The Issue Whether the Department of Children and Family Services should approve a plan submitted by Sharon George, the mother, primary caregiver, and representative of Petitioner, under the Choice and Control Pilot Project.
Findings Of Fact Threasa Garrett is a 29 year-old woman with brain damage and severe mental retardation. She is petite and appears to be much younger than her actual age. Ms. Garrett cannot articulate her needs and cannot perform most of the activities of daily living such as feeding, bathing and other hygiene, and dressing. She must be closely supervised at all times, as she is unable to recognize danger. She attempts to eat nonfood items if not prevented from so doing. She has the propensity to wander about. Ms. Garrett has been severely retarded most of her life. Her mother, Mrs. George, has been her primary caregiver. The caregiving for Ms. Garrett has been long term and extremely demanding. One of the means employed by Mrs. George to deal with Ms. Garrett's propensity to wander is by using a harness and tether. The harness fits around Ms. Garrett's upper torso and is attached to a tether in the back. Ms. Garrett is a client of the Developmental Disabilities Program of DCFS. The Developmental Disabilities Program provides and coordinates the provision of goods and services to developmentally disabled clients such as Petitioner. The Choice and Control Pilot Project is an experimental program operated by the Developmental Disabilities Program. The purpose of the Pilot Project is to allow families of developmentally disabled clients greater flexibility and a greater role in procuring and providing services for their developmentally disabled family members. A feature of the Pilot Program which is material to this case is that, with the approval of DCFS, the family members of the DCFS client can provide services to the client, and be paid to do so with state moneys. In order to participate in the Pilot Project, the family member must sign and agree to abide by the terms of the Pilot Project Agreement. This agreement requires that the participant must comply with project guidelines including purchasing guidelines. Two purchasing guidelines which are material to this case are guideline number four, "[the] provider must be capable and qualified" and guideline number 5, "[h]ealth and safety needs must be met." DCFS based its denial letter on its determination that Petitioner's request does not meet these two purchasing guidelines. Petitioner will be able to continue to be a client of and to receive services from the Developmental Disabilities Program despite DCFS' denial of Mrs. George's request to receive funding from the Pilot Project. On July 14, 2000, Mrs. George decided to go to northern Alabama. The reason for her trip is not clear in the record. The weather was hot and Mrs. George feared that Threasa would not do well in the heat of her vehicle. She based this fear on past experiences in which Threasa experienced health problems when overheated. Mrs. George left Threasa at the home of Donna Garrett, Threasa's sister. Mrs. George was aware that her daughter, Donna, had a job which would require her to leave the home at 6:30 a.m. the morning of July 14, 2000, and was not expected to return until approximately 1:00 p.m. that day. Mrs. George planned to be gone on her trip the whole day. Around noon, law enforcement personnel were summoned to Donna Garrett's home by someone who came to the home to perform pest control there. The officer gained entry to the home and saw Threasa alone wearing the harness and tethered to a couch. Petitioner was soaked with urine. DCFS sent a child protective investigator to the scene because the officer thought she was a child. When Threasa's actual age was established, an adult protective investigator was summoned. The adult protective investigator was concerned about the harness and tether, and that Threasa had been left alone in the home. Additionally, he was concerned that she had no food or water, and no access to a telephone to call for help. He arranged to send Threasa to a location where she would be supervised. After discussing this with family members who did not want her sent to an institutional setting, Ms. Garrett was sent to her grandfather's house with a family member. The Department's decision to deny Mrs. George's application was based primarily on the incident of July 14, 2000. That is, that Threasa had been left alone unsupervised for a number of hours with no means of escape in the event of an emergency. Additionally, as Mrs. George had indicated to DCFS that she would make the same choice again, DCFS was concerned that such an incident would happen again. Mrs. George's explanation for her actions were that Threasa had been tethered for her safety (so she would not roam and hurt herself), that food had not been left for her as she is unable to feed herself safely, that no telephone was needed because Threasa cannot communicate meaningfully, is unable to use a telephone, and a telephone wire could endanger Threasa. Mrs. George was confident that Threasa would be safe if left alone for a number of hours under these conditions and based this confidence on her years of caring for Threasa and on Mrs. George's religious beliefs.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Respondent enter a final order rejecting Petitioner's request to be paid for services under the Pilot Project. DONE AND ENTERED this 30th day of October, 2001, in Tallahassee, Leon County, Florida. BARBARA J. STAROS 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 30th day of October, 2001.
