecker services complied with the "place of business" requirement. Wessels recommended that the remaining five, which included both Petitioners Murphy's and Lyons' be removed. Pursuant to Wessels' recommendations, the Department issued Administrative Complaints against the five wrecker operators. Three wrecker operators were removed from this respective list--two voluntarily and one by Order of the DHSMV. Murphy's has participated in the wrecker rotation system for eight years without any complaint, citation, or criticism for untimely response. Its main place of business and wreckers have been inspected each of the years immediately prior to service of the Order to Show Cause without any FHP comment on its failure to comply with the "place of business" rule or non-rule policy, despite Lt. Wessels' being aware of Murphy's multi-zone operation as early as May 16, 1986. The July 22, 1987, Administrative Complaints against the Petitioners enunciate only the non-rule policy as it had evolved up to February 5, 1987, and as set out in Finding of Fact 22 supra., not as it had evolved as of the January 8, 1988, statewide memorandum described in Finding of Fact 28 infra. Lyons' has participated in the wrecker rotation system for twenty years without any FHP concerns over untimely response. Its history of successful yearly inspections and no FHP comment concerning the "place of business" rule and non-rule policy has been identical to Murphy's for the last three years immediately preceding the Order to Show Cause. Murphy's and Lyons' are two of Kauff's largest competitors. Of the ten multi-zone wrecker operators in Palm Beach County, only Mr. Kauff's and one other met the criteria suggested by Kauff's letter and enforced by non-rule policy prior to the Orders to Show Cause. See Finding of Fact 25. Lt. Col. Carmody did not disseminate a memorandum covering the non- rule policy to all troop commanders throughout the State of Florida until January 8, 1988. He did circulate such a memorandum on that date, but only after his deposition had been taken in the instant and companion rule challenge case. At the time Lt. Col. Carmody corresponded with Howard Kauff on February 5, 1987, Palm Beach County was the only area, to his knowledge, which had experienced problems with the "place of business" interpretation because of the use of multiple zone wreckers. Lt. Col. Carmody had no knowledge of similar problems in any other area of the state at that time. Testimony of Carmody and Wessels at formal hearing confirmed this to also currently be the case. Specifically, there is affirmative evidence that FHP has experienced no similar use of wreckers in multiple zones in the Fort Myers area and no requests for interpretation of the rule from that area of the state or any other. Carmody's January 8, 1988, memorandum was intended to insure uniform application of the six "place of business" criteria which Carmody had previously assumed where generally known and applied throughout FHP. The January 8, 1988 statewide memorandum contained some further refinements and embellishments of the language contained in the earlier memorandum to Kauff and Troop L in Palm Beach County, but the only substantive changes were that for the fifth criterion, the wrecker operator was required to "maintain at least one tow truck at the place of business" and for the sixth criterion, the zone address and phone numbers must be "clearly visible to the public." The 1988 memorandum also contained the further directive that: I recommend that you correspond with each wrecker operator to give the wrecker service notice that the above criteria must be met for the wrecker to comply with the requirements of Rule 15B-9.003(2). Subsequent inspections by FHP personnel of wrecker service shall require compliance noted and the wrecker service given an opportunity to correct any deficiency. If the wrecker operator fails to correct any violation after notice by FHP personnel, Order to Show Cause should be issued to the wrecker service advising that noncompliance will result in the removal of the wrecker service from the rotation list. Following the issuance of the Order to Show Cause, the Office of General Counsel should be advised to take action to remove the wrecker service from the rotation list if the wrecker service has failed to comply with the place of business criteria. [Emphasis supplied, Exhibit P-4.] The non-rule policy appears then to have evolved at least by that point in time to clearly include written warnings prior to enforcing the criteria at a subsequent inspection. The parties have, however, stipulated that as to the six enumerated criteria, the language employed in February 1987, not January 1988, is the non-rule policy FHP is enforcing and intends to enforce. Other evidence suggests that it was always the Patrol's practice that warnings precede an Order to Show Cause. In January, 1988, FHP learned that Kauff's Towing did not maintain office personnel at its business location in Lake Worth, Zone 4 from 9:00 a.m. to 4:00 p.m., Monday through Friday. Kauff was verbally advised by FHP of the noncompliance. This notice was followed by written confirmation on January 20, 1988 and February 10, 1988. In response to this notice by FHP, Howard Kauff directed his terminal manager to provide personnel at the location during the required time period. Kauff was advised that noncompliance