Findings Of Fact On or about September 11, 1989, a commercial, dump truck owned by Petitioner, Alamazan Brothers Trucking, Inc., was travelling on State Road 807. Mr. Michael Roberts, Safety and Hazardous Materials Officer for Respondent, Department of Transportation, noticed that the truck did not have the required identification on the door and stopped the truck for further investigation. After the truck stopped, Mr. Roberts noted that the truck possessed an expired temporary license tag, and the driver did not have a valid registration for the truck. Mr. Roberts, then, weighed the truck with his portable scale and calculated a gross weight of 65,900 pounds. Mr. Roberts gave the driver the opportunity to contact the owner of the truck about the registration and, in accordance with policy of the Department, allowed the owner over one hour to produce a valid registration. A representative of the owner appeared and showed Mr. Roberts a duplicate registration certificate purchased the same day as the incident which indicated that the authorized gross weight for the truck was 24,680 pounds. Mr. Roberts made the determination that the registration was not valid at the time of the stop and imposed a fine for overweight of $1,545. The fine was calculated for the amount of the gross weight in excess of 35,000 pounds times five cents per pound. Existent law establishes that, for the purposes of calculation of a penalty such as the one at issue, the authorized gross weight for an unregistered vehicle is 35,000 pounds. An additional $50 was imposed as the fine for not having the required identification on the door of the truck. The total penalty of $1,595 was paid under protest. However, Petitioner did, in fact, have a valid registration on the day of the stbp. Through administrative delay, the registration certificate had not been mailed to Petitioner. On or around September 7, 1989, Petitioner purchased the truck and a temporary tag was issued to Petitioner by the dealer from which he purchased the truck. At that time, an application for registration was made to the Department of Highway Safety and Motor Vehicles. The application was for a registration authorizing a gross weight of 64,000 pounds. Petitioner had not received the permanent tag or registration by the date the stop occurred. After Petitioner was alerted at the stop, Petitioner obtained a duplicate registration within the time allotted to him by Respondent. This duplicate, the one shown to Mr. Roberts on the day of the stop, indicated an authorized gross weight of 24,680 pounds, an obvious typographical error. The gross weight did not match the gross weight applied for, instead, it duplicated the amount of the empty weight into the gross weight category. On September 13, 1989, Petitioner returned the form to the issuer and requested a corrected duplicate registration. The second duplicate also was in error. This time the form indicated the correct gross weight of 64,000 pounds, but, also, repeated that gross weight amount in the empty weight category. At the hearing, Petitioner also presented the application for registration which indicated it had applied for and was taxed for a gross weight of 64,000 pounds. It was only due to administrative delay that the correct registration was not presented at the time of the stop. However, no competent evidence was received which indicated that the truck did possess the required identification on the door, and Mr. Robert's testimony about the lack of such identification is deemed credible. Although the correct gross weight for which Petitioner is licensed is 64,000, his load at the time of the stop was 65,900 or 1,900 in excess of his 64,000 pound authorized amount. At five cents a pound his penalty for overweight should be $95.00 and not $1,545.00. The $95.00 plus the $50.00 for the failure to display the required identification yields a corrected fee of $145.00 and a refund due to Petitioner of $1,400.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the Department of Transportation issue a Final Order correcting the fine imposed on Petitioner, establishing the appropriate fine at $145.00 and refunding $1,400 to Petitioner. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 5th day of June, 1990. JANE C. HAYMAN 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 June, 1990. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-2088 The following represents the rulings on the proposed findings of fact submitted by the parties. The rulings are by paragraph within the proposed findings of fact and indicate the paragraph in the findings of fact portion of the attached recommended order which addresses the proposed finding of fact, if deemed appropriate. RESPONDENT Adopted in relevant part in paragraphs 1,2 and 3. Adopted in relevant part in paragraphs 4,5 and 9. Adopted in relevant part in paragraphs 6,7,8 and 10. COPIES FURNISHED: Dewey H. Varner, Esquire Varner, Cole & Seaman 2601 Tenth Avenue, North, Suite 410 Lake Worth, Florida 33461 Vernon T. Whittier, Jr., Esquire Department of Transportation 605 Suwannee Street Tallahassee, Florida 32399-0450 Ben G. Watts, Secretary Attn: Eleanor F. Turner Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Robert Scanlan Interim General Counsel Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street Tallahassee, Florida 32399-0458
The Issue Whether Respondent performed an act which assisted a person or entity in engaging in the prohibited uncertified and unregistered practice of contracting, or whether he applied for and obtained a permit without having entered into a contract to perform the work specified in the permit, as set forth in the Administrative Complaint; and, if so, what is the appropriate sanction.