The Issue Whether Petitioner, Rusty Santangelo, was subject to an unlawful employment practice by Respondent, Owens Facility Services (Owens), based on his disability, in violation of the Florida Civil Rights Act; and, if so, what remedy is appropriate.
Findings Of Fact Owens provides maintenance and custodial services to multiple public facilities in Orange County, Florida. Owens does not own any of the facilities, but oversees the conversions of the facilities from one event to the next. Owens secures services from various staffing companies to fulfill its obligations. In order to accommodate its staffing requirements, Owens will contact a subcontractor, discuss the event specifics, determine how many laborers are necessary, and how many laborers the subcontractor can provide. Once a verbal agreement is reached, Owens issues an initial purchase order to the subcontractor requesting the necessary staff for an event. Thereafter, the subcontractor notifies Owens of the specific laborers, their shift schedules and where those laborers will report. Once the event is completed, the laborers complete a timekeeping report, and the hours are reviewed. The subcontractor generates an invoice and Owens then pays the subcontractor. The subcontractor then pays the laborers. The entire process may take 90 days for payment to be issued to the laborers. Ace Staffing (Ace) was one of the subcontracting companies that provided day laborers to Owens. Mr. Santangelo was an employee of Ace. Ace could send Mr. Santangelo to various locations to work. Mr. Santangelo preferred to work for Owens, and specifically wanted to work during the basketball season at the Amway Center. It is undisputed that Ace set the pay scale for Mr. Santangelo, and that Mr. Santangelo received his paychecks from Ace. Owens does not have any ownership interest in Ace. Owens is not responsible for any hiring decisions by Ace. Owens has the ability to review the background checks performed on Ace employees who are sent to work for Owens, but Owens does not hire or evaluate those workers. Owens has the ability to ask that certain Ace employees not return to work for Owens, but does not have the ability to fire or terminate an Ace employee. Mr. Santangelo attempted to resolve a perceived discrepancy in his pay. Mr. Santangelo brought the pay issue to the attention of Mr. Lichtarski, who in turn brought the pay issue to an Ace employee. Communication between Owens, Ace and Mr. Santangelo deteriorated. Mr. Santangelo was paid, but his employment by Ace ended. Mr. Santangelo was not employed by Owens. He was, at all times, employed by Ace. Mr. Santangelo failed to present any credible evidence that Respondent discriminated against him.
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 the Petition for Relief filed by Mr. Santangelo in its entirety. DONE AND ENTERED this 8th day of November, 2017, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK 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 8th day of November, 2017.
The Issue The issue for determination is whether Petitioner's examination challenge should be sustained.
Findings Of Fact Respondent is the governmental agency responsible for issuing licenses to practice architecture. Respondent is also responsible for administering examinations for such licenses on behalf of the state. At all times pertinent to this proceeding, Petitioner has been unlicensed as an architect. Petitioner took the Predesign part of the Architecture Examination given in June, 1995. Respondent's Bureau of Testing notified Petitioner by Examination Grade Report dated September 6, 1995, that Petitioner had earned a score of 74 on the Predesign part of the examination. The minimum score needed to pass the Predesign part of the examination is 75. Petitioner timely requested a formal hearing. A formal hearing was conducted on March 12, 1996. At the formal hearing, Petitioner challenged questions 74 and 105. Petitioner also challenged Respondent's failure to award credit for 10 pretest, or "pilot," questions included in the examination. Petitioner selected answer D to question 74. The correct answer is B. Petitioner selected answer A to question 105. The correct answer is D. The correct answer to each question is the answer identified by Respondent. The correct answer to each question is not the answer selected by Petitioner. Questions 74 and 105 are clear and unambiguous. Each question contains enough correct information to allow Respondent to select the correct response. Questions 74 and 105 are supported by reference materials which are approved and generally accepted in the architectural community. The correct responses to questions 74 and 105 do not require knowledge which is beyond the scope of knowledge that reasonably could be expected from a candidate for licensure. Pretest questions or "pilot items" are questions that are placed within an examination to determine their validity and reliability. No candidate, including Petitioner, may receive credit for correctly answering pretest questions. Before administering the examination, Respondent notified all candidates, including Petitioner, that pretest questions would be included as part of the examination. Petitioner is not entitled to credit for pretest questions.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law it is, RECOMMENDED that the Board enter a Final Order denying Petitioner's examination challenge. DONE AND ENTERED this 29th day of April, 1996, in Tallahassee, Florida. DANIEL S. MANRY, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of April 1996. COPIES FURNISHED: Angel Gonzalez, Executive Director Department of Business and Professional Regulation Board of Architecture and Interior Design Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Lynda Goodgame General Counsel Department of Business and Professional Regulation Northwood Center 1940 North Monroe Street Tallahassee, Florida 32399-0792 Vasantro Shere, pro se 117 Rabun Court Sanford, Florida 32773 R. Beth Atchison Assistant General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399
