Findings Of Fact The Respondent was certified by the Criminal Justice Standards and Training Commission on March 19, 1982, and was issued certificate number 99-4437. The Petitioner is an agency of the State of Florida charged with enforcing the standards for law enforcement officer certification contained in Chapter 943, Florida Statutes, and related rules. It has concomitant authority to discipline such law enforcement officers as to their certification status if certain violations of the provisions in that Chapter are established. On October 25, 1980, the Respondent was cited by a law enforcement officer in Hillsborough County, Florida, for speeding. The fine and disposition of the case remained outstanding regarding that citation until September 27, 1984. In 1981 the Respondent moved to Florida from Ohio to accept employment with the Sarasota County Sheriff's Department. Soon after relocating in Florida, the Respondent attempted to obtain a Florida driver's license. A representative of the Department of Highway Safety and Motor Vehicles informed him that he was "under suspension." Some months prior to June 1984, one of the Respondent's supervisors at the Sarasota County Sheriff's Department, Captain Johnson, informed the Respondent that his driving privilege in Florida was under suspension. He was instructed to get the matter "squared away." On June 30, 1984, the Respondent was involved in an automobile accident. The accident was investigated by Trooper Linda Perkins of the Florida Highway Patrol. During the course of the accident investigation, Trooper Perkins asked the Respondent for his driver's license. The Respondent furnished Trooper Perkins a piece of paper which had written on it the letter "F" followed by nine digits. The Respondent represented this number to the Trooper to be his Florida driver's license number. The structure and sequencing of the number was inconsistent with Florida driver's license numbers as well as those issued by the State of Ohio. The Respondent at the time possessed a valid Ohio driver's license. The Respondent, however, had no valid Florida driver's license on the date of the accident and was aware that his privilege to drive was under suspension in Florida on the date of the accident. On September 15, 1984, Sergeant Gerald Poole, Lieutenant Blakely, and Sergeant Kremm, each employed by the Sarasota County Sheriff's Department, met with the Respondent. The Respondent acknowledged that Captain Johnson had earlier notified him that he was aware of the license suspension in Florida and was requested to explain why the suspension had not been corrected, but remained outstanding. The Respondent informed his superiors that an "imposter" had obtained a California driver's license in his name, (after allegedly stealing his wallet), and had impersonated him when ticketed in Hillsborough County in 1980 for speeding. Respondent maintained at this meeting that he had a valid Florida driver's license, which was not the case. The Respondent was confronted with the fact that the "imposter's" ticket contained the address of 58 Brittany Drive, Cincinnati, Ohio. The Respondent denied that that address existed. The Respondent's employment application, which was on file at the Sarasota County Sheriff's Department, contained as the Respondent's prior address, 58 Brittany Drive, Fairfield, Ohio. The Respondent's employment application also listed Pomona, California, as a prior address. The Respondent had spent a short period of time in California shortly prior to his leaving his employment as a police officer in Ohio, at which time he apparently obtained a California driver's license. He elected not to remain in California, however, returned to Ohio and shortly thereafter moved to Sarasota County. In any event, Sergeant Poole obtained a computer check of the registrant of the tag number listed on the "imposter's" 1980 Hillsborough County traffic ticket. The car's license plate was registered in the name of Edward Foy. On September 27, 1984, the Respondent met with Lieutenant Vernie Skeens of the Sarasota County Sheriff's Department. Lieutenant Skeens had been assigned to conduct an "internal affairs" investigation regarding allegations that the Respondent gave false information to his superiors, had driven Department vehicles while unlicensed, and had driven under suspended driving privileges. The Respondent presented Lieutenant Skeens with a valid Florida driver's license which bore an issue date of the same day, September 27, 1984. Lieutenant Skeens questioned the Respondent regarding the unpaid 1980 speeding ticket which had caused his privilege to drive in Florida to become suspended. The Respondent repeated his explanation that an imposter was responsible for using his name in conjunction with the citation and that is why suspension had been entered against his name in the Florida driving records. The Respondent later that day admitted that it was he and not an imposter who received the 1980 ticket in Hillsborough County. When asked if he had lied to his superiors concerning this, the Respondent replied, "I believe I may have. I don't think I was..." The Respondent admitted that he had not obtained a Florida driver's license since moving to Florida until September 27, 1984, the day of his interview with Lieutenant Skeens. He also told Lieutenant Skeens that, at the scene of the June 30, 1984 traffic accident, he gave no driver's license number to Trooper Perkins and had no idea how she came to obtain such a number. The Respondent testified at the formal hearing, however, that he did give Trooper Perkins a driver's license number on the date of the June 30, 1984 accident, at the scene. He testified he believed the number to be that of his Ohio driver's license. Although the Respondent maintained he told Trooper Perkins he did not have a Florida driver's license, her testimony is accepted over his as more credible and worthy of belief. Her testimony establishes that, indeed, he represented the number he gave Trooper Perkins to be that of his Florida driver's license. He never told the Trooper that the number was an Ohio driver's license number or that of any other state. Indeed it has not been established that it was other than a bogus driver's license number and it was not proven that the number was that of his Ohio driver's license. The Respondent's own testimony establishes that the number Trooper Perkins was given does not have the same number of digits as the Ohio driver's license. The Respondent was confronted at the hearing with his prior statement in which he denied ever giving the Trooper any number. He testified "...I can't believe I said that." Trooper Perkins' testimony refutes that of the Respondent to the extent that he contended he told the Trooper he did not have a Florida driver's license. Indeed he never represented that the number he gave the Trooper was anything other than a Florida driver's license number. The Respondent has never before been subjected to disciplinary action regarding his licensure status in Florida or Ohio. He has had an exemplary record as a law enforcement officer, earning numerous awards including that of "Officer of the Year" in Ohio in 1982.
