The Issue The issue is whether a penalty should be imposed on Pettegrove Equipment for driving a truck over a bridge when the truck weighed more than the posted bridge weight limit.
Findings Of Fact Raymond S. Cran drove a loaded dump truck owned by Pettegrove Equipment over a bridge on State Road 850 which crosses over Florida's Turnpike on September 26, 1990. The truck weighed 69,100 pounds. The truck was a straight truck, not a tractor trailer combination. The bridge which Mr. Cran drove across is a low limit bridge. Signs were posted in five places on the approaches to the bridge of the 26 ton limit for straight trucks. The first is at the intersection of State Road 850 and East Highland Pines Drive, which states "Weight Limit Restriction Ahead." One mile from the bridge at the intersection of Green Meadows Road is a second sign which states "Weight Limit" and has silhouettes of a straight truck and of a tractor trailer combination, showing a 26 ton limit for the straight truck and a 38 ton limit for the tractor trailer combination (tractor trailers have a higher limit because their weight is distributed differently). Similar signs are posted one half mile from the bridge, two tenths of a mile from the bridge, and at the foot of the bridge. Officer Joseph Barkas, a Department of Transportation Motor Carrier Compliance Officer, stopped Mr. Cran and prepared the Load Report and Filed Receipt describing the incident. The Respondent did not dispute that the truck was 17,100 pounds overweight, nor that the penalty for crossing the bridge based on that weight is $865, as shown on the Load Report and Field Receipt. Pettegrove Equipment disputes the fine because it's driver misunderstood the weight limit signs on the approach to the bridge. The silhouette of the straight truck is much shorter than the silhouette of the tractor trailer combination. Mr. Cran believed that the 26 ton limit for a straight truck applied to only small trucks, such as pickup trucks, and not to a large dump truck like the one he was driving. This contention is unpersuasive. Ordinary pickup trucks are incapable of carrying loads any where near 26 tons. Mr. Cran's interpretation is simply unreasonable. The limitations for straight trucks were clearly posted, and were violated.
Recommendation It is RECOMMENDED that a final order be entered by the Department of Transportation sustaining the fine of $865 assessed against Pettegrove Equipment. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 4th day of June 1992. COPIES FURNISHED: Vernon Whittier, Esquire Assistant General Counsel WILLIAM R. DORSEY, JR. Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of June 1992. Florida Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Ann Porath, Esquire Wellington Country Plaza Suite 209 12773 Forrest Hill Boulevard West Palm Beach, Florida 33414 Ben G. Watts Secretary Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Attn: Eleanor F. Turner Thornton J. Williams General Counsel Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street Tallahassee, Florida 32399-0458
Findings Of Fact Respondent, Mary Jean Brooker, is a teaching veteran of approximately 18 years, and most recently was employed by Petitioner as a specific learning disabilities (SLD) teacher at Bear Creek Elementary School in St. Petersburg, Florida, pursuant to an annual contract. Respondent received worker's compensation benefits from June 8, 1992, to November 30, 1992, based on the recommendation of Petitioner's worker's compensation doctor, Scott Russell, M.D., her treating physician, and Terry Dillon, M.D., who conducted an independent medical exam (IME) at Petitioner's request. Respondent's leave (and claim for benefits) was caused by an accident in which she was injured on June 8, 1992, when a recycling truck backed into her vehicle while she was driving on school grounds. The injury in the above accident aggravated a previous back injury that Petitioner sustained when she was "rear ended" in an automobile accident in December 1990. Upon being placed on worker's compensation leave, Respondent was not advised by Petitioner's employees or agents what her limitations were in terms of working at home or elsewhere. Dr. Terry P. Dillon, a self-employed physician employed by Medical Doctors of Morton Plant, Inc., conducted an IME on Respondent. Dr. Dillon specializes in treating and evaluating patients who sustain on the job injuries and consults with industrial managers on work place injuries. Dr. Dillon's evaluation was requested by Petitioner's risk management section. Dr. Dillon took a medical history of Respondent and conducted muscular, skeletal and imaging studies. Dr. Dillon also reviewed Respondent's prior medical records. Dr. Dillon's first examination of Respondent was on September 17, 1992. He noted that Respondent had a long history of low back pain; facial joint pain with some symptoms which were spontaneous and other lower back and neck pain and facial joint injuries stemming from the motor vehicle accident during December 1990. During the more recent accident of June 8, 1992, Dr. Dillon observed an increase in the symptoms and Respondent also consulted with a chiropractor and a neurologist who observed tenderness over Respondent's neck muscles and shoulder blades. Dr. Dillon observed no evidence of injuries to Respondent's upper extremities other than a mild compression of nerves in the upper torso area. Dr. Dillon