The Issue The issue to determine in this matter is whether Respondent Department of Environmental Protection (DEP) properly issued its proposed verification of an Environmental Resource Permit (ERP) exemption, dated March 23, 2018, for the installation of nine pilings off of Respondent Larry Lynn’s residential property, in the direction of Petitioner MarineMax, Inc.’s commercial property (MarineMax), pursuant to section 373.406(6), Florida Statutes, commonly known as the “de minimus” exemption.
Findings Of Fact Mr. Lynn has owned the real property located at 111 Placid Drive, Fort Myers, Florida, since 1994. Mr. Lynn’s residential property is a corner lot that fronts a canal on two of the four sides of his property, and also contains his home. MarineMax is a national boat dealer with approximately 65 locations throughout the United States and the British Virgin Islands. MarineMax has approximately 16 locations in Florida. MarineMax, through subsidiary companies, acquired the property at 14030 McGregor Boulevard, Fort Myers, Florida, in December 2014 (MarineMax Property). Prior to MarineMax’s acquisition, this property had been an active marina for more than 30 years. MarineMax continues to operate this property as a marina. The MarineMax Property is a 26-acre contiguous parcel that runs north-south and that is surrounded by canals and a larger waterway that connects to the Gulf of Mexico. The “northern” parcel of the MarineMax Property is surrounded by two canals and the larger waterway that connects to the Gulf of Mexico. The “southern” parcel is a separate peninsula that, while contiguous to the northern parcel, is surrounded by a canal that it shares with the northern parcel, along with another canal that separates it from residential properties. Mr. Lynn’s property is located directly south of the northern parcel of the MarineMax Property, and the canal that runs east-west. As his property is a corner lot, it also fronts an eastern canal that is directly across from the southern parcel of the MarineMax Property. The eastern canal described above also serves as a border between MarineMax and a residential community that includes Mr. Lynn’s residential property. Mr. Lynn has moored a boat to an existing dock on the eastern canal described in paragraphs 5 and 6 for many years. MarineMax holds ERPs for the business it conducts at its MarineMax Property, including the canal between the northern parcel of the MarineMax Property and Mr. Lynn’s property. For example, these ERPs permit: (a) the docking of boats up to 85 feet in length with a 23-foot beam; (b) boat slips up to 70 feet in length; (c) up to 480 boats on the MarineMax Property; and (d) a boatlift and boat storage barn (located on the southern parcel). The MarineMax Property also contains a fueling facility that is available for internal and public use. It is located on the northern parcel of the MarineMax Property, directly across the east-west canal from Mr. Lynn’s property. The prior owner of the marina constructed this fueling facility prior to 2003. Request for Verification of Exemption from an ERP Mr. Lynn testified that after MarineMax took over the property from the prior owner, he noticed larger boats moving through the canal that separates his property from the MarineMax Property. Concerned about the potential impact to his property, including his personal boat, Mr. Lynn contracted with Hickox Brothers Marine, Inc. (Hickox), to erect pilings off of his property in this canal.2/ On March 8, 2018, Hickox, on behalf of Mr. Lynn, submitted electronically a Request for Verification of Exemption from an Environmental Resource Permit to DEP. The “Project Description” stated, “INSTALL NINE 10 INCH DIAMETER PILINGS AS PER ATTACHED DRAWING FOR SAFETY OF HOMEOWNER’S BOAT.” The attached drawing for this project depicted the installation of these nine pilings 16 and 1/2 feet from Mr. Lynn’s seawall, spaced 15 feet apart. On March 23, 2018, DEP approved Mr. Lynn’s Request for Verification of Exemption from an Environmental Resource Permit, stating that the activity, as proposed, was exempt under section 373.406(6) from the need to obtain a regulatory permit under part IV of chapter 373. The Request for Verification of Exemption from an Environmental Resource Permit further stated: This determination is made because the activity, in consideration of its type, size, nature, location, use and operation, is expected to have only minimal or insignificant or cumulative adverse impacts on the water resources. The Request for Verification of Exemption from an Environmental Resource Permit further stated that DEP did not require further authorization under chapter 253, Florida Statutes, to engage in proprietary review of the activity because it was not to take place on sovereign submerged lands. The Request for Verification of Exemption from an Environmental Resource Permit also stated that DEP approved an authorization pursuant to the State Programmatic General Permit V, which precluded the need for Mr. Lynn to seek a separate permit from the U.S. Army Corps of Engineers. Megan Mills, the environmental specialist and program administrator with DEP’s South District Office, testified that DEP’s granting of Mr. Lynn’s Request for Verification of Exemption from an Environmental Resource Permit was routine, and that his Request for Verification of Exemption from an Environmental Resource Permit met the statutory criteria. After DEP granted the Request for Verification of Exemption from an Environmental Resource Permit, Hickox, on behalf of Mr. Lynn, installed the nine pilings in the canal at various distances approximately 19 feet from Mr. Lynn’s seawall and in the canal that divides Mr. Lynn’s property from the MarineMax Property (and the fueling facility).3/ MarineMax timely challenged DEP’s Request for Verification of Exemption from an Environmental Resource Permit. Impact on Water Resources MarineMax presented the testimony of Sam Lowrey, its corporate vice president of real estate, who had detailed knowledge of the layout of the MarineMax Property. Mr. Lowrey testified that the canal between the MarineMax Property and Mr. Lynn’s residential property is active with boating activity, noting that MarineMax’s ERP allows up to 480 vessels on-site. With the installation of the pilings, he testified that he was concerned that MarineMax customers “will be uncomfortable navigating their boats through this portion of the canal[,]” which would be detrimental to MarineMax’s business. Mr. Lowery testified that he had no personal knowledge of whether MarineMax has lost any business since the installation of the pilings. MarineMax also presented the testimony of Captain Ralph S. Robinson III, who the undersigned accepted as an expert in marine navigation, without objection.4/ Captain Robinson has been a boat captain, licensed by the U.S. Coast Guard, since 1991. He has extensive experience captaining a variety of vessels throughout the United States and the Bahamas. He is an independent contractor and works for MarineMax and other marine businesses. Captain Robinson is also a retired law enforcement officer. Captain Robinson testified that he was familiar with the waterways surrounding the MarineMax Property, as he has captained boats in those waterways several times a month for the past 15 years. Captain Robinson testified that he has observed a number of boats with varying lengths and beams navigate these waterways, and particularly, the canal between the MarineMax Property and Mr. Lynn’s property. Captain Robinson estimated that the beam of these boats range from eight to 22 feet. He also testified that the most common boats have a beam between eight and 10 feet. Captain Robinson’s first experience with the pilings in the canal occurred in April 2018, when he was captaining a 42- foot boat through the canal. He testified that an 85-foot boat was fueling on the fuel dock, and when he cleared the fueling boat and pilings, he had approximately one and a half feet on each side of his boat. He testified that “[i]t was very concerning.” Captain Robinson testified that since this experience in April 2018, he calls ahead to MarineMax to determine the number and size of boats in the portion of this canal that contains the pilings. On behalf of MarineMax, in December 2018, Captain Robinson directed the recording of himself captaining a 59-foot Sea Ray boat with an approximately 15- to 16-foot beam through the canal separating the MarineMax Property and Mr. Lynn’s residential property, with another boat of the same size parked at MarineMax’s fueling dock.5/ Captain Robinson testified that these two boats were typical of the boats that he would operate at the MarineMax Property and surrounding waterway. The video demonstration, and Captain Robinson’s commentary, showed that when he passed through the canal between the fuel dock (with the boat docked) and Mr. Lynn’s residential property (with the pilings), there was approximately four to five feet on either side of his boat. Captain Robinson stated: This is not an ideal situation for a boat operator. Yes, it can be done. Should it be done? Um, I wasn’t happy or comfortable in this depiction. Captain Robinson testified that his “personal comfort zone” of distance between a boat he captains and obstacles in the water is five or six feet. Ultimately, Captain Robinson testified that he believed the pilings in the canal between the MarineMax Property and Mr. Lynn’s property were a “navigational hazard.” Specifically, Captain Robinson stated: Q: In your expert opinion, has Mr. Lynn’s pilings had more than a minimal, or insignificant impact on navigation in the canal, in which they are placed? A: I believe they’re a navigational hazard. The impact, to me personally, and I’m sure there’s other yacht captains that move their boat through there, or a yacht owner, not a licensed captain, um, that has to take a different approach in their operation and diligence, um, taking due care that they can safely go through. It’s been an impact. Q: Is a navigational hazard a higher standard for you as a boat captain, being more than minimal or insignificant? A: Yes. A navigational hazard is, in my opinion, something that its position could be a low bridge or something hanging off a bridge, a bridge being painted, it could be a marker, it could be a sandbar, anything that is going to cause harm to a boat by its position of normal operation that would cause injury to your boat, or harm an occupant or driver of that boat. Ms. Mills, the environmental specialist and program administrator with DEP’s South District Office, testified that after MarineMax filed the instant Petition, she and another DEP employee visited Mr. Lynn’s residential property. Although not qualified as an expert in marine navigation, Ms. Mills testified that, even after observing the placement of the pilings and the boating activity the day she visited, the pilings qualified for an exemption from the ERP.6/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the undersigned recommends that DEP enter a final order dismissing MarineMax’s challenge to the determination that Mr. Lynn’s pilings qualify for an exemption from an environmental resources permit pursuant to its March 23, 2018, approval of Mr. Lynn’s Request for Verification of Exemption from an Environmental Resources Permit. DONE AND ENTERED this 28th day of March, 2019, in Tallahassee, Leon County, Florida. S ROBERT J. TELFER III 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 28th day of March, 2019.
