Findings Of Fact At about 12:00 noon on January 31, 1971, an automobile collision occurred in Clay County, Florida, between David Earl Mattox and Douglas Jay Gilbert. Mattox, driving a Chevrolet pick-up, slid into the rear of Gilbert's Ford sedan after being unable to stop on the wet pavement. Mattox was uninjured and Gilbert complained of a slight headache. An acquaintance of Gilbert was riding in Gilbert's car as a passenger. Neither driver reported the accident at that time and, in fact, drove his own vehicle to Gilbert's place of business to talk about the accident. A decision was made at that meeting to handle the matter privately without notification of insurance companies or law enforcement, authorities. Later that day, Gilbert's head and neck began hurting so Gilbert's father took him to a doctor in Green Cove Springs. The doctor advised Gilbert that he had suffered whiplash. Gilbert continued to visit the hospital for about two days for treatment and diagnosis. That same evening, after the diagnosis was received, Gilbert's father called Mattox and advised him that the accident should be reported. Mattox agreed and at approximately 5:00 p.m. on the day of the accident, Mattox called Libby at home. Mattox had planned a trip to Daytona Beach that evening so Libby agreed to wait until the next day to make his investigation of the accident. At about 3:00 p.m., February 1, 1977, Libby met with Mattox and Gilbert's father at Mattox's place of business. At that time, Libby interviewed Mattox and Gilbert's father, inspected Mattox's vehicle and prepared the accident report. Gilbert was not present at the meeting and at no time did Libby interview him or Gilbert's passenger regarding the accident. At no time did Libby inspect Gilbert's vehicle. Although another Florida Highway Payroll trooper was on duty in the area, Libby agreed to conduct the accident investigation even though he was not on duty. Libby attended the meeting in civilian clothes. Libby did not investigate the scene of the accident. The accident report prepared by Libby fails to disclose that Gilbert's vehicle contained a passenger and fails to include a diagram of the collision. The accident report recites the amount and degree of damage to Gilbert's car, notwithstanding Libby's failure to inspect the vehicle. The stated damages in the accident report are $150.00 whereas the actual damages were closer to $400.00. As reflected in the accident report, no arrests or charges were made as a result of the collision. As of the time of the hearing, no charges had been made and no supplemental report had been filed. It is the policy of FHP that all vehicles be inspected and all principals be interviewed, if possible, prior to the final preparation of an accident report. In addition, it is policy that Highway Patrol officers be in uniform when performing their duties. The accepted procedure in these circumstances would have been for Libby to either contact an on duty trooper to go on duty himself in uniform prior to investigating the accident. Libby has been previously disciplined for negligence in the performance of his duty.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Career Service Commission sustain the action taken by FHP. DONE and ENTERED this 8th day of September, 1977, in Tallahassee, Florida. MICHAEL R.N. McDONNELL Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Mr. B. M. Libby Post Office Box 322 Green Cove Springs, Florida 32043 Edwin E. Strickland, Esquire General Counsel Neil Kirkman Building Tallahassee, Florida 32304 Mrs. Dorothy B. Roberts Room 530 Carlton Building Tallahassee, Florida 32304 Enoch J. Whitney, Esquire Assistant General Counsel Neil Kirkman Building Tallahassee, Florida 32304
The Issue Whether Respondent committed the offenses set forth in the Administrative Complaint and the penalties, if any, that should be imposed.
Findings Of Fact At the time of the formal hearing and at all times pertinent to these proceedings, Respondent was licensed in the State of Florida by Petitioner as a life and health insurance agent and as a general lines insurance agent. At the time of the formal hearing and at all times pertinent to these proceedings, Respondent served as the general lines insurance agent of record for A-AAAce Insurance Underwriters (A-AAAce) of 2507 Sheridan Street, Hollywood, Florida. Nation Motor Club is an automobile club that provides towing, rental reimbursement, accidental death, and other benefits to its members. Respondent sold memberships in Nation Motor Club and earned a commission equal to 90% of the annual fee for each membership he sold. Nation Motor Club grants a member a thirty-day period following the filing of his application to cancel his membership and to receive a full refund of his membership fee. ANDERSON TRANSACTION On or about September 28, 1989, Edward A. Anderson went to the offices of A-AAAce to obtain insurance for his automobile. Mr. Anderson first met with Steve Harrison, an employee of A-AAAce who holds no licensure from Petitioner and for whose acts Respondent accepts responsibility. Mr. Anderson recalled that he wanted personal injury protection (PIP), property damage liability, and comprehensive and collision insurance for his automobile, but he could not specifically recall what types of coverage he requested from Mr. Harrison and he could not recall the details of what was explained to him by Mr. Harrison. Mr. Anderson recalled being told by Mr. Harrison the cost of his insurance coverage, but he could not recall what Mr. Harrison told him the amount would be. Following his discussion with Mr. Harrison, Mr. Anderson was presented certain documents for his execution. Respondent, who had been sitting at the adjacent desk during the conversation between Mr. Anderson and Mr. Harrison, supervised the execution of these documents by Mr. Anderson. Included among those documents executed by Mr. Anderson was a membership application for the Nation Motor Club. On this application form, Mr. Anderson designated the beneficiary in the event accidental death benefits became payable as a result of his membership. This application reflects that the annual fee for membership was $200.00. Neither Mr. Harrison or Respondent prevented or attempted to prevent Mr. Anderson from reading any of the forms presented to him for his execution. Mr. Anderson did not read the forms before he signed them. Instead, he relied on his discussions with Mr. Harrison and Respondent and signed what was put before him. Mr. Anderson had not requested membership in the Nation Motor Club and he was not aware that he was purchasing a membership in the Nation Motor Club at the time he agreed to do so. He believed that the premiums he was being charged and the papers he was signing related to the insurance coverage he had requested, and he did not understand that he was paying $200.00 for membership in the Nation Motor Club. On November 8, 1989, Florida Insurance Commissioner Tom Gallagher accompanied Lottie Brown, one of Petitioner's investigators, in paying a surprise inspection visit to the offices of A-AAAce. That surprise visit was prompted by a complaint unrelated to this proceeding. By happenstance, Mr. Anderson was in the offices of A-AAAce during that surprise visit. On November 8, 1989, Mr. Anderson became aware for the first time that he had purchased a membership in the Nation Motor Club. On November 11, 1989, Respondent refunded to Mr. Anderson the $200.00 membership fee he had paid and he caused Mr. Anderson's membership in the Nation Motor Club to be cancelled. Mr. Anderson would not have purchased the membership in Nation Motor Club had he understood that he was doing so. BROWN TRANSACTION On February 17, 1990, Rebecca Brown went to the offices of A-AAAce to obtain insurance for her automobile. Ms. Brown talked with Respondent and asked for minimum personal injury protection (PIP) and liability coverage. Respondent discussed with Ms. Brown the insurance coverage she wanted and quoted Ms. Brown the amount of $355.00 as being the price for the "full package" of coverage she would be receiving. Respondent told Ms. Brown the coverage he was proposing included benefits for towing, rental reimbursement, and accidental death. Ms. Brown did not understand that the quoted price included membership in the Nation Motor Club or that the annual fee for that membership was $100.00. The premium for the insurance coverage alone was $255.00. Ms. Brown signed an application for membership in the Nation Motor Club which reflects the sum of $100.00 as being the cost of membership. On this application, she inserted the name of the beneficiary who was to receive any accidental death benefits that may become payable as a result of her membership. Ms. Brown also signed a premium finance agreement which reflected the cost of the insurance she was purchasing. Respondent did not try to prevent Ms. Brown from reading the documents she was asked to sign. Ms. Brown did not read