evaluated the tenderness in Respondent's low back but he detected no spasms. He found some sciatic tenderness in the lower extremities although he noted no lower nerve deficits during the normal clinical exam. Dr. Dillon observed some degenerative changes associated with age and the accident related injuries. He was unable to tell if bony changes were due to the more recent August 1992 motor vehicle accident or were a result of the earlier accident. He opined that it was more likely than not that the injury was not related to the '92 accident. Finally, Dr. Dillon speculated that Respondent evidenced some "psychological investment of pain" however he could not confirm his speculation. Dr. Dillon opined that Respondent should "go forward with an active rehabilitation program" and that after approximately four weeks she should be able to return to work part-time in light duty status and perhaps after eight weeks of following such a regimen, Respondent should be able to return to work full-time after 16 weeks. In concluding, Dr. Dillon opined that Respondent was totally unable to work the entire month of September 1992, although he felt that thereafter she should have been able to work on a part-time basis. Respondent was not issued any work restrictions by Dr. Dillon. Respondent was rated "temporary total disability" by Dr. Dillon which means that she was unable to do a combination of sitting, standing and walking during a three to four hour period. Respondent also served as an SLD coordinator while employed at Bear Creek. As an SLD teacher and coordinator, Respondent had to assess and work with the development of skills for SLD students. Her class sizes ranged from a high of 20 to a low of 8 students and the instruction was individualized. In 1992, Respondent advised her principal, Susan Daniels, that she had an auto accident during 1990 although she did not request any specific accommodation based on the injuries sustained in that accident. During the summer of 1992, while employed as a summer school teacher, Respondent was involved in the August 1992 accident. As a result of that accident, Respondent incurred injuries and advised Daniels that she would be unable to continue teaching during the summer and the beginning of the 1992-93 school year. Respondent also told Daniels during the summer of 1992 that she, at times, experienced severe pain from the 1992 accident. Respondent's husband purchased a daycare center during 1991. When the business was purchased, Respondent often assisted her husband in the operation of the daycare after school hours and on weekends. For her services, Respondent was paid a salary until July 1993. While Respondent was convalescing after the 1992 accident, she often went to the daycare center, out of boredom, to assist the daycare staff. The daycare center has a staff of approximately eight teachers who work a full time schedule. Prior to the accident during 1992, Respondent worked approximately eight to ten hours per week at the center. After the accident, she has been working approximately 2 1/2 to 4 hours per week doing such things as answering the phones, responding to inquiries about rates, assisting in billings and other related chores. Respondent and her husband moved to a new residence on September 18, 1992. Respondent assisted in the move by doing such things as loading clothing, lamps and light items such as pictures and other small memorabilia into her car. Additionally, Respondent assisted in cleaning the old home that they were moving from and she did some cleaning of the new home before they placed heavy furniture and appliances in the home. Respondent did not do any heavy lifting or pulling during the move on September 18, 1992. Respondent has "good" and "bad" days. In other words, her level of pain fluctuates from day to day. Respondent was placed under surveillance by the worker's compensation carrier for Petitioner. During the surveillance, Respondent was observed assisting in the move from periods up to two hours during the a.m. and approximately three hours during the p.m. on September 19, 1992. However, Respondent did not lift any heavy items and the videotape of the move did not establish anything to the contrary. To the extent that she was seen lifting a large trash bin, it could not be determined how heavy that trash bin was. Respondent was assisted, by another female, in lifting the trash bin and taking it to the sidewalk. Investigators Angela Elliott and Clifford Froggat placed Respondent under surveillance during September and November 1992. On November 5, Respondent was observed travelling from her residence to the daycare center where she remained an undetermined amount of time. Respondent has been paid worker's compensation benefits for the injuries sustained in the June 8, 1992, motor vehicle accident. Respondent has filed a tort claim against the alleged tortfeasors and she expects to repay the Petitioner for any worker's compensation benefits that she recovers as a result of that claim. Respondent reported for work when she was released by her treating physician.