The Issue Whether a state employee's failure to document to the satisfaction of his supervisors leave, taken on grounds of injury or illness to the satisfaction of his supervisors, amounts to abandonment of his position, within the meaning of Rule 22A- 7.010, Florida Administrative Code?
Findings Of Fact On the morning of June 20, 1989, the Department of Transportation (DOT) maintenance crew with whom respondent Timathy L. Howard worked was cutting tree limbs in the right of way alongside U.S. Highway 331 in Walton County. At about eight o'clock, a falling limb knocked respondent unconscious. When he came to, Mr. Howard complained of head and neck pain. He asked Paul R. Leddon, a DOT "highway maintenance supervisor one" who had charge of the crew, to take him to a doctor. Eventually Mr. Leddon drove him to DOT's DeFuniak Springs maintenance yard, obtained written authorization for a visit to Dr. Solomon D. Reodica, and drove respondent to the doctor's office. After examining respondent, Dr. Reodica sent him to Walton Regional Hospital for x- rays. Whether, when respondent returned to Dr. Reodica's, he had the x-ray films in his hand was a matter of some dispute at the hearing. In any case (perhaps after a telephone conversation with a radiologist or an x-ray technician at Walton Regional), Dr. Reodica wrote on a prescription-like form the following: "Mr. Howard will need to be off the rest of today and may return back to work tomorrow." Petitioner's Exhibit No. 5. Messrs. Leddon and Howard returned to the DOT maintenance yard. There both signed a form authorizing Mr. Howard to take six hours' leave. David M. Johnson, an assistant maintenance engineer in DOT's employ, told Mr. Howard that he would expect him on the job at half past six the following morning, and specifically told him that, if he failed to report, he would have to obtain medical documentation of his inability to report, if leave was to be authorized. Perhaps as anticipated on all sides, respondent Howard did not report to work the morning of June 21, 1989. But, at his request, his wife telephoned and told Mallory Paul, another DOT employee, that he did not feel well enough to come to work. Respondent's "head was still aching . . . " T.99. Mr. Paul told Mrs. Howard that the question of her husband's attendance had been discussed the day before, and that Mr. Johnson had told him to report for work. The following day Mr. Howard stayed home again, because head and neck pains persisted. Nor did he report for work on June 26, 1989, the next day he was scheduled to work, or on June 27, 1989. On June 28, 1989, DOT's H. D. Prescott wrote respondent, as follows: This is to advise you that you are hereby removed from your position as Highway Maintenance Technician I, DeFuniak Springs Maintenance Unit and the Department of Transportation payroll effective at the close of business, Tuesday, June 27, 1989. You went to the doctor on June 20, 1989 on Workers' Compensation. The doctor excused you from work for the remainder of that day and released you to come back to work on June 21, 1989. You did not report to work on Wednesday, June 21St. On the morning of the 21st, a lady, not identifying herself, called Mr. M. R. Paul, Highway Maintenance Supervisor II, and stated that she was calling for you and that you would not be in that day. Mr. Paul told the caller that you were aware that you would not be granted leave without a doctor's excuse, but that he was also making her aware that this absence would be unauthorized and without pay. No doctor's excuse was presented. You were placed on unauthorized leave without pay. Petitioner's Exhibit No. 1. Respondent learned of the existence of this letter the day it was signed, when he telephoned Mr. Johnson, who informed him that it had been sent by certified mail and would be waiting for him at the post office. Also on June 28, 1989, DOT received a bill for the x-rays that Dr. Reodica had ordered for Mr. Howard on the 20th. In a box on the form under the heading "PRINCIPAL AND OTHER DIAGNOSIS DESCRIPTIONS" the form stated "FRACTURE SKULL." Petitioner's Exhibit No. 7. But information DOT presented after the hearing suggested that respondent did not suffer a skull fracture when the tree limb hit him. Petitioner proved that respondent was reprimanded for tardiness, loafing and inattention to duty, on April 18, 1988. Petitioner's Exhibit No. 6. In the course of the hearing, it became clear that there was friction between respondent and his supervisors, which may help explain why they were unwilling to authorize respondent to take more than six hours' convalescent leave, although they had authorized respondent to take leave without pay for less dramatic maladies on other occasions, when apprised of his indisposition. T.99- 100. Respondent testified that he did not go to see another doctor because he could not afford to pay for a second opinion. T. 98. Of course, losing his job did not help financially. Because DOT reported that he had ended his employment voluntarily, he was denied unemployment compensation benefits, even though he sought other employment unsuccessfully. Eventually various home appliances were repossessed and he lost both his car and his house; his wife and children moved in with her parents. Precisely what his supervisors knew of his financial circumstances is not clear, but they were aware he had no telephone.
Recommendation It is, accordingly, RECOMMENDED: That DOT reinstate respondent and award him back pay from June 28, 1989, until the date of reinstatement. DONE and ENTERED this 9th day of April, 1990, in Tallahassee, Florida. ROBERT T. BENTON, II 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 9th day of April, 1990. APPENDIX Petitioner's proposed findings of fact Nos. 1, 2, 3, 4, 6, 7, 8, 10 through 16, 21 and 24 have been adopted, in substance insofar as material. With respect to petitioner's proposed findings of fact Nos. 5 and 22, the evidence as to the existence vel non of a skull fracture and any treatment therefore was all hearsay, and immaterial, as well. With respect to petitioner's proposed finding of fact NO. 9, respondent's medical condition is material to whether leave should have been granted but not to whether respondent abandoned his position. With respect to petitioner's proposed finding of fact NO. 17, his wife made such a request, even if implicitly, on his behalf. With respect to petitioner's proposed finding of fact NO. 18, respondent testified he couldn't afford a second opinion, and did testify that he did not trust Dr. Reodica's objectivity. With respect to petitioner's proposed finding of fact NO. 19, respondent testified he was in pain and did not report to work for that reason. Petitioner's proposed findings of fact Nos. 20 and 23 are immaterial. Respondent's proposed findings of fact Nos. 4 and 16 have been adopted, in substance, insofar as material. Respondent's proposed findings of fact Nos. 1, 2, 3, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, and 15 are immaterial. COPIES FURNISHED: Charles G. Gardner, Esquire Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street Tallahassee, FL 32399-0458 Timathy L. Howard Route 4, Box 3l4-M DeFuniak Springs, FL 32433 Larry D. Scott, Esquire Department of Administration Carlton Building Tallahassee, FL 32399-1550 Ben G. Watts, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, FL 32399-0458 Aletta Shutes, Secretary Department of Administration 435 Carlton Building Tallahassee, FL 32399-1550
The Issue The issue in this case is whether a liquidated damages term in the Department’s specification for Invitation to Bid (“ITB”) constitutes an unadopted rule, as defined in section 120.52(20), Florida Statutes, in violation of section 120.54(1)(a).
