The Issue The issue is whether Respondent, Mo-Bo Enterprises, Inc., or its sureties are indebted to Petitioner, Suwanee Farms, for corn sold to Mo-Bo Enterprises, Inc.
Findings Of Fact Based upon consideration of the testimony of witnesses and the documentary evidence, the following relevant findings of fact are determined: Petitioner, Suwanee Farms, is a producer of agricultural products in Florida. At all times relevant to this proceeding, Respondent, Mo-Bo Enterprises, was licensed by the Department of Agriculture and Consumer Services as a dealer of agricultural products. During the period between September 20, 1994 and October 12, 1994, inclusive, Respondent, Mo-Bo Enterprises, was bonded by Co-Respondent, General Accident Insurance Company of America. Between October 13, 1994 and October 29, 1994, inclusive, Respondent, Mo-Bo Enterprises, was bonded by Co-Respondent, Armor Insurance Company. Petitioner sold corn to Respondent, Mo-Bo Enterprises, between the period September 20, 1994 and October 29, 1994. Respondent was given a Bill of Lading for each order of corn it received. Petitioner sent an invoice to Mo-Bo Enterprises for each shipment of corn that was delivered to Mo-Bo Enterprises. The amount of each invoice represented the price of the corn to which Petitioner and Respondent, Mo-Bo Enterprises, had agreed. Petitioner received a complaint from Mo-Bo Enterprises regarding corn which Petitioner had shipped to Mo-Bo Enterprises on October 4, 1994. Based on this complaint, Petitioner reduced the price of the corn by seventy-five cents (.75) per crate. As a result of this reduction, the adjusted total price for the shipment of corn reflected on Invoice No. 002392 is $1050.00, rather than the $1,200.00 shown. The terms of payment are set forth on the face of the invoice and require payment within thirty (30) days of the invoice date. The total amount of the invoices for shipments of corn sold and delivered to Mo-Bo Enterprises by Petitioner between September 20, 1994 and October 12, 1994, is $23,950.00. The total amount invoiced by Petitioner to Mo-Bo Enterprises, for corn sold and shipped to Mo-Bo Enterprises between October 13, 1994 and October 29, 1995, is $13,716.00. Despite repeated demands by Petitioner, Mo-Bo Enterprises has refused to pay for any of the shipments of corn. As of the date of the formal hearing, the invoice for each shipment of corn made between September 20, 1994 and October 29, 1994, remained due and owing and unpaid.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Agriculture and Consumer Services enter a Final Order (1) requiring Respondent, Mo-Bo Enterprises, Inc., or its surety Co-Respondent, General Accident Insurance Company of America, to pay Petitioner $23,950.00, and (2) further directing Respondent, Mo-Bo Enterprises, Inc., or its surety, Co-Respondent Armor Insurance Company, to pay Petitioner $13,716.00. DONE and ENTERED this 17th day of October, 1995, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD 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 17th day of October, 1995. APPENDIX To comply with the requirements of Section 120.59, Florida Statutes, the following rulings are made on the proposed findings of fact submitted. Petitioner's proposed findings of fact. Paragraph 7. Accepted and incorporated to the extent not subordinate and unnecessary. COPIES FURNISHED: Richard Tritschler, Esquire Department of Agriculture and Consumer Services The Capitol, PL-10 Tallahassee, Florida 32399-0810 Mo-Bo Enterprises, Inc. P.O. Box 1899 Pompano Beach, Florida 33061 Don Bieda, Esquire Legal Department General Accident Insurance Co. 436 Walnut Street Philadelphia, Pennsylvania 19105-1109 Joseph S. Hall & R. P. Wight Suwanee Farms Route 2 Box 3641 O'Brien, Florida 32071 Mark J. Albrechta, Esquire Legal Department Armor Insurance Company P.O. Box 15250 Tampa, Florida 33684-5250 Brenda Hyatt, Chief Department of Agriculture and Consumer Services 508 Mayo Building Tallahassee, Florida 32399-0800 Bill Reinhardt, Esquire Rob Reinhardt, Esquire P.O. Box 1287 Tipton, Georgia 31793 Charles Barnard, Esquire 200 SE 6th Street Ste. 205 Ft. Lauderdale, Florida 33301 Bradford A. Thomas, Esquire Suite 900 Brickell Centre 799 Brickell Plaza Miami, Florida 33131-2805 Honorable Bob Crawford Commissioner Department of Agriculture and Consumer Services The Capitol, PL-10 Tallahassee, Florida 32399-0810
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
The Issue The issue is whether Respondent committed an unlawful employment practice against Petitioner.