The Issue The issues in these cases are whether Respondent violated sections 489.129(1)(i), 489.129(1)(o), and 489.1425, Florida Statutes (2007 & 2009),1/ and, if so, what discipline should be imposed.
Findings Of Fact At all times material to the administrative complaints, Mr. Organo was licensed as a certified general contractor in the State of Florida, having been issued license number CGC 1512005. At all times material to the administrative complaints, Mr. Organo was the primary qualifying agent for Bennett Marine Contracting and Construction, Inc. (Bennett Marine). On or about September 29, 2007, Jean Walker (Ms. Walker) entered into a contract with Bennett Marine to construct a dock and a tiki hut at 12305 Boat Shell Drive. The contract (the Walker contract) provided that the contractor would make application for a permit from Lee County, Florida. Mr. Organo signed the Walker contract for Bennett Marine. It is undisputed that the Walker contract did not include a written statement explaining Ms. Walker's rights under the Florida Homeowners' Construction Recovery Fund. On October 24, 2007, Bennett Marine applied for a permit to construct the dock. The application was denied October 29, 2007, because the site plan contained the tiki hut. When the tiki hut was removed from the application, the dock permit was approved. Ms. Walker paid Bennett Marine draws on the construction project. The payments were given to Mr. Organo. The payments totaled $9,200. By February 2008, a tiki hut had been constructed on Ms. Walker's property without a permit. Because the tiki hut was built without a permit, and it was in an illegal location, Lee County required that the tiki hut be removed. By April 2008, the tiki hut had been removed, and another tiki hut had been built in its place. Again, no permit was pulled for the tiki hut, and it was placed in an illegal location. Again, Lee County required that the tiki hut be removed. Mr. Organo subcontracted the construction of the tiki hut to Rick Fewell Chickees. Mr. Fewell of Rick Fewell Chickees, a Seminole Indian,2/ applied for a permit to build a tiki hut, but the application was rejected because the plot plan was not to scale, and the tiki hut did not meet the setback requirements from the water. Another tiki hut was built, and, in March 2009, Lee County again cited Ms. Walker for not having a permit for the tiki hut and for not meeting the setback requirements. In 2010, a permit was finally issued for the construction of a tiki hut on Ms. Walker's property. The permit was issued to Ms. Walker. Bennett Marine commenced work on the tiki hut without obtaining a building permit. On January 5, 2010, Bennett Marine entered into a contract with Chris Bevan (Mr. Bevan) to remove an existing dock, uninstall an existing boatlift, construct a dock, construct a tiki hut, and to reinstall the boatlift. The contract (the Bevan contract) required that the contractor obtain a City of Cape Coral building permit. The Bevan contract was signed by Mr. Organo for Bennett Marine. It is undisputed that the Bevan contract did not contain a written statement explaining Mr. Bevan's rights under the Florida Homeowners' Construction Recovery Fund. On March 17, 2010, Bennett Marine showed up on Mr. Bevan's property and commenced work, by knocking down a cantilever dock that was hanging over a seawall, removing old decking from the boatlift, and rough-framing part of the new dock. Bennett Marine worked until approximately March 25, 2010. That was the last that Mr. Bevan heard from Mr. Organo or Bennett Marine. Mr. Organo applied for a building permit for the Bevan contract on April 1, 2010. The permit was approved on April 13, 2010, but it was not issued. On May 14, 2010, the City of Cape Coral placed a stop-work order on the Bevan project. Mr. Bevan applied for an owner-builder permit for the dock construction, and the permit was issued on June 9, 2010. Mr. Bevan completed the dock construction at additional expense.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Mr. Organo violated sections 489.129(1)(i), 489.129(o), and 489.1425; imposing a fine of $250 each for the Walker contract and the Bevan contract for a total of $500, for failure to advise the owners of the recovery fund; imposing a fine of $3,000 and placing Mr. Organo on probation for two years for beginning work without a permit for the Walker contract; and imposing a fine of $1,000 and placing Mr. Organo on probation for one year for beginning work on the Bevan contract without a permit with the one-year probation to run concurrently with the probation imposed for the Walker contract. DONE AND ENTERED this 13th day of April, 2011, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL 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 13th day of April, 2011.
Findings Of Fact Respondent, Colin Spruce, was issued a certified residential contractor's license, No. CR-COI5679, in an active status, in June, 1930, as an individual. This license was renewed, as an individual, for the 1981-83 licensing period, which expired on June 30, 1983. This license has not been renewed and is in a delinquent status. Respondent at no time qualified Angle Enterprises, Inc., to engage in contracting in Florida. James D. Roland and his wife own nine low-income family apartment buildings in Melbourne. On November 2, 1981, the Rolands signed a contract with Respondent to rehabilitate these apartments with funds provided on loan from the federal government. Respondent signed the contract on November 3, 1981, and began work on November 9, 1981. He fully completed one of the nine buildings and partially completed one other. He also did some work on the roofs of all. On or about January 13, 1982, Respondent called Mr. Roland's home and left word he would be out of town for several days. He never returned to work on the project. The work was 35 percent complete when Respondent abandoned the project. Later, Mr. Roland completed the project himself at an overrun of approximately $2,500 above the contract price. Aside from one minor modification which cost an additional $261, there were no changes to the plans and specifications when Roland took over. It was only later that Roland got word that the subcontractors had not been paid. He paid off those who filed liens against his property. During the course of his work on the Rolands' property, Respondent, in his own name or as Angle Enterprises, Inc., entered into agreements with several subcontractors, including Scotty's, Berger Roofing, Melbourne Insulation, City Gas Co., and Jackson Electric, all of which provided either materials or services, or both, for this project. Scotty's provided materials valued at $16,513.24, but was paid only $6,751.46, leaving an unpaid balance of $9,761.78 for which the company filed a lien against the Rolands' property. This sum, left unpaid by Respondent, was subsequently paid by Mr. Roland. Berger Roofing, Inc., furnished labor and materials for the porch roofs on each of the project's buildings during late November and early December, 1981, and was due $750 from Respondent for this job. Respondent did not ever pay, and Berger also filed a lien against the property. This lien was also satisfied through payment by Mr. Roland. Melbourne Insulation furnished labor and materials to the project through contract with Respondent for approximately $2,000 of which only one-half was paid by Respondent. The balance has not been paid, though no lien was filed here because of an oversight by claimant's lawyer. City Gas Company is still owed $1,524.75 of the $4,784.33 it billed Respondent for labor and materials (heaters) it provided for the project for a contract it had with Respondent dated December 1, 1981. No lien was filed for the unpaid amount here, either. Jackson Electric performed electrical work on the project which included removing plates, switches, and fixtures from one of the buildings in November, 1981, based on an agreement with Respondent. The contractor was about to start work on a second building in the project, but due to the fact that Respondent was a slow payer on previous jobs done for him, the additional work was not started and Jackson was never paid for the work done. Respondent also failed to pay the wages he owed to several of his employees, including David Jones and Carl Cramer. Jones worked for Angle Enterprises, the company owned by Respondent and under which he did business from November, 1981, to January, 1982, in a job on Roland's buildings which involved stripping the roofs off the buildings and painting. He was not paid for his final week of work, which ended on January 15, 1982. He is owed for 32 hours work at $5.75 per hour. He considered himself a close personal friend of Respondent who gave no advance notice that he would not pay his employees. Cramer and a third employee (Mr. Kibben) also were not paid their earned wages by Respondent. He was working at the time in question as a carpenter/foreman for Respondent. On the last morning of work, Friday, January 15, 1982, Respondent told him that the accountant would come by and pay him and the other men that afternoon. Respondent then left and was not seen again, nor was the accountant or the wages. Cramer was due 32 hours pay at $7 per hour. During the time he was working on this project, Respondent submitted four draw requests and was paid on three. These draws were submitted to Mr. Grinstead at the Community Development Office for approval and were approved when Grinstead checked to see that the approximate work was done. Mr. Grinstead was at the project site almost every day. The last time he saw Respondent there was on or about January 15, 1982. As of that date, the work was not completed, but Respondent did not go back. Mr. Grinstead approved three draws. These were: December 10, 1981, for $13,000 payable to Roland, Respondent, and Scotty's; December 21, 1981, for 54,000, payable to Respondent; and January 8, 1982, for $13,000 payable to Roland, Respondent, and Scotty's. A fourth draw request on December 12, 1981, for $2,400 was denied by Y. Grinstead because sufficient additional work was not done to justify it. All three approved checks were cashed. As to the check for $13,000 dated January 8, 1982, Roland signed it and Respondent took it to Scotty's, where he convinced the credit manager to endorse it in exchange for his, Respondent's (Angle Enterprises'), check dated January 11, 1982, in the amount of $7,446.61. Thereafter, the same day, Respondent signed a stop-payment order at his bank on which that check was drawn, listing as his reason for that action a corporate reorganization. Payment was stopped, and Scotty's was not paid by Respondent. On the basis of Respondent's conduct regarding the check, an information charging him with altering a worthless check and grand theft (second degree) was filed in the Circuit Court in Brevard County, Florida, on June 1, 1982. Thereafter, on November 30, 1982, Respondent entered a plea of guilty to both offenses and was placed on probation for five years. Conditions of probation included full restitution of the $13,000 and a prohibition from engaging in construction or repair services without permission of the court.