the documents because she was in a hurry to complete the transaction. Instead, she relied on Respondent's directions as to what and where to sign. Ms. Brown first became aware that she had purchased a membership in the Nation Motor Club when she was so advised by an investigator for Petitioner on March 8, 1990. Ms. Brown thereafter contacted Respondent about this membership and Respondent promptly applied the $100.00 membership fee toward payment of the other insurance she had purchased and withdrew her application for membership in the Nation Motor Club. Ms. Brown would not have purchased the membership in Nation Motor Club had she had a clear understanding that she was doing so. CANGIANELLA TRANSACTION On February 17, 1990, John Cangianella went to the offices of A-AAAce to obtain automobile insurance for his automobile. Mr. Cangianella talked with Respondent and asked for minimum personal injury protection (PIP) and liability coverage. Respondent discussed with Mr. Cangianella various options as to coverage, including membership in Nation Motor Club. Mr. Cangianella could not specifically recall the types of coverage that had been explained to him or the costs thereof. Respondent quoted Mr. Cangianella the amount of $355.00 as being the price for the coverage. Mr. Cangianella did not understand that the quoted price included membership in the Nation Motor Club or that the annual fee for that membership was $100.00. The premium Mr. Cangianella would have paid for his insurance coverage alone was $255.00. Mr. Cangianella signed an application for membership in the Nation Motor Club which reflects the cost of membership. Mr. Cangianella also signed a premium finance agreement which reflected the cost of the insurance he was purchasing. On the application, he inserted the name of the beneficiary who was to receive any accidental death benefits that may become payable as a result of his membership. Respondent did not try to prevent Mr. Cangianella from reading the documents he was asked to sign. Mr. Cangianella had been out late the night before and he did not read the documents because he was in a hurry to complete the transaction. Instead, he relied on Respondent's directions as to where to sign. Mr. Cangianella first became aware that he had purchased a membership in the Nation Motor Club when he was so advised by an investigator for Petitioner in early March 1990. Mr. Cangianella thereafter contacted Respondent about this membership. Respondent refunded the $100.00 membership fee on March 9, 1990, and withdrew Mr. Cangianella's application for membership in the Nation Motor Club prior to its submission. Mr. Cangianella would not have purchased the membership in Nation Motor Club had he had a clear understanding that he was doing so. Mr. Anderson, Ms. Brown, and Mr. Cangianella continue to do business with Respondent's agency. Respondent's licensure has not been previously disciplined by Petitioner.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered which dismisses the Administrative Complaint filed against Respondent. DONE AND ORDERED this 1st day of April, 1991, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 1st day of April, 1991. APPENDIX TO THE RECOMMENDED ORDER The following rulings are made on the proposed findings of fact submitted on behalf of the Petitioner. The proposed findings of fact in paragraphs 1-3, 5, 10, 13-15, 17, 19, 21- 22, and 25-27 are adopted in material part by the Recommended Order. The proposed findings of fact in paragraph 4 are rejected as being legal conclusions. The proposed findings of fact in paragraphs 6-9 are rejected as being unsubstantiated by the evidence. These dealings were between Mr. Anderson and Mr. Harrison. While it has been concluded that Respondent was responsible for Mr. Harrison's acts, the proposed findings, as written, are unsubstantiated. The proposed findings of fact in paragraph 11 are rejected as being unsubstantiated by the evidence. The record does not clearly reflect the amount of the premium. The proposed findings of fact in paragraphs 12, 18, and 20 are rejected as being, in part, unsubstantiated by the evidence and, in part as being contrary to the findings made and to the conclusions reached. The proposed findings of fact in paragraphs 16 and 24 are rejected as being unnecessary to the conclusions reached. The proposed findings of fact in paragraph 23 are rejected as being unsubstantiated by the evidence. The proposed findings of fact in paragraph 28 are adopted in part by the Recommended Order, are rejected in part as being recitation of testimony, and are rejected in part as being unsubstantiated by the evidence. The following rulings are made on the proposed findings of fact submitted on behalf of the Respondent. The proposed findings of fact in paragraphs 1-7, 9-14, 16, and 18 of Part I are adopted in material part by the Recommended Order. The proposed findings of fact in paragraph 8 of Part I are rejected as being unsubstantiated by the evidence. Respondent's Exhibit 3 is not clear as to the dates of the insurance being financed. The proposed findings of fact in paragraph 15 of Part I are rejected as being unnecessary to the conclusions reached. The proposed findings of fact in paragraph 17 of Part I are rejected as being unsubstantiated by the evidence. The proposed findings of fact in paragraphs 1-8, 10-20, and 22 of Part II are adopted in material part by the Recommended Order. The proposed findings of fact in paragraphs 6 and 21 of Part II are rejected as being unsubstantiated by the evidence. The proposed findings of fact in paragraph 9 of Part II are rejected as being unnecessary to the conclusions reached. The proposed findings of fact in paragraphs 1-17, and 19 of Part III are adopted in material part by the Recommended Order. The proposed findings of fact in paragraph 18 are rejected as being unsubstantiated by the evidence. COPIES FURNISHED: Michael W. Moskowitz, Esquire 1500 N.W. 49th Street, #401 Fort Lauderdale, Florida 33309 Gordon T. Nicol, Esquire Department of Insurance 412 Larson Building Tallahassee, Florida 32399-0300 Tom Gallagher State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Bill O'Neill General Counsel The Capitol, Plaza Level Tallahassee, Florida 32399-0300
The Issue Did the Department of Transportation (Department) improperly deny a refund to Petitioner of a penalty assessed pursuant to Chapter 316, Florida Statutes?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: The Department is the agency of the State of Florida charged with the responsibility of enforcing the provisions of Chapter 316, Florida Statutes. On June 7, 1999, the Department's Inspector Clemente Igracio stopped Petitioner's truck for an inspection. After inspecting Petitioner's truck, Inspector Igracio issued a Safety Report Citation numbered 0862152 wherein Petitioner was cited for the alleged violations of Sections 316.515(1) and (3) and 316.550, Florida Statutes. The total fine imposed was $1,600.00 which included a fine of $1,250.00 for the alleged violation of Section 316.515(3), Florida Statutes. However, since the maximum fine imposed for a Section 316.515(3), Florida Statutes, violation is $1,000.00, the total fine imposed was $1,350.00, which Petitioner paid. Subsequently, due to mitigating circumstances, the Department refunded Petitioner the $100.00 that it had paid for the alleged violation of Section 316.550, Florida Statutes. Petitioner does not protest the Section 316.515(1), Florida Statutes violation nor does it protest the Section 316.550, Florida Statutes violation. Petitioner stipulated that the combined length of the truck and trailer was 65 feet, 9 inches. Petitioner also stipulated that the length of the trailer was 42 feet, 10 inches. Inspector Igracio categorized the truck as a "straight- truck" because it had two axles and load-carrying capacity on the power unit. The vehicle in question is a two-axle vehicle with the cargo unit and motive power unit located on the same frame so as to form a single, rigid unit. The subject vehicle and trailer combination was 65 feet, 9 inches in overall length. The subject trailer was 42 feet, 10 inches in length. Petitioner did not have a permit to be over the legal length.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department enter a final order denying the refund sought by Petitioner. DONE AND ENTERED this 20th of June, 2000, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of June, 2000. COPIES FURNISHED: Peter Byra West Coast Towing 124 South Berkley Road Auburndale, Florida 32823 Kelly A. Bennett, Esquire Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0458 James C. Myers, Clerk of Agency Proceedings Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0450 Pamela Leslie, General Counsel Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0450
The Issue Whether Respondent committed an unlawful employment practice against Petitioner in violation of Section 760.10, Florida Statutes.