Findings Of Fact On May 23, 2005, Petitioner was hired by Respondent as a ready-mix concrete truck driver at Respondent’s Gainesville plant. Petitioner was a good employee. He had a clean driving record, and he did not have any disciplinary problems while working for Respondent. On or about July 27, 2007, Petitioner had a “mild” heart attack and was placed on medical leave by Respondent. In September 2007, Petitioner was released by his personal physician to return to work. Thereafter, Petitioner returned to work for a couple of days and began the process of being recertified for his driving duties. He reviewed safety materials and videos and did “ride- alongs” with other drivers. Before Petitioner could return to his driving duties, he was required by federal Department of Transportation (DOT) regulations to pass a physical and be certified as “physically qualified.” Recertification is required every 24 months and after an injury that impairs the driver’s ability to perform his/her normal duties, such as the heart attack suffered by Petitioner. Petitioner understood that he could not return to his job as a ready-mix concrete truck driver until he passed a physical and received his DOT certification. On September 12, 2007, Respondent sent Petitioner to a DOT-approved physician in Ocala for his physical. Petitioner did not pass the physical. The DOT-approved physician expressed concerns about Petitioner’s cardiac surgery, possible sleep apnea (based upon a questionnaire filled out by Petitioner), and blood pressure issues. There is no credible evidence that Respondent influenced the DOT-approved physician’s decision in any way. Petitioner’s suspicion that Respondent had something to do with the decision is unfounded. Petitioner’s personal physician disagreed with the concerns expressed by the DOT-approved physician, and after Petitioner underwent a series of tests, it was determined that he did not have sleep apnea. On November 9, 2007, Respondent laid Petitioner off based upon his “failure to meet job qualifications.” Petitioner was 48 years old at the time of the lay- off. There is no credible evidence that Petitioner’s age or medical condition played any role in Respondent’s decision to lay Petitioner off. Rather, the decision was based solely upon Petitioner’s failure to have the DOT certification that was required for him to drive a ready-mix concrete truck. Respondent gave Petitioner ample time to obtain his DOT certification before it laid him off. Approximately two months passed between the time that Petitioner was cleared to return to work by his personal physician and the time that he was laid off for not having his DOT certification. Petitioner did not obtain his DOT certification until some point in January 2008. Petitioner was treated no differently by Respondent than other drivers -- both older and younger than Petitioner -- who lost their DOT certification. Like Petitioner, those drivers were fired because they did not meet the applicable job qualifications. Petitioner testified that he was told that he would be rehired when he got his DOT certification. This testimony is corroborated by the comment on the Employee Separation Notice for Petitioner, which stated “Jesse has been unable to get his DOT card/when he does he will be rehired.” By the time Petitioner obtained his DOT certification in January 2008, Respondent’s business had declined due to the slow-down in the economy and the building industry, and it did not have any work for Petitioner. Respondent laid off three drivers at its Gainesville plant in December 2007, and it laid off an additional five drivers at the plant in February 2008 because of the decline in its business. Six of the eight drivers who were laid-off were younger than Petitioner. After these lay-offs, there were still three drivers employed at Respondent’s Gainesville plant who had less seniority than Petitioner, but in order to rehire Petitioner, Respondent would have had to fire one of those drivers. There were also a number of drivers still employed at Respondent’s Gainesville plant who were older and had more seniority than Petitioner. Respondent’s decision not to fire one of the other drivers in order to re-hire Petitioner was reasonable under the circumstances. And, more importantly, there is no credible evidence that this decision was motivated in any way by Petitioner’s age or a perceived disability based upon his heart attack. Respondent has not hired any drivers at its Gainesville plant since the lay-offs described above. Petitioner has not worked since he was laid off by Respondent. He testified that he has tried to find another truck-driving job, but that like Respondent, most companies are not hiring drivers because of the slow-down in the economy and the building industry. Petitioner would likely still be employed by Respondent if he had obtained his DOT certification before Respondent started laying off drivers because Petitioner was a good employee with more seniority than all but one of the drivers who were laid off in December 2007 and February 2008. Petitioner believes that Respondent could have put him to work in the warehouse or on the yard until he obtained his DOT certification and could return to driving duties. However, the record does not reflect whether any positions were available in the warehouse or on the yard or whether Petitioner was qualified for those positions. Petitioner testified that he was told by other employees that they overheard Respondent’s managers stating that they did not intend to return Petitioner to his driving duties because his heart attack made him a “high risk driver.” No evidence was presented to corroborate this hearsay-based testimony. Petitioner also testified that a supervisor made a critical comment to him regarding his use of a cane immediately after he returned to work. The supervisor denied making the comment, and even if the comment was made, there is no credible evidence that it was anything more than an isolated comment.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission issue a final order dismissing the Petition for Relief with prejudice. DONE AND ENTERED this 28th day of May, 2009, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II 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 28th day of May, 2009.
