The Issue The issue in this case is whether the $490 fine assessed by the Respondent against the Petitioner was unwarranted or incorrect.
Findings Of Fact On May 1, 1989, Wando Trucking, Inc. ("Wando") obtained a trip permit from the Florida Department of Transportation ("DOT") authorizing the transportation of an overweight load. Wando proposed to transport one sealed containerized cargo unit. The permit was valid for one trip from Jacksonville, Florida to the Georgia border and expired on May 5, 1989. The permit contained several special requirements, including the typing, on the cargo packer's bill of lading, of the identification number stamped on the container seal. The DOT considers a permit to be void if permit requirements are not met. Packers of containerized cargo affix numbered seals to the containers. The seals are constructed so as to prevent the opening of a container without destruction of the seal. The DOT's requirement that the seal number be typed is to lessen the opportunity for a carrier to alter the cargo or substitute contraband for a sealed and permitted load. On May 1, 1989, the Wando truck stopped at the DOT weigh station on I- 95 in Yulee, Florida. Upon weighing the vehicle, the DOT employee found the truck, at 89,800 pounds, to be over the legal statutory weight of 80,000 pounds. The DOT employee examined the excess weight permit offered by the Wando driver and found that the container seal number was handwritten, across the bill of lading, rather than typed as the permit requirements stated. The DOT employee completed the appropriate documentation and assessed a fine of $490. The fine was calculated at five cents per pound for the 9,800 pound overage. Wando paid the fine. The evidence does not establish that the assessed fine was inappropriate. The assertion by Wando Trucking, Inc., that there was no intent to violate the permit provisions is irrelevant.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Transportation enter a Final Order dismissing the petition of Wando Trucking, Inc. DONE and RECOMMENDED this 13th day of March, 1990, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of March, 1990. APPENDIX The Petitioner did not file a Proposed recommended order. The following constitute rulings on Proposed findings of facts Submitted by the Respondent. Respondent The Respondents Proposed findings of fact numbered 1-3 are accepted as modified in the Recommended Order. COPIES FURNISHED: Ben G. Watts, Secretary Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0458 Paul F. Tecklenburg, Esq. Post Office Box 1430 Charleston, South Carolina 29401 Vernon L. Whittier, Jr., Esq. Department of Transportation 605 Suwannee Street, M.S. 58 Tallahassee, Florida 32399-0458
The Issue The issue in this case is whether Petitioner should change the rating of Respondent's license from standard to conditional.
Findings Of Fact Petitioner is the state agency responsible for evaluating nursing homes in Florida pursuant to Section 400.23(7), Florida Statutes (2001). Respondent operates a licensed nursing home located in Ft. Myers, Florida (the facility). (All chapter and section references are to Florida Statutes (2001) unless otherwise noted.) Petitioner conducted a survey of the facility on August 16, 2001. Petitioner determined that Respondent violated the standards of 42 Code of Federal Regulations (CFR) Section 483.25(i)(1) with respect to the dietary care of residents 20, 6, and 8. Florida Administrative Code Rule 58A-4.1288 makes the federal standards applicable to nursing homes in the state. Petitioner prepared a survey report that sets forth the basis for the alleged violations under "Tag F325." F325 is a shorthand reference to the regulatory standard of the CFR. Petitioner assigned the deficiency in F325 a severity rating of class "II." Section 400.23(8)(b) defines a class II deficiency as one that has: compromised the resident's ability to maintain or reach his or her highest practicable physical, mental and psychosocial well-being, as defined by an accurate and comprehensive resident assessment, plan of care, and provision of services. The surveyors for Petitioner testified that a Class II rating was appropriate because each of the cited residents experienced a significant weight loss that the facility could have prevented with better dietary care. Petitioner changed the license rating for the facility from Standard to Conditional within the meaning of Section 400.23(7). The change in license rating was effective August 16, 2001. The Conditional license rating continued until September 18, 2001, when Petitioner changed Respondent's license rating to Standard. The regulatory standard of Tag F325 requires a nursing home to: ensure that a resident maintains acceptable parameters of nutritional status such as body weight and protein levels, unless the resident's clinical condition demonstrates that this is not possible. 42 CFR Section 483.25(i)(1). The State Operations Manual (SOM) sets forth agency policy with respect to how surveyors are to interpret and apply the regulatory standard of Tag F325. In determining if a facility has maintained a resident's body weight at an acceptable level, the SOM guidelines direct surveyors to evaluate the significance of unplanned weight loss. A significant weight loss occurs when a resident loses five percent or more of his or her body weight in one month, 7.5 percent or more in three months, or 10 percent or more in six months. However, the guidelines caution surveyors that ideal body weight charts have not been validated for the elderly and that weight loss is only a guide in determining nutritional status. If a resident has experienced a significant weight loss, the facility may nonetheless comply with the regulatory standard of Tag F325, if the Resident has clinical conditions that demonstrate that the maintenance of the Resident's weight at an acceptable level is not possible. The SOM indicates that clinical conditions that demonstrate that the maintenance of acceptable nutritional status may not be possible include advanced diseases such as cancer and a Resident's refusal to eat. Even in the absence of an identified disease process, the weight loss is considered unavoidable if the facility has properly assessed the resident, developed a care plan for the resident, consistently implemented that care plan and periodically re- evaluated the care plan. Resident 20 suffered from end-stage Alzheimer's disease and cancer. Like many persons afflicted with end stage Alzheimer's disease, Resident 20 began to refuse to eat food in November 2000. Residents with end-stage Alzheimer's disease refuse to eat because they no longer are aware of the need to eat and do not recognize any hunger pangs. As a result, they typically experience weight loss in their final months of life. As early as October 2000, facility staff determined that Resident 20 was refusing to eat and developed a care plan for her. In November 2000, the facility dietician placed Resident 20 on a high calorie diet that offered her almost 4000 calories a day. The dietician also changed the consistency of Resident 20's diet from pureed to liquid in an effort to get her to consume more calories. However, Resident 20 continued to eat poorly. Resident 20's weight dropped from 151.6 pounds to 147.2 pounds between November 15, 2000, and December 20, 2000. Between December 20, 2000, and January 24, 2001, Resident 20 lost only six tenths of a pound to 146.6 pounds. Resident 20's weight loss during two months between November 2000 and January 2001 was only three percent of her actual body weight. A three percent loss of body weight is not a significant weight loss under the SOM guidelines. The facility dietician did not recommend any changes to Resident 20's dietary care plan for several reasons. Resident 20's weight had stabilized. The dietician believed that Resident 20's refusal to eat was a product of Alzheimer's disease and could not be reversed. Resident 20 had not experienced any significant weight loss. The dietician's decision not to make any revisions to the care plan was consistent with good dietary practice and relevant regulatory standards. Between January 24 and February 28, 2001, Resident 20's weight dropped to 134.2 pounds. The weight loss was 8.5 percent of the resident's body weight. The parties stipulated that this weight loss was significant within the meaning of the SOM. The facility dietician reassessed Resident 20 and concluded that the weight loss was attributable to a refusal to eat caused by Alzheimer's disease. The dietician placed Resident 20 on weekly weight monitoring. The facility dietician correctly determined that there was no dietary intervention that would make Resident 20 consume more food. Both parties acknowledged that an end-stage Alzheimer's patient will progressively decline and that the patient's consumption gets worse, not better, over time. The dietician did not make any recommended changes to Resident 20's dietary orders. Instead, the dietician recommended that staff discuss with the physician and family members the possibility of placing a feeding tube in Resident 20. The facility arranged a meeting with the physician for Resident 20 and family members in March 2001, to discuss the possibility of a feeding tube for Resident 20. The family refused to consent to the placement of the feeding tube in Resident 20. Resident 20 had issued an Advance Directive which prohibited that intervention. Resident 20 passed away on May 7, 2001. The facility did not violate the requirements of Tag F325 by failing to try or even consider new care plan interventions to prevent Resident 20's weight loss between March 1 and May 7, 2001. The facility could have offered Resident 20 smaller portions more frequently, instead of larger portions three times a day, or could have changed the temperature of the liquids offered to Resident 20. The facility could have offered Resident 20 supplements between meals. However, there is no evidence that the available interventions would have been effective. Resident 20's cognitive decline was so severe that it is unlikely the available interventions would have had any positive effect on Resident 20. No regulatory standard required the facility to change the dietary care plan interventions for Resident 20 prior to the significant weight loss in February 2001. The facility provided Resident 20 with every reasonable intervention for the resident's dietary care. Resident 20's diet provided her with more than enough calories. Changing the amount or frequency of food offerings would have had no positive impact on Resident 20's consumption because of the resident's diminished cognitive capacity. The absence of physician's orders for supplements for Resident 20 had no adverse effect. The facility's policy is to offer supplements throughout the day to all residents on the unit in which Resident 20 resided. The facility offered these supplements to Resident 20, but they did not improve her consumption or otherwise stem her weight loss. The facility provided adequate dietary care to Resident 20. The facility offered Resident 20 fluids at three different meal times in addition to supplements throughout the day. Resident 20's appetite and consumption did not improve. The refusal to eat was not related to her distaste for the food offered to her, the quantity of the food offered to her, or the frequency of feeding. Rather, the refusal to eat was a product of her inability to understand what food was and the need to eat. It was thus appropriate for the surveyor to conclude that additional interventions would not have been effective and should not have been employed. The significant weight loss experienced by Resident 20 was unavoidable due to clinical conditions. The SOM guidelines acknowledge that weight loss should be expected in a resident who has a terminal illness or whose diminished cognitive capacity results in a refusal to eat. Resident 20 possessed both of these clinical conditions. The facility admitted Resident 8 in July 2001, for rehabilitative care after surgery for a fractured femur. Upon admission, Resident 8 weighed 106.8 pounds. Her ideal body weight was approximately 98 pounds, and her usual body weight was between 100 and 105 pounds. The admitting body weight may have been high due to swelling in Resident 8's leg. The facility measured and monitored Resident 8's weight weekly for four weeks pursuant to the facility's protocol for all new admissions. The facility dietician assessed Resident 8's food preferences and nutritional needs at the time of admission. The dietician designed a diet to meet Resident 8's needs and preferences. Resident 8 was cognitively alert and physically capable of feeding herself. Resident 8 did not require any special assistance to consume her food other than for staff to set up her feeding tray. Resident 8 was at risk for weight loss due to poor intake upon admission. Facility staff decided not to develop a dietary care plan for Resident 8 because the resident was above both her ideal and usual body weights. The decision not to develop a dietary care plan was within the sound discretion of facility staff. The failure to develop a dietary care plan for Resident 8 did not violate the standard of Tag F325. The dietary plan for Resident 8 maintained the Resident's body weight at acceptable levels for the first three weeks of her stay at the facility. Resident 8's weight on July 25, 2001, was 104.2 pounds. On August 1, 2001, Resident 8's weight was 106.2 pounds. On August 8, 2001, however, Resident 8's weight dropped to 100.2 pounds. On August 9, 2001, the resident's weight was 99.8 pounds. Resident 8's ideal body weight was approximately 98 pounds. The facility discharged Resident 8 on or about August 9, 2001, upon successful completion of her rehabilitation before another weight could be measured. A threshold issue that must be determined is whether Resident 