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Petitioner enter a final order withdrawing the suspension and ultimate dismissal of Respondent and reinstate her to the position of an SLD teacher and make her whole for any loss of pay she sustained as a result of her dismissal. DONE AND ENTERED this 6th day of April, 1994, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of April, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-2293 Rulings on Petitioner's proposed findings of fact: Paragraph 6, adopted as relevant, paragraphs 2 and 3, Recommended Order. Paragraph 8, adopted as modified, paragraph 7, Recommended Order. Paragraph 12, adopted as modified, paragraph 17, Recommended Order. Paragraph 14, adopted as modified, paragraph 15, Recommended Order. Paragraph 15, adopted as relevant, paragraph 14, Recommended Order. Paragraphs 16 and 17, rejected irrelevant. Paragraphs 18 and 19, adopted in the Preliminary Statement, paragraph 1. Rulings on Respondent's proposed findings of fact: Paragraphs 5 and 6, adopted as modified, paragraph 22, Recommended Order. Paragraph 9, adopted as modified, paragraph 20, Recommended Order. Paragraphs 10 and 11, rejected, irrelevant and/or subordinate. Paragraphs 15 and 16 rejected, argument. Paragraph 18, rejected, not probative. COPIES FURNISHED: Robert G. Walker, Jr., Esquire 1432 Court Street Clearwater, Florida 34616-6147 Lawrence D. Black, Esquire 650 Seminole Boulevard Largo, Florida 34640-3625 Douglas L. "Tim" Jamerson Commissioner of Education The Capitol Tallahassee, Florida 32399-0400 Dr. J. Howard Hinesley Superintendent Pinellas County Schools 301 Fourth Street, Southwest Largo, Florida 34640-3536
Findings Of Fact Respondent holds license No. 23-2287 issued by petitioner on September 22, 1978. Petitioner's exhibit No. 3. On March 15, 1976, respondent Williams signed a stipulation which Charles A. Nuzum signed, on behalf of petitioner, on April 6, 1976. Petitioner's exhibit No. 1. By this stipulation, respondent waived entry of a formal order and agreed, inter alias to: [a]ssume full responsibility and control of Mamma's Restaurant by having all permits, licensees [sic], and accounts transferred to his name . . . [and; to f]ile an affidavit with the Florida Division of Beverage stating that Ethel Buckley has completely divested her interest in Mamma's Restaurant, . [and] that Ethel Buckley will have no direct or indirect interest in Mamma's Rest., nor . . . be employed in any capacity whether compensated or not for her work. Petitioner's exhibit No. 1. Attached to the stipulation is an affidavit executed by respondent on March 15, 1976, reciting the matters called for in the stipulation. Petitioner's exhibit No. 1. Florida Power and Light Company furnishes electricity to respondent's place of business in Florida City, 1214 N.W. 9th Avenue. The account is in the name of Buckley Enterprise Inc. According to records maintained by the Bank of Florida & Trust Co. at Homestead, Ethel P. Buckley is president and Willie L. Buckley is secretary of Buckley Enterprises, Inc. Petitioner's exhibit No. 10. Checks drawn on the corporation's account were used to pay Universal Brands, Inc. and other distributors for beverages delivered to Mamma's Restaurant. Petitioner's exhibits Nos. 12 and 15. A check drawn on the corporation's account, in the amount of $175.19, was used to pay the Florida Department of Revenue. Sometimes when Buckley Enterprises, Inc. paid bills for Mamma's Restaurant, respondent Williams would give the corporation the equivalent in cash almost simultaneously. Other times the corporation was lending money to respondent, in effect, and proceeds from the business would be deposited in the corporation's account as repayment. In the course of his employment by petitioner, Officer Buchberger inspected Mamma's Restaurant on May 8, 1978, and discovered some vending machine records dated May 8. These forms have places for the customer's signature and for the signature of the employee of Mar Tab Vending who collects the money from machines on the customer's premises. The handwritten word "Ethel" appears in the customer's signature blank.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner suspend respondent's license for three (3) days and thereafter until respondent establishes a checking account for Mamma's Restaurant; and changes the name on the business' account with Florida Power & Light Company. DONE and ENTERED this 3rd day of January, 1979, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Dennis E. LaRosa, Esquire 725 South Bronough Street Tallahassee, Florida 32304 Charlie Lee Williams d/b/a Mammas Restaurant 1214 N.W. Ninth Avenue Florida City, Florida 33034
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the portion of State road 314 in question be transferred to Marion County by the Department of Transportation. DONE and ORDERED this 24th day of August, 1979, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of August, 1979. COPIES FURNISHED: Philip S. Bennett, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32301 Preston T. Everett, Jr., Esquire County Attorney, Marion County Post Office Box 1030 Ocala, Florida 32670
Findings Of Fact A’Mayah Whatley was born on May 20, 2016, at St. Petersburg General Hospital in St. Petersburg, Florida. She was a single gestation. NICA attached to its motion a certification of medical records signed by the Custodian of Records from St. Petersburg General Hospital, and a one-page discharge record for A’Mayah. The medical record shows that A’Mayah’s birth weight was less than 2,500 grams. A review of the file reveals that no contrary evidence was presented to dispute the medical record from St. Petersburg General Hospital showing that A’Mayah’s birth weight was less than 2,500 grams.
