The Issue Whether the Petition for Formal Administrative Hearing that initiated this proceeding was timely filed?
Findings Of Fact On January 12, 2004, the Department of Environmental Protection issued a letter (the "Letter of Consent") to the Ellenthals that stated the following: "Ira & Judith Ellenthal are hereby authorized to proceed with the repair of approximately 674 sq. ft. of an existing dock and install two (2) boat lifts within the Bay of Florida." Department Ex. 7. The Letter of Consent proclaimed that it constituted "sovereign lands authorization," id., and referenced: Monroe County - ERP File No. 44-0223322-001 Florida Keys Ecosystem Management Area. Id. The Letter of Consent also shows the location of the activity it authorized as offshore of Lot 16, Block 6 of the Buccaneer Point Subdivision located on Bounty Lane in Key Largo. Page 5 of the Letter of Consent provides to parties whose substantial interests are affected by the Department's action a notice of their rights, in pertinent part, as follows: A person whose substantial interests are affected by the Department's action may petition for an administrative proceeding (hearing) under section 120.569 and 120.57 of the Florida Statutes. * * * In accordance with rules 28-106.111(2) and 62-110.106(3)(a)(4), petitions for an administrative hearing must be filed within 21 days of publication of the notice or receipt of written notice, whichever occurs first. Under rule 62-110.106(4) of the Florida Administrative Code, a person whose substantial interests are affected by the Department's action may also request an extension of time to file a petition for an administrative hearing. The Department may for good cause shown, grant the request for an extension of time. * * * A timely request for an extension of time shall toll the running of the time period for filing a petition until the request is acted upon. Upon motion by the requesting party showing that the failure to file a request for an extension of time before the deadline was the result of excusable Id. at 5. neglect, the Department may also grant the requested extension of time. Prior to the issuance of the letter, Petitioner Potter had not requested that the Department give him notice of the Department's decision on the Ellenthal's application. Tr. 19. Petitioner Potter's house is two houses to the south of the Ellenthal property. The distance between the Ellenthal dock and Mr. Potter's dock is between 130 and 131 feet by Mr. Potter's estimation. Mr. Potter sees the Ellenthal property on average "more than one time daily." Tr. 40. Mr. Potter requested and was provided access to the file maintained by the Department on the Ellenthal property (the "Ellenthal File") on at least four separate occasions: January 25, 2009; April 30, 2009; April 9, 2010; and July 28, 2010. The Letter of Consent should be present in the Ellenthal File in the normal course of business. The Department's witness, an administrative assistant, whose position requires her to maintain the Ellenthal File and who provided the file to him several times had no reason to believe that the file was not provided to him in its entirety every time he requested it. Documents that reflect agency action in 2004, like the Letter of Consent, remain in the agency file even when the agency action is maintained in the Department's computer system. Nonetheless, Mr. Potter maintains that he did not see the Letter of Consent on any of the times he reviewed the file until the last time, July 28, 2010, when there is no question in his mind that he received the "whole file," tr. 89, including the Letter of Consent. Mr. Potter's purpose in reviewing the Ellenthal File was to obtain information about riparian lines that related to another case in which he was involved. He did not examine the file for any documents that related to anything other than the riparian lines issue. Mr. Potter recalled that on January 25, 2009, there was only one page in the Ellenthal File and it was not the Letter of Consent. It was a document "from the State Bureau of Mapping and Surveying." Tr. 27-28. On the two times in the month of April in both 2009 and 2010 that he requested and reviewed the Ellenthal File looking for information about riparian lines, Mr. Potter was unable to recall what documents were in the file. On the April 9, 2010, visit to the Department's offices, Mr. Potter copied aerial photographs from the Ellenthal File. In answer to the question what other documents were in the file at that time, Mr. Potter responded: I don't recall . . . I wasn't looking for anything other than . . . a photograph . . . overhead riparian line drawings. That's it. That's all I looked at. I wasn't looking at anything with words on it. Tr. 88 (emphasis added). On August 11, 2010, fourteen days after reviewing the file on July 28, 2011, Mr. Potter requested an extension of time to file a petition for an administrative hearing. The request was granted. The Order granting the extension allowed Mr. Potter to file a petition until September 27, 2010. But the order warned: "This Order does not constitute a determination that the request for an extension of time is timely or that a petition for an administrative hearing regarding Department File No. 44-0223322-001 filed on or before September 27, 2010, is or will be considered timely." Mr. Potter filed the petition for formal administrative hearing on September 27, 2010, within the time allowed by the Department's order granting the extension of time for its filing. The Department filed a motion to bifurcate the hearing so that the single issue of whether the petition is timely or not could be considered separately from the merits of the petition. The motion was granted.