Findings Of Fact Parties All Seasons is a licensed maintenance contractor with more than 30 years of experience bidding on and performing Department maintenance contracts. All Seasons is currently performing on Department projects and intends to bid on future projects. The Department is a state agency authorized by section 337.11, Florida Statutes, to contract for the construction and maintenance of roads within the state highway system, the state park road system, and roads placed under its supervision. Applicable Statute The statute at issue in this proceeding, section 337.18(2), provides in pertinent part. 337.18 Surety bonds for construction or maintenance contracts; requirement with respect to contract award; bond requirements; defaults; damage assessments. * * * (2) The department shall provide in its contracts for the determination of default on the part of any contractor for cause attributable to such contractor. The department shall have no liability for anticipated profits for unfinished work on a contract which has been determined to be in default. Every contract let by the department for the performance of work shall contain a provision for payment to the department by the contractor of liquidated damages due to failure of the contractor to complete the contract work within the time stipulated in the contract or within such additional time as may have been granted by the department. The contractual provision shall include a reasonable estimate of the damages that would be incurred by the department as a result of such failure. The department shall establish a schedule of daily liquidated damage charges, based on original contract amounts, for construction contracts entered into by the department, which schedule shall be incorporated by reference into the contract. The department shall update the schedule of liquidated damages at least once every 2 years, but no more often than once a year. The schedule shall, at a minimum, be based on the average construction, engineering, and inspection costs experienced by the department on contracts over the 2 preceding fiscal years. The schedule shall also include anticipated costs of project-related delays and inconveniences to the department and traveling public. Anticipated costs may include, but are not limited to, road user costs, a portion of the projected revenues that will be lost due to failure to timely open a project to revenue-producing traffic, costs resulting from retaining detours for an extended time, and other similar costs. Any such liquidated damages paid to the department shall be deposited to the credit of the fund from which payment for the work contracted was authorized. The statute requires that the Department adopt regulations for determination of default. Background On February 6, 2018, the Department issued an ITB for Contract No. E3R69-R0, to perform mechanical sweeping of designated roads and bridges in addition to edging and sweeping of sidewalks and curb edgings on designated locations in Gadsden and Leon counties. A specification package was included with the ITB referencing the January 2018 Edition of the Department’s Standard Specifications for Road and Bridge Construction (“Standard Specifications”). The Standard Specifications are revised two times each year. The specifications package included a 37-page “Special Provisions” supplement to the Standard Specifications. Article 5-1.7 of the Special Provisions provided a work schedule, requiring the successful bidder to begin work within 14 calendar days from receipt of the initial work document, and within five working days from receipt of any subsequent work document, and states: If the Contractor does not begin work by the end of the date specified in this Subarticle, or the assignment of work in the Work Document is not complete within the number of days stipulated in the Work Document, then the Contractor and the Department agree that the Department will assess the Contractor, per day, not as a penalty but as liquidated damages, 1% of the total Work Document amount or the amount shown in Subarticle 8-10.2 (Amount of Liquidated Damages), whichever is less. The Department’s contract solicitations incorporate the Department’s Standard Specifications. Sections 8-10.1 and 8-10.2 of the Standard Specifications for January 2018 provided: Section 8-10.1 Highway Code Requirements Pertaining to Liquidated Damages: Section 337.18, paragraph (2) of the Florida Statutes, requires that the Department adopt regulations for the determination of default and provides that the Contractor pay liquidated damages to the Department for any failure of the Contractor to complete the Contract work within the Contract Time. These Code requirements govern, and are herewith made a part of the Contract. Section 8-10.2 Amount of Liquidated Damages: Applicable liquidated damages are the amounts established in the following schedule: Original Contract Amount Daily Charge Per Calendar Day $50,000 and under. $956 Over $50,000 but less than $250,000 $964 $250,000 but less than $500,000. $1,241 $500,000 but less than $2,500,000. $1,665 $2,500,000 but less than $5,000,000. $2,712 $5,000,000 but less than $10,000,000. $3,447 $10,000,000 but less than $15,000,000.$4,866 $15,000,000 but less than $20,000,000.$5,818 $20,000,000 and over. $9,198 plus 0.00005 of any amount over $20 million (Round to nearest whole dollar). On March 8, 2018, All Seasons submitted a bid on Contract No. E3R69-R0. In April 2018, Respondent awarded All Seasons Contract No. E3R69-R0, which All Seasons accepted. In the contract, All Seasons agreed to perform the work as described in the ITB as follows: [I]n the manner and to the full extent as set forth in the Proposal, Standard Specifications as Amended by the Specifications Package and any Supplemental Specifications Packages, and the Plans, under security as set forth in the attached bond, all of which are adopted and made a part of this Contract and incorporated by reference herein, and to the satisfaction of the duly authorized representatives of the Department of Transportation, who shall have at all times full opportunity to inspect the materials to be furnished and the work to be performed under this contract. All Seasons did not protest the terms, conditions, or specifications of the contract during the timeframe provided for such challenges. The Standard Specifications has not been adopted as a rule pursuant to the rulemaking procedures in section 120.54. The liquidated damages clause has not been adopted as a rule pursuant to the rulemaking procedures in section 120.54. Challenged Statement On January 28, 2019, Petitioner initiated this proceeding by filing a petition for Rule Challenge Under Section 120.56, Florida Statutes, which alleged that the liquidated damages clause in the specifications for Contract No. E3R69-R0 was an unadopted rule that violates section 120.54(1)(a) (“Challenged Statement”). Standing Petitioner performs on Department projects and intends to bid on future projects. The liquidated damages clause is included in each contract. As a result, Petitioner is substantially affected by the Challenged Statement. Feasibility and Practicability of Rulemaking Although Respondent asserts that rulemaking for the Challenged Statement is not feasible or practicable, it did not present evidence to support its argument.
Findings Of Fact Based on the evidence received at the hearing, the following facts are found: The City of Madison employs approximately 60 full time employees who serve under the general supervision of the City Manager, who has identical fringe benefits as all other employees. The City Commission employes the City Manager and is the ultimate authority and decision making body. The City Commission is composed of elected officials who serve without compensation. A representation petition was filed seeking a certificate of representation by Local Union 2865, AFL-CIO as the exclusive bargaining agent for all full time employees of the City of Madison except for professional employees, managerial employees and confidential secretarial employees. The Public Employer refused to grant the request. A consent election was rejected. A Motion to Dismiss and/or Strike Petition for Certification was entered into evidence over the objection of the Petitioner and a Motion to Quash said Motion to Dismiss and/or Strike Petition for Certification was denied. Testimony was taken as to whether there was such solicitation by managerial employees to initiate the showing of interest. Testimony was taken and final action on the Motion is referred to PERC for action. If the Motion to Dismiss is denied, the determination must be made as to whether the hereinafter enumerated job positions as set forth in Exhibit 3 should be considered managerial and excluded from the unit. No agreement was reached on such employees. Each employee whose job description is set forth in Exhibit 3 works a standard 8:00 a.m. to 5:00 p.m. five day work week, but each is expected to get their respective job done and in the event of an emergency work overtime. The City Commission sets the wages and each reports directly to the City Manager. Each has the same fringe benefits except those who need a truck and radio are furnished one for job use only. Each such employee hears grievance matters on those under him and if the problem cannot be worked out, the parties go to the City Manager who acts as final arbitrator and who acts on a recommendation for termination. Each such employee submits a budget and then sits with the City Manager in making up the budget and keeps with the administration of the budget. Each of the following persons have been funded with the job description and entered in Exhibit 3 and testimony from the City Manager indicates that a meeting for clarification and explanation was planned and thereafter a meeting of these nine employees on a monthly basis. The City Manager stated that in