Recommendation Based on the foregoing, it is, therefore: RECOMMENDED: That Respondent's certified residential contractor's license be revoked. RECOMMENDED in Tallahassee this 5th day of April, 1984. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of April, 1984. COPIES FURNISHED: Stephanie A. Daniel, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Colin Spruce 1001 SW Conover Avenue Palm Bay, Florida 32907 James Linnan, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202 Fred M. Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue Whether Petitioner failed to comply with coverage requirements of the workers' compensation law, Chapter 440, Florida Statutes, and if so, what penalty should be imposed.
Findings Of Fact Respondent is the state agency responsible for enforcing provisions of Florida law which require that employers secure workers’ compensation insurance coverage for their employees. At all times material to this case, Petitioners owned and operated a business which provides marine-based services, including general diving and bridge demolition services. On or about February 28, 2003, Petitioners, in the course and scope of operating their marine service business, employed welders to perform welding and related services on a public construction project, specifically, the Jensen Beach Causeway Bridge in Jensen Beach, Florida. Petitioners were legally obligated to provide workers' compensation insurance for these welders in accordance with the provisions of Chapter 440. By way of defense, Petitioners argued that Chapter 440 is unconstitutional as applied to the facts and circumstances of this case. More specifically, Petitioners contend that this forum and the Respondent lack the authority to enforce Chapter 440 against Petitioners because of federal preemption under the Longshoremen and Harbor Workers’ Compensation Act (LAHCA). The tribunal has carefully considered this argument and finds it contrary to controlling case law. The parties have stipulated that if the Stop Work and Penalty Assessment Order is valid, the correct amount of the penalty to be imposed by law is $150,968.00, based upon appropriate supporting tax and payroll records.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Respondent enter a Final Order confirming the Amended Stop Work and Penalty Assessment Order in the amount of $150,968.00. DONE AND ENTERED this 10th day of September, 2003, in Tallahassee, Leon County, Florida. S FLORENCE SNYDER RIVAS 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 10th day of September, 2003. COPIES FURNISHED: Richard W. Glenn, Esquire 4 Harvard Circle, Suite 600 West Palm Beach, Florida 33409 Colin M. Roopnarine, Esquire Department of Financial Services Division of Legal Services 200 East Gaines Street Tallahassee, Florida 32399-4229 Honorable Tom Gallagher Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Mark Casteel, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300
The Issue The issue is whether Petitioner filed his complaint against Respondent for race discrimination more than 180 days after the occurrence of the alleged unlawful employment practices contrary to Section 760.10(10), Florida Statutes (1989).
Findings Of Fact The parties' Stipulated Statement of Undisputed Material Facts constitute the following findings of fact: The Petitioner, Floyd Peacock, Jr., a black male, was hired by the Respondent, Air Products and Chemicals, Inc., on August 22, 1980. The Petitioner was initially hired and employed by the Respondent as a maintenance mechanic at the hire (entry) level. On August 22, 1980, James Coleman, a white male, was hired by the Respondent as a maintenance mechanic. On August 25, 1980, Elvin Higgins, a white male, was hired by the Respondent as a maintenance mechanic at the second year step level. The Respondent has had two means of filling the vacancies that arose in the plant. First, whenever someone left the Respondent's employ due to retirement, a voluntary discharge, or involuntary termination, that vacancy would be posted on a job board on the Respondent's premises. Employees wishing to transfer to the department where the vacancy arose were then allowed to apply, or bid, for the posted vacancy. Bids are awarded based upon job skills and seniority. For positions within the operations department, seniority is determined by the amount of time the employee had with the company. For maintenance positions, seniority is determined by the amount of time the employee had with the maintenance department. The second method used by the Respondent to fill vacancies was a "back- fill" procedure. When an employee's bid was awarded and that employee then transferred to another department, the vacancy created in the transferring employee's department was "back-filled" with a new hire from outside of the company. Additionally, a position that was opened for bids but not bid upon was also back-filled with new hires from outside of the company. In 1982, the Petitioner, whose pay level as a mechanic with the Respondent was at the "second step/year level," became interested in a three- year position in the ammonia methanol area and inquired about bidding for the job. He was told by the personnel manager, Laura Finn, that since he was at the two-year level, he did not qualify for the three-year position. The Petitioner did not bid for the job. Two white males, Roy Mony and Clayton Perry, who were previously employed as mechanics with Carroll Construction, as had the Petitioner, were hired at the "third step/year level" and placed in the two "third step/year level" mechanics jobs. The Petitioner filed no charge or complaint with the Florida Commission on Human Relations or the Equal Employment Opportunities Commission concerning his not bidding for the "three step/year level" mechanics position or the hiring and assigning of the two white males "three-step" mechanics to those positions in 1982. At the time of his "fifth-year step" mechanic's interview in 1985 for obtaining his "five year/step" pay increase, the Petitioner confirmed with his supervisor that James Coleman had been made senior mechanic and had been advanced to the "senior mechanic" pay level. The Petitioner was given a "fifth year/step" mechanic's pay increase. Soon after the 1985 pay increase interview, the Petitioner went to the Respondent's Personnel Department with his supervisor to inquire about why James Coleman had been made a senior mechanic before the Petitioner. When the personnel manager was unable to provide the reason, the Petitioner talked with a staff member of the Escambia-Santa Rosa Human Relations Commission about his being given a "fifth year/step" mechanic's pay increase while James Coleman received a senior mechanic's title and pay increase. However, the Petitioner did not file any complaint with that agency or with the Florida Commission on Human Relations or the Equal Employment Opportunities Commission. In June, 1986, the Respondent had a reduction in force (RIF) that resulted in some employees' employment being terminated and other employees being reassigned to other lower level and lower paying jobs. The following actions were taken as part of the RIF process in June, 1986: Maintenance mechanics hired prior to June 10, 1977, continued in their positions. Maintenance mechanics hired after June 20, 1977, but before the Petitioner's date of hire of August 22, 1980, were assigned permanent operator positions. Fifteen or sixteen maintenance mechanics who had been hired on or after the Petitioner's date of hire were placed in a temporary job position designated as "utility operators." Among the mechanics retained in the employ of the Respondent but assigned as utility operators was Elvin Higgins, a white male senior mechanic, and the Petitioner. The remaining mechanics were discharged as a result of the RIF in June, 1986. Among the mechanics who were discharged at that time were Roy Mony and Clayton Perry, whose hiring dates were after the Petitioner's date of hire. The utility operator position was a new, temporary position created in response to the RIF. In lieu of being discharged, fifteen employees, including Petitioner, were placed in the utility operator position. Utility operators worked at reduced pay, performing work previously accomplished by independent contractors. As vacancies arose in other departments of the company, one by one, each of the utility operators were to fill these vacancies until no one remained in the utility operator position. The respondent provided the utility operators with two means of transferring out of the utility operator position into a regular, higher paying position. First, utility operators were allowed to bid on any position that was subject to the Respondent's customary bid procedure. The second means that the utility operators had for leaving the utility operator position was through the assignment of a "back-fill" position. Instead of back-filling positions with new hires from outside of the company, as was the procedure before the RIF, utility operators were to be assigned to the back-fill positions. A utility operator would be back-filled into any vacancy that had been opened up for bids under the customary bid procedure, but on which no one had bid. Second, utility operators could be back-filled into a secondary vacancy created when another employee transferred from one position to another. The utility operators were to back-fill these non-bidded [sic] positions and secondary vacancies in order of seniority with the company (i.e., by date of hire). In June, 1986, when Elvin Higgins was reduced from senior mechanic to a utility operator because of the reduction in force (RIF), the Petitioner first became aware that Elvin Higgins had previously received senior mechanic status. On July 28, 1987, Aubry Garrett, one of the utility operators, used the normal bid procedure and successfully "bid-out" of the utility operator's position and took an operator's position. The Petitioner did not bid for this position. Between the time of the RIF in June, 1986, and the time the first back-fill position arose in September, 1987, the Respondent had not provided its employees with a finalized written or oral statement about how the back-fill positions would be administered after the RIF; however, during this period before the Petitioner refused the first back-fill position, when asked about this procedure by employees, Ernest Labadie, the personnel manager, told them that utility operators would be assigned back-fill positions in the order of the employees' length of service with the company. In September, 1987, two operator positions became available for utility operators to "back-fill" as secondary vacancies. The Petitioner, as the most senior utility operator based on date of hire, was offered one of the positions, but he refused the job because it was rotating shift work and he desired to work only "day hours" like he was working as a utility operator and had worked as a maintenance mechanic. Elvin Higgins and Gene Moore, the next senior utility operators based on date of hire, accepted the "back-fill" positions and were assigned those positions in early October, 1987. At the time of the Petitioner's refusal to "back-fill" and accept the available advancement to operator, the Petitioner was informed by Ernest Labadie, the personnel manager, that the Petitioner would be placed at the bottom of the list of the utility operators for future "back-filling" of jobs by utility operators. The Petitioner made no complaint to anyone or any agency about his being placed at the bottom of the list of utility operators for "back-filling" purposes in September, 1987, and believed at that time that his placement at the bottom of the list was fair and not discriminatory. Gary Kent is a white male who is senior the Petitioner both by date of hire and by amount of time in the Respondent's maintenance department. Before the reduction in force (RIF) in June, 1986, Mr. Kent was a mechanic, but as a result of the RIF, he was transferred to an operator's position in the amines area of the company. The amines job was not shift work. On November 24, 1987, Mr. Kent bid for an operator's position in the PVC area and received the job on December 8, 1987. His move to the PVC area from the amines area resulted in an operator vacancy (secondary vacancy) in the amines area that would be "back- filled" from the utility operators' list (i.e., without the need for