The Issue Petitioners' alleged liability for sales tax, interest and penalties under Chapter 212, Florida Statutes.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the arguments of counsel and the stipulation of facts entered herein, the following facts are found. Petitioners are Florida corporations having their principal place of business at Palm Beach International Airport, West Palm 8each, Florida. Petitioners conduct a fixed base aircraft operation by which they provide services to both aircraft owners and aircraft users. Petitioners are licensed, qualified and certified by the Federal Aviation Administration, the Civil Aeronautics Board, the State of Florida, and Palm Beach County to conduct its operation. Petitioners employ qualified mechanics, technicians, flight instructors, pilots, and consulting and sales personnel for conducting these services, which are described in detail below. Petitioners lease and occupy facilities appropriate for the storage, use, and repair of aircraft. Petitioners have written contractual agreements with aircraft owners in which Petitioners obtain the use of the aircraft. Petitioners pay the owners an agreed amount per hour for the use of the aircraft, which amount varies with the aircraft age and type. (Examples of said agreements are attached to Joint Exhibit number 1.) These agreements use the term "lease" to describe the Petitioners' rights to use the aircraft. The agreements provide that Petitioners will have exclusive supervision, control, and custody of the aircraft during the term of the agreement. The agreements permit the owner of the aircraft to use the aircraft for personal needs, however, so long as such use does not conflict with Petitioners' scheduled use thereof. Petitioners use the aircraft to conduct approved flight instruction for the public, to engage in charter transportation of passengers and property, and to rent to qualified pilots. Petitioners charge the third parties for instruction, charter, or rental and report the proceeds as "income" on their federal tax returns. Petitioners' payments to the aircraft owners are reflected as an "operating or overhead expense" for federal tax purposes. When using the aircraft, Petitioners employ and pay qualified flight instructors, pilots, crews and mechanics to fly and service the aircraft. The aircraft owners have no contractual agreement with these persons. Petitioners are responsible for providing all required inspection, maintenance, and repair services to the aircraft, subject to reimbursement by the owners. The aircraft owners pay the costs of fuel and lubricants used during Petitioners' use of the aircraft. Petitioners provide property damage insurance on the aircraft and liability insurance for the pilots, crew, and third parties who charter or use the aircraft. Petitioners are responsible, at the expiration of the agreement, to return the aircraft to the owner in substantially the same condition as at the commencement of the agreement, except for normal wear and depreciation. Petitioners advertise themselves to the public as a charter flying service and flying instruction service and actively solicit customers for these services. Petitioners are also in the business of selling aircraft and are authorized dealers for Cessna and Piper aircraft companies. Some of Petitioners' purchasers enter into agreements like those attached hereto, granting Petitioners exclusive use and control of the aircraft. Petitioners' purchasers properly pay sale tax under Chapter 212, Florida Statutes, when they purchase aircraft. They do not, insofar as Petitioners are aware, furnish Petitioners with resale certificates which certify that the purchase is solely for resale, in the manner designated by Rule 12A-1.38, Florida Administrative Code. Some of the purchasers have furnished exemption certificates, however, so those purchases were not taxed. Petitioners contend that they are an integrated business for the selling, storing, maintenance, and servicing of aircraft for aircraft purchasers and the provision of chartering and instruction services for third parties. Petitioners contend that their experience and expertise in providing all these services to owners and the general public is economically feasible only through an integrated operation of this nature, or through a substantially greater capital investment. Petitioners assert that the agreements by which they obtain exclusive use of the aircraft are agreements to provide expert management services to the owners, and are not subject to sales tax under Chapter 212, Florida Statutes. Respondent contends that the agreements by which Petitioners obtain exclusive use of the aircraft are separate and distinct from the rest of Petitioners' business, for sales tax purposes. Respondent also contends that the remainder of Petitioners' business is immaterial to the incidence of the tax. Respondent asserts that the agreements described herein are agreements to lease tangible personal property which are taxable as "sales" under Chapter 212, Florida Statutes. Petitioners also assert that certain of the agreements are not taxable because the aircraft owner paid sales tax on the initial purchase of the aircraft, as described in Paragraph 13 above. The Respondent contends that the prior payment of tax at the time of purchase is immaterial, since the purchase was not for resale. The issues thus presented herein are: whether the agreements are taxable transactions, as disputed in Paragraphs 14 and 15; and whether certain of the agreements are specifically nontaxable by virtue of the owner's payment of tax at the time of purchase, as disputed in Paragraph 16. The Respondent originally assessed Petitioners for tax, penalty, and interest in the amount of $19,149.08. It then appeared that in certain of Petitioners' transactions, the aircraft owners were already remitting sales tax. Respondent thereupon revised its assessment. The Respondent now alleges that the following amounts were due on March 15, 1978: Tax $11,144.68 Penalty 557.22 Interest 1,652.86 Total $13,354.76 The penalty and interest figures are subject to revision with the passage of time. The Respondent will update those figures upon issuance of a final order. Petitioners have paid no part of the foregoing assessment. Petitioners have not placed the computation of the amount due in issue, however, in the event they are held to be liable.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby, RECOMMENDED: That the Revised Notice of Proposed Assessment of Tax, Penalties, and Interest under Chapter 212, Florida Statutes, dated March 15, 1978, be asserted against Petitioners pursuant to applicable law, with interest computed to reflect the passage of additional time. ENTERED this 20th day of August, 1979, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: John A. Gentry, III, Esquire David K. Miller, Esquire Moyle, Gentry, Jones, Flanigan Assistant Attorney General & Groner, P.A. Department of Legal Affairs Post Office Box 3888 The Capitol, LL04 West Palm Beach, Florida 33402 Tallahassee, Florida 32301
The Issue The issue is whether Prestige Gunite of Orlando, Inc. (Prestige) may use an air general permit pursuant to Florida Administrative Code Rule 62-210.300(4)(c)2. to operate a concrete batch plant in an unincorporated part of Lake County, Florida.