8 experienced a significant weight loss. Respondent stipulated at the administrative hearing that Residents 20 and 6 experienced significant weight losses during their stays at the facility, but refused to concede that point with regard to Resident 8. As noted earlier herein, SOM guidelines indicate that a significant weight loss occurs if a resident loses 5 percent of his or her body weight in the "interval" of one month. The SOM guidelines prescribe a formula for determining the percentage of weight loss. The formula requires usual weight to be reduced by actual weight. The result is divided by usual weight, and that result is multiplied by 100. Resident 8's usual body weight ranged between 100 and 105 pounds when she was admitted to the facility. Use of the high-end of that range in the SOM formula would produce the highest percentage of weight loss for Resident 8. The formula for calculating the significance of the Resident's weight loss produces a number that is less than the 5 percent weigh loss that must be present to satisfy the test of significant weight loss, e.g.: usual weight loss (105) less actual weight (99.9) equals 5.2. The result (5.2) is divided by usual weight (105). The result (.0495) is multiplied by 100 to determine the percentage of weight loss (4.95 percent). The parties stipulated at hearing that Resident 8 lost 6.5 percent of her body weight between July 18 and August 9, 2001. However, that percentage is based upon a comparison of her actual body weights rather than the usual-body-weight formula prescribed in the SOM. Petitioner provided no evidence to justify a deviation from the SOM formula generally used for determining significant weight loss in this case. Even if such a deviation were justified, Resident 8 did not experience a significant weight loss within the meaning of the SOM guidelines. The guidelines indicate that the minimum interval for evaluating a resident's weight loss is one month. Resident 8's actual weight loss occurred in the eight-day period between August 1 and 9, 2001. That is less than the one-month interval established in the SOM guidelines. Even if July 18, 2001, were used as the beginning point for evaluating Resident 8's weight loss, the one-month interval for determining if a significant weight loss had occurred did not expire and would not expire until August 18, 2001. The facility discharged Resident 8 on or about August 9, 2001. Petitioner's surveyor testified that if Resident 8 were to have stayed in the facility for 30 days and if her weight had returned to that present before she began her weight loss, there would have been no significant weight loss. Petitioner provided no evidence that indicated that a resident's weight loss should be evaluated over some time period shorter than the one month period established in the SOM guidelines. Resident 8's case illustrates at least one reason why the SOM guidelines caution surveyors against strict reliance on the amount of a resident's weight loss to determine the resident's nutritional status. Resident 8's body weight never dropped below her ideal body weight while she was admitted to the facility. A weight loss which occurs over a one-week period, and which only results in the Resident dropping to her ideal body weight, does not indicate that the Resident is malnourished. Assuming arguendo that Resident 8 experienced a significant weight loss at the facility, the weight loss was not caused by the failure of facility staff to develop a dietary care plan. It is undisputed that facility staff assessed Resident 8 for her nutritional needs and provided her with an adequate diet to meet those needs. It is also undisputed that, prior to the Resident's weight being taken on August 8, 2001, the facility had no reason to believe or know that the diet that it had prescribed for Resident 8 or the Resident's consumption of that diet might be inadequate. Resident 8's weight remained at or near its admission level under the dietary regimen that the facility prescribed for her for those three weeks. Petitioner was unable to identify one intervention that should have appeared in a dietary care plan that the facility did not actually provide to Resident 8 or that would have prevented the weight loss experienced by Resident 8. The surveyor who developed the allegations regarding Resident 8 is a nurse and not a dietician. The surveyor alleged that Resident 8 was anxious, had been ill when she was admitted, and that the facility had not appropriately assessed whether those factors would affect Resident 8's appetite. Resident 8 did not express such problems to the facility dietician. If it were determined that those problems existed at the time of admission, they were not significant because Resident 8 maintained her usual body weight during the first three weeks of her stay at the facility. When the Resident's weight loss was identified on August 9th, the facility added fortified foods to her diet. Fortified foods are the appropriate dietary response to Resident 8's identified weight loss. The facility provided Resident 8 with all appropriate dietary care. Resident 6 had been a resident at the facility since November 29, 1999. Between May 9 and June 13, 2001, Resident 6 experienced a weight loss of 6.5 percent. The parties stipulated that this loss was significant. However, Resident 6's weight of 152 pounds on June 13th remained above his ideal body weight of 144 pounds. During the period of weight loss, Resident 6 experienced a urinary tract infection for which he was receiving anti-biotic therapy. It is not uncommon for a resident to lose his or her appetite and to have a corresponding weight loss during such treatment. The surveyor for Petitioner who prepared the case involving Resident 6 is not a dietician. The surveyor charged that Resident 6's weight loss was avoidable because the facility failed to assess Resident 6's protein needs after he developed the urinary tract infection and because the facility did not closely monitor Resident 6's food intake. Petitioner offered no evidence to show what additional calorie or protein requirements the facility did not provide to Resident 6. The facility monitored the resident's low consumption levels and attributed them to his antibiotic therapy. The facility dietician is a dietary expert. There is no dietary standard that requires dieticians to reassess a resident's nutritional needs when the resident has an infection. Instead, good dietary practice allows the infection and antibiotic treatments to run their course. Thereafter, the dietician should monitor the resident's consumption and weight to see if he or she returns to normal. The facility dietician assessed Resident 6 after the infection cleared and after the antibiotic treatment had been completed. The dietician determined that Resident 6's consumption was good. The weight loss Resident 6 experienced was attributable to his decreased appetite while on antibiotic therapy. Resident 6's weight remained stable after his infection cleared, and his treatment was completed. Resident 6's ideal body weight is 144 pounds. The facility determined to maintain Resident 6's weight at 150 pounds. The significant weight loss experienced by Resident 6 was the unavoidable consequence of clinical conditions in the form of the illness he experienced and the treatments he received for that illness. The weight loss was not caused by inadequate dietary care by the facility. Moreover, Resident 6 remained above his ideal body weight and, therefore, did not experience any harm. On or about July 12, 2001, the facility obtained an albumin level for Resident 6 of 2.9, which was below the suggested normal laboratory range of 3.5 to 5.0. The surveyor for Petitioner charged that the facility did nothing to address this low lab value but conceded that Resident 6 did not experience any harm as a result of that failure. The SOM guidelines indicate that surveyors should not expect normal lab values for all residents they review because abnormal values are to be expected with certain disease processes. Resident 6 was severely compromised by cardiac problems, dementia, a prior stroke, diabetes, prostate cancer, and Alzheimer's disease. He died shortly after the survey in this case. His albumin level of 2.9 was indicative of his diseased condition rather than his nutritional status. Accordingly, the facility did not violate any standard of good dietary practice when it did not consider or implement dietary interventions for the low albumin level.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Petitioner enter a Final Order finding no basis to issue a Conditional rating to the facility on August 16, 2001; deleting the deficiency described under Tag F325; and issuing a Standard rating to the facility to replace the previously issued Conditional rating. DONE AND ENTERED this 6th day of September, 2002, in Tallahassee, Leon County, Florida. DANIEL MANRY 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 6th day of September, 2002. COPIES FURNISHED: R. Davis Thomas, Jr. Qualified Representative Broad and Cassel 215 South Monroe Street, Suite 400 Post Office Drawer 11300 Tallahassee, Florida 32302 Dennis Godfrey, Esquire Agency for Health Care Administration 525 Mirror Lake Drive, North Sebring Building, Suite 310 St. Petersburg, Florida 33701 Lealand McCharen, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 William Roberts, Acting General Counsel Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3431 Tallahassee, Florida 32308 Rhonda M. Medows, M.D., Secretary Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3116 Tallahassee, Florida 32308
Findings Of Fact The facts reveal that Jose Gonzalez, a driver for the Respondent, operating one of Respondent's tractor/trailer pieces of Respondent, went to a rock company located in Hollywood, Florida, on February 13, 1978, for the purpose of picking up a load of "P" rock. This rock was purchased from Miramar Lakes, d/b/a Miramar Rock on that date and the driver, Gonzalez, was given a weight ticket. The weight ticket from Miramar Rock reflected a gross weight of 72,360 pounds, which is the total of the equipment and load. (The scales at Miramar peck used to weigh the Respondent's equipment and load had been certified by the Petitioner to be accurate on June 7, 1977, and again on April 11, 1978.) The weather on February 13, 1978, was clear and the purchase, loading and weighing done on the subject equipment was without incident, until the driver attempted to pull away from the weight scales. At that moment the universal joint and yoke snapped and this caused the vehicle to be inoperable. Gonzalez left the truck at the Miramar Rock Company. At that point, the load was covered by a canvas and the trailer was not seeping or leaking water from the rock aggregate. Later, on February 13, 1978, a mechanic employed by the Respondent came to effect repairs to the vehicle, but due to the unavailability of certain parts necessary to complete the repairs, did not finish the work until February 14, 1978. When the repairs had been completed on that date, the driver, Gonzalez, removed the truck from the Miramar Rock compound and entered the roads of Broward County, Florida. At around 9:15 a.m. on February 14, 1978, Gonzalez arrived at the intersection of Hollywood Boulevard and Flamingo Road in Broward County, Florida, eastbound on Hollywood Boulevard. At that intersection, officers employed by the Florida Highway Patrol, Weights Division, intercepted the Des Rocher truck and caused the vehicle to stop. After the stop the equipment being operated at that time was established to be a vehicle measuring between 37 feet to 38 feet from the front axle to the rear axle, and the peak of the rock load was located in the center rear portion of the trailer. Officer Wilkerson of the Florida Highway Patrol observed water dripping out of the rear tailgate after making the stop. Gonzalez was asked to produce a weight ticket and in response to this request produced the weight ticket given him by Miramar Rock on February 13, 1978. Officer Wilkerson commented that this ticket was from the day before and that a ticket bearing the current date was required. Gonzalez was then told that the truck would be weighed with the method for weighing the truck being by two portable scales. Officer Wilkerson weighed one side of the truck and Officer Herron went to the other side of the truck. Wilkerson weighed the steering axle on his side of the truck; the drive axle on his side of the truck, and two tires on the rear tandem axles on his side of the truck. It is not known what Officer Herron did, if anything, in effecting the purposes of this inspection and weigh-in, because Officer Herron did not appear at the hearing in this cause and was not seen by Officer Wilkerson in conducting his inspection activities, if any. Therefore, the total weight of the truck as ascertained from the inspection ostensibly conducted by these officers was not shown by competent evidence. However, it was demonstrated through the testimony in this hearing that the plan which the officers had for making the roadside inspections was one which called for basically stopping all trucks of the category of aggregate haulers that were eastbound through the intersection on Hollywood Boulevard, to the exclusion of pickup trucks and moving vans. After stopping the former category of trucks, some were weighed and others were not. As a result of the stop, Gonzalez was ticketed for a weight violation and that ticket was in the amount of $136.45 as an assessed penalty. Gonzalez then took the truck back to the Des Rocher installation which contained a set of scales and between 10:15 a.m. and 10:30 a.m. the truck was weighed and shown to be 35.64 tons, or 71,280 pounds as the gross weight including the equipment and load. (The scales that were utilized had been certified by the Petitioner on June 7, 1977, and again on May 8, 1978.)