the event of a bargaining situation he would call together these employees for indirect and direct input but that he would prefer not to try to negotiate a contract himself inasmuch as this would put him in conflict with employees and that he would rely on these persons for input and any mollification of policy or procedures. (a) Special Project Supervisor. This work involves the direction of a maintenance or construction crew performing road and utility construction and maintenance work. This employee may hire, promote, demote and assign work and is responsible for directing a crew of skilled and unskilled workers in routine maintenance or construction of streets, roadways and utilities. Duties include inspecting equipment and machinery used to ensure proper operation and checking street and roadway utilities for defects or problems. At times this employee may serve as relief equipment operator. He may also perform other duties as required by the City Manager. Four persons work under the Special Project Supervisor but he may obtain help from other departments when necessary. (h) Fire Chief. This employee is directly responsible for protection against fire and for firefighting activities within the jurisdiction. This employee may hire, promote, demote or assign work and is responsible for directing and supervising skilled and unskilled firefighters in the routine maintenance of facilities and equipment. He coordinates the activities of firefighters, inspects station house and equipment, responds to fire alarms and other rescue activities. This employee may also perform other duties as required by the City Manager. (c) Construction Supervisor. This employee directs one or more departments and/or construction crews engaged in the construction of city streets, roadways, bridges and related facilities. The employee may hire, promote, demote and assign work. The work involves the supervision of several types of heavy equipment operators as well as the skilled and unskilled labor activities. The employee may perform other duties as required by the City Manager. (d) Executive Secretary. Excluded as managerial employee. (e) Gas Supervisor. This employee directs the maintenance and construction crew performing gas and utility maintenance and construction. The employee may hire, promote, demote, assign work and is responsible for directing and supervising a crew of skilled and unskilled workers in the routine maintenance of gasolines, services and utilities. Duties include inspecting equipment and checking for defects and when necessary serving as relief operator and supervising the moving of right of ways. This employee may perform other duties as required by the City Manager. (f) Sewage Plant Supervisor. This employee directs the maintenance and construction crew performing sewage plant lines and utility maintenance. The employee may hire, promote, demote, assign work and is responsible for directing and supervising a crew of skilled and unskilled workers in the routine maintenance or construction of sewer or water related facilities. Other duties include inspecting the equipment and machinery used to ensure proper operation and checking for defects or other problems. This employee may perform other duties as required by the City Manager. (g) Water Supervisor. This employee directs the maintenance and construction crew performing water, sewer and utility maintenance. The employee may hire, promote, demote, assign work and is responsible for directing and supervising the crew of skilled and unskilled workers in the routine maintenance and construction of water and sewer facilities and ocher utility services. Duties include inspecting equipment, serving as relief operator when necessary, supervising the moving of right of ways. The employee may perform other duties as required by the City Manager. (h) Grounds Keeper. This is work directing small crews engaged in the care and maintenance of grounds and yards. The employee may hire, promote, demote, assign work and is responsible for the overall maintenance of the grounds and yards in the City. The employee may perform other duties as required by the City Manager. (i) Shop Superintendent-Mechanic. Excluded as a non-managerial employee. (j) Warehouse Supervisor. This employee is involved in the record keeping, inventory control and the operation of the purchasing department. The duties are in general, a bookkeeper and storekeeper. He performs other duties when required by the City Manager. (k) Police Chief. This employee is responsible for the direction and administration of law enforcement activities. He may hire, promote, demote, assign work and is responsible for directing and supervising skilled and unskilled police officers and other activities involved in law enforcement. He is responsible for inspection of the stationhouse and equipment. He responds to calls for assistance. Other duties may be required by the City Manager or Mayor in case of Marshall Law. In accordance with Florida Statute 447.307(3)(a), and Florida Administrative Rule 8H-3.23, no recommendations are submitted. DONE and ENTERED this 30 day of April, 1976. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Richard Cox, Esquire Michaels and Patterson 2007 Apalachee Parkway Tallahassee, Florida 32301 David Bembry, Esquire Davis, Browning and Hardee Post Office Box 652 Madison, Florida Ben Patterson, Esquire Michaels and Patterson 2007 Apalachee Parkway Tallahassee, Florida 32301 Edward B. Browning, Jr., Esquire Davis, Browning and Hardee Post Office Box 652 Madison, Florida Chairman Public Employee Relations Commission Suite 300, 2003 Apalachee Parkway Tallahassee, Florida 32301
Findings Of Fact Standard Specifications are a part of every DOT construction contract issued. Subsection 8-1.1 of these standard Specifications provides that a subcontractor shall be recognized only in the capacity of an employee or agent of the Contractor, and his removal may be required by the Engineer, as in the case of any employee (Exhibit 1). Subsection 8-5 thereof provides the Contractor shall assure that all superintendents, foreman and workman employed by him are competent, careful and reliable (Exhibit 3). All contracts entered into by DOT provide for a contract completion time and provide for adjustment to the contract period for delays in construction due to factors beyond the contractor's control which could not be reasonably anticipated at the time bids for the contract were received (Exhibit 4). Requests for extension of contract time are made by the Contractor to DOT, and each request is evaluated on its merits. Often these requests for extension of contract time are made after the contract is completed and the contractor is seeking relief from penalties accrued as a result of his failure to complete the contract in the time allocated. Prior to 1987, all contracts entered into by DOT contained built-in delays based on average weather conditions expected during the contract period. Since mid-1987, contract delays due to expected adverse weather are not included in the contract time, but the period is subsequently adjusted based on daily recording of weather conditions during the contract period. There is no policy by DOT, as suggested by Petitioner, that delays due to weather outside the initial contract period but within the extension granted due to weather delays will not be considered by DOT in granting extensions of contract time. Federal Department of Transportation grants to Florida DOT for road construction in Florida contain a provision that a certain percentage of the contract must be subcontracted to DBE's. This provision is included in the contracts on which the prime contractors submit bids. In order to qualify as a responsible bidder on these contracts, the Contractor must show compliance with the DBE quota for the job at the time his bid is submitted or show that despite good faith efforts the Contractor was unable to meet the DBE goals. DOT certifies individuals and companies which meet the minority business standards needed for certification and maintains a current list of all potential subcontractors who can be used by the Contractor to meet the DBE quota for the specific contract on which the Contractor bids. These DBE subcontractors are not qualified by DOT as capable to perform the work for which they hold themselves out as able to perform. DOT qualifies no subcontractors, either DBE or non-DBE. In the event the Contractor needs to replace a subcontractor for any reason, his application to replace a non- DBE subcontractor is routinely approved by DOT. However, if the Contractor proposes to replace a DBE subcontractor, the Contractor must replace him with another DBE subcontractor (if this is necessary to retain the required DBE participation) and show to DOT that the replacement was for just cause and does not constitute unlawful discrimination. Accordingly, it is more likely to delay a project if a DBE subcontractor is replaced for failure to perform the work for which he subcontracted than if a non-DBE subcontractor has to be replaced for the same reason. Although DOT individually considers each request for extension of contract time, it treats delays resulting from DBE subcontractor performance the same as it treats delays resulting from non-DBE subcontractor performance. As noted in finding 2 above, the contract provides that subcontractors are agents or employees of the Contractor. Accordingly, extensions of time for completion of the contract are not generally granted when the delay is due to the agents or employees of the Contractor. It is the refusal of DOT to treat DBE subcontractors different from non-DBE subcontractors that forms the basis of Petitioner's challenge to this "policy" that extensions of contract time are not granted when the delay was due to the DBE subcontractor failing to comply with his subcontract which failure was "beyond the control" of the Contractor.
