Findings Of Fact Respondent, Avenel Cesaire, holds commercial driving school instructor's certificate number 6027. Respondent, Avenel Cesaire d/b/a Cesaire's Driving School, holds commercial driving school license 2256. Respondent's chauffeur license number C260-000-53-363-459 is currently under suspension. Each license was issued by the Department. At all times material hereto, Respondent was employed as a driving instructor and engaged in the business of instructing persons in the safe operation of motor vehicles so they might be licensed by the State of Florida. During October and November 1984, former driver license examiner Mary Louise Smith (Smith), at the insistence and request of Respondent, issued driver licenses to Respondent's students without them having passed the required written or oral examination. Ms. Smith and Respondent were intimate. Ms. Smith first met Respondent at her place of employment: the Department's driver license examination station at 3095 Northwest 79th Street, Miami, Florida (the station). The parties began dating in June 1984 and continued to date until late November 1984, when she was discharged from her employment. During the course of their relationship, Respondent gave Ms. Smith $50-100, as frequently as twice a week. Prior to his students reporting to the station for testing, Respondent provided Ms. Smith with the names, and identification, of those students who needed "assistance." Ms. Smith issued or caused to be issued, driver licenses to such students without examination or, if examined, without regard to their failure to pass the examination. By aiding or assisting persons in obtaining driver's licenses without having first demonstrated their knowledge of the skills mandated by Section 322.12, Florida Statutes, and Rule 15A-1.12, Florida Administrative Code, Respondent caused to be licensed persons not deemed competent to operate motor vehicles upon the roads of the State of Florida. Such acts constituted a clear and serious danger to the public health, safety and welfare.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Highway Safety and Motor Vehicles enter a Final Order permanently revoking Respondent's commercial driving school license number 2256 and commercial driving instructor's certificate card number 6027. DONE AND RECOMMENDED this 9th day of May, 1985 in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK 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 9th day of May, 1985. COPIES FURNISHED: Suzanne H. Printy, Esquire Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32301 Eric William Hendon, Esquire 8011 Northwest 22nd Avenue Miami, Florida 33147 Leonard R. Mellon, Executive Director Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32301
The Issue The ultimate issue to be resolved in this proceeding is whether the Petitioner's application for a Florida Teacher's Certificate should be granted or denied. The Respondent contends that Petitioner's Teacher's Certificate was permanently revoked in 1978, and that the Respondent has not presented evidence that would justify the reissuance of a Teacher's Certificate. Petitioner contends that permanent revocation was not originally justified, and that his past conduct does not justify his being permanently removed from the teaching profession.
Findings Of Fact Petitioner has submitted an application for a Florida Teacher's Certificate. His application was denied by the Department of Education, and he has appealed that denial to the Education Practices Commission. Petitioner is qualified by age and academic background for certification as a teacher. The Department of Education contends that his application for certification should be denied because he is not of good moral character and has committed acts which would authorize the revocation of his Teacher's Certificate. On or about September 21, 1971, Petitioner was adjudicated guilty by the County Court in Duval County, Florida, of contempt of court. He was fined fifty dollars. The contempt adjudication related to the Petitioner's failure to pay numerous parking fines. On or about July 2, 1973, the Petitioner was arrested and charged with carrying a concealed firearm, breach of the peace, and public intoxication. On September 5, 1973, Petitioner entered a plea to the offense of breach of the peace. The other charges were dismissed, and Petitioner was placed on unsupervised probation for a period of six months. On or about September 20, 1976, Petitioner was adjudicated guilty of the offense of driving while intoxicated and ordered to serve ten days in the Duval County Jail. On March 15, 1977, Petitioner was adjudicated guilty of the offense of driving with a revoked driver's license and fined the sum of one hundred dollars plus court costs. On December 6, 1977, Petitioner entered a plea of no contest to the offense of "consuming alcohol where sold on lot" and was placed on unsupervised probation for a period of one month. On August 24, 1973, Petitioner submitted an application for employment with the Duval County School System. The following question was set out on the application: "Have you ever been arrested for any offense other than minor traffic violations?" Petitioner responded that he had not been. This response was untrue. He had in fact been arrested and adjudicated guilty of contempt of court and, less than a month prior to submitting the application, had been arrested on other charges