The Issue Whether Petitioner has just cause to terminate Respondent from employment as a bus driver, a non-instructional position.
Findings Of Fact Background The School Board is the duly authorized entity responsible for the operation, control, and supervision of all public schools (grades kindergarten through 12) in Hernando County, Florida, and for otherwise providing public education to school-aged children in the county. § 4(b), Art. IX, Fla. Const. At all times material to this proceeding, Respondent was employed by Petitioner as a bus driver, a position she held for approximately 16 years. Bus drivers are considered educational support or non-instructional employees. The School Board has adopted a Safe Driver Plan that applies to all bus drivers. All bus drivers receive a copy of the Safe Driver Plan annually, and are required to sign the Safe Driver Acknowledgement Form indicating that he/she has reviewed and understands the plan. The Safe Driver Plan specifically provides guidelines for assignment of points based on alleged driving-related incidents and maximum number of points that may be assigned for each violation. A recommendation for disciplinary action is based on the number of points assigned during a 12-month time period. Under the Safe Driver Plan, the recommendation for disciplinary action for the designated points within a 12-month period is as follows: 1-4 points, a documented warning; 5- 6 points, a one-day suspension without pay; 7-9 points, three days’ suspension without pay; and 10 points, recommendation for termination. Pursuant to the Safe Driver Plan, the Review Board “assesses points for any violation or incident/crash from 0 through 10 following the approved point system outlined in the plan.” Specifically, the Review Board, made up of five members, as designated by the Safe Driver Plan, is responsible for reviewing driver incidents, determining whether the incidents were preventable or unpreventable, listening to any evidence provided by the driver regarding the incidents, and assessing points pursuant to the Safe Driver Plan. The Review Board does not have discretion regarding the recommendation made to the driver’s site administrator. Regarding assignment of points, the Safe Driver Plan provides in relevant part: If court action is required to determine fault in an incident/crash, and the assignment of points would be five (5) points or less, the driver shall not be assigned points until court action is taken. Effective date of points assigned shall be the date of the violation. * * * If a driver is assigned points, he/she will be informed of the assignment of points by the Safe Driver Review Board in writing. The driver may then accept the point assignment or he/she may appeal the assignment of points to the Coordinator of Safety and Security. When points are assessed by the Review Board, the driver who is the recipient of the points has an opportunity to appeal the decision. The Safe Driver Plan includes an appeal process which provides, in relevant part, the following: The driver must inform his/her supervisor in writing of their decision to appeal within five working days of notification of assigned points. The request shall state the driver’s objections to the assignment of points in detail. The supervisor shall then forward the request for appeal to the Coordinator of Safety and Security. A driver who chooses to appeal the assignment of points will be given a copy of all accident information for their review by the investigator prior to the date of the meeting. This will give the driver the opportunity to review all information that will be presented at the hearing and prepare for the hearing in order to rebut any of the information that will be presented. It will also give the driver the opportunity to present testimony and information to the Coordinator of Safety and Security or to offer an explanation of mitigating circumstances prior to points being upheld. After the Safe Driver Review Board’s final recommendation of administrative action is made and any driver’s appeal is heard, all disciplinary action taken by the driver’s supervisor must follow the School Board approved disciplinary policy. For purposes of this matter, the driver appeals the assignment of points to William Hall, the manager of fire, safety, and security. Mr. Hall testified that he reviews all of the information submitted by the driver, and if there is additional evidence or mitigating circumstances that were not before the Review Board, he would meet with the driver for a hearing. If there is no new evidence or mitigating circumstances, Mr. Hall then unilaterally determines the appeal based on the documents. After a driver has exhausted the appeal process, a driver, who is facing a potential suspension or termination based on the accumulation of points, may appeal the coordinator’s decision by using the School Board’s approved complaint process. For purposes of this matter, that appeal goes to the supervisor of professional standards, Matthew Goldrick, who serves as the designee for the superintendent and handles the driver’s predetermination meetings. At the predetermination