Findings Of Fact Petitioner, Jerry McCoy, is an African American and is a member of a class protected by Chapter 760, Florida Statutes. Petitioner worked as a tanker truck driver for Florida Rock from 1980 until October, 1993. During his employment, he was assigned to Florida Rock's terminal in Panama City, Florida. Respondent, Florida Rock & Tank Lines, Inc., is a transportation company engaged in the hauling of liquid and dry bulk commodities throughout the United States. Respondent transports gasoline, diesel fuel, asphalt, chemicals and other hazardous and corrosive materials. Respondent is an employer within the meaning of Section 760.02(7), Florida Statutes. Petitioner, during his 13-year employment with Florida Rock, was generally considered a good truck driver. Over the years, Petitioner received several compliments from customers, safety bonuses and emblems, and a set of his and her watches after 10 years of maintaining a good safety record. On the other hand, Petitioner also received several customer complaints, committed some safety violations, and was banned from two customers' terminals. The trucking industry is heavily regulated. As such, Respondent must obey federal, state, county and city traffic, and transportation laws. In addition, Respondent must follow federal and state environmental laws and regulations because it transports toxic and hazardous substances. The transportation and environmental laws and regulations are strictly enforced. Minor violations can result in substantial penalties. Respondent or the driver, or both, can be fined for violations of any of these laws. To ensure compliance with the federal, state, county, and city laws, and to satisfy requirements of its customers, Respondent established a safety program. Respondent's safety policies were developed as a result of experience in tank truck transportation and, when followed by drivers, have resulted in safe loading, transportation, and unloading of products that Respondent transports. To enforce the safety program, Respondent adopted a points system. Under the points system, a driver is assessed points for preventable violations of a safety policy or procedure. A driver who accumulates 24 points within one year is automatically terminated. On a driver's anniversary date, all points assessed during the previous year are removed from the driver's record and the driver begins the year with a clean company driving record. The rules, policies, and procedures of the safety program are contained in the driver's safety manual. All drivers receive a copy of the safety manual when hired. All drivers also receive safety training before being allowed to operate a truck transporting hazardous materials. In addition, to maintain driver awareness of safety rules and regulations, Respondent conducts monthly safety meetings at each terminal. The meetings are conducted by the terminal manager or safety supervisor, or both, and consist of a review of safety rules, policies, procedures, and equipment and recent changes in relevant laws. The safety program is administered by the safety department of Respondent. Luc Cleyman, Director of Safety, directs the daily operations of the safety department. When a spill, mixture, or other violation of the safety program occurs, the driver's terminal manager initiates a review of the incident to determine whether it was preventable or non-preventable. If the terminal manager determines that the violation was preventable, the driver is assessed points and/or subjected to other discipline based on the type and severity of the violation. A driver is not assessed points for a non- preventable violation of safety rules and procedures. In certain situations, Mr. Cleyman may instruct the terminal manager to assess a number of points greater or less than the amount specified in the safety manual, and to administer further disciplinary action for safety violations. Under the safety program, management has the authority to administer further disciplinary action for a safety violation, if in their opinion it is warranted. In addition, management has the authority to impose less discipline than that which is set forth in the safety manual. The safety department reviews all citations issued to verify that the correct number of points was assessed. An employee's race is not referenced in the files maintained by the safety department. Consequently, in disciplinary actions, management does not know the race of an employee unless the individual in management knows that particular employee. In this case, unlike most terminal managers, Nancy Dinnes, the terminal manager at the Panama City Terminal, always consulted with the safety department before her initial assessment of points against a driver for a safety violation. Respondent's safety program includes an appeal procedure by which a driver may appeal the determination that an incident was preventable and/or the assessment of points. The safety manual provides: The driver has the right of appeal, without prejudice. The appeal must be made to the Safety Department, in writing, within ten working days after the driver receives his/her notification. Once the appeal is received in the Safety Office, the incident facts will be reviewed by the Accident Review committee and/or the Violation Review Committee. Each committee will be comprised of the Vice President, Division Vice President, and the Director of Safety. The Committee's decision regarding work- related injury claims and spillages, mixtures, and contaminations will be final in all cases. In the event a driver does not agree with the committee's decision regarding a traffic accident, then he/she must submit, in writing, his/her disfavor to the Safety Department within ten (10) days after his/her receipt of the committee's decision. The accident facts will then be submitted to the National Safety Council Accident Review Committee for their review and decision. Their determination will be final in all cases. To encourage drivers to follow the safety program's policies and procedures, Respondent pays substantial quarterly and annual safety bonuses to eligible drivers. An eligible driver receives a quarterly safety bonus of four percent of his previous quarter's earnings and an annual safety bonus of two percent of his previous annual earnings. A driver is eligible to receive a quarterly safety bonus unless he or she is assessed six or more points during the quarter. A driver who accumulates 21 or more points during the year is not eligible to receive an annual safety bonus. Quarterly bonuses are paid in the month following the end of the quarter. Annual safety bonuses are paid in January of the following year. The amount of quarterly and annual safety bonuses is substantial. Drivers always know when they are due a bonus and whether that bonus has been paid. If a driver does not receive a quarterly or annual safety bonus he or she has a right of appeal. The safety manual provides: It is Florida Rock and Tank Lines, Inc.'s desire to pay all earned Quarterly and Annual Safety Bonuses. Any driver that does not qualify for the quarterly or annual bonus has the right of appeal, without prejudice. The appeal must be made to the Safety Department, in writing, within ten working days after the quarter in question has ended or the year in question has ended. Once the appeal is received in the Safety Office, the case will be reviewed by the Bonus Review Committee. The Bonus Review Committee consists of the Vice President, Division Vice President, and Director of Safety. Their findings and recommendations will be final. Petitioner was hired as a driver of tractor-trailer trucks at Respondent's Panama City Terminal on February 28, 1980. His duties included loading petroleum products at distribution terminals and transporting them to gas stations and other facilities in the southeastern part of the United States where he would unload the product into storage tanks. Petitioner was aware of the company's safety policies and procedures. In particular Petitioner was aware of the safety policies and procedures involved in this action. On April 13, 1993, Petitioner delivered resin, a very thick material, to the Georgia-Pacific facility in Albany, Georgia. The hose used for unloading resin is two inches in diameter. The hose was in bad shape. It's end blew off while Petitioner was pumping resin into the storage tank. A spill, which is a potential violation of the company's safety policy, occurred. The violation carries an assessment of twelve points. Petitioner brought the failed hose back to the terminal and showed it to Nancy Dinnes. Upon investigation, Mr. Cleyman was told by a representative of Georgia-Pacific that Petitioner was pumping the resin too fast and blew the end of the hose off. The same Georgia-Pacific representative also complimented Petitioner for his help in containing and cleaning up the spill. Both Ms. Dinnes and Mr. Cleyman were of the opinion that hoses did not fail unless Petitioner was forcing too much product into the hose by pumping the product too fast. However, both conceded that Petitioner's claim that the hose failed while he was properly unloading the resin could have occurred. Both gave Petitioner the benefit of the doubt. Therefore, no points were assessed against Petitioner since the spill was deemed unpreventable due to the unpredicted failure of the hose. On April 28, 1993, Petitioner was dispatched to deliver ethanol no-lead regular fuel to Sunshine Jr. Store No. 28 in Springfield, Florida. When he arrived at the store, Petitioner testified that he was unable to determine into which tank to dispense the ethanol unleaded regular fuel because the storage tanks were not properly marked for ethanol fuel. Likewise, the pumps were not marked for ethanol fuel because the store had not sold ethanol fuel for several months. There were separate storage tanks marked for regular unleaded fuel, mid- grade fuel and premium fuel. Because he was unable to determine the correct tank into which to drop his load, he asked the store manager to identify the correct tank. The store manager did not know and called Sunshine Jr.'s corporate offices. After the store manager contacted someone at the corporate office, the store manager told Petitioner to unload the no-lead regular fuel into the premium fuel tank. Without calling the terminal, Petitioner unloaded regular gasoline in with premium gasoline causing a mixture of the two fuels and downgrading the premium fuel to a lesser octane fuel. Petitioner did not draw a diagram of the storage tanks with their markings on the Bill of Lading for the delivery. In instances where the storage tanks are not clearly marked, a driver is required to diagram the location of the storage tanks and the type product each contains so that the information will be on record at the terminal. Petitioner admits that he was aware of the requirement of a diagram under such circumstances. His failure to diagram the storage tanks at Sunshine, Jr. Store No. 28 demonstrates that Petitioner was not confused by the markings on the storage tanks. Indeed he had been disciplined for unloading fuel into the wrong storage tank the previous year at Rice's Grocery. The mixture resulted in the loss of over 1,500 gallons