Findings Of Fact Respondent operated a truck on May 14, 1991, which had a legal weight of 80,000 pounds. The truck was weighed on May 14, 1991, at the White Springs Scales on I-75. At the time it was weighed, the truck weight registered 87,600 pounds. The actual weight of the truck exceeded the legal weight by 7,600 pounds. The operator of the truck requested a second weighing. A second weighing was performed with the same result as the first weighing. Petitioner imposed a penalty of $380 which was paid by Respondent. The amount of the penalty was accurately calculated in accordance with applicable law.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order upholding the fine imposed against Respondent. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 22nd day of January, 1992. DANIEL MANRY 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 23rd day of January, 1992.
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 issues concern the intention by Petitioner to levy an $836 fine for the alleged operation of a commercial vehicle on a low-limit bridge when the commercial vehicle exceeded the weight limit for that bridge. See Section 316.545, Florida Statutes.
Findings Of Fact On December 17, 1990, a commercial vehicle driven by William Roy Grayson for the carrier Massey Franklin (Massey Trucking) came into Florida from Georgia on US Highway 17. In doing so it crossed the bridge over the St. Marys River. Petitioner has jurisdiction over that bridge. Petitioner in accordance with law had limited the weight that could be placed on that bridge by a commercial vehicle. That weight restriction was 32 tons. The commercial vehicle in question was weighed shortly after entering Florida at an inspection station operated by Petitioner. It weighed 80,720 pounds. Persons such as Mr. Grayson who operate commercial vehicles coming into Florida across the subject bridge are warned of the weight limit on the bridge by posted signs using symbols from the manual on Uniform Traffic Highway Administration as the national standard in accordance with Title 23 US Code. Those silhouette symbols used to post the weight limit for the bridge show a single unit truck with the weight limit of 27 tons and a combination truck with a weight limit of 32 tons. The truck in question was a combination truck. These warning signs on the weight limit were posted in Georgia at the time in question for the south bound traffic. Respondent's truck was south bound on that date. The first sign in Georgia before you enter Florida states "weight limit restrictions ahead." The second sign provides weight limit symbols showing a combination truck with a limit of 32 tons and notes that the distance from that restriction is three miles. The third sign before arriving at Scrubby Bluff Road in Georgia has the weight limit symbol of 32 tons for a combination truck and notes that this is the last exit before being restricted in weight. A fourth sign shows weight limit symbols with 32 tons for a combination truck and an arrow describing the exit from Scrubby Bluff Road to Interstate 95. The truck in question exceeded the weight limit by 16,720 pounds and was assessed a fine .05 per pound for a total penalty of $836.
Recommendation Based upon the consideration of the facts and the conclusions of law, it is, RECOMMENDED: That a Final Order be entered which imposes a fine in the amount of $836, pursuant to Section 316.545(3)(b), Florida Statutes. DONE and ENTERED this 5th day of July, 1991, 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 5th day of July, 1991. APPENDIX The proposed facts by the Petitioner are subordinate to facts found. COPIES FURNISHED: Vernon L. Whittier, Jr., Esquire Department of Transportation Haydon Burns Building, M.S.-58 605 Suwannee Street Tallahassee, FL 32399-0458 Franklin Massey Massey Trucking 101 Wind Creek Lane Enterprise, AL 36330 Ben G. Watts, Secretary Department of Transportation Haydon Burns Building, M.S.-58 605 Suwannee Street Tallahassee, FL 32399-0458
The Issue The issue in this case is whether the $124.00 penalty assessed against Respondent by the Department of Transportation is legally and mathematically correct.