that were not minor traffic offenses. Petitioner's explanation for responding to this question in the negative was that he considered the contempt citation to be for minor traffic offenses and that he had not yet been adjudicated guilty with respect to the other arrest. The explanation is not worthy of being credited. Petitioner was employed with the Duval County School System based upon his application. On September 19, 1973, Petitioner submitted an application for a State of Florida Teacher's Certificate to the Department of Education. The following question was set out on the application: "Have you ever been arrested or involved in a criminal offense other than a minor traffic violation?" The Respondent answered "No." The answer was false. A teaching certificate was issued to the Petitioner based upon the application. While he was employed with the Duval County School System, the Petitioner falsified a request for leave. He submitted a leave request stating that his daughter was ill on September 20, 1976. In fact, Petitioner's daughter was not ill. He needed leave in order to appear in traffic court for sentencing for the criminal offense of driving while intoxicated. By Order entered July 19, 1978, the State Board of Education permanently revoked Petitioner's Florida Teacher's Certificate. The revocation was based upon Petitioner's criminal convictions, Petitioner's falsifying his employment application, Petitioner's falsifying his application for a Florida Teacher's Certificate, and Petitioner's falsified leave request form. On April 1, 1981, Petitioner entered a plea of guilty to the offense "unemployment compensation fraud" in the Circuit Court of Duval County, Florida. Adjudication of guilt and imposition of sentence were withheld, and Petitioner was placed on probation for a period of one year. Petitioner's personal conduct as set out above seriously reduces his effectiveness as a teacher. It does not appear that the Petitioner has in any way rehabilitated himself since his Teacher's Certificate was revoked in 1978. Indeed, he has since that time committed a crime involving moral turpitude.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, hereby,
Findings Of Fact Respondent was first licensed by Petitioner as a commercial driving instructor in November, 1981, until November, 1982. Until that license was summarily suspended on April 8, 1982, Respondent was employed by Fajardo Driving School. On January 8, 1982, at approximately 6:00 A.M., Respondent approached the waiting line at the Central Driver's License Office with two Cuban applicants for drivers' licenses. A number of Haitian applicants were at the beginning of the line. Respondent attempted to place his two students in front of the Haitians. When the Haitians refused to allow Respondent and his students to enter the line in front of them, Respondent and his two students went to some nearby trash cans, obtained bottles, and began fighting with and striking the Haitians who had refused to give up their place in line to Respondent and his students. After the altercation, Respondent got in his car and left the area. He subsequently returned to the Central Driver's License Office, where he was arrested and charged with aggravated battery with a bottle. As a result of the bottle throwing engaged in by Respondent and his two students, two of the Haitians who were attacked received head injuries requiring hospital treatment. On other occasions, Respondent has placed his students at the head of the line without resorting to violence in order to obtain such preferred treatment for his students. On March 23, 1982, at the Central Driver's License Office, Respondent had a disagreement with Enelio Rodriguez, another driving instructor for Fajardo Driving School, over a ten-dollar charge for a rental car. When Rodriguez refused to pay Respondent the ten dollars Respondent was demanding, Respondent struck Rodriguez in the eye. On March 23, 1982, Miguel Orlando Uria, a driving instructor and owner of Uria Driving School, requested Amado Perera, a driving instructor for Autosa Driving School, to move Perera's car from the starting position, so Uria could place his student in the starting position for the driving test at the Central Driver's License Office, since Uria's student was due to be tested earlier in time than any of Perera's students. Although neither Respondent's car nor Respondent's student was the subject matter of the discussion between Uria and Perera, Respondent interposed himself into the argument and became "nasty." Respondent did not strike anyone on this occasion; however, Department personnel were present.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED THAT: A final order be entered permanently revoking the commercial driving instructor's certificate card of Respondent, Ernesto E. Luque. RECOMMENDED this 30th day of July, 1982, in Tallahassee, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of July, 1982. COPIES FURNISHED: Judson M. Chapman, Esquire Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32301 Alan Goldfarb, Esquire 12th Floor, Roberts Building 28 West Flagler Street Miami, Florida 33130 Mr. Chester F. Blakemore Executive Director Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32301
The Issue The issues are whether Respondent properly suspended Petitioner's Contract for Transportation of School Children and revoked his license to drive a school bus.