The Issue The issue in this case is whether Petitioner, who was hurt while working for Respondent as a law enforcement officer, suffered a catastrophic injury on or after January 1, 1995, making her eligible for lifetime health insurance benefits pursuant to Section 112.19(2)(h)1., Florida Statutes.
Findings Of Fact From 1982 through January 1999, Petitioner Sheila Kiess (“Kiess”) was employed by Respondent Florida International University (“FIU”) as a law enforcement officer. On September 16, 1994, Kiess was injured at work in the course of subduing a violent young man who managed, in the struggle, to kick her right arm, causing severe pain. (This event will be referred to hereafter as the “First Accident.”) Kiess immediately reported to a clinic for medical attention, following which she returned to duty and completed her shift. Through workers’ compensation, Kiess received regular, ongoing medical treatment for her injured right arm, which continued to hurt and became even more painful as time passed. She continued to work as well but was not able to use her right arm. On December 17, 1994, Kiess’s doctor deemed her “unable to work,” at which point she stopped working. Kiess’s treating physician released her to return to modified duty on January 4, 1995. Accordingly, on or about that date, despite being still without the beneficial use of her right arm, Kiess resumed her duties as Shift Supervisor on the 4:00 p.m. to midnight shift. On January 24, 1995, while on duty, Kiess was called upon to help restrain an unruly person. Her previously injured right arm was twisted while wrestling with the combatant, causing great pain. (This event will be referred to hereafter as the “Second Accident.”) After the Second Accident, Kiess received medical treatment, again through workers’ compensation, at the same clinic where she had been seen regularly for the preceding four months as a result of the First Accident. She continued to work, with limitations on the use of her right arm. Some months later, Kiess came under the care of an orthopedic surgeon named Dr. Charles Virgin, who first saw her on June 12, 1995. Dr. Virgin determined that Kiess had sustained damage to the tendons around her right elbow. On April 23, 1996, Dr. Virgin operated on Kiess’s elbow, surgically removing damaged tissue and repairing the extensor tendon. At some point thereafter, Kiess returned to work. As Kiess healed from the surgery, the “old pain” associated with the preoperative trauma to her right arm gradually began to subside. In August 1996, however, Kiess began to experience “new pain” that was the result of a condition diagnosed as Reflex Sympathetic Dystrophy (“RSD”).1 The RSD most likely was caused by the preoperative trauma, or by the surgery, or by some combination thereof. About one year later, Dr. Virgin determined that, as of August 14, 1997, Kiess had reached maximum medical improvement (“MMI”).2 For workers’ compensation purposes, Dr. Virgin assigned Kiess a permanent impairment rating of six percent of the body as a whole. Despite having achieved MMI, Kiess suffered——and as of the date of the final hearing continued to suffer——constant, crippling pain, muscle spasms, swelling, and other symptoms caused by RSD. On July 27, 1998, Dr. Virgin wrote that Kiess was “temporarily totally disabled and . . . unable to work as a result of her employment injury.” After that, Kiess did not regularly, if ever, resume her duties at FIU. Effective January 21, 1999, FIU terminated Kiess from her employment as a police officer because her physical limitations could not be reasonably accommodated. FIU’s workers’ compensation carrier accepted Kiess as permanently and totally disabled, effective November 26, 2001. Ultimate Factual Determinations The parties have stipulated and agreed, and consequently the undersigned determines as an ultimate fact, that Kiess has suffered a “catastrophic injury” as that term is defined in Section 440.02, Florida Statutes. There is likewise no dispute that both the First Accident and the Second Accident occurred in the line of duty; that each did so is, therefore, accepted and found as a matter of ultimate fact. Further, it is undisputed, and hereby found, that the injuries Kiess suffered as a consequence of the referenced accidents occurred as a result of her responses to situations involving either an emergency or an unlawful act perpetrated by another. Finally, for reasons more fully explained below, it is determined that Kiess, on or after January 1, 1995, suffered a “catastrophic injury” in the line of duty.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent FIU enter a final order accepting Petitioner Kiess’s claim for health insurance benefits pursuant to Section 112.19(2)(h)1., Florida Statutes. DONE AND ENTERED this 17th day of November, 2003, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM 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 17th day of November, 2003.
