Findings Of Fact At all times pertinent to the issues herein, the Department of Transportation was the state agency responsible foe enforcing the statutes involving commercial carrier and truck vehicle weight on covered vehicles operated on the streets and highways of this state. It does so through its Office of Motor Carrier Compliance staffed with uniformed certified law enforcement officers who have the authority to conduct random safety and compliance inspections of commercial vehicles being operated in this state. On January 6, 1992, Officer Borras stopped the Respondent's 1981 White truck, which was proceeding northbound on Haverhill Road in West Palm Beach, for a routine weight and safety check. Using a set of portable scales which are calibrated by the Florida Department of Agriculture's Division of Weights and Measures every 6 months, and following the Department's routine procedure of weighing at each axle and combining the two figures, Borras determined the Gross Vehicle Weight/load of the truck was 27,800 pounds. The maximum legal weight of the vehicle in issue, including the 10% tolerance, was 25,999 pounds. Therefore, according to the Department's scales, Respondent's vehicle was overweight by 1,801 pounds. Applying the statutory penalty of 5 per pound of overweight, resulted in Respondent being assessed a total penalty of $90.05 for this alleged violation. Since the Respondent's driver was driving with an expired driver's license, Mr. Rice was called to the scene to remove the vehicle. Mrs. Rice, as Secretary of the corporation, was required to produce the $90.05 in cash even though Department procedures provide for payment of a penalty by company or certified check. The Department's scales are supposed to be calibrated for accuracy every 6 months. The scales used by Officer Borras had last been calibrated on July 16, 1991, almost 6 months previously, and were due for re-calibration in January, 1992. In the experience of Lt. Thomas Carnicella, also of the Department's Office of Motor Carrier Compliance, the portable scales are considered to be possibly off to some degree. For that reason, the 10% tolerance is added to the authorized vehicle weight. Immediately after the citation was issued and the penalty paid, the vehicle was released to Mr. Rice who drove it, loaded with roofing waste, to the Palm Beach County dump where it was again weighted, both with full load and then empty after dumping, to determine the amount of dumping fee to be assessed. According to the County's in-ground permanent scales, which reportedly had been calibrated 3 days previously, Respondent's loaded vehicle was weighed at 24,280 pounds, or 1,719 pounds under the legal weight of 25, 999 pounds. On a prior occasion, Respondent's vehicle was also cited by the Department for being overweight, as here, and a penalty assessed. At that time, the dump scales and the Department's portable scales read almost the same. For that reason, Respondent did not protest the action and assessment. In this case, however, the discrepancy was considerable and because of that fact and the fact the citation indicated, incorrectly, that the truck was green, the protest was filed. Officer Borras explained the color discrepancy as having been the result of his confusion due to several vehicles being stopped at once, one of which was green. There is no doubt in his mind, however, that the Respondent's vehicle was the one cited for overweight and it is so found.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that a Final Order be entered in this case setting aside the civil penalty in the amount of $90.05 assessed against A. Rice Roofing, Inc., and directing reimbursement in that amount. RECOMMENDED this 22nd day of July, 1992, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 COPIES FURNISHED: Filed with the Clerk of the Division of Administrative Hearings this 22nd day of July, 1992. Vernon L. Whittier, Jr. Esquire Department of Transportation 605 Suwannee Street, M.S. 58 Tallahassee, Florida 32399-0458 John T. Rice A. Rice Roofing, Inc. 2458 Oklahoma Street Tallahassee, Florida 33406 Ben G. Watts Secretary Department of Transportation 605 Suwannee Street Tallahassee, Florida 32399-0458 Thornton J. Williams General Counsel Department of Transportation 605 Suwannee Street Tallahassee, Florida 32399-0458
Conclusions This matter came before the Department for entry of a Final Order upon submission of an Order Closing File and Relinquishing Jurisdiction by Jessica E. Varn, Administrative Law Judge of the Division of Administrative Hearings, pursuant to Petitioner’s Notice Of Withdrawal of Proposed Dealer Agreement from Consideration by Respondents and Motion to Dismiss as Moot, a copy of which is attached and incorporated by reference in this order. The Department hereby adopts the Order Closing File and Relinquishing Jurisdiction as its Final Order in this matter. Accordingly, it is hereby ORDERED that this case is CLOSED. DONE AND ORDERED this AY day of May, 2013, in Tallahassee, Leon County, Florida. Bureau of Issuance Oversight Division of Motorist Services Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A338 Tallahassee, Florida 32399 Filed with the Clerk of the Division of Motorist Services this 4 day of May, 2013. NOTICE OF APPEAL RIGHTS Judicial review of this order may be had pursuant to section 120.68, Florida Statutes, in the District Court of Appeal for the First District, State of Florida, or in any other district court of appeal of this state in an appellate district where a party resides. In order to initiate such review, one copy of the notice of appeal must be filed with the Department and the other copy of the notice of appeal, together with the filing fee, must be filed with the court within thirty days of the filing date of this order as set out above, pursuant to Rules of Appellate Procedure. JB/jdc Copies furnished: Dean Bunch, Esquire Nelson, Mullins, Riley and Scarborough, LLP 3600 Maclay Boulevard South, Suite 202 Tallahassee, Florida 32312 dean.bunch@nelsonmullins.com John W. Forehand, Esquire South Motors Automotive Group 16165 South Dixie Highway Miami, Florida 33157 john.forehand@southmotors.net David Seymour Leibowitz, Esquire Braman Management Association 2060 Biscayne Boulevard, 2"! Floor Miami, Florida 33137 davidl|@bramanmanagement.com Richard N. Sox, Esquire Bass Sox Mercer, P.A. 2822 Remington Green Circle Tallahassee, Florida 32308 rsox@dealerlawyer.com Jessica E. Varn Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Nalini Vinayak Dealer License Administrator