Findings Of Fact Respondent's method of providing transportation for its students is unique in the state of Florida because it contracts annually with independent contractors for each bus route. Pursuant to the contract, independent contractors furnish a bus or busses and are responsible for employing qualified drivers. In order to be qualified, drivers must hold a license issued by Respondent pursuant to Rule 6A-3.0141, Florida Administrative Code. Respondent and Petitioner entered into an annual contract for Petitioner to transport school children in Bus #657 for the 1991-1992 school year. At all times material hereto, the parties continued to perform under the terms of the 1991-1992 contract because Respondent was still negotiating the bus contracts for the 1992-1993 school year. Petitioner had been an independent bus contractor for approximately nineteen (19) years. The contract provided no guarantee that Respondent would renew its contract with Petitioner from year to year. At all times material hereto, Petitioner's wife, Eloise J. Lester, was the independent bus contractor for Bus #28. At all times material hereto, Petitioner held a Florida Department of Education school bus license issued by Respondent to operate a school bus. He had been licensed to drive a school bus for Respondent for nineteen (19) years. During that time, he had driven a bus on the Plummer Road route approximately 1,800 times with no reported mishaps. His prior record as a bus driver and bus contractor was unblemished. Respondent uses the Florida School Bus Drivers Handbook, published by the Florida Department of Education, as the curriculum to initially train drivers and for annual in-service training. Respondent gives a copy of this handbook to every driver. On the morning of February 8, 1993, Petitioner was driving his wife's bus #28 with students on board. He approached the railroad crossing at 9520 Plummer Road, stopped, and opened the door. Petitioner saw the Norfolk Southern Railroad train #229 a "good ways" down the track. The railroad crossing signals, flashing lights and bells, were activated indicating that the train was approaching the crossing. The engineer blew the train's whistle. Despite these warnings, Petitioner drove the bus across the tracks in front of the approaching train. The bus cleared the tracks just seconds before the train entered the crossing. The engineer, Jimmy W. Carter, and the conductor, Everett Maine, witnessed the incident and immediately reported the "near miss" to the railroad yard by radio. Later they prepared written incident reports. Norfolk Southern Railroad reported the incident to Respondent. Mr. Carter has been a train engineer for twenty-five (25) years. Mr. Maine has been a train conductor for forty-three (43) years. They were not under the influence of drugs or alcohol at the time of the incident. They were not involved in any conspiracy to harm Petitioner. Ms. Ruby C. Mardis lives near the crossing. She was waiting for the bus in her driveway with her grandchildren on the morning of February 8, 1993. She testified that she did not know where the train was when the bus crossed the tracks. She did not remember hearing any bells or whistles. Petitioner testified that he could see the light of the approaching train before he entered the crossing. He denied that the crossing lights were flashing or that the alarm bells were ringing at that time. However, Petitioner stated that under certain circumstances, even if the crossing signals were activated, he had discretion to cross the tracks, i.e. when there is no train in sight or a train is stopped on the track. The eyewitness testimony of the engineer and the conductor relative to the activated signals and the distance of the train from the crossing at the time Petitioner drove across the tracts is more persuasive than any testimony to the contrary. After completing an investigation, the Director of Transportation, as the designee of the Superintendent made a determination in writing to suspend Petitioner's bus contract and revoke his school bus driver's license effective February 19, 1993. The initial suspension of the contract and revocation of the license was not permanent because both actions were subject to review by Respondent. The Respondent has discretion to enter into a new bus contract with Petitioner and to reinstate Petitioner's school bus license provided he meets the requirements of Rule 6A-3.0141, Florida Administrative Code. In March of 1993, Respondent assigned the contract for Route #657 (School Bus #657) to Petitioner's wife at her request.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that Respondent enter a Final Order affirming the suspension of Petitioner's bus contract and revoking his school bus license. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 17th day of May, 1995. SUZANNE F. HOOD, Hearing Officer 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 May, 1995. APPENDIX The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. Petitioner's Proposed Findings of Fact Accepted in paragraph 6 of this Recommended Order. Accepted in paragraphs 2-4 of this Recommended Order. Accept that the testimony of the witnesses is in conflict. However, the testimony of the engineer and conductor is more persuasive than the testimony of the neighbor, the Petitioner, or any other witness. Rejected. The suspension and revocation was subject to review by Respondent and will not become final until the Respondent issues a Final Order in this proceeding. Respondent has discretion to enter into a new contract with Petitioner and to reissue a school bus license. Rejected. Ms. Mardis did not see the bus as it crossed the tracks. The testimony of the engineer and the conductor is more persuasive. Rejected. The testimony of the engineer and the conductor is more persuasive. Rejected. The contract was suspended and the license revoked subject to review by Respondent. Even though the contract does not expressly provide for an appeal to Respondent under the facts and circumstances of this case, the right to review is implicit in the contract. Rejected. Regardless of what was said at staff meetings or in conference with Petitioner, the contract was not suspended and the license not revoked until Petitioner was notified in writing. Even then the adverse decisions were reviewable by Respondent. The contract does not specifically provide Petitioner an opportunity to explain why his contract should not be suspended and his license revoked at the time of the staff conference. The suspension and revocation was subject to review before the Respondent. Moreover, Respondent has provided Petitioner with a due process hearing by referring this matter to the Division of Administrative Hearings. Rejected. Ms. Lester was paid for transporting students in Bus 657 for the balance of the 1992-1993 school year beginning March of 1993. Since that time, Ms. Lester has been paid for transporting children in Bus 657. Respondent's Proposed Findings of Fact 1.--15. Accepted in paragraphs 1-12 of this Recommended Order. 16.--17. Accepted in paragraphs 1-2 of this Recommended Order. 18.--19. Accepted in paragraph in paragraph 11 of this Recommended Order. Accepted but unnecessary to resolution of case. Accepted but not at issue in this case. 22.--23. Accepted in paragraph 3. 24.--25. Accepted in paragraph 12 of this Recommended Order. COPIES FURNISHED: Michael Mullin, Esq. 26 S. 5th St. Fernandina Beach, FL 32034 Clay Meux, Esq. Vicki Reynolds, Esq. 600 City Hall 220 E. Bay St. Jackonsville, FL 32202 Dr. Larry Zenke Duval County School Board 1701 Prudential Dr. Jacksonville, FL 32207-8154 Frank T. Brogan Commissioner of Education The Capitol Tallahassee, FL 32399-0400
Findings Of Fact Respondent, Rolando Mirabet, was first licensed as a commercial driving instructor in 1981. His current license will expire February 1, 1983. On March 26, 1982, a cameraman for WTVJ, Channel 4, Miami, while posing as a driver's license applicant at the Central Driver License Office was approached by Respondent. The cameraman/applicant told Respondent he was looking for the answers to the driver's license examination. They entered an automobile, Respondent showed the cameraman/applicant papers which he represented to be test questions from the actual driver's license examination, and the cameraman/applicant told Respondent he needed to take the questions and answers home with him to study. Respondent sold the questionnaire to the cameraman/applicant for twenty-five dollars ($25). Other employees of WTVJ filmed the encounter between Respondent and the cameraman/applicant from inside a surveillance van. The document sold by the Respondent to the WTVJ cameraman/applicant contains fifty-three questions with multiple-choice, alternate answers provided for each question and with one of the alternate answers for each question being marked as the correct answer. The document is in Spanish. Applicants for a driver's license are required, among other things, to pass a written examination concerning rules and regulations for driving in the State of Florida. Petitioner uses four different written examinations for testing applicants. During the hearing, one of Petitioner's witnesses compared the questionnaire sold by the Respondent to the cameraman/applicant and one of the Spanish versions of Petitioner's examination. Although the witness identified five questions as being the same on both documents, he also recognized some of the questions on the document which Respondent sold as being questions from the other versions of Petitioner's Spanish examination. A close review of the actual examination admitted in evidence and the document sold by Respondent reveals, however, that all twenty questions on the actual examination are found verbatim in the document sold by Respondent, and the alternate, multiple-choice answers to each question are also verbatim. Respondent admits giving the questions and answers to driver's license applicants. Respondent denies any knowledge of the rules and regulations enacted by Petitioner. Petitioner publishes a driver's handbook. That handbook contains a number of questions that are general in nature. No answers to those questions are suggested, and a reader needs to understand the entire book in order to answer those questions. Only one sample question with multiple-choice answers is given in order to illustrate to applicants the type of question which the applicant will encounter on the licensing examination.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED THAT: A final order be entered permanently revoking the commercial driving instructor's certificate card of Respondent, Rolando Mirabet. RECOMMENDED this 27th day of July, 1982, in Tallahassee, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of July, 1982. COPIES FURNISHED: Judson M. Chapman, Esquire Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32301 Alan Goldfarb, Esquire 12th Floor, Roberts Building 28 West Flagler Street Miami, Florida 33130 Mr. Chester F. Blakemore Executive Director Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32301