The Issue The ultimate issue is whether Florida Power Corporation (FPC) engaged in an unlawful employment practice by discriminating against James A. Brand on account of handicap in violation of Section 760.10, Florida Statutes (1989)
Findings Of Fact Florida Power Corporation is an electrical utility engaged in the generation, transmission, and distribution of electricity. FPC operates and maintains electrical generating plants throughout its service area, including Crystal River, Florida, where it operates two fossil generating plants, Crystal River South and Crystal River North, and a nuclear generating plant, Crystal River 3. The maintenance of the plants' equipment is performed by plant maintenance employees and by employees assigned from the System Maintenance Crew (SMC). Both regular and temporary employees work as members of the SMC in the job classifications of mechanic, certified welder mechanic, and electrician. Petitioner, James Brand, was employed by FPC on nine separate occasions during the years 1985 through 1988 as a temporary employee in the job classification of mechanic and certified welder mechanic on FPC's SMC. Temporary employees, such as Mr. Brand, are hired by FPC for the SMC for time periods of less than six months to perform overhaul and maintenance work on boilers, turbines, generators, pumps, fans, and other plant equipment during a unit or plant outage. Temporary employees are laid off and their employment is terminated as the outage work is completed. Mr. Brand had a preemployment physical examination before being initially hired as a temporary employee on the SMC in 1985. Thereafter, he had preemployment physical examinations on two occasions prior to reemployment by FPC. In June 1988, Mr. Brand was notified by letter from his attorney, Alwyn Luckey, that he has an asbestos-related lung disorder known as asbestosis. In June 1988, Mr. Brand received a clinical evaluation from Dr. Lewis J. Rubin, Head, Division of Pulmonary Medicine, University of Maryland School of Medicine, that he has pulmonary asbestosis. In approximately January or February 1989, Kathleen Moyer, a human resources representative in FPC's Crystal River office, contacted Mr. Brand regarding reemployment as a mechanic or certified welder mechanic on the SMC to work during a unit or plant outage. Mr. Brand went to Ms. Moyer's office to update his records and, at that time, provided her with Dr. Rubin's clinical evaluation reflecting that he has pulmonary asbestosis and with a copy of Mr. Luckey's June 21, 1988, letter. Ms. Moyer provided Dr. Rubin's report to Dr. Alex Sanchez, FPC's regional medical director. Mr. Brand was thereafter scheduled for a physical examination with Dr. Sanchez in February 1989. Mr. Brand also provided Dr. Sanchez with copies of Dr. Rubin's clinical evaluation and Mr. Luckey's June 21, 1988, letter. Dr. Sanchez asked Mr. Brand to get a second medical opinion. On March 4, 1989, Mr. Brand went to a physician, Dr. Nikhil Shah, who conducted a pulmonary examination and a pulmonary function or spirometry test. The results were given to Dr. Sanchez. Dr. Sanchez thereafter received a letter dated March 16, 1989, from Dr. Lewis Rubin, who had initially diagnosed Mr. Brand's medical condition as pulmonary asbestosis. Dr. Rubin stated in his March 16 letter that he had reviewed the pulmonary function test performed by Dr. Shah on March 4, and that Mr. Brand's asbestosis "should in no way impair his ability to do his job as long as he is not being exposed to noxious fumes or other environmental irritants." Dr. Ronald S. Kline, Director of Health Services for FPC, thereafter reviewed Mr. Brand's medical records, including Dr. Rubin's clinical evaluation diagnosing Mr. Brand as having pulmonary asbestosis and Dr. Rubin's March 16 letter. As Director of Health Services for FPC, Dr. Kline is responsible for the overall function of the medical department, which includes responsibility for determining whether a person has a physical or mental impairment which might limit his/her activities as they relate to his/her employment. Dr. Rubin's clinical evaluation states that Mr. Brand is at risk for the progression of pulmonary asbestosis even-in the absence of further exposure to asbestos. Dr. Kline did not request that Mr. Brand undergo any additional tests to determine if he suffers from asbestosis nor did Dr. Kline make an independent diagnosis that Mr. Brand has asbestosis. Dr. Kline accepted Dr. Rubin's evaluation and diagnosis of Mr. Brand. Dr. Kline had no reason to disbelieve the diagnosis of Mr. Brand's own physician, especially when the information regarding his medical condition was presented by Mr. Brand to FPC. On April 5, 1989, Dr. Kline issued a guideline to the human resources department placing the following restriction on Mr. Brand's employment activities: "No exposure to irritating gases or fumes, or any other environmental irritant." Dr. Kline based his recommendation on Dr. Rubin's evaluation and assessment. Moreover, Dr. Kline agreed, on the basis of his own medical experience, training, and education, that Dr. Rubin's recommendation of restrictions on Mr. Brand's activities was entirely reasonable. In Dr. Kline's medical opinion, Mr. Brand's continued employment in a position where he would be exposed to noxious fumes, gases, or other environmental irritants would pose a substantial risk of injury or harm to Mr. Brand's health. Dr. Kline does not and did not make decisions or recommendations regarding the hiring or reemployment of employment applicants. At no time did Dr. Rline recommend or otherwise indicate that Mr. Brand should not be reemployed by FPC. Rather, it was Dr. Kline's recommendation that he be employed in jobs in which he would not be exposed to noxious fumes, gases, or environmenta1 irritants. After receiving Dr. Kline's report, a human resources representative contacted Carey Hamilton, senior mechanical supervisor, and asked if he could employ a person in the position of mechanic or certified welder mechanic on the SMC who could not be exposed to irritating gases, fumes, and other environmental irritants. As senior mechanical supervisor, Mr. Hamilton is responsible for hiring and supervising the" regular and temporary mechanics and certified welder mechanics on the SMC. Mr. Hamilton has working knowledge of the environment inside the power plants due to his experience as an employee and supervisor on the SMC. He has been employed by FPC for over fifteen years in the job classifications of temporary mechanic, lab technician, certified welder mechanic, first line supervisor, and senior mechanical supervisor. He has worked as a certified welder mechanic, first line supervisor, and senior mechanical supervisor in all of FPC's power plants. Moreover, approximately ten years of Mr. Hamilton's experience has involved working with the SMC and supervising regular and temporary employees on the SMC, including during unit or plant outages. Based on his experience and firsthand knowledge of the work environment in the plants, Mr. Hamilton determined that he could not employ a person to work as a mechanic or certified welder mechanic on the SMC who could not be exposed to irritating gases, fumes, and other environmental irritants. At the time Mr. Hamilton responded to the human resources employment inquiry, he was unaware of the identity of the individual human resources was inquiring about or that this person has asbestosis. All employees on the SMC are initially hired into the mechanic classification. However, the temporary employees who are hired to work during a plant outage are usually upgraded to the certified welder mechanic position after they pass certain tests. The mechanics and certified welder mechanics working in the plant during an outage are continuously exposed to noxious fumes, gases, and other environmental irritants. Pulverized coal and fly ash, both of which have the consistency of face powder, exist in abundance throughout the plant in areas where the mechanics and certified welder mechanics are assigned to work. They are also exposed to other major irritants including sulfur dioxide gas, flue gases, smoke and dust created by tools, and irritants created by sandblasting and grinding. Mr. Brand was hired as a temporary on the SMC because of his welding and pipe fitting skills. He was qualified and certified to make safety-related pressure welds. FPC expends a significant amount of money in testing and certifying persons employed on the SMC so they can be used as welders. Prior to each period of his employment on the SMC, Mr. Brand was required to take welding certification tests in order to qualify as a certified welder. He always passed the certification tests and therefore was qualified to work as a certified welder mechanic. As a certified welder mechanic, Mr. Brand would work primarily in and around the boiler and boiler cavity. The work that is performed inside the boiler cavity by certified welder mechanics involves inspection, repair, and replacement of boiler tubes, replacement of burner fronts and defusers, and refractory repair. The certified welder mechanics clean the boiler tubes with a grinder prior to inspection. Thereafter, their work typically consists of repairing boiler tube leaks with a weld and replacing sections of the boiler tubes. The performance of this work involves grinding, burning, cutting, and welding, all of which produces fumes, gases, and other airborne irritants. The burner replacement and refractory repair work also exposes the certified welder