with the criteria would result of removal of Kauff's from the rotation list in Zone 4, Palm Beach County. At formal hearing, Lt. Col. Carmody stated that his memoranda did not address whether outside or inside storage must be available in a zone. In his opinion, FHP could not regulate that aspect due to prior Attorney General Opinion 85-60. He opined that a wrecker operator's using a central dispatch may be sufficient although the criteria he seeks to enforce requires a phone at each place of business. Lt. Wessels essentially concurred. Lt. Wessels was unsure how response time would be adversely affected if a truck were maintained in the assigned zone but there was not a building located in the assigned zone or if a tow truck were not physically located at the building location designated as a place of business in the zone but was either patrolling in the zone or parked elsewhere in the zone. Lt. Wessels was unable to testify whether ownership or rental of a building by an operator had significance with regard to the "place of business" rule or the six non-rule policy criteria. Lt. Wessels would accept, within the six criteria, an operator's use of a storage lot maintained by the lot's owner who was not an employee of the wrecker operator. However, it was not demonstrated that Lt. Wessels is in a policy making position for the agency, and his testimony as to the foregoing matters at best demonstrates some further confusion as to how the six interpretative non-rule policy criteria are to be applied on a case by case basis. It does not demonstrate that those six criteria have been applied to Petitioners in any unequal fashion, merely that application of the six criteria is best made on a case by case basis. In the course of discovery, Respondent agency denied the following Request for Admission, "2. Admit that the interpretation of the place of business requirement has not been equally applied to all wrecker operators in the State of Florida." The evidence as a whole does not demonstrate such unequal application of the promulgated rule or the non-rule policy to Respondents in this cause. Nor is the proof sufficient to establish such arbitrary application to Respondents so as to permit them to avoid the necessity for compliance. Apparently, as of the date of formal hearing, both rule and non-rule policy are being applied evenhandedly in Palm Beach County where violations have been documented. The testimony of Lt. Col. Carmody and Lt. Wessels demonstrates that no reports of violation have been made from other counties. Respondents did nothing to refute this testimony nor did they provide any evidence of multiple zone operators in other counties or zones outside of Palm Beach County who were systematically permitted to evade the rule and/or non-rule policy. The non-rule policy has been sufficiently explicated in the course of this proceeding so that it may be applied with reasonable precision. The agency's primary purpose behind the place of business non-rule policy, as is its purpose for Rule 15B-9.003(2) itself, is to insure prompt response time, which Lt. Col. Carmody and Lt. Wessels view as impacting on overall traffic safety. Specifically, the concerns of FHP are that without a sign on the place of business, the wrecker operator is difficult to locate. Lt. Wessels personal experience in being unable to locate certain operators during his subsequent investigation in preparation for the Administrative Complaints demonstrates this concern is valid. A sign assists the public in locating the wrecker service for retrieval of towed vehicles or personal property. It assists in accident investigation and reconstruction by providing quick access to the towed vehicle by insurance investigators/appraisers and by FHP. The office space requirement, the requirement of a telephone on the premises, and the requirement of the presence of office personnel during reasonably specified business hours encourages wrecker services to serve the public by receiving phone calls, permitting payment of towing bills or securing the release of vehicles or personal property, and assists in dispatching wreckers in timely response to FHP rotation call made by telephone. It was established that in Palm Beach County, at least, FHP rotation calls are, in fact, made by telephone. It is noted that these foregoing criteria relating to telephone contact are also consistent with unchallenged Rule 15B-9.003(8) and (9) and that the hours of 9:00 a.m. to 4:00 p.m. are considerably less for office personnel than the 24 hours per day "on call" status specified in Subparagraph (9). These foregoing requirements help to insure a reasonable response time, as does the requirement that the wrecker be stationed at the place of business within the zone. The requirement that the wrecker be stationed at the place of business within the zone also facilitates timely inspections of each vehicle by the FHP. Painting the name, address, and telephone number on each truck fosters accountability of the wrecker operators, insures the reasonable response time due to their presence within the zone, and it may be inferred from all other evidence that it discourages vehicle equipment from being moved from truck to truck. It is further noted that the truck sign requirement is also consistent with Section 715.07(2)(a)7, Florida Statutes, regulating the towing of vehicles from private property.