The Issue Whether Respondent, Virginia Bryan Martin, is guilty of the acts alleged in the Administrative Complaint dated April 16, 2007, and, if so, should her Florida Professional Educator's Certificate be disciplined.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following Findings of Fact are made: Respondent holds Florida Professional Educator's Certificate No. 624273, covering the areas of educational media specialist, elementary education, middle grades integrated curriculum, family and consumer science, and exceptional student education. During all times material to the allegations of misconduct, Respondent was employed at Brandon Alternative School in the Hillsborough County School District. In the early morning hours of April 25, 2004, Respondent was arrested for DUI by Officer Michael Smith of the Lakeland Police Department. Officer Smith videotaped Respondent's erratic driving and the following police stop. The videotape and testimony revealed that Respondent was driving her automobile while under the influence of alcohol. Although initially denied, Respondent acknowledged coming from a bar. She was abusive and threatening to the officer and her daughter, who arrived on the scene of Respondent's arrest. Respondent's conduct was, in short, reprehensible. On November 5, 2004, Respondent was charged with DUI incidental to a motor vehicle accident that occurred in Lakeland, Florida. Both vehicles were damaged to such an extent that they were not drivable. Respondent was charged with careless driving, in addition to DUI. At the hearing, Respondent admitted that prior to the accident, she had drunk so much that she was "feeling no pain." In addition, she minimized the accident, denied fault, and denied that she had been charged with a driving infraction. The November 5, 2004, DUI accident occurred while the legal resolution of the April 25, 2004, DUI was still pending. Respondent's judgment and veracity are subject to serious question. Respondent pled nolo contendere to a reduced charge of reckless driving on the April 25, 2004 DUI. On the November 25, 2004 DUI, she pled nolo contendere. The court found her guilty of DUI. She was sentenced to a treatment program, served 25 days in jail, paid $732.50 in fines and costs, and attended a DUI and Victim Impact Class. Nothing offered by Respondent as mitigating her behavior is accepted as credible.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, John L. Winn, Commissioner of Education, issue a final order finding that: Count 1 be dismissed; Respondent be found guilty of Counts 2 and 3; and Respondent's Florida Professional Educator's Certificate be placed on probation for 24 months, during which time she will be subject to rehabilitative conditions, as determined appropriate by the EPC. DONE AND ENTERED this 13th day of February, 2008, in Tallahassee, Leon County, Florida. S JEFF B. CLARK 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 13th day of February, 2008. COPIES FURNISHED: Kathleen M. Richards, Executive Director Education Practices Commission Department of Education 325 West Gaines Street, Room 224 Tallahassee, Florida 32399-0400 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Marian Lambeth, Bureau Chief Bureau of Professional Practices Services Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida 32399-0400 Edward Gay, Esquire 1516 East Concord Street Orlando, Florida 32803 Ron Weaver, Esquire Post Office Box 5675 Douglasville, Georgia 30154-0012
The Issue Whether Petitioner has just cause to terminate Respondent’s employment as a teacher based on his conviction of the crime of vehicular homicide.
Findings Of Fact Respondent was hired as a teacher by Miami-Dade County Public Schools in February 2000. On August 13, 1999, Respondent was involved in a motor vehicle accident in Monroe County, Florida. The accident resulted in criminal charges filed against Respondent in December 2000 for vehicular homicide (Section 782.071, Fla. Stat. [sic]). On or about May 2002, Respondent pled no contest and was adjudicated guilty of the offense of vehicular homicide by the Circuit Court for the Sixteenth Judicial Circuit in and for Monroe County, Florida. Respondent was placed on probation for five years, ordered to pay $50.00 court costs per month for his suspension [sic], and ordered to perform 500 hours of community service work. On March 15, 2006, Petitioner took action to suspend and initiate dismissal proceedings against Respondent due to his conviction of a crime involving moral turpitude. School Board Rule 6Gx13-4C-1.021 defines vehicular homicide (Section 782.071, F.S. [sic]) as a crime involving moral turpitude.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Petitioner enter a final order terminating Respondent’s employment. DONE AND ENTERED this 11th day of September, 2007, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON 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 11th day of September, 2007.