Findings Of Fact At all times pertinent to the issues herein, the Florida Department of Transportation was the state agency responsible for enforcing the statutes involving commercial carrier vehicle weights on covered vehicles operated on the streets and highways of this state. It does so through its Office of Motor Carrier Compliance staffed with uniformed certified law enforcement officers who have the authority to conduct random safety and compliance inspections of commercial vehicles being operated in this state. On November 14, 1991, Officer Joseph Borras stopped a 1985 Chevrolet truck, owned by the Respondent, LaCroix, on State Road 702 in Palm Beach County, for a routine inspection. Officer Borras requested the driver to produce his driver's license and the registration slip for the vehicle. This registration slip, which was to expire on December 31, 1991, reflected the weight/length of the vehicle as 7860 pounds and the gross vehicle weight/load, (GVW/LOD) as 7860 pounds also. Since the GWV/LOD weight, (that prescribed by statute for use in these situations) was 7860 pounds, the weight used as legal weight for assessing penalty was 7,999 pounds. Officer Borras then weighed the vehicle at the scene utilizing a set of recently calibrated Department-owned scales, using the standard weight procedures. This weighing of Respondent's vehicle at that time showed it to weigh, loaded, 12,800 pounds. When the 7,999 pound maximum legal weight was subtracted from the actual weight, Respondent's truck was seen to be 4,801 pounds overweight. That excess, taxed at 5 per pound, resulted in a civil penalty of $240.05. This sum was paid by the Respondent by check at the scene. Officer Borras, who was described by the Respondent as being very polite and cooperative at all times, listened to the Respondent's protestations to the effect that the GVW/LOD figure on the registration slip was obviously in error since it was the same as the empty weight of the vehicle, but had no options in the matter. He is mandated to go by the GVW/LOD figure which appears on the registration slip. It is the responsibility of the vehicle's owner to insure that the GVW/LOD figure which appears on the registration slip is correct. Here, Respondent failed to do this, effecting re-registration of the vehicle by mail on December 31, 1990. The registration slip for the prior year, it is noted, also reflected 7,860 pounds as the GVW/LOD. In 1989 it was 10,500 pounds with a weight/length of 7,860 pounds. In 1992, both weight/length and GVW/LOD limits for this same truck were raised to 14,999 pounds. Clearly, the weight/length figure is in error on that form as well. Mr. LaCroix, after the truck was cited and released, proceeded to the city dump, his intended destination, where, prior to dumping, his vehicle was weighed to determine the dump charge. No evidence was produced on the issue of the reliability of those scales. They reflected, however, a loaded vehicle weight of 11,940 pounds, and an empty weight of 8,000 pounds. Because of the unknown reliability of the dump scales and the certified accuracy of the Department's portable scales, the weight determined by Officer Borras is accepted as correct.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that a Final Order be entered imposing a civil fine of $240.05 on the Respondent, LaCroix Construction Company, Inc. RECOMMENDED this 20th day of July, 1992, in Tallahassee, Florida. COPIES FURNISHED: 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. Vernon L. Whittier Jr., Esquire Department of Transportation 605 Suwannee Street, M.S. - 58 Tallahassee, Florida 32399-0458 Ronald C. LaCroix President LaCroix Construction Company, Inc. 5900 Biscayne Drive Lake Worth, Florida 33463 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 Bldg. Tallahassee, Florida 32399-0458
The Issue The issue is whether Respondent, Monro d/b/a McGee Tire & Auto, discriminated against Petitioner based upon his age and/or disability, in violation of section 760.10, Florida Statutes.1
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: McGee Tire is an employer as that term is defined in section 760.02(7). McGee Tire is in the business of selling, servicing, and installing commercial tires. Mr. Parsons is a white male who was employed by McGee Tire in commercial sales and operations. At the time of the hearing, Mr. Parsons was 55 years old. At all times relevant to the determination of this case, Mr. Parsons was older than 40 years old. Mr. Parsons entered the tire business in 1985, when he was 21 years old, taking a position as an outside sales representative for Bridgestone/Firestone. Mr. Parsons worked in commercial fleet sales, developing business with governmental entities such as the Navy, Air Force, cities, school boards, and concrete companies. He went through every training program offered by Bridgestone/Firestone and became certified in off-road, agricultural, industrial, heavy truck, and bus tires, as well as retreading. Mr. Parsons was employed by Bridgestone/Firestone for about 16 years, working his way up to district manager in Pensacola. Mr. Parsons left Bridgestone/Firestone to open his own shop, Florida Commercial Tire, which was renamed Florida Tire Service in 2010. Mr. Parsons testified that, after some growing pains, Florida Tire Service was a successful business. He discussed the difficulties faced by a small local shop trying to compete with large national companies. Mr. Parsons tried to offset the lower prices offered by the big chains with superior service. If a trucker was stuck on the side of the road at 2 a.m., Mr. Parsons answered their call and sent out his service trucks. Despite his success, Mr. Parsons believed the days were limited when an independent dealership such as his could stay competitive. In 2016, he was approached by George Bradshaw, who for some years had been a friendly competitor of Mr. Parsons in the commercial tire business. Mr. Bradshaw stated that he was now working for a subsidiary of Monro called McGee Tire, and that his company was interested in entering the Pensacola market. They wanted to talk about buying Mr. Parsons’s company and/or having him come to work for them. Mr. Parsons testified that he was not eager to sell but neither was he “stupid to the business.” He had several meetings with Mr. Bradshaw and Bob Lanpher, another executive in McGee Tire’s Florida operation. On September 19, 2016, they completed a deal for Mr. Parsons to sell his company to