Findings Of Fact The maximum legal weight allowed for vehicles traveling on a Florida state highway is 80,000 pounds. On November 18, 1991, a commercial motor vehicle owned and operated by Respondent was driving on State Road 15, also known as U.S. Highway 1, in Nassau County, Florida. At that time and place, DOT Weight Inspector R. S. Young weighed Respondent's vehicle on the pit scale at the Hilliard Weigh Station at approximately 23:32 (11:32 PM), using a "split weigh" method because the vehicle exceeded the 56 feet which the DOT scale would accommodate. Inspector Young filled out the Load Report indicating three separate axle weights of the vehicle with a total weight of 82,480 pounds, which exceeded the maximum weight restriction by 2,480 pounds. The fine imposed was $124.00, calculated at five cents per pound by which the scale weight of the vehicle exceeded the maximum weight of 80,000. Respondent paid the fine. The scale at the Hilliard Weigh Station which was used by Inspector Young on November 18, 1991 had been inspected and certified pursuant to statute by the Florida Department of Agriculture on July 24, 1991, four months before the weighing of Respondent's vehicle. On March 4, 1992, approximately five months after Respondent's vehicle was weighed, the Hilliard Weigh Station scale was again inspected and certified by the Florida Department of Agriculture. Neither time was there a discrepancy in true weight which would have materially affected the weighing of Respondent's truck on November 18, 1991. Affording Respondent's position every benefit of the doubt, it is possible, but not proven, that the Hilliard Weigh Station scale could have weighed 80 pounds heavier than the truck's true weight on November 18, 1991. Respondent contended that he had "split weighed" his loaded vehicle earlier on November 18, 1991 on a commercial Howe scale and that the Howe scale weight was accurate in showing his vehicle weighed under the 80,000 pound statutory limit, as opposed to the weight at the Hilliard Weigh Station later the same day, which weight showed the loaded vehicle weighed over the 80,000 pound statutory limit. All witnesses are agreed that if done correctly, a "split weigh" is reasonably accurate for multiple tandem, multiple axle vehicles longer than 51 feet, and it is unrefuted that many of these types of weigh-ins are done regularly at the Hilliard Weigh Station and throughout the industry. The method is specifically permitted for use by law enforcement, in this instance, by DOT. However, the expert testimony of Mr. Robert Garris, Supervisor of Weights and Measures for the State of Florida Department of Agriculture and Consumer Services, is accepted that "split weighs" on a Howe scale are "assuredly inaccurate" because such scales are not manufactured to be used with "split weighs" and that, although DOT is authorized, for law enforcement purposes, to do "split weighs", DOT's scales also are not necessarily any more accurate for use with the "split weigh" method than the Howe commerical scale. Therefore, it is found that if it could be shown by competent evidence that the Howe scale "split weigh" and the Hilliard scale "split weigh" were each done correctly and showed different weights, one weight being "over" and one weight being "under" the statutory limit, DOT could not prevail herein by a preponderance of the evidence. Respondent presented a weight ticket purportedly showing that this loaded vehicle had a gross weight of 76,600 pounds on the Howe scale at 14:29 (2:29 PM) on November 18, 1991, also achieved by a "split weigh" method. Although self-serving, Respondent's direct testimony to this effect is unrefuted, as is his direct testimony that when he weighed his loaded truck on the Howe scale, the Howe scale bore a current Florida Department of Agriculture certification seal. However, the four weights printed automatically onto the Howe scale weight ticket do not add up to the pencilled "76,600" handwritten thereon. Upon Respondent's direct testimony and supporting exhibits, it was also shown that a commercial Certified Automated Truck Scale (CAT Scale) had recorded the gross weight of Respondent's front two axles as only 19,280 pounds on October 9, 1991. The CAT scale, which renders a "full platform" gross weight, provides a more accurate gross weight than the "split weigh" method, but this weigh-in occurred approximately a month before the weighing of Respondent's truck at the Hilliard Weigh Scale on November 18, 1991 and accounted for only two axles and no load. Respondent contended that if one added together the weight of his load as stated by the shipper on his November 18 bill of lading, the manufacturer's weight of 9500 pounds as stamped on the side of the trailer, a weight he personally estimated for nylon ropes to secure the load, possible fuel intake, and the CAT weight of his vehicle's front two axles, Respondent's vehicle weight on November 18 would still have been under 80,000 pounds when it reached the Hilliard scale, and Respondent would not have been subject to an overweight assessment and fine. However, this scenario is speculative. It is speculative because of insufficient predicate for the accuracy of some of the figures named, due to the failure of the numbers on the Howe scale ticket to add up as specified by Respondent, and due to the margin for error when only two axles were weighed a month earlier on the CAT scale.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the Department of Transportation enter a Final Order ratifying the assessment and penalty of $124.00. DONE and RECOMMENDED this 17th day of September, 1992, at Tallahassee, Florida. ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The De Soto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17 day of September, 1992. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 92-1872 The following constitute specific rulings, pursuant to S120.59 (2), F.S., upon the parties' respective proposed findings of fact (PFOF) Petitioner's PFOF: 1-6, 8 (There is no "6", but the unnumbered paragraph between "5" and "7" is treated as "6") Accepted. 7 Accepted in part and rejected in part because of Respondent's direct testimony which established certain facts found. Respondent's PFOF 1, 13 Accepted that some of this is what the shipper told Respondent and placed on the bill of lading, but it remains hearsay and unpersuasive on the dispositive issue of true weight in light of other exhibits and testimony. Accepted except where contrary to the probative evidence and rejected as unproven and also rejected where unnecessary, subordinate, or cumulative. Specifically, the numbers show a print out of 4 axles, not 3, or four printed items for gross, tare and net pounds. It is not clear which. Also, the total of the four figures are in excess of legal weight limits. See Exhibit R-1. Rejected as not of record and rejected as legal or persuasive argument as opposed to a proposed finding of fact; rejected as not dispositive and as not persuasive. The first sentence is accepted. The remainder is rejected as mere legal or persuasive argument. 5-6, 8-10 Accepted except where unnecessary, subordinate, or cumulative. 7,14 Rejected because much of this is not of record. Otherwise it is unnecessary, subordinate, or cumulative. 20-21, 23 Accepted, except that Mr. Garris did not testify that the Howe scale was certified or accurate. This was Respondent's testimony. 11-12 Rejected as stated because not supported by the record as a whole. Covered accurately in the RO. 15-18 These calculations are rejected as speculative and not supported by any weight ticket. Legal and persuasive arguments are also rejected as not factual proposals. 19 Accepted, but unnecessary, subordinate and cumulative. 22, 24 Rejected as legal and persuasive argument only, not factual proposals. COPIES FURNISHED: Carolyn S. Holifield Chief, Administrative Law Section Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Mrs. Thomas Bachota 201 North Shaffer Street Milford, Indiana 46542 Ben G. Watts, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0458 ATTN: Eleanor F. Turner, M.S. 58 Thornton J. Williams, General Consel Department of Transportation 562 Haydon Burns Building Tallahassee, Florida 32399-0458
The Issue The issue in this case is whether the $490 fine assessed by the Respondent against the Petitioner was unwarranted or incorrect.
Findings Of Fact On May 1, 1989, Wando Trucking, Inc. ("Wando") obtained a trip permit from the Florida Department of Transportation ("DOT") authorizing the transportation of an overweight load. Wando proposed to transport one sealed containerized cargo unit. The permit was valid for one trip from Jacksonville, Florida to the Georgia border and expired on May 5, 1989. The permit contained several special requirements, including the typing, on the cargo packer's bill of lading, of the identification number stamped on the container seal. The DOT considers a permit to be void if permit requirements are not met. Packers of containerized cargo affix numbered seals to the containers. The seals are constructed so as to prevent the opening of a container without destruction of the seal. The DOT's requirement that the seal number be typed is to lessen the opportunity for a carrier to alter the cargo or substitute contraband for a sealed and permitted load. On May 1, 1989, the Wando truck stopped at the DOT weigh station on I- 95 in Yulee, Florida. Upon weighing the vehicle, the DOT employee found the truck, at 89,800 pounds, to be over the legal statutory weight of 80,000 pounds. The DOT employee examined the excess weight permit offered by the Wando driver and found that the container seal number was handwritten, across the bill of lading, rather than typed as the permit requirements stated. The DOT employee completed the appropriate documentation and assessed a fine of $490. The fine was calculated at five cents per pound for the 9,800 pound overage. Wando paid the fine. The evidence does not establish that the assessed fine was inappropriate. The assertion by Wando Trucking, Inc., that there was no intent to violate the permit provisions is irrelevant.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Transportation enter a Final Order dismissing the petition of Wando Trucking, Inc. DONE and RECOMMENDED this 13th day of March, 1990, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM 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 13th day of March, 1990. APPENDIX The Petitioner did not file a Proposed recommended order. The following constitute rulings on Proposed findings of facts Submitted by the Respondent. Respondent The Respondents Proposed findings of fact numbered 1-3 are accepted as modified in the Recommended Order. COPIES FURNISHED: Ben G. Watts, Secretary Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0458 Paul F. Tecklenburg, Esq. Post Office Box 1430 Charleston, South Carolina 29401 Vernon L. Whittier, Jr., Esq. Department of Transportation 605 Suwannee Street, M.S. 58 Tallahassee, Florida 32399-0458
The Issue Whether Petitioner is entitled to an award of attorney's fees and costs pursuant to Section 57.111, Florida Statutes.