Findings Of Fact Based on my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, I hereby make the following findings of fact: Respondent, Affiliated of Florida, Inc. is engaged in the wholesale distribution of food and non-food items for the supermarket industry. The Respondent's main warehouse and offices are located in Tampa, Florida. The Respondent currently employs approximately 54 drivers. The drivers are responsible for the daily delivery of merchandise to various locations in Florida and Georgia. The Petitioner, Willie Hudson (a black male), was hired by the company as a driver trainee on March 18, 1985. Ray Scott (black male) a dispatcher for Respondent, and Willie Robinson (black male), Director of Security, were acquainted with Petitioner prior to his employment with Respondent and both recommended that he be hired. Scott also performs personnel interviews, recommends the hiring of all drivers, and supervises new drivers during their training period. When hired, all drivers are required to complete an initial training period of approximately one to two weeks. During this training period, drivers are assigned to ride with a full time driver trainer in order to become familiar with Respondent's practices and procedures. During Petitioner's employment the driver trainers were Leroy Johnson (black male) and John Flipowitz (white male). The alternate driver trainers were Relford Cooper (black male) and Steve Smith (white male). One of the driver trainee's responsibilities is to learn the company's system of preparing and submitting Merchandise Adjustment Tickets (MATs). If a driver makes a delivery and there is a shortage or damage, a MAT is filled out. The MATs must be filled out by the driver at the delivery location and submitted to Respondent's transportation department. The preparation and submission of MATs are necessary for the company to maintain accurate delivery records and are critical to the orderly operation of Respondent's warehouse and merchandise delivery business. The driver trainees are initially instructed by their assigned driver trainer as to how to prepare and submit the MATs. At the end of the training period, driver trainees are given a brief test by the company to ascertain whether they are capable of adequately preparing the MATs. The test consists of hypothetical situations in which a MAT would need to be utilized. The trainees must respond by filling out the MAT correctly. Once the test is passed and the driver trainer is satisfied that all other procedures have been learned by the trainee, the training period is terminated. The new driver is then allowed to make deliveries by himself. Another responsibility of the drivers, covered in the training process, involves the Respondent's system of accounting for trucks and other equipment which leave and return to the premises. A log sheet is kept at the security office that indicates, among other things, when equipment is taken out and brought back in. It is the driver's responsibility to go to the security office and complete the log sheets at the appropriate times. Driver trainees are instructed as to the procedures which must be undertaken in this regard. The Respondent requires that its drivers be punctual and display a positive attitude. Drivers must report to work on time so that merchandise is delivered promptly and must maintain a positive attitude while representing the company during deliveries. The Petitioner was initially assigned to work with driver trainer Relford Cooper. Toward the end of Petitioner's two week training period, Relford Cooper spoke with Raymond Scott and informed him that Petitioner seemed unable to properly fill out the MATs and that Petitioner had a "bad attitude." During the same period Willie Robinson, director of security, spoke with Scott and complained that Petitioner repeatedly failed to properly fill out the equipment log sheets as he was required to do. Scott spoke directly with Petitioner and explained to him how to complete the MATs and instructed Petitioner that the log sheets needed to be properly filled out and that if he had any questions he was to speak with Willie Robinson. At the end of the two week training period, Petitioner took the MAT test and failed it. No other driver had ever failed this test. Scott talked to Petitioner about the situation, and Petitioner explained that he did not think he was given enough time to fill out the MATs, and that he was not properly trained on how to fill them out. Scott decided to give Petitioner another chance by re- assigning him to another driver trainer, Jack Flipowitz, (white male). For the next two weeks, the Petitioner worked with Flipowitz as driver trainer. During this two week training period, Flipowitz went to Scott and complained that the Petitioner seemed unable to complete the paperwork, appeared to have an "attitude problem," apparently resented being trained by Flipowitz and would not take any instruction from him. Scott spoke with Petitioner and Petitioner said that he knew how to complete the MATs, but could not do so with "someone standing over his shoulder." Scott then talked to Flipowitz and told him to make sure that Petitioner had ample time to complete the forms. Scott also told Flipowitz to "back off" while Petitioner completed the MATs and perhaps return to the truck so that Petitioner would not feel so pressured. Shortly after the meeting, the Petitioner and Flipowitz made a delivery to Store 192. The customer at Store 192 wanted to return two cases of merchandise which was scheduled for delivery. Flipowitz gave the MAT to Petitioner to complete. Flipowitz then went out to the truck to allow Petitioner the opportunity to complete the form on his own. When Flipowitz returned from the truck, approximately 45 minutes later, he found that the Petitioner had not made any entries on the MAT. Flipowitz informed Scott of the incident which occurred at Store 192. Scott confronted Petitioner and Petitioner told him that he had "his own way of doing things" and that he wanted to fill the forms out at home. Scott informed the Petitioner that the forms needed to be completed at the store. At that point, Scott recommended that Petitioner be discharged. Petitioner was thereafter terminated on April 18, 1985, approximately four weeks after being hired. The driver training process employed by Respondent is informal and individualized. However, Relford Cooper and John Filpowitz provided Petitioner with substantially the same training and instruction given to all other driver trainees assigned to them. Of the 54 drivers employed by Respondent, 15 are black.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the complaint and the petition for relief filed by Mr. Willie Hudson, Jr. In addition, it is RECOMMENDED that the Respondent's request for attorney's fees be denied. DONE and ORDERED this 10th day of June, 1986 in Tallahassee, Florida. W. MATTHEW STEVENSON, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of May, 1986. COPIES FURNISHED: Wayne L. Helsby, Esguire 201 S. Orange Avenue Barnett Plaza, Suite 740 Orlando, Florida 3280 Willie Hudson, Jr. 11705 Park Orchard Circle Apartment #3 Tampa, Florida 33612 Affiliated of Florida, Inc. 1102 N. 28th Street Tampa, Florida 33605 Donald A. Griffin, Executive Director Florida Commission on Human Relations 325 John Rnox Road Building F, Suite 240 Tallahassee, Florida 32303 Dana Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303 Betsy Howard, Clerk of the Commission Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240, Tallahassee, Florida 32303 APPENDIX Rulings on Proposed Findings of Fact Submitted by the Petitioner (None submitted) Rulings on Proposed Findings of Fact Submitted by the Respondent The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the proposed Findings of Fact submitted by the parties to this case. Adopted in Finding of Fact 1. Adopted in Findings of Fact 2 and 4. Adopted in Finding of Fact 4. Adopted in Finding of Fact 5. Adopted in Finding of Fact 6. Adopted in Finding of Fact 7. Adopted in Finding of Fact 8. Adopted in Finding of Fact 9. Adopted in Finding of Fact 3. Partially adopted in Finding of Fact 10. Matters not contained therein are rejected as a recitation of testimony. Partially adopted in Finding of Fact 19. Matters not contained therein are rejected as a recitation of testimony. Adopted in Finding of Fact 10 and 11. Adopted in Finding of Fact 11. Adopted in Findings of Fact 12, 13 and 14. Adopted in Findings of Fact 14, 15, 16 and 17. Adopted in Findings of Fact 17, and 18.
