Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: The Respondent, Sanwa Growers, Inc., owns and operates over the highways of the state of Florida a commercial vehicle identified as a 1987 Ford truck, VIN 9BFPH70P3HDM03333, Florida license number H1056W (vehicle). On November 13, 1990 the Respondent's vehicle while traveling on highway I-4 in Hillsborough County, Florida was stopped and weighed by the Department. The total weight of the vehicle was 24,100 pounds consisting of 10,540 pounds on the steering axle and 13,560 pounds on the rear axle. A Load Report and Field Receipt was completed which indicated the legal weight (declared gross vehicle weight) of the vehicle to be 19,999 with a tax class weight (gross vehicle weight) of 24,100 pounds which resulted in the vehicle being 4,101 pounds overweight. The Respondent was assessed a penalty of $0.05 per pound for each pound the truck was overweight which resulted in a total penalty assessed the Respondent of $205.05. The Respondent paid the penalty as assessed and was issued a Field Receipt. The gross vehicle weight (GVW) of the vehicle as declared by the Respondent in accordance with Section 320.01(12), Florida Administrative Code, on vehicle's registration certificate issued on September 19, 1990 was 19,999 pounds which was the legal weight indicated on the Load Report issued on November 13, 1991. On November 13, 1990 the GVW (legal weight) of the vehicle as declared by the Respondent was 19,999 pounds. The GVW of the vehicle as declared by the Respondent on the initial registration dated May 11, 1988 was 29,500 pounds. However, on the subsequent registration of the vehicle dated January 4, 1989, the declared GVW by the Respondent was 16,090 pounds which was the same as the net weight of the vehicle shown on the registration. Although the registration issued on January 4, 1989 expired on December 31, 1989, there was no evidence of a registration being issued upon expiration. The next registration that was issued subsequent to January 4, 1989 that is in evidence was issued on September 19, 1990 apparently for the purpose of increasing the GVW from 16,090 pounds to 19,994 pounds. This was the registration in effect at the time the vehicle was weighed on November 13, 1990. On November 15, 1990, two days after the weighing, the registration was corrected by increasing the GVW from 19,999 pounds to 29,500 pounds. There was insufficient evidence to show that the GVW set out in each of the registrations in evidence was not the GVW as declared by the Respondent at the time of issuing the registration or that the issuing agency incorrectly listed the GVW as declared by the Respondent on any of the registrations in evidence. On November 13, 1990 the Respondent's vehicle was 4,101 pounds overweight when stopped and weighed in Hillsborough County, Florida on I-4 and the calculation of the penalty ($0.05 x 4,101 pounds - $205.05) is correct.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is, RECOMMENDED: That the Department enter a Final Order finding the Respondent subject to the penalty as assessed and denying its request for refund of the penalty. DONE and ENTERED this 9th day of October, 1991, in Tallahassee, Florida. WILLIAM R. CAVE 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 9th day of October, 1991. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 91-3727 The following contributes my specific rulings pursuant to Section 120- 59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in the case. Rulings on Proposed Finding of Fact Submitted by the Petitioner Covered in the Preliminary Statement but adopted in substance as modified in Findings of Fact 1 through 3. Adopted in substance as modified in Finding of Fact 1. Adopted in substance as modified in Finding of Fact 8. Adopted in substance as modified in Findings of Fact 2 and 4. - 6. Adopted in Finding of Fact 9. Rulings on Proposed Findings of Fact Submitted by the Respondent Respondent did not submit or file any proposed findings of fact. COPIES FURNISHED: Charles G. Gardner, Esquire Department of Transportation 605 Suwanee Street, MS-58 Tallahassee, FL 32399-0458 Wendy Wheelock Qualified Representative Sanwa Growers, Inc. 5107 State Road 674 East Wimauma, FL 33570 Ben G. Watts, Secretary Department of Transportation 605 Suwanee Street Tallahassee, FL 32399-0458 Thornton J. Williams, General Counsel Department of Transportation 562 Haydon Burns Building Tallahassee, FL 32399-0458
The Issue The issue to be resolved in this proceeding concerns whether the Petitioner was the victim of discrimination by the Respondent because of an alleged disability and whether the Respondent retaliated against the Petitioner for filing a complaint of discrimination with the Equal Employment Opportunity Commission (EEOC).
Findings Of Fact The Petitioner Gregory L. Stubbs, was employed by the Respondent Department as a maintenance yard Welder for approximately five and one-half years. In 1993, he suffered a back injury on the job, resulting in chronic pain. On January 28, 1997, the Petitioner accepted a position with the Department's Office of Motor Carrier Compliance (MCC) as a Weight Inspector. The Weight Inspector position accepted by Mr. Stubbs was an open, advertised position at the time, for which the Department accepted applications and conducted interviews, including that of Mr. Stubbs. He applied for the position, was interviewed and selected for the position. When Mr. Stubbs was offered the Weight Inspector position, he was advised that appointment to the position would amount to a demotion from his current position with the Department, in the sense that he would have to accept a base rate of pay of 5 percent less than he had been earning. He voluntarily accepted that position and the reduction in pay. The pay for the position was set when the position was released for hire and was not changed because Mr. Stubbs elected to apply for the position and became the selected candidate hired for the position. Weight Inspectors work at fixed-scale weigh stations where trucks are weighed. Mr. Stubbs was assigned to the "Northbound scales" on Interstate 95 near Yulee, Florida in Nassau County. Weight Inspectors are responsible for enforcing the motor vehicle weight laws, writing citations for violations, as well as writing citations for fuel tax violations and enforcing the dimensional limits on motor vehicles. The job involves weighing and measuring vehicles, writing citations, answering the telephone, operating a computer and checking vehicle tags and registration numbers. The job does not involve any heavy lifting, loading or any physically demanding tasks. Weight Inspectors employed by MCC work alone at the scale houses, except when a new inspector is present for training. Mr. Stubbs was able to perform these duties and, when present for work, performed them well. Mr. Stubbs was supervised by Sgt. Robert Bryan. Sgt. Bryan participated in interviewing Mr. Stubbs and in selecting him for the position. During the interview process Sgt. Bryan informed Mr. Stubbs of the Weight Inspector's job duties. Mr. Stubbs never informed Sgt. Bryan that he would have any trouble performing the job duties. Mr. Stubbs also did not tell Sgt. Bryan, at that time, that he had trouble with his back or that he would have trouble reporting for work on time. Sgt. Bryan later learned that Mr. Stubbs had trouble with his back, but did not consider the problem to restrict Mr. Stubbs' ability to perform the Weight Inspector job. Weight Inspectors are required to report for work on time. The failure to report for work timely, results in closure of the scale facility. When a Weight Inspector has to be late or is unable to report for work before the beginning of a shift, he is required to advise the supervisor before the scheduled time for the shift. This requirement is contained in the Department's published Conduct Standards. Copies of the Department's published Conduct Standards are provided to all Weight Inspectors that work for MCC, including the Petitioner. Department employees are advised that unexcused tardiness or absences will be grounds for disciplinary action and the Petitioner was so informed. On October 19, 1997, Sgt. Bryan counseled Mr. Stubbs about failing to notify him of an absence from work. Sgt. Bryan stressed the need for Mr. Stubbs to contact him as soon as he became aware that he would not be able to timely report for work. On October 12, 1998, Sgt. Bryan counseled Mr. Stubbs for failing to report to work on time. Sgt. Bryan again stressed the need for Mr. Stubbs to timely report to work. On December 31, 1998, Mr. Stubbs acknowledged receipt of a Memorandum from Lt. Vicki D. Thomas concerning tardiness and the use of leave. Lt. Thomas is the Jacksonville Field Office supervisor for MCC and is Sgt. Bryan's immediate supervisor. Lt. Thomas' Memorandum requires Weight Inspectors to contact both the main MCC office and the inspector who they are scheduled to relieve whenever they will be tardy or absent. On January 13, 1999, Sgt. Bryan again counseled Mr. Stubbs about failing to report to work as scheduled In 1998, Mr. Stubbs filed a grievance through his union, the American Federation of State, County and Municipal Employees (AFSCME). The subject of the grievance was the reduction in pay Mr. Stubbs' sustained by accepting employment with MCC. He sought re-instatement of the pay he had received as a Welder. Lt. Thomas received