Findings Of Fact Based on the oral and documentary evidence presented at hearing and on the entire record of this proceeding, the following Findings of Fact are made. The Agency is authorized to license nursing home facilities in the State of Florida and, pursuant to Chapter 400, Part II, to evaluate nursing facilities and assign ratings. The Agency conducted a survey of Petitioner's facility from October 8 through 10, 2001. As a result of the survey, the Agency cited Petitioner for "fail[ing] to adequately assess and develop a plan of care to maintain acceptable parameters for a resident resulting in significant weight loss," and issued a Notice of Intent to change its licensure status to conditional. Petitioner timely challenged the conditional rating and filed a Petition for Formal Hearing. Pursuant thereto, a formal hearing was held on March 28 and 29, 2002. The Recommended Order, which was issued on August 14, 2002, recommended that the Agency enter a final order issuing a standard licensure rating to Petitioner and rescinding the conditional licensure rating. On February 18, 2003, AHCA issued a Final Order adopting the Findings of Fact and Conclusions of Law in the Recommended Order, ordering that a standard licensure rating be issued to replace the previously-issued conditional licensure rating, and rescinding the conditional licensure rating. As such, Petitioner was the prevailing party in the underlying case, DOAH Case No. 02-0049, AHCA 2001-071241. No appeal of the Final Order in the underlying proceeding was filed. On April 21, 2003, Petitioner filed a Petition for an Award of Attorney's Fees and Costs (Petition) with supporting affidavits. In the Petition, Petitioner sought relief under both the Florida Equal Access to Justice Act, Section 57.111, as well as pursuant to Subsection 120.569(2)(e). The Agency opposed the Petition. Although Petitioner requested an award of attorney fees under Subsection 120.569(2)(e), it presented no evidence that the Agency had filed any pleadings, motions, or other papers not properly signed or that any were interposed for any improper purpose. Accordingly, the undersigned will not consider an award of attorney fee's under Subsection 120.569(2)(e), and the focus of the evidence presented will be as to Section 57.111. The parties stipulated as to the reasonableness and amounts of the attorneys fees and costs. Reasonable attorney's fees are $21,547.50. The reasonable amount of costs is $4,183.82. The amount of attorney's fees and costs that may be awarded is limited to $15,000.00, based upon Subsection 57.111(3)(d)(2), which the parties agree is applicable to this proceeding. The Health Care Center of Naples, Inc., is a corporation with its principal office in Florida. At the time the underlying action was initiated by the Agency in October 2001, the Health Care Center of Naples, Inc., had a net worth of not more than $2 million. The net worth of Health Care Center of Naples, Inc., on October 31, 2001, was $158,048.65. The net worth of Health Care Center of Naples, Inc., for September 2001 was $190,829.22. The net worth of Health Care Center of Naples, Inc., for November 2001 was $171,726.44. The Administrative Complaint in the underlying proceeding, DOAH Case No. 02-0049, alleged that Petitioner failed to ensure that a resident maintained acceptable parameters of nutritional status. The basis of this allegation was the result of a survey which found that a resident had a significant weight loss from the period between July 30, 2001, to August 11, 2001. The Agency's Final Order, adopting the Recommended Order in Case No. 02-0049, found that the patient's weight loss was expected due to edema or third space fluid, resulting from the patient's being over-dehydrated before her recent surgery. Moreover, in the underlying proceeding, it was found that in determining that the resident had a significant weight loss, "the Agency surveyors based their calculations on an inaccurate usual body weight for the resident." As a result of these and other findings, the Agency's decision to change the status of Petitioner's licensure rating to conditional was rescinded. Although the Agency did not prevail in the underlying proceeding, the surveyors were substantially justified in citing Petitioner for the alleged deficiency, and the Agency was substantially justified in initiating the action. The Final Order found that the usual body weight relied upon by the surveyors in determining that the resident had a significant weight loss was obtained from the records of Petitioner. Also, the record in the underlying proceeding found that many of Petitioner's staff members were concerned about the resident's weight loss and did not consider that the weight loss was caused by edema. Finally, there is no indication in the record that at the time of the survey, Petitioner's staff gave the Agency surveyors any reasonable explanation for the resident's alleged significant weight loss. The evidence, which was the basis of the findings in the Final Order in the underlying proceeding, while available at the time of the survey, was not discovered or known to the surveyors and, to some extent, to Petitioner's staff.