Monro. The Asset Purchase Agreement included a four-year non-compete clause, under which Mr. Parsons could not compete against Monro in the business of operating a tire and/or automotive repair and service facility within 200 miles of the current location. In addition to selling the business, Mr. Parsons negotiated a contract to come to work for McGee Tire for $120,000 per year. The Monro negotiators told Mr. Parsons that their salary structure would not allow Monro to pay him a straight salary of $10,000 per month. Mr. Parsons agreed to accept a base salary of $6,500 per month and a guaranteed bonus of $3,500 per month. The company would give him a truck allowance of $600 per month and pay for his cell phone. Mr. Parsons would receive bonuses for monthly sales in excess of $150,000. Mr. Parsons testified that “I busted my butt for these guys.” From September 2016 through January 2017, Mr. Parsons’s main job was finding a new, larger location for the business and then overseeing the transition to, and equipping of, the new store in Cantonment. At the same time, Mr. Parsons continued to act as the main salesperson and dispatcher for McGee Tire. On March 9, 2018, Mr. Parsons and McGee Tire Manager Tory Irving were loading flotation tires into Mr. Parsons’s truck for delivery to a customer. Mr. Parsons testified that these tires were used on the front of cement trucks and weighed about 270 pounds each. As he lifted a tire, Mr. Parsons felt a stabbing pain in his back. He rested a bit then delivered the tires to the customer. Mr. Parsons continued coming to work for a few days despite the pain. At the urging of Mr. Irving and Mr. Bradshaw, he took a few days off but the rest did nothing to lessen the back pain. Mr. Parsons returned to work. Mr. Parsons testified that his pain became so intractable that Kevin McGee, the manager in charge of commercial operations for Monro, sent him home and placed him on workers’ compensation. On about March 18, 2018, Monro sent Mr. Parsons to White-Wilson Clinic for treatment. The nurse practitioner at White-Wilson Clinic prescribed steroids and anti-inflammatory medications. Mr. Parsons was also given a lifting restriction of 15 pounds. Mr. Parsons testified that subsequent MRIs showed that he had aggravated the sciatic nerve. He was referred to Dr. Barry Lurate, an orthopedist, who concluded that there was no surgical solution for Mr. Parsons’s back pain. Medical records indicate that Dr. Lurate reached this conclusion on August 27, 2018. Because Mr. Parsons had back problems that pre-existed the flotation tire incident, Dr. Lurate was uncertain as to what impairment rating to give Mr. Parsons for workers’ compensation purposes. However, Dr. Lurate did not doubt that Mr. Parsons was suffering and should continue on lifting restrictions. Mr. Parsons recalled that Dr. Lurate imposed a 15-20 pound lifting restriction and released him to light duty work. Mr. Parsons testified that he phoned Mr. McGee three or four times to let him know his status, but was unable to reach him. Mr. Parsons testified that Mr. McGee had always been difficult to reach by telephone, so he sent him a text message. Mr. Parsons’s message stated that he had been released to come back to work. Mr. McGee responded with questions about Mr. Parsons’s lifting restrictions. Mr. Parsons described the lifting restrictions and asserted that he was able nonetheless to sell tires. Mr. McGee told Mr. Parsons that he had no work for him at that time but that he would have “Esther in HR” give him a call.2 Mr. Parsons testified that this text conversation with Mr. McGee took place in the Fall of 2018 and was the last communication he received from Monro. Mr. Parsons testified that he later phoned Mr. Irving to ask if he had heard anything about the company’s intentions. Mr. Irving responded that he had no news but that he wished Monro would bring Mr. Parsons back immediately. Mr. Parsons reasonably believed that he was fully capable of carrying out the primary duty of his job: selling commercial tires. Mr. Parsons testified that he could have fully performed every aspect of the job, including loading heavy tires, if he had been given the accommodation of a lift-gate on his truck. A lift-gate is a device that can raise and lower items from ground level to the level of the truck bed. It would have had the effect of allowing Mr. Parsons to roll the commercial tires, the lightest of which weighs over 2 At the hearing, it was acknowledged that “Esther in HR” was Esther Neal, who acted as Respondent’s corporate representative. 120 pounds, onto the lift-gate rather than having to hoist them up and into the truck. Mr. Parsons testified that he discussed the possibility of a lift-gate with Mr. McGee but nothing came of their talk. Mr. Parsons testified that he would have been willing to install the lift-gate at his own expense had McGee Tire shown interest. He stated that a lift-gate costs between $1,600 and $2,000. Mr. Parsons testified that he very much wanted to return to work, having gone from making $10,000 per month to receiving workers’ compensation payments of $925 per week. He testified that he has had several opportunities to work for competitors of McGee Tire, but was stopped by the non-compete clause in the Asset Purchase Agreement with Monro. Mr. Parsons ultimately agreed to a workers’ compensation settlement of $40,000 with Monro. He testified that by the time of the settlement offer, he was in desperate financial straits and had little choice but to accept. As part of the agreement, Mr. Parsons signed a letter of resignation from McGee Tire. Mr. Parsons believed that he had been constructively discharged well before he signed the letter of resignation. Mr. Irving testified that he worked for five years at McGee Tire’s Dundee, Florida, location before moving to the Cantonment store on July 15, 2017. When Mr. Irving started at Cantonment, Mr. Parsons was the outside salesperson. Mr. Irving described the outside salesperson as the “billboard” of the company, responsible for building relationships and developing customers in the community. According to Mr. Irving, the outside salesperson makes or breaks the store. Without a good outside salesperson, “nobody knows you exist.” Mr. Irving testified that Mr. Parsons was highly effective in his job. Mr. Parsons had extensive relationships in the community. He could pick up the phone and turn a $2,000 day into an $8,000 day. Mr. Parsons was a team player, doing whatever needed to be done and asking Mr. Irving