the AFSCME grievance on August 17, 1998, and responded to it by noting that the grievance was untimely and that Mr. Stubbs had voluntarily accepted the Weight Inspector position and attendant reduction in pay. Although the grievance was unsuccessful Mr. Stubbs continued his employment with MCC. On or about February 9, 1999, the Petitioner filed a Charge of Discrimination with the EEOC alleging that the Department had discriminated against him on the basis of race and disability by reducing his pay when he accepted the Weight Inspector position. On May 13, 1999, the EEOC advised the Petitioner that it could not investigate his charge because it was not filed within the time required by law. A copy of the EEOC Dismissal and Notice of Rights was provided to the Department. A copy of the EEOC Notice was also sent to Mr. Stubbs at the Department's address. This copy was mistakenly opened by the Department and then forwarded to Mr. Stubbs. Sgt. Bryan became aware of the complaint when the letter was opened in the Department offices, but the complaint was not a factor in his supervision of Mr. Stubbs. On April 2, 1999 through June 25, 1999, the Petitioner was absent from work. He exhausted all of his sick leave and was authorized additional, unpaid leave under the Family Medical Leave Act. On June 25, 1999, Mr. Stubbs returned to his Weight Inspector assignment. He was scheduled to work on July 2, 7, 8, 9, 13 and 16, 1999. He did not report for work on those days. On July 8, 1999, he failed to advise Sgt. Bryan that he would not be reporting for work. Sgt. Bryan checked with other supervisors to see if Mr. Stubbs had advised anyone else that he would be absent, and learned that Mr. Stubbs had not contacted them. Lt. Thomas issued a written reprimand to the Petitioner for these absences. The reprimand was issued because he was absent from work without authorized leave and failed to follow the Department's rules concerning advance approval for leave. Neither the Petitioner's prior complaint to the EEOC or his back problem motivated Lt. Thomas to issue the reprimand. On July 20, 1999, Sgt. Bryan spoke with Mr. Stubbs about a cash penalty that Mr. Stubbs had collected on a "load report." Weight Inspectors who collect cash penalties are required to convert the cash funds to a money order or cashier's check within 48-hours after the date the report is issued. Weight Inspectors are allowed to use work time to convert cash penalties to money orders or cashier's checks. Sgt. Bryan asked the Petitioner about the cash because the load report involved was apparently issued six days earlier. The Petitioner told Sgt. Bryan that he had not converted the cash to a money order, that he had the cash with him and that he believed the inquiry was ridiculous. Sgt. Bryan then had to go to Mr. Stubbs's doctor's office to retrieve the cash penalty. Mr. Stubbs received a suspension for his handling of the cash penalty and related behavior. Lt. Thomas investigated the allegations contained in the suspension letter and believed them to be correct. She prepared the letter for signature. Neither Mr. Stubbs' prior complaint to the EEOC or his back problem motivated Lt. Thomas to issue the suspension. During the period from July 21, 1999 to August 6, 1999, the Petitioner was repeatedly absent and late to work. At 12:25 p.m., on August 1, 1999, the Petitioner advised Lt. Thomas that he had not worked as scheduled on July 31, 1999, and had not reported for work on the morning of August 1, 1999. On August 26, 1999, the Petitioner received a suspension for his unauthorized and excessive absences. Lt. Thomas investigated the allegations contained in the suspension letter, believed them to be correct and prepared the letter for signature. Neither the Petitioner's prior complaint to the EEOC or his back problem motivated Lt. Thomas to issue the suspension. The Petitioner was advised that any further violations of the Department's Conduct Standards would result in more severe discipline, up to and including dismissal. The Petitioner was scheduled to work from October 11 through October 15, 1999, but did not report for work on those days. He did not contact Sgt. Bryan or Lt. Thomas to advise them that he would not be at work. Lt. Thomas and Sgt. Bryan checked with other MCC supervisors and staff but were not advised that Mr. Stubbs had contacted anyone. Sgt. Bryan and Lt. Thomas did not hear from Mr. Stubbs from October 11 through October 15, 1999, and had not authorized his absences. The Department dismissed Mr. Stubbs from employment for those unauthorized absences. The Petitioner was apparently ill during that period but did not provide the Department with a doctor's note until approximately six weeks after the absences. The doctor's note does not indicate that the Petitioner was unable to call his supervisors to report his anticipated absence. The Petitioner did not establish that he was unable to report to his supervisors as required. The Department's discipline of the Petitioner and the ultimate decision to dismiss him from the Department were not motivated by Mr. Stubbs' prior complaint to the EEOC. Although some of his absences from work may have resulted from his back injury, the evidence does not establish that all of his absences were related to his injury. He was absent for material amounts of time in excess of his available leave. In 1999, he exhausted his accrued leave and used twelve weeks of unpaid leave under the Family Medical Leave Act. After returning from family medical leave, he continued to be absent for a significant period of time. There was no showing that additional leave would enable Mr. Stubbs to return to work on a regular basis. Additionally, he failed to notify his superiors in advance of his absences as required and instructed.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witness and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the Florida Commission on Human Relations denying the Petition in its entirety. DONE AND ENTERED this 3rd day of October, 2002, in Tallahassee, Leon County, Florida. 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 Clerk of the Division of Administrative Hearings this 3rd day of October, 2002. COPIES FURNISHED: Robert M. Burdick, Esquire Department of Transportation 605 Suwannee Street Haydon Burns Building, Mail Station 58 Tallahassee, Florida 32399-0458 Gregory L. Stubbs 3563 North Hampton Cove Court Jacksonville, Florida 32225 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
Findings Of Fact Respondent, Parker Construction d/b/a Robert's Components, was operating a commercial vehicle, traveling north on Interstate Highway 75, on March 27, 1991. The truck stopped at the Department's weight scales located in the area of White Springs, Florida. The Department's Inspector checked the vehicle registration handed to him by the driver. The tag registration was for a valid Georgia tag in the PF category. The PF category allows for a maximum gross vehicle weight of 30,000 pounds. The total weight of Respondent's truck on March 27, 1991, was 72,180 pounds. The total weight exceeded its registered weight by 42,180 pounds. Respondent was assessed a statutory penalty of five cents a pound for all weight over the commercial vehicle's registered gross vehicle weight of 30,000 pounds. At five cents a pound, the penalty assessed was $2,109.00. Robert Parker, president and owner of Parker Construction verified that the truck was registered in the PF category. Respondent was in the process of obtaining an IRP tag which would have allowed him to operate the truck at the weight it was carrying. Mr. Parker had no intent to purposely operate an overloaded truck and this was the first violation he had ever incurred since buying the truck. When Mr. Parker contacted a weight inspector with DOT, he was advised that if he wrote a letter to the Review Board advising them of the above facts, the fine would probably be reduced. Mr. Parker was also told that the decision rested with the Review Board. Mr. Parker followed the officer's advise. However, his fine was not reduced.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended: RECOMMENDED that a Final Order be entered finding that the penalty of $2,109.00 was correctly assessed against Respondent, pursuant to Section 316.545, Florida Statutes, and that Respondent's request for a refund be denied. DONE and ORDERED this 3rd day of March, 1992, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER 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 3rd day of March, 1992. COPIES FURNISHED: Vernon L. Whittier, Jr., Esquire Assistant General Counsel Department of Transportation 605 Suwannee Street, M.S. 58 Tallahassee, Florida 32399-0458 Robert Parker Robert's Components P. O. Box 2523 La Grange, Georgia 30241 Ben G. Watts, Secretary ATTN: Eleanor F. Turner, M.S. 58 Department of Transportation 605 Suwannee Street, M.S. 58 Tallahassee, Florida 32399-0458 Thornton J. Williams General Counsel 562 Haydon Burns Building Tallahassee, Florida 32399-0458
The Issue The issue is whether Respondent failed to maintain the nutritional status of two residents, as required by 42 Code of Federal Regulations Section 482.25(i), so as to justify the imposition of a conditional license rating upon Respondent's skilled nursing facility, pursuant to Section 400.23(7)(b), Florida Statutes, and an administrative fine of $2500, pursuant to Section 400.23(1)(b), Florida Statutes.