Findings Of Fact Based upon all of the evidence, the following findings are fact are determined: In this examination for licensure challenge, petitioner, Mason L. Flint, contends that he is entitled to a higher score on the March 1994 deputy pilot examination for the Port of Jacksonville. The examination is administered by the Department of Business and Professional Regulation (DBPR) on behalf of respondent, Board of Pilot Commissioners (Board). Although the original petition challenged the grade in twelve respects, petitioner now contends that only two items are in issue, item 21 relating to the local knowledge part of the examination, and item 270 relating to the aids to navigation part of the examination. Both are true-false questions. Unlike the more than fifty other professional licensure examinations administered by the DBPR, the seven-part pilot examination requires a candidate to achieve a minimum passing grade on each part, but candidates doing so then compete with each other for vacant positions. In other words, if only one position at a particular port is open, the candidate achieving the highest score above the minimum passing grade is the only candidate receiving a license. In this case, three deputy pilot positions were available at the Port of Jacksonville, and thus the candidates having the three highest scores among those exceeding the minimum passing grade would be given a license. Petitioner finished sixth on the original grading, but after having his examination regraded by the Board prior to hearing, he was ranked number four. By this challenge, he seeks to have his grade changed on items 21 and 270 so as to raise his ranking to number three. In order to preserve the confidentiality of Item 21 for future examinations, it is suffice to say that the item required a response of true or false concerning limitations on vessels leaving the Talleyrand Docks in Jacksonville, Florida. The examination answer key shows true as the correct response. In preparing all questions pertaining to local knowledge, including item 21, the Board's consultant used the U. S. Coast Pilot, a compilation of operational guidelines governing the movement of vessels in the St. Johns River (and Port of Jacksonville). The specific source of authority for item 21 was paragraph (16) on page 153 of the 1993 edition of the U. S. Coast Pilot. That paragraph reads in pertinent part as follows: (16) Outbound vessels: Vessels with a draft of over 23 (sic) feet sailing between Main Street Bridge to, and including, U. S. Gypsum Co. Pier, shall get underway after 1-1/2 hours after flood current with a cut off time at the beginning of ebb current . . . Because Talleyrand Docks lies between the Main Street Bridge and the U. S. Gypsum Company Pier, this paragraph has application to vessels leaving those docks. The 1993 version of the U. S. Coast Pilot contained a typographical error. Rather than "23" feet, the guidelines should have read "32" feet. To correct this error, paragraph (16) was revised in mid-March 1994, or the same month the examination was given, to provide that any vessel drawing more than 32 feet would be subject to the above movement restrictions. However, candidates were advised that only revisions to the U. S. Coast Pilot through January 1, 1994, would be included in the March 1994 examination. Besides the limitation described in paragraph (16), two other paragraphs on the same page of the U. S. Coast Pilot made reference to the correct 32 foot limitation. In addition, the Guidelines of Vessel Movements on St. Johns River, which form the basis for the data in the U. S. Coast Pilot, used the correct 32 foot limitation. Candidates familiar with those provisions should have been on notice that a typographical error existed in paragraph (16). Although the Board's suggested response is arguably correct, the more persuasive evidence shows that the statement in item 21 was confusing and unclear due to the typographical error in the U. S. Coast Pilot and the conflicting provisions on the same page of the source material. Thus, item 21 does not reliably measure the specified area of competency. Under these circumstances, a candidate should be given credit for either a true or false response, or alternatively, the question should be discarded in calculating a candidate's final score. Accordingly, petitioner's grade should be adjusted in this respect. Petitioner has also contended that only a false response is correct since the question implies that a restriction exists because of its use of the words "up to the beginning of ebb current." The