Findings Of Fact The Department of Business and Professional Regulation is the state agency charged with regulating the practice of construction contracting pursuant to section 20.165 and chapters 455 and 489, Florida Statutes. At all times material to these proceedings, Mr. Jenkins was licensed as a certified general contractor in the state of Florida, having been issued license number CGC 1513481. Mr. Jenkins' license is current and active. At all times relevant to the Administrative Complaint, Mr. Jenkins was the primary qualifying agent of Abacoa Construction, LLC (Abacoa). Mr. Jenkins was responsible for supervision of all operations of Abacoa; for all field work at all sites; and for financial matters, both for Abacoa in general and for each specific job. On or about October 29, 2015, Robert Maione entered into a contract with John Martinache, d/b/a All 4 One Project, LLC, for renovations to his residence located at 364 Golfview Road, Unit 407, North Palm Beach, Florida 33408. Mr. Maione was aware that Mr. Martinache was unlicensed. On or about December 8, 2015, Mr. Jenkins, d/b/a Abacoa, obtained Building Permit No. 16063 from the Village of North Palm Beach Building Department for electric, HVAC, and plumbing. The permit was for the renovations at the Golfview Road residence. Mr. Martinache proceeded on interior renovations requiring proper licensure without having been certified or registered to engage in the practice of construction contracting in the state of Florida. Mr. Jenkins was aware that Mr. Martinache was not licensed for this work. Mr. Jenkins did not have a contract for the construction at Golfview Road, did not supervise it, and received no compensation for it. Restitution cannot be calculated based on the available facts, as the value of the work and actual damages are unclear. There is no evidence of financial loss suffered by a consumer in this case. It was clearly and convincingly shown that Mr. Jenkins assisted a person or entity in engaging in the prohibited uncertified and unregistered practice of contracting. It was clearly and convincingly shown that Mr. Jenkins applied for and obtained a permit without having entered into a contract to perform the work specified in the permit. Mr. Jenkins has not been subject to prior discipline.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Construction Industry Licensing Board enter a final order finding Mark Lewis Jenkins in violation of sections 489.129(1)(d) and 489.129(1)(i), Florida Statutes; placing his contractor's license on probation for a period of two years; imposing an administrative fine of $8,500.00; and requiring him to complete an additional live continuing education course of seven hours emphasizing chapter 489 and implementing rules and to pay costs in the amount of $171.66. DONE AND ENTERED this 14th day of September, 2017, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of September, 2017. COPIES FURNISHED: Labeed A. Choudhry, Esquire Ward Damon, Attorneys at Law 4420 Beacon Circle, Suite 100 West Palm Beach, Florida 33407-3281 (eServed) Ramsey D. Revell, Esquire Department of Business and Professional Regulation Capital Commerce Center 2601 Blair Stone Road Tallahassee, Florida 32399-2202 (eServed) James David Burkhart, Esquire Department of Business and Professional Regulation Capital Commerce Center 2601 Blair Stone Road Tallahassee, Florida 32399-2202 (eServed) Jason Maine, General Counsel Department of Business and Professional Regulation Capital Commerce Center 2601 Blair Stone Road Tallahassee, Florida 32399-2202 (eServed) Daniel Biggins, Executive Director Construction Industry Licensing Board Department of Business and Professional Regulation Capital Commerce Center 2601 Blair Stone Road Tallahassee, Florida 32399 (eServed)
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.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is recommended that the assessment of the documentary stamp surtax in the amount of $2,436.50 and the penalty in a like amount, for a total assessment of $4,873.00, be upheld. Respectfully submitted and entered this 17th day of December, 1976, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of December, 1976. COPIES FURNISHED: Mr. Gerald J. Biondo PAUL, LANDY, BAILEY & YACOS 200 Southeast First Street Miami, Florida 33131 Mr. Edwin J. Stacker Assistant Attorney General Department of Legal Affairs The Capitol Tallahassee, Florida 32304 Mr. J. Ed Straughn Executive Director Department of Revenue The Capitol Tallahassee, Florida 32304
The Issue Whether Respondent had violated Section 479.07(1), Florida Statutes, in that no permits were secured for subject sign for the years 1972 and 1975.