Recommendation Accordingly, the Respondent's certification as a law enforcement officer should be revoked on account of his failure to maintain good moral character as a necessary prerequisite to continued certification. DONE AND ORDERED this 14th day of November, 1986 in Tallahassee, Florida. P. MICHAEL RUFF, 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 14th day of November, 1986. COPIES FURNISHED: Joseph S. White, Esquire Assistant General Counsel Post Office Box 1489 Tallahassee, Florida 32302 Edward A. Foy 2910 Wood Street Sarasota, Florida 33577 Robert R. Dempsey Executive Director Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Janet E. Ferris, Esquire General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Rod Caswell Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, Florida 32302 APPENDIX Paragraphs 1-15: Accepted.
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 The issue to be determined in this case is whether the Department of Highway Safety and Motor Vehicles (“Petitioner”) may properly terminate its contract with Perotte Driving and Traffic School, Inc. (“Respondent”), on the basis of failure to comply with the provisions of the contract, pursuant to section 322.56(3)(f), Florida Statutes.
Findings Of Fact Petitioner is the State agency authorized to enter into contracts with driving schools to administer driving and skills portions of examinations for driver licenses, pursuant to section 322.56. Petitioner regulates third-party administrators for compliance with contract provisions in furtherance of Petitioner’s mission to ensure safe roads in the State of Florida. Section 322.56 authorizes Petitioner to contract with private sector entities to conduct services in the same manner Petitioner conducts services at both its driver license offices and tax collector offices. Respondent is a third-party administrator under contract with Petitioner to conduct Class E Knowledge Examinations for State of Florida driver licenses. Ms. Dume is employed as a Regulatory Program Specialist for Petitioner. Her duties include visiting third-party administrators and monitoring their activities to ensure that they are abiding by the terms of their contracts with Petitioner. Assistance by Misrepresentation On October 8, 2020, Ms. Dume was present at Respondent’s school conducting an on-site inspection. She left at 5:45 p.m., having been informed by Mr. Perotte that the school closed at 6:00 p.m. Ms. Dume returned to continue her inspection on October 9, 2020, arriving at 10:20 a.m. She monitored the school from the parking lot before entering at 11:20 a.m. Then, Ms. Dume observed Mr. Perotte entering information into his computer showing that a student had completed the four-hour Traffic Law Substance Abuse Education course (“TLSAE”). The TLSAE is a requirement to earn a Florida driver license. The course must be taken in one consecutive four-hour period. Ms. Dume obtained the certificate for TLSAE course completion for the student, which reflected a completion date of October 9, 2020. However, based on Ms. Dume’s credible testimony, it would have been impossible for the student to have completed the four-hour TLSAE course on the date that Mr. Perotte entered into the computer because Ms. Dume was present up until 15 minutes prior to the school closing and did not observe the student taking the course. Mr. Perotte’s claim that the student took the course after Ms. Dume left was not credible. His credibility was further diminished by his inconsistent and illogical testimony that he entered the erroneous date of course completion by mistake. Although it was established that the same student did complete the TLSAE in 2013, that fact is immaterial to Mr. Perotte’s clear misrepresentation of the course completion date. Ensuring Only Applicants Allowed in Examination Area During Ms. Dume’s on-site inspection on October 8, 2020, she observed an applicant inside the testing room taking the knowledge exam with an instructor also inside the testing room. The instructor explained to Ms. Dume that she was inside the testing room to have the applicant sign paperwork, but Ms. Dume believed that the reason was pretextual based on her observations. On October 14, 2020, during another on-site inspection of Respondent, Ms. Dume observed Mr. Perotte inside the testing room standing over a customer who was sitting down taking the knowledge exam. Mr. Perotte testified that he was inside the testing room while a test was in progress to fix a technical issue with the computer. He also testified, however, that in the event of a technical issue, he would ask the examinee to exit the testing room while a staff member addressed the issue. Mr. Perotte’s testimony was unconvincing and inconsistent. Allowing the Department to Conduct Random Inspections Ms. Dume testified that for each of her on-site inspections that are relevant to this proceeding, on October 8, 9, and 14, 2020, she entered Respondent’s facility through an unlocked door. During her October 14, 2020, inspection, Ms. Dume observed that there were a number of customers present when she arrived at 12:30 p.m. A few minutes later, all of the customers were gone, and Mr. Perotte stopped others from entering the school. Ms. Dume believed that the customers were discouraged by Mr. Perotte from patronizing the school while Ms. Dume was present. Ms. Dume left around 2:30 p.m., due to the school being empty. The reasons why customers may have left or decided not to enter the school in Ms. Dume’s presence were based on assumptions and were not conclusively established.