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department enter a Final Order that dismisses the Petition for Formal Administrative Hearing that initiated this case. DONE AND ENTERED this 14th day of October, 2011 in Tallahassee, Leon County, Florida. S DAVID M. MALONEY 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 14th day of October, 2011. COPIES FURNISHED: Brynna J. Ross, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000 James Michael Porter, Esquire James M. Porter, P.A. 1 Southeast 3rd Avenue, Suite 2950 Miami, Florida 33131 Harry E. Geissinger, III, Esquire Harry Geissinger Law Office Post Office Box 2218 Palm Beach, Florida 33480 Lea Crandall, Agency Clerk Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Herschel T. Vinyard, Jr., Secretary Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Tom Beason, General Counsel Department of Environmental Protection Douglas Building, 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 findings of fact are made: Respondent Charley O. Young & Sons Trucking, Inc. (Company) is engaged in the business of hauling United States Mail between various United States Postal Service's post offices in the State of Florida, and is an employer as that term is defined in Section 760.10(7), Florida Statutes. Charley O. Young (Young), president of the Company, has been involved in the business of hauling United States mail for over 35 years. The mail which the Company hauls from post office to post office comes from places throughout the United States and the world. Such mail is considered to be in a continuous flow in interstate commerce from the moment it is mailed until it reaches its ultimate destination. Petitioner Dennis Bonville has been employed by the Company from time to time as an employee and as a subcontractor. Petitioner's last employment with the Company was as an employee driving a truck hauling mail from Tampa, Florida to Ruskin, Florida. The Company hired Petitioner with the full knowledge and understanding that Petitioner had a handicap known as monocular vision (vision capacity in one eye). Notwithstanding his handicap, Petitioner had been granted medical certification and was qualified to operate a commercial motor vehicle in the State of Florida in intrastate commerce in accordance with Section 316.302(2)(j), Florida Statutes. The position held by Petitioner was created as a result of the Company being awarded an emergency mail hauling contract between Tampa, Florida and Ruskin, Florida by the U. S. Postal Service beginning February 10, 1990, for an indefinite period. At the time Petitioner was hired, he understood that his employment with the Company was indefinite since the contract for the Tampa to Ruskin run with the U. S. Postal Service was for an indefinite period. On or about April 27, 1991, the Company was audited by the United States Department of Transportation, Office of Motor Carrier Safety, Florida Division (USDOT). The USDOT agent reviewed, among other things, the personnel and medical files of all the Company's drivers. During the audit, the agent discovered that Petitioner had monocular vision. The contract for the Tampa to Ruskin mail run required the Company to comply with all state and federal regulations, including those promulgated by the USDOT. Under USDOT rules, monocular vision disqualified Petitioner from driving a commercial motor vehicle in interstate commerce. The agent demanded that Young immediately remove Petitioner from the Tampa to Ruskin run since it involved operating a commercial motor vehicle in interstate commerce. However, since Young had no qualified driver to relieve Petitioner, the agent agreed to allow Petitioner to complete the run for the day with the understanding that the Petitioner would be relieved upon his return. The agent then advised Young that he would return the next day to complete the audit, and if the Petitioner had not been relieved, he had the authority to, and would, put a padlock on the door and shut down the Company's business. It was the agent's position that the Company was engaged in interstate commerce due to its hauling mail that was in interstate commerce, notwithstanding that the Company's vehicles never left the State of Florida. Therefore, the Petitioner's monocular vision rendered him unqualified to drive a commercial motor vehicle operating in interstate commerce under the USDOT rules which governed drivers under mail contracts. When the Petitioner returned that night to the Company's office, Young informed the Petitioner that due to the agent's position and his threat to shut down the Company's business if Petitioner continued to make the Tampa to Ruskin run, he had no alternative but to relieve the Petitioner of the Tampa to Ruskin run. When the agent returned to complete the audit the next day, the Petitioner had a heated discussion with the agent concerning the agent's position and its effect on the Petitioner's employment. The agent maintained his position that Petitioner was not qualified to drive the vehicle being used in the Tampa to Ruskin mail run which was considered to be in interstate commerce. At the conclusion of the audit, the Company was issued, among others, citations for violating 49 C.F.R. 391.11(b)(6), using a physically unqualified driver, and was fined $6,000. At this time, the Company had no other positions which it could offer the Petitioner that would accommodate his handicap. Therefore, as a result of the audit and the agent's threat to "shut down the business", the Petitioner was terminated by the Company effective April 27, 1991. At the time Petitioner was terminated he was earning $11.19 per hour and working 40 hours per week. Petitioner's job performance was not an issue in the Petitioner's termination. The Company's bid for the renewal of the Tampa, Florida to Ruskin, Florida contract was unsuccessful, and on April 30, 1991, the Company's contract for the Tampa to Ruskin mail run expired. Petitioner was replaced by a Company employee who was qualified under the USDOT rules to operate the vehicle used on the Tampa to Ruskin run for the three days remaining on the contract. After Petitioner's termination, sometime around October, 1991, the Petitioner was offered employment with the Company driving a van, which Petitioner was qualified to drive, delivering special delivery mail. However, this employment offered less money than Petitioner's previous employment with the Company and was turned down by the Petitioner.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Florida Commission on Human Relations enter a Final Order dismissing the Petition For Relief filed by the Petitioner. RECOMMENDED this day 29th of August, 1994, at Tallahassee, Florida. WILLIAM R. CAVE 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 29th day of August, 1994.