The Issue The central issue in this case is whether the Respondent is guilty of the violations alleged in the administrative complaint; and, if so, what penalty should be imposed.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, I make the following findings of fact: At all times material to the allegations of the administrative complaint, Respondent has been certified by the Commission as a law enforcement officer, certificate No. 02- 34512. In April, 1987, Respondent was employed by the Florida Highway Patrol (FHP) in Dade County, Florida. On the morning of April 9, 1987, at approximately 7:00 a.m., while dressed in his FHP uniform, Respondent went to the home of his girl friend, Connie Hawkins. Unable to waken Ms. Hawkins by knocking at the door, Respondent went around to her bedroom, began to bang on the glass, and attempted to pry open the window. As a result, the window broke and Ms. Hawkins was awakened by the noise. Respondent then demanded that Ms. Hawkins open the door since he had cut his left arm on the broken window. When Ms. Hawkins opened the door, Respondent began to strike her about the face and arm. Apparently, Respondent was angry that Ms. Hawkins had not opened the door earlier and felt she had caused the injury to his arm. This injury, a two inch cut on the left arm, was bleeding rather badly. Respondent went to Ms. Hawkins' bathroom and wrapped a hand towel around the wound in order to apply pressure and stop the bleeding. Subsequently, Respondent left the Hawkins' home in his FHP vehicle. After she was sure Respondent was gone, Ms. Hawkins telephoned the Metro-Dade police to report the incident. She did not want to have the Respondent criminally prosecuted, but she did want to take measures to assure he would not attack her again. After giving a statement to the police, Ms. Hawkins went to an area hospital for examination and treatment of her swollen face and bruised arm. She was required to wear a sling on the injured arm for a couple of days. The Metro-Dade police notified the FHP that one of its employees, Respondent, had been named in connection with a domestic disturbance. The report of the incident was given to Lt. Miller, the FHP supervisor on duty the morning of April 9, 1987. Coincidentally, that same morning at approximately 7:30 am., Lt. Miller had observed a cut on Respondent's left arm and had ordered him to a hospital for stitches. According to the story Respondent gave Lt. Miller, the injury had been caused by the FHP car door when Respondent was entering it after a routine highway stop. A sharp piece of the window framing had allegedly snagged Respondent's arm causing the cut. According to the Respondent, the piece of metal framing may have fallen off the car since the area was later found to be smooth.- Following treatment for the cut, Respondent signed a Notice of Injury form which is required by the Division of Workers' Compensation for all work- related injuries. This form alleged the injury had been sustained as described in paragraph 8. Subsequently, an investigation conducted by the FHP raised questions regarding the incident with Ms. Hawkins and the "work-related" cut on Respondent's arm. Lt. Baker attempted to interview Respondent regarding this investigation. Respondent declined to be interviewed and resigned from the FHP. Later, Respondent obtained a job as a security officer with the Dade County School District. Prior to his resignation from the FHP, Respondent did not claim he had cut or injured both arms on the morning of April 9, 1987. Lt. Miller did not observe a cut on Respondent's right arm on April 9, 1987. Neither Lt. Miller nor Trooper Allen, a trained traffic homicide investigator, could discover any trace evidence on Respondent's FHP vehicle to substantiate Respondent's claim regarding the cut. There were no breaks in the metal or paint along Respondent's door in the area he identified as the point of injury. There were no rough or jagged edges. The Notice of Injury signed by Respondent contained information which was false or misleading.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Criminal Justice standards and Training Commission enter a final order revoking the certification for a law enforcement officer held by Respondent. DONE and RECOMMENDED this 19th day of January, 1989, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH 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 19th day of January, 1989. APPENDIX RULINGS ON PETITIONER'S PROPOSED FINDINGS OF FACT: Paragraphs 1-38 are accepted. Paragraph 39 is rejected as irrelevant, immaterial, or unnecessary to the findings made herein. Paragraph 40 is rejected as irrelevant, immaterial, or unnecessary to the findings made herein. Respondent's testimony and that of Mr. Black relating to the alleged wound to the right arm was not credible. Paragraph 41 is rejected as irrelevant, immaterial, or unnecessary to the findings made herein. See comment p. 3 above. Paragraph 42 is rejected as irrelevant, immaterial, or unnecessary to the findings made herein. See comment p. 3 above. RULINGS ON RESPONDENT'S PROPOSED FINDINGS OF FACT: Paragraphs 1-5 are accepted. With regard to paragraph 6, to the extent that it relates Respondent's testimony it is correct, however, the fact it not. That is, it is found that Respondent injured his left arm at the Hawkins' home; consequently, Paragraph 6 is rejected as contrary to the weight of the credible evidence. Respondent's account was not credible. Paragraph 7 is accepted to the extent that it relates the story given by Respondent; such story being deemed incredible