Findings Of Fact The Respondent, Charles R. Boyd, was and is a certified general contractor in the State of Florida, and holds license number CG CO12754. Mr. Boyd was also the qualifying agent for Boyd-Scarp Construction Company. On May 13, 1983, the Boyd-Scarp Construction Company contracted with Paul and Debra Ciolli for the construction of a custom designed single family residence at 2385 Northeast Fallon Boulevard, Palm Bay, Florida. The contract price was $85,000. The Respondent and Thomas Scarp were equal partners in the Boyd-Scarp Construction Company and Boyd-Scarp Enterprises, Inc. Mr. Scarp was also a licensed general contractor, but was primarily responsible for financial matters in the companies, and the Respondent was primarily responsible for supervision of construction. The Respondent designed the Ciolli home, and his draftsman prepared the plans. During the course of construction, the Respondent visited the site of construction a few times (no more than once a week), but relied primarily upon his superintendents to supervise. At that time, the Boyd-Scarp Construction Company had approximately 35 homes under construction throughout Brevard County. Respondent employed several superintendents of construction at the Ciolli home. The first, Tom Wright, was having personal problems, and the Respondent fired him. The second, Rick Shite, did not do an adequate job, and the Respondent fired him. The third, Dave Bryant, left Boyd-Scarp before the home was finished. The fourth, Bill Snyder, was primarily assigned to the punch list, as was the fifth, Dave Lightholder. Mrs. Ciolli visited the construction site daily, and on several occasions noticed defects or problems in the construction. She tried each time to contact the Respondent, who was responsible for construction, but was always referred to Mr. Scarp, who was responsible for financial matters. The framing subcontractor did an inadequate job framing the walls. Many of the walls were out of square, were not plumb and true, and had discernible waves in them after the drywall was installed. Some walls had a deflection of 1/2" in four feet. The Ciolli's hid the bowed wall in the kitchen by placing the refrigerator in a spot that otherwise would not have been used for that purpose. Ceilings were one to three inches out of square with the wall. The deflection was one inch in twelve feet in the master bedroom, and one inch in four feet in the master bathroom. In the bathroom, the deflection where the ceiling met the wall on a slant prevented the later installation of squares of mirror tile. The drywall was inadequately installed. Taping and bedding was inadequately done where the drywall met the ceilings. Joints were poorly taped, or not taped at all in some cases. Nails popped loose. Some of these defects were hidden by the Ciolli's with wallpaper. The interior walls had structural cracks at load bearing points, notably located beside the fireplace, at the sliding glass doors, over windows, and below windows. The roof trusses, as installed, were inadequate: A majority of the trusses were either not anchored to the tie beam with hurricane straps, or were inadequately anchored. This was caused by a combination of improper spacing of anchors on the tie beam and variations in the spacing of the trusses. (The trusses by plan were to have been 24 inches on center.) The trusses were not installed level and plumb. Several of the trusses did not have adequate contact for purposes of load-bearing on the tie beam, and were not shimmed. One truss had been cut and had been improperly scabbed back together with smaller stock and toe nails. At least one truss showed a space between the top chord and the perpendicular support, thus making the perpendicular support inadequate as a load bearing member. Trusses over the garage were originally constructed to span 22 feet 8 inches. One foot was cut from each end, and the trusses were installed as modified, since the plans called for trusses spanning 20 feet 8 inches. It is unclear from the evidence whether the trusses had been improperly modified on site by removal of the gang nail plates, and inadequately reassembled and renailed, or were originally delivered in a defective condition. The issue is irrelevant, however, because the trusses were inadequate as installed for the reasons described above. As a result of the inadequacies in the installation of the trusses, the ridge of the main roof sags in several places, and as much as four inches in one place. Sags in the one-half inch plywood roof sheathing also exist between truss top chords. Spaces exist between the top chords of the trusses and the plywood sheathing. These warps are caused by the inadequacies of the roof trusses, and may have also been exacerbated by warping in the sheathing before or during application. As a result of the foregoing roof inadequacies, roofing nails had worked loose, shingles were beginning to pop up in places, and the roof has serious leaks. See P. Ex. 22, photograph 6. The garage roof as completed was left with an open hole in it. The hole is six inches long and one-half inch wide. During thunderstorms, water pours through the hole into the garage, and damages the wall adjoining the garage and the house. As a result of the roof inadequacies, there is dampness in ceiling areas, the ceiling finish and paint is flaking, and there is a substantial amount of mildew on walls, ceilings interfaces with floors and walls, and in closets. Without hurricane anchors, the house is unsafe in a hurricane or other storm of high wind. The back porch slab is four inches in width and does not have steel reinforcing. The plans called for a slab to have a 12 by 8 inch turn down edge with steel reinforcing (as support for future construction). Mr. and Mrs. Ciolli were concerned about these defects, and told Mr. Boyd that they did not want to close without review by an engineer. The Ciolli's were told that if they did not close, Boyd-Scarp would sue them and sell the house to someone else. The Ciollis closed. Subsequently, the Ciollis hired Paul Holmlin, and engineer and an expert in residential construction, to inspect their new residence. As a result of that inspection, Mr. and Mrs. Ciolli sued. On August 16, 1985, Mr. and Mrs. Ciolli obtained a default judgment against the Boyd-Scarp Construction Company and Boyd-Scarp Enterprises, Inc., in the amount of $36,000. The Respondent has now formed a new company, Charles Boyd Homes, Inc. In the last three years, the Respondent has been actively constructing residences with his new company. He has built 60 to 70 new homes a year for the last three years in the price range of $150,000 to $500,000. The Respondent has not paid the Ciollis judgment. The Respondent corrected some of the drywall installation deficiencies, but has not corrected the wall framing deficiencies and the roof deficiencies. The Respondent was of the opinion that the defects discussed above were cosmetic. The continuous lintel block around the perimeter was structurally sound and adequate, and had no defects. The defects discussed in findings of fact 7 through 18 constitute gross negligence and incompetence in the practice of contracting, and were the direct result of the Respondent's failure to supervise properly the work as qualifying agent. The Respondent has been a general contractor in Brevard County for fourteen years and has constructed over six hundred residences in value from $50,000 to $500,000. The Respondent was awarded the designation "Builder/Developer of the Year" by the Melbourne City Council in 1978 and 1979, first prize in the Parade of Homes in 1984, 1986, and 1987, the Merit Award for Workmanship, and first price in the Suntree Parade of Homes for the last three years. He is the Director of the Brevard County Homebuilder's Association this year. The Respondent's livelihood would be detrimentally affected if the maximum disciplinary action is imposed. The Respondent received a letter of guidance from the Department of Professional Regulation for failure to display his certification number in a telephone directory advertisement. No other discipline has been levied against the Respondent.