The Issue The issues to be resolved in this proceeding concern whether an advertising billboard sign, bearing permit number ("Tag No.") BY334, and a different sign bearing permit number AF251, were illegally rebuilt and whether sign number AF251 was destroyed and illegally rebuilt, given the standards in Florida Administrative Code Rule 14-10.007(6)(a).
Findings Of Fact Findings of Fact Concerning Tag Number BY334 The Petitioner Bill Salter Advertising, Inc. (Petitioner, Salter) owns and operates an outdoor advertising sign business and outdoor advertising sign structures, as pertinent hereto, in Santa Rosa County, Florida. The subject sign, bearing Tag Number BY334, is located on State Road 89 in Santa Rosa County, Florida, approximately .01 mile north of Jones Avenue. For purposes of the authority cited and discussed below the subject sign structure is a "non conforming sign." Hurricane Dennis came through Santa Rosa County and damaged sign BY334 on July 10, 2005. Some two or three days later the general manager of Salter, David McCurdy, visited the sign site to assess the damage. Three ground supports had broken and the sign had been laid over on the ground. Prior to its being blown over by the storm, it had three ground supports, eight sheets of plywood as vertical supports and 10 stringers. All three ground supports and some of the stringers were broken. Some of the stringers were left over from an additional sign face that had been previously removed from the permitted sign. The plywood vertical supports were intact, however. Mr. McCurdy assessed the damage and completed a "Florida Construction Order". The Construction Order indicated that eight sheets of plywood were in the original sign. The plywood sheets were still nailed to the structure two or three days after the storm. On July 17, 2005, there was plywood contained in a bundle of material next to the sign. The bundle was created because the Petitioner had sent a work crew to the site to pick up the material on the ground and bundle it to prevent theft or vandalism. The Construction Order provided for the existing plywood and the existing stringers to be re-used in making repairs to the sign. Additionally, Mr. McCurdy ordered materials for repairs based on the assessment which had been documented in the Construction Order. He engaged a company called "Masterbuilt" as a contractor to make repairs to sign BY334. That contractor requested no additional materials to be provided by the Petitioner and was required to perform the work according to the Construction Order and Mr. McCurdy's instructions. It had no discretion to purchase or use any additional material. The sign was rebuilt in accordance with the Construction Order. The Petitioner assessed the damage to the sign at 47 percent. The value of the structural materials in the subject sign structure immediately prior to the July 2005 storm damage was $611.00. The cost to repair the structure immediately after the hurricane was $291.00. The replacement materials to repair the sign constituted 47 percent of the value of the materials in the sign immediately prior to the storm damage. The only new materials used in the repair of the sign structure were three poles. There is no question based upon the persuasive evidence adduced that more than 50 percent of the upright supports of the sign structure were damaged such that replacement of them was necessary. However, the preponderant, persuasive, evidence does not establish that the replacement costs to re-erect sign BY334 and repair it exceeded 50 percent of the value of the structural materials in the sign as to their value immediately prior to the storm destruction. The Petitioner's evidence and testimony is credible and persuasive to the effect that the replacement materials amounted to 47 percent of the value of the materials in the sign immediately prior to the damage caused by the storm. Tag Number AF251 The Petitioner owns and operates an outdoor advertising sign located on Interstate 10 in Santa Rosa County, Florida, 0.238 miles east of County Road 89. That sign structure is permitted with state permit number AF251. There is no dispute that the subject sign structure is a "non-conforming" sign. The sign was damaged by Hurricane Dennis on July 10, 2005. The General Manager of the Petitioner, David McCurdy, inspected the sign several days after the storm. Three support poles had been broken and some of the sign face had been detached and leaned back on vegetation behind the sign. Prior to the storm the sign had five ground supports, 10 vertical supports (plywood), no braces and it had stringers composed of 30 pieces of 2 x 6 x 12 foot lumber. Mr. McCurdy ordered materials for the repair. Mike Crawley, sales manager for Salter testified that he delivered three poles to the site. The Petitioner's testimony indicates that existing vertical supports were reused (plywood supports) with the exception of two new pieces of plywood. Mr. Crawley maintains he did not deliver any 2 x 6 boards to the site and that the contractor did not request any additional materials. The Petitioner assessed the damage repair