Conclusions For Petitioner: Elana J. Jones, Esquire Roberto R. Castillo, Esquire Department of Highway Safety and Motor Vehicles Room A-432 2900 Apalachee Parkway Tallahassee, Florida 32399 For Respondent: Matthew E. Ladd, Esquire Matthew E. Ladd P.A. Suite 301 4649 Ponce De Leon Boulevard Coral Gables, Florida 33146
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent be found in violation of the contract, as alleged in the Complaint, and that the contract be terminated. DONE AND ENTERED this 22nd day of October, 2021, in Tallahassee, Leon County, Florida. S BRITTANY O. FINKBEINER Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of October, 2021. COPIES FURNISHED: Elana J. Jones, Esquire Department of Highway Safety and Motor Vehicles Room A-432 2900 Apalachee Parkway Tallahassee, Florida 32399 Joseph R. Gillespie, Agency Clerk Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A-432, MS02 2900 Apalachee Parkway Tallahassee, Florida 32399-0504 Terry L. Rhodes, Executive Director Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room B-443 2900 Apalachee Parkway Tallahassee, Florida 32399-0500 Christie S. Utt, General Counsel Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A-432 2900 Apalachee Parkway Tallahassee, Florida 32399-0500 Matthew E. Ladd, Esquire Matthew E. Ladd P.A. Suite 301 4649 Ponce De Leon Boulevard Coral Gables, Florida 33146
The Issue The issues to be resolved in this proceeding concern whether the Respondent, P.A.T. Auto Transport, Inc., committed the violations alleged in the relevant Stop-Work Order and the Fourth Amended Order of Penalty Assessment, and, if so, what, if any, penalty is warranted.
Findings Of Fact The Petitioner is an agency of the State of Florida, charged with the responsibility of enforcing the Workers' Compensation coverage requirements embodied in Section 440.107, Florida Statutes (2008), whereby Florida employers must secure the payment of workers' compensation insurance coverage and benefits for their employees. See § 440.107(3), Fla. Stat. The Respondent, P.A.T., is a corporation conducting a trucking business, headquartered in Pensacola, Florida. The Respondent's services include transporting motor vehicles using a fleet of some 61 highway tractors and associated auto transport trailers. Michelle Newcomer is an investigator employed by the Petitioner. Her duties include conducting inspections and investigations of businesses who may be workers' compensation employers, to determine if they are required to have workers' compensation coverage under Florida law, and the extent and compliance of that coverage. Ms. Newcomer conducted an inspection of the Respondent at 6732 Rambler Drive in Pensacola, Florida, on March 18, 2009. She determined that two companies, or businesses, operated at that address, the Respondent and MNT Enterprises (MNT). MNT had a workers' compensation policy covering its employees and was statutorily compliant. Ms. Newcomer also investigated the Respondent and learned that the principal stockholder, George Hedges, was exempt from coverage. She inquired about the status of the truck drivers working for the company and was told by Tracie Hedges that they were independent contractors. She was unable to witness any violations occurring at that time and concluded the investigation. Later, in April 2009, she received information that led her to believe that the Respondent's truck drivers were employees and not independent contractors. She had an opportunity to see a pay stub for a truck driver who had worked for the company who had been injured and had a workers' compensation issue. She noticed that the pay stub reflected that Federal Income Tax withholding had been deducted, along with various other deductions, such as Social Security and Medicare. She felt this might be indicative of an employee relationship, rather than the drivers being independent contractors. She returned to the Respondent's address later that month and issued a written Request for Production of Business Records to the Respondent and to an associated company called TK131. She issued a Stop-Work Order for the Respondent due to its purported failure to comply with workers' compensation coverage requirements for employees. The Respondent did provide the required business records. She reviewed the records provided to her and was able to ascertain that the Respondent employed more than four employees. Additionally, she learned that, although the Respondent, through a leasing arrangement for its office employees, had workers' compensation coverage for them, the 59 drivers and corporate officers did not appear to be covered by workers' compensation insurance. Thereafter, the Stop-Work Order was amended to include the purported failure to secure payment of workers' compensation coverage as required by Chapter 440, Florida Statutes. That resulted in a Stop-Work Order and Penalty Assessment. The Department also issued a Stop-Work Order and Penalty Assessment to DTS, LLC, which included the predecessor company, Darts Transport. The Stop-Work Order and Penalty Assessment issued to DTS was later revoked, however. The Department takes the position that the Respondent, P.A.T., paid its drivers through the entity known as "DTS", or directly with P.A.T. checks during the audit period, and that the number of drivers paid for their services was more than four employees and closer to 59 drivers for the 61 tractor-trailers owned by the Respondent. The Department does concede that a small number of the drivers were clearly owner-operators and no longer contends that they were employees. The Department thus contends that at no time pertinent hereto did the Respondent have a workers' compensation policy or an employee leasing arrangement in place by which workers' compensation coverage was provided for the drivers. The original Order of Penalty Assessment covered the period April 22, 2006, through April 22, 2009. The 4th Amended Order of Penalty Assessments for those dates, which is at issue in this case, also included a $108,000 fine for the Respondent's working in violation of a Stop-Work Order. The total fine assessed and sought by the Petitioner is $1,564,707.91. The Department maintains that the drivers working for the company are employees and therefore should have been covered with workers' compensation insurance, but the Respondent disputes that claim, asserting that the drivers are independent contractors and therefore do not need to be covered by workers' compensation insurance. The Petitioner maintains that office workers employed by the Respondent were required to be covered by workers' compensation insurance as well. The Respondent maintains that these were covered through coverage obtained from an employee leasing company, through an employee leasing program. The Department also maintains that three employees, as corporate officers, were not properly qualified to be exempt. The Respondent maintains that the required Exemption Request forms were properly delivered to the Department and therefore it complied with the law in obtaining exemptions from workers' compensation coverage. Finally, the Department maintains that certain named individuals were employees