Recommendation Since the damage to Mr. and Mrs. Ciolli has not been remedied, it is recommended that the Department of Professional Regulation, Construction Industry Licensing Board, enter its final order suspending the license of Charles R. Boyd for a period of six (6) months, and levying a fine of $2000. DONE and ENTERED this 15th day of July, 1988. WILLIAM C. SHERRILL, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of July, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-2703 The following are rulings upon proposed findings of fact which have either been rejected or which have been adopted by reference. The numbers used are the numbers used by the parties. Findings of fact proposed by the Petitioner: 6-11. These proposed findings of fact are subordinate to findings of fact that have been adopted. They are true, however, and are adopted by reference. The allegation that the linoleum was peeling is not in the administrative complaint. These proposed findings of fact are subordinate to findings of fact that have been adopted. They are true, however, and are adopted by reference. 14.C. While there is clear and convincing evidence that the trusses were not uniformly 24 inches on center, the exact count of such deviations was not shown by clear and convincing evidence. There was too much conflict of expert testimony on the point. 14.F., and 25.F. There is clear and convincing evidence only that one truss chord was sawed through. The degree of spalling of exterior stucco was not proven by clear and convincing evidence. Sag of the garage roof was not proven by clear and convincing evidence. The last sentence is true, but subordinate, and is adopted by reference. 14.K. and P., 15-17, 20. These proposed findings of fact are subordinate to findings of fact that have been adopted. They are true, however, and are adopted by reference. This proposed finding of fact is not supported by clear and convincing evidence. This proposed finding of fact is not supported by clear and convincing evidence. 21.E. This proposed finding of fact is contrary to the stipulation of the parties entered into-on the second day of the hearing. 22-24, 25.A-E, G, 26-34. These proposed findings of fact are subordinate to findings of fact that have been adopted. They are true, however, and are adopted by reference. Findings of fact proposed by the Respondent: 2. The proposed finding that the supervisors were in constant contact with the Respondent and Mr. Scarp is not supported by credible evidence. 5-7. It is true that inspections were made by inspectors from the City of Palm Bay and the Veterans Administration. It is also true that the Respondent was not cited for any violations of any building codes, and that the VA inspector stated that the problems were cosmetic. But those inspectors evidentally did not inspect the roof and walls very closely, given the degree of the defects in those structural portions. The problems were not cosmetic. Moreover, those inspectors did not testify, and thus their observations are not evidenced in the record. The lack of hurricane anchors is a life safety defect. The truss system is structurally unsound in that it has caused the roof to warp, the shingles to deteriorate, and the roof to leak. The structure of a roof is intended not to leak. If it leaks, it is structurally unsound. The Respondent made no effective effort to correct the primary defects noted above. Had he done so, the defects would have been corrected. COPIES FURNISHED: David L. Swanson, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 James L. Reinman, Esquire REINMAN, HARRELL, SILBERHORN & GRAHAM, P.A. 1825 South Riverview Drive Melbourne, Florida 32901 William O'Neill, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Fred Seely, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201 =================================================================
The Issue The issue in this case is the amount of attorneys' fees to be awarded to Petitioner's Counsel pursuant to the Mandate of the Third District Court of Appeal entered on Case No. 3D11- 1621, as well as the Order in that case granting Appellee's Motion for Attorneys' Fees as a Sanction Pursuant to Fla. R. App. P. 9.410(b) and § 57.105, Fla. Stat.