bidding for the vacant position). On December 8, 1987, the vacant operator position in the amines area was "back-filled" by David Hart, who was the next utility operator on the "back- fill" list since the Petitioner was at the bottom of the list. The Petitioner became aware of this assignment, or surmised that the assignment of Mr. Hart to the amines area would occur, before the announcement of the assignment was posted and when he heard that Mr. Kent had bid for the PVC area operator position. In November or December, 1987, the Petitioner spoke with the personnel manager, Mr. Labadie, about the Petitioner's chances of getting the vacant amines area operator position that was to be "back-filled" since Gary Kent had bid for the PVC operator's position. The Petitioner was interested in this operator position because it was not a rotating shift job. The Petitioner was told that consistent with the personnel manger's discussions with the Petitioner in October, 1987, the Petitioner was not eligible to "back-fill" the position because he was at the bottom of the "back-fill" list. The Petitioner accepted the explanation and understood the policy and procedure for "back-filling." The Petitioner made no complaint to anyone about assigning the amines area operator's job to Mr. Hart instead of to the Petitioner. In January, 1988, Bruce Holiday, a white male who is senior to the Petitioner by amount of time in the Respondent's maintenance department and who has been working as an operator after the reduction in force, bid for and received on February 1, 1988, the assignment back into the maintenance mechanic. The Petitioner had bid for this position but has no complaint of racial discrimination about his not being awarded the position because Mr. Holiday was a senior to the Petitioner for the maintenance mechanic position by the amount of time in the maintenance department. In February, 1988, the Petitioner and the other two last remaining utility operators, Randy Mock and Lawrence Pearce, were assigned and "back- filled" to operator positions. The Petitioner made no complaint and has no complaint about this assignment. In November, 1988, Gary Kent, who was also senior to the Petitioner both by date of hire and by amount of time in the Respondent's maintenance department, bid for and received on November 20, 1988, an assignment back into the maintenance department as a maintenance mechanic, a position subject to the customary bidding procedures. The Petitioner had also bid for this position. The announcement of Mr. Kent's assignment was posted on the bulletin board for employees to see. The Petitioner became aware of the assignment of Mr. Kent to maintenance on or before the posting of the announcement on November 16, 1988. On or about November 16, 1988, the Petitioner discussed with Mr. Labadie, the personnel manager, Mr. Kent's bidding and being assigned into the maintenance department as a mechanic. The Petitioner complained that since Mr. Kent had previously bid and received the PVC position in December, 1987, Mr. Kent, in the Petitioner's view, had decided at that time that Mr. Kent did not want to go back into the maintenance department. Therefore, the Petitioner surmised that, even though Mr. Kent would later be the senior person eligible to be awarded a maintenance mechanic job if he had bid it, Mr. Kent should have been "placed at the bottom of the list" for purposes of bidding on any maintenance mechanic positions. The Petitioner asserted that this would be consistent with his being placed at the bottom of the "back-fill" list when he refused to accept the "back-fill" assignment in September or October, 1987. Mr. Labadie asserted in response to the Petitioner that there was nothing inconsistent since Mr. Kent's assignment was pursuant to and consistent with the Respondent's bidding procedures and policies for maintenance department positions which were in effect and used both before and after the RIF (and under which the Petitioner was allowed to bid and did bid for mechanic's positions); while the Petitioner's assignments from utility operator to the operator positions were governed by the "back-fill" procedure. The Petitioner personally did not agree with and did not accept this explanation, although he understood the two different procedures, and told Mr. Labadie that it was Petitioner's opinion that the bidding and "back-filling" should operate the same way. In January, 1989, the Petitioner again had a similar conversation with Mr. Labadie about Mr. Kent's bidding and being assigned a maintenance mechanic's job and the Petitioner's being put at the bottom of the "back-fill" list for assignment to operator positions. In late February, 1989, Ricky Cook and John Rink, both white males who are senior to the Petitioner by the amount of time in the Respondent's maintenance department and who had been working as operators after the June, 1986 reduction in force, bid for and received assignments back into the maintenance department as mechanics. The Petitioner has no complaint, based on racial discrimination or otherwise, as to these assignments. The Petitioner's employment discrimination charge was filed with the Florida Commission on Human Relations on March 27, 1989, and filed with the Equal Employment Opportunity Commission on March 31, 1989. On or about March 29, 1989, the Petitioner bid for and received assignment to maintenance mechanic in the Respondent's maintenance department, along with Larry Perritt, who is a white male and who was a senior to the Petitioner by the amount of time in the Respondent's maintenance department. The Petitioner was assigned the job on April 16, 1989, at the senior mechanic pay level. The Petitioner has no complaints about any of these assignments. The Petitioner received a pay increase at the "top level" of senior mechanic in October, 1989, after serving six (6) months in that position. In October, 1989, Elvin Higgins, after bidding for the position, was assigned to maintenance mechanic at the senior mechanic pay level.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Florida Commission on Human Relations enter a Final Order dismissing Petitioner's charges. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 19th day of June, 1995. SUZANNE F. HOOD, Hearing Officer 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 19th day of June, 1995. COPIES FURNISHED: Richard E. Johnson, Esq. Spriggs & Johnson W. College Ave. Tallahassee, FL 32301 Ralph B. Peterson, Esq. Beggs & Lane P. O. Box 12950 Pensacola, FL 32576-2950 Sharon Moultry, Clerk Human Relations Commission John Knox Rd., Bldg. F, Ste. 240 Tallahassee, FL 32303-4149 Dana Baird, Esq. Human Relations Commission 325 John Knox Rd., Bldg. F, Ste. 240 Tallahassee, FL 32303-4149
The Issue Should the Respondent, STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION, grant the applicant, JEMAAM, INC., a dredge and fill permit pursuant to the Notice of Intent dated March 2, 1988, in File No. 361414445?
Findings Of Fact The Respondent, JEMAAM, INC., is the owner and the developer of real property contiguous to state waters in Lee County, Florida. The condominium project on the property is known as Island's End Condominiums. As part of Phase III of the condominium project, Respondent JEMAAM built a dock. This dock is the subject of this administrative hearing because the Respondent JEMAAM wants to reconfigure and relocate portions of the dock structure. Respondent JEMAAM filed an application for a dredge and fill permit with the Respondent DER in order to modify the exiting dock. The Respondent JEMAAM seeks to modify the dock by relocating a 3.92' x 61' section of the existing dock to a more waterward location. This area of the dock is the southerly extension, which fronts the Petitioners' condominium unit. The application process was begun on November 3, 1987, and completed on February 26, 1988. A Notice of Intent to Issue a dredge and fill permit for the proposed project was issued on March 2, 1988, by the Respondent DER. The dock is subject to the Respondent DER's permitting requirements because the construction activity is to take place in state waters and the dock structure exceeds 1,000 square feet in size. In addition, the Respondent JEMAAM has agreed not to undertake further dredge or fill work or any other construction in wetland areas under the Respondent DER's jurisdiction unless a valid permit had been obtained for such activities. The Petitioners, LEO J. BERGER and KATHLEEN D. BERGER, are the owners of Condominium Unit Number 102 in Phase III of Island's End Condominiums in Lee County, Florida, which is adjacent to Respondent JEMAAM's dock. The Petitioners filed an administrative complaint in which they disputed the appropriateness of the Intent to Issue dated March 2, 1988. In support of their position, the Petitioners identified a number of areas of controversy and alleged that the Respondent JEMAAM's application did not meet the "reasonable assurances" required for permit issuance. The Petitioners' allegations, which are properly before the Hearing Officer, are as follows: Shallow water in the area where the new dock configuration is to be located would result in propeller dredging of littoral shallows. The proposed waterward relocation of a portion of the dock would present a navigational hazard in the channel as well as in the shallows and around the dock. The proposed relocation would cause harmful shoaling in the area, which would affect boating safety as well as the habitat. The dock relocation and associated boat traffic will disrupt and harm bird and fish habitats. The dock may be within the Estero Bay Aquatic Preserve. Based upon the evidence adduced at hearing, I find as follows as to the allegations raised by the Petitioners in their administrative complaint: There are sufficient water depths, based upon the Bathymetric profile and a number of reviews by the Respondent DER in the proposed relocation area, to prevent harmful propeller dredging by boats using the dock. However, to assure that harmful turbidity and propeller dredging does not occur, the dock extension arm can be completely handrailed in the shallow, landward area. The addition of a shielded, steady burning light and navigational markers should minimize any impediment to navigation caused by the dock relocation. The main channel is not far from this area, and most boating traffic in the general area is confined to the main channel. The additional markers and lighting requirements combine with the current conditions to alert all reasonable and prudent boaters to the hazards and challenges of the area. The evidence is inconclusive as to the extent to which the dock structure has increased shoaling in the area. Much of the shoaling is attributed to the natural conditions of the area, a back-bay coastal zone. The shoaling which has occurred is thought to be beneficial by the experts who testified at hearing because the development of grasses has increased. This creates a positive habitat for Cuban shoalweed, brittle starfish, and several species of crab. Relocation of a portion of the dock will not substantially affect the shoaling activity in the area. The bird and fish habitats in the area do not appear to be adversely affected by the current dock. It is not anticipated that the relocation of a portion of the dock will change the ongoing development of the habitats. The bird roosting area on the sandbar includes a larger variety of species now than it did before the current dock was built, according to studies done by James W. Beever III. The installation of the additional channel markers was suggested by Beever, an expert witness in the case, as a means to enhance the viability of the sandbar as a habitat. The markers aid in steering boat traffic away from the area and prevent the beaching of boats on the sandbar. James W. Beever III is the current resource and research coordinator of the Estero Bay Aquatic Preserve. Based upon his testimony, the proposed dock relocation is not within the aquatic preserve. The areas of controversy raised by the Petitioners in their administrative complaint were sufficiently met by the reasonable assurances of the Respondent JEMAAM that the purported harms would not occur. The project is not contrary to the public interest under the criteria set forth in Section 403.918, Florida Statutes, as represented by the Respondent DER in the Notice of Intent to Issue and proved at hearing.