Findings Of Fact At all material times, Respondent has owned and operated a skilled nursing facility located at 7300 Del Prado South in Boca Raton. On August 2, 2001, Petitioner completed a survey of the facility. The surveyors cited Respondent for Tag 325, which they classified as a class II (state) or Level G (federal) deficiency. Tag 325 concerns two residents: Resident #9 and Resident #18. The following four paragraphs restate the stipulation into which the parties entered at the hearing. Resident #9 was admitted to the facility on May 22, 2000, with the following diagnoses: stroke, pneumonia, stage III pressure sore at the coccyx, hypothyroidism, urosepsis diabetes, tracheotomy, respiratory dependency on a ventilator, and nutritional dependency on a percutaneous endoscopic gastronomy (PEG) feeding tube. At all times, Resident #9 was wholly dependent on internal feeding for 100 percent of his nutritional needs. At the time of the survey, Resident #9 required Glucerna at one-half strength at the rate of 60 cc hourly plus a supplemental protein powder. At the time of the survey, the coccyx of Resident #9 had a stage III wound, measuring 0.16 inches by 0.08 inches by 0.08 inches. A dietary note states that the amount of feeding for Resident #9 was below his estimated needs. However, the management of Resident #9's feeding was problematic due to his gastrointestinal problems. Resident #18 was admitted to the facility with the following diagnoses: pneumonia, dehydration, fever, atrial fibrillation, and nutritional dependence on PEG tube feeding. A dietary assessment dated July 17, 2001, did not address Resident #18's alleged seven-pound weight loss. Nothing in the clinical records for Resident #18 indicates that the alleged seven-pound weight loss was planned. Resident #18 was admitted to the facility on January 19, 2001 at 78 years of age. At that time, Respondent's staff completed a Nutrition Risk Assessment. The Nutrition Risk Assessment determined that Resident #18's desirable weight range was 128-156 pounds. At admission, Resident #18 weighed 121.5 pounds. According to Respondent's weight log for Resident #18, he weighed the following on the indicated dates in 2001: January 24--121 pounds; January 30--122.2 pounds; February 7--121 pounds; February 14--123 pounds; February 21--119 pounds; February 28--119.4 pounds; March 4--119 pounds; April 4--120 pounds; April 11--122 pounds; May 4--128 pounds; June 6--129 pounds; and July 4--122 pounds. Resident #18's weight decreased by 5.4 percent from June 6, 2001, to July 4, 2001. However, the record does not suggest that this weight loss evidenced any nutritional problems. To the contrary, for 2001, Resident #18's normal weight approximated 122 pounds. As noted in the guidelines to 42 Code of Federal Regulation Section 483.25(i), the desirable weight range stated for Resident #18 is approximate because "ideal body weight charts have not been validated for the institutionalized elderly." Thus, the guidelines warn that "weight loss (or gain) is a guide in determining nutritional status. An analysis of weight loss or gain should be examined in light of the individual's former life style as well as current diagnosis." The guidelines offer "[s]uggested parameters for evaluating significance of unplanned and undesired weight loss": five percent over one month is "significant loss" and over five percent over one month is "severe loss." Over a five-month period, Resident #18 gained one pound. Petitioner implicitly places considerable emphasis upon the 128-pound minimum desirable weight range for Resident #18, even though the guidelines suggest caution in establishing ideal weights for the institutionalized elderly. Reliance upon this minimum desirable weight allows Petitioner to ascribe significance to the loss between June 6 and July 4 of the weight gained between April 11 and May 4. However, the record fails to suggest that Resident #18 suffered any nutritional problems for the first two and one-half months of his residency at the facility, when he consistently weighed 119-122 pounds. The record likewise fails to suggest that Resident #18's gain and loss of seven pounds over a three- month period was indicative of any nutritional problems. This short-term change in Resident #18's weight appears either to have been a harmless anomaly or, as Respondent suggests, a measurement error. Evidence supportive of a measurement error is found by comparison of the weight log entry for May 4, which marked the first time Resident #18 weighed as much as 128 pounds, with the Dietary Enteral Assessment for May 2, which showed that Resident #18 weighed only 123.6 pounds two days earlier. Although the latter source documented a weight of 129 pounds on June 6, which corresponds exactly with the data from the weight log, the unlikelihood that Resident #18 gained 4.4 pounds over two days suggests measurement error, such as by using different scales. Resident #9 presents a more complicated case. She was 69 years of age at the time of admission, but suffered from complex medical problems, including serious gastrointestinal difficulties that interfered with her nutrition. At admission, Resident #9, a quadriplegic, was five feet, four inches, tall and weighed 185.4 pounds, according to her Nutrition Risk Assessment, or 191.5 pounds, according to her weight log. According to her Nutrition Risk Assessment, Resident #9's desirable weight range was from 108-132 pounds. Notwithstanding any uncertainty concerning the ideal body weights for the institutionalized elderly, Resident #9 was obese and remained so during the period at issue. Resident #9's Nutrition Risk Assessment deletes the portion of the printed form stating that Resident #9 would suffer "moderate risk" to her nutritional status if she were to lose less than 5 percent of total body weight within one month, less than 7.5 percent of total body weight within 90 days, or less than 10 percent of total body weight within six months. An updated Nutrition Risk Assessment dated June 1, 2000, notes that Resident #9 had gained six pounds, but does not delete the "moderate risk" parameters concerning rates of weight loss. Resident #9 experienced several significant weight losses while a resident at the facility. According to her weight logs, Resident #9 weighed 206-208 pounds from June 7 through August 9, 2000. On August 20, 2000, she weighed 217 pounds, and she gained two more pounds through September 13, 2000. Between September 13 and 27, Resident #9 lost 13 pounds. From September 27 to October 5, Resident #9 regained four pounds to 210 pounds. She weighed within four pounds of 210 through October 25, at which time she weighed 207.4 pounds. Petitioner contends that the first significant weight loss was from 214 pounds on October 18, 2000, to 191.0 pounds on November 14 and 15, 2000, which is a loss of ten percent of body weight within one month. It is also a loss of ten percent of body weight within three months, and the loss of merely one-half pound within six months. Although no one would opine that Resident #9 were healthier at 200+ pounds than at 191 pounds and her weight, over six months, did not change, Respondent must maintain Resident #9's nutrition at all times within the six months in question. However, the improved health at a lower weight and absence of change from admission weight are factors that must inform the determination whether Respondent maintained Resident #9's nutritional status. Petitioner contends that the next two significant weight losses occurred in December 2000 and January 2001. According to the weight log, Resident #9 weighed 184 pounds on December 6, 187 pounds on December 15, 185.4 pounds on December 20, and 186 pounds on December 28. Resident #9 thus lost seven percent of her body weight between November 8 and December 6. Resident #9 continued to lose weight in January 2001. She weighed 181.8 pounds on January 3, 175 pounds on January 10, 178 pounds on January 17, 177.6 pounds on January 24, and 176 pounds on January 30. Between the end of December and end of January, Resident #9 lost 5.4 percent of her body weight. Between December 15 and January 10, she lost 6.4 percent of her body weight. For the three months ending at the end of January, Resident #9 lost 15.1 percent of her body weight, and for the six months ending at the end of January, Resident #9 lost 15.4 percent of her body weight. On February 14, Resident #9 weighed 171.8 pounds, and on March 28 she weighed 172.4 pounds; in between, she weighed more, but never over 179 pounds. On April 4, Resident #9 weighed 167 pounds, but on April 18 and 25, she weighed, respectively, 173 and 174 pounds. Petitioner contends that the next significant