mechanics to similar fumes, gases ~ and irritants. In addition to the boiler area, the certified welder mechanics perform work on the precipitators. This work involves burning, welding, and cleaning. The bottom ash hopper and the pulverizers that are used to crush coal are cleaned and repaired by certified welder mechanics during an outage. This work involves cutting, burning, grinding, and welding which produces noxious fumes and gases. Working on the water front and in the turbine areas during an outage exposes these SMC employees to fumes and dust particles created by sandblasting. During an outage, the SMC employees will be working on one unit that is out of operation; however, they are working next to a unit that is in operation. The unit that is in operation produces gases, fumes, and airborne irritants. The fact that Mr. Brand might work as a mechanic instead of a certified welder mechanic would not insulate him from exposure to noxious fumes, gases, and other environmental irritants. The duties of a SMC mechanic include sandblasting and grinding dirty or rusty metal, burning with a cutting torch, welding non-safety related welds, and' wire brushing. These activities are performed on a daily basis by mechanics. The sandblasting or grinding work is done with an abrasive disk that creates airborne particulates that contaminate the air. The burning process is used in making repairs such as in the steel ducts that transport air and gases to and from the boilers. Sulfur-based deposits collect in these ducts and when a torch is used in that area, the burning creates sulfur dioxide gas and other fumes. In addition, oxygen blasts are used in the burning process to increase the heat and blow metal out of the weld. This causes fly ash, dust, and other irritants to become airborne. The welding that is performed by mechanics also produces fumes and gases. All of the tools used by the SMC in the power plant are air-driven tools. The air discharged by these tools stirs up the dust, fly ash, gases, and other irritants in the workplace environment. During the time periods that a mechanic is not directly engaged in grinding, burning, or welding, he is working in close proximity to other employees who are performing those tasks, and thus, is exposed to the noxious gases, fumes, and irritants. Mr. Hamilton determined that he could not employ a certified welder mechanic on the SMC with the following restriction: "No exposure to irritating gases or fumes, or any other environmental irritant." He did not know that Mr. Brand was the proposed employee or that Mr. Brand has asbestosis. Mr. Hamilton knew that employing an individual to work as a mechanic or certified welder mechanic would expose that individual to gases, fumes, and other environmental irritants. The only positions supervised by Mr. Hamilton on the SMC are mechanic, certified welder mechanic, and tool room attendant. The tool room is housed in a large trailer parked outside of the plant. The tool room attendant's duties include issuing and receiving tools and repairing tools. These duties are performed in the tool room trailer. Because of his work location, the tool room attendant is not exposed to fumes, gases, and environmental irritants in the same way as the mechanics and certified welder mechanics. Mr. Hamilton later determined that Mr. Brand could be employed in the tool room consistent with the restrictions issued by Dr. Kline. Mr. Hamilton discussed with a human resources representative the possibility of employing Mr. Brand in the tool room. Mr. Hamilton had no objection to employing Mr. Brand in the tool room. However, there were no vacancies in that position and there have been no vacancies since that time. During 1990, Mr. Brand worked in Fluor Constructors Corporation, at Crystal River 3. Fluor Constructors is an independent contractor that is employed by FPC to perform repair and maintenance work. Mr. Brand received the referral to this job site through the Pinellas Park Local of the Pipefitters Union. While working for Fluor at Crystal River 3, he was supervised by Fluor's supervisors and not by FPC's supervisors. Mr. Brand is not seeking back pay for the period from February 23, 1991, through June 6, 1991. He was employed by a number of different employers during the period from January 1989 through May 1991. Such employers include Fluor Contractors, Inc., Teco Electric, Nisco, and a nuclear power plant in Mississippi. Mr. Brand would not be entitled to recover back pay or other monetary relief for the periods while working for other employers insofar as such interim employment periods coincided with SMC outage work periods. The hourly rate as well as other benefits of employment for temporary employees are set forth in the labor agreement between FPC and the International Brotherhood of Electrical Workers. As of December 5, 1988, the hourly wage rate for a mechanic was $16.51 per hour and for a certified welder mechanic was $18.72 per hour.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Florida Commission on Human Relations enter a Final Order denying the Petition for Relief. DONE and ENTERED this 11th day of July, 1991, in Tallahassee, Florida. DIANE R. KIESLING Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of July, 1991. APPENDIX The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, James A. Brand 1. Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(1); 1(2); 3(3&4); 475 (5-7); 6(63); 7(8); and 8-16(10-17). 2. Proposed findings of fact 17-19, 21-35, 50-54, 65-70, 76, 77, 84, 85, 91, and 92 are subordinate to the facts actually found in this Recommended Order. Proposed findings of fact 36-49, 55-64, 82, 83 and 86- 90 are irrelevant. Proposed finding of fact 20 is unnecessary. Proposed findings of fact ,1-75 and 78-81 are unsupported by the credible, competent and substantial evidence. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Florida Power Corporation 1. Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1-63(1-62). COPIES FURNISHED: John Barry Relly II Attorney at Law Ray, Kievit & Kelly 15 West Main Street Pensacola, FL 32501 J. Lewis Sapp Sharon P. Morgan Attorneys at Law 800 Peachtree-Cain Tower 229 Peachtree Street, N.E. Atlanta, GA 30303 Ronald M. McElrath, Executive Director Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, FL 32399-1570 Dana Baird, General Counsel Florida Commission on Human Relations Building F, Suite 240 325 Johp Knox Road Tallahassee, FL 32399-1570
Findings Of Fact Respondent Claude DuVoisin holds a current, active certified building contractor's license. He has been in the construction business since 1958, when he began in New Jersey. In 1970, respondent moved to Florida, where he has been principally engaged in building "luxury, custom" single family homes. He has built approximately 100 such homes in Florida and, until recently, ordinarily had five to seven under construction at any one time. On January 23, 1976, respondent, as president of Claude, L. D., Inc., borrowed from the Landmark Bank of Plantation the sum of twenty-five thousand dollars ($25,000.00) at 9 percent interest, and signed a promissory note in that amount by which he committed the corporation to repay principal in ten equal monthly installments, unless demand should earlier be made for repayment of the entire indebtedness. The note provided for payment of interest monthly as it accrued. Claude, L. D., Inc., was a Florida contracting corporation controlled by respondent, until its involuntary dissolution on December 11, 1976. Respondent caused the corporation to make installment payments in accordance with the terms of the note on February 23, 1976, on March 31, 1976 (approximately a week late), and on April 23, 1976, but the corporation made no payment in May of 1976. The payment due May 23, 1976, was made on June 8, 1976. On May 31, 1976, Al and Bessie Seamon entered into a written contract with Claude L. D., Inc., under which the corporation agreed to erect a single family residence on a Broward County site owned by the Seamons, in exchange for one hundred forty-seven thousand dollars ($147,000.00), Even before the agreement was executed, the Seamons paid Claude L. D, Inc., one thousand dollars ($1,000.00). The day after the contract was signed, one of the Seamons called from New York, requesting certain changes in the plans, which resulted in two months' delay in starting work under the contract. As work progressed, the Seamons requested more than 100 additional changes. One of these changes, involving the texture of the plaster on certain inside walls, was reduced to writing and signed by the parties to the original contract. From time to time, the Seamons made installment payments under the contract. By January 18, 1977, those payments aggregated eighty-eight thousand four hundred twenty-one and seventy-four hundredths dollars ($88,421.74). Respondent caused these moneys to be deposited in accounts belonging to Claude L. D., Inc., the same accounts from which the loan to Landmark Bank of Plantation was repaid, and from which were made disbursements for labor and materials for the half dozen houses Claude L. D., Inc., had under construction, including the Seamons'. No money from corporate accounts was diverted to respondent's personal use. When Mr. Seamon received a notice of lien from a roofing contractor with whom respondent had subcontracted, he inquired of respondent why the roofer had not been paid. Respondent said there was a crack in the roof he wanted the roofer to repair before being paid. Later the Seamons received a notice of lien from the contractor who installed the intercom system in the house. The Seamons had dealt directly with the intercom contractor, but the notices of lien raised questions in their minds and a meeting was scheduled with respondent. In January or February of 1977, respondent and his wife met the Seamons in a model home respondent had built. When the Seamons asked for an accounting of all moneys paid pursuant to the contract, respondent indicated that part of the money had gone to repay the loan from Landmark Bank of Plantation. Ms. Jeanne Klinger accompanied the Seamons to a second meeting, at a lawyer's office, where respondent again indicated that some of the money paid by the Seamons had been used to pay back a bank loan. On April 18, 1977, Respondent filed a petition in bankruptcy in the United States District Court for the Southern District of Florida. Respondent did not complete construction of the Seamons' home. The foregoing findings of fact should be read in conjunction with the statement required by Stucky's of Eastman, Georgia v. Department of Transportation, 340 So.2d 119 (Fla. 1st DCA 1976), which appears as an appendix to the order.