The Issue The issue to be resolved in this proceeding concerns whether the Petitioner was the victim of discrimination by the Respondent because of an alleged disability and whether the Respondent retaliated against the Petitioner for filing a complaint of discrimination with the Equal Employment Opportunity Commission (EEOC).
Findings Of Fact The Petitioner Gregory L. Stubbs, was employed by the Respondent Department as a maintenance yard Welder for approximately five and one-half years. In 1993, he suffered a back injury on the job, resulting in chronic pain. On January 28, 1997, the Petitioner accepted a position with the Department's Office of Motor Carrier Compliance (MCC) as a Weight Inspector. The Weight Inspector position accepted by Mr. Stubbs was an open, advertised position at the time, for which the Department accepted applications and conducted interviews, including that of Mr. Stubbs. He applied for the position, was interviewed and selected for the position. When Mr. Stubbs was offered the Weight Inspector position, he was advised that appointment to the position would amount to a demotion from his current position with the Department, in the sense that he would have to accept a base rate of pay of 5 percent less than he had been earning. He voluntarily accepted that position and the reduction in pay. The pay for the position was set when the position was released for hire and was not changed because Mr. Stubbs elected to apply for the position and became the selected candidate hired for the position. Weight Inspectors work at fixed-scale weigh stations where trucks are weighed. Mr. Stubbs was assigned to the "Northbound scales" on Interstate 95 near Yulee, Florida in Nassau County. Weight Inspectors are responsible for enforcing the motor vehicle weight laws, writing citations for violations, as well as writing citations for fuel tax violations and enforcing the dimensional limits on motor vehicles. The job involves weighing and measuring vehicles, writing citations, answering the telephone, operating a computer and checking vehicle tags and registration numbers. The job does not involve any heavy lifting, loading or any physically demanding tasks. Weight Inspectors employed by MCC work alone at the scale houses, except when a new inspector is present for training. Mr. Stubbs was able to perform these duties and, when present for work, performed them well. Mr. Stubbs was supervised by Sgt. Robert Bryan. Sgt. Bryan participated in interviewing Mr. Stubbs and in selecting him for the position. During the interview process Sgt. Bryan informed Mr. Stubbs of the Weight Inspector's job duties. Mr. Stubbs never informed Sgt. Bryan that he would have any trouble performing the job duties. Mr. Stubbs also did not tell Sgt. Bryan, at that time, that he had trouble with his back or that he would have trouble reporting for work on time. Sgt. Bryan later learned that Mr. Stubbs had trouble with his back, but did not consider the problem to restrict Mr. Stubbs' ability to perform the Weight Inspector job. Weight Inspectors are required to report for work on time. The failure to report for work timely, results in closure of the scale facility. When a Weight Inspector has to be late or is unable to report for work before the beginning of a shift, he is required to advise the supervisor before the scheduled time for the shift. This requirement is contained in the Department's published Conduct Standards. Copies of the Department's published Conduct Standards are provided to all Weight Inspectors that work for MCC, including the Petitioner. Department employees are advised that unexcused tardiness or absences will be grounds for disciplinary action and the Petitioner was so informed. On October 19, 1997, Sgt. Bryan counseled Mr. Stubbs about failing to notify him of an absence from work. Sgt. Bryan stressed the need for Mr. Stubbs to contact him as soon as he became aware that he would not be able to timely report for work. On October 12, 1998, Sgt. Bryan counseled Mr. Stubbs for failing to report to work on time. Sgt. Bryan again stressed the need for Mr. Stubbs to timely report to work. On December 31, 1998, Mr. Stubbs acknowledged receipt of a Memorandum from Lt. Vicki D. Thomas concerning tardiness and the use of leave. Lt. Thomas is the Jacksonville Field Office supervisor for MCC and is Sgt. Bryan's immediate supervisor. Lt. Thomas' Memorandum requires Weight Inspectors to contact both the main MCC office and the inspector who they are scheduled to relieve whenever they will be tardy or absent. On January 13, 1999, Sgt. Bryan again counseled Mr. Stubbs about failing to report to work as scheduled In 1998, Mr. Stubbs filed a grievance through his union, the American Federation of State, County and Municipal Employees (AFSCME). The subject of the grievance was the reduction in pay Mr. Stubbs' sustained by accepting employment with MCC. He sought re-instatement of the pay he had received as a Welder. Lt. Thomas received the AFSCME grievance on August 17, 1998, and responded to it by noting that the grievance was untimely and that Mr. Stubbs had voluntarily accepted the Weight Inspector position and attendant reduction in pay. Although the grievance was unsuccessful Mr. Stubbs continued his employment with MCC. On or about February 9, 1999, the Petitioner filed a Charge of Discrimination with the EEOC alleging that the Department had discriminated against him on the basis of race and disability by reducing his pay when he accepted the Weight Inspector position. On May 13, 1999, the EEOC advised the Petitioner that it could not investigate his charge because it was not filed within the time required by law. A copy of the EEOC Dismissal and Notice of Rights was provided to the Department. A copy of the EEOC Notice was also sent to Mr. Stubbs at the Department's address. This copy was mistakenly opened by the Department and then forwarded to Mr. Stubbs. Sgt. Bryan became aware of the complaint when the letter was opened in the Department offices, but the complaint was not a factor in his supervision of Mr. Stubbs. On April 2, 1999 through June 25, 1999, the Petitioner was absent from work. He exhausted all of his sick leave and was authorized additional, unpaid leave under the Family Medical Leave Act. On June 25, 1999, Mr. Stubbs returned to his Weight Inspector assignment. He was scheduled to work on July 2, 7, 8, 9, 13 and 16, 1999. He did not report for work on those days. On July 8, 1999, he failed to advise Sgt. Bryan that he would not be reporting for work. Sgt. Bryan checked with other supervisors to see if Mr. Stubbs had advised anyone else that he would be absent, and learned that Mr. Stubbs had not contacted them. Lt. Thomas issued a written reprimand to the Petitioner for these absences. The reprimand was issued because he was absent from work without authorized leave and failed to follow the Department's rules concerning advance approval for leave. Neither the Petitioner's prior complaint to the EEOC or his back problem motivated Lt. Thomas to issue the reprimand. On July 20, 1999, Sgt. Bryan spoke with Mr. Stubbs about a cash penalty that Mr. Stubbs had collected on a "load report." Weight Inspectors who collect cash penalties are required to convert the cash funds to a money order or cashier's check within 48-hours after the date the report is issued. Weight Inspectors are allowed to use work time to convert cash penalties to money orders or cashier's checks. Sgt. Bryan asked the Petitioner about the cash because the load report involved was apparently issued six days earlier. The Petitioner told Sgt. Bryan that he had not converted the cash to a money order, that he had the cash with him and that he believed the inquiry was ridiculous. Sgt. Bryan then had to go to Mr. Stubbs's doctor's office to retrieve the cash penalty. Mr. Stubbs received a suspension for his handling of the cash penalty and related behavior. Lt. Thomas investigated the allegations contained in the suspension letter and believed them to be correct. She prepared the letter for signature. Neither Mr. Stubbs' prior complaint to the EEOC or his back problem motivated Lt. Thomas to issue the suspension. During the period from July 21, 1999 to August 6, 1999, the Petitioner was repeatedly absent and late to work. At 12:25 p.m., on August 1, 1999, the Petitioner advised Lt. Thomas that he had not worked as scheduled on July 31, 1999, and had not reported for work on the morning of August 1, 1999. On August 26, 1999, the Petitioner received a suspension for his unauthorized and excessive absences. Lt. Thomas investigated the allegations contained in the suspension letter, believed them to be correct and prepared the letter for signature. Neither the Petitioner's prior complaint to the EEOC or his back problem motivated Lt. Thomas to issue the suspension. The Petitioner was advised that any further violations of the Department's Conduct Standards would result in more severe discipline, up to and including dismissal. The Petitioner was scheduled to work from October 11 through October 15, 1999, but did not report for work on those days. He did not contact Sgt. Bryan or Lt. Thomas to advise them that he would not be at work. Lt. Thomas and Sgt. Bryan checked with other MCC supervisors and staff but were not advised that Mr. Stubbs had contacted anyone. Sgt. Bryan and Lt. Thomas did not hear from Mr. Stubbs from October 11 through October 15, 1999, and had not authorized his absences. The Department dismissed Mr. Stubbs from employment for those unauthorized absences. The Petitioner was apparently ill during that period but did not provide the Department with a doctor's note until approximately six weeks after the absences. The doctor's note does not indicate that the Petitioner was unable to call his supervisors to report his anticipated absence. The Petitioner did not establish that he was unable to report to his supervisors as required. The Department's discipline of the Petitioner and the ultimate decision to dismiss him from the Department were not motivated by Mr. Stubbs' prior complaint to the EEOC. Although some of his absences from work may have resulted from his back injury, the evidence does not establish that all of his absences were related to his injury. He was absent for material amounts of time in excess of his available leave. In 1999, he exhausted his accrued leave and used twelve weeks of unpaid leave under the Family Medical Leave Act. After returning from family medical leave, he continued to be absent for a significant period of time. There was no showing that additional leave would enable Mr. Stubbs to return to work on a regular basis. Additionally, he failed to notify his superiors in advance of his absences as required and instructed.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witness and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the Florida Commission on Human Relations denying the Petition in its entirety. DONE AND ENTERED this 3rd day of October, 2002, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF 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 Clerk of the Division of Administrative Hearings this 3rd day of October, 2002. COPIES FURNISHED: Robert M. Burdick, Esquire Department of Transportation 605 Suwannee Street Haydon Burns Building, Mail Station 58 Tallahassee, Florida 32399-0458 Gregory L. Stubbs 3563 North Hampton Cove Court Jacksonville, Florida 32225 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
