The Issue Whether the Respondent committed the violation alleged in the Administrative Complaint dated September 17, 1998, and if so, the penalty that should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Department is the state agency charged with the responsibility for investigating and prosecuting complaints pursuant to Chapters 455 and 475, Florida Statutes (1997). The Florida Real Estate Commission operates within the Department and is the entity directly responsible for licensing and disciplining persons licensed under Chapter 475, Florida Statutes (1997). Section 475.02, Florida Statutes (1997). The Division of Real Estate operates within the Department and assists the Commission in carrying out its statutory duties. Section 475.021, Florida Statutes (1997). Mr. Lista is, and was at all times material to this proceeding, a licensed real estate salesperson, having been issued Florida license number SL-0647732. Mr. Lista's license is currently on inactive status. Mr. Lista submitted to the Department an Application for Licensure as a Real Estate Salesperson dated January 14, 1997, and received by the Department on January 27, 1997. Question number 9 on the application requests that the applicant answer "Yes" or "No" to the following: Have you ever been convicted of a crime, found guilty, or entered a plea of guilty or nolo contendere (no contest), even if adjudication was withheld? This question applies to any violation of the laws of any municipality, county, state or nation, including traffic offenses (but not parking, speeding, inspection, or traffic signal violations), without regard to whether you were placed on probation, had adjudication withheld, paroled, or pardoned. If you intend to answer "NO" because you believe those records have been expunged or sealed by court order pursuant to Section 943.058, Florida Statutes, or applicable law of another state, you are responsible for verifying the expungement or sealing prior to answering "NO." If you answered "Yes," attach the details including dates and outcome, including any sentence and conditions imposed, in full on a separate sheet of paper. Your answer to this question will be checked against local, state and federal records. Failure to answer this question accurately could cause denial of licensure. If you do not fully understand this question, consult with an attorney or the Division of Real Estate. Mr. Lista answered "No" to question number 9 on the application for licensure. He signed his name below the Affidavit of Applicant, which provides as follows: The above named, and undersigned, applicant for licensure as a real estate salesperson under the provisions of Chapter 475, Florida Statutes, as amended, upon being duly sworn, deposes and says that (s)(he) is the person so applying, that (s)(he) has carefully read the application, answers, and the attached statements, if any, and that all such answers and statements are true and correct, and are as complete as his/her knowledge, information and records permit, without any evasions or mental reservations whatsoever; that (s)(he) knows of no reason why this application should be denied; and (s)(he) further extends this affidavit to cover all amendments to this application or further statements to the Division of Administrative Hearings or its representatives, by him/her in response to inquiries concerning his/her qualifications. Mr. Lista's signature was notarized, and he submitted the application to the Department in January 1997. The Department approved Mr. Lista's application and issued a Florida real estate salesperson license. The Department subsequently learned that, on December 10, 1985, Mr. Lista pleaded guilty to one misdemeanor charge of Disorderly Intoxication, one misdemeanor charge of Resisting an Officer Without Violence to His Person, and one misdemeanor charge of Assault. Adjudication was withheld by the court, and Mr. Lista was sentenced to probation for a period of six months. Mr. Lista was represented by an attorney in the criminal proceedings, who appeared in court and handled the matter for Mr. Lista. At the time of the final hearing, Mr. Lista recalled being arrested, going to the police station, and being released after about 30 to 45 minutes without having to post bond, and he recalled the details of the 1985 incident leading to his arrest. Mr. Lista also recalled receiving copies of the dispositions of the criminal charges against him. Mr. Lista testified that, at the time he was filling out the application for licensure, he did not recall the guilty pleas and the sentence of probation because the incident had happened 12 years previously. The evidence presented by the Department is sufficient to establish with the requisite degree of certainty that Mr. Lista misrepresented his criminal history by answering question number 9 in the negative. At the very least, the evidence supports a finding that Mr. Lista acted carelessly in answering question number 9 in the negative; certainly, had he reflected for a few moments, he would have recalled the 1985 incident, as well as the guilty pleas and sentence of probation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Real Estate Commission enter a final order finding that Emilio Daniel Lista is guilty of violating Section 475.25(1)(m), Florida Statutes (1997); suspending his real estate salesperson license for a period of one year; and imposing an administrative fine in the amount of $1,000.00. DONE AND ENTERED this 14th day of July, 2000, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO 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 14th day of July, 2000.
The Issue Whether Dionaris Cabrera, (hereinafter "Petitioner Cabrera") the sole stock holder of Florida Sunset Shuttle, Inc., a Dissolved Florida Corporation, was correctly assessed a penalty for violating the workers' compensation laws of Florida, during the period of 2006 through 2008. Whether Petitioner, Florida Sunset Shuttle, Inc., (hereinafter "the old corporation") is responsible for providing workers' compensation coverage for its alleged employees, and whether the old corporation was properly noticed of the violation. Whether Petitioners or either one of them, are in violation of the Workers' Compensation Act during the relevant time period due to the failure to secure workers' compensation coverage for its employees. Whether Florida Sunset Shuttles and Charters, Inc., (hereinafter "the new corporation") is a successor entity of Florida Sunset Shuttle, Inc., or Dionaris Cabrera, d/b/a Florida Sunset Shuttle, Inc., pursuant to Chapter 440, Florida Statutes, and/or Florida Administrative Code Chapter 69L-6. Whether the Stop-Work Orders and amended penalties issued to Petitioner Cabrera and the old corporation were properly applied to the new corporation. Whether the Department of Financial Services, Division of Workers' Compensation (hereinafter "Respondent") is estopped from imposing a penalty on the new corporation due to a prior determination made by the investigator assigned to the file in 2006 and the detrimental reliance upon representations made to Ruben Cabrera and Jennifer Crain, who were representing the old corporation in the proceeding.
Findings Of Fact Respondent is the state agency responsible for enforcing the statutory requirement that employers secure the payment of workers' compensation for the benefit of their employees. § 440.107, Fla. Stat. PARTIES INVOLVED AND RESPONDENT'S ACTIONS Petitioner Cabrera is the sole owner and director of Petitioner Florida Sunset Shuttle, Inc., (the old corporation) a Florida Corporation. She founded the company in 2005. At the time of the hearing and at the time of the imposition of the Stop-Work Order, she was residing outside the United States, most likely in the Dominican Republic. At the time of the issuance of the first Stop-Work Order, the old corporation was administratively dissolved for failure to file its annual report. During the relevant time period, there is no evidence that Petitioner Cabrera was actively controlling day-to-day operations of either the old corporation or the new corporation. Ruben Cabrera and Jennifer Crain were employed by the old corporation, with Ruben Cabrera being the manager and Jennifer Crain being his assistant. Ruben Cabrera also held himself out as an officer of the old corporation. Ruben Cabrera and Jennifer Crain were not directors of the old corporation. Ruben Cabrera had managed the business operations of the old corporation since its creation in 2005. On November 13, 2007, Respondent's investigator, Lisette Sierra (Sierra), conducted a compliance check at the old corporation's worksite, located at 851 East Donegan Avenue, Kissimmee, Florida, to verify compliance with the workers' compensation statutes. Upon arrival at the worksite, Sierra observed that it consisted of a fenced lot with a trailer and several parked buses. At the worksite, Sierra personally spoke with Jennifer Crain and Ruben Cabrera. Petitioner Cabrera was not present. On and after November 13, 2007, Petitioner Florida Sunset Shuttle, Inc., did not carry workers' compensation for anyone associated with the corporation. On November 13, 2007, Respondent issued a Division of Workers' Compensation Request for Business Records to the old corporation. Although two documents were tendered, the records requested were not produced within the 5 business day time period specified in the request. On November 28, 2007, Respondent issued a second Request for Production of Business Records for Penalty Assessment Calculation (hereinafter "Request") directed to Petitioners, Cabrera and Florida Sunset Shuttle, Inc. The Request required Petitioners or either of them, to produce records related to bus drivers who performed services for the company during the specified period. On the same date, Respondent issued a "Stop-Work Order" to Petitioner Cabrera and the old corporation for failure to meet the requirements of Chapter 440, Florida Statutes, and the Insurance Code, ordering Petitioner Cabrera and the old corporation to cease all business operations and assessing a $1,000.00 daily penalty against Petitioner Cabrera and the old corporation, pursuant to Subsection 440.107(7)(d), Florida Statutes, for failure to comply. The Stop-Work Order and Request was posted on the work site on November 28, 2007. On November 30, 2007, Sierra was unable to serve the Stop-Work Order on the old corporation, via its registered agent or an officer. She served the Stop-Work Order and the Request by hand delivery on Jennifer Crain, Assistant Manager, at the company offices. On