Findings Of Fact Based on the evidence presented by the parties, the following findings of fact are made: A. The Parties Prestige is a wholly-owned subsidiary of Prestige Gunite, Inc.; the parent corporation is located at 7228-C Westport Place, West Palm Beach, Florida. The owner of the parent corporation was identified as Brian A. Mahoney, who also owns and controls a number of other entities in the State that are engaged in the business of producing cement. The record does not disclose the names of all of the corporate entities, but it does show that Mr. Mahoney has formed two corporate entities who operate at the same location in Lake County, Florida: Prestige Gunite of Orlando, Inc. (the applicant here), and a limited liability corporation known as Prestige/AB Ready Mix, LLC, which has a different parent corporation. The latter entity operates a ready-mix cement plant on the southern part of the property on which the applicant's operations will be located. In addition, the record shows that Mr. Mahoney operates at least two other cement plants in the State, one a "smaller facility" at Ocala, Florida, whose name and corporate status are unknown, and B & B South Florida, Inc., which operates a facility at an undisclosed location. Although these entities are owned and controlled by one individual, the applicant has represented without dispute that all of the cement plants are operated as separate entities, each with its own permit issued by the Department. The Department is an agency of the State that is authorized under Chapter 403, Florida Statutes (2006), to evaluate applications for air emission permits that are used by cement batching plants. The use of the permit in issue here was reviewed by the Department's Central District Office in Orlando, Florida. Petitioners all reside in close proximity to the proposed facility. In addition, their homes are in closer proximity to the existing ready-mix facility. Through testimony at hearing, Petitioners established that their substantial interests are affected by the new facility and they have standing to challenge the use of the permit. Background A general permit is established by rule and constitutes a "simplified procedure" used by the Department to allow a facility to begin operations, as compared with other types of permits issued by the Department. Department standards provide that if a facility such as that proposed by the applicant emits less than 100 tons per year of particulate matter and is therefore a Non-Title V source, it qualifies to operate under a general permit, assuming that all other criteria are satisfied. Under this process, the Department reviews the notification (application) for compliance with two applicable rules: Florida Administrative Code Rule 62-296.414, which establishes the substantive criteria for using a general permit for a concrete batching plant, and Florida Administrative Code Rule 62- 210.300(4)(c)2.a.-f., which contains the procedural requirements for obtaining a Non-Title V Air General Permit. Unless the Department decides to deny the application, no formal proposed agency action is issued. Therefore, none was issued in this case. Absent the filing of a protest by a third party, the applicant may then use the general permit after the time for third parties to file a challenge has expired. The facts underlying the filing of the instant application are somewhat confusing and form the basis, in part, for the allegations in the two Petitions filed in opposition to the notification. In May 1999, Prestige Gunite of Orlando, Inc., gave notification of its intention to use a general air permit to operate a concrete batching plant at 17600 State Road 50, near Clermont, Florida (also known as the Clermont Yard). Because no challenge to that notification was made, the applicant was issued Permit No. 7775088-001-AG, which became effective on July 8, 1999, and expired on July 9, 2004. Presumably, Prestige operated a gunite batching plant under that permit during that five-year period. In 2001, Prestige/AB Ready-Mix, LLC (then known as Prestige/AB, Inc.) applied for another air general permit at the same location (the Clermont Yard) to operate a concrete batching plant.3 (Apparently, multiple batching plants are authorized at the same geographic location so long as the total particulate of all facilities at that location does not exceed 100 tons per year, which would cause the facilities to lose their Non-Title V status.) Because no third party objections were filed, and all criteria were satisfied, Permit Number 7775088-003-AG was issued. Although the permit was scheduled to expire in 2006, it was recently renewed for another five years and will now expire on August 3, 2011. See Prestige Exhibit 2. (Florida Administrative Code Rule 62-4.540(13) limits the use of an air general permit to five years.) Prestige says that it incorrectly assumed that the air general permit issued to Prestige/AB Ready-Mix, LLC, in 2001 (and renewed in August 2006) also authorized it to continue to operate a gunite batching plant at the Clermont Yard after the first air general permit issued to Prestige Gunite of Orlando, Inc., expired in 2004. This explanation seems unusual, given the fact that the applicant's owner operates multiple permitted cement facilities throughout the State and should be familiar with the permitting process. In any event, Prestige continued to operate a gunite batching plant at the Clermont Yard without a permit. Apparently prompted by numerous and repeated complaints from nearby residents over air emission concerns from both operations, the Department eventually conducted an investigation of both facilities. Besides finding that emissions standards and hazardous waste rules were being violated, the Department discovered that Prestige was operating a gunite facility without a permit. On May 31, 2006, the Department issued a Warning Letter to the parent corporation advising that it must cease gunite operations until a permit was obtained. Despite the Warning Letter, operations at the facility continued, which prompted a second letter from the Department on August 29, 2006, advising that formal enforcement action would be taken unless operations were terminated. In early September 2006, operations ceased and have not resumed pending the outcome of this proceeding. On July 31, 2006, Prestige filed an Air General Permit Notification Form to notify the Department of its intent to use both a new and existing air general permit for its gunite batching plant at the Clermont Yard. This application was denied by the Department on August 29, 2006, because of "unconfined emissions," that is, the applicant