Recommendation Upon the foregoing findings of fact and conclusions of law it is recommended that the Department of Highway Safety and Motor Vehicles enter a final order providing: That unless Murphy's Towing establishes, in each respective zone, a place of business as defined by rule and non-rule policy, within 30 days from date of the final order, Murphy's shall be summarily removed from the FHP wrecker rotation lists for Zones 2, 4, and 5 in Palm Beach County. That unless Lyons' Auto Body establishes, in Zone 1, a place of business as defined by rule and non-rule policy, within 30 days from date of the final order, Lyons' shall be summarily removed from the FHP wrecker rotation list in Zone 1 in Palm Beach County. DONE and ORDERED this 22nd day of July, 1988, at Tallahassee, Florida. ELLA JANE P. DAVIS 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 July, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NOS. 87-3962, 87-4011 The following constitute rulings upon the parties' respective proposed findings of fact (PFOF). Petitioner DHSMV Accepted in FOF 3. Accepted in FOF 4. 3-4. Accepted in FOF 24. 5-6. Accepted in FOF 18-22. 7-8. Subordinate and unnecessary. 9-10. Accepted in FOF 21, except as unnecessary. 11-12. Accepted as modified to conform to the competent substantial evidence as a whole 21-23, 32. Accepted in FOF 28. Accepted in FOF 23. 15-17. Accepted as modified to conform to the record in FOF 8, 11, 24. 18-19. Accepted in FOF 25. Accepted in FOF 26-27. Accepted in FOF 8, 12. Respondents Murphy and Lyons 1. Accepted in FOF 6. 2-3. Accepted in FOF 7. Accepted in FOF 9. Accepted in FOF 10. Accepted in FOF 11. Accepted in FOF 12. 8-15. Accepted in FOF 24, 26. 16-18. Accepted in FOF 24. 19-23. Accepted in FOF 13-17. 24-27. Accepted in FOF 26. 28-29. Accepted in FOF 18-20. 30-31. Accepted in FOF 21-22, 28. Accepted in FOF 18-22, 28. Accepted as to studies. Rejected as to the rest upon the greater weight of the evidence as a whole in FOF 18-22, 28. Accepted in FOF 32. 35-37 Subordinate and unnecessary. 38-39. Accepted in FOF 30. Accepted in FOF 28. Accepted in FOF 23. Accepted in FOF 27. Accepted as modified to conform to the record in FOF 27. Accepted in FOF 24. Accepted in FOF 29. 46-49. Accepted in FOF 30. 50. Rejected as set forth in the full FOF and Conclusions of Law. COPIES FURNISHED: Leonard R. Mellon, Executive Director Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399-0504 W. Evans, Esquire Judson Chapman, Esquire Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399-0504 Mark T. Luttier, Esquire Michael S. Tammaro, Esquire Odette Marie Bendeck, Esquire 777 South Flagler Drive Suite 500 West Palm Beach, Florida 33014-6194 =================================================================
Findings Of Fact Upon consideration of the oral argument adduced at the hearing, the following relevant facts: In November of 1983, the Captiva Erosion Prevention District (CEPD) submitted an application from the DER to construct an experimental "on-site stabilization system along 650 feet of Captiva Erosion Prevention District. The application listed Petitioner Arthur Learned, president, Learned Engineering and Development, Inc. as authorized agent. Drawings attached to the application show a location plan, a site plan and a plat. Each drawing is on Learned Engineering and Development, Inc. letterhead and is signed by Arthur Learned. The application noted that the project was "ex* NOTE: The continuation of words on this paragraph line are unreadable as viewed in the original document on file in the Clerk's Office and therefore not available in this ACCESS document. judged harmful, can be undone." 3. A Joint U. S. Army Corps of Engineers Permit Application Appraisal was performed* NOTE: The continuation of this paragraph along with pages 3 and 4 of the original document on file in the Clerk's Office are not available therefore not included in this ACCESS document. limitations of authority of resident project representative." Petitioner notes in a letter to the CEPD that said duties are in addition to those normally provided by the Engineer as Owner's representative during construction. Among the listing of the duties of a Resident Project Representative (RPR) is a provision which states that through more extensive on-site observations of the Work in progress and field checks of materials and equipment by the RPR and assistants, ENGINEER shall endeavor to provide further protection for OWNER against defects and deficiencies in the Work; but the furnishing of such services will not make ENGINEER responsible for or give ENGINEER control over construction means, methods, techniques, sequences or procedures or for safety precautions or programs, or responsibility for CONTRACT0R's failure to perform the Work in accordance with the Contract Documents. At some point in February of 1986, the DER discovered that concrete had been used in a