hearing, the driver is given an opportunity to present any information that she wants prior to any decision being made for a suspension or termination. The superintendent then decides whether to proceed with a recommendation for discipline. The School Board has adopted policy 6.37, which establishes standards for the separation, discipline, and discharge of non-instructional employees, including Respondent. Paragraph (5)(d) recognizes three categories of offenses and a guide for recommended penalties. Relevant to this proceeding are the offenses and recommended penalties for Group III. The penalty for Group III offenses carry a recommended penalty of "up to discharge" for the first violation. The School Board has charged Respondent with violating the Safe Driver Plan by accumulating 10 points within a 12-month period, which results in a recommendation of termination. Respondent was also charged with a violation of a Group III offense, namely accumulating disciplinary actions, no one of which standing alone would warrant discharge. The accumulation of points resulted from four driving violations, which are discussed further below. Driving Violations On Tuesday, December 8, 2015, Respondent was issued a traffic citation for careless driving while operating her bus. Respondent did not immediately report the citation as required by the Safe Driver Plan. On January 6, 2016, the Review Board reviewed Respondent’s December 8, 2015, incident. The Review Board assessed Respondent with a violation for “[f]ailure to report an incident/crash or citation, no matter how minor, while operating a School Board vehicle immediately during regular working hours and as soon as reasonably possible after working hours,” a Category 3 violation. The Review Board determined the incident was preventable and assigned Respondent 10 points. Respondent appealed the Review Board’s assignment of 10 points for the December 8, 2015, incident. On January 21, 2016, a Safe Driver Appeals Meeting was held before Mr. Hall. As a result of the appeal, Respondent’s assigned points were reduced to four points. On April 25, 2016, Respondent was involved in an accident while operating her bus. The Review Board met and assigned Respondent the maximum of two points for improper backing, a Category 25 violation of the Safe Driver Plan. The assessment brought Respondent up to six points in a 12-month period. Respondent did not appeal this assessment of points. On May 23, 2016, Respondent was issued a citation for running a red traffic light signal. On September 14, 2016, the Review Board reviewed Respondent’s alleged violation from May 23, 2016, at which time the Review Board listened to Respondent’s evidence and reviewed the available video. The Review Board determined that the video reflected that Respondent failed to obey the red light traffic signal, a Category 13 violation of the Safe Driver Plan. While such a violation could result in a maximum of four points under the Safe Driver Plan, the Review Board assigned Respondent two points for the violation. The Review Board’s assignment of points placed Respondent at an accumulated eight points for the past 12-months. Mr. Handzus and Mr. Goldrick credibly testified that court action was not necessary to determine fault because the video clearly depicted Respondent failing to obey the red light. On September 14, 2016, Respondent wrote a letter to Mr. Hall seeking to appeal the assessment of two points for failure to obey the red light traffic signal. In the appeal letter, Respondent indicated her objection to the assessment in detail by stating that she ran the red light, because she “had almost no choice but to go through it.” Mr. Hall denied her request for an appeal.1/ Respondent was brought in for a predetermination hearing as part of the disciplinary process because her eight points in a 12-month period would result in a three-day suspension. After the predetermination hearing, and listening to Respondent’s arguments, the recommendation was made to suspend Respondent for three days without pay. Respondent did not appeal the disciplinary action resulting in the three-day suspension.2/ On October 26, 2016, after having been reinstated from her suspension, Respondent was involved in an incident on Deer Run Road where she backed her school bus into a mailbox. On November 7, 2016, the Review Board assigned Respondent the maximum two points for improper backing, a Category 25 violation of the Safe Driver Plan. This was Respondent’s second violation for improper backing. On November 7, 2016, Respondent timely sent a letter to Mr. Hall timely requesting an appeal of the assessment of two points for the October 26, 2016, incident. In the letter, Respondent explained in detail her objection to the assessment of the points by stating that on “[t]he morning of 10/26/2016 at 5:30am . . . I hit a mailbox” and that “[w]hile backing up [she] hit the mailbox.” Mr. Hall reviewed the appeal letter and denied the request for appeal. Mr. Hall testified that he denied the request for appeal because there was no information in the letter that would mitigate Respondent’s conduct and there was an