Findings Of Fact Respondent owns and operates a tractor-trailer combination that it uses for hauling a large crane. As configured at the time in question, the gross vehicle weight was 127,780 pounds, which is distributed over one steering axle, a four-axle combination at the rear of the trailer, and a three- axle combination between the other axles. The four-axle combination bore 60,280 pounds. The outerbridge of the vehicle, which is the distance from the front axle to the rear axle, was over 70 feet. Respondent, which is a small company located in Tennessee, transports its crane throughout the southeastern portion of the United States. Respondent employs a company known as Comchek to secure the necessary permits for the trips. In this case, Comchek obtained for Respondent a Trip Permit dated April 12, 1989. The permit states that the trip is from the Georgia line to the Alabama line on Interstates 95, 295, and 10. The permit notes that the vehicle is 75 feet long, has eight axles, and weighs 135,000 pounds. One of the special requirements on the permit states: "If overweight, a max (3)000 axles allowed per grouping with a minimum of 10 feet to next adjacent axle, center to center." The "000" represents a graphic depiction of three axles. Respondent's vehicle did not meet the axle-grouping requirement. Less than 10 feet separated the four axles in the rear from each other. Thus, the vehicle, if overweight, violated this condition of the permit. The permit contains only two references to weight. One notes the gross weight. The other is in a special condition and requires that overweight vehicles obtain an 80,000 pound license tag. Although the Trip Permit does not clearly disclose on its face that any weight over 80,000 pounds is overweight, Respondent's representatives were on notice that their long and heavy vehicle exceeded the normal weight restrictions so as to be classified as "overweight." The permit's reference to 135,000 pounds cannot be construed to set the standard over which a vehicle would be overweight. Otherwise, the permittee could use the permit to transport a 300,000 pound load on an eight-axle vehicle as long as the vehicle had no axle groupings of more than three. The failure to obtain the proper permit was the fault of Respondent or its agent, Comchek. Either Respondent did not communicate the axle groupings to Comchek or Comchek did not communicate them to Petitioner. In either event, through no fault of Petitioner, the Trip Permit obtained by Respondent was violated the moment the vehicle crossed the Florida line. Inspecting the vehicle at the Sneads inspection station at 6:53 a.m. on April 14, 1989, Petitioner's representatives discovered the violation. The Load Report and Field Receipt of the same date, which cites a violation of Section 316.545, Florida Statutes, states that the gross weight of 127,780 pounds exceeds the legal weight of 80,000 pounds by 47,780 pounds. The resulting penalty is $2389. The receipt acknowledges payment under protest. At 9:53 a.m. on the same date, Petitioner issued to Respondent a second Trip Permit that suspended the requirement of 10 feet between axle groupings. Petitioner released the vehicle at 11:05 a.m., and the vehicle completed the remainder of its trip in Florida without incident. The expedience with which Petitioner issued the second Trip Permit was largely because Respondent had already crossed the bridges that were most vulnerable to excessive loads. However, due to the length of the outerbridge and the number and distribution of axles, Petitioner's expert determined that Petitioner would have, after computer analysis, issued a permit for the vehicle as originally configured, if the proper information had been supplied.
Recommendation Based on the foregoing, it is recommended that the Commercial Motor Vehicle Review Board enter a Final Order finding Respondent guilty of violating the above-cited statutes and imposing a fine of $2389 or such lesser amount as the Board may deem appropriate. DONE and ORDERED this 13th day of December, 1989, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of December, 1989. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 89-4523 Treatment Accorded Proposed Findings of Petitioner 1-6: adopted or adopted in substance. 7 and 12: rejected as recitation of testimony, argument, and not finding of fact. 8-11: rejected as subordinate. 13-16: adopted or adopted in substance. 17: rejected as against the greater weight of the testimony of DOT's expert witness, Larry H. Davis. There is no evidence that the outerbridge was only 51 feet. There is conflicting evidence as to the length of the outerbridge, which is at least 64 feet. The diagram that Respondent gave to Petitioner in applying for the permit states that the vehicle length is 75 feet. Subtracting the distance of five feet and three inches between the centerline of the rearmost axle and the rear extreme of the vehicle, the outerbridge is almost 70 feet. However, adding up the confusing distances given on the diagram, which among other shortcomings is clearly not drawn to scale, the total outerbridge is 54 feet. The distance between the centerline of the three-axle grouping and the four-axle grouping was 30 feet. The distance between the first and fourth axle in the rear is about 13 feet. The distance between the steering axle and the rearmost of the three-axle group is about 21 feet. COPIES FURNISHED: David M. Maloney Assistant Attorney General Department of Legal Affairs The Capitol, Suite 1602 Tallahassee, Florida 32399-1050 Carl R. Nidiffer, President Precipitator Services Group, Inc. P.O. Box 339 Elizabethton, TN 37644 Ben Watt Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450 Thomas H. Bateman, III General Counsel Department of Transportation 562 Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450 Elyse S. Trawick, Executive Secretary Commercial Motor Vehicle Review Board Department of Transportation 605 Suwanee Street Tallahassee, Florida 32399-0450 STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION COMMERCIAL MOTOR VEHICLE REVIEW BOARD, DEPARTMENT OF TRANSPORTATION, Petitioner, vs. DOAH CASE NO. 89-4523 PRECIPITATOR SERVICES GROUP, INC., Respondent. /
Findings Of Fact Based upon the evidence presented at final hearing, the following facts are determined: Nature of Complainant's Handicap At all times material hereto, Petitioner, Charles Fenesy ("COMPLAINANT"), suffered from severe coronary heart disease (arteriosclerosis), diabetes, and excess weight. The arteriosclerosis consists of lipid deposits which obstruct and interfere with the flow of blood in all three major arteries to his heart; the diffuseness of the deposits make bypass surgery inadvisable. As a result of this disease, the COMPLAINANT began, in 1972, to experience occasional angina pectoris, which is sharp chest pain associated with activity. (Testimony of Fenesy, Hampton; P.E. 11.) The angina pectoris, however, occurred only when he was engaging in tasks involving physical activity and exertion, such as working in the yard, mowing the lawn, pulling weeds, and walking too fast; he has never experienced angina pectoris because of mental or emotional stress. During his 17 years as a computer analyst and programmer, he never experienced angina attacks in connection with his work environment; neither did his angina attacks ever interfere with his job attendance or performance or require that his work schedule be altered. Because of his heart disease, COMPLAINANT is unable to perform normal physical activity and exertion; his working activities are limited to those found in the office environment. The ability of a person inflicted with severe heart disease to capably function in a working environment is related to his temperament. The COMPLAINANT is a well-controlled, even- tempered person who has demonstrated ability to capably perform computer analyst and programmer duties and effectively cope with the stresses of an office environment. He has never experienced a heart attack. (Testimony of Fenesy; P.E. 11.) In order to control and treat his heart disease (which is incurable, without surgical bypass), and relieve angina pectoris symptoms, COMPLAINANT takes various vasodilators, including nitroglycerin and inderal; he is on a diet and takes diabinese to control his diabetes. If he suffers angina pectoris when mowing the lawn, he quickly takes the prescribed medication, the pain subsides, and he continues mowing. (Testimony of Fenesy; P.E. 11) Complainant's Application for Employment as a Program-Analyst On September 18, 1978, COMPLAINANT filed an application for employment as a program-analyst with the Respondent, GTE Data Services, Inc. ("COMPANY"). Betty Graef, Supervision of the COMPANY's CRB Source Group, had an available program-analyst position in the Customer Master File Unit; after review the COMPLAINANT's application, she concluded that he appeared to be qualified for the position and asked Nancy Fitzpatrick, the COMPANY's Personnel Representative, to arrange an employment interview. (Testimony of Fenesy, Graef, Fitzpatrick; R.E. 4.) Qualifications and Duties of the Available Program-Analyst Position. The program-analyst position which Ms. Graef had available entailed coding computer programs based on specifications prepared by a senior analyst. These programs maintained billing and address information on telephone company customers. There were approximately 22 other program-analysts in that department. The work required knowledge of assembly, also known as BAL or computer language, and typically required meeting deadlines and coping with emergency demands. Occasionally analysts were required to work long and irregular hours, due to emergencies, or in order to correct errors. The frequency of such a requirement would vary: employees who were capable and careful in their work were less likely to experience such demands. Substantial overtime work was not ordinarily required. (Testimony of Fenesy, Gradef.) During the subsequent employment interview conducted by Ms. Graef, COMPLAINANT specifically asked if the position required overtime work: she answered that, except under exceptional conditions, there would be no overtime required unless he fell behind in his work. To the extent Ms. Graef's testimony at hearing tended to describe the position as on regularly requiring excessive or extraordinary hours, it is rejected as at variance with her prior description of the position during the employment interview with COMPLAINANT, and is considered unpersuasive. (Testimony of