Findings Of Fact No permits were applied for or secured.
Findings Of Fact Respondent owns and operates a tractor-trailer combination that it uses for hauling a large crane. As configured at the time in question, the gross vehicle weight was 127,780 pounds, which is distributed over one steering axle, a four-axle combination at the rear of the trailer, and a three- axle combination between the other axles. The four-axle combination bore 60,280 pounds. The outerbridge of the vehicle, which is the distance from the front axle to the rear axle, was over 70 feet. Respondent, which is a small company located in Tennessee, transports its crane throughout the southeastern portion of the United States. Respondent employs a company known as Comchek to secure the necessary permits for the trips. In this case, Comchek obtained for Respondent a Trip Permit dated April 12, 1989. The permit states that the trip is from the Georgia line to the Alabama line on Interstates 95, 295, and 10. The permit notes that the vehicle is 75 feet long, has eight axles, and weighs 135,000 pounds. One of the special requirements on the permit states: "If overweight, a max (3)000 axles allowed per grouping with a minimum of 10 feet to next adjacent axle, center to center." The "000" represents a graphic depiction of three axles. Respondent's vehicle did not meet the axle-grouping requirement. Less than 10 feet separated the four axles in the rear from each other. Thus, the vehicle, if overweight, violated this condition of the permit. The permit contains only two references to weight. One notes the gross weight. The other is in a special condition and requires that overweight vehicles obtain an 80,000 pound license tag. Although the Trip Permit does not clearly disclose on its face that any weight over 80,000 pounds is overweight, Respondent's representatives were on notice that their long and heavy vehicle exceeded the normal weight restrictions so as to be classified as "overweight." The permit's reference to 135,000 pounds cannot be construed to set the standard over which a vehicle would be overweight. Otherwise, the permittee could use the permit to transport a 300,000 pound load on an eight-axle vehicle as long as the vehicle had no axle groupings of more than three. The failure to obtain the proper permit was the fault of Respondent or its agent, Comchek. Either Respondent did not communicate the axle groupings to Comchek or Comchek did not communicate them to Petitioner. In either event, through no fault of Petitioner, the Trip Permit obtained by Respondent was violated the moment the vehicle crossed the Florida line. Inspecting the vehicle at the Sneads inspection station at 6:53 a.m. on April 14, 1989, Petitioner's representatives discovered the violation. The Load Report and Field Receipt of the same date, which cites a violation of Section 316.545, Florida Statutes, states that the gross weight of 127,780 pounds exceeds the legal weight of 80,000 pounds by 47,780 pounds. The resulting penalty is $2389. The receipt acknowledges payment under protest. At 9:53 a.m. on the same date, Petitioner issued to Respondent a second Trip Permit that suspended the requirement of 10 feet between axle groupings. Petitioner released the vehicle at 11:05 a.m., and the vehicle completed the remainder of its trip in Florida without incident. The expedience with which Petitioner issued the second Trip Permit was largely because Respondent had already crossed the bridges that were most vulnerable to excessive loads. However, due to the length of the outerbridge and the number and distribution of axles, Petitioner's expert determined that Petitioner would have, after computer analysis, issued a permit for the vehicle as originally configured, if the proper information had been supplied.