Findings Of Fact The facts reveal that Jose Gonzalez, a driver for the Respondent, operating one of Respondent's tractor/trailer pieces of Respondent, went to a rock company located in Hollywood, Florida, on February 13, 1978, for the purpose of picking up a load of "P" rock. This rock was purchased from Miramar Lakes, d/b/a Miramar Rock on that date and the driver, Gonzalez, was given a weight ticket. The weight ticket from Miramar Rock reflected a gross weight of 72,360 pounds, which is the total of the equipment and load. (The scales at Miramar peck used to weigh the Respondent's equipment and load had been certified by the Petitioner to be accurate on June 7, 1977, and again on April 11, 1978.) The weather on February 13, 1978, was clear and the purchase, loading and weighing done on the subject equipment was without incident, until the driver attempted to pull away from the weight scales. At that moment the universal joint and yoke snapped and this caused the vehicle to be inoperable. Gonzalez left the truck at the Miramar Rock Company. At that point, the load was covered by a canvas and the trailer was not seeping or leaking water from the rock aggregate. Later, on February 13, 1978, a mechanic employed by the Respondent came to effect repairs to the vehicle, but due to the unavailability of certain parts necessary to complete the repairs, did not finish the work until February 14, 1978. When the repairs had been completed on that date, the driver, Gonzalez, removed the truck from the Miramar Rock compound and entered the roads of Broward County, Florida. At around 9:15 a.m. on February 14, 1978, Gonzalez arrived at the intersection of Hollywood Boulevard and Flamingo Road in Broward County, Florida, eastbound on Hollywood Boulevard. At that intersection, officers employed by the Florida Highway Patrol, Weights Division, intercepted the Des Rocher truck and caused the vehicle to stop. After the stop the equipment being operated at that time was established to be a vehicle measuring between 37 feet to 38 feet from the front axle to the rear axle, and the peak of the rock load was located in the center rear portion of the trailer. Officer Wilkerson of the Florida Highway Patrol observed water dripping out of the rear tailgate after making the stop. Gonzalez was asked to produce a weight ticket and in response to this request produced the weight ticket given him by Miramar Rock on February 13, 1978. Officer Wilkerson commented that this ticket was from the day before and that a ticket bearing the current date was required. Gonzalez was then told that the truck would be weighed with the method for weighing the truck being by two portable scales. Officer Wilkerson weighed one side of the truck and Officer Herron went to the other side of the truck. Wilkerson weighed the steering axle on his side of the truck; the drive axle on his side of the truck, and two tires on the rear tandem axles on his side of the truck. It is not known what Officer Herron did, if anything, in effecting the purposes of this inspection and weigh-in, because Officer Herron did not appear at the hearing in this cause and was not seen by Officer Wilkerson in conducting his inspection activities, if any. Therefore, the total weight of the truck as ascertained from the inspection ostensibly conducted by these officers was not shown by competent evidence. However, it was demonstrated through the testimony in this hearing that the plan which the officers had for making the roadside inspections was one which called for basically stopping all trucks of the category of aggregate haulers that were eastbound through the intersection on Hollywood Boulevard, to the exclusion of pickup trucks and moving vans. After stopping the former category of trucks, some were weighed and others were not. As a result of the stop, Gonzalez was ticketed for a weight violation and that ticket was in the amount of $136.45 as an assessed penalty. Gonzalez then took the truck back to the Des Rocher installation which contained a set of scales and between 10:15 a.m. and 10:30 a.m. the truck was weighed and shown to be 35.64 tons, or 71,280 pounds as the gross weight including the equipment and load. (The scales that were utilized had been certified by the Petitioner on June 7, 1977, and again on May 8, 1978.)