portion of the stabilizers. Petitioner met with the DER staff concerning this permit violation, and explained that concrete, rather than sand, was placed in the bags due to changed conditions. Petitioner was told that any change in design needed approval from the DER. By letter dated February 28, 1986, Petitioner requested a modification of the permit to include the substitution of concrete intersection as stabilizer tie-in and filler. The after-the-fact permit modification was granted by letter dated May 26, 1986, addressed to the petitioner. The modification allowed the use of concrete-filled bags to construct the most landward portion of the six permitted groins to a maximum length of 13 feet from the landward connection. It did not permit concrete bags beyond the 13 foot distance. On or about March 6, 1986, petitioner completed a Certificate of Substantial Completion for the Sand Core Filter Beach Stabilizers, indicating the date of substantial completion to be February 16, 1986. Prior to the modification authorized on May 26, 1986, the petitioner received a letter from DER dated March 24, 1986. This letter notified Mr. Learned that the permit did not authorize placement of concrete within the permitted sand bags, and that, in order to correct the outstanding violations, the concrete material must be removed from the sand bags. Petitioner was request to remove all sand bags that contained cement within fourteen days. Based upon DER's prior correspondence with petitioner Learned during the permitting process, as well as its investigation, on-site inspections, meetings, telephone conversations and a sworn affidavit from the Chairman of the CEPD regarding the CEPD's lack of knowledge of noncompliance with the conditions of a similar Department of Natural Resources' permit, DER staff believed that petitioner Learned (along with the contractor) was the responsible party in the decision to use concrete in the sand bags and that the CEPD relied upon the petitioner and the contractor to adhere to permit conditions. The DER did not review the contract documents regarding petitioner's services to the CEPD prior to instituting proceedings against the petitioner. On August 5, 1986, the DER issued a Notice of Violation and Orders for Corrective Action against Erosion Control Systems, Inc. and Learned Engineering and Development, Inc. The Findings of Fact contained therein recite that Learned Engineering and Development, Inc. and Erosion Control Systems, Inc. are the agent and contractor respectively for the CEPD. Violations of Chapter 403 were found and specific corrective actions were proposed. The corrective action to be taken was the removal of all concrete bags waterward of the 13 foot mark, the refilling of said bags with sand, the removal of any bags containing asphalt and the return of all disturbed areas to pre-removal conditions. Learned Engineering and Erosion Control Systems were also to make payment to the DER in the amount of $392.60 for expenses incurred in investigating the matter. On March 16, 1987, DER issued an Amended Notice of Violation and Orders for Corrective Action. This document named the Captiva Erosion Prevention District, Erosion Control Systems, Inc. and Learned Engineering and Development, Inc. as respondents, and noted that CEPD was the permittee, that petitioner Learned was the authorized agent on the project for CEPD and that Erosion Control Systems was the project contractor employed by CEPD. The Amended Notice is substantially similar to the initial Notice, but adds a further violation regarding the use of turbidity curtains during construction. It also adds a Count charging that Respondents Learned and Erosion Control conducted dredging and filling activities without a valid DER permit. The Orders for Corrective Action are identical to the initial Notice. DER subsequently resolved its dispute with the CEPD and, on March 11, 1988, filed a Notice of Voluntary Dismissal as to Erosion Control Systems and petitioner Learned Engineering. At the time of the initial Notice Of Violation and Orders for Corrective Action, petitioner was a for-profit corporation under the laws of Florida with its principal place of business in Venice, Florida. Due to financial difficulties caused, at least in part, by the DER's actions in the enforcement proceeding described above, Arthur Learned, President of Learned Engineering, closed the Florida office, semi-retired and moved to Georgia. Learned Engineering relocated to Georgia on January 1, 1987, and now has its principal place of business in Blairsville, Georgia. It does still maintain contacts in Florida and has recently performed other work in Florida. At all relevant times, Petitioner has had less than 25 employees and a net worth of less than $2,000,000.00. Petitioner incurred attorney's fees and costs in the amount of $5,127.07 in defense of the administrative proceedings described above.