had failed "to take reasonable precautions to contain particulate emissions from truck loading operations." During this same period of time, a meeting by the Central District staff and the applicant was held and on August 31, 2006, Prestige filed a second Air General Permit Notification Form advising that it intended to operate a concrete batching plant at the Clermont Yard. A new permit, rather than a renewal of the old permit, was sought since the original permit had expired in 2004. Thus, it was not necessary for Prestige to surrender any existing permits, a requirement found in the application form. Because the Department concluded that all rule criteria had been satisfied, it took no action regarding the application. On August 31, 2006, Prestige Gunite, Inc. (as opposed to Prestige Gunite of Orlando, Inc., which had filed the notification) caused to be published in the The Daily Commercial, a newspaper of general circulation in Lake County, a Public Notice of Application for a General Permit. The following day, a similar notice was published in the South Lake Press, also a newspaper of general circulation published in Lake County. On September 21, 2006, Mr. Koehnlein, who lives just east of a vacant lot on the eastern side of the site, filed his Petition challenging the use of the permit on numerous grounds. (Mr. Koehnlein's Petition was actually filed in response to the Department's notice of intent dated August 29, 2006, to deny the first application filed by Prestige. However, it was treated as a request for a hearing in response to the second notification filed by the applicant.) On the same date, and then through counsel, Petitioners, Aaron and Amy Wright, Joseph Maxwell, Donald Stone, and Marlene Matthews, who live in a residential subdivision immediately south of the site, filed their Petition challenging Prestige's use of the permit. Although numerous allegations were raised in the Petitions, most were struck by Order dated November 14, 2006, leaving only the allegation of whether Prestige is qualified to use the general permit by meeting the applicable requirements under Florida Administrative Code Rules 62-210.300(4)(c)2. and 62-296.414. The Permit The Notification filed by the applicant indicates that the facility will be located at 17600 State Road 50 near Clermont, Florida. In broader geographic terms, the facility is located just south of State Road 50 (which runs in an east-west direction), and it appears to be just west of the Florida Turnpike and approximately half way between the Cities of Winter Garden (in Orange County) and Clermont (in Lake County). The site is bordered by State Road 50 to the north, a mini-storage facility to the west, a light industrial area and vacant lot to the east, and as more fully discussed below, a residential area to the south. At least since 1985, a residential subdivision has occupied the area immediately south of and adjacent to the site of the proposed facility.4 For many years, the subject property just north of the subdivision was owned by Kelly Construction Company (Kelly) and remained vacant. At some point after 1985, however, Kelly began using the site as a gravel pit and commenced excavation operations as close as forty feet to the back property line of the homes in the subdivision. According to one long-time resident, Kelly then began using the vacant land as a dumping site for building materials and illegal trash. After a complaint was filed, in 1998 the Department shut down the landfill operations and a substantial berm was constructed between the subject property and the subdivision. Around 1999, Prestige's parent company either purchased or obtained authorization to use the property and commenced operations shortly thereafter under the permit issued to Prestige Gunite of Orlando, Inc. It also reduced the size of the berm between the plant operations and the subdivision property line to approximately seventy-five feet. Prestige's gunite facility will share a six-acre tract of property already used by Prestige/AB Ready Mix, Inc., under a permit obtained by that entity in 2001. The gunite portion of the business will use the northern part of the property, while the ready-mix operations are located on the southern part of the tract, which lie less than a hundred feet or so from the back property line of the closest homes. Access to both operations will be from State Road 50, which lies directly north of the property. In addition, there is a truck maintenance facility on the site, which will perform maintenance work on vehicles for both operations. The proposed gunite facility consists of an existing cement storage silo containing dry powdered cement, sand storage areas, and office space. The finished product (gunite) is used in the construction of swimming pools. The dry powdered cement will be loaded into the rear compartment of the cement trucks, while sand is loaded by a front end loader into the front compartment on the truck. The sand is stored in nearby storage piles and will be covered by tarpaulins when not in use. The materials are then transported to a job site, off-loaded, mixed with water, and sprayed into a swimming pool shell. These operations are in contrast to the existing ready-mix operations now being conducted on the southern half of the property, which involve the on-site mixing of cement, sand, aggregate, fly ash, and water to create cement, the loading of the wet mixture into trucks, and the hauling of the wet cement to the job site. In addition, the ready-mix cement trucks require continual cleaning on site, which creates a noisy environment for the surrounding area. Permit Requirements Under Florida Administrative Code Rule 62-296.414, which contains the substantive requirements for using the permit, an applicant must agree to comply with various requirements set forth in the rule. They include requirements relative to stack emissions, unconfined emissions, test methods and procedures, and compliance demonstration. Although the application and supporting documentation reflect that each of the above requirements has been met, perhaps the most relevant requirements to Petitioners' concerns are the two that the owner "limit visible emissions to 5 percent opacity" and "take reasonable precautions to control unconfined emissions from hoppers, storage and conveying equipment, conveyor drop points, truck loading and unloading, roads, parking areas, stock piles, and yards." Fla. Admin. Code R. 62- 296.414(1) and (2). To control unconfined emissions, Prestige will operate water and sweeper trucks (which are shared with the ready-mix operation) that will periodically water the grounds during hours of