Fenesy, Graef.) Qualification of Complainant At the time of his application, COMPLAINANT was employed by Pinellas County as an automatic mapping supervisor, at $12,000 per annum. He supervised 23 employees, and was responsible for their hiring, performance, and firing. Generally, he worked a 40-hour work week, although he occasionally worked irregular or overtime hours. During the summer of 1977, he worked 50 hours a week. (Testimony of Fenesy.) COMPLAINANT was knowledgeable and had extensive experience in the area of data processing. He had worked in that field for 17 years, and attended various technical training seminars; moreover, he had previous programming experience using BAL, the particular computer language required for the position. He also held a Bachelor of Science degree in Business Administration. By virtue of his technical knowledge and experience, COMPLAINANT was qualified to carry out the duties of the available program-analyst position in Ms. Graef's department. The only objection raised to his employment was based on his physical condition. (Testimony of Fenesy; R.E. 4.) The Company's Conditional Offers of Employment and Rejection of Complainant. On September 21, 1978, after the COMPLAINANT's employment interview with Ms. Graef and Ms. Fitzpatrick, the COMPANY offered to employ him as a program-analyst, at $16,000 per annum, conditioned upon his passing the standard pre-employment physical. After his rejection of the offer, the COMPANY made a second offer on October 6, 1978, with a salary of $18,000 per annum; this offer was also condition upon passage of the pre-employment physical. COMPLAINANT accepted this offer, and promptly gave notice to his present employer, Pinellas County, effective October 13, 1978. He was scheduled to begin work with the COMPANY on October 16, 1978. (Testimony of Fenesy, Graef, Fitzpatrick; P.E. 1,2,3) On October 10, 1978, the medical doctor ordinarily used by the COMPANY for this purpose, Edward F. Carter, M.D., gave the COMPLAINANT the standard pre- employment physical examination. On the medical questionnaire form, COMPLAINANT disclosed that he had angina pectoris, and was taking inderal for its control; and he also explained the "over exertion may cause angina pain" (R.E. 4), and gave the name of his cardiologist, John Dormois, M.D. Despite this disclosure, no diagnostic tests were administered by Dr. Carter to determine the severity of his heart disease, or the extent to which it might interfere with his performance as a program-analyst. The stated purpose of the examination, as indicated on the COMPANY form is "to determine if . . .[the applicant] meet(s) the physical standards of the position for which . . .[he is] applying." (R.E. 4.) Several days later, COMPLAINANT was notified by Ms. Fitzpatrick that he had "flunked" the physical. Dr. Carter's brief written "Physician's Report" indicated the COMPLAINANT had "angina, on medication", and "diabetes regulated and diet"; the box labeled "unemployable at this time", was checked. (Testimony of Fenesy; R.E. 4.) COMPLAINANT protested to Ms. Fitzpatrick and tried to contact the COMPANY's affirmative action officer. He also asked Dr. Dormois (his cardiologist who was familiar with the nature of his heart disease) to call Dr. Carter to discuss his condition. On October 16, 1978, Ms. Fitzpatrick told him they would try to arrange a second physical with another doctor. Due to his resignation (extended one week), the COMPLAINANT faced unemployment as of October 20, 1978, and was anxious to quickly resolve the matter. A second physical examination was thereafter scheduled for October 20, 1978, with Phillip Hampton, M.D., a practitioner of internal medicine with specialties in both diabetes and cardiology. The COMPANY's representative involved had, at that time, resolved to go along with whatever decision was made by Dr. Hampton. (Testimony of Fenesy, Fitzpatrick, Hampton). On October 20, 1978, Dr. Hampton took the COMPLAINANT's medical history, and conducted a 15-minute physical consisting of x-rays, an electrocardiogram, blood, and urine tests. COMPLAINANT explained that he had experienced angina pectoris for approximately three years, in situations of physical exertion and stress.3 Dr. Hampton was aware that COMPLAINANT was taking vasodilatory medication to alleviate angina pain, as well as diabinese to control his diabetes. The medically recognized diagnostic test to coronary diabetes. The medically recognized diagnostic test for coronary heart disease is a coronary arteriography; however, Dr. Hampton did not administer this test to COMPLAINANT. There is one objective diagnostic test to determine whether an individual suffers from angina pectoris--the stress test. It consists of placing the patient on a treadmill requiring physical exertion; the effects of exertion on blood pressure and production of pain (angina pectoris) are detected, as are changes in the patient's electrocardiogram. However, Dr. Hampton did not perform a stress test upon COMPLAINANT. (Testimony of Fenesy, Hampton.) On October 27, 1978, Dr. Hampton notified the COMPANY of the results of his examination of COMPLAINANT: "Dear Mrs. Fitzpatrick: As a result of my examination of Mr. Charles A. Fenesy on Oct. 1978, I find that he has obesity, diabetes and angina pectoris. He would be largely relieved of diabetes and angina if he would reduce his weight to under 200 lbs. which means a loss of about 70 lbs. If he does not he is not a good risk physically and in danger of a myocardial infarction." (R.E. 3.) Based on Dr. Hampton's letter, Ms. Fitzpatrick notified COMPLAINANT on October 30, 1978, that Dr. Hampton had concurred with Dr. Carter, and that he would not be hired. COMPLAINANT asked for a letter to that effect which the COMPANY never furnished. (Testimony of Fitzpatrick, Fenesy; R.E. 3.) Neither Dr. Carter nor Dr. Hampton recommended to the COMPANY that COMPLAINANT was "employable" if he took medication to control his condition. They both were aware that he was already taking such medication. (Testimony of Hampton, Fenesy; R.E. 4.) However, after COMPLAINANT warned that he would file a grievance because of his rejection, Tannia Yarborough, the COMPANY's Equal Employment Opportunity Administrator, told him that he would be considered for employment if he submitted a letter from his doctor stating that his medical problems were under control and if he would participate in a COMPANY weight reduction program; the weight reduction program requisite was later withdrawn. [The COMPANY did not have a policy to monitor the weight of its employees.] Ms. Yarborough, who was involved in the COMPANY's decisions concerning COMPLAINANT, thought angina pectoris was a cardiac disease, and not a symptom of the disease. (Tr. 213.) She also was not aware at the time of hearing that COMPLAINANT's cardiac disease was progressive--that is could be controlled but not cured. In response to Ms. Yarborough's suggestion, COMPLAINANT's cardiologist, Dr. Dormois, wrote a letter on January 18, 1979, stating that COMPLAINANT's symptoms (angina pectoris) were under control by medication, that COMPLAINANT had shown "absolutely no tendency over the last several years to have any difficulty performing his usual assigned task," and that he had "no reason to think that in the foreseeable future that this will be greatly altered." (P.E. 4.) (Testimony of Fenesy, Yarborough; P.E. 4.) Effect of Complainant's Coronary Heart Disease on His Performance as a Program-Analyst There is insufficient evidence to establish that COMPLAINANT's coronary heart disease would adversely impact or interfere with his performance as a program-analyst with the COMPANY. The two COMPANY doctors who examined him had no awareness of the particular demands of the position for which he applied; they did not even discuss with him his extensive experience in the data processing field (18 years), and whether his disease had interfered with his work in an office environment. (Testimony of Fenesy, Hampton.) The actions of the two doctors supports an inference that the COMPANY had not enunciated, in advance, the purpose of pre-employment physicals, and the standards which apply to determining the medical "employability" of a job applicant. The COMPANY accepted the simple checking of an "unemployable" box on a form by Dr. Carter, and Dr. Hampton's reinforcing conclusion that COMPLAINANT "is not a good risk physically" (R.E.3) if he does not reduce his weight; these documents form the basis of the COMPANY's rejection. Dr. Hampton's conclusions concerning COMPLAINANT's disease were admittedly based on statistical probability, not on an individual assessment of COMPLAINANT's temperament, his defense mechanisms, and his ability to perform data processing work in an office environment. In essence, they concluded that COMPLAINANT's longevity or life expectancy is not good because of the progressive nature of his disease. (Testimony of Fenesy, Hampton; P.E. 11, R.E. 3,4.) Complainant's Lost Wages and Attorney's Fees COMPLAINANT made reasonable and diligent efforts to obtain employment after his rejection by the COMPANY. For 19 weeks he was unemployed; if the COMPANY had fulfilled its offer to employ him on October 39, 1978, he would have earned $6,576.93 during that period. He eventually secured various employment positions in the data processing field, and now works again for Pinellas County. As of the date of hearing, the difference between what he earned in those positions and what he would have earned with the COMPANY (had he been hired at $18,000 per annum) is $3,379.88. (Testimony of Fenesy; P.E. 6.) COMPLAINANT claims lost of fringe benefits which he would have received if he had remained in his job with Pinellas County in 1978; alternatively, he claims loss of fringe benefits which he would have received from the COMPANY if he had been employed since October, 1978. However, the benefits accorded by the two employers, including pensions, vacation, sick leave, and insurance coverage, are markedly dissimilar. Based on the quality of the evidence submitted on this question, any conclusion concerning COMPLAINANT's actual monetary loss in fringe benefits due to the COMPANY's action would be conjecture and unreliable. (Testimony of Fenesy; P.E. 6,9.) Because of the COMPANY's rejection of his employment application, COMPLAINANT applied for and received Social Security Disability Payments from October, 1978 through March, 1979. However, since he subsequently found gainful employment in March, 1979, (i.e., he did not remain disabled for the requisite period) the Social Security Administration retroactively denied his eligibility. He may now be required to reimburse the government for the disability payment which he received. (Testimony of Fenesy; P.E. 5.) The COMPLAINANT testified that he is obligated to pay attorney's fees of $600 in connection with this proceeding. In the absence of the COMPANY contesting this amount, it is concluded that such attorney's fees are reasonable. (Testimony of Fenesy; P.E. 6.)