The Issue The issue in the case is whether the Petitioner's request for payment from the Construction Industries Recovery Fund meets the requirements of law and should be approved.
Findings Of Fact On or about March 20, 1995, Petitioner entered into a contract with Kenneth Boaz (Boaz) doing business as Revival Remodelers. Boaz was licensed as a Certified Residential Contractor, Florida license number CR C035360. The contract was for the remodeling of Petitioner's home. The work appears to have been either uncompleted by Boaz or not completed in accordance with Petitioner's desires. The total amount of the contract, including change orders, was for $53,370.00. Petitioner paid $41,755.00 to Boaz, leaving an unpaid amount of $11,615.00. Petitioner sued Boaz (County Court, Pinellas County, Florida, Civil Division, Case Nos. 96-4335-CO and 96-4343-CO) and received a Final Judgment dated August 26, 1996, against Boaz in the amount of $5,796.00. Petitioner appears to have initiated an attempt to collect the judgment. By transmittal letter dated December 1, 1997, Petitioner received a check from an attorney in the amount of $1,501.77. The letter indicates that the forwarded amount was based on payment by Boaz of $1,877.21 minus a 20 percent commission of $375.44. The letter also indicates a "current balance of account" as $6,126.20. Boaz appealed the County Court decision to the Circuit Court (Sixth Circuit, Appeal No. 96-7707-CI-88B). By Order dated June 29, 1998, the Circuit Court affirmed the determination of liability, but vacated the amount of damages and remanded the case to the trial court for a new trial to determine damages. On remand, the County Court entered another Final Judgment awarding damages, dated October 28, 1998, and the case was again appealed to the Circuit Court (Sixth Circuit, Appeal No. 98-8369-CI-88A). By Order dated June 29, 2000, the Circuit Court again vacated the amount of damages and remanded the case to the trial court for a new trial to determine damages in accordance with directions provided in the Order. At some point during the litigation, Boaz filed for bankruptcy. The United States Bankruptcy Court for the Middle District of Florida, Tampa Division, in Case No. 01-20049-8B7, lifted the automatic bankruptcy stay applicable to Boaz, and by Stipulation for Entry of Final Judgment Liquidating Claims of Plaintiffs executed in April 2003, Petitioner and Boaz reached an agreement that Petitioner's claim was in the amount of $15,000. By Order Determining Claim of the Plaintiffs dated April 25, 2003, the County Court accepted the stipulated amount of $15,000 Petitioner filed a claim form seeking reimbursement from the Construction Industry Recovery Fund. The claim form has a signature purporting to be that of Petitioner. The form contains a receipt date of February 17, 1998. By Order dated August 15, 2003, Petitioner's claim was denied by the Construction Industry Recovery Fund Committee and the Construction Industry Licensing Board on the grounds that Petitioner had failed to present a Final Judgment as to the damages and that Petitioner failed to state a claim eligible for compensation from the fund.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order denying the claim for reimbursement filed by Petitioner. DONE AND ENTERED this 18th day of November, 2004, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 18th day of November, 2004. COPIES FURNISHED: Adrienne C. Rodgers, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-2202 Karen W. Scragg 9085 Leisure Lane, North Largo, Florida 33773-4707 Leon Biegalski, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 Tim Vaccaro, Director Construction Industry Licensing Board Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Administrative Complaint be dismissed. DONE and ENTERED this 8th day of December, 1988, in Tallahassee, Florida. DIANE CLEAVINGER 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 8th day of December, 1988.
The Issue The issue in the case is whether Moonlight General Contractors, Inc. (Respondent), should be assessed a penalty for an alleged failure to comply with the workers' compensation requirements referenced herein, and, if so, in what amount.