value at 35 percent of the value of the structural materials of the sign as they existed immediately prior to the July 2005, storm damage. The total value of those materials before the storm damage was assessed by the Petitioner at $945.00 and so indicated on the Construction Order. That figure included 10 sheets of plywood for vertical supports at $22.00 per sheet and 30, 2 x 6 x 12- foot boards at $8.00 a each, used as stringers, as well as five existing wooden pole vertical supports at $97.00 dollars each for a total pre-damage value of $945.00 in structural materials. The Construction Order and Mr. Crawley's testimony indicates that the value of the materials used to re-build the sign was 35 percent of that $945.00 figure. He indicated in the Construction Order, at Respondent's Exhibit five, that three pole ground supports were added, that two vertical sheet plywood supports were added and that existing stringers were used with no new materials for stringers being purchased. The two sheets of plywood purportedly purchased total $44.00 dollars and the three poles purportedly purchased totaled $291.00 dollars. This is a total rebuild cost of $335.00 dollars according to the Petitioner. The Petitioner thus maintained that the only new materials incorporated into the repaired sign structure were three poles and two new sheets of plywood. This testimony and evidence is not accepted as credible. The photographs in evidence in the Respondent's exhibits clearly show five new poles being added to the sign or a total replacement of the poles supporting the sign vertically. Instead of two new sheets of plywood, the photographs clearly show considerably more than that amount of new plywood added to the sign. Additionally, the sign was constructed in a manner not in the same configuration as the original sign existed before the hurricane damage, because significantly fewer stringers were used. The Construction Order and Mr. Crawley's testimony indicates that existing stringers were used. Even if that were the case, substantially fewer stringers were used in the sign than were used before. Moreover, the photographs in evidence show clearly that the stringers that were used in the repair work were all new pressure-treated materials. They clearly are new materials in appearance and are not existing materials which would exhibit weathering. Thus the 35 percent re-build cost in structural material value versus the $945.00 dollar value of all components of the sign, immediately prior to the storm, is not deemed credible nor is the figure of $335.00 in purported re- build costs. The essential point here, in addition to more new materials being used than were represented by the Petitioner to have been used, is that the sign was not configured after the repair work in the same way it was before the storm damage, when it had legal status as a nonconforming sign which was permittable. Florida Administrative Code Rule 14-10.007(6)(a)C states: The materials to be included in the replacement materials costs to re-erect the sign shall be all materials that would be used to return the sign to its configuration immediately prior to destruction, and shall include any material obtained from a source other than the sign itself, whether used, recycled, or repaired . . . . Based upon the testimony of the Department's witnesses, and particularly the evidence embodied in the photographs in the Respondent's evidence, the new materials included in the sign substantially exceed those stated in Mr. Crawley's testimony and in the Petitioner's evidence, including in the Construction Order. It is therefore determined that more than 50 percent of the value of the structural materials in the sign, immediately prior to destruction, was replaced with new materials. Thus, those materials would exceed 50 percent of the value of the structural materials in the sign as they existed immediately prior to destruction. Additionally, more than 50 percent of the upright supports of the sign structure was physically damaged (broken poles), such that normal repair practices of the industry would call for replacement of those broken supports. Rather than replacing three of the poles as the Petitioner's witnesses maintained, the sign was rebuilt with five new poles. Parenthetically it is thus noted that, under the provision of the proviso of the above-cited rule, at paragraph (6)(a), the sign may be deemed "destroyed" since more than 50 percent of its upright supports were damaged or broken.1/
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 a final order be entered by the Florida Department of Transportation revoking sign permit number AF251, and that the Notice of Intent to Revoke sign permit number BY334 be dismissed and that sign permit BY334 remain valid. DONE AND ENTERED this 19th day of January, 2007, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF 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 19th day of January, 2007.
The Issue The issue is whether Respondent engaged in an unlawful employment practice, discrimination based on age and/or national origin, and/or retaliation against Petitioner.