evidence shows, however, that a candidate could reasonably reject that suggested implication and properly make a true response. Item 270 requires a true or false response to a statement regarding identifying marks or buoys marking a channel. The item identifies a set of conditions and then states that such a marking "could" properly be made. The examination answer key shows true as the correct response. The primary source of authority for item 270 is 33 CFR 62.43. According to that federal regulation, buoys marking the side of a channel (lateral aids) are always a solid color, and all solid color buoys marking a channel are numbered. The regulation goes on to provide that, in addition to a number, all solid color numbered buoys may also carry a letter suffix to aid in their identification, or to indicate their purpose. They cannot, however, be identified by letter only, but only by number and letter. Because the more credible and persuasive evidence shows that the question, as stated on the examination, clearly suggests that only a letter could be used for identification of a sidemark buoy, the correct response should be false. Therefore, petitioner should be given credit for his answer. The record is not altogether clear as to how changing petitioner's overall grade will impact his ranking. According to the DBPR psychometrician who is in charge of the pilot examination development, both petitioner and the third ranked candidate gave the same response on one of the challenged questions. On the other item, the two gave different responses, but if either response is deemed to be a correct response, it would have no bearing on their overall ranking. The pychometrician added that if an item is challenged and credit given to the protesting candidate, the answer key is changed and all candidates' scores are adjusted to reflect the change in the answer key.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered by the Board regrading petitioner's examination consistent with the above findings and conclusions. DONE AND ENTERED this 18th day of January, 1995, in Tallahassee, Florida. DONALD R. ALEXANDER 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 18th day of January, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-5327 Petitioner: 1-2. Partially accepted in finding of fact 1. 3. Partially accepted in finding of fact 2. 4-5. Rejected as being unnecessary. 6-8. Partially accepted in finding of fact 2. Partially accepted in finding of fact 12. Rejected as being unnecessary. Partially accepted in finding of fact 2. Partially accepted in finding of fact 12. Partially accepted in finding of fact 3. 14-27. Partially accepted in findings of fact 3-8. 28-39. Partially accepted in findings of fact 9-11. Respondent: 1. Partially accepted in finding of fact 1. 2. Partially accepted in finding of fact 2. 3. Partially accepted in finding of fact 3. 4. Partially accepted in finding of fact 4. 5. Partially accepted in finding of fact 5. 6. Partially accepted in finding of fact 7. 7. Partially accepted in finding of fact 8. 8. Partially accepted in finding of fact 9. 9-11. Partially accepted in finding of fact 10. 12. Rejected. See finding of fact 11. Note: Where a proposed findings has been partially accepted, the remainder has been rejcted as being unnecessary, irrelevant, subordiante, not supported by the evidence, or cumulative. COPIES FURNISHED: Mason L. Flint 1605 Brookside Circle East Jacksonville, Florida 32207 Wellington H. Meffert, II, Esquire 1940 North Monroe Street, Suite 60 Tallahassee, FL 32399-0792 Jack L. McRay, Esquire 1940 North Monroe Street, Suite 60 Tallahassee, FL 32399-0792 Susan J. Foster, Executive Director Board of Pilot Commissioners 1940 North Monroe Street Tallahassee, FL 32399-0773
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: On August 14, 1980, respondent Warwick G. Cahill applied to the Board of Pilot Commissioners for certification to take the examination to become a deputy pilot. To the questions on the application "Have you ever been a party in a criminal proceeding?" and "Have you ever been arrested?," respondent answered "No." On April 16, 1975, respondent was arrested and charged with "driving under the influence" in violation of Section 316.028, Florida Statutes. He was convicted of the misdemeanor charge, his driver's license was suspended for ninety days, he was fined $150.00 and he was placed on probation for six months. Respondent's record shows no prior or subsequent involvement in any criminal or traffic court proceedings. On November 24, 1976, respondent applied for tug employment with the St. Phillip Towing Company. On that application, the following responses were made to the question: "Have you ever been arrested?": Yes, one time, on charges of DWI. On August 4, 1980, Rickie Wayne Baggett applied to the Board of Pilot Commissioners to take the same pilot's examination for which the respondent had applied. To the question, "Have you ever been arrested?," Mr. Baggett answered "Yes," explaining that he had been arrested for driving while intoxicated and his license had been suspended for one year. In the space provided for him to state his driver's license number, Mr. Baggett noted that it had been suspended for one year. At a meeting held on September 5, 1980, the Board of Pilot Commissioners considered the