of fuel and caused a hazardous situation. Eventually, the fuel was removed and transported to another location. Because of the dangers to the public from a mixture of hazardous materials and the substantial penalties resulting from such a violation of environmental laws and regulations pertaining to the transportation of petroleum products, Respondent's safety program includes a policy imposing 12 points, or further discipline up to discharge, for preventable mixtures of fuel and other hazardous materials. Respondent's load/unload procedures in the driver's safety manual require a driver before unloading to: Check the fill pipe identifications to be sure they are labeled properly and indicate the same product you intend to unload. Do not depend on identification by others. If fill pipes are not properly identified and you are unable to personally identify the contents of the tank, call your terminal for instructions. Failure to do so may endanger lives, property and the environment. Thus, a driver who cannot determine the correct tank in which to unload may not rely on others for identification of the proper storage tank, but must contact the terminal manager for instructions. A driver who contacts the terminal for instructions does not violate safety rules and procedures if a mixture results. As indicated, Petitioner did not call the terminal for instructions. Petitioner's very confusing testimony to the contrary is not credible. Petitioner admits the above procedure is correct. On April 29, 1993, the day after Petitioner's delivery, Sunshine Jr., Stores contacted terminal manager Dinnes to inform her that Petitioner had unloaded ethanol unleaded fuel into the premium fuel storage tank causing a mixture of the two fuels. Ms. Dinnes investigated the report. As part of her investigation, Respondent sent Fernando Berrios, mechanic, to the site to conduct a visual inspection of the storage tanks. Mr. Berrios found that the tanks were properly marked. Additionally, a diagram identifying the layout of the store's storage tanks with their markings was displayed in the store's window. Mr. Berrios drew a diagram showing the layout of the storage tanks with their markings at Sunshine Jr. Store No. 28 on the face of the Truck Bill of Lading pursuant to which Petitioner had delivered the fuel. After her investigation, Ms. Dinnes contacted the safety department and informed Mr. Cleyman that Sunshine Jr. Stores had reported a mixture and to discuss the appropriate discipline. Mr. Cleyman and Ms. Dinnes determined that Petitioner had failed to follow written company procedures pertaining to the unloading of products and mixed two different fuels together by unloading one fuel into the incorrect storage tank. Specifically, they concluded that Petitioner failed to follow written company safety procedures requiring a driver to contact the terminal if the driver is uncertain about which storage tank to unload into or the storage tanks are not properly marked and deliberately mixing two different grades of gasoline together. The mixture was clearly preventable. The points schedule in the safety manual provided that a driver who mixes product should receive twelve points. Accordingly, Mr. Cleyman instructed Ms. Dinnes to assess 12 points against Petitioner's driving record in accordance with the schedule contained in the safety manual. As a result of this violation, Petitioner did not receive his quarterly safety bonus. Petitioner did not appeal the assessment of points on his record or the disqualification for a quarterly safety bonus. Petitioner's claim that he did not receive the Sunshine, Jr. citation is not credible. Moreover, this fact is irrelevant since there was no evidence that the incident was contrived or that Petitioner was harmed if he had not received the Sunshine, Jr. citation. Petitioner admits that contacting the terminal manager is the procedure he should have followed. He did not follow that procedure. Petitioner, also admits he mixed two different grades of fuel. On October 6, 1993, Petitioner delivered diesel fuel to Diamond Sand Company at Mossy Head, Florida. Petitioner returned to the terminal with 510 gallons of diesel fuel in his trailer. Petitioner did not notify the terminal of the left- over fuel. The next day, the tanker trailer containing the diesel fuel was assigned to another driver, David Wood (white), who loaded gasoline into the tank containing the diesel fuel resulting in a mixture of petroleum products. Admittedly, Wood violated Company safety policy by failing to check his trailer for fuel prior to loading it. However, relevant to Petitioner, Respondent's safety policy also required Petitioner to verify that all product had been unloaded from his tanker. A tanker like the one involved here unloads from the bottom of the compartment. Even if the product is not being pumped, gravity causes the product to flow out of the tanker. To determine whether product remains in a tank after unloading, a driver is trained not to open the trailer dome lids, but to open the valve of a tank slightly and to drain the tank's contents into a bucket. If the tank is empty, little or no product will drain into the bucket. If the tank contains product, it will continue to drain into the bucket and the driver will have to close the tank's valve to cut-off the flow. The process is known as the bucket test. If the tank is not empty, the driver is required to contact the terminal to obtain further instructions regarding the disposal of the remaining product. The bucket test is not part of a driver's pre- or post-inspection. The pre-or post-inspection is a term of art which refers to a particular type of DOT required inspection. Petitioner testified that he performed the bucket test, drained the diesel fuel in a bucket until the flow stopped. He gave the fuel to a man in charge of unloading to pour into the storage tank. Petitioner also testified that a man on top of the tanker told him the compartment was empty. Petitioner did not reference this other man in his appeal letter or his FCHR affidavit. Ms. Dinnes did not recall Petitioner telling her about the man on top of the tanker. The safety manual provides that a driver must always call [the terminal] for instructions when a customer cannot take all of the load or does not want all of the load the customer has ordered and owns. Respondent instituted this policy because an extremely hazardous situation is created when petroleum products are stored in a tanker trailer at the terminal without the implementation of appropriate safety precautions. In addition, management needs to be informed about the presence of the product in a tanker trailer, so the next driver using the tanker can be informed to minimize the chance of a mixture. On October 7, 1993, during loading, Mr. Wood discovered that the tank he was loading gasoline into was not empty when the pump cut-off before depositing the amount of gasoline he had entered into the system. He immediately contacted the terminal manager, Ms. Dinnes, to report the mixture. Ms. Dinnes was also contacted by D & H Oil Company and informed the customer did not receive all of the fuel it had ordered. Ms. Dinnes contacted the safety department and informed Mr. Cleyman of the facts and circumstances surrounding the incident. Petitioner failed to notify the terminal that he did not unload 510 gallons of diesel fuel at Mossy Head, Florida. If Petitioner had reported to the terminal that he had leftover product, the terminal manager or dispatcher would have provided instructions to Petitioner for its distribution or recorded its presence in the tanker trailer so that the next driver using the tanker would be informed of its presence thereby preventing a mixture. Mr. Cleyman and Ms. Dinnes concluded that Petitioner violated written company safety policy by failing to notify the terminal that diesel fuel remained in the tanker trailer after his last delivery which created a hazardous situation at the terminal and contributed to the creation of a mixture by the next driver to be given the truck to drive. They also concluded that Mr. Wood violated safety rules by failing to check the tanker trailer to verify it was empty before loading gasoline into it. Mr. Cleyman instructed Ms. Dinnes to assess twelve points against both Petitioner and Mr. Wood in accordance with the safety manual. The contaminated product was sold by Respondent to Davis Oil Company in Dothan, Alabama. Respondent lost an estimated $1,988.56 as a result of the safety violations by Petitioner and Mr. Wood. Importantly, using the same tanker trailer that Petitioner used to transport the diesel fuel, Mr. Wood delivered the product to Davis Oil Company without any malfunction of the tanker trailer's equipment, including its emergency and unloading valves. These were the same valves which would have had to malfunction to cause Petitioner to believe the tanker was empty when he allegedly performed the bucket test at Mossy Head. After Petitioner received a Notice of Termination, Petitioner appealed to Respondent's safety review committee the assessment of points for the Sunshine, Jr. store and the Mossy Head violations. In his appeal letter, Petitioner contended that he did not violate safety policy because he did not "stick the tank before and after" unloading since "it was unsafe for [him] to climb on top of [the trailer] and there are no guard rails." "Sticking the tank" is where a driver inserts a measuring stick into a compartment to see if any product is left or to measure the amount of product remaining. Petitioner further contended that he was directed by Respondent not to open the trailer dome lids because someone had been killed in an explosion by doing so. Irrespective of the issue of climbing on the tanker to check to see if it was empty, the evidence was uncontroverted that the valves involved in unloading the tanker and performing the bucket test do not malfunction intermittently, but continue to malfunction until repaired. If the valves had not been working, the valves would not have been functioning when the mixture was later unloaded by Mr. Wood. The only conclusion is that Respondent either did not perform the bucket test or performed it improperly. Both conditions violate the company's safety policy. The returned product and the resultant mixture were clearly preventable. Pursuant to Respondent's policy, an investigation of the incident based on Petitioner's appeal letter by the safety review committee was initiated. After review of the incident and all contentions made by Petitioner in his appeal letter, the safety review committee upheld the point assessment against Petitioner. It was reasonable for Respondent to rely on the functioning of valves in analyzing the veracity of Petitioner's appeal. Petitioner was discharged on October 8, 1993, for violations of Respondent's safety program. Respondent's safety program specifies that the accumulation of 24 points in one year by an employee results in the dismissal of the employee. In 1993, Petitioner violated the company's safety policies on two separate occasions. The two violations caused Petitioner to accumulate 24 points within one year. The safety policies Petitioner violated were: (1) mixture of petroleum products