and therefore, rejected as contrary to the weight of credible evidence. Paragraph 8 is accepted to the extent that it relates the testimony of the troopers; however, the conclusion reached is speculative and unsupported by the record in this cause. Paragraph 9 is rejected as contrary to the weight of credible evidence. Paragraph 10 is accepted; however the facts related in that form were false or misleading. Paragraph 11 is rejected as argument, or unsupported by the credible evidence in this cause. Paragraph 12 is rejected as argument, or unsupported by the credible evidence in this cause. COPIES FURNISHED: Joseph S. White, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Denis Dean, Esquire Dean & Hartman, P.A. 10680 N. W. 25 Street Suite 200 Miami, Florida 33172 Daryl McLaughlin Executive Director Department of Law Enforcement P. O. Box 1489 Tallahassee, Florida 32302 Jeffrey Long, Director Criminal Justice standards Training Commission P. O. Box 1489 Tallahassee, Florida 32302
Findings Of Fact On March 22, 1995, Southern was convicted of the commission of a public-entity crime, as defined within Subsection 287.133(1)(g), Florida Statutes. Southern pled guilty to one count of 18 U.S.C., Section 371, Conspiracy to Defraud the United States, in the United States Court for the Middle District of Florida. Pursuant to Subsections 287.133(3)(a) and (b), Florida Statutes, Southern made timely notification to DMS and provided details of the convictions. On September 20, 1995, DMS issued a notice of intent, pursuant to Subsection 287.133(3)(e)1., Florida Statutes. On October 3, 1995, pursuant to Subsection 287.133(3)(e)2., Florida Statutes, Southern timely filed a Petition for Formal Administrative Hearing to determine whether it is in the public interest for Southern to be placed on the State of Florida Convicted Vendor List. Subsection 287.133(3)(e)3., Florida Statutes, establishes factors which, if applicable to a convicted vendor, will mitigate against placement of that vendor upon the Convicted Vendor List. Subsection 287.133(3)(e)3.d., Florida Statutes, establishes "[p]rompt or voluntary payment of any damages or penalty as a result of the conviction" as a factor mitigating against placement on the Convicted Vendor List. Southern paid restitution, fines and court costs totaling $30,193.00. Subsection 287.133(3)(e)3.e., Florida Statutes, establishes "[c]ooperation with state or federal investigation or prosecution of any public entity crime" as a mitigating factor. According to Ernest F. Peluso, Assistant United States Attorney, since early in 1994, George Peterson, President of Southern, provided active, accurate and meaningful support to the federal investigation. Mr. Peterson willingly provided documents, records and statements to illuminate the extent of the conspiratorial plan. Mr. Peterson fully cooperated with DMS in connection with its investigation initiated pursuant to Section 287.133, Florida Statutes. Subsection 287.133(3)(e)3.f., Florida Statutes, establishes "[d]isassociation from any other persons or affiliates convicted of the public entity crime" as a mitigating factor. This subsection is not applicable. Subsection 287.133(3)(e)3.g., Florida Statutes, establishes "[p]rior or future self-policing by the person or Florida affiliate to prevent public entity crimes" as a mitigating factor. Southern retained Michael N. Kavouklis, Esquire, to act as an ombudsman or clearinghouse for the receipt of information pertaining to any wrongdoing involving the solicitation of compensation or gratuities to customers. Each employee has received a copy of a notice directing them to report such actions to Mr. Kavouklis. The notice has also been posted in the work place as a reminder. Subsection 287.133(3)(e)3.h., Florida Statutes, establishes "[r]einstatement or clemency in any jurisdiction in relation to the public entity crime at issue in the proceeding" as a mitigating factor. Southern was not debarred from contracting with any governmental entity. Subsection 287.133(3)(e)3.i., Florida Statutes, establishes "[c]ompliance by the person or affiliate with the notification provisions of paragraph (a) or paragraph (b)" as a mitigating factor. Southern provided notice of the public entity crime violation by letter on February 17, 1995. This occurred before its conviction on March 22, 1995. Subsection 287.133(3)(e)3.j., Florida Statutes, establishes "[t]he needs of public entities for additional competition in the procurement of goods and services in their respective markets" as a mitigating factor. Public entities have a frequent and continuing need for roofing services. Subsection 287.133(3)(e)3.k., Florida Statutes, establishes "any demonstration of good citizenship" as a mitigating factor. Southern provided numerous documents detailing its involvement in numerous community and charitable activities. This Joint Stipulation provides a full and complete factual basis for determining whether Southern should be placed on the Convicted Vendor List. In light of the facts and criteria set forth in subsection 287.133(3)(e)3.a.-k., Florida Statutes, there are no disputes issues of material fact between DMS and Southern which would require a formal hearing. Both parties concur that it is not in the public interest to list Southern on the Convicted Vendor List, pursuant to Section 287.133, Florida Statutes.
The Issue The issue for consideration in this case is whether Respondent should be assessed the cost of a clean-up of contaminant which resulted from a motor vehicle accident in which he was involved on June 16, 1997, on State Road 64.