Findings Of Fact Pursuant to section 440.107, Florida Statutes (2015),1/ the Petitioner is the state agency charged with enforcing compliance with Florida’s workers’ compensation requirements. At all times material to this case, the Respondent was a business providing services in the construction industry with a main office located at 1900 18th Avenue South, St. Petersburg, Florida. On April 1, 2015, Kent Howe, employed by the Petitioner as a Compliance Investigator, observed two men working on a roof of a residential structure located at 2513 Anastasia Drive South, Daytona, Florida (the “subject property”.) Mr. Howe specifically observed that a portion of the roof structure was exposed and that the individuals were working on the roof trusses. Mr. Howe testified that the men identified themselves as “Milan Kreal” and “Svatopluk Vavra” and that they identified the Respondent as their employer. Mr. Howe accessed corporate records maintained online by the Department of State, Division of Corporations, and identified Abbey Khdair as the sole corporate officer for the Respondent. Mr. Howe accessed the Petitioner’s Coverage and Compliance Automated System (CCAS) to determine whether the Respondent was in compliance with applicable workers’ compensation requirements. CCAS is a database maintained by the Petitioner that contains workers’ compensation coverage information provided to the Petitioner by insurance providers. Pursuant to section 440.05, corporate officers can be exempted from workers’ compensation coverage requirements. Mr. Howe determined through CCAS that Mr. Khdair had an active exemption for himself as the corporate officer, but the two individuals working on the subject property had no workers’ compensation coverage. Mr. Howe contacted Mr. Khdair, who told Mr. Howe that the two men were employed through an employee leasing company identified as “Skilled Resources.” Personnel employed through licensed employee leasing companies can have workers’ compensation coverage arranged through the leasing companies. Mr. Howe contacted Skilled Resources and determined that, although on occasion the Respondent had obtained employees from Skilled Resources, the individuals working on the subject property had not been supplied to the Respondent by Skilled Resources. Mr. Howe thereafter issued a Stop-Work Order and posted it at the jobsite. On April 2, 2015, the Stop-Work Order was personally served on Mr. Khdair, along with a Request for Production of Business Records for Penalty Assessment Calculation for the period from April 2, 2013, through April 1, 2014 (the “audit period”). On that same date, Mr. Khdair paid a $1,000 penalty down payment towards the penalty assessment, in order to obtain a release from the Stop-Work Order and allow the subject property roof to be secured from potential inclement weather. By letter dated April 10, 2015, Mr. Khdair advised the Petitioner that, prior to April 1, 2015, the Respondent and the property owner had entered into a contract to perform work related to “a new gable roof, electrical, plumbing, and HVAC work.” Mr. Khdair wrote that he obtained the building permit for the project and that the property owner was to hire additional subcontractors to work under the permit Mr. Khdair had obtained. Mr. Khdair wrote that he “inadvertently” referred Mr. Howe to Skilled Resources when Mr. Howe contacted him on April 1, 2015, and that the property owner had hired the workers without Mr. Khdair’s knowledge or consent. Mr. Khdair wrote that, prior to Mr. Howe’s telephone call, Mr. Khdair was unaware that there were any people working at the subject location, other than those who were to have obtained their own sub-permits in relation to the project. On April 10, 2015, Mr. Khdair also submitted a letter purporting to be from the property owner stating that the owner had personally hired Mr. Vavra and “Guy Ackerly” to work on the roof. Neither of the two individuals observed by Mr. Howe working at subject property on April 1, 2015, identified himself as “Guy Ackerly.” The task of calculating the penalty assessment was assigned to Eunika Jackson, employed by the Petitioner as a Penalty Auditor. The Respondent failed to provide any business records to the Petitioner. Accordingly, Ms. Jackson calculated the penalty assessment pursuant to section 440.107(7)(e), which provides that in the absence of business records sufficient to determine payroll, the Petitioner is required to impute wages for the employees working without workers’ compensation coverage. As the corporate officer, Mr. Khdair had obtained an exemption from the coverage requirements. The National Council on Compensation Insurance (NCCI) assigns classification codes for various occupations related to levels of risk presented by the specific tasks performed by an employee. The codes are used to establish rates charged for workers’ compensation coverage and are relevant for determining the penalty assessed