on April 28, 1993; and (2) failure to notify the terminal of undelivered product left in the tanker trailer he brought back to the terminal after his last delivery which later resulted in a mixture on October 7, 1993. Each violation of the safety program was reported by Nancy Dinnes, Terminal Manager, to Luc Cleyman, Director of the company's safety department. The safety department reviewed the facts of each infraction as given to them by the terminal manager. In each case the infractions were preventable. In each case, the point assessment against Petitioner's driving record was in accordance with the point schedule contained in the driver's safety manual. In each case, the number of assessed points was reasonable. However, Petitioner contends that white drivers were treated differently than black drivers. Much of Petitioner's accusations are based on rumor. For instance, Petitioner contends in his Affidavit that Clayton Vaughn (white) had a major spill at Sunshine Jr. Store No. 214, cleaned up by Dave Garner, that was not reported. Petitioner testified that he had no evidence to support this allegation or first-hand knowledge of this incident. He stated that he learned of it through "driver talk," although he could not remember the name of the driver he had heard it from. Mr. Vaughn, Ms. Dinnes, and Ms. Cleyman each state that no such incident occurred and that Petitioner's claim is not true. Petitioner also contends that in July 1991, Lane Corbin (white)and Tommy Jordan (white) could not pass a random drug test, so Ms. Dinnes told them to purchase a bottle of Murine eye drops to put into the urine specimen bottle. Again Petitioner admits that he has no evidence, only hearsay, to support this allegation. Ms. Dinnes denies Petitioner's allegation. Mr. Cleyman states that the drug testing of urine specimens utilized by Respondent would have detected an adulterated specimen, therefore, Murine eye drops would not have concealed the use of illicit substances by a test subject. In his Affidavit, Petitioner contends that Tommy Jordan was assessed six points instead of 12 points for a mixture. The citation referred to by Petitioner clearly indicates that 12 points were assessed against Mr. Jordan's driving record. In his Affidavit, Petitioner asserts that Mr. Vaughn had a spill at Citgo. Again, Petitioner has no evidence, only hearsay, to support this assertion. Mr. Vaughn, Ms. Dinnes, Mr. Cleyman, and Gail Williams (dispatcher) state that no such incident took place. Petitioner contends in his Affidavit that Mr. Vaughn tried to load 1,500 gallons of gas into a 1,000 gallon tank, which caused a spill. Petitioner admittedly has only hearsay to support this contention. Mr. Vaughn, Ms. Dinnes and Mr. Cleyman state that no such incident occurred. In his Affidavit, Petitioner states that Mr. Vaughn and Dave Oyler (white) received speeding citations and were not assessed points. Petitioner testified that he had no first-hand knowledge of this allegation. Ms. Dinnes and Mr. Cleyman state that they are unaware of any instance where Mr. Vaughn or Mr. Oyler received points for speeding violations. Moreover, each year, Respondent obtains a Division of Motor Vehicle (DMV) report on all drivers and other employees who operate company vehicles. The DMV report does not list infractions. Petitioner also asserts that in November 1992, Tommy Jordan, in violation of company rules, drove through a tunnel in Mobile, Alabama with a placarded trailer. Ms. Dinnes and Mr. Cleyman state that the incident referred to by Petitioner was thoroughly investigated by the safety department and determined to be nonpreventable. The investigation showed that the exit ramp for trucks carrying hazardous materials was not properly marked. As a consequence, Jordan did not have sufficient notice to safely exit the roadway before entering the tunnel. Therefore, the incident was determined to be nonpreventable. Petitioner contends in his Affidavit that Tommy Jordan delivered product to the wrong location which caused a mixture. Petitioner has only hearsay to support this contention. No evidence exists showing that such an incident occurred. Petitioner contends that Mr. Vaughn had a large spill at A.W. Herndon Convenience Store. Petitioner has no first-hand knowledge of this incident. Mr. Vaughn, Mr. Fernando, Mr. Berrios, Ms. Dinnes, and Mr. Cleyman state that a spill occurred; however, the amount spilled was not large, only two gallons. After a thorough investigation of this incident, the safety department determined that the spill was nonpreventable. The investigation showed that the spill was caused by a malfunctioning lock-down fitting, and that the size and severity of the spill was minimized by Mr. Vaughn's quick response. At hearing Petitioner presented evidence of some racial slurs in the workplace. In February, 1993, Petitioner testified that Ms. Dinnes told Tommy Jordan that she had to fire that nigger J.J. (John Jordan) because he is influencing that nigger Sheffield and that nigger McCoy. Again, Petitioner testified that he had no first-hand knowledge of this alleged incident. Petitioner learned of the comment from John Jordan. Ms. Dinnes and Tommy Jordan both state that no such statement was made by Mr. Dinnes. John Jordan testified that he overheard the statement. The statement was raised in John Jordan's charge of racial discrimination to FCHR against Respondent. However, the evidence showed that John Jordan was legitimately discharged for deliberately dumping hazardous material at the terminal. Around December 18, 1992, Tommy Jordan delivered product to Tyndall Air Force Base. A black sergeant had instructed Mr. Jordan to deliver the product differently than had been done before. After the sergeant walked away, Mr. Jordan stated in front of a white airman, "Who does that nigger think he is?" The airman informed the sergeant of Mr. Jordan's comment. Ms. Dinnes received a telephone call from the Air Force sergeant. He informed her of Tommy Jordan's conduct. Ms. Dinnes informed the sergeant that Mr. Jordan would be terminated immediately. The sergeant told Ms. Dinnes that he did not want Mr. Jordan to be discharged, but would be satisfied if he was never assigned to deliver product to the base again. Ms. Dinnes called Florida Rock's main office and believes she spoke with Bob Jackson, then president of Florida Rock. She informed him of the incident and the sergeant's desire. Both took the sergeant's request into consideration when making a decision regarding disciplinary action. Ms. Dinnes confronted Tommy Jordan about his conduct. He admitted he made the statement. She told him that he would be terminated immediately if he ever made such a comment again. Ms. Dinnes also told him that if it were not for the sergeant's request that he not be fired, he would have been discharged. Mr. Jordan did not use another racial slur in the workplace again. Mr. Jordan was not assigned to haul another load to Tyndall Air Force Base. Tommy Jordan was later terminated for accumulating too many points for safety violations. Numerous other minority and non-minority employees employed at the Panama City Terminal during 1991 through 1993 testified that they had never heard Ms. Dinnes or any other of Respondent's manager or supervisor make a derogatory comment based upon race. Mr. Harrison, a black driver, testified that the only derogatory comments relating to race he heard at the terminal from any employee of Respondent were made by Petitioner. Every time Petitioner "got a chance to get close to Harrison" since 1985, Mr. Harrison testified that he called him an "Uncle Tom" and a "bootie kisser" because Harrison refused to get "up in the white folks' face." Mr. Miller a black driver also testified that the only derogatory comments relating to race he heard at the terminal from Respondent's employee were made by Petitioner. Mr. Miller testified that Petitioner called him an "Uncle Tom," a "suck ass," and a "suck butt" because Petitioner said he "liked white people." When Mr. Miller asked Petitioner to stop calling him these names, Petitioner told Mr. Miller that he would "get a gun and shoot [him]." The record clearly indicates that use of racial slurs in the workplace were few and far between. Respondent's policy was to attempt to prohibit such conduct. The company president, Mr. Mabbett, personally investigated Petitioner's claims. In this case, the sporadic racial slurs which occurred are not a sufficient basis to infer an intent to discriminate against Respondent. The terminal manager of Whitaker Oil Company (Whitaker), Jerry Watkins, testified that he barred Petitioner for over two years beginning in late 1990 from hauling loads for Whitaker. Mr. Watkins decided to bar Petitioner after Petitioner said that he could deliver Whitaker loads any time he wanted. Mr. Watkins believed that Petitioner's attitude jeopardized Whitaker's reputation with its customers. Mr. Watkins testified that Whitaker's reputation was its most important asset. He also testified that Petitioner's race had nothing to do with his decision. Three drivers (all white) other than Petitioner also were barred by Mr. Watkins from hauling Whitaker loads during the more than 15 years he has been Whitaker's terminal manager. Only one of these three drivers was employed by Respondent. Pud Parker, a white driver, was barred by Mr. Watkins because he refused to clean his truck. During the time Mr. Parker was barred, Ms. Dinnes did not call Mr. Watkins attempting to have the prohibition lifted as she did for Petitioner. During the time Petitioner was barred, Ms. Dinnes contacted Mr. Watkins repeatedly asking him to allow Petitioner to haul Whitaker loads again. Mr. Watkins refused Ms. Dinnes' request. In defiance of Mr. Watkins' orders, Ms. Dinnes formulated a plan to permit Petitioner to haul Whitaker loads without Mr. Watkins' knowledge. Ms. Dinnes arranged to have Mr. Berrios and other drivers load tanker trailers for Petitioner. Mr. Berrios would go to the Whitaker terminal, load the tanker trailer, and bring it back to the Panama City Terminal where Petitioner would take over the transportation duties. Ms. Dinnes instituted this plan to permit Petitioner to earn a living during a time when business was slow. He had complained to her about not being able to make enough money to support his family. This practice continued until Mr. Watkins discovered that Petitioner was hauling Whitaker loads without his permission. When he found out, Mr. Watkins contacted Ms. Dinnes who admitted to him that she had arranged for Petitioner to haul Whitaker loads clandestinely. He directed Ms. Dinnes that Petitioner was barred from transporting any Whitaker loads until further notice. After approximately two years, Mr. Watkins decided to lift the ban. Petitioner had also been barred from hauling loads from the Chevron terminal. Again, Ms. Dinnes repeatedly attempted to have the prohibition lifted. After approximately two years, Petitioner was permitted to transport Chevron loads. Reports pertaining to the compensation of drivers at Respondent's Panama City Terminal from 1991 through 1996 show no discrimination toward black drivers in the area of compensation or load assignments. The compensation reports show that the