applications of respondent and Mr. Baggett, along with others, to take the October 17, 1980, examination for certificated deputy pilot. The Board unanimously approved a motion to give conditional approval to the applicants Baggett and Cahill pending the receipt of information confirming their maritime background. At a later date, both Baggett and respondent were certified as eligible to take the October 17, 1980 pilot's examination. An investigator with the Department of Professional Regulation who has routinely investigated matters pertaining to licensed pilots since March of 1980 has never been requested to investigate any pilot for a DWI-related offense. The respondent's DWI offense was discovered during an investigation concerning an unrelated matter. While fully aware of the fact that he had been arrested for a driving while intoxicated charge, respondent Cahill claims to have forgotten about the arrest at the time he made application for examination and did not realize that such was a criminal proceeding. Mr. Cahill was born in Australia, came to the United States in 1972 and is a naturalized citizen.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is RECOMMENDED that the Administrative Complaint filed on November 9, 1981, as amended on March 16, 1982, be DISMISSED. Respectfully submitted and entered this 21st day of July, 1982, in Tallahassee, Florida. DIANE D. TREMOR 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 21st day of July, 1982. COPIES FURNISHED: W. B. Ewers, Esquire Suite 204 2170 S. E. 17th Street Ft. Lauderdale, Florida 33316 C. Steven Yerrid, Esquire Holland & Knight Post Office Box 1288 Tampa, Florida 33601 Jane Raker, Executive Director Board of Pilot Commissioners 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact Petitioner Richard L. Hensch submitted to the Department of Transportation (DOT) an Airport Site Approval and License Application dated December 8, 1987, for a private seaplane base on Lake Fairview in Orange County. On the application, Mr. Hensch indicated that flight activities that would be conducted from the proposed site could be sight-seeing flights, seaplane rides and tours and occasional seaplane instruction. Mr. Hensch plans to offer these activities to the public and charge fees for them. Attached to the Application was a letter dated December 17, 1987, from Ms. Sharon Smith, the Orange County Zoning Director, in which she states: Please be advised that insofar as Orange County Zoning requirements are concerned, our department has no jurisdiction over the use of water bodies of lakes; rather such use falls under the jurisdiction of the State of Florida. This letter was written at the request of the Petitioner. While the above-referenced application was under consideration by DOT, Petitioner applied for and received from the County tentative approval for an occupational license for his proposed operation. F.A.A. airspace determination approval letter for the proposed site was dated June 1, 1989. A Notice of Intent about the "proposed Private Seaplane Base" was issued by the Department of Transportation on June 21, 1989. A public meeting in connection therewith was conducted on August 28, 1989. Bronson Monteith, working for the DOT in Orange County, conducted the public meeting and recommended site approval relying on the letter by Orange County, dated December 17, 1987, as to the zoning. The Orange County Commission at its meeting held on August 14, 1989, objected to the placement of a seaplane base at Lake Fairview based on a determination by the zoning director and the county attorney's office that the proposed seaplane base did not comply with the zoning ordinance. The Lake Fairview area property is zoned predominantly residential, R- 1A, R-1AA with some C-2, R-T and R-3 zoning within the lake. Included within the commercial-type operations along and on the lake are jet-ski, sailboat and other watercraft rentals. Airports can be located only by special exception in A1 and A-2, agricultural zoning districts, and are permitted outright in I-5, Industrial Airport Zoning District. None of the lake area or shoreline areas are zoned A-1, Z-2 or I-5. During August of 1989, the Assistant Zoning Director, Joanne McMurray, who as Acting Zoning Director, received a memorandum from Mr. Hartman, Acting Director of the County's Administrative Services Office, about the seaplane base proposal whereby she researched the zoning regulations as to airport facilities and zoning districts and permitted uses. She determined the proposed seaplane site would not comply with the Orange County zoning requirements. Ms. McMurray had received information from the county legal department that Zoning had jurisdiction to govern the use of lakes. Lacy Moore, DOT's Chief of Airport Inspection, indicated that licensing followed site approval and was subject to annual renewal. Licensing was subject to revocation or denial of renewal if zoning changes occurred that made the airport out of compliance with zoning. DOT sought clarification from the County as to whether the proposed site was in compliance with the Orange County zoning regulations. Phillip N. Brown, Orange County Administrator, sent a letter to Mr. Moore dated October 30, 1989, advising that the proposed seaplane site was not a permitted use in the County zoning district for