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That respondent's certified building contractor's license be suspended until and unless respondent is discharged in bankruptcy. That respondent be on probation for a period of one year following restoration of his certified building con tractor's license, and that respondent be required to keep separate accounts for each project or operation with which he becomes involved while on probation. DONE and ENTERED this 4th day of November, 1977, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 APPENDIX Paragraph one of respondent's proposed findings of fact has been adopted, in substance, insofar as relevant, but much of the paragraph consists of proposed conclusions of law, which have not been adopted. Paragraph two of respondent's proposed findings of fact has been adopted, in substance, insofar as relevant, but much of the paragraph consists of proposed conclusions of law, which have not been adopted. COPIES FURNISHED: Mr. Barry Sinoff, Esquire 1010 Blackstone Building Jacksonville, Florida 32202 Mr. Keith L. Rinehart, Esquire Suite 202 5353 North Federal Highway Ft. Lauderdale, Florida 33308
Findings Of Fact Petitioner works for the Department of Transportation as an Engineer Technician III in the maintenance section of the Tallahassee field office in Leon County, Florida. Petitioner's position requires that he perform certain tasks in Leon, Gadsden, Jefferson, Wakulla, Franklin and Liberty counties. Ninety percent of Petitioner's duties involve the inspection of contract maintenance work within a six county area to ensure conformance to contract specifications, department specifications, rules, regulations, and policies. More specifically, Petitioner inspects, supervises, or measures: (a) work zone traffic control and maintenance of traffic setup; (b) contract roadside mowing, slope mowing, small machine mowing and hand trimming; (c) removal and replacement of existing striping, symbols and raised pavement markers; (d) roadway sweeping and edging and roadside litter removal; (e) tree trimming; and (f) brush removal, drainage repair and other activities assigned to Department of Corrections crews. Petitioner's job also requires him to: (a) prepare forms used for various concrete projects and daily inspection reports; (b) sample and test concrete and other materials as required; (c) calculate data and input it to computer for weekly status reports; (d) participate in Department/Contractor pre-construction conferences; (e) measure, compute and computerize quantities to be used for future contracts; (f) measure, calculate, and input to computer contract quantities to determine payment to contractors and for reporting to Respondent; and (g) assist in contract office administration by preparing required correspondence, documents and quantities on a personal computer. Approximately five percent of Petitioner's time is spent making daily pre-trip inspections of vehicles, tools and equipment including cleaning and maintenance or scheduling of maintenance. The remaining five percent of Petitioner's time is spent performing other duties as required. At times, Respondent's employees, including Petitioner's supervisors, have site meetings with county commissioners, county permitting officials, and/or their delegates. Occasionally Respondent enters into contracts, memoranda of agreement and joint participation agreements with counties and boards of county commissioners. Respondent's enforcement of these contracts sometimes conflicts with the desires of the local government. Petitioner currently provides specifications and inspects work being done by the county for driveways or county road intersections on a state highway. It is his responsibility to ensure that county employees comply with all specifications when widening turning lanes, deceleration lanes, and acceleration lanes or when placing culverts in ditches. Petitioner's job requires him to meet with county residents and private contractors to inspect work performed under a Department of Transportation permit. County residents often call upon their county commissioners to assist them when problems arise in the permitting or inspection process. Petitioner is not actively involved in issuing permits and awarding contracts. However, if Petitioner campaigns or becomes a county commissioner, a conflict of interest would arise any time the county residents put pressure on him to intercede on their behalf and take a position contrary to that of Respondent. In that case, Petitioner would be in a situation where regard for a private or local interest might lead to a disregard for the employee's duty as a state employee.
Recommendation Based upon the findings of fact and the conclusions of law, it is, RECOMMENDED: That Respondent enter a Final Order denying Petitioner's request to campaign for, and to hold, the office of county commissioner in Liberty County, Florida. DONE and ENTERED this 6th day of May, 1996, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of May, 1996. APPENDIX CASE NO. 95-5901 The following are the Hearing Officer's specific rulings on the finding of facts proposed by the parties in their proposed findings of fact. Petitioner's Proposed Findings of Fact Accepted in Findings of Fact 1 of this Recommended Order. Accepted in part in Findings of Fact 2-6 of this Recommended Order. Not supported by competent substantial evidence. The letter from the Clerk to the Board of County Commissioners of Liberty County is hearsay which is not sufficient to support a finding of fact. Section 120.58(1)(a), Florida Statutes. Irrelevant. Accepted in Finding of Fact 11 of this Recommended Order. Accept that, if elected, Petitioner would be a member of a board who could abstain from voting on matters involving a conflict of interest. However, reject that the influence of a county commissioner is limited to formal votes during board meetings. Therefore, irrelevant. Accepted in part in Finding of Fact 11. However, Petitioner admits that he could be required to work in permitting at anytime. Accept, however, if elected, Petitioner as a county commissioner would be meeting with the Assistant District Maintenance Engineer to discuss some issue then, as the state's inspector, be required to follow the engineer's policy decisions regardless of Petitioner's political position on that issue. Accept. However, the conflict of interest would still exist. Reject as not supported by persuasive competent substantial evidence. See above. Reject as not supported by persuasive competent substantial evidence. Reject. See above. Accept in Findings of Fact 11 of this Recommended Order. Respondent's Proposed Findings of Fact Accepted in part in Preliminary Statement. Petitioner's allegations are not findings of fact. Accepted as reasons Respondent gave for not giving Petitioner authorization to campaign and hold office. Accepted. See Preliminary Statement. Accepted in Findings of Fact 1 of this Recommended Order. Accepted in Findings of Fact 1 of this Recommended Order. Accepted in Findings of Fact 9 of this Recommended Order. Accepted in Findings of Fact 2 of this Recommended Order. Not necessary for resolution of the case. Accept as a specific example of conflict described in Findings of Fact 10 of this Recommended Order. Accepted as restated in Findings of Fact 9-11 of this Recommended Order. COPIES FURNISHED: Charles G. Gardner, Esquire Dept. of Transportation 605 Suwannee Street Tallahassee, FL 32399-0458 David Summerlin Post Office 122 Hosford, FL 32334 Ben G. Watts, Secretary Attn: Diedre Grubbs Department of Transportation Mail Station 58 Haydon Burns Building 605 Suwannee Street Tallahassee, FL 32399-0450 Thornton J. Williams, Esquire Department of Transportation 562 Haydon Burns Building Tallahassee, FL 32399-0450