weight loss was in April 2000 when she lost 6.2 percent of her body weight between March 7 and April 4. From May 2 through June 13, Resident #9 weighed from 174-178 pounds. On July 3 and July 18, she weighed 167.4 pounds and 165 pounds, respectively, but, on July 11, she weighed only 137.6 pounds. The sudden loss of 30 pounds over eight days followed by the gain of 28 pounds over the next seven days-- given a significant history of much more modest weight changes-- suggests again measurement error. This time, Petitioner seems to concede the point as in its proposed recommended order it contends only that Resident #9 suffered a six percent weight loss in July, which is the weight loss from June 6 to July 3. Despite her obesity, none of Resident #9's weight loss was planned. Among her many gastrointestinal conditions was gastroparesis, which is the impaired ability of the stomach to transport food as part of the normal digestive process, and paralytic ileus, which is the impaired ability of the intestinal tract to transport food as part of the normal digestive process. These serious digestive disorders, as exacerbated by the effect of Resident #9's diabetes on her digestive capabilities, contributed to vomiting, constipation, diarrhea, and, on at least one occasion, the aspiration of feces, which necessitated the suctioning of feces from Resident #9's mouth. At all times, Respondent's staff also had to manage the abdominal distention caused by these digestive disorders so that Resident #9's ventilator-dependent respiration was not compromised; sometimes, maintaining respiratory function required the reduction of nutrition. At other times, Resident #9's veins, already weakened by various diseases, precluded intravenous feeding. In December 2000, Resident #9 suffered a cardiac event; Resident #9's husband, who held a health-care power of attorney for his incapacitated wife, declined the suggestion of outside health care providers that Resident #9 be admitted to a hospital. Respondent's staff tried dozens of interventions, including different nutritional formulas and feeding regimes, to deal with the ever-changing digestive problems that Resident #9 presented. Unable to tolerate bolus feedings, Resident #9 received small frequent feedings, which were easier for her to digest. Unable to tolerate the prescribed caloric intake, staff reduced nutritional levels to the maximum that Resident #9 could tolerate. When Resident #9 became unable to tolerate an intravenous port, staff decided to resort to a PIC line, which penetrates less deeply into the vasculature. However, Resident #9's poor vascular condition and her husband's ongoing preference to avoid more invasive treatment options limited the utility of this option. A registered nurse practitioner working under the supervision of Resident #9's treating physician saw Resident #9 at least as often as every one to two weeks from September 2000 through the August 2001 survey. At times, under the nurse's supervision, the only relief available for Resident #9's intractable gastrointestinal problems was to allow the gut to rest by reducing foods and fluids. The nurse and physician also addressed Resident #9's hypothyroidism, which contributed to a sluggishness. Thus, while managing direct gastrointestinal problems, they were also trying to convert Resident #9 to a new, more active thyroid state--a process that explains some of the weight loss. Overall, Resident #9's weight loss, though unplanned, was not unexpected. Her health care providers properly accepted the weight loss as a secondary, unavoidable issue, as they struggled to reestablish crucial cardiopulmonary, gastrointestinal, and endocrinal functions. Respondent's staff and outside health care providers always monitored all reductions in nutritional levels, as they pursued other, more crucial treatments. Her new weight range ultimately contributed to her health. Petitioner has failed to prove by a preponderance of the evidence that Respondent at anytime failed to maintain acceptable levels of nutritional status for Resident #9 or Resident #18.
Recommendation It is RECOMMENDED that the Agency for Health Care Administration enter a final order dismissing the Administrative Complaint in DOAH Case No. 01-4331 and the Administrative Complaint in DOAH Case No. 02-0674. DONE AND ENTERED this 3rd day of July, 2002, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of July, 2002. COPIES FURNISHED: William Roberts, Acting General Counsel Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3431 Tallahassee, Florida 32308 Virginia A. Daire, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3431 Tallahassee, Florida 32308 Nelson E. Rodney Assistant General Counsel Agency for Health Care Administration 8355 Northwest 53rd Street, First Floor Miami, Florida 33166 Karen L. Goldsmith Alex Finch Goldsmith, Grout & Lewis, P.A. Post Office Box 2011 Winter Park, Florida 32790
The Issue The issue for consideration in this matter is whether the Respondent violated the weight limitations for truck traffic over a low limit bridge on SR 850 in Palm Beach County, Florida on November 12, 1991, and if so, what is the appropriate penalty.
Findings Of Fact At all times pertinent to the issues herein, the Petitioner, Department of Transportation, was the state agency responsible for enforcing the state statutes involving commercial carrier weight compliance in this state which it does through its Office of Motor Carrier Compliance staffed with uniformed certified law enforcement officers who have the authority to cite drivers and owners of commercial vehicles which violate the load limits on the streets and highways of this state. On November 12, 1991, at approximately 2:30 PM, Officer Roy Neff stopped the Respondent's open board truck for crossing the low limit bridge located on State Road 850 in North Palm Beach, Florida, while apparently overloaded. The truck was carrying a load of drywall sheets and stucco. Officer Neff weighed the vehicle with the Department's portable scales he carried with him. These scales are calibrated for accuracy every 6 months. He utilized the standard Department weighing procedure which calls for a weight under each axle combined to give a total vehicle weight. This vehicle weighed 68,000 pounds loaded, according to this procedure used. Because this particular bridge was allowed no more than 26 tons, (52,000 pounds), of weight for a vehicle in this category, (non-trailer with 2 axles), Officer Neff cited the Respondent's driver for an overweight of 16,000 pounds. Since overweight is penalized at 5 per pound, the penalty assessed was $800.00. The approach to this bridge was clearly marked at several locations with signs indicating the maximum weight permitted for this bridge was 26 tons. These signs were located at sites which were far enough away from the bridge (1 mile and 1/2 mile) to give a driver ample opportunity to turn around or to take an alternate route to his destination on roads situated between the signs and the bridge. When the citation was issued here, the driver posted an acceptable bond and the vehicle was released. Respondent does not deny its vehicle as loaded exceeded the state's weight limitations for this bridge. However, it contends that the amount of overweight was less than that determined by officer Ness and it therefore overpaid the penalty by $252.30. Respondent bases this calculation on what it claims was the load on the truck at the time, multiplied by the weight per piece as provided by the manufacture of the product. In support of its claim, Respondent offered a handwritten, self-made list of weights purportedly taken from manufacturer furnished documents. These weights are then utilized in a computation of total load weight based on another handwritten list of materials, reportedly on the truck at the time, which was reconstructed from the delivery ticket for that trip approximately one week or so after the citation was issued. The weakness of this evidence is compounded by the fact that there is no weight in the "manufacturer's" list for the 30 sheets of 14 foot long drywall which Respondent claims weigh a total of 4,284 pounds. There is also no source for the 6,000 pounds of stucco. Presumably, the "75 stucco" relates to 75 bags at 80 pounds per bag. No doubt Respondent's protestations of overpayment are honestly made and made with good intentions. However, its evidence in support of its claim does not outweigh the evidence that the Department scales used to conduct the inspection here were calibrated for accuracy every 6 months. There is no evidence to indicate either that they were not accurate when used or that the weighing procedures followed were improper.