Lake Fairview. As a result of Mr. Brown's letter, Petitioner's application was denied on November 1, 1989, based on failure to comply with local zoning requirements. An "airport" is defined by the Orange County Zoning Ordinance as "any area of land or water designated and set aside for the landing and taking off of aircraft and utilized or to be utilized in the interest of the public for such purpose." No amendments to the zoning ordinance or zoning district map have been enacted since the filing of Petitioner's Application of December 8, 1987. On or about November 11, 1988, Ms. Smith, Orange County Zoning Director, by letter, stated that there were no zoning regulations in force in connection with another unrelated application for site approval and licensure of a private seaplane base on Big Sand Lake in Orange County, Florida. Licensed private airports have been authorized by DOT to provide services to the public such as airplane rides and flight instruction and charge fees. At the formal hearing held on this matter, several residents of the Lake Fairview area expressed opposition to the proposed seaplane site and indicated their concerns as to noise and safety because of extensive activity on the lake. Some people spoke in favor of the seaplane base indicating operational safety. Members of the public, including lake residents and others who spoke at the hearing, were not under subpoena by either party.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that a Final Order be entered by the agency head denying site approval for a private seaplane base on Lake Fairview in Orange County, Florida, because it does not comply with applicable county zoning as required by law. DONE AND ENTERED this 14th day of June, 1990, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of June, 1990. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-6714 The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's Proposed Findings of Fact: Accepted in substance: Paragraphs 1,2,3,4,5,6,7,9,10 (discussed in Preliminary Statement). Rejected as argument: 8,11. Respondent's Proposed Findings of Fact: Accepted in substance: 1,2,3,4,5 COPIES FURNISHED: Vernon L. Whittier, Jr., Esquire Department of Transportation Haydon Burns Building 605 Suwannee Street, MS 58 Tallahassee, Florida 32399-0458 Brian D. Stokes, Esquire Post Office Box 538065 Orlando, Florida 32853-8065 Ben G. Watts Secretary Department of Transportation 605 Suwannee Street Tallahassee, Florida 32399-0450 Attn: Eleanor F. Turner, MS 58 Thornton J. Williams General Counsel Department of Transportation 562 Haydon Burns Building Tallahassee, Florida 32399-0450
The Issue Whether the subject assessment of taxes, interest and penalties should be upheld.
Findings Of Fact By "Notice of Assessment and Jeopardy Findings" dated July 31, 1989, Respondent assessed Petitioner with taxes, interest, and penalties in the total amount, as of the date of the notice, of $161,724.75. This assessment was made pursuant to Section 212.0505, Florida Statutes, following an incident on February 4, 1988. The parties stipulated that this assessment was properly issued, that notice thereof was properly given to Gary Wayne Chitty, and that the mathematical calculations contained therein are accurate and correct. The following findings are made as to Petitioner, Gary Wayne Chitty, pursuant to the stipulation of the parties. His full name is Gary Wayne Chitty. His social security number is 261-17-0682. His date of birth is April 27, 1953. His present residence is 6840 S.W. 12th Street, Miami, Florida. He has never declared himself a citizen of any country other than the United States. On, or before, February 1988, he knew Rafael Silvio Pena. On February 4, 1988, he held a valid multi-engine pilot's license which was issued to him by the Federal Aviation Authority. On, or about February 4, 1988, he and Rafael Silvio Pena boarded and flew an aircraft designated N6726L. He and Mr. Pena planned to fly a multi-engine aircraft (N6726L) from a point outside of the United States and to enter the airspace of the United States near Cedar Key, Florida and travel within the airspace of Florida to Marathon, Florida. He filed, or caused to be filed, a flight plan for said trip with Mr. Pena in advance of the trip. He loaded or caused to be loaded marijuana on the aircraft (N6726L) prior to its departure. On, or about, February 4, 1988, he and Mr. Pena flew said airplane (N6726L) from a point in the vicinity of Cedar Key, Florida, to Marathon, Florida. During said flight, the aircraft made no other landings. During the entire flight on February 4, 1988, he and Mr. Pena were the sole occupants of said aircraft. During said flight he was the pilot of N6726L. He flew this aircraft on February 4, 1988 with the full knowledge and/or consent of the airplane's owners and/or official lessees. When he took off from the aircraft's departure point on February 4, 1988, it was loaded with a large quantity of marijuana. When he took control of said aircraft and took off, he knew it was loaded with said marijuana. He discussed his plans to transport the marijuana with Mr. Pena. When he took control of the aircraft, the aircraft (N6726L) contained nineteen (19) bales of marijuana which weighted six hundred ninety-nine (699) pounds. He and Mr. Pena flew this airplane along a course