drivers receiving the most compensation in 1991 were Petitioner and Michael Davis, both black drivers. For 1992, 1993 and 1994, Mr. Davis was the second most highly compensated driver. For 1995 and 1996, Mr. Davis was the most highly compensated driver. As discussed below with respect to Petitioner's disparate impact claim, an evaluation of driver discharges from 1990 to August 1997, shows no adverse effect on black drivers in terminations for safety violations. During this period, 18.7 percent of the drivers employed by Tank Lines were black and 74.4 percent were white. Of the drivers discharged for safety violations 18.9 percent were black and 77.5 percent were white. The percentage of white drivers terminated for safety violations actually exceeded the percentage of white drivers employed by the company. In comparison, the percentage of black drivers discharged for safety violations was nearly identical to the percentage of black drivers employed by Respondent. The undisputed evidence establishes that Respondent applied its safety policies equally to all drivers regardless of their race. A total of 20 white drivers were identified in the discovery process, where according to the safety manual, they could have received 12 points but received less points for creating or contributing to mixtures. With the exception of Roderick Miller, a black driver, all drivers receiving six points for a mixture. For each white driver that was assessed less than the minimum 12 points for the mixture, an explanation of "extenuating circumstances" was offered by Florida Rock to justify the assessment. The white drivers assessed less than the minimum 12 points for a mixture and the explanation for "extenuating circumstances" that justified the assessment of less points as testified to by Luc Cleyman, the safety director, is as follows: Dan Butow, a white driver at the Panama City terminal, along with James "Pud" Parker received six points on January 10, 1991. The citation issued described the incident as failed to check trailer and loaded on top. The safety department determined that extenuating circumstances existed. The investigation of the incident established that it was caused by a faulty internal valve which failed to open when the handle was pulled. Consequently, the drivers thought that the tanker trailer was empty because when they pulled the handle to open the valve to determine whether the tank was empty, no product came out of the pipe. The bucket test was performed. The tanker trailer used by Parker and Butow had to be repaired before it could be used to transport product again. Ms. Dinnes was directed by the safety department to assess six points against the driving records of Parker and Butow because it was felt the drivers should have recognized the odd feel of the cable when it was pulled and should have known something was wrong. However, it was not clear if the cable felt strange when it was pulled. James Parker, a white driver at the Panama City terminal, received six points. The citation issued described the incident as failed to check trailer and loaded on top. This is the same incident described above. Lane Corbin, a white driver at the Panama City terminal, failed to unload number 3 compartment of supreme gas and loaded 96 gallons of no lead gas on top of it in 1989. Mr. Cleyman advised he had no knowledge of any extenuating circumstances since it was prior to his time as safety director. Archie Trull, a white driver at the Panama City terminal, downgraded a product and blended mid-grade in August, 1991. He was given six points. The "extenuating circumstances" justifying the six points was because it was a blending error constituting driver error, not a mixture. The evidence showed that there is a difference between mixing or blending products to purposefully obtain a certain grade of product and the mixtures involved in this case. There is no category in the safety manual specifically referring to blending errors. The error falls in the general or other category of safety violations. A blending error typically results in the assessment of six points. Daniel Webb, a white driver at the Panama City terminal, received six points for a mixture on March 24, 1990. The "extenuating circumstances" justifying Mr. Webb receiving six points was because this was a training situation. Webb removed the tags which identified the product, the trainee mixed the product, and because there was some comparative negligence with him and the trainee, Roderick Miller (black), only six points were assessed. The incident occurred five days after Miller was hired. Miller was being trained by Webb at the time of the incident. Because Miller was a new driver in training at the time of the mixture, the safety department directed Ms. Dinnes to assess six points against both drivers. William White, a white driver at the Panama City terminal, brought back 595 gallons to the yard and did not completely unload the no-lead product in October, 1990. Six points were assessed because there was no indication of a mixture. Kenneth Albritton, a white driver at another terminal, received zero points for a spill. The original point assessment was voided. The "extenuating circumstances" justifying assessing zero points is unknown. Mr. Cleyman testified that to void points it must be deemed unpreventable. Barry Sanders, a white driver at another terminal, had a spill. The cause of the spill was an equipment malfunction because the drop pipe coupling was egg-shaped and did not fit the hose. Ricky Brannen, a white driver at another terminal, received six points for a mixture where he brought product back on the trailer and then loaded other product on top (no- lead on top of premium). Brannen four months earlier had a spill which was deemed preventable in which he got 12 points. If Brannen would have received 12 points for the mixture he would have been terminated. Mr. Cleyman was on vacation and did not have sufficient knowledge regarding the assessment. Rosemary Crossman, a white driver at another terminal, had a spill which was voided. The "extenuating circumstances" justifying zero points was because she was not properly trained and therefore, not able to "pump off". Lou Dostal, a white driver at the Atlanta terminal, was given 12 points for a spill in 1991. Ultimately, the 12 points were reduced to six points by Cleyman. However, Mr. Cleyman did not know the reasons for the reduction. James Garner, a white driver at the Ocoee terminal, had a mixture and received six points in 1991. The mixture resulted in an upgrade of fuel to a higher octane. There is no rationale set forth in the file. Cleyman believes that he spoke with the terminal manager or had some reason to give six points instead of 12. However, he could not recall the reason for the point assessment. Dennis Lee Hall, a white driver at the Albany terminal received six points for a mixture around July 1993. The six points was [sic] issued for failing to follow procedure which is less harsh than mixture. The point assessment was based on a conversation between Cleyman and the terminal manager. The terminal manager felt that no points should be assessed. The mixture occurred at a tank farm with confusing tanks and pipes. The driver simply hooked to the pipe he thought correct. However, he had traced the wrong connection. Ronnie Harrison, a white driver at the Tampa terminal, who initially received 12 points for a spill in November 1995. In January of 1996, Cleyman removed the points. Steve Cassell, regional manager, requested Cleyman take action on behalf of the driver based on a deceased terminal manager's alleged agreement. Before he died, Fred Tatum, the terminal manager, gave Mr. Harrison three days off, when no pay can be earned, and 12 points, but according to the driver, he intended that he would still get his safety bonus. In trying to honor the deceased terminal manager's alleged arrangements, Cleyman, two months after the incident, removed the 12 points and gave Harrison his safety bonus. Additionally, the tanks were not properly marked and the delivery was made to a commercial private account which controlled the delivery. Robert Holland, a white driver at the Tampa terminal, received three days off and six points for failure to unload all of the product at the site. No mixture was involved. Cleyman did not recall the incident in detail. Ray E. Kersey, a white driver at the Tampa terminal, received six points for a spill in March 1990. Cleyman cannot recall the reason for the six-point assessment because it was a difficult drop process at Respondent's terminal and Mr. Kersey could have received zero points. If Cleyman did not believe Kersey, he could have given him 12 points. Cleyman did not totally believe the narrative written by the driver accurately reflected what happened, but gave him the benefit of the doubt. Michael Koester, a white driver at the Atlanta terminal, received six points for a mixture in 1991. Chevron assumed responsibility for the occurrence because the tag and identification cover did not match. The tag was under muddy water and could not be seen. Mr. Mabbett and Cleyman deemed it unpreventable but still assessed six points. Kee Wayne Laurendine, a white driver at the Jacksonville terminal, received six points for a mixture in 1994. He dropped premium into no-lead fuel. Also, he cross-dropped a kerosene tank with diesel and received 12 points. On July 4th, thousands of people who had been watching fireworks, began to converge on the gas station where the driver was loading product. The people were flipping cigarettes, shooting off fireworks and sparklers, etc. Mr. Laurendine became excited, confused, tense and scared that he was going to be blown up. He made an error. Robert Remillard, a white driver at the Atlanta terminal, received six points for a mixture. Luc Cleyman stated that the "extenuating circumstances" were that unloading paint thinner in a tank containing only alcohol residue was not a mixture. Remillard received six points because he was supposed to check and see if the tank was clean and he failed to do so. He had been told the tank was clean. On August 15, 1990, Mr. Remillard wrote a narrative describing spilling product on the grass. Luc Cleyman offered no "extenuating circumstances". Elvin Roe, a white driver at the Ocoee terminal, received six points for a mixture in September 1990. Mr. Higgins, a vice president, was sent a memorandum to review the incident on September 23, 1990, for Mr. Roe. Mr. Bob Jackson and Mr Higgins agreed Roe should get six points rather than 12 points and Cleyman issued six points. An alternative disciplinary approach was proposed which included suspension, probation, and forfeiture of a yearly bonus. David Trimmel, a white driver at the Tampa terminal, received six points for failure to unload. There was no mixture. Trimmel also received only 12 points for a spill that he did not report, clean up, notify DEP or the fire department. Mr. Trimmel quit before he could be terminated by the terminal manager. After reviewing all of the above records, the record shows that each case turned on facts different from those of Mr. McCoy. Some were treated more harshly than hindsight would have warranted. Some were not. Insufficient