Recommendation Based on the foregoing Findings of Fact and Conclusions of law, it is, therefore: RECOMMENDED that a Final Order be entered assessing a civil fine in the amount of $800.00 against the Respondent, Delta Building Supplies. RECOMMENDED this 20th day of July, 1992, in Tallahassee, Florida. COPIES FURNISHED: Vernon L. Whittier, Esquire Department of Transportation 605 Suwannee Street, MS - 58 ARNOLD H. POLLOCK, 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 20th day of July, 1992. Tallahassee, Florida 32399-0458 Tim Czencz Delta Building Supplies 12951 SW 124th Street Miami, Florida 33186 Ben G. Watts Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0458 Thornton J. Williams General Counsel Department of Transportation 562 Haydon Burns Building Tallahassee, Florida 32399-0458
The Issue Should the Department of Transportation (Department) grant Petitioner Ronnie Forrest's connection application number C-13-021-93 for a permit to construct a driveway and acceleration/deceleration lanes, to provide access to U S 19 (S R 45 and 55) for Petitioner's proposed development of parcel identified in plans as Site B? Should the Department grant Petitioner's connection application number C-13.022-93 for a permit to construct two driveways to provide separate ingress and egress to U S 19 (S R 45 and 55) and U S 41 (S R 55) for Petitioner's proposed development of parcel identified in the plans as Site A?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: At all times pertinent to this proceeding, the Department was the state agency responsible for regulating vehicular access and connections to or from the State Highway System in accordance with Sections 335.18 through 335.188, Florida Statutes, known as the State Highway System Access Management Act. Petitioner proposes to develop two parcels of land located in the functional area of the interchange of S R 45 and 55 (U S 19/41/301) in Manatee County, Florida. The parcels of land are designated on the site plans as Site A and Site B. The functional area of the interchange is the area within which a driver is expected to react to and make decisions concerning traffic. Site A comprises approximately seven acres. Petitioner proposes to construct a four thousand square foot convenience store, restaurant with gas pumps, truck diesel pumps, a car wash and accompanying parking for cars and trucks. Petitioner's Connection Application for permit number C-13-022-93 seeks authorization from the Department to construct two driveways for Site A which are to serve as separate ingress and egress points for vehicles entering and leaving Petitioner's proposed development. The ingress to Site A is proposed to be located on the east side of the parcel where northbound U S 19 diverges from northbound U S 41. The egress from Site A is proposed to be located on the west side of the parcel where southbound U S 19 and U S 41 merge. Site B comprises approximately four acres. Petitioner proposes to construct a six thousand square foot convenience store, restaurant, gas station, truck fuel pumps, car wash and accompanying parking for cars and trucks. Petitioner's Connection Application for permit number C-13-021-93 seeks authorization from the Department to construct one driveway and acceleration/deceleration lanes for ingress/egress for Site B. The proposed driveway location is at southbound U S 19 approximately across from 43rd Street Boulevard, West. There is at least one motel within close proximity of the proposed developments for Site A and B which presently offers room accommodations and parking for truckers. The proposed developments for Site A and B are neither as large as, nor offer as many amenities as, the traditional truck stop. However, the proposed developments for Sites A and B provide amenities such as restaurants, truck diesel fueling and truck parking areas. Therefore, due to the available amenities, the traffic composition - which includes large truck traffic - on U S 19, 41 and 301 and the motel accommodations, large trucks will be attracted to, and will use, the facilities proposed for Sites A and B. The proposed location of Site A's ingress or entrance driveway is limited by: (a) the existence of a limited access right of way line south of the existing driveway; (b) the existence of separate property to the north; and (c) grade separation of approximately 20 feet which occurs to the north at the departure of U S 41 into U S 19 overpass. The proposed location of Site A's egress or exiting driveway is limited by: (a) the existence of limited access right of way line approximately 30 feet to the south; (b) wetlands encroachment to the north; and (c) less available sight distance further north of the proposed egress location. The reason for less available sight distance at this location is due to: (a) the curvature of Site A; (a) the speed limit; and (c) the merger of U S 41 and U S 19 southbound traffic. Given the current configuration and traffic geometry, the proposed ingress and egress to parcel A are located in the most desirable positions possible from a traffic operational standpoint. The proposed location of Site B's ingress/egress is a driveway approximately across from 43rd Street Boulevard, West, on southbound U S 19 before it merges with southbound U S 41. A left in, left out driveway is proposed at this location. The operation of the two sites as proposed, individually or combined, will result in the generation of increased automobile traffic and large heavy truck traffic. The increased automobile and large heavy truck traffic entering and exiting the sites will create traffic hazards within the functional area of the interchange. Through traffic in the travel lanes within the functional area of the interchange travels at speeds of 55 to 60 miles per hour. Automobile and truck traffic accelerating and decelerating to enter or exit the sites will create significant speed differentials within the functional area of the interchange. For example, large heavy trucks will not have sufficient acceleration lane distance as they exit Site A or Site B to achieve the same speed as the through traffic which will create high speed differentials within the functional area of the interchange. The speed differentials in the functional area of the interchange will increase the accident rate within the functional area of the interchange, particularly truck/through traffic accidents. Traffic will be required to enter and exit the sites at points along the roadways within the functional area of the interchange where traffic is already required to execute a significant amount of weaving. As proposed, the sites will increase the area and number of conflicts within the functional area of the interchange. This in turn, will increase traffic weaving. Increase in the conflict points within the functional area of the interchange degrade the safe operation of the interchange. The sites as proposed, will increase U-turn volume at the median opening south of Site A. Large heavy trucks attempting this U-turn maneuver will encroach into the northbound travel lanes of U S 41. Additionally, since this U-turn maneuver requires a significant gap in through traffic, trucks will delay btheir U-turn maneuver causing queuing in the southbound left turn lane south of Site A. This U-turn maneuver will significantly reduce the available weave/merge/acceleration/deceleration distance between Site A and the U-turn location increasing the potential for truck/through traffic accidents. Operation of Site B as proposed has the potential to increase U-turns at the first median opening north of Site B on northbound US 19. Since the median width at this location is insufficient to accommodate large trucks, queuing will occur in the left turn lane at this location and present a potential safety and operational problem on the roadway. Sight distance at the Site A proposed egress is insufficient. Without sufficient sight distance, a driver's expectancy on the roadway is adversely affected in that there is insufficient time for the driver to react to another driver's intentions. The existing geometry of the interchange, the existing traffic flow, traffic volume and vehicle classifications on the roadways comprising the interchange, require certain levels of driver expectancy regarding operation of the functional area of the interchange. Since the safety hazards and operational problems described above occur within the functional area of the interchange, driver expectancy will be violated in the interchange by operation of the sites as proposed, adversely impacting the safety and operational characteristics of the roadways that comprise the interchange. The access connections for the sites as proposed would jeopardize the safety of the public, and would have a negative impact upon the operational characteristics of the highways comprising this interchange. There was insufficient evidence to show that there were other reasonable access connections available for the sites as proposed that would not jeopardize the safety of the public or would not have a negative impact upon the operational characteristics of the highways comprising this interchange.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Transportation enter a Final Order denying Petitioner's Connection Application for permit numbers C-13-021-93 and C-13-022- 93. RECOMMENDED this 16th day of August, 1996, 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 16th day of August, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-4356 The following constitutes my specific rulings, pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the parties in this case. Petitioner's Proposed Findings of Fact. 1. Proposed findings of fact 1 through 1 are adopted in substance as modified in Findings of Fact 1 through 25. Department's Proposed Findings of Fact. 1. Proposed finding of fact 1 through 21 are adopted in substance as modified in Findings of Fact 1 through 25. COPIES FURNISHED: Charles F. Johnson, Esquire Blalock, Landers, Walters, and Vogler, P.A. Post Office Box 469 Bradenton, Florida 34206 Francine M. Ffolkes, Esquire Department of Transportation 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0458 Ben G. Watts, Secretary Haydon Burns Building 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0450 Thornton J. Williams General Counsel Haydon Burns Building 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0450
Findings Of Fact On March 26, 1991, petitioner's safety officer, David Pearce, stopped a commercial vehicle operated by respondent on State Road 7 in Palm Beach County, Florida, for inspection. Such stop was predicated upon the officer's well- founded belief that the weight of the vehicle exceeded legal limits. The subject vehicle had four axles, with the rear axles in tandem. The officer weighed the vehicle by axle, and the rear tandem axles weighed 49,400 pounds. The legal weight for the tandem axles was 44,000 pounds, as provided by Sections 316.535 and 316.545, Florida Statutes. 1/ Accordingly, the axle weight of the subject vehicle was 5,400 pounds over the legal limit. A penalty in the amount of $10.00 for the first 1,000 pounds and 5 cents per pound for each additional pound overweight was assessed against respondent. The total assessed penalty was $230.00.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered sustaining the penalty of $230.00 assessed against respondent. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 25th day of February 1992. WILLIAM J. KENDRICK 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 25th day of February 1992.
The Issue Should Petitioner impose a fine on Respondent in the amount of $1,902.00 for operating an over-weight motor vehicle on a bridge with weight limitations?