Recommendation Based on the foregoing, it is recommended that the Commercial Motor Vehicle Review Board enter a Final Order finding Respondent guilty of violating the above-cited statutes and imposing a fine of $2389 or such lesser amount as the Board may deem appropriate. DONE and ORDERED this 13th day of December, 1989, in Tallahassee, Florida. ROBERT E. MEALE 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 December, 1989. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 89-4523 Treatment Accorded Proposed Findings of Petitioner 1-6: adopted or adopted in substance. 7 and 12: rejected as recitation of testimony, argument, and not finding of fact. 8-11: rejected as subordinate. 13-16: adopted or adopted in substance. 17: rejected as against the greater weight of the testimony of DOT's expert witness, Larry H. Davis. There is no evidence that the outerbridge was only 51 feet. There is conflicting evidence as to the length of the outerbridge, which is at least 64 feet. The diagram that Respondent gave to Petitioner in applying for the permit states that the vehicle length is 75 feet. Subtracting the distance of five feet and three inches between the centerline of the rearmost axle and the rear extreme of the vehicle, the outerbridge is almost 70 feet. However, adding up the confusing distances given on the diagram, which among other shortcomings is clearly not drawn to scale, the total outerbridge is 54 feet. The distance between the centerline of the three-axle grouping and the four-axle grouping was 30 feet. The distance between the first and fourth axle in the rear is about 13 feet. The distance between the steering axle and the rearmost of the three-axle group is about 21 feet. COPIES FURNISHED: David M. Maloney Assistant Attorney General Department of Legal Affairs The Capitol, Suite 1602 Tallahassee, Florida 32399-1050 Carl R. Nidiffer, President Precipitator Services Group, Inc. P.O. Box 339 Elizabethton, TN 37644 Ben Watt Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450 Thomas H. Bateman, III General Counsel Department of Transportation 562 Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450 Elyse S. Trawick, Executive Secretary Commercial Motor Vehicle Review Board Department of Transportation 605 Suwanee Street Tallahassee, Florida 32399-0450 STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION COMMERCIAL MOTOR VEHICLE REVIEW BOARD, DEPARTMENT OF TRANSPORTATION, Petitioner, vs. DOAH CASE NO. 89-4523 PRECIPITATOR SERVICES GROUP, INC., Respondent. /
The Issue The issue presented is whether Respondent terminated Petitioner's employment due to Petitioner's disability.
Findings Of Fact Respondent Ryan Companies is in the business of site development, including underground utility work. Ryan employed Petitioner in September 1995 to operate a front-end loader for Ryan's pipe division. A front-end loader is a heavy machine used to carry heavy materials in a front-end bucket. Petitioner's duties involved unloading materials with the front- end loader and laying the materials out with the loader in an area adjacent to where the piping crews were working. At the time of his employment, Petitioner wore a brace on his left leg as a result of complications from back surgery which Petitioner had undergone approximately ten years before his employment by Ryan. Petitioner disclosed on his written application that he wore the brace on his left leg but that he needed no reasonable accommodation to assist him in performing the essential functions of his job. Petitioner was able to climb in and out of the cab of the front-end loader without assistance. He also drove his own vehicle to and from work. His only restriction on driving was that he was not able to operate a vehicle which had a clutch. Although Petitioner asserts that he was disabled at the time he was employed by Ryan, Petitioner did not represent himself to be disabled to Ryan's other employees. Further, other Ryan personnel did not perceive him to be disabled. They only noticed that Petitioner walked stiff-legged with a limp, using a cane. Petitioner admits that he was able to perform his duties. Although Petitioner was not able to lift heavy objects, his duties did not require him to do so, and no evidence was offered that any inability to lift heavy objects was related to his left leg. Petitioner's position only required him to drive the front-end loader and move material for the pipe crews. Although Petitioner successfully completed his probationary period with Ryan, there were problems with his performance. On more than one occasion, Petitioner destroyed materials and knocked down grade stakes while operating his front-end loader. Petitioner's supervisor told him on more than one occasion that if it happened again, he would be replaced. Replacing the materials and having the survey crew return to the job site to re-position stakes cost Ryan money. However, Petitioner's supervisor was also concerned with the safety of the men laying pipe as a result of Petitioner's driving skills. It was ultimately decided by Ryan supervisory personnel that it was too risky to allow Petitioner to continue to operate a front-end loader. Rather than terminating Petitioner for inadequate performance, his supervisor first inquired of other supervisors if any of them could give Petitioner a different position in the company. Another supervisor said he had a position for Petitioner. Petitioner was transferred to the position of "ticket writer," in which Petitioner was to keep track of the material being trucked out from Ryan's haul pit at Winston Trails. Petitioner was required to write down the amount