Findings Of Fact Respondent, Ray W. Crawley, is a professional truck driver. On June 16, 1997, he owned a 1990 Mack tractor and an open dump trailer. At approximately 12:15 a.m., on June 16, 1997, Respondent was driving his rig east toward Lake Wales on State Road 64. He chose that road because, having driven it frequently, he knew it to experience normally low traffic and to be a high quality highway. On numerous occasions he had seen both cattle and deer on the highway, and it is a generally accepted fact that the wildlife have the right-of-way. Mr. Crawley had just passed through Zolfo Springs when, in his lights, he saw a cow on the roadside off in the distance. Before he could take any action to slow down, another cow ran onto the road from the south and into his truck. Later examination of the vehicle revealed that this caused the axle pin to shear. As a result, Mr. Crawley, who was driving between 55 and 60 miles per hour in a 60 mile per hour speed zone, lost control of his vehicle. It veered off the road to the right, struck a power pole, demolished a mailbox, went through a fence, and ended up on its side on the south side of the highway in a pasture owned by Ms. Carrie Graham. Mr. Crawley was pinned inside the cab of the truck for a while, but suffered only a cut on his head and pulled muscles. He either was able to extricate himself from the wreck or was freed by emergency medical technicians who arrived at the scene shortly after the incident, and who insisted he be taken to the hospital for observation. Mr. Crawley was not cited for speeding or for any other violation as a result of this accident. As a result of the overturning, Respondent’s truck leaked diesel fuel and hydraulic oil from the tractor onto the ground, and this material had to be removed from the site. Approximately 80 gallons of diesel fuel and 40 gallons of hydraulic oil were spilled. The Department contacted Ms. Graham’s brother, Mr. Ken Willis, and Mr. Crawley to inform them that the spill had to be cleaned up. Mr. Willis declined to do so because the cow which caused the accident did not belong to him or Ms. Graham, and he did not think liability for the cleanup was their responsibility. Mr. Crawley also declined responsibility for the cleanup. He claimed the accident was not his fault, and that because of the injuries he sustained, he was incapable of overseeing a contractor hired to effect the cleanup. Mr. Crawley’s tractor and the trailer were both totally destroyed as a result of this accident. His insurance paid him $20,000 for the tractor and $16,000 for the trailer. However, his insurance company declined to cover the cost of the cleanup, asserting a lack of fault on his part. Because Respondent did not agree to clean up the spill, the Department hired a contractor to remove the diesel fuel and hydraulic oil on June 20, 1997. The cost of the cleanup was $3,333.95, which was paid from the Water Quality Assurance Trust Fund. Respondent does not deny that a cleanup was required; that the Department paid to have the cleanup done by a contractor; that the cost of the cleanup was as stated; or that the cost was reasonable and proper. The cow which ran into the side of Mr. Crawley’s truck and prompted the accident was not owned by him. Though it is impossible to tell at this time, it would appear that this cow was with several (approximately 15) cows which were owned by Mr. John Eason, a citrus grower and rancher who runs cattle both on his home property and on pasture which he leases from someone else. The pasture he leases runs along State Road 64, and is totally fenced. There are two gates on the side which abuts the highway, and another gate which permits access to the pasture from the barn. There is also a small gate which permits access from the outside to the yard behind the owner’s property, from which access to the pasture may be gained through the barn. Mr. Eason relates he was called to the accident scene the evening in question and was told his cattle had escaped from the pasture. By the time he arrived, most of the cattle had been rounded up and were being put back into the pasture. He was also advised that it appeared the cattle had escaped through the second gate further down the road from the accident site. Since the cows could not have opened the gate, it is clear that the gate was left open by someone who used it earlier. After helping with the round-up of the remaining escapees, Mr. Eason got them back into the pasture and the gates were all closed. Once that was done, Mr. Eason made an examination of the dead animal and determined that it was a heifer. Mr. Eason claims not to have owned any heifers. If his claim is accepted as true, the dead animal was not his. He did not claim the carcass at the time, and the animal was hauled away by the driver of the wrecker which came to the scene. None of the animals owned by Mr. Eason bear his brand. Most are not branded at all, and those which are branded bear the brand of a prior owner from whom Eason purchased the animal. Taken together, the evidence presented at the hearing fails to show any negligence in this accident on the part of Mr. Crawley. The ownership of the cow in question cannot be determined with any degree of certainty, but it is likely the animal was owned by Mr. Eason. No evidence was presented to indicate who was responsible for leaving open the pasture gate through which the cow was given access to the highway. It does not appear that any identifiable party was negligent in this matter.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Environmental Protection enter a Final Order holding Respondent responsible for clean-up costs in the amount of $3,333.95 arising out of the spill in which he was involved on June 16, 1997. DONE AND ENTERED this 7th day of April, 1998, in Tallahassee, Leon County, Florida. _ ARNOLD H. POLLOCK 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) 921-6947 Filed with the Clerk of the Division of Administrative Hearings this 7th day of April, 1998. COPIES FURNISHED: Kisha R. Pruitt, Esquire Thomas M. Beason, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Paul S. Reed, Esquire Leonard A. McCue and Associates, P.A. 524 Ninth Street West Bradenton, Florida 34205-7737 Virginia B. Wetherell, Secretary Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 F. Perry Odom, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Kathy Carter, Agency Clerk Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