facts were presented to show that the facts and circumstances were similar to those of Petitioner. No expert testimony was offered as to the validity of the sampling of employees or that these employees constituted a statistically significant group. Indeed if the exercise of judgment by management is the objectionable policy of Petitioner, then a larger sample constituting the entire safety program would be appropriate since the exercise of judgment is present throughout the company's disciplinary process. The only evidence presented in this regard was the statistical evidence presented by Respondent. That evidence did not demonstrate an adverse impact or treatment of Petitioner or other minorities. Petitioner's statistical evidence was not shown to be reliable or sufficiently valid. Therefore, the sample referenced above cannot form the basis for an inference of discriminatory intent or disparate impact. At the time of his termination on October 8, 1993, McCoy had earned $26,291.99 for approximately 40 weeks of work in 1993. Therefore, McCoy's annualized earnings in 1993 would have been approximately $34,000. In 1992, McCoy earned $30,254.28 from Florida Rock. In 1991, McCoy earned $26,549.38 from Florida Rock. Based on these earnings, McCoy's gross wages from Florida Rock increased in 1992 by 14 percent and in 1993 by 12.3 percent. Therefore, based on McCoy's increase from 1991-1993 and the exemplary models above, it is more than reasonable to assume that McCoy's earnings as a driver at Florida Rock would have continued to increase at a minimum of five percent per year. Florida Rock also provides significant fringe benefits to its employees that include health benefits, life, and accidental death insurance, dental insurance, profit sharing, a 401K deferred earning plan, disability benefits, holiday, and vacation days, a flexible spending account plan, and payroll taxes. According to Florida Rock, these employee benefits represent an "additional 40 percent of compensation" to Florida Rock's employees. Florida Rock's benefit plan is significantly better than the typical employer. At the time of his termination, Petitioner was 50 years of age. After Petitioner was terminated, he could not find comparable employment and filed for and received unemployment benefits. The State of Florida, Department of Labor, required Petitioner to make a "thorough and continued effort to obtain work" in order to receive unemployment compensation benefits. The Petitioner's family goal regarding his re- employment was for him to get a job in the Panama City area. Petitioner continued to look for employment with out- of-town employers that hired in the Panama City area so he would not be away from his family at night. He either was not hired by these employers, or in order to be considered for the positions, he was told he would have to relocate out of state. Petitioner's educational background was limited to high school and he had never received any specific education or training on job searches or job placement. Petitioner attempted to get retrained at Haney Vocational Technical School; however, the company, JTPA, went out of business. Despite not having the background or this knowledge, McCoy attended job fairs and sought training in the communications field from a friend (Robert Alford) who had been in the business for 18 years. Since Petitioner could not locate a truck-driving job similar to or of a like nature with his Florida Rock position, he decided after approximately five to six months to start his own lawn care and telephone communications business. Petitioner reasonably believed that both businesses could be very successful in the Panama City area. Because Petitioner had limited income after being terminated, he used his pension money from his Florida Rock 401K plan both for living expenses and for capital to start his businesses. Petitioner withdrew $102,556 of his 401K savings during this time. Petitioner's telephone communications business was very successful in the beginning. His first bid was accepted and a lucrative contract was obtained to install the phone system for a new hotel in Panama City. At the same time, while the communications business was just starting Petitioner continued to operate a lawn care business after having observed the financial success of others, including family members. Margie McCoy took care of all of the bills and invoices associated with the businesses, as well as provided the information to the accountant for the preparation of the income tax returns. At times, Petitioner's lawn care business was seasonal, but for each season, McCoy would provide different types of services for his client as opposed to not working at all. There was at lease one six-month period in which McCoy could not work because he had a stroke on March 21, 1995. There was no credible evidence that Petitioner's stroke or high blood pressure was caused by his termination from Florida Rock. Petitioner's high blood pressure did contribute to his stroke. However, Petitioner demonstrated symptoms of elevated blood pressure prior to his discharge from Florida Rock. Notwithstanding his health restrictions, Petitioner continued to try to make his lawn care and telephone businesses successful. Petitioner would work in the sun trying to make the lawn care business successful in violation of his doctor's orders. Petitioner's earnings/losses from his communications and lawn care businesses are as follows: 1994 - $878; 1995 - $6,722; 1996 - $7,055; 1997 - $739; 1998 - $1,689. Petitioner currently works for the Bay County School Board driving a school bus. He was hired in 1998. He continues to work his lawn care and communications businesses. He took a night class to become certified as a bus driver, while at the same time operating his lawn care business during the day. The evidence did not show that Petitioner is currently physically able to work for Florida Rock because his blood pressure was not under control as late as January 2000. Therefore reinstatement would not be appropriate. Petitioner earned $7,086 as a school bus driver in 1998, and $12,554.89 in 1999. Based on the circumstances presented to Petitioner after he was terminated from Florida Rock in October 1993, Petitioner used reasonable efforts to seek employment of a like nature compared to his driver's position at Florida Rock. Also, he used reasonable efforts to earn income by starting his own businesses. Following his stroke, McCoy continued to use reasonable efforts to obtain a bus driver position with the Bay County School Board that provided insurance benefits, while at the same time, continuing to operate his lawn care business. There is no indication that Petitioner failed to use reasonable efforts to earn income following his termination from Florida Rock. Moreover, Petitioner's pension/401K savings of $102,556 that was lost and used to start the businesses and for living expenses (as well as additional amounts that would have been contributed to the 401K plan), would have continued to grow and compound during this period. Petitioner's damages from lost earnings and benefits, lost earnings on his 401K plan (assuming 10 percent simple interest), and total back pay damages less mitigated earning from October 1993 to the present is as follows: Date Lost Wages Lost Benefits (40%) Lost Earnings To 401K2 Less Mitigated Earnings Total Loss Oct. 93- Dec 93 $8,000 $3,200 $10,255 $11,200 1994 $35,700 $14,280 $10,255 <$4,250> (unemploy -ment) $55,985 1995 $37,485 $14,994 $10,255 0 $62,734 1996 $39,359 $15,743 $10,255 0 $65,357 1997 $41,327 $16,530 $10,255 <$739> $67,373 1998 $43,393 $17,357 $10,255 <$7,086> $63,919 1999 $45,562 $18,224 $10,255 <$12,554> $61,487 Jan. 00- Sept. 00 $35,880 $14,352 $7,691 <$9,415> $48,508 401K Withdrawal $102,556 Total Back Pay Damages $539,119 However, Petitioner's damages would have terminated upon his stroke in March 1995. At that time, Petitioner was no longer qualified for employment with Respondent due to his uncontrolled high blood pressure. However, Petitioner would have received $5500.00 in disability benefits because of his stroke.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED: That the Florida Commission on Human Relations enter a Final Order finding Respondent not guilty of committing an unlawful employment practice and dismissing the Petition For Relief. DONE AND ENTERED this 9th day of November, 2000, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER 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 9th day of November, 2000. COPIES FURNISHED: Davisson F. Dunlap, Jr., Esquire Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P.A. Post Office Drawer 190 Tallahassee, Florida 32302-0190 John P. McAdams, Esquire Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P.A. Post Office Box 3239 Tampa, Florida 33601 Harriett W. Williams Esquire Henry, Buchanan, Hudson, Suber & Carter, P.A. Post Office Drawer 1049 Tallahassee, Florida 32302 J. Steven Carter, Esquire Henry, Buchanan, Hudson, Suber & Williams, P.A. Post Office Drawer 1049 Tallahassee, Florida 32302 Sharon Moultry, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Dana A. Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue The issues concern the question of whether the Petitioner is entitled to impose a $1,660.00 assessment against Respondent for operating a commercial vehicle in Florida without appropriate registration.
Findings Of Fact On October 21, 1991, Respondent's commercial vehicle was inspected at the Petitioner's Yulee weight station located on Interstate 95 in Nassau County, Florida. It was discovered that the motor vehicle did not have a Florida registration. Furthermore, the South Carolina registration for the vehicle was not apportioned to allow operation in Florida. As a consequence a penalty was assessed for operating the commercial vehicle in Florida without benefit of an appropriate registration. The actual amount of penalty was $1,660.00 which is reflective of the gross weight of 68,200 pounds at a price of .05 per pound of the amount in excess of 35,000 pounds. Respondent paid the $1,660.00 fine plus the $30 single trip registration fee. This payment was rendered on the date that the commercial vehicle was stopped.
Recommendation Upon the consideration of the facts found and the conclusions of law reached, it is, RECOMMENDED: That a Final Order be entered finding that the $1,660.00 penalty was an appropriate amount to be assessed against the Respondent on October 21, 1991, as envisioned by Section 316.545(2)(b), Florida Statutes, and that the request for refund of that amount be rejected. DONE and ENTERED this 23rd day of June, 1992, in Tallahassee, Florida. COPIES FURNISHED: Paul Sexton, Esquire Department of Transportation Haydon Burns Building, M.S.-58 605 Suwannee Street Tallahassee, FL 32399-0458 GayCille Swisher Isley Iron & Metal Company 1691 Lost Mountain Road Powder Springs, GA 30073 Ben G. Watts, Secretary Department of Transportation Haydon Burns Building, M.S.-58 605 Suwannee Street Tallahassee, FL 32399-0458 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 23rd day of June, 1992.
The Issue Whether Respondent committed the acts alleged in the Administrative Complaint; and, if so, what penalty should be imposed.