of the Respondent and should have been covered by workers' compensation coverage or insurance, but the Respondent maintains that these employees, who essentially performed incidental, non-recurring tasks for the Respondent, were not employees and did not have to be covered by such insurance. Moreover, the Respondent claims that it has a contingent liability insurance policy in place which served as a policy of workers' compensation insurance and for this reason it is compliant also. The parties agree that Florida Administrative Code Rule 69L-6.035 defines "payroll" as the basis for calculating a penalty. Payroll can include any of ten variations of payments from or through an employer to or on behalf of an employee. These include the payment of traditional wages and also bonuses, un-repaid loans to employees, expense reimbursements that are not documented on the employer's business records, payments binding an employer to a third party on behalf of an employee for services rendered by the employee, among others. Investigator Newcomer relied on Florida Administrative Code Rule 69L-6.035(1)(a) to define payroll for the office workers and truck drivers paid directly from the Respondent's account. The drivers were paid from the P.A.T. account from July 16, 2008, through April 22, 2009. Investigator Newcomer opined that the drivers' payroll prior to July 16, 2008, could not be included on the Penalty Worksheet based upon Rule 69L- 6.035(1)(a), but rather was based on Rule 69L-6.035(1)(i). Ms. Newcomer did not rely on Rule 69L.6.035(1)(b),(d),(e),(f),(h), or (j) to define P.A.T.'s payroll. The Department included payments to various child support enforcement agencies, made on behalf of drivers, on the Penalty Worksheet, by authority of Florida Administrative Code Rule 69L-6.035(1)(c), defined as payments made to a third party on behalf of the employer for services rendered to the employer by the employee. The Department also included as payroll on the Penalty Worksheet loans made to drivers, maintaining that these have not been repaid and should be deemed as part of payroll under Rule 69L-6.035(1)(g). There is no proof that this is the case, however, because neither Ms. Newcomer nor Ms. Hedges offered any evidence to establish that there is proof that some or all of the loans remained unpaid. The Petitioner, through the testimony of Investigator Newcomer, takes the position that payments made by P.A.T. to Darts Transports or DTS,LLC are properly included on the Penalty Worksheet by authority of Florida Administrative Code Rule 69L.- 6.035(1)(i). Those payments were made prior to July 16, 2008, before P.A.T. began making payments directly to drivers. The Rule provision in question, concerns payments made to an alleged non-compliant employer who has contracted with the customer, if the contract includes payment for labor and materials. If it is impossible to segregate the cost of materials from the employee payroll in such a contract, then under this Rule provision, 80 percent of the total contract price shall be presumed to be the employer's payroll, with regard to that customer and contract. The unrefuted evidence, however, establishes that the drivers in this situation were paid a flat 25 percent commission of the hauling fee charged by P.A.T., after deduction of the cost of fuel for the trucks. P.A.T.'s customers paid the fuel surcharge to P.A.T. There is no evidence that P.A.T. provided customers with any materials. Its business operation involves solely and simply the transportation of customer-owned vehicles. The Department also maintains that corporate officers Bradley Hedges and Gregory A. Hedges, as well as Teri Kimberly Forret, corporate officers of P.A.T., are non-exempt employees. It contends that under Rule 69L-6.035(2) their compensation constitutes "payroll," under the default formula in that Rule provision, for defining payroll to a corporate officer, if the ten factors under sub-section(1) of that Rule do not address the means of compensation received by those corporate officers. The quintessential question in this case, however, concerns whether the drivers are independent contractors or employees. If they are independent contractors, then there is no obligation on the part of the Respondent to ensure payment of workers' compensation benefits for them. This would mean that the Respondent cannot be adjudicated non-compliant by the Petitioner Department and payments to the drivers would not constitute payroll and would be stricken from the Penalty Worksheet calculation. Independent contractor status is defined in Section 440.02(15)(d)1.a.(I)-(VI) and b.(I)-(VII), Florida Statutes (2008). Under the former statutory provision, four of the six criteria must be met for independent contractor status to be established. Under the latter provision, any of the seven conditions named in that provision may be satisfied and independent contractor status thus established. With regard to the criteria in Section 440.02(15)(d)1.a.(I)-(VI), the preponderant weight of the evidence shows that some of the truck drivers are independent contractors with federal employer identification numbers and some are sole proprietors who are therefore not required to obtain a federal employer identification number under pertinent state or federal regulations. § 440.02(15)(d)1.a.(II), Fla. Stat. The evidence also shows, for purposes of Subsection(15)(d)1a.(V) of this statutory provision, that the drivers are permitted to work or perform work for other entities or companies needing their services, in addition to the Respondent, at the election of the driver. There is no showing that an employment application must be completed to perform such tasks for other unrelated entities. The drivers must use the unrelated company's truck for work assigned to them by such other companies or entities. They are not permitted to use P.A.T. trucks for non-P.A.T. transportation work (driving) they have agreed to perform. Moreover, all the drivers are compensated for completion of a task or set of tasks according to a flat 25 percent commission of the hauling charge imposed by P.A.T. There is no evidence that clearly shows a contractual agreement which expressly states that an employment relationship exists between the drivers and P.A.T. Even if the status and operations of the drivers referenced above does not meet four of the criteria listed in sub-subparagraph a. Subsection 440.02(d)1., they may still be presumed to be independent contractors and not employees, based upon a full consideration of the nature of their individual situation with regard to satisfying any of the conditions or criteria referenced in Section 440.02(15)(d)1.b.