December 10, 2007, Respondent issued a subsequent Stop-Work Order and Order of Penalty Assessment. It was served on a representative of counsel for all of the Petitioners. The parties named on the first and second Stop-Work Order were "Dionaris Cabrera, d/b/a Florida Sunset Shuttle, Inc., and Florida Sunset Shuttle, Inc., a Dissolved Florida Corporation." Florida Sunset Shuttle, Inc., was found to be an administratively dissolved corporation at the time the Stop-Work Orders were issued. The old corporation continued to operate its business in violation of both Stop-Work Orders issued by Respondent. On December 17, 2007, Respondent issued an Amended Order of Penalty Assessment directed to Petitioner Cabrera and the old corporation, amending the penalty assessed to $346,349.58, pursuant to the formula listed in Sections 440.107 and 440.10, Florida Statutes. Since no business records were received from either Petitioner in response to the Request, the penalty was calculated by imputing the old corporation's gross payroll. After unsuccessful attempts to serve either Petitioner Cabrera or the old corporation, Respondent served the Amended Order, dated December 17, 2007, on an alleged employee of Petitioner Cabrera and/or the old corporation, name unknown, at the company offices on January 3, 2008. Petitioner Cabrera is the mother of Ruben Cabrera, the company manager. She is the sole stockholder, corporate officer, and registered agent listed for Florida Sunset Shuttle, Inc., in the Florida Secretary of State's records. There has not been any contact with Petitioner Cabrera during the course of Respondent's investigation. It appears that Petitioner Cabrera does not live in or around Orlando, Florida. According to Ruben Cabrera, Petitioner Cabrera was living in Santo Domingo, Dominican Republic, during the entire course of their investigation and this proceeding. Ruben Cabrera was the manager who operated the old corporation from its company offices in Kissimmee. He entered into arrangements to provide shuttle bus services for guests to tourist destinations with several hotels in the Kissimmee/Orlando area. While negotiating and signing these contracts with hotels, he held himself out to be an officer of the old corporation. It was unclear from the evidence when the old corporation closed business operations, but it appears to have done so prior to January 1, 2008. On November 30, 2007, Ruben Cabrera incorporated the new corporation. He was named the sole owner, corporate officer, and registered agent. The principal place of business was the same as the worksite of the old corporation, and the addresses of the registered agent and corporation's sole officer were the same as well. On January 30, 2008, Respondent served a 2nd Amended Order of Penalty Assessment (hereinafter "2nd Amended Order") directed to Petitioner Cabrera and the old corporation, on Jennifer Crain, Assistant Manager, at the company office, assessing a $406,349.58 penalty on these two Petitioners. The increase in penalty was due to the allegation that the old corporation continued to operate in violation of the Stop-Work Order. In addition, none of the parties listed on the Penalty Worksheet, attached to the 2nd Amended Order, had current, valid exemptions from workers' compensation coverage. An exemption from workers' compensation allows the exemption holder to be exempt from having to secure the payment of workers' compensation on behalf of himself or herself. None of the persons used to calculate the penalty had workers' compensation exemptions. The penalty period began on November 20, 2006, because a prior investigation by Respondent found the old corporation to be in compliance only up to that date. Utilizing the Scopes Manual published by the National Council on Compensation Insurance and adopted by Florida Administrative Code Rule 69L-6.021, as guidance, Respondent determined that Petitioner Cabrera and/or the old corporation's activities involved clerical workers and bus drivers. Thus, she assigned the class codes 8810 and 7382, respectively, to the old corporation's activities. On January 30, 2008, Respondent also served an Order Applying Stop-Work Order and Amended Order of Penalty Assessment to Successor Corporation or Business Entity (hereinafter "Order Applying") on the new corporation. The Order Applying transferred the effect of the Stop-Work Order and Amended Order issued to the old corporation to the new corporation, based on the allegation that the new corporation was a successor corporation, pursuant to Subsection 440.107(7)(b), Florida Statutes. Ruben Cabrera, the owner/operator, transferred ownership and control of the new corporation to Jennifer Crain on January 9, 2008. Jennifer Crain became the registered agent, sole owner, and officer of the new corporation. It hired some of the drivers who previously worked for the old corporation and put them on salary under the new corporation. The new corporation leased new vehicles and served some of the same routes as the old corporation from the same company location. The new corporation properly carried workers' compensation insurance when served with the Order Applying. Therefore, the new corporation was in compliance with Subsection 440.10(1)(a), Florida Statutes, at the time Jennifer Crain took over ownership and control of the new corporation. COMPANY OPERATIONS Drivers for the old corporation submitted applications for employment to the company, prior to being hired. However, drivers signed contracts with the old corporation which stated that they were independent contractors and not employees, and no deductions were taken out their pay. 1099 Forms were issued at the end of the year. Drivers for the old corporation did not pay insurance on the vehicles they used for business purposes. Drivers for the old corporation were not responsible for the expenditures associated with repair or maintenance of the vehicles used by the drivers for business purposes. The corporation paid for the insurance. Drivers for the old corporation did not pay any fees or charges to the company for use of the vehicles. Drivers for the old corporation paid their own admission fees for entry into amusement parks, or other incidental expenses. Drivers for the old corporation wore black pants and a white shirt as a standard uniform. Drivers for the old corporation were paid according to the length of time for which they worked each day. Drivers for the old corporation did not own the vehicles they used for business purposes. They did not pay the old corporation for use of the vehicles in carrying out the contracts of the old corporation. The vehicles were leased under contract by the old corporation. Drivers for the old corporation did not individually contract with hotels for services, but carried out the contracts entered into by the old corporation. The old corporation did not submit any invoices for services rendered by its drivers. There is no evidence that the drivers maintained separate businesses. Payments to drivers were made to individuals rather than to their "businesses." Drivers for the old corporation were paid by the full day or half day, according to the span of time they worked. Ruben Cabrera entered into contracts with clients of the old corporation. He signed the contracts as either manager or as president of the old corporation. Drivers for the old corporation regularly visited the old corporation's clients to pick-up or drop-off passengers in the course of their employment. The old corporation's contract with at least one hotel refers to the old corporation's drivers as "employees." On June 16, 2008, Respondent issued a 3rd Amended Order of Penalty Assessment directed to Petitioner Cabrera and the old corporation, reducing the fine assessed to them to $131,504.60. The penalty was reduced after Respondent received the old corporation's business records and was able to use them to calculate a penalty. The old corporation received payment for its services from multiple businesses in the Kissimmee/Orlando area. The old corporation's records do not specify who, if any, of the drivers paid by the old corporation are independent contractors. The 3rd Amended Order of Penalty Assessment was served at the DOAH on counsel for the parties. Following a hearing, the Motion to Amend Order of Penalty Assessment was granted by the undersigned ALJ, and this matter proceeded to final hearing. PRIOR INVESTIGATION BY RESPONDENT On September 12, 2006, Respondent initiated an investigation into the alleged violation of the workers' compensation laws of Florida by Petitioner, Florida Sunset Shuttle, Inc. The investigating agent for Respondent, Ray Reynolds (Reynolds), issued a Stop-Work Order on September 15, 2006, for failure to obtain coverage for its employees. It is alleged that in a meeting with Ruben Cabrera, his attorney at the time, and Jennifer Crain, held on September 15, 2006, Reynolds reviewed the contracts with the drivers, and, apparently based on those facts alone, agreed that the bus drivers who worked for Florida Sunset Shuttle, Inc., were independent contractors. He advised the parties of such findings. However, on September 19, 2006, an Amended Order of Penalty Assessment was issued assessing the corporation a penalty of $2,084.09 for the violation. Florida Sunset Shuttle, Inc. did not challenge the findings of Respondent that a violation had occurred, and voluntarily paid the fine for failing to provide coverage for those employees named. It also produced proof of workers' compensation coverage for nine employees, which included Ruben Cabrera and Jennifer Crain.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: The Department of Financial Services, Division of Workers' Compensation, enter a final order dismissing the "Stop- Work Order and Order of Penalty Assessment" directed to Dionaris Cabrera, d/b/a Florida Sunset Shuttle, Inc.; The Department of Financial Services, Division of Workers' Compensation, enter a final order upholding the "Stop- Work Order and Order of Penalty Assessment" and its successor orders directed against Petitioner Florida Sunset Shuttle, Inc., a dissolved Florida corporation; and that The Department of Financial Services, Division of Workers' Compensation, enter a final order upholding the "Order Applying Stop-Work Order and Amended Order of Penalty Assessment to Successor Corporation or Business Entity" against Florida Sunset Shuttles and Charters, Inc., and imposing a penalty of $131,604.60. DONE AND ENTERED this 8th day of December in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of December, 2008.