where he needed help. Mr. Irving testified that he never had any problems with Mr. Parsons. Mr. Irving’s recollection of Mr. Parsons’s injury and consequent events was consistent with Mr. Parsons’s testimony. Mr. Irving testified that for a time after his injury, Mr. Parsons continued to work from his home. Mr. Parsons was unable to endure driving to customers in Alabama, but he was able to cover the Pensacola area. Once Mr. Parsons began receiving workers’ compensation payments, he was no longer allowed to work for McGee Tire. Mr. Irving testified that Mr. Parsons’s workers’ compensation case was being handled from Monro’s corporate office in New York, and that the local McGee Tire store was in the dark as to when or if Mr. Parsons would be cleared to return to work. Mr. Irving testified that even when Mr. Parsons was on workers’ compensation and not being paid a salary, he continued to funnel business to McGee Tire. Mr. Irving remembered that Mr. Parsons handed McGee Tire a $79,000 sale by Esfeller Construction at a time he was not working and stood to receive no compensation for the referral.3 Mr. Irving testified that Monro made the decision to hire someone else for the outside sales position in about March 2018.4 Monro hired Scott Rainy. Mr. Irving testified that Mr. Rainy could not compare to Mr. Parsons in terms of knowledge about the merchandise and of the Pensacola area. People would come into the store and ask where Mr. Parsons was. Mr. Irving stated that “people buy from people,” and McGee Tire was losing business because Mr. Parsons was not there to take care of his customers. According to Mr. Irving, Mr. Rainy lasted in the job only until July 2018. 3 Mr. Parsons testified that Esther Neal was aware that he was working while receiving workers’ compensation and told him to stop. 4 Mr. Irving’s recollection as to the date cannot be correct, because Mr. Parsons was not injured until March 9, 2018. Based on context, it is assumed that the hiring decision was made in April or May of 2018. In November 2018, Monro hired Tyler Thompson to replace Mr. Rainy. Mr. Irving testified that Mr. Thompson has done a better job but still does not measure up to Mr. Parsons as a salesperson. Mr. Irving stated that Mr. Parsons is “gold” and Mr. Thompson is “silver” in terms of sales. As of the hearing date, Mr. Thompson was still working at McGee Tire. Mr. Irving testified that no one from Monro consulted him as to any accommodations that could be made to allow Mr. Parsons to return to work. Mr. Irving specifically suggested to the company that tire technicians could be used to help Mr. Parsons load and unload tires, but he received no feedback on his suggestion. Mr. Irving believed that Mr. Parsons was a “rainmaker.” His ability to sell tires was far more important than his ability to physically deliver them. Other staff persons could help Mr. Parsons with the deliveries. Mr. Irving testified that he would have liked to have Mr. Parsons back in the sales job. Mr. Thompson testified that he has worked for McGee Tire off and on for four years. He was originally hired by Mr. Parsons at Florida Tire Service as a “tire technician,” i.e., the employee who performs the manual labor of changing and repairing tires and going out on road service calls. When Monro purchased Florida Tire Service, Mr. Thompson went with Mr. Parsons to McGee Tire. Mr. Thompson testified that Mr. Parsons insisted Mr. Thompson be part of the package when Monro bought the company because Mr. Parsons knew that he could not afford to lose his job. Mr. Thompson had quit his job at McGee Tire and was working in marine construction when he was contacted by McGee Tire’s general manager Peter Brown in November 2018 and offered the tire sales position. Mr. Thompson testified it was his understanding that he was coming in to take Mr. Parsons’s old job. Mr. Thompson was 29 years old at the time he accepted the sales position. He agreed to a salary of less than $50,000. Mr. Thompson testified that he never heard any discussions about bringing Mr. Parsons back to work. He had the impression that Mr. Parsons was not coming back. Mr. Thompson was friendly with Mr. Parsons. They sometimes went hunting together. Mr. Thompson testified that he knew Mr. Parsons wanted to come back to McGee Tire. He recalled Mr. Parsons telling him that McGee Tire would not let him come back to work because of his injury. Mr. Thompson testified that he normally comes in to work at 7:30 a.m., and does paperwork for about an hour. From about 8:30 a.m. until 3:30 p.m., he is on the road. He drives to customers’ businesses, looks over their fleets and assesses their needs. Mr. Thompson stated that most businesses are beginning to wind up their day by 3:30 p.m. and do not want a salesperson “in their face” when they are trying to go home. He finishes up his day at the office. Mr. Thompson testified that while his position mostly involves sales, it can also be a physical job. Sometimes he must carry tires, load them on a trailer, drive them to the customer, then unload them at the customer’s place of business. Mr. Thompson testified that he was injured on the job about three months prior to the hearing date. He loaded about 30 commercial tires weighing roughly 100 pounds each into his truck and made the two hour drive to the customer’s location. He dropped off the tires and drove back to McGee Tire to close out the work day. He drove home. When he stepped out of his truck, his back “just kind of took me to my knees.” His physician prescribed anti-inflammatories and placed him on a five-pound lifting restriction. McGee Tire gave him the option of sitting at his desk rather than driving his truck because driving increased his back pain. Mr. Thompson testified that he tried working from his desk for a couple of days but decided there was money to be made on the road selling tires and went back out. Mr. Thompson testified that Mr. Brown directed the tire technicians to help him load and unload tires while he convalesced. His back improved over the course of two months. Mr. Thompson testified that his lifting restriction had recently been raised from five to 15 pounds. Mr. Thompson confirmed that Mr. Parsons had given him the lead that helped him make a large sale to Esfeller Construction, around 280 tires at $300 per tire. Mr. Thompson also confirmed that Mr. Parsons received nothing for helping with that sale. Anita McGuinness, Monro’s Director of Commercial Operations, testified on behalf of her employer. Ms. McGuiness