Findings Of Fact On January 6, 1995, a truck owned by Martin Leasing was operating on State Road 520 in Orange and Brevard Counties, Florida. The driver was William Edward Bednar. The truck was approximately 70 feet long, with five axles. On that date, Officer Charles Hunter of the Motor Carrier Compliance Division of the Department of Transportation observed Mr. Bednar cross a low weight limit bridge leaving Orange County and entering Brevard County, Florida. The weight limit for the bridge was 30,000 pounds. Officer Hunter stopped the Martin Leasing vehicle and had it weighed on nearby scales that were certified. The truck weighed 68,040 pounds. For that reason, Petitioner cited Respondent, pursuant to Section 316.545(3), Florida Statutes. As a consequence, a monetary assessment was levied against Respondent in the amount of $1,902.00, which represents a penalty related to the 38,040 pounds overweight times $.05 per pound. Volume 3: Bridge Load Rating, Permitting and Posting Manual, Florida Department of Transportation, states, in pertinent part: Weight limits to be shown on the posting signs at a bridge site, shall represent the gross vehicular weight (GVW) in tons for a maximum of three truck types. However, no more than one or two truck symbols may be needed. A graphic depiction of the general weight limit sign is shown on the Roadway and Traffic Design Standard Index No. 17357. The three truck types are as follows: Single unit trucks. (SU) Combination trucks with a single trailer. (C) Combination trucks with two trailers or a single unit truck with one trailer. (ST5) The single unit truck case will be the lowest operating rating for two axle (SU2), three axle (SU3) and four axle (SU4) trucks. This single unit truck will be represented on the weight limit sign by a two axle single unit truck silhouette. The operating rating GVW may exceed the legal limit GVW of one or more truck types. In this case, these specific truck types would be excluded when establishing the lowest permissible operating rating. For example if the operating rating for the SU2 truck was 16,300 kg (18 tons) then the SU2 truck would not be considered for posting since the legal limit for the SU2 truck is 15,400 kg (15 tons). The combination truck with one trailer will be the lowest permissible operating rating for three axle (C3), four axle (C4) and five axle (C5) trucks. This combination truck will be represented on the weight limit sign by a three axle combination truck silhouette (one trailer). The operating rating GVW may exceed the legal limit GVW of one or more truck types. In this case, these specific truck types would be excluded when establishing the lowest per- missible operating rating. For example if the operating rating for the C3 truck was 26,300 kg (29 tons), then the C3 truck would not be considered for posting since the legal limit for the C3 truck is 25,400 kg (28 tons). The combination truck with two trailers or a straight truck with one trailer will be governed by the operating rating for the single unit truck with one trailer (ST5). This combination truck will be represented on the weight limit sign by a silhouette of a two axle single unit truck pulling a two axle trailer. Based upon the above-referenced manual, a combination truck with one trailer, such as the Martin Leasing truck, would be depicted on the posting signs for weight limits by a silhouette on the sign that shows a three axle combination truck with one trailer, whether the truck operating on the road has three axles, four axles, or five axles. Rule 14-15.010, Florida Administrative Code, adopts the Manual on Uniform Traffic Control Devices, published by the United States Department of Transportation, Federal Highway Administration, 1988 Edition. That manual prescribes the size and character of the weight limit signs posted by Petitioner. Included on the sign are the three silhouettes that are referred to in the Petitioner's Manual for Bridge Load Rating, Permitting and Posting. In particular, the federal sign depicts a silhouette for the combination truck with one trailer, which silhouette has three axles. In addition, Petitioner publishes a booklet through its Motor Carrier Compliance Office. That booklet is entitled: Florida Department of Transportation Trucking Manual. It is a handbook or guide for operating trucks in Florida. It refers to the low-limit roads and bridges in Florida and to the portrayal of those bridges on low-limit signs that have been described in the prior manuals. The trucking manual states: Low Limit Roads and Bridges Due to age, condition, or design, some roads and bridges in Florida cannot carry the load limits allowed in this manual. Signs detailing these lower limits have been posted on such roads and bridges. . . . The maximum allowable weight is listed, in tons, beside the silhouette for each of the 3 classes of vehicles. The SINGLE-UNIT TRUCK silhouette includes all straight trucks, cranes and other single- unit special mobile equipment regardless of the number of axles. The TRUCK TRACTOR SEMI-TRAILER silhouette includes all truck tractor combinations regard- less of the number of axles. The SINGLE-UNIT TRUCK WITH ONE TRAILER in- cludes all MAXI-CUBE and TANDEM TRAILER combin- ations regardless of the number of axles. Please watch carefully for all load limit signs and obey them. The trucking manual gives an example of a weight limit sign with the truck silhouettes, to include the combination truck with one trailer, described in the trucking manual as a truck tractor semi-trailer. Under that description the Martin Leasing truck would be a tractor semi-trailer. Again, the trucking manual refers to the silhouette for a combination truck with one trailer to regulate any truck tractor combination in that configuration, regardless of the number of axles. Notwithstanding Petitioner's intention to depict a combination truck and single trailer with three axles on its signs, to inform truckers operating that configuration, whatever numbers of axles are found on the operating truck, Respondent takes the view that the failure to depict a five-axle truck and single trailer combination means that Respondent need not comply with the posted weight limits. That is an unreasonable interpretation. Respondent, through its driver, erroneously takes the view that the weight limits for the bridge in question depicted by signs with silhouettes showing single-unit trucks limited to 22,000 pounds; combination trucks with a single trailer limited to 30,000 pounds; and combination trucks with two trailers or a straight truck with one trailer limited to 36,000 pounds would not place Respondent on notice that its 68,040-pound truck, which was a combination with one trailer, should not have crossed the bridge, whatever the number of axles. Adequate warning was provided to Mr. Bednar concerning the approach to the low weight limit bridge. A weight limit sign, including the aforementioned information, was located nine miles prior to the bridge. The nine-mile sign was located immediately before the junction of State Road 520 and State Road 528. Mr. Bednar could have exited on State Road 528. A weight limit sign indicating "weight limit restriction ahead" was located closer to the bridge. A weight limit sign depicting the information and describing the opportunity for last road exit from State Road 520, before entering the bridge, was provided. The last exit sign referred to the junction between State Road 520 and County Road 532. Mr. Bednar could have existed County Road 532. Another weight limit sign was found within two miles of the bridge. The bridge itself was posted with the weight limits that have been described.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered which imposes a $1,902.00 assessment against Respondent. DONE AND ENTERED this 20th day of February, 1996, in Tallahassee, Florida. CHARLES C. ADAMS, 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 20th day of February, 1996. APPENDIX TO RECOMMENDED ORDER CASE NO. 95-3897 The following discussion is given concerning Petitioner's proposed findings of fact. Paragraphs 1-11 are subordinate to facts found. Paragraphs 12 and 13 are not necessary to the resolution of the dispute. COPIES FURNISHED: Murray M. Wadsworth, Jr. Assistant General Counsel Department of Transportation Haydon Burns Building, MS 58 605 Suwannee Street Tallahassee, FL 32399-0458 Tommy Martin Post Office Box 624 Yulee, FL 32097 Ben G. Watts, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, FL 32399-0450 Thornton J. Williams, General Counsel Department of Transportation 562 Haydon Burns Building 605 Suwannee Street Tallahassee, FL 32399-0450