operation and remove excess materials from roads and other loading areas which might otherwise be carried by the wind to surrounding neighborhoods. Prestige will place tarpaulins over sand piles, when not in use, to prevent sand from being blown out of the yard. To control stack emissions, a bag system has been installed on top of the silo in which the dry powdered cement is stored. This is intended to reduce emissions that may be generated from the gunite silo during loading and unloading operations. The baghouse will be periodically inspected and bags changed on a regular basis. Also, a shaker system is automatically initiated during the loading process which reduces emissions by moving cement and cement dust down into the silo rather than up and out of the silo. Further, the lid on the chute (which fits onto the opening of the truck where the material is loaded) has been modified to prevent sand or cement from "smoking" up and causing an emission problem. Prestige acknowledges that prior to shutting down operations in early September 2006, it experienced an emissions problem with the truck loading operation which will be corrected by the modification of the lid. Finally, within thirty days after operations are commenced, Prestige must conduct a visible emission test on each dust collector exhaust point. The procedural requirements for obtaining a Non-Title V Air General Permit to operate a concrete batching plant are found in Florida Administrative Code Rule 62-210.300(4)(c)2. and simply require that the owner (Prestige) provide a completed Concrete Batching Plant Air Permit Notification Form, agree to comply with the requirements of Florida Administrative Code Rule 62-296.414 (cited above), submit notification to the Department in the event the site of the plant is relocated, agree to meet certain requirements if nonmetallic minerals are processed, and that if more than one relocatable concrete batching plant is located at the same location, agree that the total operations would not be a Title V source. The record shows that each of these requirements has been met. Petitioners' Concerns Petitioners presented a wide array of concerns, most of which are not relevant to the narrow issues in this case and instead appear to be related to the operations of the ready-mix plant or matters outside the jurisdiction of the Department.5 Their undisputed testimony is that the occupants of the homes which lie near and adjacent to the six-acre site are now, and have been for years, the recipients of dust and other particulate matter in such quantities as to force them to keep their windows closed throughout the year and prevent them from enjoying any type of outside activity in the area. Virtually all of Petitioners and their witnesses testified about constant respiratory ailments which they or members of their family suffer from due to the air emissions from the cement plants. These ailments began after the adjoining property was converted to a cement plant. They also pointed out that vehicles which are not parked in enclosed garages are covered by dust after a relatively short period of time. For example, cars that are washed in the afternoon and parked in front of their owners' homes that evening will be covered in dust the next morning. See Petitioners' Exhibits 18A, B, and C. While not a consideration in this case, water truck and sweeping operations at the gunite facility will begin at 6:00 a.m., and operations have begun as early as 2:00 a.m. or 3:00 a.m. at the ready-mix facility. Thus, beginning early in the morning and continuing throughout the day, the neighbors are subjected to the sound of large cement trucks being driven throughout the yard while being loaded with cement, cleaned, or mechanically repaired. At the same time, Petitioners have indicated that the sale of their homes is not possible due to the operation of the cement plants, and one witness stated that it was unlikely he could even rent his home to a third party due to the issues facing the neighborhood. Petitioners uniformly expressed dissatisfaction with the Central District Office's handling of their long-standing complaints (beginning years ago) and the amount of time it took for the Department to actually perform an inspection of the adjoining property. After conducting an initial inspection in November 2005 and a follow-up inspection in March 2006, presumably because of Petitioners' complaints, in October 2006 the Department entered into a Short Form Consent Order with both Prestige and the ready-mix entity. To resolve a number of violations, including operating without a permit, the Department required Prestige to pay a $10,800.00 civil fine and take corrective action. (Also, Prestige/AB Ready Mix, LLC, was required to pay a $15,650.00 civil penalty for numerous violations associated with its operations and take corrective action.) The matter was finally resolved by a Department letter dated October 13, 2006. See Department Exhibit 9. According to a Department inspector, a follow-up inspection in early December 2006 did not detect any on-site violations by the ready-mix plant. Despite the corrective actions which the ready-mix operation may have undertaken, Petitioners complain that the air quality in the neighborhood has improved only slightly, and that was a result of Prestige shutting down the gunite operations in early September 2006 pending the outcome of this case, and was not due to any corrective measures required by the Short Form Consent Orders. Petitioners' complaints regarding air quality are real and not imagined. Credible testimony and photographs confirm them to be true. It is fair to assume that if emissions violations are still occurring, as Petitioners contend, they are due to the operations of the ready-mix plant and should be the subject of further inspections by the Department and an enforcement action, if appropriate. However, given the Department's straight-forward regulations pertaining to the use of an air general permit, the precautions which Prestige has stated it will take (and assuming that they will occur), and the expert testimony supporting a finding that all criteria have been met, Prestige is qualified to use the applied-for air general permit to operate a cement batching plant at the Clermont Yard.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order determining that Prestige Gunite of Orlando, Inc., is qualified to use an air general permit at 17600 State Road 50, Clermont, Florida. DONE AND ENTERED this 5th day of March, 2007, in Tallahassee, Leon County, Florida. S DONALD R. ALEXANDER 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 5th day of March, 2007.