admission regarding the violation. However, Mr. Hall’s actions were a direct contradiction to the appeal process as expressly written in the Safe Driver Plan. The Safe Driver Plan does not provide Mr. Hall the authority to unilaterally deny a driver’s “request for an appeal” or exercise discretion in granting or denying an appeal. Ms. Rodgers was entitled to an appeal so long as she made that request in writing within five days of notification of the assigned points. Respondent complied with that requirement. The appeal process also provides that Respondent would be entitled to a copy of all information for review prior to the date of the meeting to prepare for hearing and given an opportunity to present testimony and mitigation before the points are upheld. Mr. Hall testified that he considered the comments in Respondent’s letter as mitigation. However, under the Safe Driver Plan appeal process, mitigating evidence would be offered at the hearing, not in the notice of appeal letter. Further, the driver checklist in items 7 through 9 restates the procedure as outlined in the appeal process. Simply put, the appeal request letter is only required to include details regarding any objection, nothing more. Mr. Hall did not properly comply with the appeal process in the Safe Driver Plan as written. Pursuant to the Safe Driver Plan, “[c]hanges to the plan may not be implemented without Board approval.” There was no evidence offered at hearing that the written Safe Driver Plan had been changed. Mr. Hall improperly denied Respondent’s request for an appeal and, thus, improperly upheld the Review Board’s decision to assess the two points for the October 26, 2016, violation. Based on the alleged accumulation of 10 points within a 12-month period, Respondent appeared for a predetermination meeting regarding the recommendation for termination of employment. At the predetermination meeting, Respondent was provided the opportunity to offer any mitigating circumstances to the recommendation for termination. The recommendation for termination included the assessment of the two points for the October 26, 2016, incident. Mr. Goldrick considered Respondent’s arguments and determined that there were no mitigating circumstances that would warrant discipline short of termination. The record does not include evidence regarding the mitigation considered by Mr. Goldrick. Following the predetermination meeting, on January 3, 2017, the School District’s superintendent notified Respondent by letter of the recommendation to terminate Respondent’s employment for misconduct. Respondent timely disputed the allegations in the Notice and requested a hearing to appeal the recommendation of termination. By letter dated January 20, 2017, Respondent was notified that the recommendation to the School Board would be modified to one of suspension without pay, effective January 25, 2017, and referral of her appeal to the Division of Administrative Hearings. At the January 24, 2017, meeting of the School Board, the School Board authorized that this case be referred to the Division of Administrative Hearings, whereupon this case ensued. The evidence at hearing demonstrates that Mr. Hall improperly denied Respondent’s request for an appeal of the October 26, 2016, violation. However, given the procedural posture of this case the undersigned has considered whether the Review Board appropriately assigned the two points for the October 26, 2016, incident. The undersigned finds evidence of mitigation in the record. The record demonstrates that on October 26, 2016, Respondent had been driving a new, unfamiliar route for approximately two days before the incident. Respondent stated in her request for appeal letter that it was “pitch-black outside” and her ability to turn was impeded by an oncoming vehicle using its high beam lights. After considering the above mitigating factors, the undersigned finds that the evidence in the record does not warrant a deviation from the Review Board’s assignment of the standard two points for the October 26, 2016, improper backing violation. The evidence supports that the assignment of two points against Respondent for the October 26, 2016, incident was appropriate. The mitigation did not warrant reduction of the points assessed. As a result, the record correctly demonstrates that Respondent accumulated 10 points. Petitioner demonstrated by a preponderance of evidence that there is just cause to terminate Respondent’s employment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Hernando County School Board, enter a final order terminating the employment of Mildred Rodgers as a bus driver. DONE AND ENTERED this 30th day of November, 2017, in Tallahassee, Leon County, Florida. S YOLONDA Y. GREEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of November, 2017.
The Issue The issue to be determined in this case is whether the Department of Highway Safety and Motor Vehicles (“Petitioner”) may properly terminate its contract with Perotte Driving and Traffic School, Inc. (“Respondent”), on the basis of failure to comply with the provisions of the contract, pursuant to section 322.56(3)(f), Florida Statutes.