Findings Of Fact Based upon the evidence presented at final hearing, the following facts are determined: Nature of Complainant's Handicap At all times material hereto, Petitioner, Charles Fenesy ("COMPLAINANT"), suffered from severe coronary heart disease (arteriosclerosis), diabetes, and excess weight. The arteriosclerosis consists of lipid deposits which obstruct and interfere with the flow of blood in all three major arteries to his heart; the diffuseness of the deposits make bypass surgery inadvisable. As a result of this disease, the COMPLAINANT began, in 1972, to experience occasional angina pectoris, which is sharp chest pain associated with activity. (Testimony of Fenesy, Hampton; P.E. 11.) The angina pectoris, however, occurred only when he was engaging in tasks involving physical activity and exertion, such as working in the yard, mowing the lawn, pulling weeds, and walking too fast; he has never experienced angina pectoris because of mental or emotional stress. During his 17 years as a computer analyst and programmer, he never experienced angina attacks in connection with his work environment; neither did his angina attacks ever interfere with his job attendance or performance or require that his work schedule be altered. Because of his heart disease, COMPLAINANT is unable to perform normal physical activity and exertion; his working activities are limited to those found in the office environment. The ability of a person inflicted with severe heart disease to capably function in a working environment is related to his temperament. The COMPLAINANT is a well-controlled, even- tempered person who has demonstrated ability to capably perform computer analyst and programmer duties and effectively cope with the stresses of an office environment. He has never experienced a heart attack. (Testimony of Fenesy; P.E. 11.) In order to control and treat his heart disease (which is incurable, without surgical bypass), and relieve angina pectoris symptoms, COMPLAINANT takes various vasodilators, including nitroglycerin and inderal; he is on a diet and takes diabinese to control his diabetes. If he suffers angina pectoris when mowing the lawn, he quickly takes the prescribed medication, the pain subsides, and he continues mowing. (Testimony of Fenesy; P.E. 11) Complainant's Application for Employment as a Program-Analyst On September 18, 1978, COMPLAINANT filed an application for employment as a program-analyst with the Respondent, GTE Data Services, Inc. ("COMPANY"). Betty Graef, Supervision of the COMPANY's CRB Source Group, had an available program-analyst position in the Customer Master File Unit; after review the COMPLAINANT's application, she concluded that he appeared to be qualified for the position and asked Nancy Fitzpatrick, the COMPANY's Personnel Representative, to arrange an employment interview. (Testimony of Fenesy, Graef, Fitzpatrick; R.E. 4.) Qualifications and Duties of the Available Program-Analyst Position. The program-analyst position which Ms. Graef had available entailed coding computer programs based on specifications prepared by a senior analyst. These programs maintained billing and address information on telephone company customers. There were approximately 22 other program-analysts in that department. The work required knowledge of assembly, also known as BAL or computer language, and typically required meeting deadlines and coping with emergency demands. Occasionally analysts were required to work long and irregular hours, due to emergencies, or in order to correct errors. The frequency of such a requirement would vary: employees who were capable and careful in their work were less likely to experience such demands. Substantial overtime work was not ordinarily required. (Testimony of Fenesy, Gradef.) During the subsequent employment interview conducted by Ms. Graef, COMPLAINANT specifically asked if the position required overtime work: she answered that, except under exceptional conditions, there would be no overtime required unless he fell behind in his work. To the extent Ms. Graef's testimony at hearing tended to describe the position as on regularly requiring excessive or extraordinary hours, it is rejected as at variance with her prior description of the position during the employment interview with COMPLAINANT, and is considered unpersuasive. (Testimony of Fenesy, Graef.) Qualification of Complainant At the time of his application, COMPLAINANT was employed by Pinellas County as an automatic mapping supervisor, at $12,000 per annum. He supervised 23 employees, and was responsible for their hiring, performance, and firing. Generally, he worked a 40-hour work week, although he occasionally worked irregular or overtime hours. During the summer of 1977, he worked 50 hours a week. (Testimony of Fenesy.) COMPLAINANT was knowledgeable and had extensive experience in the area of data processing. He had worked in that field for 17 years, and attended various technical training seminars; moreover, he had previous programming experience using BAL, the particular computer language required for the position. He also held a Bachelor of Science degree in Business Administration. By virtue of his technical knowledge and experience, COMPLAINANT was qualified to carry out the duties of the available program-analyst position in Ms. Graef's department. The only objection raised to his employment was based on his physical condition. (Testimony of Fenesy; R.E. 4.) The Company's Conditional Offers of Employment and Rejection of Complainant. On September 21, 1978, after the COMPLAINANT's employment interview with Ms. Graef and Ms. Fitzpatrick, the COMPANY offered to employ him as a program-analyst, at $16,000 per annum, conditioned upon his passing the standard pre-employment physical. After his rejection of the offer, the COMPANY made a second offer on October 6, 1978, with a salary of $18,000 per annum; this offer was also condition upon passage of the pre-employment physical. COMPLAINANT accepted this offer, and promptly gave notice to his present employer, Pinellas County, effective October 13, 1978. He was scheduled to begin work with the COMPANY on October 16, 1978. (Testimony of Fenesy, Graef, Fitzpatrick; P.E. 1,2,3) On October 10, 1978, the medical doctor ordinarily used by the COMPANY for this purpose, Edward F. Carter, M.D., gave the COMPLAINANT the standard pre- employment physical examination. On the medical questionnaire form, COMPLAINANT disclosed that he had angina pectoris, and was taking inderal for its control; and he also explained the "over exertion may cause angina pain" (R.E. 4), and gave the name of his cardiologist, John Dormois, M.D. Despite this disclosure, no diagnostic tests were administered by Dr. Carter to determine the severity of his heart disease, or the extent to which it might interfere with his performance as a program-analyst. The stated purpose of the examination, as indicated on the COMPANY form is "to determine if . . .[the applicant] meet(s) the physical standards of the position for which . . .[he is] applying." (R.E. 4.) Several days later, COMPLAINANT was notified by Ms. Fitzpatrick that he had "flunked" the physical. Dr. Carter's brief written "Physician's Report" indicated the COMPLAINANT had "angina, on medication", and "diabetes regulated and diet"; the box labeled "unemployable at this time", was checked. (Testimony of Fenesy; R.E. 4.) COMPLAINANT protested to Ms. Fitzpatrick and tried to contact the COMPANY's affirmative action officer. He also asked Dr. Dormois (his cardiologist who was familiar with the nature of his heart disease) to call Dr. Carter to discuss his condition. On October 16, 1978, Ms. Fitzpatrick told him they would try to arrange a second physical with another doctor. Due to his resignation (extended one week), the COMPLAINANT faced unemployment as of October 20, 1978, and was anxious to quickly resolve the matter. A second physical examination was thereafter scheduled for October 20, 1978, with Phillip Hampton, M.D., a practitioner of internal medicine with specialties in both diabetes and cardiology. The COMPANY's representative involved had, at that time, resolved to go along with whatever decision was made by Dr. Hampton. (Testimony of Fenesy, Fitzpatrick, Hampton). On October 20, 1978, Dr. Hampton took the COMPLAINANT's medical history, and conducted a 15-minute physical consisting of x-rays, an electrocardiogram, blood, and urine tests. COMPLAINANT explained that he had experienced angina pectoris for approximately three years, in situations of physical exertion and stress.3 Dr. Hampton was aware that COMPLAINANT was taking vasodilatory medication to alleviate angina pain, as well as diabinese to control his diabetes. The medically recognized diagnostic test to coronary diabetes. The medically recognized diagnostic test for coronary heart disease is a coronary arteriography; however, Dr. Hampton did not administer this test to COMPLAINANT. There is one objective diagnostic test to determine whether an individual suffers from angina pectoris--the stress test. It consists of placing the patient on a treadmill requiring physical exertion; the effects of exertion on blood pressure and production of pain (angina pectoris) are detected, as are changes in the patient's electrocardiogram. However, Dr. Hampton did not perform a stress test upon COMPLAINANT. (Testimony of Fenesy, Hampton.) On October 27, 1978, Dr. Hampton notified the COMPANY of the results of his examination of COMPLAINANT: "Dear Mrs. Fitzpatrick: As a result of my examination of Mr. Charles A. Fenesy on Oct. 1978, I find that he has obesity, diabetes and angina pectoris. He would be largely relieved of diabetes and angina if he would reduce his weight to under 200 lbs. which means a loss of about 70 lbs. If he does not he is not a good risk physically and in danger of a myocardial infarction." (R.E. 3.) Based on Dr. Hampton's letter, Ms. Fitzpatrick notified COMPLAINANT on October 30, 1978, that Dr. Hampton had concurred with Dr. Carter, and that he would not be hired. COMPLAINANT asked for a letter to that effect which the COMPANY never furnished. (Testimony of Fitzpatrick, Fenesy; R.E. 3.) Neither Dr. Carter nor Dr. Hampton recommended to the COMPANY that COMPLAINANT was "employable" if he took medication to control his condition. They both were aware that he was already taking such medication. (Testimony of Hampton, Fenesy; R.E. 4.) However, after COMPLAINANT warned that he would file a grievance because of his rejection, Tannia Yarborough, the COMPANY's Equal Employment Opportunity Administrator, told him that he would be considered for employment if he submitted a letter from his doctor