Findings Of Fact In the Spring of 1978, Roach purchased 1965 Piper aircraft No. 3406W from an out-of-state broker. On the assumption that sales tax had been collected, and not being familiar with Florida's Sales/Use tax laws, Roach took no other action. This aircraft was sold in August of 1978 and 1972 Piper No. 5309T was purchased in September of 1978; this aircraft was purchased under the same circumstances. No records were kept of the purchase price of either aircraft. DOR wrote Roach in August and September of 1978 regarding 3406W, without result. Thereafter, DOR used the average book value of $19,000 to arrive at a tax due of $760.00 Roach paid $720 tax on July 15, 1979; he contended that 3406W had $1000 less equipment than the average book valued aircraft. Prior to this time Roach became aware that tax was due but indicated he was financially unable to pay. On July 18, 1979, DOR sent Roach the proposed assessment for $40.00 tax, $190.00 penalty and $83.60 interest. Meantime, DOR was writing Roach regarding the second aircraft, 5309T, with no response being received until August 8, 1979. A proposed assessment was issued for $1500 tax, $375 penalty and $394.93 interest on September 10, 1979. During the subsequent informal conference, Roach advised that the tax due was in fact $1520, which was paid on October 4, 1979. Revised assessment dated October 22, 1979, was for $380 penalty and $400.20 interest. DOR's witness, Assistant Area Supervisor, Collection and Enforcement Division, received the matter from higher headquarters in December of 1979. He merely indicated that someone else in DOR used the "blue book" to determine value; he presented no evidence contrary to Roach's estimated value of $18,000 for the first aircraft or regarding the imposition of the penalty.
The Issue The issue in the case is whether Albert E. Warner's application for an Airspace Obstruction Permit should be granted.
Findings Of Fact Charles W. Brammer owns the Tampa North Aero Park, Inc., a Florida-licensed public use landing strip located in Pasco County. The Tampa North Aero Park is surrounded by platted lots intended for use as private homesites. Albert E. Warner owns one of the lots, (Lot 123, Quail Hollow Village Subdivision) which adjoins the Tampa North Aero Park, Inc. Mr. Warner intends to construct and live in a single family home on his lot. Because the location of the proposed Warner construction exceeds certain standards, regulatory review is required and Mr. Warner’s proposed structure must be obtain a permit from the DOT. On June 18, 1997, the Mr. Warner filed his application for an Airspace Obstruction Permit with the DOT. According to Mr. Warner, the proposed structure will be concrete block with a wood frame roof, with a roof peak no more than 98 feet above mean sea level One of the requirements is that the Federal Aviation Administration (FAA) review the proposal and issue a "Determination of No Hazard to Air Navigation." The FAA has issued a "Determination of No Hazard to Air Navigation." Because the initial FAA document included incorrect site information, the FAA subsequently issued a "Correction to the Determination of No Hazard to Air Navigation." The "Determination of No Hazard to Air Navigation" sets forth the factors considered by the FAA and concludes as follows: Therefore, it is determined that the proposed structure would have no substantial adverse effect on the safe and efficient utilization of the navigable airspace by aircraft or on the operation of air navigation facilities and would not be a hazard to air navigation. The FAA’s document of correction states as follows: This corrects a minor change in the latitude and longitude based on survey data provided regarding actual runway location and which moves proposal 2 feet closer to runway. Because this minor move will not change the results of the determination, a new circularization and determination was not considered necessary. All else remains same as on original determination. The Petitioner challenges the reliability of the FAA’s review of the Warner project and the determination that the proposed construction will create no hazard to airspace navigation. The Petitioner offered no credible evidence to support the assertion that the FAA study was incomplete or unreliable. Given the minor change in the relative location of the runway to the proposed Warner construction, the FAA’s correction of the initial determination without conducting an entirely new review is inconsequential. As set forth in the FAA determination, a condition of the permit requires the structure to be marked as an obstruction and lighted with a red beacon. There is no evidence that Mr. Warner is unwilling or unable to comply with this requirement. The Department reviewed the FAA determination and subsequent correction. The Department determined that the corrected location information was correct and that the FAA review included a valid aeronautical evaluation. The evidence establishes that the Department considered the required factors set forth in the applicable statute. The evidence establishes that the DOT completed the review and made the determination within the appropriate timeframes. The Department considered the nature of the terrain and height of existing structures. The land surrounding the airfield is relatively flat. Existing structures include houses across the residential street from the Warner lot, and other houses to be constructed along the airfield. Numerous trees, some located closer to the airstrip than the proposed Warner house, are as tall or taller than the proposed Warner home, except where such trees were recently cut by Mr. Brammer for reasons unknown. The Department considered public and private interests and investments in the area of the proposed construction. No public investments will be impacted. There is no credible evidence that public aviation interests will be impacted. Private investments, specifically that of the Petitioner and his airport, will not be adversely impacted by construction of the home. One witness asserted that the private investments of the other homeowners would be adversely impacted by the Warner construction, but offered no credible evidence to support the assertion. The Department considered the character of flying operations and planned development of airports. The proposed construction will have no adverse impact on the character of flying operations and planned development of airports. The Department considered federal airways as designated by the FAA and determined there would be no adverse impact because the proposed structure is below the airspace height of the federal aviation system. The Department considered whether the construction of the proposed structure would cause an