for violations of workers’ compensation requirements. For purposes of enforcing compliance with Florida’s workers’ compensation requirements, the Petitioner has adopted the NCCI codes through Florida Administrative Code Rules 69L- 6.021. Ms. Jackson correctly determined that NCCI Code 5551 is applicable in this case. NCCI Code 5551 (titled “Roofing-All Kinds & Drivers”) specifically applies to “the installation of new roofs and the repair of existing roofs” and includes “the installation and/or repair of joists, trusses, rafters, roof decks, sheathing, and all types of roofing materials.” In determining the penalty assessment, Ms. Jackson calculated the penalty based on the Respondent having three employees without workers’ compensation coverage. Ms. Jackson applied the procedures set forth in section 440.107(7)(d) and rules 69L-6.027 and 69L-6.028, and determined that the penalty assessment was $192,425.94, which reflects a penalty of $64,141.98 for each of the three individuals. Although Ms. Jackson’s calculation of the penalty was procedurally correct, the evidence establishes only that there were two individuals working on the roof of the subject property.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Financial Services, Division of Workers’ Compensation enter a Final Order against the Respondent imposing a penalty assessment in the amount of $128,283.96, as set forth herein. DONE AND ENTERED this 23rd day of October, 2015, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 23rd day of October, 2015.
The Issue The issues are: (a) whether the accident on December 12, 1995, involving a shrimp trawler, the Atlantic Sun, resulted in a discharge of pollutants into the Atlantic Ocean and caused natural resource damages; and, if so, (b) what amount does Petitioner William A. Harden owe the Department of Environmental Protection for investigation costs incurred in investigating the break up of the Atlantic Sun and for natural resource damages resulting from the accident.
Findings Of Fact On December 12, 1995, the commercial fishing vessel, the Atlantic Sun, went aground on the south jetties in the Atlantic Ocean at the entrance to the channel of St. Mary's River. The shrimp trawler broke apart on the jetties near Fernandina Beach, Florida. Debris from the wrecked ship washed onto the beaches near the jetties. The United States Coast Guard (USCG) arrived at the scene of the accident and removed Roger Cummings, Captain of the Atlantic Sun, and Daniel Boone, an owner of the vessel, from the scene of the wreck. The USCG informed the Florida Marine Patrol (FMP) about the accident on December 12, 1995. Michael Lehman, FMP officer, met the USCG officers investigating the accident when they brought Captain Cummings and Mr. Boone to shore. Captain Cummings stated that the ship had 1200 to 1300 gallons of diesel fuel in its tanks when it hit the jetties. The water was too rough for Officer Lehman to investigate the accident scene that night. Officer Lehman and another FMP officer went to the site of the wreck on the morning of December 13, 1997. On his way to the accident scene, Officer Lehman's boat ran through a sheen of diesel fuel from Eagan's Creek to the end of the jetties. Officer Lehman found the Atlantic Sun upside down at the end of the rock jetties. There was a strong smell of diesel fuel at the site of the wreck. Diesel fuel ran down both sides of the jetties. The fuel was bubbling up on both sides of the wrecked ship. On December 14, 1995, the flow of fuel from the capsized vessel was still not contained. Officer Lehman estimated that approximately 500 gallons of fuel had been discharged into the ocean. He based this estimate on his personal observation at the accident scene, personal experience as an investigator of pollutant discharges, and witness statements. USCG officers estimated that the Atlantic Sun discharged 1,000 gallons of diesel fuel. The diesel fuel sheen on the water surface eventually affected a large area. It covered the entrance to St. Mary's River Channel from bank to bank. The fuel flowed west and inland from the ship wreck. It covered much of Cumberland Sound. It affected coastal waters from the accident site to Ft. Clinch State Park Beach and south approximately two miles. Special management areas which were affected are: Ft. Clinch State Park, Cumberland National Seashore, and Ft. Clinch Aquatic Preserve. By December 16, 1995, Officer Lehman could no longer see fuel coming from the area of the wreckage. By that time, the spilled fuel had dissipated. The accident occurred within one statute mile seaward of the coastline of the state of Florida. The two FMP officers worked a total of 18 hours during the course of their investigation. The cost to Respondent for the two officers' time was $244.80. The FMP officers used a single engine boat in their investigation for five hours. The single engine boat cost Respondent $100.00. They used a twin engine boat for