Findings Of Fact Petitioner is the State agency authorized to enter into contracts with driving schools to administer driving and skills portions of examinations for driver licenses, pursuant to section 322.56. Petitioner regulates third-party administrators for compliance with contract provisions in furtherance of Petitioner’s mission to ensure safe roads in the State of Florida. Section 322.56 authorizes Petitioner to contract with private sector entities to conduct services in the same manner Petitioner conducts services at both its driver license offices and tax collector offices. Respondent is a third-party administrator under contract with Petitioner to conduct Class E Knowledge Examinations for State of Florida driver licenses. Ms. Dume is employed as a Regulatory Program Specialist for Petitioner. Her duties include visiting third-party administrators and monitoring their activities to ensure that they are abiding by the terms of their contracts with Petitioner. Assistance by Misrepresentation On October 8, 2020, Ms. Dume was present at Respondent’s school conducting an on-site inspection. She left at 5:45 p.m., having been informed by Mr. Perotte that the school closed at 6:00 p.m. Ms. Dume returned to continue her inspection on October 9, 2020, arriving at 10:20 a.m. She monitored the school from the parking lot before entering at 11:20 a.m. Then, Ms. Dume observed Mr. Perotte entering information into his computer showing that a student had completed the four-hour Traffic Law Substance Abuse Education course (“TLSAE”). The TLSAE is a requirement to earn a Florida driver license. The course must be taken in one consecutive four-hour period. Ms. Dume obtained the certificate for TLSAE course completion for the student, which reflected a completion date of October 9, 2020. However, based on Ms. Dume’s credible testimony, it would have been impossible for the student to have completed the four-hour TLSAE course on the date that Mr. Perotte entered into the computer because Ms. Dume was present up until 15 minutes prior to the school closing and did not observe the student taking the course. Mr. Perotte’s claim that the student took the course after Ms. Dume left was not credible. His credibility was further diminished by his inconsistent and illogical testimony that he entered the erroneous date of course completion by mistake. Although it was established that the same student did complete the TLSAE in 2013, that fact is immaterial to Mr. Perotte’s clear misrepresentation of the course completion date. Ensuring Only Applicants Allowed in Examination Area During Ms. Dume’s on-site inspection on October 8, 2020, she observed an applicant inside the testing room taking the knowledge exam with an instructor also inside the testing room. The instructor explained to Ms. Dume that she was inside the testing room to have the applicant sign paperwork, but Ms. Dume believed that the reason was pretextual based on her observations. On October 14, 2020, during another on-site inspection of Respondent, Ms. Dume observed Mr. Perotte inside the testing room standing over a customer who was sitting down taking the knowledge exam. Mr. Perotte testified that he was inside the testing room while a test was in progress to fix a technical issue with the computer. He also testified, however, that in the event of a technical issue, he would ask the examinee to exit the testing room while a staff member addressed the issue. Mr. Perotte’s testimony was unconvincing and inconsistent. Allowing the Department to Conduct Random Inspections Ms. Dume testified that for each of her on-site inspections that are relevant to this proceeding, on October 8, 9, and 14, 2020, she entered Respondent’s facility through an unlocked door. During her October 14, 2020, inspection, Ms. Dume observed that there were a number of customers present when she arrived at 12:30 p.m. A few minutes later, all of the customers were gone, and Mr. Perotte stopped others from entering the school. Ms. Dume believed that the customers were discouraged by Mr. Perotte from patronizing the school while Ms. Dume was present. Ms. Dume left around 2:30 p.m., due to the school being empty. The reasons why customers may have left or decided not to enter the school in Ms. Dume’s presence were based on assumptions and were not conclusively established.