Conclusions There is competent substantial evidence to support a conclusion that Miami-Dade County owed a duty of care that was breached when its bus driver ran a red traffic signal, directly and proximately causing the Claimant’s permanent and severe injuries. ATTORNEY’S FEES AND LOBBYIST’S FEES: In compliance with Section 768.28(8), Florida Statutes, but not with Section 3 of this claim bill, Claimant’s attorney has submitted a closing statement affirming that the attorney’s fees are 25 percent of the amount of the award, and that the lobbyists' fees are an additional 6 percent. The Claimants have entered into an agreement to pay costs that was approved by the guardian and the court. Costs are expected to range between $25,783.29, the amount as of January 15, 2007, to $75,783.29 by the end of the claim bill process. LEGISLATIVE HISTORY: This is the first time that a claim bill has been filed to compensate Schneidine Theogene. RECOMMENDATIONS: For the reasons set forth in this report, I recommend that Senate Bill 56 (2008) be reported FAVORABLY. Respectfully submitted, cc: Senator Dave Aronberg Representative Carlos Lopez-Cantera Faye Blanton, Secretary of the Senate Eleanor M. Hunter Senate Special Master House Committee on Constitution and Civil Law Mark Kruse, House Special Master Counsel of Record
Findings Of Fact Respondent Pobst had been employed by Petitioner and had obtained permanent status in the career service as a half-time University Parking Patroller, at the time he transferred to the position of Motor Vehicle Operator (MVO) on Friday, April 18, 1986. At that time, he came under the supervision of Terry Fisher, Store Supervisor of the University's Central Receiving Department. The MVO position was full time, with regular hours of 8 a.m. to 5 p.m., and Pobst was on probationary status in that job classification at all times relevant to these proceedings. Prior to being hired in that position he had been counseled by Eugene Weber, Stores Manager (supervisor to Terry Fisher), concerning abuse of leave, but the emphasis was on sick leave abuses. On Monday, April 28, 1986, Pobst reported one hour late due to a weekend holdup, and immediately requested and received authorization from Fisher to take unpaid leave so as to obtain a copy of a report from the Tampa Police Department. Pobst had no annual leave available. When he transferred positions he was already in arrears for time off and already owed money for that time off. Fisher requested that Pobst telephone him later in the day. Respondent completed his business with the Tampa Police Department late in the day and did not need additional time. Nevertheless, he did not call Fisher because the work day was completed when he had the first opportunity to call in. Both Pobst and Fisher understood that Pobst would return to work no later than the beginning of the workday on Tuesday, April 29, 1986. Fisher would have granted additional leave on the same terms (unpaid leave with payroll deduction) had Pobst called in, however, Pobst never called in. Pobst did not report for work on Tuesday, April 29; Wednesday, April 30; Thursday, May 1; or Friday, May 2. From the time Respondent left Fisher on the morning of April 28 until the morning of Sunday, May 4, 1986, Respondent had no contact with his immediate supervisor or with any other individual in his chain of supervision at the University. Late the night of April 28, Pobst was injured in a fight. At 12:30 a.m. on April 29, Pobst was arrested for aggravated assault. The charge was ultimately dismissed by the Hillsborough County Circuit Court. However, he arrived at Hillsborough County Sheriff's Central Booking at 2:20 a.m., was booked at 4:54 a.m., and processed at 6:15 a.m. on April 29. From 2:20 a.m. until 6:15 a.m. on April 29, Pobst was either in a Booking/Releasing Section holding cell without telephones, or on a bench in the Receiving Area with two regular local-only telephones as well as two collect-only telephones that resemble pay telephones. He made one telephone call from a collect call telephone. He made that call to the information operator, in an attempt to get Terry Fisher's home telephone number. The call was refused by the information operator because it "was made from a collect call telephone." Respondent was not allowed to make a second telephone call at that time but was told by the officer in charge of him that he would have an opportunity later to make another call. In any case, Pobst would have been unsuccessful in getting Terry Fisher's home phone number because it was unlisted. He did not again ask to use the telephone for the remainder of April 29, 1986, either during business hours when he might have reached Fisher at work or after business hours. From 6:15 a.m. until approximately 1:00 p.m. on April 29, Respondent was in a Housing and Support Section holding cell consisting of three rooms: a dayroom with collect-only telephones that resemble pay telephones; a sleeping room without telephones; and a vestibule between the sleeping and dayrooms. This was cell 200C/2, which is one of several individual sleeping rooms opening onto a common dayroom with collect-only telephones operable from 7:00 a.m. until 11:00 p.m. Although the sleeping area and dayroom are normally kept locked, confined persons usually have free access to both areas 24 hours a day. However, there are times and circumstances in which the areas are separately locked, and confined persons do not have such free access. At approximately 1:00 p.m. on April 29, Respondent was moved to the infirmary for examination and on medical staff instruction was placed in cell 200C/2 "B", a lockdown cell for medical observation. This particular lockdown cell was intended for confined persons who were deemed to need psychiatric observation. In the psychiatric medical lockdown area, incarcerated persons normally are allowed out of their cells for one hour per day to take a shower, watch television, or make telephone calls. However, special circumstances or inappropriate behavior may result in an inmate being denied the opportunity to leave his cell on any given day. Respondent had no access to a telephone during the move, wait, or infirmary/dispensary visit. Although Pobst's testimony emphasized his physical injuries and confused state of mind resulting from the assault by third persons leading up to his arrest in the midnight hours of April 28-29, he also related that while awaiting medical examination on April 29, he engaged in a fight with three police officers who requested that he undress for the physical examination. It appears to be this belligerent attitude which resulted in his being confined in restraints thereafter. Respondent's candor and demeanor and various inconsistencies in his testimony do not render him credible on the issue of inability to contact his employer during the whole of the time prior to his being placed in restraints or the period after he was released therefrom. His testimony that he was so confused at all times that he could not ask for a phone is not believable in light of the police log that he was in "good" condition on May 2, the testimony of Officer Blackwood that even a very "bad" prisoner would get to use the phone or write a letter if he just asked to do so, and that the property inventory showed Pobst had available $.85 for stamps or a local phone call. For these same reasons, Respondent's testimony that he was not permitted to use the phone at any time is not credible. Respondent's father testified to Respondent's disheveled and beat-up appearance on Friday, May 2, but Respondent appears to have been capable of coherent conversation. Respondent did not visit a medical doctor until May 7, 1986, five days after his release, and then did so primarily for the purpose of obtaining a medical excuse in an attempt to be rehired. Pobst was first placed in restraints at some time on Wednesday, April 30, and was in and out of restraints that day and the next, Thursday, May 1. An individual is placed in medically-approved restraints if he is viewed by the staff as a danger to others, or if the medical staff believes that he is at risk to commit suicide. An individual in restraints may not be allowed out of his cell on any given day and in this condition he is not permitted to use the telephone. On Wednesday, April 30, Fisher advised Eugene Weber, Stores Manager, that Pobst had not reported for work or called in since their Monday conversation. On April 30, after telephoning at least four area hospitals, Fisher telephoned Hillsborough County Sheriff's Office Central Booking and was informed that Pobst was in jail for aggravated assault and that all inmates could make as many telephone calls as they wanted. Fisher reported this information to Weber who reported the same to his supervisor, Keith Simmons, Director of Procurement. 