(I)-(VII). With regard to the first criteria under that provision, the drivers perform the services of driving for a specific amount of money in the form of a 25 percent commission. They control a substantial amount of the means of performing the services or work. The driver is asked to deliver vehicles from point A to point B for that commission. He gets paid that commission whether it takes one day or six days to accomplish the task. The driver determines the route to be driven. The driver, within the limits of the Department of Transportation rules, determines when to begin driving and when to pull over to sleep. The driver is free to decline to accept a hauling job. There is no detrimental action taken against a driver for declining to accept a given hauling job, unless it happens too frequently for satisfactory conduct of P.A.T.'s operations. The driver must provide the incidental tools and equipment, such as binding chains and maintenance tools to operate the truck and securely transport the load of vehicles he is required to transport. The driver is responsible for maintaining current driver's license qualifications and DOT physical examination requirements. The driver is responsible for paying for any necessary badges authorizing entry at maritime ports, a frequent occurrence in the transportation of foreign-manufactured vehicles. The Respondent, P.A.T., either owns or leases the trucks used by the drivers and pays for the insurance policies for the trucks. P.A.T. also pays for routine maintenance of the truck. If the driver causes damage of any sort to the truck, the driver must bear the financial responsibility for repair of the damage. The driver must also bear responsibility for any damage to the vehicles being transported on the trucks. It can thus be seen that both the Respondent and the drivers control a substantial portion, respectively, of the means of performing the services or work. Clearly, the unrefuted evidence shows that the drivers receive compensation for the work or services performed (driving services, incidental loading and unloading and protection responsibilities, with regard to the vehicular cargo), for a commission or per job basis and not on any other basis. Therefore criterion number IV, cited last above, is clearly met. Concerning criterion (II) under the last-referenced provision cited above, the drivers incur expenses for costs of their commercial driver's license, repair costs for any vehicle damage to the truck or to the vehicles which are being transported by the truck; any DOT fines incurred by the drivers; any badge expenses, as port entry and exit fees, must be borne by the drivers; lodging and meal expenses on the road during a haul must be borne by the drivers, without reimbursement. Concerning criterion (III), the driver is responsible for the satisfactory completion of the work or services that he or she agrees to perform, in the operational sense, in that the driver will not be paid if the delivery of the vehicles ordered to be transported is not satisfactorily accomplished. The privity of contract, however, for a given hauling job runs between the customer and P.A.T., the Respondent, who the customer actually contracts with to have the vehicles transported. The drivers, for purposes of criteria (V), (VI), (VII), of the last-referenced statutory provision, as established by the unrefuted testimony of Ms. Hedges, stand to realize a profit, or suffer a loss, in connection with performing the transportation driving services. They have continuing or recurring business liabilities or obligations aside from the expense of owning or leasing the truck, insuring the truck, or the fuel expense which they do not bear. They do, however, have recurring or continuing business liabilities or obligations which have a direct effect on whether they realize any net gain from a commission on a given hauling job. The success or failure of their business, even as sole proprietors, depends on the relationship of their receipts, under their 25 percent commission arrangement, and their expenditures for each hauling job for which they earn that commission. Drivers often complain of losing money due to vehicle repair bills, fines, towing charges, etc. Additionally, as referenced above, although when transporting loads for P.A.T., the drivers must use P.A.T. owned or leased trucks, the drivers are free, under their arrangement, to engage in hauling for other companies or customers, if they are not currently engaged in the middle of a hauling job for P.A.T. They may do so for other companies using other trucks, so long as they do not engage in such transportation services for other entities with P.A.T.'s truck. This factual arrangement tends to also militate in favor of the drivers not being employees. Many of the drivers have the standard federal tax withholdings deducted from their commission payments, as well as, in some cases, court-ordered child support payments. While this might be deemed to militate in favor of an employer/employee relationship, the unrefuted testimony of Ms. Hedges establishes that this is a service that drivers have come to P.A.T.'s management and requested, because in view of their many hours and days spent on the road, and for other reasons, involving their business management abilities, it is an assistance to them to have the tax liabilities simply withheld from their commission payments. This helps to avoid personal difficulties involving arrearages to the Internal Revenue Service. Status of Non-Driver P.A.T. Workers and Corporate Officers Persuasive testimony offered by Tracie Hedges, established that Regina Davis, Robin Hand, Stanley Warren, William Bertelsen, Cecil Hannah, Chipley Atkinson, Kristene Viverios, Katherine Flores, Laura Dunn, Amber Taylor, Amy Murphy, and Ms. Hedges herself, are office workers of P.A.T. They are covered by a policy of workers' compensation insurance through AES Leasing, a worker leasing company. Apparently the Petitioner no longer disputes this. Ms. Hedges reviewed, in her testimony, the final Penalty Worksheet concerning the status of various named persons who the Petitioner contends were employees, not covered by workers' compensation coverage. Ms. Hedges established with persuasive testimony that Arthur Nicolas was not a P.A.T. employee, but did some improvements on the office building (i.e. in the nature of carpentry). Alex Sibbach and Witt Davis did not ever work as employees for P.A.T. They may have performed some yard work or sold some equipment to P.A.T., but were never employees. She also established that Richard Burrson and Robert Marra were dump truck drivers for a company by the name of MNT Enterprises and had never been P.A.T. employees. Bradley and Gregory A. Hedges and Kimberly Forret are officers of P.A.T., or were at times pertinent to this case. The Petitioner contends that they had not established an exemption from the requirement of being covered under a policy of workers' compensation insurance. This is because of the Petitioner's contention that no corporate officer exemption had been filed or made effective. Bradley Hedges and Gregory A. Hedges are children of owners Greg and Tracie Hedges. Kimberly Forret is Tracie Hedges' sister. Ms. Forret is an office worker at P.A.T. and both Bradley and Gregory A. Hedges work at P.A.T. on a part-time basis while attending school. Ms. Hedges completed exemption forms for all three of them and delivered them to Investigator Newcomer's office on Burgess Road in Pensacola, Florida. Investigator Newcomer took the position that the exemptions for these people had not been established or filed based on her examination of agency computer records. The