Conclusions For Petitioner: Elana J. Jones, Esquire Roberto R. Castillo, Esquire Department of Highway Safety and Motor Vehicles Room A-432 2900 Apalachee Parkway Tallahassee, Florida 32399 For Respondent: Matthew E. Ladd, Esquire Matthew E. Ladd P.A. Suite 301 4649 Ponce De Leon Boulevard Coral Gables, Florida 33146
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent be found in violation of the contract, as alleged in the Complaint, and that the contract be terminated. DONE AND ENTERED this 22nd day of October, 2021, in Tallahassee, Leon County, Florida. S BRITTANY O. FINKBEINER Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of October, 2021. COPIES FURNISHED: Elana J. Jones, Esquire Department of Highway Safety and Motor Vehicles Room A-432 2900 Apalachee Parkway Tallahassee, Florida 32399 Joseph R. Gillespie, Agency Clerk Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A-432, MS02 2900 Apalachee Parkway Tallahassee, Florida 32399-0504 Terry L. Rhodes, Executive Director Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room B-443 2900 Apalachee Parkway Tallahassee, Florida 32399-0500 Christie S. Utt, General Counsel Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A-432 2900 Apalachee Parkway Tallahassee, Florida 32399-0500 Matthew E. Ladd, Esquire Matthew E. Ladd P.A. Suite 301 4649 Ponce De Leon Boulevard Coral Gables, Florida 33146
The Issue Whether Respondent committed an unlawful employment practice in violation of Sections 760.10(1), Florida Statutes.
Findings Of Fact The Respondent, Beard Equipment Company, Inc., sells and maintains heavy equipment in Panama City, Florida. The Petitioner, Robert G. Harrison began employment with the Respondent in Panama City, Florida, in September, 1988. The Petitioner was employed as a janitor. Petitioner's duties included running numerous and varied errands which required driving of a motor vehicle. In April of 1989, Petitioner was hospitalized in order to adjust his medication for what he indicated was a bipolar disorder. However, at the hearing, Petitioner produced no expert testimony to establish that he was mentally handicapped or had bipolar disorder. At that time, Respondent became aware that Petitioner had a medical problem. Later, Petitioner was hospitalized in order to adjust his medication on two more occasions in 1989, and twice in 1992. On each occasion the Respondent accommodated Petitioner by making arrangements to hire temporary employees or readjust other employees' duties so that they could perform Petitioner's duties while he was hospitalized. In early 1992, the Respondent's liability insurance company conducted a random audit of employee driving records. The Respondent was notified by its insurance company that no coverage would be provided for any accident where the employee/driver had a DUI conviction. This random audit prompted Respondent to conduct a complete company- wide internal audit of driving records of all employees. The driving record audit resulted in some transfers for those employees for whom driving was an essential part of their job duties, but whose driving records would prohibit them from being covered under Respondent's liability policy. Employees who could not fulfill the duties of a non-driving position were terminated. Respondent could not afford to allow employees to drive who could not be insured by Respondent's liability carrier. The in-house driving record audit revealed that Petitioner had a DUI conviction on his record. Respondent had no other non-driving positions for which the Petitioner was qualified. Respondent was therefore forced to discharge the Petitioner since he could no longer fulfill the duties of his employment. Petitioner was discharged in November of 1992. When Petitioner was terminated, Petitioner was advised by Mark Veal, his supervisor, that the driving record audit had revealed that Petitioner had a DUI conviction, and because he would not be covered under the company insurance policy, they had no alternative but to discharge him. Within a day or so, Petitioner's wife called and requested his discharge letter in writing. Veal prepared the letter, indicating that due to Petitioner's medical history, his operating a motor vehicle would be too much of a liability. Although the real reason for Petitioner's discharge and the reason given him at the time was the DUI conviction, Veal tried to write the discharge letter in such a way as to minimize any embarrassment for the Petitioner due to his DUI conviction. Therefore, the termination letter does not support the conclusion that Respondent discriminated against Petitioner based on a mental handicap. In fact, there was no substantial evidence that Respondent terminated Petitioner based on a mental handicap. The evidence clearly showed Respondent was terminated for his driving record and his lack of qualifications to fill any other non-driving position. Moreover, Petitioner failed to establish that his position was filled by a person not in a protected class or that Respondent is an employer employing more than 15 employees. Given these facts, Petitioner has not established a prima facie case that Respondent committed an unlawful employment practice.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is accordingly, RECOMMENDED that the Florida Commission on Human Relations enter a Final Order finding that Petitioner did not prove by a preponderance of the evidence that he was discriminated against because of his alleged handicap in violation of the Florida Human Rights Act and that the petition be dismissed. DONE AND ORDERED this 22nd day of December, 1994, in Tallahassee, Florida. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of December, 1994.
