Findings Of Fact The Marion County Board of County Commissioners ("Respondent" hereinafter) is a public employer within the meaning of Florida Statutes Section 447.203(2). Joseph Fortier was formerly an employee of the Respondent and a public employee within the meaning of Florida Statutes Section 447.203(3). Robert W. Merklein was formerly an employee of the Respondent, and a public employee within the meaning of Florida Statutes Section 447.203(3). The Charging Party is an employee organization within the meaning of Florida Statutes Section 447.203(10). Joseph Fortier was hired by the Respondent on January 27, 1975, to work as a truck driver in the Respondent's road department. Fortier's supervisors were Harmon Hall, the Respondent's Road and Bridge Supervisor; and Charles M. Brakefield, the Respondent's Director of Public Works. During the time that he was employed by the Respondent Fortier demonstrated that he was a capable truck driver; however, several incidents came to his supervisors' attention which reflected upon Fortier's judgment. During the Spring of 1975, another truck driver, Roy Bennett, reported to Hall that he was driving his truck ahead of Fortier who was also driving a truck. Fortier was following so close behind Bennett that Bennett feared an accident and pulled off the road in order to allow Fortier to pass. In July, 1975, the Department's receptionist, Betty Townsend, received a phone call from a woman who reported that two of the Respondent's trucks had been observed racing on a busy street. From the description of the trucks Hall determined that Fortier had been driving one of them. Hall himself had observed Fortier tailgating other trucks, and had received other reports which indicated that Fortier may have been driving his vehicle recklessly. On September 9, 1975, Fortier was involved in an accident. The truck he was driving collided into the rear of a car at an intersection in Ocala. The police charged Fortier with following too closely, and after pleading not guilty he was adjudicated guilty of that charge. Harmon Hall conducted an investigation of the accident on behalf of the Respondent. Fortier had contended that the brakes on his truck failed and that the truck was overloaded. These contentions were not born out by the investigation. A similar load to that which Fortier was carrying on the date of the accident was placed on the truck, and it was found to be within the vehicle's weight limitations. Furthermore, the vehicle's brakes performed properly while it was fully loaded. It is possible that the tests conducted by the Respondent were inaccurate. The load on Fortier's truck could have been heavier than the test load. Efforts were made to duplicate the load, however, and Hall and Brakefield were justified in believing that Fortier may have been operating the vehicle in a careless manner when the accident occurred. Late in the afternoon on Friday, September 19, Brakefield instructed Hall to summon Fortier to Brakefield's office. It was Brakefield's intention to discuss the unfavorable reports that he had received respecting Fortier's accident, and the various other reported incidents of reckless driving that he had received respecting Fortier. There was considerable conflict in the testimony respecting when Hall confronted Fortier. Quitting time was 4:30 p.m. At the latest Hall approached Fortier at 4:28 p.m. and told him that Brakefield wanted to see him. Fortier adamantly refused to go to Brakefield's office, saying that it was quitting time, and that his time was his own. Fortier told Hall to go to hell. Hall asked Fortier if that meant he was resigning and Fortier told him that it did not. Hall told Fortier that he was no longer employed with the Respondent. On Monday, September 22, the next working day following this confrontation, Fortier reported to work. Hall approached Fortier and told him that he was no longer employed. Fortier asked him why, and Hall reminded him of the confrontation of the previous Friday. Joseph Fortier was discharged from his employment with the Respondent as a result of his refusal to meet with Brakefield on September 19, 1975. Both Brakefield and Hall were aware that Fortier was active in a union organizing campaign. There was no evidence offered at the hearing from which it could be concluded that Fortier's union activities motivated Hall and Brakefield in discharging him. The Respondent has had other truck drivers who have had accidents that were their faults, and who were not discharged; however, neither Brakefield nor Hall had even, prior to September 19, been confronted with a refusal to obey an order. It was this refusal that motivated them to discharge