The Issue This concerns the issue of whether wooden stakes utilized in the growing of tomatoes in the State of Florida are exempt from the Florida State sales tax under Florida Statute 212.08(5)(a). At the formal hearing, the Petitioner called as witnesses James Felix Price and George Marlowe, Jr. The Respondent called no witnesses. The Petitioner offered and had admitted three exhibits and the Respondent offered and had admitted into evidence two exhibits. Counsel for the Petitioner and counsel for the Respondent submitted proposed findings of fact and conclusions of law for consideration by the Hearing Officer. To the extent that those proposed findings of fact are consistent with the findings herein they were adopted by the Hearing Officer. To the extent that those proposed findings of fact and conclusions of law are inconsistent with the findings and conclusions in this Order, they were considered by the Hearing Officer and rejected as being not supported by the evidence or unnecessary to the resolution of this cause.
Findings Of Fact The Petitioner, Pitch Pine Lumber Company, sells tomato stakes to tomato growers in Florida. As a result of these sales, the Petitioner was assessed and ordered by the Department of Revenue to pay sales tax due on the sales of tomato stakes. It was stipulated by and between Petitioner and Respondent that the amount in controversy is $11,723.26 and that if the exemption under Florida Statute 212.08(5)(a) does not apply then the Petitioner shall owe that amount plus interest and penalties if applicable from October 3, 1980. Tomato stakes are used in almost every area of Florida today which produces tomatoes. Approximately two- thirds of the 44,000 acres used to grow tomatoes in Florida utilize tomato stakes. The only area which does not utilize these stakes is the Dade County area and this is due to the coral rock soil conditions. The stakes which are used are wooden stakes. These stakes are driven into the ground and used to hold the tomato plants upright or vertical. This prevents the fruit of the tomato plants from resting directly on the soil. Tomato stakes and cotton cloth are both natural plant materials and contain cellulose. One of the benefits of using tomato stakes is that by holding the plant upright, the plant will form a natural canopy which then shades the fruit and prevents sun scalding and sunburning of the fruit. This shade is provided by the leaf canopy of the plant and the stakes themselves provide no shade. Another benefit of utilizing tomato stakes is increased insect control and decreased fruit loss. This is the result of the fruit of the plant being held up off the ground by the plant which is being held upright by the tomato stakes. Tomato stakes were used for this purpose in Florida as early as 1947 and 1948. By 1960, tomato stakes were being used extensively in Florida.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Department of Revenue enter a final order requiring the Petitioner to pay $11,723.26, plus interest and penalties, if applicable from October 3, 1980. DONE and ENTERED this 23rd day of September 1983, in Tallahassee, Florida. MARVIN E. CHAVIS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of September, 1983. COPIES FURNISHED: Roderick K. Shaw, Jr., Esquire Post Office Box 2111 Tampa, Florida 33601 Linda Lettera, Esquire Department of Legal Affairs The Capitol, LLO4 Tallahassee, Florida 32301 Larry Levy, Esquire General Counsel Department of Revenue 104 Carlton Building Tallahassee, Florida 32301 Randy Miller Executive Director Department of Revenue 102 Carlton Building Tallahassee, Florida 32301
The Issue Whether Petitioner was the subject of an Unlawful Employment Practice by being discharged from his employment due to his handicap, obesity with resulting sleep apnea, in violation of the Florida Human Rights Act, Section 760.10, Florida Statutes.