Conclusions Conclusions: That Respondent engaged in an unlawful employment practice by failing or refusing to hire Petitioner because of his handicap. The Respondent failed to substantiate its asserted defense--that the absence of Petitioner's particular handicap was a bona fide occupational qualification reasonably necessary for the performance of the position for which he applied. Recommendation: That the Commission prohibit the Respondent from engaging in such practice in the future, require it to pay Petitioner lost wages and attorney's fees, and offer him employment in the next available program-analyst position. Background On November 21, 1978, Petitioner, Charles Fenesy ("COMPLAINANT"), filed a complaint of discrimination with the Intervenor, Florida Commission on Human Relations ("COMMISSION"), alleging Respondent, GTE Data Services Inc. ("COMPANY"), denied him employment because of his physical handicap--heart disease. After investigation, the COMMISSION's Executive Director issued a "Determination: Cause" on October 22, 1979, concluding that there was reasonable cause to believe that the COMPANY had committed an unlawful employment practice prohibited by Section 23.167(1), Florida Statutes (1979) [formerly Section 13.261(1), Florida Statutes (1977)]. After the parties failed to conciliate, or informally resolve the dispute, COMPLAINANT filed his Petition for Relief with the COMMISSION on February 29, 1980. Thereafter, the Petition was forwarded to the Division of Administrative Hearings for assignment of a hearing officer to conduct a Section 120.57 hearing. Final hearing was then set for May 20, 1980. Subsequently, upon the COMPANY's motion, and without objection, hearing was continued and reset for July 9, 1980. Thereafter, upon COMPLAINANT's motion, and without objection, the hearing was again continued and reset for September 10, 1980. Several pleadings were filed and disposed of prior to final hearing. On April 29, 1980, the COMMISSION's Executive Director moved to intervene as a party in this proceeding, which motion was granted. By way of affirmative defense to COMPLAINANT's Petition for Relief, the COMPANY asserted, among other things, that the Petition was untimely in that the COMMISSION had failed to comply with its own rules, Section 9D-9.05(3), Florida Administrative Code. Specifically, the COMPANY asserted that the above rule requires the service of a "Notice of Failure of Conciliation" 30 days after service of the "Determination: Cause". Records show that the COMMISSION denied the COMPANY's petition for reconsideration of the "Determination: Cause" on December 5, 1979; but the Notice of Failure of Conciliation was not issued until February 21, 180. On May 12, 1980, the COMMISSION moved to dismiss the COMPANY's affirmative defense. The COMPANY responded to the COMMISSION's motions, and moved for summary judgment. By order dated June 30, 1980, the COMMISSION's motion to dismiss the COMPANY's affirmative defense was granted on the grounds that (1) Rule 9D-9.05 does not specify the time period which a Notice of Failure of Conciliation must be issued, (2) COMPLAINANT's Petition for Relief was filed within the requisite time period from the issuance of the Notice, and (3) the COMPANY's actions contributed to the delay in issuance of the Notice. Also, the COMPANY's motion for summary judgment was denied on the ground that the conduct of the parties during settlement negotiations was not germane to the issues to be decided at final hearing. On June 18, 1980, the COMPANY moved to compel COMPLAINANT to answer interrogatories, which motion was granted on July 1, 1980. At final hearing, COMPLAINANT testified in his own behalf and offered Petitioner's Exhibit1 Nos. 3 through 7, each of which was received.2 The COMMISSION presented no witnesses or documentary evidence. At the close of hearing, the parties requested and were granted the opportunity to file proposed findings of fact and conclusions of law by October 21, 1980. Proposed findings were subsequently filed; those filed by the COMMISSION and COMPLAINANT are the subject of a pending motion to strike filed by the COMPANY.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order: Finding the COMPANY engaged in an unlawful employment practice in violation of Section 23.167(1), Florida Statutes (1979), and prohibiting such practice in the future; and Providing COMPLAINANT affirmative relief from the unlawful practice by requiring the COMPANY to (a) pay him lost wages in the amount of $9, 956.81; (b) offer him the next available program-analyst position at a salary and under conditions similar to that which he would have received in October, 1978, but for the COMPANY's unlawful practice; and (c) pay him $600 for attorney's fees incurred in this case. DONE AND ENTERED this 31st day of December, 1980, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 Telephone: (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 31st day of December, 1980.
The Issue The issues concern the intention by Petitioner to levy an $836 fine for the alleged operation of a commercial vehicle on a low-limit bridge when the commercial vehicle exceeded the weight limit for that bridge. See Section 316.545, Florida Statutes.
Findings Of Fact On December 17, 1990, a commercial vehicle driven by William Roy Grayson for the carrier Massey Franklin (Massey Trucking) came into Florida from Georgia on US Highway 17. In doing so it crossed the bridge over the St. Marys River. Petitioner has jurisdiction over that bridge. Petitioner in accordance with law had limited the weight that could be placed on that bridge by a commercial vehicle. That weight restriction was 32 tons. The commercial vehicle in question was weighed shortly after entering Florida at an inspection station operated by Petitioner. It weighed 80,720 pounds. Persons such as Mr. Grayson who operate commercial vehicles coming into Florida across the subject bridge are warned of the weight limit on the bridge by posted signs using symbols from the manual on Uniform Traffic Highway Administration as the national standard in accordance with Title 23 US Code. Those silhouette symbols used to post the weight limit for the bridge show a single unit truck with the weight limit of 27 tons and a combination truck with a weight limit of 32 tons. The truck in question was a combination truck. These warning signs on the weight limit were posted in Georgia at the time in question for the south bound traffic. Respondent's truck was south bound on that date. The first sign in Georgia before you enter Florida states "weight limit restrictions ahead." The second sign provides weight limit symbols showing a combination truck with a limit of 32 tons and notes that the distance from that restriction is three miles. The third sign before arriving at Scrubby Bluff Road in Georgia has the weight limit symbol of 32 tons for a combination truck and notes that this is the last exit before being restricted in weight. A fourth sign shows weight limit symbols with 32 tons for a combination truck and an arrow describing the exit from Scrubby Bluff Road to Interstate 95. The truck in question exceeded the weight limit by 16,720 pounds and was assessed a fine .05 per pound for a total penalty of $836.
Recommendation Based upon the consideration of the facts and the conclusions of law, it is, RECOMMENDED: That a Final Order be entered which imposes a fine in the amount of $836, pursuant to Section 316.545(3)(b), Florida Statutes. DONE and ENTERED this 5th day of July, 1991, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of July, 1991. APPENDIX The proposed facts by the Petitioner are subordinate to facts found. COPIES FURNISHED: Vernon L. Whittier, Jr., Esquire Department of Transportation Haydon Burns Building, M.S.-58 605 Suwannee Street Tallahassee, FL 32399-0458 Franklin Massey Massey Trucking 101 Wind Creek Lane Enterprise, AL 36330 Ben G. Watts, Secretary Department of Transportation Haydon Burns Building, M.S.-58 605 Suwannee Street Tallahassee, FL 32399-0458
The Issue The issue is whether Respondent failed to maintain the nutritional status of two residents, as required by 42 Code of Federal Regulations Section 482.25(i), so as to justify the imposition of a conditional license rating upon Respondent's skilled nursing facility, pursuant to Section 400.23(7)(b), Florida Statutes, and an administrative fine of $2500, pursuant to Section 400.23(1)(b), Florida Statutes.