1/ On Thursday, May 1, Simmons telephoned Hillsborough County Jail Central to confirm Fisher's report that Pobst had access to a telephone and was told that all an inmate had to do was ask and that inmates are let out for just such purpose each day. In reliance on this information, Simmons contacted Roland Carrington, Director of Labor Management Relations, requested advice regarding the appropriate University response to Respondent's unauthorized absences, and was told it was appropriate to invoke the job abandonment rule. On Friday, May 2, Respondent Pobst was not in restraints at any time during the day, and his condition and attitude were both noted as "good" on the police log completed at 10:00 a.m. and 4:30 p.m. Respondent did not ask to use a telephone on Friday, May 2 until at least 5:00 p.m., at which time he telephoned his mother in Indiana and then waited in the dayroom for release. When Respondent was allowed to use the telephone on May 2, 1986, he instructed his mother to have his father call his employer to notify him of his whereabouts. She in turn telephoned his father, Robert Pobst, in Tampa. Robert Pobst called for his son at 8:25 p.m. and effected release on bond at 9:40 p.m. on Friday, May 2. After being released from jail at 9:40 p.m. on Friday, May 2, 1986, both Respondent Pobst and his father attempted to reach Respondent's superiors at the University of South Florida. Respondent also attempted to reach Terry Fisher at home, but did not have enough information to get in touch with the right person. On Sunday, May 4, Respondent reached Weber at home by telephone. Pobst explained the circumstances of his absence to Mr. Weber, and informed him he desired to report for work the following morning. Weber explained that Respondent's unauthorized absence was deemed as a resignation via job abandonment and that the paper work had already been processed. However, the true chronology is that upon Weber's notification Friday, May 2, that Pobst had again failed to appear or call that day, Simmons instructed his administrative assistant to prepare a letter of notification to Pobst. The letter provided that he was deemed to have resigned via abandonment. However, it was not until Monday, May 5, 1986, that Simmons actually mailed Pobst the notification of acceptance of his resignation via job abandonment by certified mail, return receipt requested. On Monday, May 5, 1986, before receiving the official notification of abandonment, Pobst reported to the University one hour before the beginning of the work day. At that time Pobst's request for reconsideration of his resignation via abandonment was declined by Simmons in reliance on information from the Sheriff's Department which contradicted Respondent's assertion that he was unable to contact the University during the whole of April 29 through May 2 inclusive. Terry Fisher had the authority to grant Pobst leave for the time he was incarcerated in the Hillsborough County Jail, and would have done so had Respondent given him a telephone call requesting such leave. On April 30, 1986, Terry Fisher, Eugene Weber, and Keith Simmons, all had knowledge that Respondent was incarcerated in the Hillsborough County Jail and had not appeared for work because he was physically unable to be present at work. Although each of Respondent's superiors knew that Respondent was incarcerated in the Hillsborough County Jail and was unable to be at work for that reason, none made any attempt to contact Respondent in order to gain direct information on his employment status or intentions. It was not demonstrated that any University supervisor had any animosity toward Pobst, and it appears that it was not Pobst's being in jail but his failure to call in and their belief that he could have called in and did not do so that influenced Pobst's superiors to invoke the resignation via abandonment rule on May 2. Mr. Weber specifically chose to invoke the rule because he had made a negative assessment of Pobst's credibility from previous absence excuses and because he relied on the telephone representations by law enforcement personnel that Pobst could have called at any time. Additionally, Weber, who was Fisher's superior, took into consideration that late April and early May was an especially busy time of year for Central Receiving because it was the end of the fiscal year and all University departments were receiving large orders in an attempt to exhaust their old budgets before claiming new ones. After May 5, Respondent made numerous efforts to regain his employment. He talked with Fisher, Weber, Simmons, and Roland Carrington in the University's Personnel Office. He requested his then-current position, OPS employment, and work he had performed prior to his transfer on April 18, 1986. Following his termination from employment Respondent made an application for Unemployment Compensation. Because the University of South Florida initially contested his eligibility, Respondent was required to appeal the initial denial of unemployment compensation. Thereafter, Respondent and the University of South Florida were parties before an appeals referee, who conducted a de novo evidentiary hearing. The issue before the appeals referee was whether Respondent "voluntarily left employment without good cause." In determining this issue, the appeals referee applied a test of "good cause" associated with "misconduct" as those words of art are defined or contemplated in Chapter 443 Florida Statutes, determined that Respondent had committed no misconduct, and awarded unemployment compensation.
Recommendation Upon consideration of the foregoing, it is, RECOMMENDED that a Final Order be entered finding Respondent to have abandoned his position with the University of South Florida. DONE and RECOMMENDED this 10th day of April, 1987, at Tallahassee, Florida. ELLA JANE P. DAVIS 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 10th day of April, 1987.
The Issue The issue in this case is whether Respondent may revoke the Petitioner's qualification to bid on Florida Department of Transportation contracts for which pre-qualification is required for one year because of events and correspondence described in a Notice of Intent from Respondent dated October 6, 1999.
Findings Of Fact The Parties. Petitioner, Precision Traffic Counting Inc., d/b/a Buckholz Traffic (hereinafter referred to as "Buckholz Traffic"), is a Florida Corporation with its office located in Jacksonville, Duval County, Florida. Buckholz Traffic is engaged in the business of, among other things, installing traffic signals and signs, and related construction work. Burita Allen is the President and sole stockholder of Buckholz Traffic. Ms. Allen runs the day-to-day operations of Buckholz Traffic. Buckholz Traffic is certified by the Department of Transportation to bid and perform on construction contracts in excess of $250,000.00. Buckholz Traffic has been working with the Department of Transportation since 1966. Respondent, Department of Transportation (hereinafter referred to as the "Department"), is an agency of the State of Florida. The Department is charged with the authority to, among other things, award construction contracts and issued certificates of qualification to bid on Department contracts pursuant to Section 337.14, Florida Statutes. Jeffrey Buckholz. Jeffrey Buckholz holds a Florida Professional Engineering license. Mr. Buckholz is also licensed as an electrician in Florida. Mr. Buckholz is an employee and principal of J.W. Buckholz Traffic Engineering (hereinafter referred to as "Buckholz Traffic Engineering"). Buckholz Traffic Engineering is located in Jacksonville. In his capacity with Buckholz Traffic Engineering, Mr. Buckholz has performed engineering services for the Department and has provided training to Department employees. Mr. Buckholz is not technically an employee, officer, or stockholder of Buckholz Traffic. Nor has Mr. Buckholz received any compensation directly from Buckholz Traffic. Despite the lack of formal relations with Buckholz Traffic, Mr. Buckholz has performed services for Buckholz Traffic and has held himself as representing Buckholz Traffic. These actions have been taken with full knowledge and approval of Buckholz Traffic. For example, Mr. Buckholz has used his electrician's license to pull electrical permits required by Buckholz Traffic to perform work Buckholz Traffic was responsible for. Mr. Buckholz also served as project manager on projects for Buckholz Traffic, including the projects described, infra. Finally, Mr. Buckholz has allowed Buckholz Traffic to utilize his name in an effort to utilize trade recognition of his name. Based upon Mr. Buckholz' actions, as described, infra, and Mr. Buckholz' testimony at hearing, Mr. Buckholz has evidenced an inability to control anger and to act in a non- aggressive, non-threatening manner. Mr. Buckholz, due to his arrogance, has a difficult time following the directions of others and does not react responsibly to anyone who he believes is questioning his decisions. The Haines Street Project. The Department awarded a contract for work on the Haines Street Expressway (hereinafter referred to as the "Haines Street Project"). The Haines Street Expressway is located in Jacksonville, Duval County, Florida. Duval County is located in the Department's District 2. The Standard Specifications for Road and Bridge Construction, 1996 Edition (hereinafter referred to as the "Standard Specifications"), applied to all work on the Haines Street Project. Standard Specification 8-5 provides the following: 8-5 Qualifications of Contractor's Personnel. . . . . Whenever the Engineer shall determine that any person employed by the Contractor is incompetent, unfaithful, intemperate, disorderly or insubordinate, such person shall, upon notice, be discharged from work and shall not again be employed on it except with the written consent of the Engineer. Should the Contractor fail to remove such person or persons the Engineer may withhold all estimates which are or may become due, or may suspend the work until such orders are complied with. . . . This provision of the Standard Specifications provides absolute authority in the Department to require that contractors discharge persons employed by the contractor under