increase in the minimum descent altitude or the decision height at the affected airport, and determined there would be no increase. The Department considered technological advances and determined that there are none which would be adversely impacted by issuance of this permit. The Department reviewed concerns related to the safety of persons on the ground and in the air and determined that there would be no adverse impact created by issuance of the permit. The Department considered land use density. There is no adverse impact to land use density related to this permit. The Department considered the safe and efficient use of navigable airspace. There is no adverse impact created by issuance of the subject permit. Existing objects of similar height and distance have posed no hazard to operation of the airport. Considering the airport’s characteristics, runway capability, and the types of aircraft using the facility, the proposed structure will not adversely impact the facility or any aircraft using the facility. The Department considered the cumulative effects on navigable airspace of all existing structures, proposed structures identified in the applicable jurisdictions comprehensive plans, and all other known proposed structures in the area. There is no adverse impact caused by the cumulative effects of this structure, and other proposed or existing structures. The evidence establishes that Mr. Warner has met the criteria set forth by statute for the issuance of an Airspace Obstruction Permit.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Transportation enter a Final Order granting the Warner application for Airspace Obstruction Permit. The permit shall include the requirements related to lighting as set forth by the FAA. DONE AND ENTERED this 19th day of October, 1998, in Tallahassee, Leon County, Florida. WILLIAM F. QUATTLEBAUM 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 Filed with the Clerk of the Division of Administrative Hearings this 19th day of October, 1998. COPIES FURNISHED: Kelly A. Bennett, Assistant General Counsel Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Albert E. Warner, III Post Office Box 7084 Wesley Chapel, Florida 33543-7084 Charles W. Brammer, General Manager Tampa North Aero Park, Inc. 4241 Birdsong Boulevard Lutz, Florida 33549 Pamela Leslie, General Counsel Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Thomas F. Barry, Secretary Attention: James C. Myers, Clerk Agency Proceedings Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0458
The Issue The issue is whether Respondent engaged in an unlawful employment practice, discrimination based on age and/or national origin, and/or retaliation against Petitioner.
Findings Of Fact Stipulated Findings of Fact1 Petitioner,[Victor Bracamonte (Petitioner or Mr. Bracamonte)] is an [Hispanic] Peruvian man. His date of birth is September 14, 1955. Petitioner began working for Respondent, [Commercial Interior Contractor Corp. [(Respondent or CIC)] in Spring 2006 [on April 6, 2006] as a Superintendent. Respondent, a Florida corporation, has been in business since 1984. The Company is an interior finishing contractor, assisting private corporations and governmental entities with refinishing, renovations, or other projects. Eloise Gonzalez (Cuban; d/o/b- 8/17/62) is the founder and owner of Respondent. Ms. Gonzalez and three individuals work at Company's corporate office, which is located at 2500 N.W. 39th Street, Suite 100, in Miami. The rest of the Company's employees work at a contract [site] at the Miami International Airport("MIA"). In 2006, Respondent signed a contract with Parsons Odebrecht Joint Venture ("POJV") to perform certain general site requirement work related to the construction of new terminals and concourses at MIA. POJV is the general contractor that MIA assigned the overall task of building the new terminals. Respondent employees have worked on this project from 2006 through the present, acting as a support team for POJV with tasks such as lifting equipment, operating forklifts, and cleaning. Respondent employees at the POJV project are divided into two teams, with each team responsible for a different work area (one team in areas from Terminal B to Terminal C, and the other team in areas from Terminal C to Terminal D). Each team consists of Carpenters and General Laborers and is headed by a Superintendent. CIC also employs Operators at the POJV project, who drive a sweeper machine around the entire worksite and remove debris. Respondent does not have any employees at MIA who supervise the Superintendents, nor does the Company have anyone at the worksite that instructs the teams what needs to be done each day. The specific work of each of Respondent's teams on the POJV project is directed by management personnel from POJV. Ms. Gonzalez works out of the Company's corporate offices, which are approximately seven miles from MIA, and so she is not there to direct and control the daily activities of personnel on the POJV project. Ms. Gonzalez seldom visits the actual worksite, and estimates that she is there perhaps once every month or so. Ms. Gonzalez visits with POJV corporate personnel two or three times per month at their offices at MIA (which are in trailers at the airport), but this is at a location separate from the actual worksite. The purpose of those visits is to discuss general business items with POJV. Ultimately, Ms. Gonzalez relies on her Superintendents to be her eyes and ears at the worksite, and, of course, on POJV personnel (since they are the client and are directly involved in overseeing the work). As a result, decisions by Ms. Gonzalez to discipline and/or terminate employees are typically based on the information, recommendations, and/or requests of her Superintendents and/or POJV personnel. Since the POJV project takes place at the airport, employees have to be given clearance to work on the private property of MIA. Each employee must have various badges to access the airport and the project. For example, employees need an MIA Customs Identification badge, which gives them clearance to pass through the security area (. . . a separate commercial security area for workers, airport personnel, and other individuals providing service(s) to the airport), and a North Terminal Development badge, which gives them clearance to access the project itself. A Superintendent also needs a driver's badge, to allow them to drive a vehicle on private airport property. Respondent does not make the decisions about whether to give and/or take away a badge to anyone. The badges are issued by MIA (specifically, the Miami-Dade Aviation Department) and/or U.S. Department of Homeland Security. Respondent's employees meet at the employee parking lot at MIA in the morning, and