Findings Of Fact At all material times, Respondent has owned and operated a skilled nursing facility located at 7300 Del Prado South in Boca Raton. On August 2, 2001, Petitioner completed a survey of the facility. The surveyors cited Respondent for Tag 325, which they classified as a class II (state) or Level G (federal) deficiency. Tag 325 concerns two residents: Resident #9 and Resident #18. The following four paragraphs restate the stipulation into which the parties entered at the hearing. Resident #9 was admitted to the facility on May 22, 2000, with the following diagnoses: stroke, pneumonia, stage III pressure sore at the coccyx, hypothyroidism, urosepsis diabetes, tracheotomy, respiratory dependency on a ventilator, and nutritional dependency on a percutaneous endoscopic gastronomy (PEG) feeding tube. At all times, Resident #9 was wholly dependent on internal feeding for 100 percent of his nutritional needs. At the time of the survey, Resident #9 required Glucerna at one-half strength at the rate of 60 cc hourly plus a supplemental protein powder. At the time of the survey, the coccyx of Resident #9 had a stage III wound, measuring 0.16 inches by 0.08 inches by 0.08 inches. A dietary note states that the amount of feeding for Resident #9 was below his estimated needs. However, the management of Resident #9's feeding was problematic due to his gastrointestinal problems. Resident #18 was admitted to the facility with the following diagnoses: pneumonia, dehydration, fever, atrial fibrillation, and nutritional dependence on PEG tube feeding. A dietary assessment dated July 17, 2001, did not address Resident #18's alleged seven-pound weight loss. Nothing in the clinical records for Resident #18 indicates that the alleged seven-pound weight loss was planned. Resident #18 was admitted to the facility on January 19, 2001 at 78 years of age. At that time, Respondent's staff completed a Nutrition Risk Assessment. The Nutrition Risk Assessment determined that Resident #18's desirable weight range was 128-156 pounds. At admission, Resident #18 weighed 121.5 pounds. According to Respondent's weight log for Resident #18, he weighed the following on the indicated dates in 2001: January 24--121 pounds; January 30--122.2 pounds; February 7--121 pounds; February 14--123 pounds; February 21--119 pounds; February 28--119.4 pounds; March 4--119 pounds; April 4--120 pounds; April 11--122 pounds; May 4--128 pounds; June 6--129 pounds; and July 4--122 pounds. Resident #18's weight decreased by 5.4 percent from June 6, 2001, to July 4, 2001. However, the record does not suggest that this weight loss evidenced any nutritional problems. To the contrary, for 2001, Resident #18's normal weight approximated 122 pounds. As noted in the guidelines to 42 Code of Federal Regulation Section 483.25(i), the desirable weight range stated for Resident #18 is approximate because "ideal body weight charts have not been validated for the institutionalized elderly." Thus, the guidelines warn that "weight loss (or gain) is a guide in determining nutritional status. An analysis of weight loss or gain should be examined in light of the individual's former life style as well as current diagnosis." The guidelines offer "[s]uggested parameters for evaluating significance of unplanned and undesired weight loss": five percent over one month is "significant loss" and over five percent over one month is "severe loss." Over a five-month period, Resident #18 gained one pound. Petitioner implicitly places considerable emphasis upon the 128-pound minimum desirable weight range for Resident #18, even though the guidelines suggest caution in establishing ideal weights for the institutionalized elderly. Reliance upon this minimum desirable weight allows Petitioner to ascribe significance to the loss between June 6 and July 4 of the weight gained between April 11 and May 4. However, the record fails to suggest that Resident #18 suffered any nutritional problems for the first two and one-half months of his residency at the facility, when he consistently weighed 119-122 pounds. The record likewise fails to suggest that Resident #18's gain and loss of seven pounds over a three- month period was indicative of any nutritional problems. This short-term change in Resident #18's weight appears either to have been a harmless anomaly or, as Respondent suggests, a measurement error. Evidence supportive of a measurement error is found by comparison of the weight log entry for May 4, which marked the first time Resident #18 weighed as much as 128 pounds, with the Dietary Enteral Assessment for May 2, which showed that Resident #18 weighed only 123.6 pounds two days earlier. Although the latter source documented a weight of 129 pounds on June 6, which corresponds exactly with the data from the weight log, the unlikelihood that Resident #18 gained 4.4 pounds over two days suggests measurement error, such as by using different scales. Resident #9 presents a more complicated case. She was 69 years of age at the time of admission, but suffered from complex medical problems, including serious gastrointestinal difficulties that interfered with her nutrition. At admission, Resident #9, a quadriplegic, was five feet, four inches, tall and weighed 185.4 pounds, according to her Nutrition Risk Assessment, or 191.5 pounds, according to her weight log. According to her Nutrition Risk Assessment, Resident #9's desirable weight range was from 108-132 pounds. Notwithstanding any uncertainty concerning the ideal body weights for the institutionalized elderly, Resident #9 was obese and remained so during the period at issue. Resident #9's Nutrition Risk Assessment deletes the portion of the printed form stating that Resident #9 would suffer "moderate risk" to her nutritional status if she were to lose less than 5 percent of total body weight within one month, less than 7.5 percent of total body weight within 90 days, or less than 10 percent of total body weight within six months. An updated Nutrition Risk Assessment dated June 1, 2000, notes that Resident #9 had gained six pounds, but does not delete the "moderate risk" parameters concerning rates of weight loss. Resident #9 experienced several significant weight losses while a resident at the facility. According to her weight logs, Resident #9 weighed 206-208 pounds from June 7 through August 9, 2000. On August 20, 2000, she weighed 217 pounds, and she gained two more pounds through September 13, 2000. Between September 13 and 27, Resident #9 lost 13 pounds. From September 27 to October 5, Resident #9 regained four pounds to 210 pounds. She weighed within four pounds of 210 through October 25, at which time she weighed 207.4 pounds. Petitioner contends that the first significant weight loss was from 214 pounds on October 18, 2000, to 191.0 pounds on November 14 and 15, 2000, which is a loss of ten percent of body weight within one month. It is also a loss of ten percent of body weight within three months, and the loss of merely one-half pound within six months. Although no one would opine that Resident #9 were healthier at 200+ pounds than at 191 pounds and her weight, over six months, did not change, Respondent must maintain Resident #9's nutrition at all times within the six months in question. However, the improved health at a lower weight and absence of change from admission weight are factors that must inform the determination whether Respondent maintained Resident #9's nutritional status. Petitioner contends that the next two significant weight losses occurred in December 2000 and January 2001. According to the weight log, Resident #9 weighed 184 pounds on December 6, 187 pounds on December 15, 185.4 pounds on December 20, and 186 pounds on December 28. Resident #9 thus lost seven percent of her body weight between November 8 and December 6. Resident #9 continued to lose weight in January 2001. She weighed 181.8 pounds on January 3, 175 pounds on January 10, 178 pounds on January 17, 177.6 pounds on January 24, and 176 pounds on January 30. Between the end of December and end of January, Resident #9 lost 5.4 percent of her body weight. Between December 15 and January 10, she lost 6.4 percent of her body weight. For the three months ending at the end of January, Resident #9 lost 15.1 percent of her body weight, and for the six months ending at the end of January, Resident #9 lost 15.4 percent of her body weight. On February 14, Resident #9 weighed 171.8 pounds, and on March 28 she weighed 172.4 pounds; in between, she weighed more, but never over 179 pounds. On April 4, Resident #9 weighed 167 pounds, but on April 18 and 25, she weighed, respectively, 173 and 174 pounds. Petitioner contends that the next significant weight loss was in April 2000 when she lost 6.2 percent of her body weight between March 7 and April 4. From May 2 through June 13, Resident #9 weighed from 174-178 pounds. On July 3 and July 18, she weighed 167.4 pounds and 165 pounds, respectively, but, on July 11, she weighed only 137.6 pounds. The sudden loss of 30 pounds over eight days followed by the gain of 28 pounds over the next seven days-- given a significant history of much more modest weight changes-- suggests again measurement error. This time, Petitioner seems to concede the point as in its proposed recommended order it contends only that Resident #9 suffered a six percent weight loss in July, which is the weight loss from June 6 to July 3. Despite her obesity, none of Resident #9's weight loss was planned. Among her many gastrointestinal conditions was gastroparesis, which is the impaired ability of the stomach to transport food as part of the normal digestive process, and paralytic ileus, which is the impaired ability of the intestinal tract to transport food as part of the normal digestive process. These serious digestive disorders, as exacerbated by the effect of Resident #9's diabetes on her digestive capabilities, contributed to vomiting, constipation, diarrhea, and, on at least one occasion, the aspiration of feces, which necessitated the suctioning of feces from Resident #9's mouth. At all times, Respondent's staff also had to manage the abdominal distention caused by these digestive disorders so that Resident #9's ventilator-dependent respiration was not compromised; sometimes, maintaining respiratory function required the reduction of nutrition. At other times, Resident #9's veins, already weakened by various diseases, precluded intravenous feeding. In December 2000, Resident #9 suffered a cardiac event; Resident #9's husband, who held a health-care power of attorney for his incapacitated wife, declined the suggestion of outside health care providers that Resident #9 be admitted to a hospital. Respondent's staff tried dozens of interventions, including different nutritional formulas and feeding regimes, to deal with the ever-changing digestive problems that Resident #9 presented. Unable to tolerate bolus feedings, Resident #9 received small frequent feedings, which were easier for her to digest. Unable to tolerate the prescribed caloric intake, staff reduced nutritional levels to the maximum that Resident #9 could tolerate. When Resident #9 became unable to tolerate an intravenous port, staff decided to resort to a PIC line, which penetrates less deeply into the vasculature. However, Resident #9's poor vascular condition and her husband's ongoing preference to avoid more invasive treatment options limited the utility of this option. A registered nurse practitioner working under the supervision of Resident #9's treating physician saw Resident #9 at least as often as every one to two weeks from September 2000 through the August 2001 survey. At times, under the nurse's supervision, the only relief available for Resident #9's intractable gastrointestinal problems was to allow the gut to rest by reducing foods and fluids. The nurse and physician also addressed Resident #9's hypothyroidism, which contributed to a sluggishness. Thus, while managing direct gastrointestinal problems, they were also trying to convert Resident #9 to a new, more active thyroid state--a process that explains some of the weight loss. Overall, Resident #9's weight loss, though unplanned, was not unexpected. Her health care providers properly accepted the weight loss as a secondary, unavoidable issue, as they struggled to reestablish crucial cardiopulmonary, gastrointestinal, and endocrinal functions. Respondent's staff and outside health care providers always monitored all reductions in nutritional levels, as they pursued other, more crucial treatments. Her new weight range ultimately contributed to her health. Petitioner has failed to prove by a preponderance of the evidence that Respondent at anytime failed to maintain acceptable levels of nutritional status for Resident #9 or Resident #18.
Recommendation It is RECOMMENDED that the Agency for Health Care Administration enter a final order dismissing the Administrative Complaint in DOAH Case No. 01-4331 and the Administrative Complaint in DOAH Case No. 02-0674. DONE AND ENTERED this 3rd day of July, 2002, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 3rd day of July, 2002. COPIES FURNISHED: William Roberts, Acting General Counsel Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3431 Tallahassee, Florida 32308 Virginia A. Daire, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3431 Tallahassee, Florida 32308 Nelson E. Rodney Assistant General Counsel Agency for Health Care Administration 8355 Northwest 53rd Street, First Floor Miami, Florida 33166 Karen L. Goldsmith Alex Finch Goldsmith, Grout & Lewis, P.A. Post Office Box 2011 Winter Park, Florida 32790
The Issue Whether a commercial motor vehicle owned by Respondent exceeded the posted weight when it crossed a "low limit" bridge in rural Brevard County, Florida on June 3, 1992, in violation of Section 316.545, Florida Statutes. Whether extenuating circumstances justifies the reduction or elimination of the proposed penalty for the alleged violation.