the circumstances specified. The prime contractor on the Haines Street Project was Hubbard Construction Company (hereinafter referred to as "Hubbard"). Kevin Oswendel acted as the Project Manager for Hubbard on the Haines Street Project. Buckholz Traffic was one of the subcontractors on the Haines Street Project. Buckholz Traffic's obligations as subcontractor included the sale and installation of large signs to be suspended over the Haines Street Expressway. Mr. Buckholz acted as Project Manager for Buckholz Traffic on the Haines Street Project. The Department's Resident Engineer for the Haines Street Project was David Sadler. The Department's Project Manager for the Haines Street Project was Carrie Stanbridge, a Florida licensed Professional Engineer. Ms. Stanbridge was responsible for project implementation, project oversight, project construction in accordance with the contract specifications, Special Conditions, and the Standard Specifications. Ed Lavant was an Inspector for the Department on the Haines Street Project. On or about November 4, 1998, work scheduled for the Haines Street Project included the inspection of signs. The unloading of beams and trusses for the signs had been scheduled for November 3, 1998, but the manufacturer of the beams and trusses was not able to meet the scheduled delivery time. Any activity on the Haines Street Project which may disrupt traffic was required to be performed consistent with a Maintenance of Traffic Plan (hereinafter referred to as the "MOT"). The MOT for the Haines Street Project originally prepared by Hubbard had been modified prior to November 4, 1998, by Mr. Buckholz. In particular, Mr. Buckholz had revised the times in the MOT when traffic could be disrupted. The revised MOT was in effect on November 4, 1998. The MOT provided that there would be no disruption of traffic between 3:15 p.m. and 6:30 p.m. There were no anticipated lane closures at the project site after November 3, 1998, until midnight on November 5, 1998. The scheduled unloading of beams and trusses on November 3, 1998, was, however, delayed and the first delivery truck arrived on November 4, 1998. The truck arrived prior to 3:15 p.m. with heavy steel support beams and trusses to be used for signs on the Haines Street Project by Buckholz Traffic. Mr. Buckholz was present during the delivery. The subcontractor responsible for traffic control on the Haines Street Project was Acme Barricades. Although Acme Barricades did not know that MOT would be required on November 4, 1998, Acme Barricades was able to perform the required MOT for the lane closure required for the truck to be offloaded. Because of inadequate notice of the arrival of the truck, however, special arrangements had to be made to provide the MOT devices used. Buckholz Traffic also expected a second delivery truck later on November 4, 1998. Therefore, Mr. Buckholz stayed at the site to await the second truck so that he could supervise its unloading. All of the MOT devices that had been used for the first truck, however, had been removed from the site. Mr. Buckholz had informed Mr. Oswendel that there was no need for Acme Barricades to return later in the day for the second truck. Mr. Lavant was aware that there were no MOT devices available at the site and that it was approaching 3:15 p.m., the cutoff time for lane closures provided in the MOT that Mr. Buckholz had prepared for Hubbard. Therefore, Mr. Lavant approached Mr. Buckholz and informed him that he would not be allowed to offload the second truck after 3:15 p.m. because of the disruption to traffic the offloading would cause by the lane closure that would be required by the MOT. Mr. Buckholz informed Mr. Lavant that he intended to offload the second truck by parking the eighteen-wheel delivery truck and an eighteen-wheel boom truck to be used to lift the beams and trusses side-by-side on an on ramp which leads from the Haines Street Expressway to the Hart Bridge. Mr. Buckholz told Mr. Lavant that he intended to divert traffic entering the on ramp around the trucks on a paved area between the ramp and the through-traffic lanes that continued beyond the on ramp. This area is referred to as a "gore area." The gore area is marked by "chevrons" and there is an attenuator at the end of the gore area. The gore area Mr. Buckholz intended to use was not normally used for traffic but was intended as a buffer between the on ramp and the through-traffic lanes on the Haines Street Highway. While it might have been possible to offload the second truck without directly blocking the through-traffic lanes that continued past the on ramp, there still would have been disruption to the traffic using those lanes and Mr. Lavant had the authority to insist on proper MOT compliance. There would also have been disruption of traffic using the on ramp, which was only 14 feet wide. The potential disruption of traffic during the peak traffic rush hour caused a reasonable concern about the safety of the unloading of the truck as proposed by Mr. Buckholz. Mr. Lavant decided that Mr. Buckholz' plan for unloading the truck, which was anticipated to occur during the peak traffic rush hour, would disrupt traffic flow and would not be safe. This was a determination which the Department, and not Mr. Buckholz, had the authority to make. Mr. Buckholz' plan was also inconsistent with the MOT, which he had prepared for approval by the Department, because it would effectively close lanes during the prohibited period between 3:15 p.m. and 6:30 p.m. and the safety devices contemplated by the MOT were not available at the time that Mr. Buckholz indicated he intended to offload the truck. The MOT devices required included an arrow board closing the on ramp lane, an off-duty law enforcement officer, and traffic cones. When Mr. Lavant informed Mr. Buckholz that he could not offload the truck when it arrived because his offload plan was inconsistent with the MOT, Mr. Buckholz informed Mr. Lavant that he was not going to close any traffic lane and, therefore, the offloading of the truck would not be inconsistent with the MOT. Mr. Buckholz insisted that he intended to offload the truck despite Mr. Lavant's directive to the contrary. Mr. Buckholz became more and more confrontational and belligerent with Mr. Lavant and insisted that Mr. Lavant could not stop him from offloading the second truck. It became apparent to Mr. Lavant that Mr. Buckholz did not intend to follow his direction. Mr. Lavant realized that Mr. Buckholz intended to offload the truck when it arrived regardless of his instructions. Therefore, Mr. Lavant telephoned Ms. Stanbridge, the Project Engineer, and requested that she come to the site. Ms. Stanbridge discussed the matter with Mr. Buckholz and informed him that he would not be allowed to offload the truck in the manner he indicated he planned to follow. Mr. Buckholz was no more cooperative with Ms. Stanbridge than he had been with Mr. Lavant. Mr. Buckholz continued to insist that he was not going to block any traffic lane and, therefore, he intended to offload the truck when it arrived. Mr. Buckholz was belligerent and uncooperative with Ms. Stanbridge. Ms. Stanbridge felt physically threatened by Mr. Buckholz. Due to Mr. Buckholz' behavior and his refusal to comply with Ms. Stanbridge's instructions, Ms. Stanbridge telephoned Mr. Sadler, the Resident Engineer, and requested that he come to the site. He agreed. Mr. Sadler spoke with Ms. Stanbridge and Mr. Lavant when he arrived at the site. He then discussed the matter with Mr. Buckholz. Mr. Buckholz told Mr. Sadler that he planned to place the two trucks on the on ramp and offload the beams and trusses when they arrived. Mr. Sadler informed Mr. Buckholz that he would not be allowed to offload the truck because of the disruption to traffic Mr. Buckholz' planned activity would cause. Mr. Buckholz continued to be uncooperative and belligerent toward Mr. Sadler. Due to Mr. Buckholz' continued insubordination, Mr. Sadler told Mr. Buckholz that he intended to telephone law enforcement. Mr. Buckholz became enraged, "got into Mr. Sadler's face," and began yelling at him. Mr. Sadler telephoned law enforcement and also telephoned Mr. Oswendel, Hubbard's Project Manager. Two law enforcement officers arrived first. After Mr. Sadler informed the law enforcement officers of the situation, they informed Mr. Buckholz that the Department was in charge of the roads and, therefore, they would support the Department's decision not to allow Mr. Buckholz to place trucks on the on ramp. Mr. Oswendel arrived between 4:00 p.m. and 4:30 p.m. Mr. Oswendel attempted to discuss the matter with Mr. Buckholz and explained to Mr. Buckholz that he was required to follow the directions of the Department's employees. The discussion quickly turned into a loud confrontation. After having unsuccessfully argued his position with three Department employees, law enforcement, and Mr. Oswendel, Mr. Buckholz became enraged at Mr. Oswendel. Mr. Buckholz threatened Mr. Oswendel with physical violence and suggested that they go behind a building and resolve the matter by fighting. Although Mr. Oswendel was also angry, Mr. Oswendel refused Mr. Buckholz' unprofessional and uncivilized offer. Mr. Oswendel instructed Mr. Buckholz that he was not to offload the truck in the manner that he had informed the Department he intended to use. He then informed Mr. Sadler that he had instructed Mr. Buckholz not to perform any more work at the site that day. Mr. Oswendel then left the site. Mr. Buckholz remained at the site after Mr. Oswendel