each team drives to the worksite in a separate Company van. There are only a few Company employees who are allowed to drive the van(s). The vans travel from the parking lot, to the security area, and then to the worksite. Anyone driving the van at any time on airport grounds or anywhere else is required to follow any and all driving rules, such as following speed limits. On January 22, 2010, Petitioner was arrested at MIA by the Miami-Dade County Police. Petitioner was accused of stealing gas. He signed a Complaint/Arrest Affidavit on that same date. Petitioner's airport work badges were taken away by MIA as a result of his arrest. Petitioner has not worked for Respondent since the date of his arrest. Of the 24 current employees of Respondent, 10 of them are over the age of 40. Of these current employees, three of them are older than Petitioner: (1) Pedro Araujo (d/o/b - 6/7/54); (2) Moises Herrer (d/o/b - 7/11/53); and (3) Isidro Lopes (d/o/b - 7/6/48). One additional employee is only eight days younger than Petitioner: Edwin Torres (d/o/b - 9/22/55). Between Spring 2006 and January 2009 (the period of Petitioner's employment), the only other Peruvian employee terminated by Respondent was Marco Samanamud, whose employment was terminated in November 2008. Additional Findings of Fact2 Petitioner alleged that, in addition to discriminating against him based on age, Ms. Gonzalez discriminated against him because he is from Peru. He said he earned $25.32 an hour, when the prevailing rate for a superintendent was $31. Wages were set by the MIA aviation authority in the contract for services with CIC, not by Ms. Gonzalez. She has had contracts for work at the airport for twenty years. Before he worked for Respondent, Petitioner was employed by prior airport subcontractors doing the same kind of work for ten years. To explain why Ms. Gonzalez hired him but discriminates against Peruvians, Petitioner alleged that hiring him helped her get the contract for CIC. On November 18, 2008, Marco Samanamoud, who was also Peruvian, drove Petitioner in a CIC van, to a 1:30 p.m., eye doctor's appointment because he was going to have his pupils dilated. While he was still at the doctor's office, Petitioner received a call from Ms. Gonzalez who wanted to know who was driving the van. He told her that it was Marco Samanamoud. Marco Samanamoud, who is also Peruvian, was the only employee on their crew, other than Petitioner, who was allowed to drive the 12-passenger van. The van was equipped with a GPS e-mail alert notification system that had reported by e-mail that the van was going 88 and 95 miles an hour in streets that had a 60-mile-per- hour speed limit. Petitioner called Mr. Samanamoud who said he was back at work at MIA and denied that he had been speeding. Both he and the Petitioner questioned the accuracy of the GPS e-mail alerts because both were received at 2:16 p.m., from two different locations. They had no knowledge, however, about the frequency of the e-mail alert transmissions. Petitioner and Mr. Samanamoud both testified that they each tried to tell Ms. Gonzalez that it was a mistake and the GPS system could not be correct. Both said that, when they talked to her, she made derogatory comments about Peruvians, including having said something about not wanting to work with Peruvians, about being fed up with Peruvians, and that Peruvians had caused her too many problems. Based on Mr. Samanamoud's prior record of speeding and reckless driving, Ms. Gonzalez told Petitioner to fire Mr. Samanamoud. Petitioner refused Ms. Gonzalez' directive to terminate Mr. Samanamoud's employment with CIC until she prepared a written warning and threatened to fire both of them. Petitioner said he had no choice but to fire Mr. Samanamoud even though he believed that to be an unlawful act of discrimination based on national origin. CIC employees routinely borrowed gasoline-powered saws from other companies working at the airport. On January 22, 2009, the foreman for one of the companies called Petitioner and requested the return of one of the saws. Petitioner instructed a CIC employee, Roberto Santiesteban, who was driving the CIC van, to go outside the airport check point to return the saw. After he returned the saw, Mr. Santiesteban received a radio call from Petitioner telling him to pick up six POVJ workers to bring them to their work site. Petitioner said POVJ wanted the workers inside as quickly as possible because they were "already on the clock" earning $31.00 an hour. Mr. Santiesteban, who had returned the gas saw on the fifth level of the employee's parking deck, supposedly replied that he did not have room in the van for six workers who had tool boxes and ladders. Petitioner then told him to make room by taking Petitioner's car keys from the van, opening the trunk of Petitioner's personal vehicle and leaving the gasoline there. Petitioner's vehicle was parked in a remote area of the fourth deck where employees' cars were not supposed to be parked. When Petitioner was arrested on January 22, 2009, the police confiscated his MIA employee badges. Initially sympathetic to him, Ms. Gonzalez subsequently received an e-mail and read the police report that made her believe that Petitioner had been stealing gasoline for some time. After Petitioner was unable to work and was discharged, he was replaced by a person who is Cuban. After Petitioner's case was nolle prossed in April 2010, he asked Ms. Gonzalez to initiate an ID confiscation hearing to help him get the badges and she refused. Ultimate Findings of Fact The evidence supports a finding that Petitioner, Mr. Bracamonte, was ordered to terminate the employment of Mr. Samanamoud not because he was Peruvian, but because Ms. Gonzalez had a legitimate business interest in avoiding liability for his speeding and reckless driving. The evidence supports a finding that Petitioner, Mr. Bracamonte, was not the victim of discrimination based on age based on Stipulated Finding of Fact, paragraph 16. The evidence supports a finding that Petitioner, Mr. Bracamonte, was terminated from employment because he could not work on the MIA project after his badges were confiscated, not because of his age or because of his national origin. The evidence supports a finding that Ms. Gonzalez was not willing to help Petitioner get the badges necessary to work at MIA because she received information after his arrest that tended to convince her that Petitioner had been stealing gasoline over a period of time.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for relief in this case. DONE AND ENTERED this 29th day of December, 2010, in Tallahassee, Leon County, Florida. S ELEANOR M. HUNTER 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 29th day of December, 2010.