Conclusions This matter came on for determination by the Department upon submission of an Order Relinquishing Jurisdiction and Closing File by William F. Quattlebaum, an Administrative Law Judge of the Division of Administrative Hearings, and the Notice of Settlement And Motion to Relinquish Jurisdiction, copies of which are attached and incorporated by reference in this order. The Department hereby adopts the Order Closing File, and thel Notice of Settlement And Motion to Relinquish Jurisdiction as its Final Order in this matter. Accordingly, it is hereby ORDERED that the parties shall carry out the terms of the Settlement Stipulation. The Department acknowledges that on December 7, 2010, Respondent paid the civil fine of $1,000 to the Department. Filed January 14, 2011 QJ Division of Administrative Hearings DONE AND ORDERED this __@3 _ day of January 2011| at Tallahassee, Leon County, Florida. Division of Motor Vehicles Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room B439 Tallahassee, Florida 32399-0600 Sandra C. Lambert, ck Director Filed in the official records of the Division of Motor Vehicles this day_pf January 2011. Nalini naval, Dealer iministrator’ NOTICE OF APPEAL RIGHTS Judicial review of this order may be had pursuant to section 120.68, Florida Statutes, in the District Court of Appeal for the First District, State of Florida, or i any other district court of appeal of this state in an appellate district where a party resides. In des to initiate such review, one copy of the notice of appeal must be filed with the Department and the other copy of the notice of appeal, together with the filing fee, must be filed with the court within thirty days of the filing date of this order as set out above, pursuant to Rule 9.110, Rules|of Appellate Procedure. SCL:jde Copies furnished: Gary Konopka Regional Administrator Dealer License Section John H. Trevena, Esquire 801 West Bay Drive, Suite 509 Largo, Florida 33770
Findings Of Fact Respondent, Rolando Mirabet, was first licensed as a commercial driving instructor in 1981. His current license will expire February 1, 1983. On March 26, 1982, a cameraman for WTVJ, Channel 4, Miami, while posing as a driver's license applicant at the Central Driver License Office was approached by Respondent. The cameraman/applicant told Respondent he was looking for the answers to the driver's license examination. They entered an automobile, Respondent showed the cameraman/applicant papers which he represented to be test questions from the actual driver's license examination, and the cameraman/applicant told Respondent he needed to take the questions and answers home with him to study. Respondent sold the questionnaire to the cameraman/applicant for twenty-five dollars ($25). Other employees of WTVJ filmed the encounter between Respondent and the cameraman/applicant from inside a surveillance van. The document sold by the Respondent to the WTVJ cameraman/applicant contains fifty-three questions with multiple-choice, alternate answers provided for each question and with one of the alternate answers for each question being marked as the correct answer. The document is in Spanish. Applicants for a driver's license are required, among other things, to pass a written examination concerning rules and regulations for driving in the State of Florida. Petitioner uses four different written examinations for testing applicants. During the hearing, one of Petitioner's witnesses compared the questionnaire sold by the Respondent to the cameraman/applicant and one of the Spanish versions of Petitioner's examination. Although the witness identified five questions as being the same on both documents, he also recognized some of the questions on the document which Respondent sold as being questions from the other versions of Petitioner's Spanish examination. A close review of the actual examination admitted in evidence and the document sold by Respondent reveals, however, that all twenty questions on the actual examination are found verbatim in the document sold by Respondent, and the alternate, multiple-choice answers to each question are also verbatim. Respondent admits giving the questions and answers to driver's license applicants. Respondent denies any knowledge of the rules and regulations enacted by Petitioner. Petitioner publishes a driver's handbook. That handbook contains a number of questions that are general in nature. No answers to those questions are suggested, and a reader needs to understand the entire book in order to answer those questions. Only one sample question with multiple-choice answers is given in order to illustrate to applicants the type of question which the applicant will encounter on the licensing examination.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED THAT: A final order be entered permanently revoking the commercial driving instructor's certificate card of Respondent, Rolando Mirabet. RECOMMENDED this 27th day of July, 1982, in Tallahassee, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of July, 1982. COPIES FURNISHED: Judson M. Chapman, Esquire Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32301 Alan Goldfarb, Esquire 12th Floor, Roberts Building 28 West Flagler Street Miami, Florida 33130 Mr. Chester F. Blakemore Executive Director Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32301