computer program or site failed to establish to her that the three individuals in question had established exemptions. Exemption status is triggered by compliance with Section 440.05, Florida Statutes (2008).1/ Tracie Hedges established with persuasive testimony that the exemption applications for the named three officers had been hand-delivered to the Burgess Road office of the Department of Financial Services. Janice Evers is a staff worker at that office. She testified that her research could neither confirm nor deny that the exemption applications were delivered to her office, but acknowledges their receipt by the Department. It must be concluded that the applications were delivered to the office on Burgess Road but were never forwarded to the Tallahassee office by Ms. Newcomer's or Ms.' Evers staff. Investigator Newcomer's business address is 610 East Burgess Road in Pensacola, the location where Ms. Hedges testified that the exemption applications were delivered. When the Department made a Discovery Request for Production of the Business Records of the Respondent, it required that those records be produced at that same business address in Pensacola, Florida. It is thus "an office of the Department" for purposes of Section 440.05(c), Florida Statutes (2008). Ms. Hedges established that the exemption applications were delivered during the 2005 calendar year although she was unable to provide an exact date of delivery. Ms. Evers acknowledges that fact in her testimony. The Stop-Work Order at issue in this case by statute can only date back as early as April 22, 2006. Even if the applications were delivered on December 31, 2005, the three officers in question would be exempt from workers' compensation coverage requirements prior to April 22, 2006, when the time period, or audit period, related to the Stop-Work Order began. It is determined that at least by January 30, 2006, exemptions had been established, by delivery at least 30 days prior thereto, for Bradley Hedges, Gregory Hedges, and Terri Kimberly Forret. It is found that the exemptions were shown by persuasive evidence to have been delivered during the 2005 calendar year. Inasmuch as they were "received" by the Department in 2005, then they would have become effective, by operation of law, on or before January 30, 2006, well before the effective date of the Penalty Assessment of April 22, 2006.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the Department of Financial Services, Division of Workers' Compensation, dismissing the Stop-Work Order and Fourth Amended Order of Penalty Assessment, in its entirety. DONE AND ENTERED this 29th day of January, 2010, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of January, 2010.
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 Whether Respondent committed the unlawful employment practices alleged in the Charge of Discrimination filed with the Florida Commission on Human Relations ("FCHR") and, if so, what relief should Petitioner be granted.
Findings Of Fact At all times relevant to this proceeding, Petitioner, an African-American male, was employed by Respondent as a truck driver. In or around 1997, Respondent hired Petitioner as a forklift operator, a position he voluntarily abandoned (after roughly one year) to pursue other opportunities. Some six years later, in 2004, Petitioner returned to Respondent's employ as a truck driver. This second stint of employment continued until June of 2011, at which time Petitioner resigned his position——again, voluntarily——in order to "cash out" his 401K account. Tellingly, in his resignation letter, Petitioner thanked Respondent "for the opportunities [it] had provided [him] during the years," and noted that he "really enjoyed working for Mullins Lumber." Several months later, Respondent approached Petitioner about returning to his former truck-driver position. Petitioner agreed and resumed his employment with Respondent in August of 2011. For all that appears, Petitioner discharged his obligations suitably until the afternoon of August 14, 2012. On that occasion, Petitioner used a forklift to load materials onto his tractor trailer, a task he had performed numerous times. After the loading process was complete, Petitioner drove the forklift around the back of his truck and in the direction of the forklift shed. At one point along the way, it was necessary for Petitioner to make a blind turn around a truck belonging to a colleague, Wes Walker. Needless to say, such a maneuver presents a substantial danger to any person who might be nearby; for that reason, Respondent's forklift operator workbook, whose terms Petitioner was obliged to follow,2/ provides that drivers must: Slow down at cross isles [sic], exits, and blind corners; sound horn at once upon approaching any of these situations. (Emphasis in original).3/ Of the mistaken assumption that no other workers were in the immediate area because of inclement weather (a light rain was falling), Petitioner neither sounded the forklift's horn nor slowed to an appropriate speed as he negotiated the blind corner.4/ As a consequence, Petitioner accidentally collided with Respondent's vice president, Scott Mullins, who was conversing with Mr. Walker at the rear of the truck.5/ The evidence is undisputed that Scott Mullins suffered a broken tibia and fibula, injuries that required surgery and months of physical therapy to correct. Within hours of the accident, one of Respondent's owners and officers, Clarke Mullins, suggested to Petitioner (who was noticeably distraught) that he take the rest of the week off and return to work the following Monday. Petitioner agreed and departed the worksite shortly thereafter. Over the next several days, Clarke Mullins conducted a brief, yet adequate, investigation of the events of August 14, 2012. The investigation included an interview of Mr. Walker, an African-American, who confirmed that Petitioner's operation of the forklift was lacking. Upon the completion of his investigation, Clarke Mullins concluded that the accident of August 14 warranted the termination of Petitioner's employment.6/ Petitioner was thereafter replaced by an African-American driver some three years and seven months his junior.7/ During the final hearing in this cause, Petitioner offered no direct evidence in support of his claim of age discrimination. Although the age disparity between Petitioner and his replacement is sufficient to raise an initial inference of impropriety, Petitioner has failed to prove that Respondent's proffered reason for the firing——the accident——is a mere pretext for age discrimination. On the contrary, the undersigned credits Clarke Mullins' testimony that the accident was the sole basis for Petitioner's termination.8/ The charge of race discrimination fares no better. Petitioner's conclusory assertions notwithstanding, the record is devoid of any evidence, direct or otherwise, suggesting that Petitioner's termination was motivated by racial considerations. Quite the opposite, in fact: Petitioner was replaced by a member of his own race; and, as noted above, the undersigned credited Clarke Mullins' testimony that Petitioner was fired for the accident alone.