Findings Of Fact The Respondent was employed by the School Board of Volusia County from September 1, 1981 until November 14, 1989 as a painter or painter mechanic. T- II-39,40. The terms and conditions of the Respondent's employment was governed by the contract between the Petitioner and the American Federation of State, County, and Municipal Employees, Council 79, Local 850. This contract provides that employees can be disciplined, to include discharge for just cause. Joint Exhibit 1. The Respondent was employed as a painter within the Board's facilities support operations department. This department employs approximately 130 craftsmen and 20 clerical and supervisory staff. T-I-38. The Respondent's immediate superior was foreman of the painters, Joe Isaac, who has held that position for the past 18 years. T-I-38,64 The chain-of-command from the top of the facilities support department is Charles Lambeth, who is Director of Facilities Operation; Terry Ellis, who is Assistant Director in charge of the crafts area; and Clifton Robertson, who is the Director of Facilities Support Operations or the personnel administrator for the facilities support department. Clifton Robertson investigated the allegations against the Respondent, counseled with the Respondent, and issued the disciplinary letters and reprimands given to the Respondent. On October 24, 1989, Mr. Florio engaged in a loud, profane, and inappropriate shouting match with a coworker, Larry Brazil, while on the job scraping paint outside a classroom at Seville School. Their conduct was such that a teacher left her classroom, outside of which they were working, and cautioned them about the disturbance they were causing. The acting foreman, Don Jenkins, overheard the exchange between the Respondent and Brazil in which the Respondent used obscene or profane language. The acting foreman did not hear Brazil use such language, and other witnesses testified that they had never heard Brazil use such language on the job. On October 25, 1989, the Respondent got into another argument with another coworker, Ken Griswold. During this argument, the Respondent threw his paint scraper at Griswold, who had made no threat to the Respondent. With only the verbal provocation, the Respondent threw the scraper at Griswold and would have struck him had Griswold not jumped back out of the way. There was dissatisfaction among the Respondent's coworkers about the way he did his job. The Respondent had been injured in 1987 and was restricted from working on ladders over six feet tall, lifting regular ladders, and spray painting. Sometime later, the Respondent's restrictions were altered to permit him to work on a six-foot aluminum ladder. His refusal to do any type of work which was covered by his medical restrictions was a source of contention with his coworkers. In addition, he had a history of not following regulations and requirements which the other men were required to follow. On October 24 and 25, 1989, the Respondent was assigned to a team of painters to scrape and paint the exterior of a school. On both days, arguments between the Respondent and coworkers arose over the Respondent's refusal to scrape paint from the ladder. On October 24, 1990, this led to a shouting match with Larry Brazil and to the Respondent throwing a paint scraper at Ken Griswold on October 25, 1990. On March 21, 1989, the Respondent was directed at 7:00 a.m. to report to work at Seabreeze Senior High School by his foreman, Joe Isaac. The Respondent did not do so and stayed at the main maintenance facility until 8:45 a.m., when he was discovered by the Assistant Maintenance Director, Terry Ellis, who instructed him to report to the high school. The Respondent again refused to go and remained at the main maintenance facility until 8:54 a.m., when the Maintenance Director, Charles Lambeth, arrived. The Respondent had asked his foreman, Joe Isaac, to see Lambeth; and Isaac had told Florio to report to work at the high school and if Lambeth wanted him, Lambeth would send word through Isaac for Florio to report to Lambeth. When confronted by Ellis, the Respondent told Ellis he wanted to see Lambeth. Ellis also told Florio to report to the school immediately. Florio remained at the maintenance headquarters until Lambeth arrived. Lambeth asked Florio why he was there, and Florio stated that he had been told Lambeth wanted to see him. Lambeth told Florio that he had not wanted to see him, and Florio blamed the incident on the men lying to him. Florio did not report until told to do so by Lambeth. The Respondent had his pay docked for two hours and received a letter of reprimand for failure to follow direct instructions. The letter of reprimand described the Respondent's actions as malingering and insubordination. Painters reported each day to the maintenance headquarters, after which they took School Board vehicles to the job sites. Similarly, after being released at the job site, the painters were supposed to return to the main maintenance facility, where employees were dismissed for the day. On September 11, 12, 13 and 14, 1989, the Respondent drove his private automobile to the school at which the paint team was working. Although the Respondent had been given permission to drive his car on Monday of that week because his stomach had been giving him problems, he took his car the rest of the week and left directly from the school, not returning to the maintenance headquarters, as required on the dates indicated above. The Respondent received written notice that he was being docked 160 minutes. On or about September 21, 1989, the Respondent told a coworker that he refused to drive. The Respondent did not deny telling the coworker that he would not drive but asserted that he had been kidding. On September 22, 1989, the Respondent slammed open the door of a School Board truck striking another School Board truck in the door and damaging both trucks. The property damage was $121.63. The Respondent had slammed the door open because he was angered by the remarks of a coworker who chided him about driving. The letter of reprimand which the Respondent received for his conduct on September 21 and 22 indicated that the Respondent had been encouraged to enter the Employee Assistance Program. The Respondent did not avail himself of the program. The Respondent frequently complained to his supervisors about what he described as "harassment" and "kidding" by his coworkers although the Respondent engaged in similar behavior with his coworkers. As a result of his complaints, his superiors counseled his coworkers not to tease, harass, or kid the Respondent. The Respondent is a malingerer. He developed a pattern of avoiding work by failing to report when he was supposed to report; by refusing to perform duties within his ability as requested by his fellow workers; and by asserting he was ill. The Respondent was ill-tempered and acted out inappropriately with increasing frequency and violence. The Respondent refused to acknowledge that there was a problem, that the problem was him, and to seek assistance for it. The employer counseled with the Respondent and used progressive discipline to attempt to modify the Respondent's behavior to no avail. The employer had just cause to discharge the Respondent.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore recommended that the Respondent be discharged. RECOMMENDED this 20th day of August, 1990, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of August, 1990. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-6360 The parties filed proposed findings of fact which were read and considered. The following is a listing by party of the findings which were adopted and those which were rejected and why: Petitioner's findings by paragraph number which began with paragraph 7: Paragraph 7 Adopted Paragraph 8 Adopted Paragraph 9 Adopted and rewritten Paragraph 10 Rejected; restates exhibit Paragraph 11 1st sentence adopted; remainder irrelevant Paragraph 12,13,14 Adopted and rewritten Paragraph 15(a) Irrelevant Paragraph 15(b) Rejected; restates exhibit Paragraph 16-20 Adopted and rewritten Paragraph 21 Irrelevant Paragraph 22-29 Adopted and rewritten Respondent's findings by paragraph number beginning with paragraph 1: Paragraph 1-4 Adopted and rewritten Paragraph 5 Irrelevant Paragraph 6-10 Adopted and rewritten Paragraph 11 Whether Brazil was disciplined is unknown Paragraph 12 Rejected as contrary to fact Paragraph 13-14 Adopted and rewritten Paragraph 15 Rejected that Florio did not throw the scraper at Griswold; remainder adopted and rewritten Paragraph 16 Adopted and rewritten Paragraph 17 Evidence was received that coworkers were counseled on several occasions; however, it is also irrelevant because the disciplinary records of the other employees were not introduced. Evidence was received that; at least one other employee was discharged for similar types of behavior. Paragraph 18 Adopted and rewritten Paragraph 19-24 Irrelevant Paragraph 25 The statement is true, but gives the erroneous impression that Florio was discharged because he did not participate in the program. The employer's reference of the employee to this program was relevant because it shows the employer had such a program and it was available. The employee's rejection was relevant because it indicates how confused the employee is about his situation and condition. Paragraph 26 Rejected as contrary to fact COPIES FURNISHED: Harrison C. Thompson, Esq. THOMPSON, SIZEMORE & GONZALEZ P.O. Box 639 Tampa, FL 33601 Ben Patterson, Esq. P.O. Box 4289 Tallahassee, FL 32315 Dr. Jame D. Surratt, Superintendent Volusia County School Board P.O. Box 2118 Deland, FL 32720 Honorable Betty Castor Commissioner of Education Department of Education The Capitol Tallahassee, FL 32399-0400
The Issue Whether Respondent, Tony Williams Drywall and Plastering, Inc., failed to comply with the coverage requirements of the Workers' Compensation Law, chapter 440, Florida Statutes, by not obtaining workers' compensation insurance for its employees and, if so, what penalty should be assessed against Respondent pursuant to section 440.107.