Findings Of Fact Petitioner was hired as a radiology escort in March, 1981, at Sun Coast Hospital. At that time Petitioner weighed approximately 325 - 335 pounds. The essential functions of Petitioner's job require that he transport patients by stretcher and wheelchair to and from the radiology department, and lift and maneuver up to 300 pounds without assistance. Other primary duties include assisting in the radiographic rooms as needed, removing soiled linen to a designated area, monitoring oxygen tanks, cleaning radiographic rooms and performing dark room duties as needed. In 1985, Petitioner received an average work performance evaluation. In 1986, Petitioner did not meet standards in four out of nine areas. Petitioner needed to improve his work habits and relationships with his coworkers. Petitioner frequently complained when requested he perform special tasks. Petitioner received two counsel sheets in 1986. Counsel sheets are the last stage of the progressive discipline procedure. One counsel sheet arose from Petitioner refusing to perform one of his job duties. The other sheet specified that Petitioner was not performing his share of the work. Petitioner complained about his work, slept on the job, and insisted on taking lunch breaks, even if there was a patient that needed assistance. Petitioner's performance improved in 1987. Nevertheless, Petitioner's self motivation was still below standard. In 1988, Petitioner experienced performance problems once again. Petitioner's 1988 annual evaluation specified that Petitioner needed to increase his productivity and decrease his absenteeism. In addition, Petitioner needed to be more self-motivating. In September, 1988, Petitioner received a written warning for falling asleep in the hospital's front lobby. Petitioner was warned not to sleep on hospital time or work premises. When Petitioner returned with a patient, he was short of breath and sweating. In November, 1988, Petitioner received a written counsel sheet again for his poor job performance. Petitioner was slow, did not do his share of the work, and complained in front of patients. Again, when Petitioner returned with a patient, he was short of breath and sweating. Petitioner insisted on sitting down and resting before he transported another patient. Other employees complained to his supervisor that they could not perform their job when Mr. Engleka was not getting patients to them. In 1988, Petitioner did not indicate that he needed reasonable accommodation. Petitioner's position as an escort was a one person job. Petitioner could not rest in between patients because other employees could not get their work done. Delay resulted in radiological tests not being done in a timely fashion which resulted in delayed patient care. At the request of management, Petitioner was evaluated to determine if he was physically able to perform the essential requirements of his position. Dr. Rea, Respondent's personal physician, determined that continued employment of Petitioner would pose a reasonable probability of substantial harm to Petitioner. Petitioner's labile hypertension, evidence of heart disease, obesity, low blood oxygen levels, and the physical requirements of his job placed Petitioner at substantial risk of having a heart attack and/or stroke. Petitioner's prognosis as it stood was determined to be very guarded to poor. There was no way to decrease the substantial risk of potential heart attack or stroke, but for Petitioner to go on medical leave and lose weight. No reasonable accommodations could be made to enable Petitioner to perform his essential job functions and eliminate or reduce the significant risk of heart attack or stroke to Petitioner. It was decided to recommend that Petitioner go on medical leave and participate in a weight loss program to improve his physical well being which could result in improvement of his work performance. Petitioner was advised that the Hospital was placing Petitioner on a medical leave of absence requiring Petitioner to enter the Optifast Weight Loss Program, and get treatment for sleep apnea. Respondent agreed to and did pay for eighty percent (80 percent) of the weight loss program. Petitioner's last day of work was February 14, 1989. When Petitioner was initially told about the requirement for weight loss, he thought it was a good idea. The next Optifast program started in March, 1989. Petitioner was paid all outstanding vacation, holidays, and sick leave until the Hospital outlined the specifics of placing Petitioner on medical leave. On or about March 24, 1989, Petitioner signed the leave agreement which specified Petitioner would be terminated if