Fortier. Robert Merklein was hired by the Respondent during September, 1974, to work as a truck driver in the Respondent's Road Department. Merklein was initially assigned to drive a large dump truck, but he was not able to operate that vehicle, and he was assigned to a smaller dump truck. In May, 1975, Merklein was assigned to haul lime rock. His truck got stuck in loose sand. He tried to get the truck out of the sand by applying power, which resulted in the drive shaft breaking. In October, 1975, Merklein was assigned to dump a load of lime rock into an area where there was soft sand. He got stuck in the sand. He tried to get the truck out of the sand by shifting into the lower gears and spinning the wheels. This made the truck rock back and forth; however, the axle snapped. Subsequent to this accident Harmon Hall reprimanded Merklein. Hall told Merklein "this one is on me, but the next one is on you." Hall instructed Merklein that if he got stuck in soft sand again he should wait for assistance and not apply power to the truck. Approximately one month later Merklein again got stuck in the sand. Again he tried to extricate Merklein again got stuck in the sand. Again he tried to extricate his truck by applying power in the lower gears and rocking the truck back and forth. The truck was stuck up to the axles, and the drive shaft broke. Shortly after this incident Merklein told Hall that he had made a mistake in trying to get the truck out of the sand rather than just leaving it. Investigation of the damaged truck, and the drive shaft confirmed that too much power had been applied to the vehicle while it was struck in the sand. On November 19, 1975, Merklein was called into Brakefiled's office and informed that he was discharged. Other drivers had broken drive shafts, and had been at fault, but were not terminated. Only two other drivers had had as much difficulty with drive shafts as Merklein had, and each of these drivers resigned in anticipation of being terminated. Robert Merklein was discharged from his employment with the Respondent because of driving errors that he had made which resulted in expensive damage to the Respondent's vehicles. Merklein's supervisors were aware that he was engaged in a union organizing campaign. Merklein's union activities formed no part in the decision to discharge him.
The Issue The issue in this case is whether Respondent, Ricardo Cabrera, committed the offenses alleged in an Administrative Complaint issued by Petitioner, the Department of Financial Services, on March 9, 2005, and, if so, what penalty should be imposed.
Findings Of Fact The Parties. Petitioner, the Department of Financial Services (hereinafter referred to as the "Department"), is the agency of the State of Florida charged with the responsibility for, among other things, the licensure of individuals who wish to install and maintain fire suppression equipment and the investigation and prosecution of complaints against individuals who have been licensed in Florida. See Ch. 633, Fla. Stat. Respondent, Ricardo Cabrera, is and has been at all times material hereto a licensed Fire Equipment Dealer, Class C, in the State of Florida. Mr. Cabrera, who first applied for licensure as a Fire Equipment Dealer, Class C, on or about October 10, 1989, was issued license number 70219300011990 on January 17, 1990. The Department has jurisdiction over Mr. Cabrera’s licenses. Criminal Case. On or about October 20, 1989, after Mr. Cabrera had first applied for licensure by the Department, a criminal Information was filed in case number 89-38498, in the Circuit Court of the Eleventh Judicial Circuit in and for Dade County, Florida, charging that on September 30, 1989, Mr. Cabrera, unlawfully and feloniously had in his actual or constructive possession cocaine, a controlled substance. On or about December 12, 1989, Mr. Cabrera pled nolo contendere to possession of cocaine, a third degree felony, in the Circuit Court of the Eleventh Judicial Circuit in and for Dade County, Florida. Adjudication was withheld on the charge, and Mr. Cabrera was sentenced to probation for a period of one year and was ordered to successfully complete the T.A.S.C. drug program, a narcotics treatment program. As a result of the fact that the court withheld adjudication of guilt, Mr. Cabrera did not lose any civil rights. Mr. Cabrera's 1998 License Renewal Application; Count I. Mr. Cabrera applied for renewal of his license as a Fire Equipment Dealer, Class C, on or about December 5, 1998. Mr. Cabrera was asked and answered in the negative the following question on the application for renewal he filed with the Department: “Have you ever been convicted or pled nolo contendere to a