testified that she was hired to consolidate the operations of three recently acquired tire companies, including McGee Tire, into one streamlined, profitable entity. Ms. McGuiness testified at some length about the reorganization she oversaw in 2018, but little of her testimony was directly relevant to the issues raised by Mr. Parsons. She made a point of stating that a salesperson has no supervisory authority over tire technicians, presumably as a way of stating that someone in Mr. Parsons’s position could not order a tire technician to help him load tires into his truck. This statement fails to acknowledge that the actual supervisor, Tory Irving, was perfectly willing to order the tire technicians to assist Mr. Parsons if the company would agree to bring him back to work. The statement also fails to acknowledge that tire technicians in fact assisted Mr. Thompson when he injured his back. Mr. Thompson testified that his supervisors have told him that he is above the tire technicians in the chain of command and has the authority to direct them when something needs to be done. He characterized the McGee Tire workforce as a “team” and stated that no one has ever refused to help him load tires. Ms. McGuiness testified that the main difference between Mr. Parsons and Mr. Thompson was that the former was “an ex-owner.” She stated that Mr. Parsons’s main job was to keep the store profitable during the transition to Monro, while Mr. Thompson’s job was to sell tires and generate new business. While it is true that Mr. Parsons spent the first several months of the transition finding and equipping the new McGee Tire location, the evidence was clear that this transition had more or less been accomplished by the time Mr. Irving came to work at the Cantonment location in July 2017. Mr. Irving’s undisputed testimony was that Mr. Parsons worked primarily as a salesperson. Mr. Irving wanted to bring Mr. Parsons back to sell tires. Mr. Thompson, hired as a tire salesperson, explicitly understood himself to be taking over Mr. Parsons’s position. Ms. McGuiness testified that Monro employs salespersons who are over the age of 40. She stated that when the company hires a salesperson, it first looks at sales knowledge and experience, commercial knowledge and experience, industry knowledge and experience, and whether the person lives in the area to be served. She did not explain how these criteria would favor Mr. Thompson over Mr. Parsons. Mr. Parsons testified that he pursued every avenue available to try and return to work for McGee Tire, but the company’s actions made it clear that “stronger, younger, and less money is what they were after.” Based on the facts adduced at hearing, Mr. Parsons’s conclusion is persuasive. The evidence presented by McGee Tire offered little more than testimony that the company employs other sales representatives over 40 years old. No effort was made to directly rebut the prima facie showing that Mr. Parsons was let go because of his age and disability. McGee Tire never offered a coherent explanation for Mr. Parsons’s dismissal, aside from a weak assertion that he “resigned” as part of a much later workers’ compensation settlement. Mr. Parsons convincingly testified as to the desperate financial circumstances, caused by McGee Tire, which led him to accept the settlement. The greater weight of the evidence is that Mr. Parsons had been constructively discharged by McGee Tire well before he signed the resignation letter. McGee Tire offered no explanation for why it accommodated Mr. Thompson when he was injured on the job, allowing him to spend more time in the office and directing tire technicians to load his tires, but could not offer the same accommodations to Mr. Parsons. McGee Tire offered no explanation for why it did not act on Mr. Parsons’s suggestion that a lift-gate be installed on his truck. Ms. McGuinness testified that the company uses lift-gates. She stated that any budget request for a lift-gate would come through her office. Nothing in her records indicated that the question of a lift-gate for Mr. Parsons ever reached her level in the corporation. Ms. McGuiness attempted to show that Mr. Thompson was not a proper comparator to Mr. Parsons. Her attempt was refuted by Mr. Irving’s testimony that Mr. Thompson was doing the same sales job as Mr. Parsons, and by Mr. Thompson’s testimony that from the outset he understood himself to be taking Mr. Parsons’s position. It is found that Mr. Parsons and Mr. Thompson were engaged in the same job, selling commercial tires for McGee Tire. McGee Tire offered no non-discriminatory business reason for failing to bring Mr. Parsons back to work after his injury. The evidence adduced at the hearing leads ineluctably to the finding that McGee Tire constructively discharged Mr. Parsons and then hired a younger person willing to do the same job for a lower salary. The evidence further established that McGee Tire treated Mr. Parsons as unable to perform his job duties due to his back injury, yet made accommodations for Mr. Thompson when he suffered a similar back injury. McGee Tire offered no explanation for its disparate treatment of the two employees or its failure to act on Mr. Parsons’s reasonable request for a lift- gate to be installed on his truck.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue an interlocutory order finding that Monro d/b/a McGee Tire & Auto committed an act of unlawful age discrimination against Petitioner, Jeff B. Parsons. It is further recommended that the Florida Commission on Human Relations remand this case to the Division of Administrative Hearings for an evidentiary proceeding to establish the amount of back pay/lost wages owed to Petitioner and to determine the amount of costs, including attorney’s fees, owed to Petitioner. DONE AND ENTERED this 2nd day of March, 2020, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of March, 2020. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020 (eServed) Ryan M. Barnett, Esquire Whibbs and Stone, P.A. Unit C 801 West Romana Street Pensacola, Florida 32502 (eServed) Esther J. Neal Monro d/b/a McGee Tire & Auto The Tire Circle 200 Holleder Parkway Rochester, New York 14615 (eServed) Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 (eServed)
The Issue Did the Respondent operate an unregistered commercial truck in Florida? Did the Petitioner correctly assess a penalty of $1,250 pursuant to Section 316.545, Florida Statutes, regulating operation of a commercial vehicle on a highway in the State of Florida?