Findings Of Fact The Department is the state agency responsible for enforcing the requirement of the workers' compensation law that employers secure the payment of workers' compensation coverage for their employees and corporate officers. § 440.107, Fla. Stat. Tony Williams Drywall and Plastering, Inc., (Respondent or Williams Drywall) is a corporation based in Tallahassee, Florida, first incorporated on August 18, 1999. Williams Drywall is engaged in the construction industry, operating as a drywall installation and repair business with a principal office located at 8513 Raquel Lane in Tallahassee. Tony Williams is the sole owner, registered agent and president of Williams Drywall. On or about October 30, 2014, Williams Drywall was hired by Bill Davis, a general contractor, to make drywall repairs at 2069 North Monroe Street in Tallahassee (the job site). Williams Drywall hired Viper Enterprises, LLC, (Viper) for the job. Viper is a company owned and operated by Joseph Johnson, whom Mr. Williams described as a friend. Mr. Williams deemed the job as simple and expected to pay Viper about $200. On October 30, 2014, Department Investigator Betty Fuentes arrived at the job site and encountered Mr. Johnson. Ms. Fuentes inquired regarding Mr. Johnson’s workers’ compensation compliance.1/ Although Mr. Johnson, as corporate officer of Viper, had been exempt from the requirement to obtain workers’ compensation insurance, pursuant to section 440.05(3), Florida Statutes, the exemption expired after September 10, 2014. As of October 30, 2014, Mr. Johnson had not effectively renewed his exemption. Mr. Johnson called Mr. Williams from the job site on October 30, 2014, to inform Mr. Williams of the events that transpired at the job site. Through this telephone call, Mr. Williams learned that Ms. Fuentes had issued a stop-work order at the job site. Mr. Williams also spoke with Ms. Fuentes by phone from the job site on October 30, 2014, and Ms. Fuentes asked Mr. Williams for his corporate records as part of her investigation. Mr. Williams met directly with Ms. Fuentes in the late afternoon of October 30, 2014. During the meeting, Ms. Fuentes hand-delivered to Mr. Williams a Stop Work Order for Specific Worksite Only (Stop Work Order). The Stop Work Order required Williams Drywall to cease all business operations at the job site for failure to secure workers’ compensation insurance coverage for its employees. The Stop Work Order included an Order of Penalty Assessment in the amount of two times the amount Williams Drywall would have paid in premium when applying the approval manual wage rates to Williams Drywall’s employee payroll during periods for which it failed to secure payment of workers’ compensation insurance within the preceding two-year period. During the meeting, Mr. Williams provided to Ms. Fuentes corporate records and workers’ compensation information for Williams Drywall. Ms. Fuentes also requested from Mr. Williams payroll records for the preceding two-year period. Mr. Williams disputed that his payroll records for the preceding two-year period were relevant. Mr. Williams testified that he offered to provide his payroll records for the two-week time period during which Mr. Johnson’s exemption had lapsed. Mr. Williams insisted that the October 30, 2014, drywall job was the only job for which he hired Mr. Johnson between September 11, 2014, and October 30, 2014. Mr. Williams did not provide any payroll records for Williams Drywall to Ms. Fuentes or any other representative of the Department. Andrew Moskowitz was assigned to calculate the appropriate penalty to be assessed against Williams Drywall by the Department. Penalties for workers’ compensation insurance violations are based on doubling the amount of evaded insurance premiums for periods during which the employer failed to secure workers’ compensation coverage within the two-year period preceding the Stop Work Order. § 440.107(7)(d), Fla. Stat. The applicable period of noncompliance for Williams Drywall was September 11, 2014, the date Mr. Johnson’s exemption lapsed, through October 30, 2014, the date the Stop Work Order was issued. Section 440.107(7)(e) provides that where an employer fails to provide business records sufficient to enable the Department to determine the employer’s actual payroll for the penalty period, the Department will impute the weekly payroll at the statewide average weekly wage as defined in section 440.12(2), multiplied by two.2/ In the penalty assessment calculation, Mr. Moskowitz consulted the classification codes and definitions set forth in the SCOPES of Basic Manual Classifications (Scopes Manual) published by the National Council on Compensation Insurance (NCCI). The Scopes Manual has been adopted by reference in Florida Administrative Code Rule 69L-6.021. Classification codes are four-digit codes assigned to occupations by the NCCI to assist in the calculation of workers’ compensation insurance premiums. Rule 69L-6.028(3)(d) provides that “[t]he imputed weekly payroll for each employee . . . shall be assigned to the highest rated workers’ compensation classification code for an employee based upon records or the investigator’s physical observation of that employee’s activities.” Mr. Moskowitz applied NCCI Class Code 5480, titled “Plastering NOC [Not Otherwise Classified] and Drivers,” which applies to specialty contractors engaged in interior plastering. Mr. Moskowitz used the approved manual rates corresponding to Class Code 5840 for the period of non-compliance to calculate the penalty. On December 14, 2014, the Department issued an Amended Order of Penalty Assessment in the amount of $2,105.50, based upon an imputation of wages to Mr. Johnson, the only employee of Williams Drywall known to the Department for the period of noncompliance. The evidence produced at the hearing established that Mr. Moskowitz utilized the correct class codes, average weekly wages, and manual rates in his calculation of the Amended Order of Penalty Assessment. The Department has demonstrated by clear and convincing evidence that Williams Drywall was in violation of the workers' compensation coverage requirements of chapter 440. Joseph Johnson was an employee of Williams Drywall performing services in the construction industry without valid workers’ compensation insurance coverage. The Department has also demonstrated by clear and convincing evidence that the penalty was correctly calculated by Mr. Moskowitz, through the use of the approved manual rates and the penalty calculation worksheet adopted by the Department in Florida Administrative Code Rule 69L-6.027.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED that a final order be entered by the Department of Financial Services, Division of Workers' Compensation, assessing a penalty of $2,105.50 against Tony Williams Drywall and Plastering, Inc. DONE AND ENTERED this 3rd day of June, 2015, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK 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 3rd day of June, 2015.