Findings Of Fact Stipulated Findings of Fact1 Petitioner,[Victor Bracamonte (Petitioner or Mr. Bracamonte)] is an [Hispanic] Peruvian man. His date of birth is September 14, 1955. Petitioner began working for Respondent, [Commercial Interior Contractor Corp. [(Respondent or CIC)] in Spring 2006 [on April 6, 2006] as a Superintendent. Respondent, a Florida corporation, has been in business since 1984. The Company is an interior finishing contractor, assisting private corporations and governmental entities with refinishing, renovations, or other projects. Eloise Gonzalez (Cuban; d/o/b- 8/17/62) is the founder and owner of Respondent. Ms. Gonzalez and three individuals work at Company's corporate office, which is located at 2500 N.W. 39th Street, Suite 100, in Miami. The rest of the Company's employees work at a contract [site] at the Miami International Airport("MIA"). In 2006, Respondent signed a contract with Parsons Odebrecht Joint Venture ("POJV") to perform certain general site requirement work related to the construction of new terminals and concourses at MIA. POJV is the general contractor that MIA assigned the overall task of building the new terminals. Respondent employees have worked on this project from 2006 through the present, acting as a support team for POJV with tasks such as lifting equipment, operating forklifts, and cleaning. Respondent employees at the POJV project are divided into two teams, with each team responsible for a different work area (one team in areas from Terminal B to Terminal C, and the other team in areas from Terminal C to Terminal D). Each team consists of Carpenters and General Laborers and is headed by a Superintendent. CIC also employs Operators at the POJV project, who drive a sweeper machine around the entire worksite and remove debris. Respondent does not have any employees at MIA who supervise the Superintendents, nor does the Company have anyone at the worksite that instructs the teams what needs to be done each day. The specific work of each of Respondent's teams on the POJV project is directed by management personnel from POJV. Ms. Gonzalez works out of the Company's corporate offices, which are approximately seven miles from MIA, and so she is not there to direct and control the daily activities of personnel on the POJV project. Ms. Gonzalez seldom visits the actual worksite, and estimates that she is there perhaps once every month or so. Ms. Gonzalez visits with POJV corporate personnel two or three times per month at their offices at MIA (which are in trailers at the airport), but this is at a location separate from the actual worksite. The purpose of those visits is to discuss general business items with POJV. Ultimately, Ms. Gonzalez relies on her Superintendents to be her eyes and ears at the worksite, and, of course, on POJV personnel (since they are the client and are directly involved in overseeing the work). As a result, decisions by Ms. Gonzalez to discipline and/or terminate employees are typically based on the information, recommendations, and/or requests of her Superintendents and/or POJV personnel. Since the POJV project takes place at the airport, employees have to be given clearance to work on the private property of MIA. Each employee must have various badges to access the airport and the project. For example, employees need an MIA Customs Identification badge, which gives them clearance to pass through the security area (. . . a separate commercial security area for workers, airport personnel, and other individuals providing service(s) to the airport), and a North Terminal Development badge, which gives them clearance to access the project itself. A Superintendent also needs a driver's badge, to allow them to drive a vehicle on private airport property. Respondent does not make the decisions about whether to give and/or take away a badge to anyone. The badges are issued by MIA (specifically, the Miami-Dade Aviation Department) and/or U.S. Department of Homeland Security. Respondent's employees meet at the employee parking lot at MIA in the morning, and each team drives to the worksite in a separate Company van. There are only a few Company employees who are allowed to drive the van(s). The vans travel from the parking lot, to the security area, and then to the worksite. Anyone driving the van at any time on airport grounds or anywhere else is required to follow any and all driving rules, such as following speed limits. On January 22, 2010, Petitioner was arrested at MIA by the Miami-Dade County Police. Petitioner was accused of stealing gas. He signed a Complaint/Arrest Affidavit on that same date. Petitioner's airport work badges were taken away by MIA as a result of his arrest. Petitioner has not worked for Respondent since the date of his arrest. Of the 24 current employees of Respondent, 10 of them are over the age of 40. Of these current employees, three of them are older than Petitioner: (1) Pedro Araujo (d/o/b - 6/7/54); (2) Moises Herrer (d/o/b - 7/11/53); and (3) Isidro Lopes (d/o/b - 7/6/48). One additional employee is only eight days younger than Petitioner: Edwin Torres (d/o/b - 9/22/55). Between Spring 2006 and January 2009 (the period of Petitioner's employment), the only other Peruvian employee terminated by Respondent was Marco Samanamud, whose employment was terminated in November 2008. Additional Findings of Fact2 Petitioner alleged that, in addition to discriminating against him based on age, Ms. Gonzalez discriminated against him because he is from Peru. He said he earned $25.32 an hour, when the prevailing rate for a