had left. Mr. Buckholz did not take any action to indicate that he intended to leave the site or that he would follow Mr. Oswendel's direction not to perform any more work at the site that day. The second delivery truck finally arrived approximately 7:00 p.m. Mr. Buckholz again requested that he be allowed to unload the truck from the on ramp. When again told that he could not use the on ramp, Mr. Buckholz requested and was given permission to offload the truck from a side street which ran next to the on ramp. While it was reasonable for Mr. Buckholz to initially contend that he should be allowed to offload the second truck from the on ramp, it was apparent that the Department had properly rejected his plan. Even having been told by three Department employees, Hubbard's Project Manager, and law enforcement that he could not use the on ramp to offload the second truck, Mr. Buckholz continued to insist that he be allowed to do so. Mr. Buckholz has insisted that he reasonably believed that he could offload the second truck safely and consistently with the MOT and, therefore, had followed Department directives. This assertion is rejected because it is not supported by the evidence in this case. The evidence proved that it was Mr. Buckholz' ego which was the real cause of Mr. Buckholz' refusal to comply. Even if Mr. Buckholz had proved that he reasonably believed that he could offload the second truck safely and consistently with the MOT, his continued failure to accept the directive of Department employees with authority to refuse to allow offloading from the on ramp was not reasonable. By letter dated November 10, 1998, Henry Haggerty, the Department's District Construction Engineer, advised Hubbard that Mr. Buckholz would not be allowed back on the project site in any capacity. This directive was consistent with the Department's authority under Standard Specification 8-5. The letter indicated that Buckholz Traffic's failure to comply with the Department's direction would "result in further contractual action." By letter dated November 10, 1998, Hubbard forwarded a copy of Mr. Haggerty's letter to Mr. Buckholz and ordered Mr. Buckholz to "conduct [himself] accordingly." Mr. Oswendel also sent a letter to Buckholz Traffic addressing Mr. Buckholz' unprofessional and uncivil behavior of November 4, 1998. Mr. Oswendel explained his understanding of the MOT requirements for the Haines Street Project and why Mr. Buckholz' actions had been inconsistent with those requirements. Mr. Oswendel informed Mr. Buckholz of the following: "I must insist that you develop a professional approach and civil demeanor toward Hubbard Construction, the FDOT, and anyone associated with the contract. Your actions yesterday were completely unacceptable." No action was taken by Buckholz Traffic to correct Mr. Buckholz' problem controlling his temper following the November 4, 1998, incident on the Haines Street Project. Nor was Mr. Buckholz disciplined in any manner by Buckholz Traffic for his actions on November 4, 1998. Mr. Buckholz did not, however, return to the project site. The Baymeadows/Hampton Glen Project. The Department awarded a contract for the installation of mast-arm signals and curb cut ramps for wheelchair access in a project referred to as the Baymeadows/Hampton Glen project (hereinafter referred to as the "Baymeadows Project"). Baymeadows and Hampton Glen are located in Jacksonville. The Standard Specifications governed all work on the Baymeadows Project, including Standard Specification 8-5. The prime contractor on the Baymeadows Project was Buckholz Traffic. Mr. Buckholz was designated and acted as Project Manager for Buckholz Traffic on the Baymeadows Project, although Ms. Allen also communicated with the Department concerning the project. A subcontractor was engaged by Buckholz Traffic to perform the curb cut work on the project. The Department's Resident Engineer for the Baymeadows Project was David Sadler. The Department's Project Manager for the Baymeadows Project was Stephanie Maxwell, a Florida licensed Professional Engineer. Ms. Maxwell was responsible for project implementation, project oversight, project construction in accordance with the contract specifications, Special Conditions, and the Standard Specifications. Mr. Lavant and David Schweppe were Inspectors for the Department on the Baymeadows Project. Mr. Schweppe had been employed by the Department only since August 1998. During the Spring of 1999 Mr. Lavant informed Ms. Maxwell that curb cuts on the project were not in compliance with contract specifications. Ms. Maxwell informed Buckholz Traffic in a letter dated April 20, 1999, that the construction of the curb cuts was not in compliance with the Roadway and Traffic Design Standards. Ms. Maxwell informed Buckholz Traffic that the curb cuts would have to be replaced. Ms. Allen responded to Ms. Maxwell's letter by letter dated May 1, 1999. Ms. Allen informed the Department that "[Buckholz Traffic had] no intention of removing and reinstalling the curb cuts without appropriate compensation and additional contract time." Such demands are required to be made after a contract is completed, not as a condition for contract fulfillment. Following receipt of Ms. Allen's letter, Ms. Maxwell arranged a meeting with Mr. Buckholz to discuss the curb cuts. The meeting was scheduled for May 28, 1999. Ms. Maxwell and Mr. Schweppe went to the project site on May 28, 1999, for the scheduled meeting. Mr. Buckholz was already there waiting for them. Ms. Maxwell, Mr. Schweppe, and Mr. Buckholz went to two of the defective curb cuts and Ms. Maxwell explained to Mr. Buckholz why the curb cuts were insufficient. At some point, Mr. Buckholz stated that the inspection of the curb cuts was the worst inspection job he had ever seen. Mr. Schweppe responded by saying that the construction job was the worst that he had ever seen. Mr. Buckholz, who does not take any criticism lightly, especially from anyone that he considers "inferior" to himself, became very upset about Mr. Schweppe's comment about the construction of the curb cuts. Mr. Buckholz got very close to Mr. Schweppe and began yelling and cursing at him. Mr. Buckholz was physically threatening and attempted to provide a physical altercation with Mr. Schweppe. Neither Mr. Schweppe nor Ms. Maxwell responded in kind to Mr. Buckholz. While the comments by Mr. Buckholz concerning the Department's inspection and the comments by Mr. Schweppe concerning the construction by the subcontractor that performed the curb cut work were unnecessary, Mr. Buckholz' response was in no way justified or professional. Ms. Maxwell attempted to get the discussion back on track by moving to a third curb cut. She crossed the street to the sidewalk to the location of the third curb cut. Mr. Schweppe followed. Mr. Buckholz followed Mr. Schweppe continuing to yell, curse, threaten, and attempting to provoke Mr. Schweppe. When Mr. Buckholz reached the sidewalk, he continued to walk away from the curb cut and the road down into a swale or ditch next to the sidewalk. Mr. Buckholz told Mr. Schweppe to come down into the ditch so he could "whip his ass." Mr. Buckholz continued to challenge Mr. Schweppe. At some point Mr. Schweppe did respond to Mr. Buckholz by telling him that "there is plenty of room right here," in reference to where Mr. Schweppe was standing. After it became apparent to Mr. Buckholz that Mr. Schweppe was not going to come to him, he returned to where Ms. Maxwell and Mr. Schweppe were standing waiting for him. As soon as he got to Mr. Schweppe, Mr. Buckholz struck Mr. Schweppe two times in the face with his fist without warning, provocation, or any justification. Nothing that Mr. Schweppe had done gave Mr. Buckholz even the slightest cause to strike Mr. Schweppe. Mr. Buckholz simply struck Mr. Schweppe because he had lost total control of himself and believed that resolving a confrontation by resorting to physical violence was acceptable conduct. Even at the formal hearing of this case, Mr. Buckholz continued to express his belief that such conduct is an acceptable way to resolve differences. After being "sucker" punched by Mr. Buckholz, Mr. Schweppe grabbed Mr. Buckholz in an effort to prevent him from any further attack. Mr. Schweppe was able to wrestle Mr. Buckholz to the ground, where he held him until he thought Mr. Buckholz was calming down. At no time did Mr. Schweppe strike Mr. Buckholz. After Mr. Schweppe received assurances from Mr. Buckholz that he had calmed down, Mr. Schweppe let Mr. Buckholz up. Mr. Schweppe had Mr. Buckholz pinned face down by his neck. When Mr. Schweppe released Mr. Buckholz, he did not push his face into the dirt. Mr. Schweppe and Ms. Maxwell immediately crossed the street to return to Ms. Maxwell's automobile so that she could telephone the police. Mr. Buckholz followed them and attempted to attack Mr. Schweppe again, but Ms. Maxwell attempted to stand in his way. When she did, Mr. Buckholz grabbed Ms. Maxwell by her arms and shoved her aside. Mr. Buckholz continued to yell, curse, and threaten Mr. Schweppe, who had turned to face him. Ms. Maxwell, who was reasonably concerned about her safety and that of Mr. Schweppe, telephoned law enforcement. Mr. Schweppe filed a complaint against Mr. Buckholz and he was eventually arrested. Mr. Schweppe suffered serious injuries to his face which required medical attention as a result of Mr. Buckholz' attack. Following the May 28, 1999, assault on Mr. Schweppe, the Department sent a letter dated June 1, 1999, to Ms. Allen informing her that "Mr. Jeffery Buckholz was no longer allowed to be present at the job site in any capacity. Failure on the part of Buckholz Traffic to comply with this directive will result in additional actions under the contract." This letter was from Greg Xanders, the State Construction Engineer for the Department. Mr. Xanders' letter of June 1, 1999, and the directive therein, was authorized by, and consistent with, Standard Specification 8-5. Buckholz Traffic was also directed to provide proof that Mr. Buckholz would no longer be a threat to Department employees before Mr. Buckholz was allowed to return to any Department project job site. In light of Mr. Buckholz' actions, this request was reasonable. Buckholz Traffic's Response to the Department's June 1, 1999, Directive. Ms. Allen responded to the Department's June 1, 1999, letter on behalf of Buckholz Traffic by letter dated June 6, 1999. Ms. Allen's response was as arrogant and unreasonable as the conduct of Mr. Buckholz that precipitated the June 1, 1999, letter. Based upon a reading of Ms. Allen's June 6, 1999, letter as a whole, Buckholz Traffic essentially told the Department it intended to take no action with regard to correcting Mr. Buckholz' conduct. Instead of indicating any concern over Mr. Buckholz' inappropriate conduct, Ms. Allen stated, in part, the following: We fully intend on completing this and other FDOT assignments using the same staff that was initially assigned to the projects. Consequently, we directly challenge your self-serving interpretation of Section 8-5 of the Standard Specification and will not cooperate with directives that are issued without due process and that fly in the face of basic freedoms guaranteed in the US Constitution. Ms. Allen went on to state the following, which summaries the attitude of Buckholz Traffic concerning its unwillingness to give the Department any assurances that Mr. Buckholz would not be a threat to the safety of other Department employees: So what do I need to clear Mr. Buckholz' good name, a "letter of normalcy" from a shrink or a "certificate of contriteness" from the local Baptist Church?" Ms. Allen and Buckholz Traffic responded to the legitimate fears of the Department about Mr. Buckholz' conduct with sarcasm rather than in a meaningful way. Ms. Allen and Buckholz Traffic made no effort to cooperate with the Department or attempt to correct a problem with a person that had consistently held himself out as an important part of Buckholz Traffic. Buckholz Traffic told the Department it would not comply with the directive the Department was authorized to issue pursuant to Standard Specification 8-5. By letter dated June 17, 1999, Mr. Xanders responded to Ms. Allen's June 6, 1999, letter. Mr. Xanders informed Ms. Allen that the Department welcomed any explanation of the incident she wished to give. Mr. Xanders also suggested that legal counsel for Buckholz Traffic, if any, could contact Department legal counsel to provide an explanation. Mr. Xanders restated the Department's directive, clarifying that the directive only pertained to construction work by Mr. Buckholz and not his engineering work. Ms. Allen made no effort to respond to Mr. Xanders' offers. Mr. Buckholz' Return to Baymeadows. A meeting was scheduled for August 11, 1999, between Ms. Maxwell and representatives of the City of Jacksonville (hereinafter referred to as the "City"). The meeting had been scheduled to turn on the newly installed traffic signals. In direct contravention to the Department's directive to Buckholz Traffic that Mr. Buckholz not return to the Baymeadows Project site, Mr. Buckholz returned to the site on August 11, 1999, to attend the meeting Ms. Maxwell had scheduled with the City. At no time did Ms. Allen, Mr. Buckholz, or anyone else on behalf of Buckholz Traffic request permission of the Department for Mr. Buckholz to return to the project site. Mr. Buckholz and Ms. Allen fully understood that Mr. Buckholz was not to return to the Baymeadows Project site. Despite their understanding of the Department's reasonable directive, Mr. Buckholz claimed to have returned to the site at the invitation of representatives of the City. He also claimed to have returned to the site to assist the City with the installation of traffic light timing software he had prepared and not in any capacity with Buckholz Traffic. Testimony in support of Mr. Buckholz' claims was not convincing. Nor was the evidence concerning the necessity that Mr. Buckholz be on the site during a meeting with Department employees convincing. Mr. Buckholz simply chose to ignore the Department's directive not to return to the site. Mr. Buckholz continued to believe that his actions on May 28, 1999, were justified and failed to consider the harm his conduct had caused to Department employees. Mr. Buckholz arrogantly volunteered his services to the City so that he could flaunt the Department's directive not to appear at the site. Had Mr. Buckholz given the Department's directive any consideration, he could have waited for the City and Department to complete their meeting and then meet with City representatives to perform any work required of him. The Department's Reaction to the Failure of Buckholz Traffic to Comply with the Directive of June 1, 1999. Mr. Xanders has been responsible for providing policy and procedure guidelines for the Department's Districts, carrying out construction programs, and providing training and quality assurance initiatives. In his capacity as State Construction Engineer, Mr. Xanders reviewed Mr. Buckholz' conduct described supra, and the reactions of Buckholz Traffic to Department directives concerning Mr. Buckholz' conduct. Mr. Xanders reviewed and relied upon correspondence from Ms. Allen dated May 1, 1999, May 16, 1999, and June 6, 1999. Based upon the foregoing, the Department informed Buckholz Traffic by letter dated October 6, 1999, that the Department was revoking Buckholz Traffic's qualification to bid.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department revoking the qualification to bid of Precision Traffic Counting, d/b/a Buckholz Traffic, for a period of one year from the date of the final order and that Precision Traffic Counting, d/b/a Buckholz Traffic be considered non-responsible to bid on any construction or maintenance contract and to act as a material supplier, subcontractor, or consultant on any Department contract or project during the period of the revocation. DONE AND ENTERED this 3rd day of May, 2000, in Tallahassee, Leon County, Florida. LARRY J. SARTIN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of May, 2000. COPIES FURNISHED: M. Lee Fagan, Esquire 3030 Hartley Road, Suite 105 Jacksonville, Florida 32257 Robert Aguilar, Esquire Smith, Metcalf, Aguilar & Sieron, P.A. Post Office Box 855 Orange Park, Florida 32067-0855 Brian F. McGrail, Esquire Brian A. Crumbaker, Esquire Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Thomas F. Barry, Secretary Attn: James C. Myers, Clerk Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Pamela Leslie, General Counsel Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0458
Findings Of Fact On February 29, 1984, DOT received bids on a highway construction project designated as follows: Federal Aid Project No. F-300-2(3)(JOB No. 11070-3504), Lake County, Florida ("the project"). Six bids were submitted. Intervenor was the apparent low bidder, having submitted a bid in the amount of $5,479,403.76. Petitioner was the apparent second low bidder at $5,491,602.16. Following a review of the bid submitted by Intervenor, DOT determined Intervenor to be the lowest responsible bidder and announced its intention to award the project to Intervenor by posting the bid tabulations on April 9, 1984. Thereafter, Petitioner filed its notice of protest with DOT within the time provided in Section 120.53, Florida Statutes. The project at issue in this proceeding is a federal aid project. In order for DOT to receive federal aid funding from the United States Department of Transportation for the project, the Federal Highway Administration must concur in DOT's decision to award the contract to a particular contractor. At the time of the bid letting, Petitioner held a Certificate of Qualification with DOT. Thereafter, however, on April 20, 1984, Petitioner was convicted by the United States District Court for the Northern District of Florida, Tallahassee Division, of conspiring to submit collusive, non- competitive and rigged bids in violation of Title 15, United States Code, Section 1. Thereafter, on June 1, 1984, DOT sent Petitioner a notice by certified mail that it intended to revoke Petitioner's Certificate of Qualification pursuant to Section 337.165, Florida Statutes. The notice advised Petitioner that it could request a hearing within ten days of receipt of notification, but Petitioner chose not to request such a hearing. Thereafter, by final agency action of June 18, 1984, DOT revoked Petitioner's Certificate of Qualification to participate as a contractor on DOT projects for a period of 36 months commencing June 18, 1984. On June 18, 1984, the Federal Highway Administration declared Petitioner unacceptable for employment on any future highway projects requiring Federal Highway Administration approval or concurrence for a period of six months commencing June 1, 1984, and ending December 17, 1984. This action was based upon Petitioner's aforementioned conviction.
The Issue The issue in this case is whether Petitioner has just cause to terminate Respondent's employment as an educational support employee.