Findings Of Fact Based on the testimony and documentary evidence presented at the final hearing, the demeanor and credibility of the witnesses, and the entire record of this proceeding, the following Findings of Fact are made: Mr. Arthur is the owner of Mustang Speed and Restoration (MS&R), a motor vehicle repair shop. MS&R’s physical address is 12545 44th Street North, Suite D, Clearwater, Florida. 4 Exhibit 9 is a composite exhibit of seven black and white photocopied photographs. Three of the photographs were identified as sand in the back seat of the Jeep; two photographs were of the Jeep parked; one photograph identified a pair of “pink” panties; and one photograph contained two “ZAFUL FOREVER YOUNG” tags. Only the photographs of the parked Jeep and the tags were clear. Mr. Arthur filed a motor vehicle repair registration application to renew MS&R’s license in March 2019. The application contained MS&R’s registration number as MV87835. Additionally, the application contained the following “Application Certification:” I certify that this applicant is aware of and complies with all of the requirements of ss. 559.901-559.9221, F.S., including the repair estimate and disclosure statement required to be given to customers, and I am empowered to execute this application on behalf of the above named [sic] entity or individual. Mr. Arthur’s name was printed below this statement along with his signature (which Mr. Arthur acknowledged during his testimony), his title as “owner,” his phone number, and the date: March 10, 2019. At all times relevant to this case, MS&R held a valid motor vehicle repair shop license. Sometime in 2019, Victor Oddo bought a 2002 Jeep Liberty (Jeep) from M and K Auto. Mr. Oddo secured his vehicle license plate, numbered FL- NBMD06, on the Jeep. Shortly after the purchase, the Jeep was not running smoothly. Mr. Oddo contacted M and K Auto, explained the problem, and he was directed to Respondent. Testimony at hearing did not adequately address the extent of the problem, other than the check engine light was coming on. During another appointment, Mr. Oddo paid Respondent $100 for a valve gasket repair. When shown a copy of the MS&R invoice for the valve gasket repair, Mr. Arthur confirmed it was an MS&R invoice but, testified he had “never seen that invoice, no. I don’t know anything about a valve gasket repair.” In January 2020, the Jeep’s check engine light kept coming on. Mr. Oddo brought the Jeep to Respondent. Mr. Arthur sent Mr. Oddo to a different repair shop, Carl and Sons Repair Shop (C&S). Based on information provided, Mr. Oddo believed the repair would cost $1,000 if done by C&S. On Wednesday, January 15, 2020, Mr. Oddo returned his Jeep to MS&R after Mr. Arthur stated he could do the repair for $380. The Jeep remained in Respondent’s possession until February 6, 2020, a period of 22 days. Mr. Oddo communicated with Mr. Arthur via telephone and text messages. Over the course of the 22 days the Jeep was at MS&R, Mr. Oddo sought information about the status of the Jeep’s repairs and when it would be returned to him. Respondent did not provide Mr. Oddo a written estimate for any work to be completed on the Jeep. At no time did Mr. Oddo waive the preparation of a written estimate. Mr. Arthur repeatedly claimed that the repair would be paid for by M and K Auto, as “the repairs were not done for the - - Mr. Oddo, they were done for the lot.” Mr. Oddo did not authorize Respondent or any of its employees to use his Jeep for personal use. Between January 15, 2020, and February 6, 2020, Mr. Oddo never took physical possession of his Jeep. On Thursday, January 23, 2020, at approximately 1:10 p.m., Mr. Oddo took two photographs of his Jeep parked in front of a Speedway store. The Jeep’s license plate confirmed it was Mr. Oddo’s vehicle. (Pet. Ex.9, pp 31 & 32.) This Speedway store is a block or more away from MS&R. On February 6, 2020, Mr. Oddo picked up the Jeep from MS&R. Respondent did not provide Mr. Oddo an invoice or billing statement for any work that was completed on the Jeep. After picking up the Jeep on February 6, 2020, Mr. Oddo received a parking ticket (Ticket One) in the mail. Ticket One was issued by the City of Tampa for a parking infraction at Ben T. Davis beach.5 The parking 5 A round-trip trek from MS&R’s location to Ben T. Davis beach could not be more than 40 miles. infraction occurred on Saturday, January 18, 2020, at approximately 1:00 a.m., while the Jeep was in Respondent’s possession. The Jeep’s license number on Ticket One confirmed it was Mr. Oddo’s vehicle. Mr. Oddo communicated with Mr. Arthur about Ticket One, and believed Mr. Arthur would pay the $46.00 fine. Later, Mr. Oddo received another parking ticket (Ticket Two) in the mail. Ticket Two was issued by the City of Clearwater for an expired parking meter at a Clearwater beach.6 The parking ticket was issued on January 18, 2020, at 5:11 p.m., while the Jeep was in Respondent’s possession. The Jeep’s license number on Ticket Two confirmed it was Mr. Oddo’s vehicle. Mr. Oddo did not communicate with Mr. Arthur about Ticket Two as by that time, Mr. Oddo had filed a complaint with Petitioner. Petitioner’s Exhibit 9, pages 27 through 29, purports to show sand on the back seat of Mr. Oddo’s Jeep. While it is logical to assume that a vehicle may have sand in it after a trip (or two) to the beach, or for that matter while in Florida as a whole, the black and white photographs are not clear or concise, but are unnecessary. That the Jeep was at each beach is established by the two tickets. After receiving the second ticket, Mr. Oddo checked his Florida Sunpass transponder7 account and discovered two charges while the Jeep was at MS&R for repair. On Thursday, January 23, 2020, at approximately 11 a.m., Mr. Oddo’s transponder account was charged $1.07 for his Jeep traveling southbound on the Bob Graham Sunshine Skyway bridge (Skyway). Later, at 12:25 p.m., Mr. Oddo’s transponder account was again charged $1.07 for the Jeep returning northbound on the Skyway. Mr. Arthur testified that Mr. Oddo’s Jeep was taken for a round-trip test drive to Sarasota, Florida, on January 23, 2020. The round-trip test drive 6 A round-trip trek from MS&R’s location to a Clearwater beach could not be more than 40 miles. 7 Mr. Oddo referred to this as his “Sunshine Skyway pass.” was approximately 82 miles in distance. Mr. Arthur attached a scanner to the Jeep to determine “what the repair needed to be done.” The test drive was also to pick up “a check for a different repair for a car dealer.” Respondent described this test drive using the phrase it “killed two birds with one stone.” Approximately 45 minutes after the Jeep returned from the Sarasota test drive, the Jeep was photographed at the Speedway store front. Mr. Arthur claimed the Jeep was on empty and had to be filled with gas. As provided in paragraph 11 above, Petitioner’s Exhibit 9, pages 31 and 32, are pictures of the Jeep parked in front of the Speedway store, not at a gas pump. Prior to reclaiming his car, Mr. Oddo was led to believe from Mr. Arthur that the Jeep’s timing chain and the check engine light had been repaired. However, that was not the case. Although the timing chain may have been repaired or replaced, the check engine light stayed on. When Mr. Oddo reclaimed his Jeep on February 6, 2020, he claimed there were “approximately a thousand miles added to my odometer.” He failed to substantiate this claim with evidence of the odometer reading on the Jeep when he dropped it at MS&R, compared to the odometer reading when he reclaimed the Jeep. Further, Mr. Oddo confused the issue when he testified: My trip odometer only had 16 miles on it, and I always reset my trip odometer when I fill up my gas tank. My gas tank was empty with 16 miles, so I - - I don’t understand why the trip odometer has to be reset for a test drive at all. Mr. Arthur admitted he never filled out or provided an estimate or invoice for the repair work to Mr. Oddo’s Jeep. Mr. Arthur testified instead that he was under the impression the repair work would be paid for by the car dealer from whom Mr. Oddo bought the Jeep. Mr. Arthur testified: We have an open contract, we are - - no shop under any of the motor vehicle repair under Mr. Williamson,[8] or anybody else, requires the car dealer to come out here and sign the invoice on every job. * * * And no shop that does car dealer wholesale work, auto work, auction work, has the customer - - the car dealer come down out of his office and sign a repair order; it’s a blanket contract, verbal contract. We repair them, they pay their bills, and everybody’s happy. * * * Just in rebuttal, there’s not one car dealership, one repair shop in the world that gets the car dealer or the auction to sign an invoice on every single job. It’s not possible. They’re not going to come down out of their car lot to come down here and sign every - - it’s a blanket contract, verbal contract valid under the State of Florida. Petitioner did not present any disciplinary history regarding Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department issue a final order that: Finds Respondent guilty of violating section 559.920(3), (12), (13), and (17), as alleged in the AC; Imposes an administrative fine of $4,000; and Directs Respondent to cease using consumers’ vehicles for unauthorized business. DONE AND ENTERED this 25th day of February, 2021, in Tallahassee, Leon County, Florida. COPIES FURNISHED: S LYNNE A. QUIMBY-PENNOCK Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of February, 2021. Robert J. Arthur Robert J. Arthur, d/b/a Mustang Speed & Restoration 12545 44th Street North, Suite D Clearwater, Florida 33762 Steven Hall, General Counsel Department of Agriculture and Consumer Services 407 South Calhoun Street, Suite 520 Tallahassee, Florida 32399-0800 Genevieve Hall, Esquire Department of Agriculture and Consumer Services 407 Calhoun Street Tallahassee, Florida 32399 Honorable Nicole “Nikki” Fried Commissioner of Agriculture Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810