superintendent was $31. Wages were set by the MIA aviation authority in the contract for services with CIC, not by Ms. Gonzalez. She has had contracts for work at the airport for twenty years. Before he worked for Respondent, Petitioner was employed by prior airport subcontractors doing the same kind of work for ten years. To explain why Ms. Gonzalez hired him but discriminates against Peruvians, Petitioner alleged that hiring him helped her get the contract for CIC. On November 18, 2008, Marco Samanamoud, who was also Peruvian, drove Petitioner in a CIC van, to a 1:30 p.m., eye doctor's appointment because he was going to have his pupils dilated. While he was still at the doctor's office, Petitioner received a call from Ms. Gonzalez who wanted to know who was driving the van. He told her that it was Marco Samanamoud. Marco Samanamoud, who is also Peruvian, was the only employee on their crew, other than Petitioner, who was allowed to drive the 12-passenger van. The van was equipped with a GPS e-mail alert notification system that had reported by e-mail that the van was going 88 and 95 miles an hour in streets that had a 60-mile-per- hour speed limit. Petitioner called Mr. Samanamoud who said he was back at work at MIA and denied that he had been speeding. Both he and the Petitioner questioned the accuracy of the GPS e-mail alerts because both were received at 2:16 p.m., from two different locations. They had no knowledge, however, about the frequency of the e-mail alert transmissions. Petitioner and Mr. Samanamoud both testified that they each tried to tell Ms. Gonzalez that it was a mistake and the GPS system could not be correct. Both said that, when they talked to her, she made derogatory comments about Peruvians, including having said something about not wanting to work with Peruvians, about being fed up with Peruvians, and that Peruvians had caused her too many problems. Based on Mr. Samanamoud's prior record of speeding and reckless driving, Ms. Gonzalez told Petitioner to fire Mr. Samanamoud. Petitioner refused Ms. Gonzalez' directive to terminate Mr. Samanamoud's employment with CIC until she prepared a written warning and threatened to fire both of them. Petitioner said he had no choice but to fire Mr. Samanamoud even though he believed that to be an unlawful act of discrimination based on national origin. CIC employees routinely borrowed gasoline-powered saws from other companies working at the airport. On January 22, 2009, the foreman for one of the companies called Petitioner and requested the return of one of the saws. Petitioner instructed a CIC employee, Roberto Santiesteban, who was driving the CIC van, to go outside the airport check point to return the saw. After he returned the saw, Mr. Santiesteban received a radio call from Petitioner telling him to pick up six POVJ workers to bring them to their work site. Petitioner said POVJ wanted the workers inside as quickly as possible because they were "already on the clock" earning $31.00 an hour. Mr. Santiesteban, who had returned the gas saw on the fifth level of the employee's parking deck, supposedly replied that he did not have room in the van for six workers who had tool boxes and ladders. Petitioner then told him to make room by taking Petitioner's car keys from the van, opening the trunk of Petitioner's personal vehicle and leaving the gasoline there. Petitioner's vehicle was parked in a remote area of the fourth deck where employees' cars were not supposed to be parked. When Petitioner was arrested on January 22, 2009, the police confiscated his MIA employee badges. Initially sympathetic to him, Ms. Gonzalez subsequently received an e-mail and read the police report that made her believe that Petitioner had been stealing gasoline for some time. After Petitioner was unable to work and was discharged, he was replaced by a person who is Cuban. After Petitioner's case was nolle prossed in April 2010, he asked Ms. Gonzalez to initiate an ID confiscation hearing to help him get the badges and she refused. Ultimate Findings of Fact The evidence supports a finding that Petitioner, Mr. Bracamonte, was ordered to terminate the employment of Mr. Samanamoud not because he was Peruvian, but because Ms. Gonzalez had a legitimate business interest in avoiding liability for his speeding and reckless driving. The evidence supports a finding that Petitioner, Mr. Bracamonte, was not the victim of discrimination based on age based on Stipulated Finding of Fact, paragraph 16. The evidence supports a finding that Petitioner, Mr. Bracamonte, was terminated from employment because he could not work on the MIA project after his badges were confiscated, not because of his age or because of his national origin. The evidence supports a finding that Ms. Gonzalez was not willing to help Petitioner get the badges necessary to work at MIA because she received information after his arrest that tended to convince her that Petitioner had been stealing gasoline over a period of time.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for relief in this case. DONE AND ENTERED this 29th day of December, 2010, in Tallahassee, Leon County, Florida. S ELEANOR M. HUNTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of December, 2010.
The Issue The issue in this case is whether Respondent, Anthony F. Garcia, committed the violations alleged in an Administrative Complaint issued by Petitioner, the Department of Law Enforcement, Criminal Justice Standards and Training Commission, and dated February 2, 2001, and, if so, what disciplinary action should be taken against him.