Findings Of Fact On June 27, 1991, Sergeant Tommy Jackson, observed a dump truck traveling eastward on 65C in Gadsden County, Florida. The Sergeant stopped the truck which did not have a tag. The driver of the truck, which did not have a name on it, was asked for the registration. The driver could not produce the registration. Sergeant Jackson called Officer Bennie Lee York, Jr., to come assist him in weighing the dump truck on portable scales. The vehicle weighed 60,000 pounds. The vehicle's serial number was checked through the Florida Division of Motor Vehicle's computer which determined the vehicle had no Florida tag or registration. Sergeant Jackson and Officer York went to the job site to which the truck was bound to verify the tag and registration of the vehicle. A Georgia registration and incorrect tag was presented. Sergeant Jackson went to his nearby home to call and verify the registration with the Georgia authorities in Atlanta, Georgia. Georgia reported no record of a tag for the vehicle in the State of Georgia. Sergeant Jackson returned to the job site and advised the job foreman that the State of Georgia did not report the vehicle as being registered in Georgia. About two hours later, Mr. Kinard of General Development brought a registration that matched the truck serial number. However, it was for a non-apportioned Georgia commercial tag. Officer York advised Mr. Kinard that an apportioned International Registration Plan tag or a Florida Commercial registration was required to operate a commercial vehicle in Florida. Officer York issued a load report to General Development assessing a penalty for being 25,000 pounds over the legal limit in the State of Florida of 35,000 for a commercial vehicle. The amount of the penalty was $1,250.00, or 5 cents for every pound of vehicle weight over 35,000 pounds. The Respondent admitted the violation, however, the Respondent's representative indicated in his plea for mitigation that the driver had taken the truck without authorization. The statutes governing the operation of motor vehicles provide for strict liability against the owner of a vehicle.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finalizing assessment of the $1,250.00 penalty assessed against General Development pursuant to Section 316.545, Florida Statutes. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 26th day of February 1992. STEPHEN F. DEAN 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 February 1992. COPIES FURNISHED: Vernon L. Whittier, Jr. Assistant General Counsel Florida Department of Transportation 605 Suwannee Street, M.S. 58 Tallahassee, Florida 32399-0458 Ray Campbell, Secretary General Development Post Office Box 654 Quincy, Florida 32351 Ben G. Watts Secretary Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street Tallahassee, Florida 32399-0458 ATTN: Eleanor F. Turner Thornton J. Williams General Counsel Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street Tallahassee, Florida 32399-0458
The Issue The only factual issue in this case is whether the Superior Paving triple axle dump truck being driven by Norman Jones on February 13, 1990, on U.S. 41 in the vicinity of the Gardinier plant near Gibsonton, south of Tampa, Florida, was being operated with its air axle up, resulting in its being over the maximum weight for its remaining tandem rear axle under Section 316.535, Florida Statutes (1989). However, this straightforward factual case also raises several legal and procedural questions, including: (1) whether the Division of Administrative Hearings has jurisdiction; (2) which agency is authorized to take final agency action in the case; (3) who are the actual parties in interest; (4) whether the parties have standing; and (5) which party bears the burden of proof.
Findings Of Fact On February 13, 1990, while traveling south on U.S. 41 in the vicinity of the Gardinier plant near Gibsonton, south of Tampa, Florida, Patty Fagan, a DOT Motor Carrier Compliance Officer, observed a Superior Paving, Inc., dump truck traveling north on U.S. 41 with a full load of rock. She decided to check the load and, as she began to slow, she saw a second Superior Paving dump truck, also heading north with a full load of rock. She testified that the second truck was riding with its air axle up, leaving only two tandem rear axles, along with the steering axle, to bear the weight of the load. Fagan continued a short distance to the south on U.S. 41 until she was able to turn around and pursue the trucks to the north. She passed the second truck between one and two miles from where she turned around and testified that the second truck still was traveling with its air axle up. Fagan pulled up behind the first truck where it had stopped in the left turn lane at the entrance of the Gardinier plant. She got out to check the first truck. Meanwhile, the second truck, driven by Norman B. Jones, pulled up behind Fagan's vehicle. According to Fagan, Jones' truck still had the air axle up. According to Jones, the air axle was down at all times that he was within sight of Fagan until he pulled into the left turn lane behind Fagan's car and, while she was talking to the driver of the first truck, raised the air axle in preparation for the left turn. It would be difficult for anyone, much less an experienced compliance officer like Fagan, to mistakenly think she saw Jones' truck riding with the air axle up. It is obvious and easy to see whether the air axle is up or down. Likewise, it was easy for Jones to determine whether the air axle was up or down. There is a switch and an air pressure gauge immediately to the right of the driver seat which registers 40 pounds of pressure when the air axle is down and zero when it is up. The factual issue resolves to a question of the relative credibility of Fagan and Jones. Fagan wrote in her report of the incident that Jones first admitted that he had been driving with his air axle up because it was malfunctioning. The report states that Jones told her the problem was noticed when he picked up his first load in Brooksville and that he planned to have the problem fixed after his third load. She wrote that she told him he should