felony?” The question, "[h]ave you ever been convicted or pled nolo contendere to a felony” is clear and understandable. Given Mr. Cabrera's plea of nolo contendere to the felony of possession of cocaine on December 12, 1989, the only reasonable response to this question Mr. Cabrera should have given was "yes." Mr. Cabrera has given no explanation as to why he failed to answer the question truthfully. Mr. Cabrera's license renewal application was received by the Department on or about December 21, 1998, and the renewal of his Fire Equipment Dealer, Class C, license was granted on June 14, 1999. Mr. Cabrera's 1999 License Renewal Application; Count II. Mr. Cabrera again applied for renewal of his license as a Fire Equipment Dealer, Class C, on or about December 6, 1999. Mr. Cabrera was asked and answered in the negative the following question on the application for renewal he filed with the Department: “Have you ever been convicted or pled nolo contendere to a felony?” The question, "[h]ave you ever been convicted or pled nolo contendere to a felony” is clear and understandable. Given Mr. Cabrera's plea of nolo contendere to the felony of possession of cocaine on December 12, 1989, the only reasonable response to this question Mr. Cabrera should have given was "yes." Mr. Cabrera has given no explanation as to why he failed to answer the question truthfully. Mr. Cabrera's license renewal application was received by the Department on or about December 13, 1999, and the renewal of his Fire Equipment Dealer, Class C, license was granted on December 15, 1999. Mitigating/Aggravating Factors. An Administrative Complaint was filed against Mr. Cabrera on or about December 30, 1994, as Qualifier for BC & ABC Fire Extinguisher Maintenance, alleging that he maintained two places of business without separate Fire Equipment Dealer licenses and qualifiers for each, and that he allowed an unlicensed person to conduct the business of a Fire Equipment Dealer. On or about August 8, 1995, Mr. Cabrera was placed on probation for two years and ordered to pay a fine of $1,000.00. An Administrative Complaint was filed against Mr. Cabrera on or about June 29, 2004, as Qualifier for BC & ABC Fire Extinguisher Maintenance, alleging that he allowed the insurance required to be carried by Section 633.061, Florida Statutes, for the business to lapse. On or about February 11, 2005, Mr. Cabrera was placed on probation for one year and ordered to pay a fine of $1,000.00.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department: Finding that Mr. Cabrera, did not violate Section 633.162(4)(f), Florida Statutes, as alleged in Counts I & II of the Administrative Complaint; Finding that Mr. Cabrera, violated Section 633.162(4)(g), Florida Statutes, as alleged in Counts I & II of the Administrative Complaint; and Revoking Mr. Cabrera's license for a period of four years from the date of the final order. DONE AND ENTERED this 21st day of July, 2005, in Tallahassee, Leon County, Florida. S LARRY J. SARTIN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of July, 2005.
Conclusions This matter came before the Department for entry of a Final Order upon submission of an Order Relinquishing Jurisdiction and Closing File by James H. Peterson, III, Administrative Law Judge of the Division of Administrative Hearings, pursuant to Petitioner’s Notice of Withdrawal of Intent to Establish Dealership, a copy of which is attached and incorporated by reference in this order. The Department hereby adopts the Order Closing File as its Final Order in this matter. Accordingly, it is hereby ORDERED that this case is CLOSED and no license will be issued to Chrysler Group Carco LLC and First Coast CIDR LLC to sell automobiles of the line-make Jeep (JEEP) or Chrysler (CHRY) at 10979 Atlantic Boulevard, Jacksonville (Duval County), Florida 32225. Filed July 28, 2010 2:16 PM Division of Administrative Hearings. DONE AND ORDERED this 2/ day of July 2010, in Tallahassee, Leon County, Florida. L A. FORD, Directo: Division of Motor Vehicles Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399 Filed with the Clerk of the Division of Motor Vehicles this Hh day of July 2010. abe vinta Lionel. ‘Administrator NOTICE OF APPEAL RIGHTS Judicial review of this order may be had pursuant to section 120.68, Florida Statutes, in the District Court of Appeal for the First District, State of Florida, or in any other district court of appeal of this state in an appellate district where a party resides. In order to initiate such review, one copy of the notice of appeal must be filed with the Department and the other copy of the notice of appeal, together with the filing fee, must be filed with the court within thirty days of the filing date of this order as set out above, pursuant to Rules of Appellate Procedure. CAF/vlg Copies furnished: C. Everett Boyd, Esquire Nelson Mullins Riley & Scarborough LLP 3600 Maclay Boulevard South, Suite 202 Tallahassee, Florida 32312 Benjamin C. Moore, Esquire St. Denis & Davey, P. A. 1300 Riverplace Boulevard, Suite 101 Jacksonville, Florida 32207 James H. Peterson, III Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Nalini Vinayak Dealer License Administrator