Findings Of Fact The Commission is charged with the responsibility for, among other things, certifying individuals for employment or appointment as a law enforcement officer and investigating complaints against individuals holding certificates as law enforcement officers in the State of Florida, pursuant to Section 943.3195, Florida Statutes (1997).2 At the times pertinent to this matter, Respondent, Anthony F. Garcia, was certified by the Commission as a law enforcement officer, having been issued Law Enforcement Certificate Number 44496 on September 7, 1979. Mr. Garcia served as a law enforcement officer with the Miami-Dade Police Department from June 1979 until his retirement on March 28, 2000. Mr. Garcia is now employed with the United States Department of Homeland Security. On August 11, 1998, Gail Bright, a reporter for a local Miami television station, went to a crime scene located in the Coral City area of Miami, Florida. Ms. Bright was accompanied by Lenny Yeoman, a cameraman for the station, and Kieran Baroody, an intern for the station. Upon arriving at the scene, Ms. Bright and a plain- clothes officer by the name of Cao had words over where the news team wanted to park their van. Within five or ten minutes after their discussion, Officer Garcia arrived in a marked police vehicle. Officer Garcia talked to Officer Cao, who told him he did not have any blank parking tickets with him, and therefore, asked Officer Garcia to write a parking ticket and place in on the van. Officer Garcia complied. As Officer Garcia was writing the parking ticket on the van, Mr. Yeoman, and then Ms. Bright, asked Officer Garcia what he was doing. Officer Garcia explained that he was writing a parking ticket because the van was parked too close to a fire hydrant. Mr. Baroody soon joined the discussion and eventually moved the van. Ms. Bright argued with Officer Garcia over the citation and at some point told Officer Garcia that she was personal friends with Carlos Alvarez, the Director of Public Safety for Miami-Dade, and suggested that he should not write the ticket.3 Officer Garcia told Ms. Bright essentially that he did not care for Director Alvarez, made some derogatory remarks about the Director, and suggested that Ms. Bright should prepare a story on the Director based upon derogatory information that Officer Garcia could provide to her. At some point in the conversation, Officer Garcia offered to rescind the parking ticket if Ms. Bright would prepare a story on the Director. Toward this end, Ms. Bright provided Officer Garcia her business card so that he could provide her with the information. Officer Garcia retrieved the copy of the ticket he had placed on the van. Officer Garcia rescinded the parking ticket, which he had issued as part of his official duties in an effort to gain an investigation of the Director of Public Safety, whom he disliked and wanted to harm. The evidence failed to prove that Officer Garcia intentionally executed a false affidavit or had been convicted of any felony or of any misdemeanor involving perjury or a false statement. Nor were any allegations of fact sufficient to sustain a finding of a violation of Section 943.1395(6) alleged in the Administrative Complaint.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Commission finding that Anthony F. Garcia violated Section 943.1395(7); dismissing the allegation that he violated Section 943.1395(6); and suspending his certification for a period of one year. DONE AND ENTERED this 26th day of July, 2004, in Tallahassee, Leon County, Florida. S LARRY J. SARTIN 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 26th day of July, 2004.
Findings Of Fact Stipulated facts: Respondent Division of Licensing received Petitioner Iaderosa's application of a Class "P" intern license on October 7, 1980. By letter to Petitioner dated November 13, 1980 Respondent stated "Your application for a Class "P" Detection of Deception Examiner/Intern license has been approved. This license will be issued upon submitting the items listed below. However, should your fingerprint card be returned by the FBI indicating that you have a previous arrest record, the Department of State reserves the right to revoke your license. Please forward the following for the issuance of your license: Fee $30 [and] Certificate of Insurance. Respondent received the requested license fee and certificate of insurance on or before April 14, 1981. Respondent notified Petitioner on June 4, 1981: "Your application for the above referenced license [Administrative Denial/Detection of Deception Intern Class 'P' license] has been denied pursuant to Chapter 493.575, Florida Statutes which states: ... 'The Department of State may take the same disciplinary actions based upon the same grounds as set forth in Chapter 493.319, Florida Statutes...'." Petitioner conducted polygraph examinations without a license. Petitioner Iaderosa was employed by the Southern Institute of Polygraph on October 10, 1980 immediately subsequent to graduation from its accredited detection of deception examiner's school. She had applied for an intern license prior thereto but had not been licensed by Respondent or received notification that her application had been approved. Her sponsor for the compulsory year of internship was Joseph M. Matthews, a licensed detection of deception examiner and the Director of the Southern Institute of Polygraph, who remained Petitioner's sponsor until April 17, 1981 when he notified Respondent of his withdrawal as her sponsor. The next month after her employment, on November 13, 1980, Petitioner received notification that her license application had been approved and would be issued upon receipt of a fee and a certificate of insurance. There was no mention of deficiencies under Section 493.565 or 493.566 relative to her application or license requirements: Petitioner commenced her employment, mistakenly believing her employer and sponsor would pay the required fee and send it to Respondent together with her certificate of insurance which had become effective September 8, 1980 (Respondent's Exhibit #4). She was provided business cards indicating that she was an examiner and account executive. She conducted polygraph examinations scheduled by her employer at the direction of and under the supervision of Matthews until she became familiar with the operation of the equipment and then conducted examinations without supervision. Petitioner left her employment with the Southern Institute in February or March of 1981 and interviewed for a job at three (3) other polygraph schools. It was brought to her attention through the search for other employment that she must have a license in her possession to conduct polygraph examinations. At that time she realized that neither she nor her employer had complied with the request to furnish the certificate and fee requested on November 13, 1980. Prior to April 14, 1981 Petitioner sent to Respondent the detection of deception intern fee of $30 together with a certificate of insurance previously requested. Petitioner gained employment with Deception Control, Inc., a business owned and operated by Charles G. Michaels, who notified Respondent on March 26, 1981 that he would sponsor Petitioner. Later, he emphasized by letter that Petitioner would not be administering examinations until she received her intern license from the Department of State. Subsequent to receipt of the fee and certificate of insurance on or before April 14, 1981 allegations were made to respondent Division of Licensing that Petitioner had removed confidential materials from the Southern Institute Of Polygraph at the time she left her employment. These allegations, together with the allegation that Petitioner had conducted polygraph examinations without a license, caused Respondent Division of Licensing to reverse its former approval of her application for licensure. On June 4, 1981 Respondent rescinded its letter of approval dated November 13, 1980 in which it had requested a fee and certificate of insurance and notified Petitioner that her application for licensure had been denied. Respondent contends that the request for license fee and certificate of insurance was a request to "supply additional information" which was not timely supplied and therefore the letter of denial was appropriate. At the hearing no evidence was produced to show that Petitioner removed materials from her former employer's offices or that she betrayed professional secrets and she denied the allegations.