Findings Of Fact On November 22, 2010, Petitioner filed a Petition for Benefits Pursuant to Florida Statute Section 766.301 et seq. On May 20, 2011, a Summary Final Order of Dismissal was entered dismissing Petitioner’s Petition for Benefits Pursuant to Florida Statute Section 766.301 et seq., finding that the claim was not compensable and was barred by section 766.313. On June 16, 2011, the University of Miami, d/b/a University of Miami School of Medicine appealed the final order to the Third District Court of Appeal. On June 20, 2011, Leslie Caroline McLeod, M.D.; Nathalie Dauphine McKenzie, M.D.; Marion Frederic Colas-Lacombe, M.D.; Jerry M. Giles, M.D.; Hugo Gonzalez-Quintero, M.D.; and the Public Health Trust of Miami-Dade County, d/b/a Jackson Memorial Hospital filed a Notice of Joinder of the Notice of Appeal of the Final Administrative Action. The defendants in the medical practice action filed a Motion for Stay Pending Appeal in the circuit court. By letter dated June 22, 2011, Petitioner sent a letter to the defendants in the medical malpractice action, who were also the appellants in the appeal. The letter advised that Petitioner would be filing motions for attorneys’ fees if the defendant/appellants did not withdraw the notice of appeal, joinder of appeal, and motion for stay. Copies of the motions for fees, which Petitioner intended to file in the Third District Court of Appeal and the circuit court accompanied the letter. The letter did not mention fees for the administrative action which was on appeal. On January 3, 2012, Petitioner filed Appellee’s Motion for Attorneys' Fees as a Sanction Pursuant to Fla. R. App. P. 9.410(B) and § 57.105, Fla. Stat., seeking attorneys’ fees as a sanction against Appellants/Intervenors. The Third District Court of Appeal granted the motion and remanded the case to the Division of Administrative Hearings to conduct a hearing on the amount of fees to be awarded. On February 4, 2013, the final hearing on the fees awarded by the Third District Court of Appeal commenced. On the same date, Petitioner filed Petitioner’s Motion for Attorneys’ Fees and Costs Pursuant to Florida Statutes § 57.105 with the Division of Administrative Hearings. The motion seeks attorneys’ fees for the administrative action on Petitioner’s claim for benefits under the plan administered by the Florida Birth-Related Neurological Injury Compensation Association. A Final Order on Fees was entered on May 23, 2013, which determined the amount of attorneys’ fees to be awarded to Petitioner pursuant to the order of the Third District Court of Appeal. Included in the amount awarded were fees associated with the Notice of Appeal and the Motion for Stay Pending Appeal.
The Issue Whether petitioner suffered age discrimination for which Black & Veatch is answerable, when an employee of Black & Veatch objected to petitioner's becoming the safety engineer for M. A. Mortenson Company, the general contractor on a project for the Orlando Utilities Commission for which Black & Veatch was construction manager?
Findings Of Fact Since 1940, petitioner Jack Keels has been in the construction business, "95 percent of it would be . hydroelectric dams along the Columbia and Snake Rivers." (T.13) He has worked as a laborer, carpenter, an iron worker, a craft superintendent, a shift superintendent, a general superintendent, a craft foreman, a shift foreman and a general foreman. Aside from a wealth of practical experience, he has taken "probably 200 or 250 hours of classes on safety and first aid." (T. 13, 14) He has "been acting safety director on five or six jobs" (T.14) and once was responsible for the safety of 300 men. When he began work for M.A. Mortenson Company (Mortenson), however, on the Curtis H. Stanton Energy Center job (Stanton) , a coal-fired plant Mortenson was building for the Orlando Utilities Commission (OUC), Mr. Keels was a crane Coordinator without "assigned responsibility for safety." (T.93) But Mr. Keels offered suggestions about how to improve safety and spoke to Mortenson's Bill King regularly on such topics as safety latches for the hooks, proper nets, electrical splices, man baskets that were not regulation, and the like. When a new crane arrived on the site, Mr. Keels asked the general superintendent where the blocks were to test the crane and was told there were none and they had not been testing the cranes. There were other "flagrant violations" of safety regulations including widespread disregard for the rules requiring workmen to wear hard hats and forbidding them to bring glass containers onto the construction site. Although another contractor at Stanton, Babcock & Willcox, seemed to be doing worse as far as safety, Mortenson's practices were below average in Mr. Keels' opinion. This was also the impression key personnel at Black & Veatch had of Mortenson's performance. As the owner's representative at Stanton, Black & Veatch had invoked OUC's right under "option BC. 4. 1. of the . . . contract," Respondent's Exhibit No. 6, to require Mortenson to appoint a full-time safety engineer, in May of 1984. Bill King was Mortenson's safety director or designated safety engineer, when Mr. Keels started. Bill King left the job in February of 1985, and Mortenson's Mr. Barbato suggested replacing him with petitioner Keels. Mortenson did not propose this formally in writing, but Mr. Barbato explained to Richard F. King, Black & Veatch's project loss control manager at Stanton, that the work had reached a point that Mr. Keels' services as crane coordinator were no longer needed and that naming him safety engineer would make it possible to keep him on. He never told anybody at Black & Veatch about Mr. Keels' considerable background in construction safety. Petitioner and Black & Veatch's Paul William Weida had twice differed with each other on issues of safety: Once Mr. Weida objected to work on a generator pedestal going forward without a handrail in place. At the time, carpenters working for Mortenson were installing concrete forms on top of the pedestal, some distance above ground. Mr. Keels pointed out that they were wearing safety belts, and argued that a handrail could constitute a hazard as they moved around bolting and nailing the forms. The other dispute about which both men testified had to do with a bent crane lattice. The lessor of the crane told petitioner there was no need to replace that section of the lattice, but a representative of the manufacturer told Mr. Weida replacement would be best. Over petitioner's strenuous objection, Mr. Weida insisted that the damaged lattice be replaced. These confrontations left Mr. Weida with the impression that petitioner would be difficult to work with and also made him skeptical about petitioner's commitment to safety, a skepticism to which petitioner vehemently and perhaps justifiably objects. Under the contract between OUC and Mortenson, Black & Veatch had the right, as OUC's representative, to veto any candidate for safety engineer. The agreement provided, "During the life of the contract, replacement personnel will also be subject to interview and approval by the Owner." Respondent's Exhibit No. 7. Mr. Weida objected to Mr. Keels, and Richard F. King backed him up. Neither Mr. Weida's nor Mr. Richard King's opposition to Mr. Keels' being named safety engineer was in any way related to Mr. Keels' age, which, incidentally, was not proven with any specificity. After receiving indications from Black & Veatch that Mr. Keels would not be an acceptable safety engineer at Stanton, Mortenson laid him off, in February of 1985. By November of 1985, Mortenson had finished its work at Stanton.