have had it fixed before he left the yard with the first load. In fact, Jones only carried two loads that day, as usual, and never planned to carry three loads. He picked up both loads in Center Hill, Florida, about 60 miles northeast of Brooksville, and drove to Gardinier via I-75, also to the east of Brooksville, never going anywhere near Brooksville. Jones denied having made the statements the report attributes to him and stated that he had no reason to mention Brooksville or an alleged third load in the course of his conversation with Fagan. Fagan also wrote in her report that Jones changed his story later in the conversation and claimed that the air axle worked but was slow. Fagan said her response was that the air axle should have been down by the time she passed him for the second time, after she had turned around to head north on U.S. 41. Jones also denied that he ever said the air axle was slow. He testified that the air pressure system was worked on just two weeks before the incident and that it was in perfect operating condition. Neither party adduced any documentary evidence or testimony of third persons to establish whether air pressure system repairs were done on the truck or, if so, when they were done or what the problem was. Jones testified that his last load out Brooksville was "about six months ago." It is not clear whether he meant six months before the incident or six months before the hearing, which would have put it about the time of the incident, and also about the time work was done on the air pressure system. The evidence suggests the possibility that an air pressure problem arose while Jones was carrying a load out of Brooksville and that he had mentioned this to Fagan. In response to questioning by counsel for the DOT, Jones first stated that it is common to have problems with the air axle and that he has had trouble with the air axle on the same truck he was driving on February 13, 1990. In his next breath, he stated that he has had no trouble with the air axle on the truck but said he did have the governor on the air pressure system replaced "about a year and a half ago." (Again, his testimony was not clear whether he meant a year and a half before the incident or before the hearing.) He also again admitted that about two weeks before the incident, the air pressure lines and valves were replaced, and the air axle line was reattached to the new valve. According to Fagan, after checking the first truck, she went back to Jones' truck, asked Jones for his load ticket and, while he was looking for it in the cab, did a routine check by feeling the tires on the air axle and on the front tandem axle on the driver side. She testified that the tire on the air axle was cooler. Jones denies that Fagan ever touched or even got close to the tandem axle. Jones testified that he standing on the step to the cab when Fagan walked up and asked to see the his load ticket and that he just reached in, grabbed it off the dashboard and handed it to her. He testified that he then stepped to the ground and stood between Fagan and the rear axles and that she never walked past him. Later in testimony, Fagan testified that she might have asked Jones for the vehicle registration so that she could check the registered gross weight of the vehicle, and that Jones was looking for it in the cab while she was touching the vehicle tires. But Jones countered that Fagan did not ask for the vehicle registration until later, when they were at the weigh station to which Fagan had Jones drive. Jones testified that the air axle was down all the way from Center Hill except for just two times on each load when he raised it for purposes of negotiating tight turns, as permitted by the DOT's nonrule policy designed to reduce road and truck wear and tear: once when he turned onto U.S. 41; and a second time after he entered the left turn lane at the entrance of the Gardinier plant and stopped behind Fagan's car, while Fagan was talking to the driver of the first truck. However, Jones' description of his route from Center Hill to Gardinier included several other turns that would seem to have been just as tight as the two he says were the only times he raised his air axle. As Jones pointed out, if the rest of his testimony is true, even if the air axle was up the entire time from when he turned onto U.S 41 until he was stopped at the entrance to the Gardinier plant, the air axle tires still would have been hot to the touch. Conversely, if Fagan's testimony that the air axle tire was cool to the touch is true, then the air axle probably was up for most, if not all, of the trip from Center Hill. No statement was taken, or testimony elicited, from the driver of the other company truck to shed light on this factual dispute. Despite the difficulties presented by the evidence in this case, it is found that the DOT has proven by a preponderance of the evidence that Jones was operating the company truck he was driving on February 13, 1990, with the air axle up at least for a mile or two along U.S. 41. After their conversation in the left turn lane at the Gardinier plant entrance, Fagan required Jones to drive to a weigh station. (It angered Jones that this weigh station was five miles out of Jones' way. Jones did not understand why the truck could not have been weighed at the Gardinier plant.) The scale showed that 52,540 pounds of weight was being supported by the rear tandem axles of the truck. After weighing the truck, Fagan issued a citation and $387 fine to Superior Paving, Inc. The company paid the fine and deducted it from Jones' salary. The company never challenged the fine, and there is no evidence in the record that the company authorized Jones to challenge it on the company's behalf. Jones reqested that the Commercial Motor Vehicle Review Board drop or the fine reduce, which it declined to do.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Commercial Motor Vehicle Review Board enter a final order upholding the $387 fine it assessed against Superior Paving, Inc., in this case. RECOMMENDED this 24th day of September, 1990, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 24th day of September, 1990.