Recommendation Officer recommends that the Respondent agency issue a detection of deception intern examiner's license to the Petitioner. County, Florida. Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 Filed with the Clerk of the Division of Administrative Hearings COPIES FURNISHED: William D. Ricker, Jr., Esquire Post Office Drawer 7028 Fort Lauderdale, Florida 33338 Assistant General Counsel Department of State R. A. Gray Building, Room 106 Tallahassee, Florida 32301 Department of State The Capitol
The Issue The issues are whether the Petitioner, Alice P. Whitehead, is indebted to the Department of Health and Rehabilitative Services (DHRS) for $1,362 and whether her lottery winnings should be withheld and applied to the debt.
Findings Of Fact On February 12, 1993, Whitehead submitted a claim to the Lottery based on a Play-4 ticket she held for a Lotto drawing. The ticket reflected that she was eligible for a prize of $2,500. DHRS certified to the Lottery that Whitehead owed the State $1,362.00. That sum represents an overpayment of food stamps and AFDC benefits to Petitioner. Pursuant to Section 24.115(4), Florida Statutes, the Lottery transmitted the prize to DBF. By letter dated March 12, 1993, DBF notified Whitehead that it was in receipt of her prize from the Lottery and that it intended to apply $1,362.00 of the award toward the unpaid food stamp and AFDC debt. Enclosed with the letter was State of Florida warrant number 2057985 in the amount of $1,138.00 payable to Whitehead. That warrant was partial payment of the lottery prize and represented the difference between the amount of the prize and the amount of the food stamp and AFDC debt that DHRS had certified as being due. In a letter received by DBF on March 31, 1993, Petitioner indicated she was unaware of any indebtedness to the state and requested a hearing. A referral was made to the Overpayment/Overissuance, Fraud and Recoupment Unit on June 23, 1980, for an overpayment of AFDC and an overissuance of food stamps to Whitehead. Additionally, a referral was made to the Overpayment/ Overissuance, Fraud and Recoupment Unit on October 30, 1979, for an overissuance of food stamps. Whitehead was notified of the overpayment of AFDC benefits and of the overissuance of food stamp benefits via notices dated August 27, 1980, and January 9, 1980. Whitehead was overissued food stamps in the amount of $750.00, and she received an overpayment of AFDC benefits in the amount of $623.00. Whitehead has paid $20 toward the original debt. The current balance due to DHRS on this debt is $750 for the food stamp overissuance and $612.00 for the AFDC overpayment for a total amount of $1,362.00. Whitehead does not dispute that she owes a debt to DHRS, but she does not want to pay it because she is unemployed and is caring for her 83-year-old mother, a victim of Alzheimer's disease. She says she has no income.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Banking and Finance enter a Final Order and therein: Confirm the debt of Alice P. Whitehead to Department of Health and Rehabilitative Services in the amount of $1,362.00. Withhold $1,362.00 from Whitehead's lottery winnings. Transmit that $1,362.00 to Department of Health and Rehabilitative Services in satisfaction of Whitehead's debt. DONE and ENTERED this 19th day of July, 1993, in Tallahassee, Florida. DIANE K. KIESLING 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 19th day of July, 1993. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 93-2662 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 Respondents 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: 1-8(1-8). COPIES FURNISHED: Alice P. Whitehead, Pro Se 510 West 19th Street Jacksonville, Florida 32206 Scott C. Wright Assistant General Counsel James C. Agazie Certified Legal Intern Office of the Comptroller The Capitol, Suite 1302 Tallahassee, Florida 32399-0350 Katrina M. Saggio Economic Services Attorney Department of Health and Rehabilitative Services 1317 Winewood Boulevard Building 6, Room 466 Tallahassee, Florida 32399-0700 Laura P. Gaffney Senior Attorney Department of the Lottery 250 Marriott Drive Tallahassee, FL 32399-4011