Findings Of Fact Petitioner John L. Lynch is and has been since June 1, 1970 a Trooper in the Florida Highway Patrol, a division in the Department of Highway Safety and Motor Vehicles. During his service he had previously received "satisfactory" annual ratings until September 1, 1979 and a special evaluation on September 15, 1979, when he was evaluated "conditional." On October 25, 1979 Petitioner Lynch filed a grievance alleging that the conditional performance ratings were based on facts other than job performance. The Grievance Committee found there was reason to question the justification for ratings in certain categories, but recommended that the grievance be denied and a copy its report together with the disputed evaluations be placed in Petitioner's personnel file. The Executive Director adopted the recommendation of the Committee but cautioned Petitioner's supervisors to reflect an accurate and properly justified evaluation of his job performance. Petitioner requested an administrative hearing, which request was transmitted by Respondent to the Division of Administrative Hearings. Subsequent to the forwarding of Petitioner's request for a hearing, Respondent filed a Motion to Dismiss on grounds that the request for an administrative hearing was premature. Petitioner Lynch filed a Response, and after oral argument the Hearing Officer denied the Motion to Dismiss. It was concluded that the determination by the agency head that the disputed evaluations were not based upon factors other than job performance was an order subject to an administrative hearing and was not an allegation that the Respondent agency failed to comply with the rules and regulations which would have required the employee to first file a grievance with the State Personnel Director if dissatisfied with the agency head's decision. Prior to hearing the parties filed a Stipulation (Joint Exhibit No. 1) indicating a factual dispute as to allegations contained in Paragraphs 3 and 4 of Petitioner's "Petition for a Section 120.57 Administrative Hearing." The Stipulation also requested the Hearing Officer to make a determination of certain legal issues. On July 5, 1979 Petitioner Lynch, a Trooper I with the Division of Highway Patrol, Department of Highway Safety and Motor Vehicles, was evaluated by his supervisor, Sergeant W. F. Hinson, on the Employee Performance Evaluation and given a "conditional" rating for the period September 1, 1978 to September 1, 1979. He was again evaluated "conditional" in a special evaluation on September 15, 1979. Petitioner then filed a grievance pursuant to Rule 22A- 10.04, Florida Administrative Code and a three-member Employee Improvement Committee was appointed pursuant to Rule 22A-10.04(4)1, which heard the grievance on December 5, 1979. The Committee filed its report dated December 31, 1979 with the Executive Director, the agency head, recommending that the grievance be denied "since the Committee was presented with insufficient evidence to support the allegation that the evaluations were based on factors other than performance." The Executive Director adopted the report and denied the grievance but stated since the Committee found reason to question the justification for ratings in certain categories, a copy of the Committee report will be affixed to both evaluation reports and placed in Petitioner's personnel file (Joint Exhibit No. 2). The Committee Chairman, who prepared the report, testified at the hearing and supported the report (Transcript, pages 145-148). The Committee had found reasons to question the justification of ratings in certain categories but did not change the evaluation of Petitioner inasmuch as the Committee members had understood from a previous matter that it was not the duty of the Committee to change evaluations (Transcript, pages 151-154). The Committee also felt it lacked competence to evaluate the "area of 'attitude' and things of that nature" (Transcript, page 158). Prior to the subject evaluations of Petitioner Lynch, a petition signed by fourteen (14) wrecker companies was filed with Sergeant W. J. Hinson alleging favoritism and irregularities in the procedures of the wrecker services rotation in the district serving Ocala, Florida. Both Petitioner and Sergeant Hinson work in that district, and Sergeant Hinson is responsible for the regulation and use of the wrecker companies. On June 13, 1979 a meeting was conducted to hear the wrecker companies' grievances. On June 15, 16, 17 and 18, 1979 Sergeant Hinson surveilled Petitioner on the midnight shift in an unmarked car. On June 19, 1979 Petitioner was charged with numerous violations of rules, regulations, policies and statutory laws by Sergeant Hinson and was recommended for suspension and dismissal. Petitioner Lynch was thereafter suspended for sixteen (16) hours without pay. The suspension was not at issue in this administrative hearing, having been resolved under the agreement between the State of Florida and the Florida Police Benevolent Association, Inc., and no further facts concerning that incident were adduced at the hearing. On July 5, 1979 Petitioner was evaluated as "conditional" and was also evaluated as "conditional" on September 15, 1979. He believes that