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 adopting the Findings of Fact and Conclusions of Law contained in this Recommended Order. Further, it is RECOMMENDED that the final order dismiss the Petition for Relief. DONE AND ENTERED this 14th day of August, 2014, in Tallahassee, Leon County, Florida. S Edward T. Bauer 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 14th day of August, 2014.
Findings Of Fact Petitioner applied to Respondent for employment approximately September 1, 1981, and was hired on October 7, 1981, effective October 11, 1981. Hire dates were set by Respondent based upon the first day of work. Petitioner was terminated simultaneously with her husband on November 17, 1981. Larry G. Chivers, Petitioner's husband, was hired by Respondent on September 7, 1981, as a tractor--trailer driver, sharing driving with several other drivers until October 11, 1983. Thereafter, until he was terminated, he drove exclusively with Petitioner. Respondent claimed Mr. Chivers was initially hired as a "casual" driver and did not go on permanent status until his wife was hired. While his work did not change, with the exception of his new partner, his status with the company changed significantly since casual drivers accrued no seniority nor did the alleged 30 work day probationary period begin to run. Since Petitioner and her husband were fired a few hours after completing their work on their thirtieth day of work together and since probationary employees were given no recourse when fired, Mr. Chivers' status was important to him in any challenge to his discharge. The evidence was conflicting as to whether the Chivers were ever informed of their probationary status or if such status was intended by their employer. However, regardless of status at the time of firing, Respondent could not have lawfully discharged Petitioner because of her sex or marital status. See Subsection 23.167(1)(a), Florida Statutes (1981). The Chivers reported directly to Mr. Dennis O'Neal, Supervisor of Terminal Operations, Caribbean Air Express (CAX) a division of Westinghouse located at Sanford, Florida. O'Neal was responsible for driving assignments for CAX, which obtained its drivers from Respondent. Although O'Neal had no authority to hire or fire drivers, he made recommendations directly to Mr. Robert Adair, Manager of Personnel Relations for Respondent, who had such authority. On November 16 or 17, 1981, O'Neal recommended to Adair that the Chivers be fired and Adair instructed O'Neal to terminate them. Petitioner was the only female driver ever hired by Respondent and her hiring presented special problems. Although it was assumed that she would drive with her husband on a team basis, company policy required that she drive with any available driver in the event her husband was not available. Petitioner, her husband, Adair and O'Neal acknowledged that some drivers had indicated they would refuse to drive with a woman. Such refusal to drive was grounds for discharge under company policy and Respondent so advised at least one driver who raised this issue. Respondent urges a finding that Petitioner was guilty of "unsatisfactory performance" and was fired for that reason. See Petitioner's proposed findings numbered 14, 15, 16, 17, 18 and 19. Although the evidence establishes that the Chivers were unable to report their precise location on one trip during a scheduled call-in, and that on several trips they made excessive stops, their overall job performance met company standards. Their trip times were somewhat below the company average, but were not the slowest. There were no allegations against them of misconduct, unsafe practices or mishandling of company equipment or cargo. Therefore, "unsatisfactory performance" as a proffered basis for discharge is rejected. Respondent's primary grounds for discharging the Chivers involved their attitude. This reason was given to them at the time of firing along with the unsatisfactory performance assertion. Specifically, they were told that they did not have a "Westinghouse attitude." The Chivers made frequent complaints about the condition of their equipment to their supervisor, Dennis O'Neal. Although these complaints and "write-ups" had at least some validity, O'Neal resented their frequency. On their last trip from Sanford, Florida, to Irwin, Pennsylvania, where Robert Adair was located, the Chivers called on Adair to voice a number of grievances. Mr. Chivers did most of the talking, but Petitioner was present and indicated by her participation that she agreed with the complaints her husband presented. The Chivers complained that other teams were getting the longer, better paying routes and that the dispatcher was not following a first-in, first-out policy. They also accused another team which they met on the highway of being off-route and speeding. The Chivers further complained about their employing company and its practices to other drivers, dock workers, dispatchers and customers. In one case a dock foreman, Mr. Rick Scheaffer, asked O'Neal to keep Petitioner off his dock because of her griping. Petitioner contends that most of the complaining which her employer found unacceptable originated with her husband, and that his complaints were unfairly attributed to her. This argument must be rejected since Petitioner was present at virtually all times when her husbands complained to Adair or O'Neal. These supervisors reasonably understood all complaints to be hers as well as those of her husband by her participation and assent. The parties sought to develop evidence on the basis which drivers were hired and fired. Since Petitioner was the only female driver ever hired by the company (which is now out of business) the relevance of company practices is somewhat limited. Although the company tried to hire drivers as teams whenever possible, it did not fire them together unless both team members were guilty of the same misconduct or both were unacceptable workers. Respondent hired Petitioner in the face of opposition from its then exclusively male driving pool. Their concerns involved possible domestic relation problems which could arise if a married male driver was dispatched on an out of state trip with Petitioner. Respondent's refusal to give in to such pressure is inconsistent with Petitioner's claim that a month and a half later she was fired because of her sex and marital status.