Findings Of Fact Elizabeth Perkins was employed by the Lee County District School Board from August of 1978 until September 12, 1979, as a school bus driver. The facts reveal only two instances of possible insubordination by Perkins. These were the events of September 6 and September 10, 1979. The facts show that on September 10, 1979 Perkins' supervisor ordered her to return to the school bus garage. This order was received by Perkins, who understood that she was to return to the garage immediately. Perkins failed to follow this order, which was lawful and which her supervisor had the authority to give. The second instance occurred on September 6, 1979, and the facts surrounding the alleged insubordination are not clear. The letter of reprimand of September 7, 1979 assessing a one-day suspension for Perkins' acts recites several alleged deficiencies, as follows: Knowingly driving bus #22 with an unsafe condition. The fifth seat was missing. I told you to report the seat missing in the garage. You refused - claimed we are plotting against her. You drove the bus to North High for your 12 o'clock take home run after I told you to get the seat replaced. Failed to make out service request and work order after told to do so. Second offense - One day off without pay. The day to be determined by the Driver Super- visor. The facts do not support the first statement, because the seat was not discovered to be missing until after the early morning runs. Culpability, if any exists, for the missing seat rests with the mechanic(s) who failed to replace the seat. While Perkins may have contributed to the situation by failing to discover the missing seat in her pre-operation inspection, the facts reveal she was unable to find her bus that morning because it had been moved by the mechanics, and she started her run late. This mitigates any potential culpability for her lax inspection, because no procedure existed for advising drivers of the location of their buses when they have been worked on by the mechanics overnight. Perkins was advised to report the missing seat on the applicable forms by her supervisor. In the following exchange Perkins said she would not fill out the forms because it was not her fault the seat was missing. The supervisor discovered after she spoke with the mechanics that the seat had been removed by the mechanics. While Perkins' lack of diplomacy may be criticized, her refusal to fill out forms was in the context of her denial of responsibility for the missing seat and not a refusal to fill out forms per se. The facts also show that submission of such forms was not necessary, and one would not expect it to be necessary, to have a repair finished which had already begun. The issue of insubordination arises in the next allegation in the reprimand, that Perkins made the North High 12:00 o'clock run after being told to get the seat replaced. The facts related to this order are less than clear. The supervisor's direct testimony on Page 50 of the Transcript indicates that she told Perkins to come to the garage. Perkins' testimony at Page 99 indicates that she advised her supervisor if she came in she would be late for her next run. Perkins proceeded without children on board to North High School and did not go to the garage. The supervisor's memorandum of September 6, 1979 makes no mention of the alleged order to report to the garage. That memorandum indicates that after the seat was reported missing the supervisor checked with the chief mechanic, and it was determined a mechanic had failed to replace the seat. The seat was then taken to the high school by a mechanic, where it was installed before children boarded the bus. The version of events reported in the memorandum is consistent with the fact that the supervisor acquiesced to Perkins' going on to the school rather than being late, as Perkins suggested. The supervisor testified that the allegation in the reprimand that Perkins failed to make out a service request and work order after being told to do so related to Perkins' failure to make out a work request on September 5, 1979 in accordance with the standing procedures. No evidence was introduced that Perkins had ever failed to do so before or after this incident, or that she refused to do so on September 5, 1979. The last paragraph of the reprimand references a second offense and assesses a penalty. The alleged second offense was knowingly operating the bus a second time in an unsafe condition with the seat out. The facts show that Perkins had no knowledge of the missing seat on her first run. After she reported the missing seat Perkins did not drive the bus with students on board. The seat was installed at the high school before the students boarded the bus. The unsafe condition was unsafe to students, not to the operator of the bus or the public. The facts again do not sustain the allegation that Perkins knowingly drive the bus in an unsafe condition a second time. The remainder of the record does not reflect any acts of insubordination, much less gross insubordination. Concerning the allegations that Perkins violated rules and regulations on September 10, 1979, the allegation as stated in the September 12th letter of reprimand assessing an indefinite suspension does not recite any rules or regulations that were violated. No evidence was introduced at hearing of any rule or regulation that Perkins violated or any acts she committed that were contrary to any rule or regulation on September 10, 1979. Prior to September 10, 1979, Perkins had been cited with