his "conditional" rating was a result of the filing of the wrecker companies' complaint. The Report on Petitioner's Grievance heard December 5, 1979 noted the Complaint of the wrecker service operators, and found that Petitioner is a friend of the complainant wrecker operator and Sergeant Hinson is a friend of the wrecker operator who was accused of receiving more than his share of the wrecker business from the roadways of the Ocala area. The Grievance Committee discussed the fact that Petitioner Lynch felt his "conditional" ratings by his supervisor, Sergeant Hinson, did not evaluate his job performance but reflected Hinson's suspicions that Petitioner supplied information to the wrecker complainant and encouraged the complainant to file the aforementioned petition. The Committee reviewed the Employee Performance Evaluation of Petitioner and the factors of appearance, attendance, job knowledge, work quality, work quantity, initiative, dependability, attitude, and relationship with others. It found that the ratings on job knowledge, work quality, work quantity and initiative to be questionable. At the administrative hearing the Chairman of the three-member Grievance Committee which reviewed the grievance filed by Petitioner Lynch supported the report of the Committee and stated he felt from his own review that the "conditional" evaluations were fair. Sergeant Hinson, witness for Respondent, who rated Petitioner, had counseled him prior to the rating as to his appearance factor, attendance, work quantity, activity reports and other work-related matters. Captain Hodges, who sat in on and reviewed the first rating and reviewed the second rating, had no reason to doubt the truthfulness of any of the ratings given Petitioner. The Corporal, who helped with the evaluations, worked with Petitioner and had supervised him for eight years felt he heeded supervision or would begin to make mistakes." Petitioner was not present at the time he was rated by the Sergeant and Corporal (Transcript, page 250). After a review of the evidence filed in this case including the Stipulation, a copy of which is attached hereto and made a part hereof, and after listening to the witnesses for both parties and studying the legal documents, the Hearing Officer finds that the factors on the Employee Performance Evaluation are largely "subjective" as opposed to "objective". The bias or motivation of a supervisor who rates an employee on appearance, attitude, initiative, and relationship with others is difficult and often impossible to assess, and the rating of the same employee during the same period but by two supervisors may be inconsistent depending upon the values, education, and cultural background of the person responsible for the rating. Ratings for job knowledge, work quality and work quantity also depend on the education, knowledge and expectations of those who rate and review the Employee Performance Evaluation. There was conflicting evidence presented to the Grievance Committee and at the subject hearing on the ratings given Petitioner for job knowledge, work quality, initiative and dependability, but this was insufficient to require a recommendation by the Hearing Officer to change the evaluation made by Petitioner's immediate supervisor. The Grievance Committee had properly reached the same conclusion. The evidence to substantiate the rating given Petitioner Lynch was in the area of attendance; ascertainable appearance such as smoking, need for a haircut and the wearing of a hat; the number of accidents or road incidents reported; and the adherence to established work practices in the district. The Hearing Officer finds, as the Grievance Committee had previously found and the varying opinions of the numerous witnesses substantiated, that the findings of one supervisor as to many of the rating factors on the evaluation are so personal that a rating by another supervisor may be dramatically different. Witnesses made such statements that they could not "second guess" a supervisor, could not "look into his skull," or were not competent to judge "attitude." Sufficient evidence was produced to substantiate the rating of the supervisor on the evaluation factors that are mainly "objective." As for the "subjective" factors the fact that the "conditional" evaluation came in a time sequence that could have indicated an unlawful motive or biased judgment was insufficient evidence to find that the evaluation was a result of unlawful motivation. In summary, there is insufficient evidence to support the allegation of Petitioner Lynch that his "conditional" evaluations were based on factors other than job performance. Both parties submitted proposed findings of fact, memoranda of law and proposed recommended orders. These instruments were considered in the writing of this order. To the extent the proposed findings of fact have not been adopted in or are inconsistent with factual findings in this order, they have been specifically rejected as being irrelevant or not having been supported by the evidence.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the Employee Performance Evaluation of Petitioner John L. Lynch for September 1, 1978 to September 1, 1979 and for September 15, 1979 be affirmed inasmuch as there is insufficient evidence to show that factors other than job performance entered into his rating on said evaluations. It is also recommended that the Grievance Committee's Report and the final order of the agency head be affirmed. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 11th day of September, 1980. COPIES FURNISHED: Enoch J. Whitney, Esq. Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, FL 32301 Gene "Hal" Johnson, Esq. Florida Police Benevolent Association, Inc. 216 South Adams Street Tallahassee, FL 32301 DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of September, 1980.