The Issue Whether Petitioner meets the requirements of Section 471.015, Florida Statutes1, for licensure as a professional engineer by endorsement or, in the alternative, whether Petitioner is entitled to a variance and waiver of Florida Administrative Code Rule 61G15-21.001(1), which requires an applicant for licensure to have passed a written examination provided by the National Council of Examiners for Engineers and Surveyors (NCEES).
Findings Of Fact Petitioner Rashad M. Hanbali applied for licensure by endorsement with the Board by filing a written application. The application was signed and dated February 20, 2008, and was received by the Board on or about February 22, 2008. Petitioner received a Bachelor of Science degree in civil engineering from California State University, Fresno, in 1981. This program was accredited by the Engineering Accreditation Commission of the Accreditation Board for Engineering and Technology, Inc. (EAC/ABET), which is the accrediting body for engineering programs that is recognized by the Board pursuant to Florida Administrative Code Rule 61G15- 20.001(2)(a). Petitioner received a Master of Science degree in civil engineering from Marquette University in 1989. In 1992, Petitioner received his Doctorate of Philosophy degree in civil engineering, also from Marquette University. Marquette's undergraduate program is accredited by the EAC/ABET. Petitioner was licensed as a professional engineer by the State of Wisconsin on June 21, 1993. The State of Wisconsin did not require Petitioner to take the NCEES fundamentals of engineering or principles and practice of engineering examination, and Petitioner did not take either of those examinations. In lieu of passing examinations, Petitioner was able to meet Wisconsin's alternative requirement that a licensee must be a graduate of an EAC/ABET-accredited engineering school and possess 8 years of experience in engineering work of a character satisfactory to the examining board and indicating that the applicant is competent to practice engineering. See Section 443.04(1)(d), Wisconsin Statutes (1993).2 Wisconsin required the applicant to take and pass a "barrier free design" examination regarding special needs access to public buildings. Petitioner took and passed this examination. Petitioner was licensed as a professional engineer in traffic engineering by the State of California on January 25, 2008. The State of California required Petitioner to take and pass a traffic engineering licensing examination. The subject areas tested in this examination are similar to those tested in the transportation portion of the NCEES principles and practice examination. The State of California recognizes only three practice act engineering licenses: civil, mechanical, and electrical engineering. A "practice act" discipline is one in which a license is required in order for a person to practice in the field. The State of California recognizes several other "title act" licenses, including the traffic engineer's license. "Title act" means that no license is required to practice in a field such as traffic engineering in California, but a license is required in order for the practitioner to employ the title of "traffic engineer." In September 2006, Petitioner passed the certification examination offered by the Transportation Professional Certification Board, Inc., a national organization that bestows the certification of "professional traffic operations engineer." The subject areas tested in this examination are similar to those tested in the transportation portion of the NCEES principles and practice examination. Petitioner has not taken either the fundamentals examination or the principles and practice examination given by the NCEES. Florida Administrative Code Rule 61G15-21.001(1) requires a license applicant to take and pass both the fundamentals and the principles and practice examinations. Section 471.013(1)(d), Florida Statutes, deems that an applicant has passed the fundamentals exam if the applicant has obtained a doctorate degree in engineering from an institution that has an undergraduate program that is accredited by the EAC/ABET and has taught engineering full time for at least three years at the baccalaureate level or higher after receiving that degree. After obtaining his PhD from Marquette, Petitioner was an associate professor and taught traffic engineering courses at Tennessee Technological University from August 2001 through August 2004. The Board has agreed that Petitioner's education and experience comply with the requirements of the statute and he is deemed to have passed the fundamentals examination. Petitioner has more than four years of active engineering experience, which meets the experience requirement of Section 471.013(1)(a), Florida Statutes. In summary, Petitioner meets the education and experience requirements for licensure as a professional engineer, and Petitioner is deemed to have passed the fundamentals examination. The only bar to Petitioner's licensure in Florida is his failure to take the principles and practice examination. Petitioner contends, on two grounds, that