stating that his medical problems were under control and if he would participate in a COMPANY weight reduction program; the weight reduction program requisite was later withdrawn. [The COMPANY did not have a policy to monitor the weight of its employees.] Ms. Yarborough, who was involved in the COMPANY's decisions concerning COMPLAINANT, thought angina pectoris was a cardiac disease, and not a symptom of the disease. (Tr. 213.) She also was not aware at the time of hearing that COMPLAINANT's cardiac disease was progressive--that is could be controlled but not cured. In response to Ms. Yarborough's suggestion, COMPLAINANT's cardiologist, Dr. Dormois, wrote a letter on January 18, 1979, stating that COMPLAINANT's symptoms (angina pectoris) were under control by medication, that COMPLAINANT had shown "absolutely no tendency over the last several years to have any difficulty performing his usual assigned task," and that he had "no reason to think that in the foreseeable future that this will be greatly altered." (P.E. 4.) (Testimony of Fenesy, Yarborough; P.E. 4.) Effect of Complainant's Coronary Heart Disease on His Performance as a Program-Analyst There is insufficient evidence to establish that COMPLAINANT's coronary heart disease would adversely impact or interfere with his performance as a program-analyst with the COMPANY. The two COMPANY doctors who examined him had no awareness of the particular demands of the position for which he applied; they did not even discuss with him his extensive experience in the data processing field (18 years), and whether his disease had interfered with his work in an office environment. (Testimony of Fenesy, Hampton.) The actions of the two doctors supports an inference that the COMPANY had not enunciated, in advance, the purpose of pre-employment physicals, and the standards which apply to determining the medical "employability" of a job applicant. The COMPANY accepted the simple checking of an "unemployable" box on a form by Dr. Carter, and Dr. Hampton's reinforcing conclusion that COMPLAINANT "is not a good risk physically" (R.E.3) if he does not reduce his weight; these documents form the basis of the COMPANY's rejection. Dr. Hampton's conclusions concerning COMPLAINANT's disease were admittedly based on statistical probability, not on an individual assessment of COMPLAINANT's temperament, his defense mechanisms, and his ability to perform data processing work in an office environment. In essence, they concluded that COMPLAINANT's longevity or life expectancy is not good because of the progressive nature of his disease. (Testimony of Fenesy, Hampton; P.E. 11, R.E. 3,4.) Complainant's Lost Wages and Attorney's Fees COMPLAINANT made reasonable and diligent efforts to obtain employment after his rejection by the COMPANY. For 19 weeks he was unemployed; if the COMPANY had fulfilled its offer to employ him on October 39, 1978, he would have earned $6,576.93 during that period. He eventually secured various employment positions in the data processing field, and now works again for Pinellas County. As of the date of hearing, the difference between what he earned in those positions and what he would have earned with the COMPANY (had he been hired at $18,000 per annum) is $3,379.88. (Testimony of Fenesy; P.E. 6.) COMPLAINANT claims lost of fringe benefits which he would have received if he had remained in his job with Pinellas County in 1978; alternatively, he claims loss of fringe benefits which he would have received from the COMPANY if he had been employed since October, 1978. However, the benefits accorded by the two employers, including pensions, vacation, sick leave, and insurance coverage, are markedly dissimilar. Based on the quality of the evidence submitted on this question, any conclusion concerning COMPLAINANT's actual monetary loss in fringe benefits due to the COMPANY's action would be conjecture and unreliable. (Testimony of Fenesy; P.E. 6,9.) Because of the COMPANY's rejection of his employment application, COMPLAINANT applied for and received Social Security Disability Payments from October, 1978 through March, 1979. However, since he subsequently found gainful employment in March, 1979, (i.e., he did not remain disabled for the requisite period) the Social Security Administration retroactively denied his eligibility. He may now be required to reimburse the government for the disability payment which he received. (Testimony of Fenesy; P.E. 5.) The COMPLAINANT testified that he is obligated to pay attorney's fees of $600 in connection with this proceeding. In the absence of the COMPANY contesting this amount, it is concluded that such attorney's fees are reasonable. (Testimony of Fenesy; P.E. 6.)
Conclusions Conclusions: That Respondent engaged in an unlawful employment practice by failing or refusing to hire Petitioner because of his handicap. The Respondent failed to substantiate its asserted defense--that the absence of Petitioner's particular handicap was a bona fide occupational qualification reasonably necessary for the performance of the position for which he applied. Recommendation: That the Commission prohibit the Respondent from engaging in such practice in the future, require it to pay Petitioner lost wages and attorney's fees, and offer him employment in the next available program-analyst position. Background On November 21, 1978, Petitioner, Charles Fenesy ("COMPLAINANT"), filed a complaint of discrimination with the Intervenor, Florida Commission on Human Relations ("COMMISSION"), alleging Respondent, GTE Data Services Inc. ("COMPANY"), denied him employment because of his physical handicap--heart disease. After investigation, the COMMISSION's Executive Director issued a "Determination: Cause" on October 22, 1979, concluding that there was reasonable cause to believe that the COMPANY had committed an unlawful employment practice prohibited by Section 23.167(1), Florida Statutes (1979) [formerly Section 13.261(1), Florida Statutes (1977)]. After the parties failed to conciliate, or informally resolve the dispute, COMPLAINANT filed his Petition for Relief with the COMMISSION on February 29, 1980. Thereafter, the Petition was forwarded to the Division of Administrative Hearings for assignment of a hearing officer to conduct a Section 120.57 hearing. Final hearing was then set for May 20, 1980. Subsequently, upon the COMPANY's motion, and without objection, hearing was continued and reset for July 9, 1980. Thereafter, upon COMPLAINANT's motion, and without objection, the hearing was again continued and reset for September 10, 1980. Several pleadings were filed and disposed of prior to final hearing. On April 29, 1980, the COMMISSION's Executive Director moved to intervene as a party in this proceeding, which motion was granted. By way of affirmative defense to COMPLAINANT's Petition for Relief, the COMPANY asserted, among other things, that the Petition was untimely in that the COMMISSION had failed to comply with its own rules, Section 9D-9.05(3), Florida Administrative Code. Specifically, the COMPANY asserted that the above rule requires the service of a "Notice of Failure of Conciliation" 30 days after service of the "Determination: Cause". Records show that the COMMISSION denied the COMPANY's petition for reconsideration of the "Determination: Cause" on December 5, 1979; but the Notice of Failure of Conciliation was not issued until February 21, 180. On May 12, 1980, the COMMISSION moved to dismiss the COMPANY's affirmative defense. The COMPANY responded to the COMMISSION's motions, and moved for summary judgment. By order dated June 30, 1980, the COMMISSION's motion to dismiss the COMPANY's affirmative defense was granted on the grounds that (1) Rule 9D-9.05 does not specify the time period which a Notice of Failure of Conciliation must be issued, (2) COMPLAINANT's Petition for Relief was filed within the requisite time period from the issuance of the Notice, and (3) the COMPANY's actions contributed to the delay in issuance of the Notice. Also, the COMPANY's motion for summary judgment was denied on the ground that the conduct of the parties during settlement negotiations was not germane to the issues to be decided at final hearing. On June 18, 1980, the COMPANY moved to compel COMPLAINANT to answer interrogatories, which motion was granted on July 1, 1980. At final hearing, COMPLAINANT testified in his own behalf and offered Petitioner's Exhibit1 Nos. 3 through 7, each of which was received.2 The COMMISSION presented no witnesses or documentary evidence. At the close of hearing, the parties requested and were granted the opportunity to file proposed findings of fact and conclusions of law by October 21, 1980. Proposed findings were subsequently filed; those filed by the COMMISSION and COMPLAINANT are the subject of a pending motion to strike filed by the COMPANY.
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: Finding the COMPANY engaged in an unlawful employment practice in violation of Section 23.167(1), Florida Statutes (1979), and prohibiting such practice in the future; and Providing COMPLAINANT affirmative relief from the unlawful practice by requiring the COMPANY to (a) pay him lost wages in the amount of $9, 956.81; (b) offer him the next available program-analyst position at a salary and under conditions similar to that which he would have received in October, 1978, but for the COMPANY's unlawful practice; and (c) pay him $600 for attorney's fees incurred in this case. DONE AND ENTERED this 31st day of December, 1980, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 Telephone: (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 31st day of December, 1980.