towards Marathon, Florida in a manner which took it over or near Lake Okeechobee, Florida. At a point along his route, he and/or Mr. Pena caused the bales of marijuana to be jettisoned from the aircraft. The marijuana was jettisoned as part of a conscious plan or design. The marijuana that was jettisoned from N6726L during its flight on February 4, 1988, weighed a total of 699 pounds. He did not know that during this flight of February 4, 1988, his aircraft was being observed by law enforcement officers. As part of his original plan, he piloted this aircraft to Marathon, Florida, where he landed. AA. During this entire flight the aircraft performed adequately and experienced no mech- anical difficulties. BB. Upon his landing at Marathon, he and Mr. Pena were arrested. CC. He knew the estimated retail value of the marijuana on board his aircraft (N6726L) was $600 per pound.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered which upholds the subject Jeopardy Findings and Assessment. RECOMMENDED in Tallahassee, Leon County, Florida, this 28th day of January, 1991. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of January, 1991. COPIES FURNISHED: James McAuley, Esquire Mark Aliff, Esquire Assistant Attorneys General Department of Revenue Tax Section, Capitol Building Tallahassee, Florida 32399-1050 Mel Black, Esquire 2937 S.W. 27th Avenue Miami, Florida 33133 J. Thomas Herndon Executive Director Department of Revenue 104 Carlton Building Tallahasseee, Florida 32399-0100 William D. Moore General Counsel 203 Carlton Building Tallahassee, Florida 32399-0100
Findings Of Fact The applicant for site approval is Downtown Heliport Corporation, Inc., a corporation with headquarters in Orlando, Florida, engaged in operating heliport facilities throughout Florida and other states. Its related company is Bulldog Airlines, which owns and operates helicopters for hire. Robert Uttal is President of both companies. On January 4, 1990, Downtown Heliport Corporation filed its application for site approval by the Department of Transportation (DOT), proposing to establish a .23 acre (10,000 square feet) helicopter pad within the jurisdictional territory of the Canaveral Port Authority. The Port Authority had already approved a land use permit and lease for the applicant on July 19, 1989 and November 14, 1989. The Federal Aviation Authority (FAA) also gave its approval. In a letter dated January 10, 1991, addressed to McDonald Smith, Director of Operations, Downtown Heliport Corporation, the FAA granted approval of the subject heliport under the following conditions: All operations are conducted in VFR weather conditions. The landing area is limited to private use. All approach/departure route helicopter operations are conducted in an area from 090 degrees clockwise to 160 degrees and from 250 degrees clockwise to 330 degrees using the touchdown pad as the center of a compass rose. The takeoff/landing area is appropriately marked. A nonobstructing wind indicator is maintained adjacent to the takeoff/landing area. The approval letter provides, in pertinent part: This determination does not mean FAA approval or disapproval of the physical development involved in the proposal nor is it based on any environmental or land-use compatibility issue. It is a determination with respect to the safe and efficient use of airspace by aircraft and with respect to the safety of persons and property on the ground. In making this determination, the FAA has considered matters such as the effect the proposal would have on existing or planned traffic patterns of neighboring airports or heliports, the effects it would have on the existing airspace structure and projects or programs of the FAA, the effects it would have on the safety of persons and property on the ground, and the effects that existing or proposed man-made objects (on file with the FAA) and known natural objects within the affected area would have on the heliport proposal. The FAA cannot prevent the construction of structures near a heliport. The heliport environs can only be protected through such means as local zoning ordinances or acquisitions of property rights. (DOT Exhibit #4) On January 30, 1990, Bronson Monteith, DOT District Aviation Specialist, inspected the proposed site and found it feasible for the proposed use and consistent with the requirements of DOT Rule Chapter 14-60, F.A.C. More specifically, he reviewed the facility diagram provided by the applicant and determined that the size of the pad, the location of the pad and the air corridor were appropriate. He considered that the Port Canaveral and FAA approval established compliance with ground and air safety standards. He determined from his inspection that existing structures would not interfere with an 8:1 glide slope to and from the pad. Once cleared from the pad the helicopters will use an existing ships' channel as the flight path. Mr. Monteith considered the distance of the streets from the heliport and the objects around it, including trees, the parking area and any major buildings that would be occupied. There are no schools close to the site. A Notice of Intent to issue a site approval for the proposed heliport was issued by the Department and advertised in an area newspaper; notices were sent, as provided in Rule 14-60, F.A.C. John Monteith conducted a public