The Issue The issues in this case are whether Respondent failed to secure workers' compensation coverage for its employees, as Petitioner alleges; and, if so, whether a penalty based upon the unpaid premium should be assessed against Respondent.
Findings Of Fact Petitioner Department of Financial Services, Division of Workers' Compensation ("DFS" or the "Department"), is the state agency responsible, among other things, for the enforcement of the workers' compensation insurance coverage requirements established in chapter 440, Florida Statutes. Respondent Ameribuild Construction Management, Inc. ("Ameribuild"), is a Florida corporation having its principal office in Boca Raton, Florida. Brandon L. Roth ("Roth") is the owner and qualifier, and a corporate officer, of Ameribuild. At all relevant times, Ameribuild was licensed to engage in construction activity in the state of Florida. In the instant case, DFS alleges that Ameribuild, as the general contractor for a construction project in Miami, failed to secure workers' compensation insurance for Roth and six employees (the "Workers") of CJ Meeko, LLC ("CJM"), a business which, DFS alleges, was a subcontractor of Ameribuild on the project in question. In its defense against this allegation of noncompliance, Ameribuild raises two disputes of material fact, asserting that, contrary to DFS's preliminary determinations, (i) Roth did not perform services for remuneration for Ameribuild, and (ii) CJM was not Ameribuild's subcontractor but was, rather, in a direct contractual relationship with Prestige Imports Outparcel LLC ("Prestige"), the owner of the project. Based on these exculpatory (but disputed) factual allegations, Ameribuild argues that, as a matter of law, neither Roth nor any of the Workers was a statutory "employee" (a term of art in this context) of Ameribuild, and thus, to the point, Ameribuild was not obligated to secure compensation for these individuals. Of the material facts in dispute, the question of whether CJM was a subcontractor of Ameribuild is by far the most significant, as the Workers account for $132,593.32 (or 96 percent) of the $137,719.54 penalty that DFS seeks to impose. The Department, which has the burden of proving the affirmative of this crucial question, relies largely (although not entirely) on the hearsay statements of Roth and Eugene Parker ("Parker"), the latter an employee of Ameribuild at all material times who was foreman or superintendent of the subject project. These statements are admissible as substantive evidence under the "admissions" exception to the hearsay rule.1/ DFS introduced the statements of Roth and Parker through its investigator, Anthony Vinci, to whom (according to Mr. Vinci) the statements were made. Mr. Vinci also testified about statements made to him by Jack Rosales, the owner of CJM (and one of the six Workers mentioned above). To the extent offered for the truth of the matters asserted, Mr. Rosales's out-of-court statements to Mr. Vinci constitute hearsay that does not fall within any recognized exception. The undersigned has not made any findings of fact based, in whole or in part, on Mr. Rosales's hearsay statements.2/ Roth and Mr. Rosales testified at hearing. Both men denied that CJM had been Ameribuild's subcontractor, contradicting the section 90.803, Florida Statutes, admissions to which Mr. Vinci attested. Because the resolution of this particular dispute turns on credibility determinations, the undersigned will discuss the testimony itself in somewhat more detail than is usually warranted. On May 31, 2017, Mr. Vinci performed a random worksite inspection at 15050 Biscayne Boulevard, North Miami Beach, Florida, where an automobile dealership was being constructed on a site that had been occupied by a drugstore. He immediately observed several men performing drywall work and debris removal. The first person to whom Mr. Vinci spoke was Mr. Rosales, who identified himself as the owner of CJM and confirmed that the five laborers presently at work were CJM's employees. Mr. Vinci immediately conducted on online database search and discovered that Mr. Rosales did not have an active exemption for himself or workers' compensation coverage for any of CJM's employees at the worksite. Parker, the Ameribuild employee, was present at the worksite, too, when Mr. Vinci arrived. As the project foreman, his duties included coordinating the job and making sure that the work flow continued. Parker told CJM's employees what to do. He opened and closed the worksite daily, coordinated all the subcontractors, and kept a log of persons entering and leaving the area. Parker, in short, was "in charge" on site. Mr. Vinci interviewed Parker, who acknowledged being an employee of Ameribuild and identified CJM as Ameribuild's subcontractor. Parker named Roth as Ameribuild's owner and gave Mr. Vinci Roth's name and number. Before calling Roth, Mr. Vinci went to his car and conducted an online search of Ameribuild's records. He learned that Ameribuild had workers' compensation coverage through a leasing company, which showed coverage for Parker. The leasing roster, however, did not cover Roth or any of CJM's employees. Mr. Vinci then got Roth on the phone to notify him that Ameribuild had not secured workers' compensation coverage for all of its employees and that, consequently, the Department would enforce compliance, including through the issuance of a Stop-Work Order ("SWO"). At hearing, Roth denied having spoken to Mr. Vinci at this time.3/ Mr. Vinci's contemporaneous notes, however, corroborate his recollection of the discussion at issue, and, equally important, the conversation fits comfortably into the undisputed chain of events, whereas its nonexistence would be harder, albeit not impossible, to reconcile with the parties' subsequent conduct. The undersigned finds that, in fact, Mr. Vinci and Roth spoke on the telephone on the afternoon of May 31, 2017. As recounted by Mr. Vinci, the ensuing discussion was, for the most part, about what you'd expect. After introducing himself, Mr. Vinci asked Roth about CJM and whether its Workers were covered. When Roth replied that Mr. Rosales had an exemption from workers' compensation, which he (Roth) had seen, Mr. Vinci informed him that, actually, Mr. Rosales did not have one. Asked whether he (Roth) had an exemption, Roth answered that he would need to check. In response to another of Mr. Vinci's inquiries, Roth told the investigator (according to the latter's contemporaneous notes) that he (Roth) did not receive any remuneration from Ameribuild. According to Mr. Vinci, whose testimony in this regard is hotly disputed, Roth stated that he had hired Mr. Rosales's company, CJM, as Ameribuild's subcontractor on the project in question. Armed with this information, DFS prepared a SWO for issuance to Ameribuild, which commanded Ameribuild to cease all business operations at the worksite and assessed a monetary penalty (exact amount to be determined) equal to two times the premium Ameribuild would have paid to provide the required coverage during the preceding two years. Mr. Vinci called Roth to tell him about the SWO and make arrangements for the service thereof. (Roth's denial of his participation in this conversation is rejected as unpersuasive.) Roth was informed of the requirements for obtaining a conditional release from the SWO so that Ameribuild could resume operations at the worksite pending a final release upon compliance and payment in full of the assessed penalty. Roth agreed to meet Mr. Vinci the following day at the Department's Miami office. That meeting took place as scheduled. Mr. Vinci personally served Roth with the SWO and a Request for Production of Business Records for Penalty Assessment Calculation ("BRR"). Roth then paid $1,000.00 towards the penalty, which had yet to be calculated, and delivered a signed "reduction-of-workforce" letter, i.e., a sworn statement, on Ameribuild letterhead, promising DFS that "Ameribuild Construction Management will no longer permit CJ Meeko LLC or his employees [to] work on the jobsite @ 15050 Biscayne Blvd., North Miami Beach, FL 33132 until CJ Meeko LLC is in compliance with Florida State Law." Upon receipt of Ameribuild's check and reduction-of-workforce letter, the Department executed an Agreed Order of Conditional Release from Stop-Work Order, which authorized Ameribuild to resume operations at the worksite. There is no evidence suggesting that, during this meeting on June 1, 2017, Mr. Vinci or anyone else interrogated Roth, who could have remained silent and refused to comment on DFS's allegations, given that it would be DFS's burden to prove the charges, were Ameribuild to request a hearing. Roth, however, volunteered his opinion that if CJM lacked coverage (as DFS alleged), then Mr. Rosales must have made an "honest mistake" because he (Roth) sincerely believed that Mr. Rosales had applied for and obtained an exemption. The point of this statement, obviously, was not to deny the violation, but to minimize it as having been neither knowing nor intentional. Roth, it appears, was offering up facts that he probably hoped would mitigate the penalty. Regardless, more telling is what Roth——in responding to the accusation that Ameribuild was responsible for its subcontractor's (CJM's) failure to secure compensation——did not say. If CJM really were not Ameribuild's subcontractor, it would be expected that Roth would protest the Department's