of material being hauled by each truck and was instructed in proper procedure by his new supervisor. His supervisor wrote out a sample for Petitioner to follow and filled out the first few tickets to show Petitioner what to do. Each time a new company came to the haul pit, Petitioner's supervisor wrote out a new form for Petitioner to follow. The amount of information to be recorded on the ticket was minimal: the name of the company taking the material, the date, the job site, and how many yards of material were being taken. The driver of the truck then signed the ticket. Petitioner was capable of performing his duties as a ticket writer. He never advised anyone that he could not read or write well enough. Rather, Petitioner admits he was capable of writing the tickets. However, Petitioner was careless in completing the tickets accurately, sometimes writing the name of the wrong company or incorrectly noting whether the truck was hauling 16 yards or 18 yards. He also put tickets in the wrong piles, causing the wrong customer to be billed. The tickets represent a bill of sale, and Petitioner was advised by his supervisor more than once that it was important that Petitioner complete the tickets more accurately. Petitioner was advised that if he continued to be careless, he would be terminated. Petitioner was terminated in August 1996 for continuing to write incorrect information on the truck loading tickets. The brace on Petitioner's left leg had no impact on Petitioner's ability to write tickets. Although Petitioner's representative appeared to argue at the final hearing that Petitioner cannot read or write, Petitioner disagrees with that suggestion. Petitioner was able to read maps and bills of lading when he had previously worked as a truck driver. He was also able to pass the Coast Guard four-hour written examination for a captain's license. He was also able to write for his daughter's use in his litigation a detailed report of his experiences at Ryan from the time he was hired until he was terminated. Petitioner had worked as a charter boat captain for about ten years prior to going to work for Ryan. The brace he wore on his left leg did not impede his ability to operate a charter boat in the open ocean, regardless of rough weather conditions. Since being terminated by Ryan, Petitioner has been employed as a security guard and does not have any problem fulfilling his duties.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding Respondent Ryan Companies not guilty of terminating Petitioner due to his disability and dismissing Petitioner's complaint filed in this cause. DONE AND ENTERED this 22nd day of March, 2002, in Tallahassee, Leon County, Florida. LINDA M. RIGOT Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of March, 2002. COPIES FURNISHED: Deborah Rogers, Qualified Representative 445 Australian Circle Lake Park, Florida 33403 Paul M. Woodson, Esquire Houston & Shahady, P.A. 316 Northeast Fourth Street Fort Lauderdale, Florida 33301 Cecil Howard, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Violet D. Crawford, Agency Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
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 issues to be determined in this case are whether Respondent has violated Section 943.1395(7), Florida Statutes (2007), and if so, what penalty should be imposed for any proven violations?
Findings Of Fact Respondent is a certified law enforcement officer, having been issued certificate number 245960. On June 26, 2008, Respondent was a Gainesville Police Department (GPD) officer assigned to a Wal-Mart store on an overtime detail. The overtime detail was arranged in response to complaints of vandalism and disturbances at the store by groups of juveniles. No complaints had been registered regarding the wrongful use of handicapped parking. Late in the evening of June 26, 2008, Felecia Stallworth drove to the Wal-Mart Store and parked her car in a handicapped parking space in the store parking lot. A handicapped placard was displayed hanging from Ms. Stallworth's rear view mirror. She exited her vehicle, along with her 12-year-old son and six- year old niece. As she headed toward the entrance of the store, Ms. Stallworth was talking on a cell phone. Respondent, dressed in his police uniform and wearing a badge, walked up to Ms. Stallworth and spoke to her, presumably asking for her ID. Because she was talking on the phone, Ms. Stallworth did not hear him at first. She stopped and asked Respondent what he wanted, and he told her to return to her car and to provide him with proof that she was authorized to park in a handicapped parking space. Ms. Stallworth's unrebutted testimony was that Respondent was rude and demeaning. She asked him why he needed the information, and Respondent told her to "shut up" and again told her to provide the requested information. Respondent's comments to Ms. Stallworth were heard by others. One bystander who did not know Ms. Stallworth previously testified about the incident. Her testimony is consistent with Ms. Stallworth's and is credited. Ms. Stallworth returned to her car and, leaving the car door open, sat in the driver's seat and retrieved the handicapped registration from the glove compartment. While doing so, she instructed the two children to get back in the car. The children started toward the passenger car door, only to be instructed by Respondent to stay where they were. Ms. Stallworth was unhappy with the way she perceived Respondent to be treating her. While looking for her driver's license, she asked Respondent for his name and badge number, and stated she intended to complain about