Recommendation From the foregoing, it is RECOMMENDED that the Human Relations Commission issue a Final Order dismissing petitioner's complaint. DONE and ENTERED this 31st day of January, 1984, in Tallahassee, Florida. COPIES FURNISHED: Ransford C. Pyle, Esquire 621 East Washington Street Suite 7 Orlando, Florida 32801 Barnett Q. Brooks, Esquire Westinghouse Building Gateway Center Pittsburg, Pennsylvania 15222 T. CARPENTER 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 31st day of January, 1984. Dana Baird, Esquire Florida Commission on Human Relations 2562 Executive Center Circle Suite 100, Montgomery Building Tallahassee, Florida 32301 Donald A. Griffin, Executive Director Human Relations Commission Carlton Building Tallahassee, Florida 32301 =================================================================
The Issue The issue to be resolved in this proceeding concerns whether the Respondent was discriminated against by the Petitioner based upon reasons of her gender, on an alleged violation of Section 760.10, Florida Statutes.
Findings Of Fact The Petitioner is a female who was employed by the Florida Department of Education (Department), the Respondent in this case. She was employed in a temporary position in late 1995 through early 1996. The Petitioner had been a participant in a program designed to provide an opportunity for those receiving public assistance to obtain employment. The Petitioner volunteered to work for the Respondent, which is an agency of the State of Florida, in 1995. Jerry Moore was the Respondent's personnel director at that time. He oversaw the activities of several volunteers working as a part of that program. At that time the Department's mail room was short of staff members and the Petitioner was placed in an emergency position, working in the mailroom of the Department. Robert Lane was the "lead worker" in the mail room at that time. An emergency position is a time-limited position. That is, the position had a definite expiration date after which the occupant of the position cannot be employed any longer in that position. The Petitioner's duties included making deliveries and pickups at the Capitol Building and the main agency location in the Turlington Building in Tallahassee. Her duties involved picking up, delivering, and processing outgoing mail. The Petitioner stated to her co-workers on at least one occasion, in the presence of Mr. Lane, that "a man should be lifting these heavy boxes." Another female employee, Veronica Thomas, did much the same work that male employees did. Ms. Thomas has worked in the mailroom for approximately 14 years and her current position of senior clerk requires her to lift heavy weights, depending on the type of mail that has come in for the day. That includes lifting heavy boxes and assisting co-workers when the mailroom is short-handed. She has not been adversely treated by her supervisor for asking male co-workers to assist her in lifting extremely heavy boxes. While the Petitioner was working in the emergency position, she applied for an advertised vacant Motor Vehicle Operator position in the mailroom. Approximately 20 people applied for that position. The job description for that position included delivering and picking up mail and packages. Ultimately Terrance Anderson, a male, was selected for that position. Witness Robert Lane assisted in the decision for hiring for that position, but Bureau Chief Don Griesheimer made the final decision to hire Mr. Anderson. Mr. Anderson had prior experience working for the Department and working in the mailroom. He worked as a warehouse clerk with the Department from 1989 through 1992, with duties that included assisting in the Department's mailroom "by stamping mail, delivery of incoming and outgoing mail." He also worked for the Department in the mailroom in a temporary position as a Motor Vehicle Operator for two months in 1994. His duties included posting, delivering, and picking up mail at that time. Mr. Moore spoke with the Petitioner when she was notified that her time-limited emergency position was about to end and he discussed with her the fact that another individual had been selected for the Motor Vehicle Operator position. He offered to find another position for her with the Department, such as an OPS or "other personnel services" position. Contrary to the Petitioner's contention, the Respondent attempted to locate another position for the Petitioner with the Department prior to her filing of the charge of discrimination. The search for an alternative position for her was not done as a means of acknowledgement that the Department had wrongfully terminated or failed to hire the Petitioner for the position that Mr. Anderson secured, but as a way of carrying out its general policy to assist those whose jobs have expired in finding alternative employment. Ultimately the Petitioner chose to refuse the OPS job. The Petitioner's assertion that Mr. Lane spoke about her negatively "behind her back" was not corroborated by other witnesses or evidence. In fact, the Petitioner admitted that she did not hear Mr. Lane make such statements. Other employees stated that the Petitioner "complained a lot." The Petitioner's assertions that Mr. Lane did not hire her because she was a woman or because he did not believe that a woman could lift heavy weights are not supported by the evidence. Mr. Lane's concerns were about having to stop to help the Petitioner with regard to items or packages that were not excessively heavy and that the Petitioner could have easily lifted. He did not expect employees to pick up packages by themselves, if they were excessively heavy, but did expect them to handle packages of manageable sizes. The Petitioner, however, did not appear to always be willing to lift even small or light weight packages. In particular, Mr. Lane established an instance where the Petitioner picked up packages from the Capitol Building, drove to the Turlington Building in the vicinity of the mailroom, and then asked another employee to help her bring the packages into the building. She apparently contended that they were excessively heavy. Mr. Lane weighed the packages later and found that most of them were in the range of 15 or 20 pounds. Several female employees have worked in the mailroom and their gender has not been a consideration when making hiring decisions. They have handled most of the packages with relative ease, and when they required assistance from male (or female) employees in handling heavier packages, there is no evidence that their need to do so has resulted in any discriminatory treatment of them on account of their gender or otherwise.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the Florida Commission on Human Relations denying the Petition for Relief in its entirety. DONE AND ENTERED this 14th day of May, 2004, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF 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 Clerk of the Division of Administrative Hearings this 14th day of May, 2004.