he did not comply with the weight loss program. Additionally, the Hospital agreed to assist Petitioner in receiving some income. The document specified that Petitioner understood that he would be replaced in his job. The Optifast program lasted at least twenty-six (26) weeks. Petitioner was expected to be on a leave of absence for at least the twenty-six (26) weeks time period, and return to his position once he completed the Optifast program. Petitioner applied for unemployment compensation in February, 1989, but was denied unemployment when Petitioner told the Unemployment Commission that he was on a medical leave of absence. Petitioner started the Optifast program on March 14, 1989. At that time Petitioner weighed four hundred fifty-three (453) pounds. Petitioner had problems with weight loss program compliance in week 6 (April 18, 1989); week 12 (May 30, 1989); and Week 15 (June 20, 1989) when Petitioner gained more than five (5) pounds. Petitioner stopped attending the Optifast program after week 16, (June 27, 1989), of the 26 week program, and did not see the doctor after that date. A very important phase of a fasting program is the behavior modification phase where eating habits are actually changed so the patient does not regain the weight he lost. Petitioner quit the Optifast program before reaching maintenance. Petitioner was not released, nor did he graduate from the Optifast program. Petitioner did not comply with the Optifast Weight Loss Program, because he stopped the program after 16 weeks. Therefore, Petitioner did not comply with the agreement between himself and Sun Coast Hospital. Petitioner understood that he would be terminated by the Hospital if he did not complete the Optifast program. Petitioner was denied Social Security disability benefits in July 17, 1989. At that time, Petitioner told Ken Deibel, former Director of Human Resources for Suncoast Hospital, that he was in desperate need of some type of income. Deibel told Petitioner the Hospital would change Petitioner's status to layoff so he could receive unemployment. Petitioner immediately received two weeks severance pay in keeping with layoff status. Shortly thereafter, Dr. Rea wrote an undated note stating that Petitioner could return to a working status, in order for Petitioner to qualify for unemployment. Dr. Rea wrote this note after Petitioner complained that he would not be able to continue the weight loss program unless he had a source of income. Dr. Rea did not release Petitioner to return to his position of radiology escort. The note was not addressed to or received by the Hospital. The note did not qualify Mr. Engleka to return to work as an escort at Sun Coast Hospital. Petitioner did not receive unemployment compensation following the change of his status from medical leave of absence to layoff. Petitioner did not restart the Optifast program. Petitioner never brought a release from the Optifast program or told the Hospital that he was ready to return to work. On January 14, 1990, Dr. Rea wrote another letter stating Petitioner could return to a "working status." In January, 1990, when Sun Coast Hospital received the release for Petitioner to return to a "working status," Petitioner was not otherwise qualified for the escort position because he had not lost weight, and still represented a substantial risk to himself. At that time Petitioner had regained almost all the weight that he lost while on the Optifast program, weighing 443 pounds. In January, 1992, Petitioner was diagnosed as having congestive heart failure.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED THAT: That a Final Order be issued which DENIES Petitioner's Charge of Discrimination. DONE AND ENTERED this 26th day of May, 1993, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 26th day of May, 1993. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Proposed Findings of Fact Submitted by Petitioner: Petitioner did not submit proposed findings of fact Proposed Findings of Fact Submitted by Respondent: Accepted in substance: paragraphs - 1, 2, 4-11, 18-20, 21(in part), 22-42, 45-49, 50 in part Rejected as irrelevant or subsumed: paragraphs - 3, 12, 13, 14, 15, 16, 17, 21(in part), 43, 44 COPIES FURNISHED: Robin E. Greiwe, Esquire Thompson, Sizemore & Gonzalez, P.A. 109 Brush North Suite 200 Tampa, Florida 33602 Mr. Michael David Engleka 2826 Oak Lawn Avenue Apartment B Largo, Florida 34641 Sharon Moultry, Clerk Commission on Human Relations 325 John Knox Road Building F Suite 240 Tallahassee, Florida 32303-4149 Dana Baird, Esquire Commission on Human Relations 325 John Knox Road Building F Suite 240 Tallahassee, Florida 32303-4149