he should not be required to sit for the principles and practice examination. First, he states that the California traffic engineering licensing examination he passed in 2008 was "substantially equivalent" to the NCEES principles and practice examination. Petitioner is correct that the California examination is substantially equivalent to the transportation portion of the NCEES examination. However, the transportation portion constitutes only 20 percent of the NCEES principles and practice examination. The NCEES examination also covers the following subjects: construction (20 percent), geotechnical (20 percent), structural (20 percent), and water resources and environmental (20 percent). Thus, the California traffic engineering licensing examination cannot be considered the substantial equivalent of the NCEES principles and practice examination. Second, Petitioner seeks exemption from the examination requirement by reference to Section 471.015(3)(b), which provides: (3) The board shall certify as qualified for a license by endorsement an applicant who: * * * (b) Holds a valid license to practice engineering issued by another state or territory of the United States, if the criteria for issuance of the license were substantially the same as the licensure criteria that existed in this state at the time the license was issued. Petitioner contends that his license to practice engineering in Wisconsin, obtained in 1993, meets the requirements of the quoted statute because the Wisconsin criteria for issuance were substantially the same as the Florida criteria as of 1993.3 Petitioner bases his contention on language from Florida Administrative Code Rule 21H-21.002(2), the Board rule in effect in 1993, indicating that the principles and practice examination at that time was limited to the particular discipline in which the applicant proposed to practice rather than the broad field of general engineering as it is administered in Florida today.4 (Petitioner assumes, without evidence, that in 1993 the Board administered a specialty examination in "traffic engineering.")5 However, as found above, Petitioner did not take an examination in Wisconsin. Thus, a comparison of the examination requirements of the two states is irrelevant. Because Petitioner obtained his license in Wisconsin by virtue of an exemption from examination based on his education and experience, the "criteria for issuance of the license" that must be "substantially the same" between the two states are those under which a waiver from examination is obtained. Florida law in 1993 made provision for waiver of the examination requirement based on education and experience. Section 471.015, Florida Statutes (1993), provided, in relevant part: (5)(a) The board shall deem that an applicant who seeks licensure by endorsement has passed an examination substantially equivalent to part I of the engineering examination when such applicant: Has held a valid professional engineer's registration in another state for 15 years, and Has had 20 years of continuous professional-level engineering experience. (b) The board shall deem that an applicant who seeks licensure by endorsement has passed an examination substantially equivalent to part I and part II of the engineering examination when such applicant: Has held a valid professional engineer's registration in another state for 25 years, and Has had 30 years of continuous professional-level engineering experience. The terms of the 1993 statute indicate that had Petitioner sought licensure in Florida, he could not have waived the principles and practice examination because he lacked the requisite 25 years' licensure as a professional engineer and 30 years of continuous professional-level engineering experience. The criteria for issuance of the license in Wisconsin were not substantially the same as those for issuance of the license in Florida in 1993. Petitioner does not satisfy the requirements for licensure by endorsement because he has not taken and passed the principles and practice examination, or other licensing examination that is "substantially equivalent," as required by Section 471.015(3), Florida Statutes. Petitioner has not demonstrated any ground for an exemption to the requirement that he pass the principles and practice examination. In the alternative, Petitioner seeks a waiver of the examination requirement of Florida Administrative Code Rule 61G15-21.001, pursuant to Section 120.542, Florida Statutes. However, the impediment to Petitioner's licensure by endorsement is not merely the Board's rule but Subsections 471.015(3) & (5), Florida Statutes. An agency does not have authority to grant a variance or waiver from a statute. § 120.542(1), Fla. Stat.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED that the Florida Board of Professional Engineers enter a final order denying Petitioner's application for licensure as a professional engineer by endorsement, and denying Petitioner's petition for a variance or waiver. DONE AND ENTERED this 26th day of October, 2009, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 26th day of October, 2009.