misunderstanding of this basic fact, and state that, in fact, CJM was Prestige's contractor. While Roth's silence in this regard perhaps does not rise to the level of an evidentiary admission,4/ the undersigned finds that his failure then (or later) to inform the Department of the "true" contractual relationships is suspiciously inconsistent with Ameribuild's current litigating position. If Ameribuild did not have a contract with CJM, then Roth, if he were not going to keep quiet, should have been making that point early and often. In the months that followed, Ameribuild provided documents to DFS responsive to the BRR, which DFS deemed insufficient for purposes of determining Ameribuild's payroll for the audit period of June 1, 2015, through May 31, 2017. In such situations, where the records are insufficient to establish actual payroll, the Department is authorized to base its penalty assessment upon an "imputed payroll." Consequently, using the methodology specified in section 440.107(7)(d)1. and (e) and Florida Administrative Code Rule 69L-6.027, DFS determined (for the entire audit period) Ameribuild's imputed payroll, which is the compensation that Ameribuild is deemed to have paid the Workers and Roth. It is unnecessary in this case to make detailed findings regarding the assumptions behind Ameribuild's imputed payroll figures because Ameribuild does not dispute them or the amount of the resulting penalty ($137,719.54), which was set forth in an Amended Order of Penalty Assessment served on November 6, 2017. Rather, Ameribuild maintains that DFS has failed to prove the alleged violations, meaning there can be no penalty, which makes the imputed payroll irrelevant. If, on the other hand, Ameribuild were found to have violated a duty to secure compensation for Roth and Workers, which Ameribuild of course believes should not happen, then Ameribuild would concede that the imputed payroll and concomitant penalty are correct. As mentioned above, it is Ameribuild's contention that the Workers were not "employees" of Ameribuild for workers' compensation purposes because CJM was under contract, not to Ameribuild, but to the owner of the project, Prestige. Both Roth and Mr. Rosales testified about this purported contract; under the CJM-Prestige agreement as they described it,5/ the Workers might not have been Ameribuild's employees.6/ Ameribuild sought to introduce a copy of the contract as proof of the fact that CJM was Prestige's contractor. The Department objected because Ameribuild had not disclosed the contract as an exhibit until a few days before the hearing, long past the deadline established in the Order of Pre-hearing Instructions. Ameribuild could provide no explanation for the late disclosure. Wanting to avoid the exclusion of evidence that could be dispositive, but unwilling to countenance the prejudice DFS might suffer if the surprise exhibit were admitted, the undersigned ruled that the document would be received on the condition that the hearing be recessed for a reasonable, but brief, period so that DFS could depose the appropriate person(s) at Prestige about the purported CJM-Prestige agreement, and then supplement the record with the deposition(s). Ameribuild, however, elected to withdraw the exhibit to prevent the Department from obtaining Prestige's testimony about the alleged contract. Thus, Ameribuild neither offered (nor proffered) the purported CJM-Prestige agreement, which, accordingly, is not in the evidentiary record. The undersigned probably would be permitted to draw an adverse inference from Ameribuild's counterintuitive failure to introduce the written agreement, which was obviously available and within Ameribuild's immediate control, and which (if genuine) would be, if not dispositive, certainly persuasive exculpatory evidence directly rebutting the Department's case-in-chief. The undersigned reasonably could infer from the totality of the circumstances that Ameribuild had reason to believe Prestige would not recognize and authenticate the purported contract if asked about it under oath in deposition, which reason being (need it be said?) that the purported contract is a fake. The undersigned declines to draw such an inference. Instead, the undersigned finds that, without the contract as corroborating evidence, Ameribuild has failed to present proof sufficient to undermine the strength of the Department's prima facie case. DFS has carried its burden of proving, by clear and convincing evidence, that CJM was Ameribuild's subcontractor. On the question of whether Roth was an employee of Ameribuild for compensation purposes during the period when his name did not appear on the coverage roster, however, the undersigned finds that the Department failed to carry its burden of proof. Roth testified at hearing that he had received no remuneration from Ameribuild during the months in 2016 and 2017 when he was not included in the company's compensation coverage, which testimony was consistent with his prior statement to Mr. Vinci in this regard. Other documentation in evidence shows that in 2015, when Roth received remuneration from Ameribuild, he was also provided workers' compensation coverage, through South East Personnel, Inc., a leasing company. While the evidence fails clearly to establish that Roth did not receive remuneration from Ameribuild, it fails clearly and convincingly to prove that he did. It is determined, therefore, that Roth was not an uncovered employee during the audit period. The proposed penalty must be adjusted to remove the amount attributable to Roth——$5,126.22. Ameribuild's penalty for noncompliance, based on the Workers' imputed payroll, should be $132,593.32.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Financial Services, Division of Workers' Compensation, enter a final order finding Ameribuild Construction Management, Inc., in violation of its obligation to secure workers' compensation and imposing a penalty of $132,593.32 for such noncompliance. DONE AND ENTERED this 6th day of September, 2018, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM 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 6th day of September, 2018.
Findings Of Fact On approximately May 31, 1985, Petitioner, Maria Dejesus was employed as a public assistance specialist with Respondent, Department of Health and Rehabilitative Services. Petitioner continued in that employment through early June, 1986. On Friday, June 6, Petitioner and her children, while enroute to Petitioner's home, were injured in an automobile accident. On Monday, June 9, at approximately 8:30 a.m., Petitioner called Brian Leverrier a public assistance liability supervisor and Respondent's supervisor during that period, and advised that "she had been in an automobile accident and that she would not be in that day because she had to take one of her children to the doctor; ... that she was positive or sure that she would be in to work the next day and that was the end of the conversation." (TR-13). Petitioner did not return to work until the following Tuesday, June 17. During the period between June 9, and June 17. Petitioner did not report to work nor did she call and advise her supervisor on June 10, 11, 12, or 13, that she would not be reporting to work. Petitioner relied on Bayla Lipsitz, a co-worker, to advise her supervisor that she would not be returning to work until Monday, June 16. Mr. Leverrier denied that Bayla Lipsitz advised him that Petitioner would not be returning to work until June 16, and employee Bayla Lipsitz did not appear as a witness in these proceedings. 2/ On Monday, June 16, Petitioner telephoned her supervisor, Brain Leverrier to advise him that she would not return to work until Tuesday, June 17, because her ride did not pick her up. Barbara Chattin, public assistance specialist supervisor, was fielding calls for Mr. Leverrier on June 16, and took Petitioner's phone call. When Petitioner advised Ms. Chattin that she would not return to work until the following day, June 17, Ms. Chattin advised her that she failed to call in everyday as she was supposed to although she (Chattin) would relay her message to Brian Leverrier. On the following day, June 17, Petitioner reported for work and was directed to report to Patty Jolly, Human Services Program Administrator, South Services Area, Economic Services. Ms. Jolly is overall responsible for eight supervisors who in turn supervise approximately 60 odd employees including Petitioner. When Petitioner reported to Ms. Jolly, she was advised that in accordance with personnel rules and regulations, she had abandoned her job based on her lack of contact with her supervisor for more than three days. (TR 37). Petitioner did not offer any explanation or other reason for failing to advise her supervisor of her need to be absent from work. All employees are provided with a copy of HRS's pamphlet entitled Personnel Employee Handbook. (Respondent's Exhibit 1). Respondent acknowledged receipt of that handbook by executing an acknowledgment. (Respondent's Exhibit 3).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Administration enter a Final Order denying Petitioner's petition for review. RECOMMENDED this 24th day of February, 1987, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of February, 1987.
The Issue The issue in this case is whether Petitioner is liable for retirement contributions on compensation paid Thaddeus Kmiecik in his capacity as city dockmaster.