six hours to conduct the investigation. The twin engine boat cost Respondent $240.00. The FMP officers drove a total of 76 miles in patrol vehicles. At $0.20 per mile, the total cost for mileage was $15.20. The FMP officer spent $5.00 developing pictures which were taken during their investigation. Respondent incurred clerical expenses during the investigation in the amount of $33.60. Respondent's total cost for the investigation was $638.60. Respondent assessed Petitioner with damages to natural resources. The damages were based on the total amount of pollutants discharged into Florida's coastal waters as a result of the Atlantic Sun going aground on the jetties. The amount of pollutants was 500 gallons of diesel fuel. Impact to special management areas was also taken into consideration in determining the natural resource damages. Respondent utilized a statutory formula to assess Petitioner with natural resource damages in the amount of $8,008.47. Respondent sent Petitioner a final agency action letter advising him of the total assessment in the amount of $8,647.07.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that Respondent enter a Final Order assessing Petitioner $638.60 in investigative costs and $8,008.47 in natural resource damages. DONE AND ENTERED this 5th day of February, 1998, 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 Filed with the Clerk of the Division of Administrative Hearings this 5th day of February, 1998. COPIES FURNISHED: Kisha R. Pruitt, Esquire Kathelyn M. Jacques, Esquire Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Daniel Boone Boone and Harden Atlantic Sun Post Office Box 438 Darien, Georgia 31305 William A. Harden Boone and Harden Atlantic Sun Route 3, Box 3158 Townsend, Georgia 31337 Kathy Carter, Agency Clerk Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 F. Perry Odom, Esquire Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Virginia B. Wetherell, Secretary Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: At all times pertinent to the issues herein, petitioner Davis was an automotive equipment repair foreman at respondent's Pinellas County Maintenance plant. In addition to this employment, petitioner also had a pecuniary interest in the Sunshine Speedway in St. Petersburg. A steel pole was located on private property belonging to Sunshine Speedway. Because persons and/or vehicles had been injured by this pole, petitioner and a heavy equipment operator employed by respondent decided to remove it. They went to respondent's maintenance yard at 6:30 or 7:00 p.m. after their hours of employment, got a crane truck belonging to respondent, drove it to the Speedway, removed the steel pole to another area and returned the truck to the maintenance yard after dark. Petitioner neither asked for nor received permission to use respondent's equipment for this purpose. At a time when petitioner was leasing the Sunshine Speedway, and during his hours of employment with respondent, he filled a dump truck belonging to respondent with limerock or scrap materials. After his hours of employment with respondent, petitioner drove this truck to the Speedway and dumped its contents near the entranceway for the purpose of making a culvert or crossover. While there was some evidence that petitioner had the permission of his immediate supervisor, Mr. William Dasher, to use the respondent's scrap culvert material, petitioner admitted that no one gave him the authority to improve the entranceway to the Speedway or to use the respondent's truck for this purpose. As a result of the facts described in paragraphs 2 and 3 above, respondent found that petitioner had violated state rules and regulations and departmental policies with regard to the unauthorized use of state equipment outside of his regular assigned duties and responsibilities and for other than state purposes. The disciplinary action taken was demotion of petitioner from automotive equipment repair foreman at Pinellas Maintenance to automotive equipment mechanic II and reassignment to Tampa Maintenance. Petitioner thereafter appealed this disciplinary demotion and reassignment to the Career Service Commission. The matter was referred to the Division of Administrative Hearings for hearing, and the undersigned was designated to conduct the hearing.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is recommended that the Commission affirm the demotion and reassignment of petitioner inasmuch as the same was based upon good cause and was in accordance with established rules and regulations. Respectfully submitted and entered this 23rd day of May, 1977, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Mr. Horace E. Davis Post Office Box 375 Pinellas Park, Florida 33565 Mrs. Dorothy Roberts Appeals Coordinator Phillip Bennett, Esquire Department of Administration Department of Transportation Room 530 Carlton Building Haydon Burns Building Tallahassee, Florida 32304 Tallahassee, Florida 32304