Conclusions This matter came before the Department for entry of a Final Order upon submission of an Order Closing File and Relinquishing Jurisdiction by William F. Quattlebaum, Administrative Law Judge of the Division of Administrative Hearings, a copy of which is attached and incorporated by reference in this order. The Department hereby adopts the Order Closing File as its Final Order in this matter. Said Order Closing File was predicated upon Petitioner’s Notice of Dismissal, filed April 2, 2012. Accordingly, it is hereby ORDERED that this case is CLOSED. Filed April 9, 2012 8:15 AM Division of Administrative Hearings DONE AND ORDERED this lel} day of April, 2012, in Tallahassee, Leon County, Florida. Bureau of Issuance Oversight Division of Motorist Services Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A338 Tallahassee, Florida 32399 Filed in the official records of the Division, of Motorist Services this day of April, 2012. NOTICE OF APPEAL RIGHTS Judicial review of this order may be had pursuant to section 120.68, Florida Statutes, in the District Court of Appeal for the First District, State of Florida, or in any other district court of appeal of this state in an appellate district where a party resides. In order to initiate such review, one copy of the notice of appeal must be filed with the Department and the other copy of the notice of appeal, together with the filing fee, must be filed with the court within thirty days of the filing date of this order as set out above, pursuant to Rules of Appellate Procedure. JB/jdc Copies furnished: Dean Bunch, Esquire Nelson, Mullins, Riley and Scarborough LLP 3600 Maclay Boulevard South, Suite 202 Tallahassee, Florida 32312 Richard N. Sox, Esquire Bass Sox Mercer, P.A. 2822 Remington Green Circle Tallahassee, Florida 32308 William F. Quattlebaum Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Nalini Vinayak Dealer License Section
Findings Of Fact Respondent is engaged in the business of trucking, and has its principal Florida office in Orlando. Respondent utilizes truck tractor and semitrailer combinations. Some of its semitrailers exceed 48 feet in length. One hundred of the National Freight semitrailers which exceed 48 feet in length operate with permits issued to National Freight by Petitioner in October, 1983. These 100 permits are assigned numbers M57683 through M57779 and M57678 through M57680. In 1983, the Florida Legislature amended Section 316.515(3)(b), Florida Statutes (F.S.). The amendment, which became effective July 1, 1983, prohibited the operation of semitrailers over 48 feet in length except for those in operation on Florida highways as of December 1, 1982. Petitioner's representative initially stated that Respondent and at least one other trucking company would be allowed to obtain operating permits for the oversize semitrailers provided they were on order as of December 1, 1982, and in operation on Florida highways by July 1, 1983. This policy was unwritten and has never been formalized by rule. In September, 1983, Petitioner informally requested Respondent to furnish a list of such trailers assigned to Florida. Respondent's list of the 100 trailers at issue here was provided and the permits were subsequently issued. None of the 100 trailers listed by Respondent were in Florida on July 1, 1983. Although Respondent's reply did not state they were in operation, neither did the reply suggest these trailers had not been delivered by July 1, 1983. Petitioner did not require proof of registration at that time. However, by letter of January 16, 1985, Petitioner demanded such proof, which Respondent was unable to provide. Petitioner's letter of January 16, 1985, also advised Respondent that its permits would be revoked if the proof of registration were not provided. This letter and Respondent's demand for hearing are the basis for these proceedings.
Recommendation Based on the foregoing, it is RECOMMENDED that Petitioner rescind its stated intent to revoke Permits M57683 through M57779 and M57678 through M57680. DONE and ENTERED this 13th day of August, 1985 in Tallahassee, Florida. R. T. CARPENTER, Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of August, 1985.