Findings Of Fact The City of Moore Haven is located west of Lake Okeechobee alongside a waterway that connects Stuart on the east coast with Ft. Myers on the west coast. Petitioner maintains docks that boaters may use overnight, provided they pay a docking fee. A dockmaster supervises the dock and collects the docking fee from boaters. Petitioner's first dockmaster served without compensation. Whenever he became ill or went out of town, he asked Petitioner to hire someone to replace him. Pursuant to Ordinance No. 156, which went into effect in 1982, Petitioner hired replacements for the first dockmaster. Ordinance No. 156 provides that specified docking fees shall be paid by all boats docking at the city docks between the hours of 6:00 pm and 8:00 am or at other times, if the boat remains docked over three hours. However, the ordinance allows the dockmaster to enter into special contracts with commercial users, subject to the approval of City Commission. Ordinance No. 156 states that the City Commission shall appoint one or more persons as dockmaster, who shall "check all boats at the City dock both evening and morning of each day." The ordinance requires the dockmaster to record all relevant information about the boat in a log. The ordinance states that the dockmaster is "responsible seven days a week for the collection of dockage fees, giv[ing] a receipt from a numbered book, and giv[ing] copies of all receipts to the City Clerk each working day." The dockmaster must also tell the City Clerk if the docks need repairs or maintenance. The dockmaster is also required to assume at least certain responsibilities of the City Manager if the position is vacant. The health of the original dockmaster deteriorated and it became necessary to hire someone else to collect the fees. By agreement between the original dockmaster and the person doing the collections, the dockmaster allowed the collector to retain a percentage of the docking fees collected. The remainder evidently was remitted to Petitioner. When the original dockmaster died, Petitioner hired Thaddeus Kmiecik as the new dockmaster. The agreement between Petitioner and Mr. Kmiecik requires that he answer directly to the City Commission. He is to ensure that the docking fees are collected and all money taken directly to City Hall. Boaters needing reservations call Mr. Kmiecik at home. Mr. Kmiecik is responsible for his own expenses, but he earns a commission, payable monthly, of 20 percent of the collected docking fees. From 1986 through 1993, Petitioner has filed IRS Forms 1099, showing that Mr. Kmiecik has received the following "nonemployee compensation": 1986--$1936.52; 1987-- $2324.83; 1988 1992--$3457.50; and 1993--$2621.08. The arrangement between Petitioner and Mr. Kmiecik is fairly loose. He has never received any training, except how to complete the receipt book, which is provided by Petitioner. He has never received any orders as to how to perform his job, except that he is to ensure that the docks are checked nightly for boats and that all docking fees are promptly remitted to Petitioner. Mr. Kmiecik does not check the docks in the morning, and the City Commission has never insisted that he do so, even though the ordinance so requires. Mr. Kmiecik has attended only one City Commission meeting and has never reported anything to the City Commission. He can hire anyone whom he chooses to help him or perform the services when he is out of town or otherwise unavailable. He may supplement his income from the docks by performing other services, such as taking boaters to the airport, and he retains all compensation for such additional services. Although not required to do so, Mr. Kmiecik sometimes wears a city uniform when he appears at the docks. But this is the uniform for his fulltime job at Petitioner's water plant. Other persons checking the boats at night do not have a uniform. Petitioner is a participating local agency in the State-Administered Retirement System. Petitioner makes retirement contributions on Mr. Kmiecik's pay for his work at the water plant in recognition of the fact that this position is a regularly established position under the State-Administered Retirement System. However, Petitioner has always treated Mr. Kmiecik as an independent contractor for his work as dockmaster and has thus made no retirement contributions for his dockmaster compensation. The record is silent as to when Mr. Kmiecik first became employed with Petitioner in the water plant and whether he has been continuously so employed. On June 3, 1993, Petitioner answered a questionnaire acknowledging that Mr. Kmiecik worked at the city water plant also. Based on the record, June 3, 1993, is the earliest date on which Mr. Kmiecik worked at the city water plant. By letter dated January 21, 1994, Respondent informed Petitioner that Mr. Kmiecik was an employee when performing dockmaster services and demanded retroactive retirement contributions from the unspecified date of his employment in that position. By letter dated January 25, 1994, Petitioner supplied additional information and requested further review of this decision. By letter dated March 7, 1994, Respondent advised Petitioner that Respondent had determined that Mr. Kmiecik was performing the services of dockmaster in an employer-employee relationship, rather than an independent contractor relationship. The letter adds that Mr. Kmiecik is filling a "regularly established position" as an operator of the water plant and is "performing additional duties" as the dockmaster. Petitioner requested a formal hearing on the issue. Based on the relevant law, Mr. Kmiecik is an independent contractor with respect to his dockmaster services.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Division of Retirement enter a final order requiring the City of Moore Haven to pay retirement contributions with respect to the compensation paid Mr. Kmiecik for services as a dockmaster, retroactive to June 3, 1993. ENTERED on July 21, 1994, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings on July 21, 1994. APPENDIX Rulings on Respondent's Proposed Findings 1: adopted or adopted in substance. 2-3: rejected as subordinate. 4-10: adopted or adopted in substance. 11: adopted or adopted in substance, but only to the minimal extent of the use of the receipt books. 12-18: adopted or adopted in substance. COPIES FURNISHED Steven A. Ramunni Watkins & Ramunni, P.A. P.O. Box 250 LaBelle, FL 33935 Jodi B. Jennings Assistant Division Attorney Division of Retirement Cedars Executive Center, Bldg C 2639 North Monroe St. Tallahassee, FL 32399-1560 William H. Lindner, Secretary Department of Management Services Knight Building, Suite 307 Koger Executive Center 2737 Centerview Drive Tallahassee, FL 32399-0950 Paul A. Rowell, General Counsel Department of Management Services Knight Building, Suite 312 Koger Executive Center 2737 Centerview Drive Tallahassee, FL 32399-0950 A. J. McMullian, III, Director Division of Retirement Department of Management Services Cedars Executive Center, Bldg. C 2639 N. Monroe St. Tallahassee, FL 32399-1560
The Issue The issue for consideration in this case was whether the Respondent's discharge of the Petitioner from employment constituted an unlawful discrimination on the basis of handicap.
Findings Of Fact Respondent, Watkins Motor Lines, Inc., is an interstate carrier engaged in the transportation of freight commodities by truck, and operates trucking terminals throughout the United States, including one in Lakeland, Florida. The operation of a freight terminal includes the unloading of inbound trucks, consolidation of freight loads, and the loading of outbound trucks. This freight consists of material of local origin as well as material brought in on trucks from other locations. The material is either immediately unloaded for local delivery, if inbound; loaded onto long-haul trucks for shipment to another destination; or stored in or about the terminal pending shipment to another location. This freight may be material of all sizes and shapes and may include hazardous materials such as corrosives or flammables. The handling of freight at the terminal is accomplished by individuals, (dock workers), who move the material by hand, dolly, and forklift. Dock workers are classified as either full time, part time, or casual. Full time employees work on a regular schedule. Casual employees are given work on as needed basis. Part time workers are scheduled, but work less than 40 hours per week. Petitioner, Harley R. White, age 43, began work for Respondent in early 1986 as a casual dock worker and remained a casual employee through the pay period ending August 9, 1987. He also held another part time job with another employer. Over the approximately 1 1/2 year period, he worked approximately hours. The work included breaking down pallets and moving packages by hand or by forklift. He was trained in forklift operation and issued a certificate of qualification to do so by the Respondent. Mr. White worked in casual status for this extended period even though he had indicated he would like a full time position. Several weeks before his discharge, he was put on "part time" work. At no time did he have any accidents or was he the subject of any disciplinary action. In July, 1987, White was told by his dock foreman that a full time position was available to him and that he should give his other employer notice. Only the better casual employees are selected to fill full time positions, all of which are filled from the casual or part time ranks. Mr. White gave the notice as requested, filled out a new Watkins application form, and started work full time at the terminal. Several days later he was requested to take a physical examination for his new position, which he did. The following day, he was called in by his supervisor and told there was a problem with his physical. He was told not to come to work that day, but was not told what the problem was - only that a decision had to be made. The next day, White went to the terminal to see what was going on but could get no information either there or at the clinic where he had taken the physical. Finally, he was advised by Mr. Davidson, the terminal manager, by phone, that he had a bad eye and that the Safety office would have to determine wtether he could work or not. Petitioner was actually given two examinations. The first, on July 30, 1987, by Dr. White, found his visual acuity to be unacceptable since his distance vision was worse than 20/200, corrected. The second, on August 2, 1987, by Dr. Penny, indicated he was not qualified due to his distance vision which was 20/200, corrected. Attached to this latter form were DOT standards for drivers which, at #10, require 20/40 corrected distance vision with a field of vision of at least 70 degrees. The following Monday, he was advised much the same thing by someone else, but also that there was to be a meeting regarding his case that afternoon. When he called in toward the end of the day to find out the result, he was told that he was being terminated. When he asked for a letter citing the reasons for termination, he was promised one but it was never delivered. Instead, he was told in person that the reason for his discharge was that he had falsified his application. When he demurred, he was given a meeting with the Personnel Director and a company Vice President who told him he was fired for falsification of his application and because of his bad eye. When he questioned this, the Director of Personnel indicated that his eye was not good enough and that was it. After termination by Watkins, Mr. White applied for unemployment compensation because the termination was from a positions he had held there. At this time, he was totally unemployed, as was his wife. He subsequently secured employment which carries some health insurance but not as much as that he was receiving through Watkins. Due to interim health problems in the family, he has had $4,500.00 in uncovered medical expenses that either his prior other job coverage, or his prior Watkins coverage would have taken care of. He also expects additional expense due to prospective surgery for his daughter which is not covered by his insurance with his new employer. When Mr. White came to work at Watkins in 1986, the handbook he was given indicated he would be required to take a physical and a drug screen by the time he completed 100 hours of work. He was given and passed the drug screen but was never