his behavior. She could not find her driver's license, however, because Respondent was shining his flashlight toward her face. Ms. Stallworth asked Respondent repeatedly to stop shining the light in her eyes, but he continued to direct the beam of the light toward her face. Ms. Stallworth decided to exit the car and place her purse on the hood of the car to continue to look for her driver's license. She stood up to exit the car for this purpose. She did not tell Respondent she intended to get out of the car. As soon as she stood up, Respondent pushed her up against the side of the car, using a "blocking" type move. The force of the impact pushed Ms. Stallworth's back against the frame of the car, and pushed the side of her face against the door. The action left her sitting back in the driver's seat of the car. Respondent told her if she stood up again, he would arrest her. Ms. Stallworth responded by telling Respondent his behavior made no sense. Ms. Stallworth experienced some burning of her face and some back pain as a result of the incident, but had no lasting injuries. She was, however, very upset about Respondent's actions and especially upset about her son and niece seeing her treated this way. She reported that her son previously wanted to be a police officer. After the incident he no longer wanted to pursue law enforcement as a career. Ms. Stallworth located her driver's license and handed it to Respondent. After inspecting her documentation, Respondent returned it to her, told her to have a nice day, and then walked toward the store entrance. After Respondent left Ms. Stallworth's car, several bystanders walked over to see if she was alright. Ms. Stallworth obtained the names of several witnesses with the intention of supplying them to the police department as part of a complaint against Respondent. After speaking with the bystanders, Ms. Stallworth entered the store to make her purchase. When she exited the store, she observed Respondent standing in the parking lot behind her car. It appeared that he was writing down her tag number. Later that evening, Ms. Stallworth called the GPD to complain about Respondent. Her call was returned by Sergeant Yarbrough. After hearing her complaint, Sergeant Yarbrough discussed the matter with his immediate supervisor, and then went to the Wal-Mart to talk to Respondent about the complaint. The two men spoke at Wal-Mart in the early hours of June 27, 2008. Respondent described his interaction with Ms. Stallworth, and admitted pinning her against the car for several seconds and pushing her back into the car. He justified his behavior as necessary to protect his safety. Sergeant Yarbrough felt that Respondent's attitude deteriorated as their conversation progressed. He was defensive and confrontational, and asked Sergeant Yarbrough, in an aggressive tone, whether he had a problem with Respondent's behavior in a manner that clearly indicated that Respondent did not feel his behavior was inappropriate and did not feel anyone else should. Respondent volunteered that he had already checked with Wal-Mart personnel about the availability of surveillance video recording the event. Respondent reported his understanding that the video could not be provided until Monday. Sergeant Yarbrough went back to the police station and spoke with his lieutenant about the matter. Although Ms. Stallworth had indicated she would file her own complaint with internal affairs, Sergeant Yarbrough referred the matter himself as well. The following Monday, June 30, 2008, Respondent returned to the Wal-Mart. He met with loss prevention employee Stephen Topham in the store's loss prevention office. Respondent asked for a copy of the video recording from the store's security cameras for the time period covered by the June 28, 2008, incident with Ms. Stallworth. Wal-Mart's policy was to release copies of security tapes only where a customer presents a police report; a subpoena is produced; or a law enforcement officer or high-ranking official in Wal-Mart requests a copy. Mr. Topham provided Respondent with a copy of the security video because he was a law enforcement officer in uniform or identified himself as a law enforcement officer. He assumed the request was made for official law enforcement purposes and did not ask questions. The Respondent was not conducting any police investigation and had no official need for the videotape. He did not fill out any paperwork regarding the collection of the videotape and did not turn the tape over to the GPD's evidence room. The GPD's policy provides that whenever a police officer uses physical force against a citizen, the officer must document the incident with a written report. Respondent did not complete a written report with respect to the incident involving Ms. Stallworth. Subsequent to Respondent's obtaining a copy of the security tape from Wal-Mart, Sergeant Campos from GPD's Office of Internal Affairs called the store to request a copy of the tape for his investigation. When he went to obtain the tape, he was told another officer had already picked it up. Sergeant Campos was then provided with a copy of the security footage from the June 28, 2008, incident, as well as footage of Respondent in the security office on June 30, 2008.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That the Criminal Justice Standards and Training Commission enter a final order finding that Respondent has violated the provisions of Section 943.1395(7), Florida Statutes, and revoking his certification. DONE AND ENTERED this 4th day of June, 2010, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 4th day of June, 2010.