meeting, received comments and submitted a report to the DOT Aviation Bureau in Tallahassee recommending site approval. The heliport application, documentation and comments from the public meeting were reviewed by the Department's Licensing Coordinator and the Aviation Office Manager, and they determined that the application met all requirements under Chapter 330, Florida Statutes, and Chapter 14-60, F.A.C. for site approval. Site approval order no. 91-17 imposes the following conditions: All operations are to be conducted in VFR weather conditions. Operations are limited to private use. There are to be no flights over the City of Cape Canaveral. That the provisions in FAA Airspace Approval letter dated January 10, 1991, be complied with. Traffic patterns and operational procedures are subject to review by this Department prior to licensing or relicensing. (DOT Exhibit #9) Bulldog Airlines and Downtown Heliport Corporation intend to comply with, and enforce the conditions imposed by DOT. The flight path will be at 800 feet elevation along the corridor until the final approach for landing or takeoff, and that final approach will only be over the port itself. It will not include any flights over the Trident nuclear submarine or over storage tanks. The heliport will be private, primarily for the use of Bulldog Airlines, who flies for NASA, for the Port Authority, for various governmental agencies, including environmental monitoring agencies, and for other private hire. The heliport is open only to commercial pilots, will be used during daylight hours and only under conditions which allow for visual, noninstrument flying. Bulldog Airlines commenced operation in 1985 and has never experienced an incident, accident, or any notice of violation from the FAA, DOT or local law enforcement agencies. Because of its safety record it is able to maintain $100 million liability insurance. McDonald Smith, Director of Operations for Bulldog Airlines, is a pilot with approximately 10,000 hours of flight time. He also inspected the site and is aware of existing structures. In his opinion the flight corridor is wide enough to fly a helicopter, even if it is necessary to avoid unforeseen obstacles. Norma Townsend is a resident of the City of Cape Canaveral, approximately one-half mile south of the proposed site. She has attended the series of public meetings which preceded the DOT's proposed decision. She has amassed an impressive array of letters, maps, tapes and other documents related to the proposed site. She describes herself as a citizen and is neither a pilot nor trained in safety. Ms. Townsend is concerned about the existence of the nuclear submarine base, fuel storage tanks and other hazardous materials in the proximity of the proposed site. She feels that no amount of care by the pilots will insure that a helicopter in an emergency might not collide with an existing structure, with disastrous results. She has heard that used parts are sold for new, causing a helicopter to drop from the sky. She believes that ultra-light airplanes, low flying airplanes and weather balloons will provide extraordinary flying hazards in the Port Canaveral area. She suspects that no meaningful study was done by any agency prior to approving the site. Ms. Townsend presented no witnesses to substantiate these concerns and relies on her own common sense. In many instances this would be sufficient, but here the agency and applicant presented knowledgeable, competent expertise in support of a finding that the site is appropriate. Anything is possible, but instances of helicopters dropping out of the sky are virtually unheard of. Pilots are conscious of ultra-light planes and other possible obstacles to flying. Even large birds are a hazard. Heliports are routinely sited near or on top of buildings, in downtown areas or other places where traffic and population are congested. Helicopters are highly maneuverable, and for that reason are relied on in providing transportation and observation in circumstances where planes or ground vehicles are prohibited, for example after a hurricane or after a fire or other calamity. The substantial weight of evidence establishes that the proposed heliport at Port Canaveral can and will be safely operated.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED: That the agency enter its final order finding that site approval order no. 91-17 is valid and appropriate. DONE AND RECOMMENDED this 18th day of December, 1991, in Tallahassee, Leon County, Florida. MARY CLARK 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 18th day of December, 1991. Copies furnished: Robert R. Uttal Downtown Heliport Corporation, Inc. P.O. Box 621148 Orlando, FL 32862-1148 Joy C. Salamone, Mayor City of Cape Canaveral P.O. Box 326 Cape Canaveral, FL 32920 Karen S. Andreas, Commissioner Brevard County Board of County Commissioners 900 E. Merritt Island Cswy. Merritt Island, FL 32952 Vernon L. Whittier, Jr., Esquire Dept. of Transportation 605 Suwannee Street Tallahassee, FL 32399-0450 Norma E. Townsend P.O. Box 883 Cape Canaveral, FL 32920-0883 Ben G. Watts, Secretary Attn: Eleanor F. Turner, M.S. 58 Dept. of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, FL 32399-0458 Thornton J. Williams General Counsel Dept. of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, FL 32399-0458