Findings Of Fact Mr. Denson first became employed with the School District in May 1992 as a helping teacher at a behavioral school. He was transferred to attending the disciplinary room and remained in that position until 1996, when he resigned to take a position at a juvenile prison. The new job fell through, and he became reemployed with the School District in 1997. He remained employed with the School District until May 30, 2005, when he resigned to work in the private sector as an air- conditioner technician. In April 2006, Mr. Denson became employed with the School District as a bus driver. Pursuant to the Support Personnel Association of Lee County Collective Bargaining Agreement (SPALC Agreement), Mr. Denson is an annual contract employee. On or about July 31, 2006, at approximately 1:28 p.m., Mr. Denson was driving school bus number 533 south on Southeast 8th Place in Cape Coral, Florida. He was doing a dry run or practice run of the school bus route for which he had bid to make sure that he could make the trip in the time allotted. There were no students in the bus. Neither the horn nor the radio on the bus was functional. A maintenance crew was working at a residence located at 3138 Southeast 8th Place in Cape Coral. A black Ford F150 truck with a trailer belonging to the lawn maintenance company was parked on the side of the road, blocking the road. As a result, Mr. Denson could not pass the truck with the school bus he was driving. Erick Baker, one of the lawn maintenance workers, was at the trailer putting up some equipment and putting on a backpack, wand-type weed sprayer containing Ortho Weed-B-Gone, a chemical weed killer. The wand of the sprayer is about two feet long and is activated by pressing a trigger. Mr. Denson signaled with his hands for someone to move the truck. Mr. Baker signaled to Mr. Denson, suggesting that he was not the driver and to wait a moment. Mr. Baker began to walk toward the house while spraying weeds. Mr. Denson opened the bus door and yelled that he needed to have the truck moved so he could proceed with his route. Mr. Baker continued to spray the weeds. Mr. Baker may have not heard Mr. Denson because one worker was operating a leaf blower and another was operating a riding lawn mower. Mr. Denson then exited the bus and approached Mr. Baker, who had his back to Mr. Denson. Mr. Baker, with the sprayer wand in his hand, turned toward Mr. Denson. The wand was pointed in the direction of Mr. Denson's face, approximately six to 12 inches away from Mr. Denson's eyes and mouth. Mr. Denson felt threatened, knocked the sprayer away, and struck Mr. Baker in the head. Mr. Baker never sprayed Mr. Denson with the chemicals in the sprayer. Mr. Denson claims that he struck Mr. Baker in self- defense, stating that when Mr. Baker turned around, Mr. Denson told him he needed to get the sprayer out of his face and that Mr. Baker replied that he would "spray Mr. Denson's ass." Mr. Baker denies saying that he would spray Mr. Denson. Mr. Baker's testimony is more credible. The two men fell to the ground with Mr. Denson on top of Mr. Baker. Mr. Denson hit Mr. Baker in the forehead again. Mr. Baker never struck Mr. Denson. Another worker with the maintenance crew grabbed Mr. Denson and pulled him off Mr. Baker. Mr. Denson returned to his bus and used his cell telephone to contact the Transportation West Zone Office of the School District to report the incident. Mr. Baker called the police to report the incident. After the altercation, Mr. Baker told Mr. Denson that he should have sprayed Mr. Denson. Officer B. W. Kearney of the Cape Coral Police Department was dispatched to the scene. Officer Kearney completed an Incident/Investigation Report, indicating that he was dispatched to a battery. In the report, Officer Kearney stated that Mr. Denson admitted punching Mr. Baker; however, Mr. Denson felt he acted in self-defense. Officer Kearney noted that Mr. Baker had no visible injuries and declined medical attention. Mr. Baker did not press charges, and Mr. Denson was not arrested. In response to Mr. Denson's call, Dale Maybin, assistant supervisor of the Transportation West Office, reported to the scene of the incident where he spoke with Officer Kearney. Mr. Maybin later submitted an Investigation Request form along with a written statement to the Department of Professional Standards and Equity. Mr. Denson was informed via certified letter dated August 7, 2006, from the superintendent that he was being suspended with pay pending the outcome of the School District's investigation into the matter. In accordance with Section 7.09 of the SPALC Agreement, a predetermination conference was scheduled with Mr. Denson for October 26, 2006, to review the allegations and to give Mr. Denson an opportunity to respond. Mr. Denson was advised of the conference via certified letter dated October 11, 2006, from Dr. Gregory K. Adkins, executive director of Human Resources and Employee Relations. The letter included a copy of the School District's investigative file. The predetermination conference took place as scheduled and was attended by Mr. Denson and Suzan Rudd, Island Coast FEA Service Unit director. Mr. Denson and Ms. Rudd were given an opportunity to address the allegations. Subsequent to the predetermination conference, a determination was made that probable cause existed to discipline Mr. Denson for his conduct. A certified letter dated October 30, 2006, was sent to Mr. Denson, advising him of the probable cause determination. The letter also advised that a recommendation would be made to the superintendent that Mr. Denson be terminated from his employment with the School District. By letter dated November 8, 2006, Robert J. Coleman, Esquire, advised the School Board's attorney that he had been retained to represent Mr. Denson. A Petition for Termination of Employment (Petition) was prepared, and a copy was forwarded to Mr. Denson's attorney on November 9, 2006. The Petition advised that the matter of Mr. Denson's termination was scheduled to be heard by the School Board on December 5, 2006. On November 13, 2006, Mr. Denson's attorney forwarded a letter to the School Board's attorney requesting a formal administrative hearing regarding the matter of Mr. Denson's termination. On December 5, 2006, the Petition was heard by the School Board. At that time, Mr. Denson was suspended without pay pending the outcome of a hearing to be conducted by the Division of Administrative Hearings. The School Board has a "zero" tolerance policy for threats of violence made by staff of the School District as set forth in Policy 2.71. The School Board has also adopted Policy 4.10, requiring employees of the School District to be in compliance with state and federal laws and with certain ethical standards. School District Administrative Regulation 2.61(1) provides: All employees are expected to exemplify conduct that is lawful and professional and contributes to a positive learning environment for students. All employees are expected to meet the specific standards as described in the Employee Handbook(s), negotiated contracts, the Principles of Professional Conduct for the Education Profession in Florida as described by State Board of Education Rule, and all local State and federal laws.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Lee County School Board enter a final order finding that just cause exists for termination of the employment of Mr. Denson and dismissing Mr. Denson from his employment as a school bus operator with the School District. DONE AND ENTERED this 18th day of April, 2007, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of April, 2007.
Findings Of Fact Respondent, Arrowhead Campsites, owns a sign located one mile east of State Road 71 on Interstate Highway 10 in Jackson County, Florida. The sign is located 139 feet from the edge of the highway, and is clearly visible from the main traveled portion of that highway. At the time of the petition in this case, no permit tag was located on the sign, and, additionally, no permit tag was on the sign when last inspected on October 2, 1978, four days prior to hearing in this cause. Respondent, Arrowhead Campsites, owns a sign located .6 miles west of State Road 69 on Interstate Highway 10 in Jackson County, Florida. This sign is clearly visible from the main traveled portion of the roadway, and is located 188 feet from the edge of the roadway. In addition, the sign is located 240 feet from an interchange on Interstate Highway 10. At the time the petition in this cause was filed on March 28, 1978, no permit tag was located on the sign, and, further, no permit tag was located on the sign on October 2, 1978, four days prior to the hearing in this cause. Both the sign located one mile east of State Road 71 on Interstate Highway 10 and the sign located .6 miles west of State Road 69 on Interstate Highway 10 bear copy advertising Arrowhead Campsites. Both of the signs in question are located outside any incorporated city or town. Any proposed findings of fact submitted by Respondent and not incorporated in this recommended order are specifically rejected.
Recommendation Based upon the above findings of fact and conclusions of law, it is RECOMMENDED that the application of the L&N Railroad Company to close the Johnson Street or Post Office Road rail/highway crossing be DENIED. Respectfully submitted this 24th day of October, 1979, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Dawn E. Welch, Esquire Beggs and Lane Post Office Box 12950 Pensacola, Florida 32576 John Dowd, Esquire Post Office Box 129 Fort Walton Beach, Florida 32548 Philip S. Bennett, Esquire Department of Transportation Haydon Burns Building 605 Suwanee Street Tallahassee, Florida 32304 Secretary William N. Rose Department of Transportation Haydon Burns Building 605 Suwanee Street Tallahassee, Florida 32301