Conclusions This matter came before the Department for entry of a Final Order upon submission of an Order Closing File by Jeff B. Clark, an Administrative Law Judge of the Division of Administrative Hearings, a copy of which is attached and incorporated by reference in this order. The Department hereby adopts the Order Closing File as its Final Order in this matter. Said Order Closing File was predicated upon Respondents Notice of Voluntary Dismissal. Accordingly, it is hereby ORDERED and ADJUDGED that Intervenor, Regal Pontiac, Inc. d/b/a Regal Chevrolet, be granted a license for the sale and service of the Chevrolet (CHEV) linemake at 925 Highway 98 South, Lakeland (Polk County), Florida 33801 upon compliance with all applicable requirements of Section 320.27, Florida Statutes, and all applicable Department rules. Filed June 30, 2010 8:00 AM Division of Administrative Hearings. DONE AND ORDERED this 28 “day of June, 2010, in Tallahassee, Leon County, Florida. L A. FORD, Director Division of Motor Vehicles Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399 Filed with the Clerk of the Division of Motor Vehicles this AS# day of June, 2010. we Vinayak, Dealer ga Administrator NOTICE OF APPEAL RIGHTS Judicial review of this order may be had pursuant to section 120.68, Florida Statutes, in the District Court of Appeal for the First District, State of Florida, or in any other district court of appeal of this state in an appellate district where a party resides. In order to initiate such review, one copy of the notice of appeal must be filed with the Department and the other copy of the notice of appeal, together with the filing fee, must be filed with the court within thirty days of the filing date of this order as set out above, pursuant to Rules of Appellate Procedure. CAF: vig Copies furnished: J. Andrew Bertron, Esquire Nelson Mullins Riley & Scarborough, LLP 3600 Maclay Boulevard South, Suite 202 Tallahassee, Florida 32312 John W. Forehand, Esquire Kurkin Forehand Brandes, LLP 800 North Calhoun Street, Suite 1B Tallahassee, Florida 32303 Robert C. Byerts, Esquire Bass, Sox & Mercer 2822 Remington Green Circle Tallahassee, Florida 32308 Jeff B. Clark Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Florida Administrative Law Reports Post Office Box 385 Gainesville, Florida 32602 Nalini Vinayak Dealer License Section
Conclusions This matter came before the Department for entry of a Final Order upon submission of an Order Closing File by June C. McKinney, Administrative Law Judge of the Division of Administrative Hearings, pursuant to the Petitioner’s Notice of Voluntary Dismissal, a copy of which is attached and incorporated by reference in this order. The Department hereby adopts the Order Closing File as its Final Order in this matter. Accordingly, it is hereby ORDERED that this case is CLOSED Filed May 26, 2011 8:54 AM Division of Administrative Hearings DONE AND ORDERED this 23 day of May, 2011, in Tallahassee, Leon County, Florida. . Lambert, Interim Director Division of Motor Vehicles Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A435, MS 80 Tallahassee, Florida 32399 Filed with the Clerk of the Division of Motor Vehicles this JS day of May, 2011. fos . Nalini Vinayak, Dea! Administrator NOTICE OF APPEAL RIGHTS Judicial review of this order may be had pursuant to section 120.68, Florida Statutes, in the District Court of Appeal for the First District, State of Florida, or in any other district court of appeal of this state in an appellate district where a party resides. In order to initiate such review, one copy of the notice of appeal must be filed with the Department and the other copy of the notice of appeal, together with the filing fee, must be filed with the court within thirty days of the filing date of this order as set out above, pursuant to Rules of Appellate Procedure. SCL:vlg Copies furnished: J. Andrew Bertron, Esquire Nelson Mullins Riley & Scarborough, LLP 3600 Maclay Boulevard South, Suite 202 Tallahassee, Florida 32312 Robert Craig Spickard, Esquire Kurkin Forehand Brandes LLP 800 North Calhoun Street, Suite 1B Tallahassee, Florida 32303 Heather Zawol General Motors LLC 100 Renaissance Center M/C 482-A07-C66 Detroit, Michigan 48265 June C. McKinney Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Nalini Vinayak Dealer License Administrator
The Issue The issue in this case is whether the Hayes & Hayes Trucking triple axle dump truck being driven by Norman Williams on June 20, 1990, on U.S. 92 between 56th Street and Orient Road in Tampa, Florida, was being operated with its air axle up, resulting in its being over the maximum weight for its tandem rear axles, as well as for its steering axle, under Section 316.535, Florida Statutes (1989).
Findings Of Fact On June 20, 1990, Norman Williams was operating a dump truck owned by Hayes & Hayes Trucking on 56th Street in Tampa, Hillsborough County, Florida. The truck was equipped with a steering axle, tandem rear axles and a middle "mini-axle" that can be lowered to carry heavy loads. When required to carry heavy loads, the "mini-axle" can be raised only during turning but must be lowered upon completion of the turn. When Williams got to U.S. 92, he raised the "mini-axle" and made a right turn onto U.S. 92, headed east. He did not lower the "mini-axle" after the turn. While headed west on U.S. 92, about a hundred yards east of 56th Street, Rebecca Stalnaker, a DOT Motor Carrier Compliance Officer, observed the dump truck Williams was driving traveling east on U.S. 92 with its air axle up. She made a U-turn to check the load. After making her U-turn, Stalnaker followed the truck, which was traveling in the left lane of the eastbound traffic on U.S. 92, for approximately a mile. Three or four times, Stalnaker changed to the right lane to verify that the truck's air axle still was up. After following for about a mile, Stalnaker put on her blue light to get the driver of the truck to pull over and stop. For the first time, Williams saw Stalnaker in his side view mirror and, as he began to pull into the right lane, put his truck's air axle down. Williams pulled the truck off the right side of the road. When Stalnaker confronted Williams and accused him of driving with the air axle up, Williams replied that he thought it was permissible to drive with the air axle up in town when driving in traffic in streets having traffic signalization. Stalnaker required Williams to put the air axle back up and drive his truck to a weigh station. The scale showed that the front, steering axle of the truck was supporting 19,980 pounds and the rear, tandem axles of the truck were supporting 47,400 pounds. After weighing the truck, Stalnaker issued a citation and $181.50 fine to Hayes & Hayes Trucking. The company paid the fine and required Williams to reimburse the company. The company never challenged the fine, and there is no evidence in the record that the company authorized Williams to challenge it on the company's behalf. Williams requested that the Commercial Motor Vehicle Review Board drop the fine. The Review Board and the Department acquiesced in Williams' standing, but the Review Board declined to drop the fine.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Transportation enter a final order upholding the $181.50 fine it assessed against Hayes & Hayes Trucking in this case. RECOMMENDED this 2nd day of October, 1991, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 2nd day of October, 1991.