written reprimands on seven occasions, four of which were dated on September 6 and 7, 1979. All these reprimands and the facts surrounding them were made part of the record. The reprimand dated June 30, 1978, for reckless driving, arose out of Perkins' striking a mailbox and was warranted. The reprimand dated May 25, 1979, for wanting to see Mr. Lane without going to her supervisor first, was unwarranted. The facts clearly disclose that Perkins saw her supervisor and explained that she wanted to see Mr. Lane because her supervisor had not assisted her with her complaint. There was no regulation cited that prohibits an employee from going over his or her immediate supervisor to seek resolution of a problem the immediate supervisor has not been able to resolve. It is doubtful that such a regulation exists, being contrary to most prevailing schemes of management. This reprimand indicates the less-than-desirable working relationship existing between Perkins and her supervisor. The written reprimand dated June 21, 1979, for filling out five work orders, does not reference any rule or regulation concerning proper use of work orders. More importantly, the record reflects that Perkins had filled out single work orders previously regarding these deficiencies. The record reflects that only one of the five work orders was checked by a mechanic. The fact that, after the five work orders were filled out, the mechanic(s) declared the bus safe to operate does not address the problems pointed out by Perkins, because the problems were not critical safety items. The evidence does not show any rule or regulation which was violated by submitting five work orders. It does reflect the further disintegration of the relationship between Perkins and her supervisor, particularly when it is considered that Perkins went to her supervisor about a route change and not repairs to her bus. The facts surrounding the events of September 6 were discussed in detail above. The reprimand dated September 6, for being late on her route, related directly to Perkins' being unable to find her bus because the mechanics had moved it. As stated above, in the absence of some procedure to advise drivers of the whereabouts of their buses after they have been repaired, a driver cannot be held responsible for being late when it is caused by his or her bus being misplaced in the motor pool. The reprimand for discharging a student at an unauthorized stop on September 6 cites an existing rule. Perkins explained that she let the student off the bus because the student's assistant principal asked her to do so at the parents' request. Although Perkins lacked authority to grant the request, the necessity to maintain working relationships with school staff was emphasized earlier to Perkins. She told the assistant principal she lacked authority to grant the request, whereupon the assistant principal signed the parents' note, indicating his personal request and concurrence with their request to drop off the student. While this is a violation of the rule, these facts show that Perkins did not assume direct and sole responsibility for the action. In the reprimand dated September 7, for failing to return to the garage between routes, there is no rule or regulation cited. No evidence was introduced concerning the rule or regulation alleged to have been violated. Testimony was received from the supervisor that Perkins was told on September 6 not to park away from the garage. Perkins stated that she had been given permission to stop at her mother's house between routes to permit her to take care of her personal needs. According to the reprimand, this permission was withdrawn on September 6. The only evidence that Perkins parked at her Mother's house on September 7 was the reprimand itself. Perkins' immediate supervisor wrote the reprimand on information provided by the assistant supervisor; however, the assistant supervisor had no recollection of the dates of her observation. Summarizing the seven reprimands received by Perkins prior to September 10, 1979, only the one related to striking a mailbox, the one for letting a student off at an unauthorized stop, and the one for parking away from the garage between routes were proven to have any substance in fact or law. There was no rule or regulation cited or referenced at hearing for parking at the garage between routes, and mitigation exists for letting the student off at an unauthorized stop. The facts show that Perkins maintained a belligerent attitude toward her supervisor. This attitude was inappropriate and interfered with employment relationships. The record also reveals that the supervisor had or developed a belligerent attitude toward Perkins. The supervisor, rather than counseling Perkins and advising her that her attitude would not be tolerated and that she would have to conform to the generally expected standards of behavior, began to ignore Perkins' legitimate requests and reprimanded her for conduct which was not proscribed by any rule or regulation. This compounded the problem rather than solving it.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the Board reinstate Perkins in her former position with a 90-day suspension without pay from September 12, 1979. DONE and ORDERED this 26th day of February, 1980, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Harry A. Blair, Esquire 2149 McGregor Boulevard Post Office Box 1467 Fort Myers, Florida 33902 Robert R. Dormer, Esquire Florida Rural Legal Services, Inc. 2502 Second Street, Suite 16 Fort Myers, Florida 33901