scheduled for the physical. Consequently, he worked for almost a year and a half without having taken a physical or eye examination and had no problems. Mr. White suffers from a condition known as amblyopia ex anopsia, commonly known as "lazy eye", in his left eye. His vision in the right eye is 20/25, corrected, but, as a result of the amblyopia, only 20/200, corrected, in the left eye. He has had, and known he has had, this condition all his life, but claims he has never been told he is blind in that eye or that it would be a disqualification from employment. He has never had a problem securing employment before and qualified as an expert marksman with a rifle while in the army. He also got a DOT certificate for a chauffeur's license. Consequently, when he filled out both applications for the job at Watkins, he indicated what he believed his condition was regarding his eye on the form. In response to the question, "How is your vision?", Mr. White responded the first time, "Good with glasses." On the second application he indicated, `wears glasses." On neither occasions did he reveal that he had a lazy or bad left eye. There is no dispute that the application form is quite explicit that any false statement on the form would be considered as grounds for denial or termination, but it is stretching to find, under these circumstances, that his answers were falsification. Prior to coming to work at Watkins, Mr. White served in the army as a general supply specialist for two years without a problem. After discharge he worked in a job fabricating sheet metal, sold welding equipment, (which included driving, loading, and unloading a truck), and was a police officer in Illinois. For this latter employment, he had to undergo firearms training and qualified with a .38 caliber pistol. Mr. White then worked in a shipping and receiving department, using a crane and forklift and hand truck to load and unload trucks. He had no problem accomplishing these tasks. He thereafter worked for a packing company as a shipping clerk, loading and unloading trucks. He also worked in construction as a laborer, and worked as a window washer for three years, experiencing no difficulty with either job. After that, he worked for a building truss manufacturer for a year as a nailer without problem, and hen, having moved to Lakeland, he worked for a roofer for several years driving a truck and installing roofing. After that, Mr. White went to work for Piper Aircraft Corporation for approximately 10 years, where he worked as a wing assembler, working himself up to assistant foreman. During that time, he had no job problems and received several letters of commendation as a result of his performance. He left that employment only because the plant closed. Afterwards, he went to work for ECI, a metal building manufacturer, as a delivery man, stock man, and truck driver. He had no problems and, in fact, was issued a chauffeur's driver's license which required an eye exam and physical for Federal Department of Transportation certification. He was passed on both tests though he now admits he does not meet the technical criteria. Mr. Anderson, who worked with Mr. White at Watkins, and had the opportunity to observe him in the performance of his duties, was satisfied that Petitioner could do any job given him as well as anyone else on the job. He could see no difficulty with Petitioner doing the work and heard of no disciplinary actions or complaints against Petitioner. Mrs. Barany knew Petitioner as the coach of her daughter's softball team. During this period, he would hit balls pitched by a machine at high speed (50 - 60 mph.), and she could see no visual problems demonstrated. Ms. Linebarier, Respondent's Director of Personnel, made the initial decision to terminate Mr. White based on his answer to the question posed in the first application form, "How is your vision?", which, she contends, constituted falsification. Nonetheless, she claims, even without the falsification, Mr. White was not eligible for continued employment with the company because of his eye condition. It is company policy to verify information contained on the applications for employment, and they have routinely discharged employees whose actual record does not agree with that listed in their application, even after long periods of employment. It is found that this usually relates to such matters as prior criminal record, however, and not to such things as, as here, an interpretation of health condition. In 1985, when Petitioner applied, no attempt was made to verify his application. No physical exam was given except to drivers then, and even when the physical exam program was implemented, it did not compare with the full, DOT standard. According to Dr. Levally, who gave Petitioner a standard optometric examination in January, 1988, Mr. White has 20/400 vision in both the right and left eyes correctable to 20/25 in the right and 20/200 in the left. All other signs are normal and clear. There is no retinal pathology. In his opinion, Mr. White is not blind in his left eye, due to his good peripheral vision. In other words, though he may be astigmatic and myopic in both eyes, his peripheral vision in his left eye compensates for this condition and his overall vision is sufficient to pass the Florida driver's test requirements. In his further opinion, there is no reason why Mr. White could not see with the central part of his left eye. It is just lazy and he does not use it. Even with the central vision in the left eye blocked, however, Mr. White could have usable depth perception out of this eye and there is, in his opinion, nothing disqualifying him from work as a truck driver and dock worker. On the other hand, Dr. Blais, an opthalmologist, testifying for Respondent, opined that the 20/200, corrected, vision in the left eye, with myopic stigmata, constitutes industrial blindness which is defined as: The best corrected visual acuity of 2/100 or worse, or An individual with 20/20 vision whose field of vision is less than 20 degrees. These standards are accepted by the IRS, the AMA, the WHO, and other accrediting organizations. Therefore, in his opinion, Petitioner is industrially blind in the left eye because he has only 20/200, corrected, vision. Petitioner's record does not show he was tested for stereopsis, or depth perception, both of which are affected by amblyosis. However, in Dr. Blais' opinion, Petitioner definitely does not have normal depth perception because of the undeveloped portion of his eye which cannot match up with the other eye even when he is wearing glasses. Even with the lack of stereopsis depth perception, Mr. White may have some type of depth perception through the use of monocular clues. These are not, however, as accurate or as efficient as one would have with stereopsis and are not as prevalent at night when much of the "hostling" is done. With the amblyopia in the left eye, and the lack of stereopsis, Petitioner could still earn his sharpshooter qualification because an individual shoots only with one eye, the better eye. He could also hit a pitched ball going 50 to 60 miles an hour, as described by Ms. Barany, because movement is taken care of by the periphery, not the defective central portion, of the eye. In addition, vision in both eyes is more efficient that vision in one eye. Perception time, however, is much slower in someone with a handicapped eye who, therefore, takes longer to recognize a danger situation. Taken together, Dr. Blais contends, and the evidence shows, there is a substantial risk that Petitioner could not safely and efficiently perform the duties of a dock worker, as described herein, because: He has a lack of stereopsis, He experiences an increased perception time and has less efficient vision, Statistics show that people who have accidents are 7 times more likely to have them on their disabled side, Petitioner's decreased depth perception raises the risk of his being involved in an accident, The weak eye raises Petitioner's risk of accident, Nighttime illumination of the work site is not good, and There is an increased risk of release of hazardous materials by Petitioner should he be involved in an accident. Evaluating the job of a dock worker and breaking it down into its major components shows the Petitioner is capable of breaking down and unloading pallets. This accounts for between 1O and 20% of the total work involved. He cannot, however, use a forklift safely due to: (1) the critical nature of tine insertion involved therein, (2) the need to place the load properly, and his inability to judge distances, and (3) his slower reaction time which may lead to collisions. These three tasks account for between 50 and 60% of the total work involved. Petitioner also cannot "hostle" at night due to: (1) his inability to safely use the mirror on the truck cabs' left side, and (2) his difficulty in backing a truck between two other trucks without good depth perception. This third subcategory accounts for 20% of the total work involved. Taken together, then, in Dr. Blais' opinion, Petitioner can, at best, safely perform only 20% of the functions of a dock worker under the conditions extant at Watkins' Lakeland terminal. This analysis is found to be reasonable There is a substantial difference between the work done by a casual dock worker and a full time employee. Casual employees move 90% of their freight by hand or hand dolly and not with a forklift, whereas full time dock workers use a forklift as much as 60% of the time. Casual employees do not perform hostling duties, whereas full time dock workers are required to. To hostle properly and safely, the operator must be able to judge the distance between the trailer and the dock to which he is backing the trailer. Accurate depth perception is a must. Dr. Blais admits that someone who has had amblyopia from childhood, and has used monocular clues for years, as Petitioner has done, would have a greater ability to use his eyes than one who has developed the problem more recently. The use of monocular clues is a learned process. While hitting a baseball is not a depth perception process, the use of a forklift is. In that regard, conceding that Mr. White has used a fork lift as a casual employee for eighteen months, and has been free of accidents, Dr. Blais is firm in his opinion that Petitioner has merely been lucky. In addition, though he could do the spotting, it would not be as efficiently or as accurately done as he could do if his eyes were better. As it is, it would be a trial and error situation, which is not an accurate way to do the job and which is not safe. In summary, Dr. Blais is of the opinion that employment of Mr. White as a dock worker at Respondent's facility would be unsafe for himself and others. Considering the evidence as a whole, it is so found.
Recommendation Based on the foregoing findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the Petitioners Petition For Relief From An Unlawful Discriminatory Employment Practice be dismissed. RECOMMENDED this 22nd day of January, 1990, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of January, 1990. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-1237 The following constitutes my specific rulings pursuant to S 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE RESPONDENT: - 5. Accepted and incorporated herein. 6. & 7. Accepted and incorporated herein. 8. - 10. Accepted and incorporated herein. 11. & 13. Accepted and incorporated herein. 14. & 15. Accepted and incorporated herein. 16. - 18. Accepted and incorporated herein. 19. Accepted. 20. Accepted. 21. Accepted in that Dr. Blais' testimony is given greater weight than that of Dr. Levalley based on his understanding of the job requirements and the standards to be applied. 22. - 25. Accepted and incorporated herein. 26. & 27. Accepted and incorporated herein. 28. & 29. Accepted and incorporated herein. 30. - 32. Accepted and incorporated herein. 33. & 34. Accepted and incorporated herein. FOR THE PETITIONER: None submitted. COPIES FURNISHED: Robert Grizzard, II, Esquire P. O. Box 992 Lakeland, Florida 33801 Paul R. Beshears, Esquire George K. McPherson, Jr., Esquire Smith, Currie & Hancock 2600 Harris Tower - Peachtree Center 233 Peachtree Street, Northeast Atlanta, Georgia 30043-6601 Donald A. Griffin Executive Director Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925 Dana Baird General Counsel FCHR 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925