Findings Of Fact The Florida Department of Transportation (DOT) is the state agency charged with the duty to administer and enforce the provisions of Chapter 316, Florida Statutes, which regulates the weight and load of commercial motor vehicles on the state highway system. State Road 520, in Brevard County, Florida, is a part of the state highway system, and title to the right-of-way for said highway is held in the name of the State. A bridge which crosses over the St. Johns River on State Road 520 (SR520) in Brevard County, Florida, had a weight limit of 80,000 pounds for motor vehicles until October 20, 1991. On that date, the maximum weight for vehicles was reduced to a limit of 56,000 pounds. On May 26, 1992, the weight limit was again reduced, and the Department posted a new weight limit for the bridge of 30,000 pounds. On June 3, 1992, a commercial motor vehicle owned by Respondent was traveling northbound on Interstate 95 (I-95). The vehicle exited I-95, proceeded westbound on SR 520, and crossed the bridge. After the vehicle crossed the bridge, it was stopped by a Department Transportation Officer, and taken to a nearby pit scale. The weight of the vehicle was accurately determined to be 56,140 ponds. The Transportation Officer then imposed a fine of $1,307.00 on the vehicle, based on 5 cents per pound above the posted weight limit of 30,000 pounds. The penalty was paid by M & M Truck Service, and the vehicle was permitted to proceed. M & M Truck Service sought a refund of the penalty from the Commercial Motor Carrier Review Board. The Board authorized a 50 percent refund under its policy providing for a 50 percent refund when vehicles exceed a posted weight limit within 30 days of the date of a posted weight reduction. The following standard weight limit signs, each showing a 30,000 pound weight limit, had been posted by the Department on SR 520, from I-95 to SR 528, on May 26, 1992: Facing Eastbound on SR 520 (in Brevard County): Just east of I-95: "Weight Limit Last Exit" Just west of I-95: "Weight Limit" (no distance to bridge stated) 2 miles east of the bridge and just east of SR 524: "Weight Limit 2 Miles" Just east of the bride: "Weight Limit" Facing Westbound on SR 520 (in Orange County): Just west of SR 528: "Weight Limit 9 Miles" 4.2 miles west of bridge: "Weight Limit Restriction Ahead" (no distance to bridge state) 4 miles west of bridge: "Weight Limit 4 Miles" Just west of SR 532: "Weight Limit Last Exit" 2 miles west of the bridge: "Weight Limit 2 Miles" Just west of the bridge on the St. Johns River: "Weight Limit" The above signs meet current MUTCD standards. MUTCD refers to the Federal Highway Administration Manual on Uniform Traffic Control Devices, 1988 Edition, which has been incorporated by reference into Florida Administrative Code Rule 14-15.010. SR 520 was under construction at the time the vehicle crossed the bridge, and the driver did not observe the signs posted by the Department.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered finding that a penalty correctly assessed to M & M Truck Service, Inc., under the provisions of Section 316.545, Florida Statutes, and that no refund of the reduced penalty of $653.00 should be made. DONE and ENTERED this 8th day of June, 1993, 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 8th day of June, 1993. APPENDIX Petitioner's proposed findings of fact: Accepted in substance by stipulation. Respondent's proposed findings of fact: Consisted of argument directed to the stipulated facts and need not be specifically ruled upon. COPIES FURNISHED: Paul Sexton, Esquire Assistant General Counsel Department of Transportation 605 Suwannee Street Tallahassee, Florida 32399-0450 Gary E. Moses, President M & M Truck Service, Inc. 313 Shadow Oak Drive Casselberry, Florida 32707 Ben G. Watts, Secretary Attn: Michelle Arsenault #58 Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0458 Thornton J. Williams General Counsel Department of Transportation 562 Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0458
The Issue The only factual issue in this case is whether the Superior Paving triple axle dump truck being driven by Norman Jones on February 13, 1990, on U.S. 41 in the vicinity of the Gardinier plant near Gibsonton, south of Tampa, Florida, was being operated with its air axle up, resulting in its being over the maximum weight for its remaining tandem rear axle under Section 316.535, Florida Statutes (1989). However, this straightforward factual case also raises several legal and procedural questions, including: (1) whether the Division of Administrative Hearings has jurisdiction; (2) which agency is authorized to take final agency action in the case; (3) who are the actual parties in interest; (4) whether the parties have standing; and (5) which party bears the burden of proof.
Findings Of Fact On February 13, 1990, while traveling south on U.S. 41 in the vicinity of the Gardinier plant near Gibsonton, south of Tampa, Florida, Patty Fagan, a DOT Motor Carrier Compliance Officer, observed a Superior Paving, Inc., dump truck traveling north on U.S. 41 with a full load of rock. She decided to check the load and, as she began to slow, she saw a second Superior Paving dump truck, also heading north with a full load of rock. She testified that the second truck was riding with its air axle up, leaving only two tandem rear axles, along with the steering axle, to bear the weight of the load. Fagan continued a short distance to the south on U.S. 41 until she was able to turn around and pursue the trucks to the north. She passed the second truck between one and two miles from where she turned around and testified that the second truck still was traveling with its air axle up. Fagan pulled up behind the first truck where it had stopped in the left turn lane at the entrance of the Gardinier plant. She got out to check the first truck. Meanwhile, the second truck, driven by Norman B. Jones, pulled up behind Fagan's vehicle. According to Fagan, Jones' truck still had the air axle up. According to Jones, the air axle was down at all times that he was within sight of Fagan until he pulled into the left turn lane behind Fagan's car and, while she was talking to the driver of the first truck, raised the air axle in preparation for the left turn. It would be difficult for anyone, much less an experienced compliance officer like Fagan, to mistakenly think she saw Jones' truck riding with the air axle up. It is obvious and easy to see whether the air axle is up or down. Likewise, it was easy for Jones to determine whether the air axle was up or down. There is a switch and an air pressure gauge immediately to the right of the driver seat which registers 40 pounds of pressure when the air axle is down and zero when it is up. The factual issue resolves to a question of the relative credibility of Fagan and Jones. Fagan wrote in her report of the incident that Jones first admitted that he had been driving with his air axle up because it was malfunctioning. The report states that Jones told her the problem was noticed when he picked up his first load in Brooksville and that he planned to have the problem fixed after his third load. She wrote that she told him he should have had it fixed before he left the yard with the first load. In fact, Jones only carried two loads that day, as usual, and never planned to carry three loads. He picked up both loads in Center Hill, Florida, about 60 miles northeast of Brooksville, and drove to Gardinier via I-75, also to the east of Brooksville, never going anywhere near Brooksville. Jones denied having made the statements the report attributes to him and stated that he had no reason to mention Brooksville or an alleged third load in the course of his conversation with Fagan. Fagan also wrote in her report that Jones changed his story later in the conversation and claimed that the air axle worked but was slow. Fagan said her response was that the air axle should have been down by the time she passed him for the second time, after she had turned around to head north on U.S. 41. Jones also denied that he ever said the air axle was slow. He testified that the air pressure system was worked on just two weeks before the incident and that it was in perfect operating condition. Neither party adduced any documentary evidence or testimony of third persons to establish whether air pressure system repairs were done on the truck or, if so, when they were done or what the problem was. Jones testified that his last load out Brooksville was "about six months ago." It is not clear whether he meant six months before the incident or six months before the hearing, which would have put it about the time of the incident, and also about the time work was done on the air pressure system. The evidence suggests the possibility that an air pressure problem arose while Jones was carrying a load out of Brooksville and that he had mentioned this to Fagan. In response to questioning by counsel for the DOT, Jones first stated that it is common to have problems with the air axle and that he has had trouble with the air axle on the same truck he was driving on February 13, 1990. In his next breath, he stated that he has had no trouble with the air axle on the truck but said he did have the governor on the air pressure system replaced "about a year and a half ago." (Again, his testimony was not clear whether he meant a year and a half before the incident or before the hearing.) He also again admitted that about two weeks before the incident, the air pressure lines and valves were replaced, and the air axle line was reattached to the new valve. According to Fagan, after checking the first truck, she went back to Jones' truck, asked Jones for his load ticket and, while he was looking for it in the cab, did a routine check by feeling the tires on the air axle and on the front tandem axle on the driver side. She testified that the tire on the air axle was cooler. Jones denies that Fagan ever touched or even got close to the tandem axle. Jones testified that he standing on the step to the cab when Fagan walked up and asked to see the his load ticket and that he just reached in, grabbed it off the dashboard and handed it to her. He testified that he then stepped to the ground and stood between Fagan and the rear axles and that she never walked past him. Later in testimony, Fagan testified that she might have asked Jones for the vehicle registration so that she could check the registered gross weight of the vehicle, and that Jones was looking for it in the cab while she was touching the vehicle tires. But Jones countered that Fagan did not ask for the vehicle registration until later, when they were at the weigh station to which Fagan had Jones drive. Jones testified that the air axle was down all the way from Center Hill except for just two times on each load when he raised it for purposes of negotiating tight turns, as permitted by the DOT's nonrule policy designed to reduce road and truck wear and tear: once when he turned onto U.S. 41; and a second time after he entered the left turn lane at the entrance of the Gardinier plant and stopped behind Fagan's car, while Fagan was talking to the driver of the first truck. However, Jones' description of his route from Center Hill to Gardinier included several other turns that would seem to have been just as tight as the two he says were the only times he raised his air axle. As Jones pointed out, if the rest of his testimony is true, even if the air axle was up the entire time from when he turned onto U.S 41 until he was stopped at the entrance to the Gardinier plant, the air axle tires still would have been hot to the touch. Conversely, if Fagan's testimony that the air axle tire was cool to the touch is true, then the air axle probably was up for most, if not all, of the trip from Center Hill. No statement was taken, or testimony elicited, from the driver of the other company truck to shed light on this factual dispute. Despite the difficulties presented by the evidence in this case, it is found that the DOT has proven by a preponderance of the evidence that Jones was operating the company truck he was driving on February 13, 1990, with the air axle up at least for a mile or two along U.S. 41. After their conversation in the left turn lane at the Gardinier plant entrance, Fagan required Jones to drive to a weigh station. (It angered Jones that this weigh station was five miles out of Jones' way. Jones did not understand why the truck could not have been weighed at the Gardinier plant.) The scale showed that 52,540 pounds of weight was being supported by the rear tandem axles of the truck. After weighing the truck, Fagan issued a citation and $387 fine to Superior Paving, Inc. The company paid the fine and deducted it from Jones' salary. The company never challenged the fine, and there is no evidence in the record that the company authorized Jones to challenge it on the company's behalf. Jones reqested that the Commercial Motor Vehicle Review Board drop or the fine reduce, which it declined to do.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Commercial Motor Vehicle Review Board enter a final order upholding the $387 fine it assessed against Superior Paving, Inc., in this case. RECOMMENDED this 24th day of September, 1990, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of September, 1990.