Findings Of Fact Sworn testimony was presented on behalf of the Department by Bronson Monteith, an Aviation Specialist employed by the Department. Mr. Monteith testified as to the application process, the document received by the Department (DOT Exhibit No. 1) and his analysis and conclusions regarding the application. According to Mr. Monteith's testimony, the application was complete and met all Department requirements for issuance of site approval. An application for site certification was filed with the Department on February 19, 1990 (DOT Exhibit No. 1, page 1). The application was revised to "ultralight private" on March 3, 1990 (DOT Exhibit No. 1, page 7). A landing area proposal was filed with the Federal Aviation Administration on February 19, 1990 by Mr. Sarra (DOT Exhibit No. 1, page 13). FAA approval of the application was issued April 10, 1990 and contained the following finding: the subject airport will not adversely affect the safe and efficient use of airspace by air craft provided the landing area is limited to private use. (DOT Exhibit No. 1, page 15) The FAA approval also stated: In making this determination, the FAA has considered matters such as the effects the proposal would have on existing or planned traffic patterns of neighboring airports or heliports, the effect it would have on the existing airspace structure and projects or programs of the FAA, the effects it would have on the safety of persons and property on the ground, and the effect that existing or proposed manmade objects (on file with the FAA) and known natural objects within the affected areas would have on the airport proposal. (DOT Exhibit No. 1, page 15) Conditional Use Permit No. 89/4/5/2 was issued for the construction and operation of an airport at the proposed site by the County Commission of Lake County on August 10, 1989 (DOT Exhibit No. 1, Page 20). The property in question is owned by Romar Agricultural Development Corporation, which is owned by Mr. Sarra (DOT Exhibit No. 1, page 26). The site was inspected and certified by Mr. Monteith as suitable for a private ultralight airpark site under Chapter 14-60 on August 21, 1990 (DOT Exhibit No. 1, page 30-33). Mr. Monteith conferred with the FAA and pilots at a nearby glider port and determined that the application should sign an agreement governing the operation of the proposed airport to ensure that safe air traffic patterns can be maintained (DOT Exhibit No. 1, page 34). The agreement was signed by the applicant (DOT Exhibit No. 1, page 36). During the hearing, Mr. Uchitel's attorney proposed that an additional condition be placed on site approval: that the applicant indemnify nearby landowners for all injury and liability associated with the operation of the airport and post a bond or other guarantee to support the indemnification. The rationale for this condition was that ultralight aircraft were not as well- regulated as other aircraft and posed a particular danger to nearby landowners. Mr. Uchitel's counsel expressed Mr. Uchitel's concern that the local zoning may have been obtained without due notice to him. The FAA regulations for operation of ultralight aircraft were introduced. These regulations prohibit flight below 1500 feet except when landing and taking off. The sketch accompanying the application reveals that the proposed airport will have a grass runway 500 feet wide and 1500 feet long, running north and south. A diagram of the proposed airstrip shows that the first 500 feet of the north and south ends of the airport are for approaching the primary landing zone. Ultralight aircraft landing at the airport would commence their descent flying parallel to the airstrip, make a 90 degree turn towards the airstrip at the end of the approach area, fly toward the airstrip centerline and execute another 90 degree turn towards the landing zone. Because of the flight characteristics of ultralights, their descent from their approach altitude of 1500 feet generally would be over the airport itself. The aircraft's flight over the property of adjoining property owners would be at the required minimum altitude of 1500 feet. Although ultralight aircraft are licensed in a manner similar to experimental aircraft, and are not subject to all of the inspections which certified non-experimental aircraft must have, they are generally flown by their owner-builders, who want to avoid any accidents for obvious reasons. Further, these aircraft, as their classification indicates, are very light, kite like aircraft with light aluminum bracing. It is inconceivable that one would cause major damage to property on the ground if it did crash. Power plants for these aircraft are typically small engines similar to those used in snow mobiles. Although they are noisy, they do not generate as much noise as standards aircraft engines. Flying at their assigned altitudes, they will not be a major source of noise for adjoining property owners.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED: That a Final Order be entered granting site approval for the proposed airport, under the terms and conditions provided in Site Approval Order No. 91- 36. DONE and ENTERED this 20th day of July, 1992, in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this day of July, 1992. COPIES FURNISHED: Ben G. Watts, Secretary ATTN: Eleanor F. Turner Department of Transportation Haydon Burns Building, M.S.-58 605 Suwannee Street Tallahassee, FL 32399-0458 Jeffrey J. Pardo, Esquire 8323 N.W. 12th Street Miami, FL 33126 Paul Sexton, Esquire Department of Transportation Haydon Burns Building, M.S.-58 605 Suwannee Street Tallahassee, FL 32399-0458 .