Findings Of Fact At all times pertinent to the issues herein, the Petitioner, Department of Transportation, was responsible for the licensing and regulation of the operation of commercial motor vehicles on all streets and roads in this state. The Respondent, Florida Mining & Materials operates and, at the time of the alleged violation, operated commercial vehicles over the roads of this state. By letter dated June 11, 1990, George L. Crawford, P.E., Acting Director of Lee County's Department of Transportation and Engineering, notified the Petitioner's Office of Motor Carrier Compliance that it appeared trucks were exceeding the posted weight limits of the Ortiz Road Culvert, located 0.3 miles south of SR - 80 in Lee County. As a result of this letter, the Department began to monitor the cited culvert and on July 19, 1990, Officer Ellis K. Burroughs observed Respondent's cement dump truck cross the culvert in front of and to the side of which, in plain view, was a sign indicating that trucks weighing over 5,000 pounds should detour and go down Luckett Road without crossing the culvert. According to Mr. Burroughs, Respondent's vehicle did not detour as directed and went north on Ortiz Avenue, over the culvert. Mr. Burroughs gave chase and finally stopped the driver of Respondent's truck some 6 or 7 blocks north of the culvert. When asked why he had failed to use the detour and had crossed the culvert, the driver of the truck said his office had told him to do so and he had done so before. This comment is introduced not to show aggravation but to dispel any inference of lack of knowledge of the limitation. The sign in question had been erected on December 4, 1980. Some months after this incident, the sign was changed and the current permissible weight is 20 tons. No reason was given for the change nor was any information presented as to whether any modifications were done to the culvert before or since the change. The culvert in issue was described as of light construction - a culvert pass-through underneath the roadway. Mr. Burroughs weighed the offending truck at the scene and determined it had a gross weight of 45,700 pounds. The legal weight on that bridge at the time was only 5,000 pounds and, therefore, the Respondent's truck was overweight by 40,700 pounds. At a penalty of 5 cents per pound of violation, the penalty was assessed at $2,035.00 which was paid by the Respondent on August 3, 1990. Respondent's representative, Mr. Watson, was not present at the time and had no personal knowledge of the incident. He claims, however, that his company was operating under the impression that even at the time, the weight limit over that culvert was 20 tons. He does not concede that at the time of the incident the load limit was only 5,000 pounds. The weight of the evidence, however, is that it was. He claims this road is the only way they have of getting to certain jobs and if cut off from crossing, they are cut off from their business. Mr. Watson admittedly is not familiar with the area and overlooks the fact that there are alternative routes to the other side of that culvert, albeit somewhat longer. He discounts the somewhat longer, (2 1/2 miles additional), route claiming, "That's a lot of milage when what you're hauling is redi-mix concrete." Mr. Watson introduced several pictures of other large trucks going over that same culvert in an effort to show that other vehicles may also have been in violation. Some of those pictures were taken subsequent to the limit change and reflect that the limit is 20 tons. Further, Mr. Burroughs and Mr. Thompson indicate that subsequent to the letter from the County requesting increased surveillance, at least 45 to 50 citations were issued at that culvert. Some carriers were cited several times. Respondent was cited only once. After paying the penalty assessed, Respondent appealed it to the Department's Commercial Vehicle Review Board which reviewed it at its November 8, 1990 meeting and determined that a refund was not appropriate.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the Respondent's request for a refund of the $2,035.00 fine paid for the violation of the weight limits on the culvert in question here be denied. RECOMMENDED this 8th day of July, 1991, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of July, 1991. APPENDIX TO RECOMMENDED ORDER The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. COPIES FURNISHED: H. Robert Bishop, Jr., Esquire Department of Transportation 695 Suwannee Street, M.S. 58 Tallahassee, Florida 32399-0458 Ray Watson Operations Manager Florida Mining & Materials Post Office Box 2367 Tallahassee, Florida 33902 Ben G. Watts Secretary 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
