The Issue The issue in this case is whether Respondent violated Florida Administrative Code Rules 5E-14.108(6) and 5E-14.112(7)(b), as alleged in the Administrative Complaint. If it is found that Respondent has committed any of the rule violations alleged, the penalty that should be imposed must also be determined.
Findings Of Fact On June 26, 2020, The Department’s inspector, Mr. Zuclich, inspected a fumigation operation conducted by Home Care Pest Control, Inc., at 520 SW 47th Ave, Coral Gables, Florida, 33134. Respondent is the certified operator of Home Pest Control, Inc., as defined in section 482.021(5). The Department has the authority to discipline the licenses of certified operators. § 482.161, Fla. Stat. Respondent used the fumigant Zythor during the fumigation of the subject property. The Department’s inspector, Mr. Zuclich, first arrived at the site of the fumigation during the active aeration phase. He observed the crew conducting their work for approximately 15 minutes. The inspection took place during the one-hour active aeration phase of the fumigation process, which is when the gas is allowed to escape the structure after the active fumigation phase is complete. During the inspection, Mr. Zuclich asked Respondent if he could demonstrate that the two SCBAs that were visible at the fumigation site were functional. Through his inspection, Mr. Zuclich determined that the first SCBA tank he checked had two and a half pounds of gas, which is an acceptable level. The second SCBA, however, showed a reading of zero. Respondent explained to Mr. Zuclich that the second SCBA did have air in it, but the gauge on the unit was not functioning properly. Mr. Zuclich then gave Respondent the opportunity to demonstrate that the second SCBA was, in fact, operational by turning it on and using it. However, even in doing so, the SCBA failed to function. Respondent had recently taken the second SCBA to be filled with air and did not know that it was inoperable until he attempted to demonstrate it for Mr. Zuclich during the inspection. Mr. Zuclich inspected a truck that was marked with the logo for Respondent’s company. He also requested access to inspect the interior and the cargo bed of Respondent’s personal vehicle, which Respondent denied. To the extent that Mr. Zuclich was able to make a plain-view observation from the outside of the personal vehicle, he could not see any additional SCBA equipment. Mr. Zuclich testified credibly that he believed if such equipment were present in the vehicle, he would have been able to see them from his vantage point because of their large size. Following his inspection, Mr. Zuclich filled out an affidavit onsite summarizing his observations, including the inadequacy with respect to Respondent’s SCBA equipment. Respondent signed the affidavit that Mr. Zuclich wrote, which included some clarifying language at Respondent’s request. Respondent testified that he had spare SCBA tanks in both his personal and fumigation vehicles. However, according to his testimony, he did not produce the additional SCBA equipment over the course of the inspection because Mr. Zuclich did not ask him to do so. Respondent’s testimony on this point is not credible because it is illogical that he would not have submitted other available SCBA equipment for inspection despite the fact that it was clear that Mr. Zuclich was documenting the deficiency in SCBA equipment as part of his inspection. Respondent’s testimony is rejected to the extent that it conflicts with Mr. Zuclich’s testimony as to the availability of additional SCBA tanks at the fumigation site. During his inspection, Mr. Zuclich further observed, and documented, that one of the exterior doors on the structure being fumigated was closed and locked during the one-hour active aeration period. Respondent testified that he did not receive keys from the homeowner to the exterior door that remained closed during active aeration. He further testified that he could not access the door because it was blocked and locked from the inside. He did not know definitively whether the door was operable.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department impose a fine of $750 against Respondent’s license. DONE AND ENTERED this 7th day of January, 2021, in Tallahassee, Leon County, Florida. S BRITTANY O. FINKBEINER 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 7th day of January, 2021. COPIES FURNISHED: Lee Damessous, Esquire Department of Agriculture and Consumer Services 407 South Calhoun Street, Suite 520 Tallahassee, Florida 32399-0800 (eServed) David Aponte Home Care Pest Control, Inc. 672 Northwest 118 Street Miami, Florida 33138 (eServed) Nicole “Nikki” Fried Commissioner of Agriculture Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810 (eServed) Steven Hall, General Counsel Department of Agriculture and Consumer Services 407 South Calhoun Street, Suite 520 Tallahassee, Florida 32399-0800 (eServed)
The Issue The issue presented is whether Respondent is guilty of violating certain statutes and rules regulating the pest control business, as alleged in the Administrative Complaint filed against him, and, if so, what disciplinary action should be taken against him, if any.
Findings Of Fact Respondent Bradford B. Baker is a certified operator, licensed to perform pest control services in the State of Florida. He is also the owner of Baker's Termite and Pest Control. In early June, 1989, Baker's Termite and Pest Control was contacted by Who-To-Call, a real estate brokerage service, to perform an inspection for termites and wood destroying organisms. The structure to be inspected was a residence owned by Mike and Susan Gillen and located at 825 28th Avenue, Vero Beach, Florida. Baker's sent its then-employee Earl M. Nesbit to perform the inspection on June 3, 1989. When Nesbit arrived, he encountered a number of adults and children sitting around the breakfast table. One of the men was Mike Gillen, the woman turned out to be a real estate broker, and the other gentleman identified himself as a prospective buyer who was in the pest control business in New York. When Nesbit completed his inspection, he advised all of the adults that he had found live dry-wood termites and wood-decaying fungi. He recommended that the home be structurally fumigated. He explained to all of the adults the types of gases that could be used, the various processes involved in fumigation, and those things that needed to be performed by the homeowner in preparation for fumigation. Gillen and the prospective buyer specified that they wanted the residence fumigated with Vikane. On June 9, 1989, Nesbit went to Mike Gillen's place of employment. Gillen signed an agreement with Baker's for Baker's to perform the fumigation services on his residence and specified in the contract that Vikane gas was to be used and that the fumigation was to be performed on July 7, 1989. Gillen advised Nesbit that Baker's would be performing the fumigation prior to the closing on the sale of the Gillen residence and that Baker's would be paid for the fumigation services out of proceeds to be placed in escrow at the time of closing. At the same meeting, Nesbit presented Gillen with a Customer's Duties List which specified those items which needed to be performed by the homeowner in preparation for tent fumigation. Gillen signed a copy of that list, and Nesbit orally reviewed. The list with Gillen advising him of all the things to be done prior to the fumigation. The Customer's Duties List reviewed by Nesbit and given to and signed by Gillen contains a list of materials that can be contaminated or damaged by the fumigant, the items to be removed from the structure, and other precautions to be taken by the property owner. On July 7, 1989, the date called for in the contract with Gillen, a crew from Baker's led by Richard Fulton arrived at the Gillen residence at approximately 9:00 a.m. A number of private vehicles were parked in the driveway so that Fulton had to park his vehicle out at the street. Fulton began walking around the outside of the house to see what the job entailed when a man came out of the house and approached him. The man told Fulton that they were not prepared for the fumigation to take place that day and that it would have to be done some other time. Fulton was relieved because he had noted that the trees and bushes around the perimeter of the house had not been trimmed so that it would be possible to drop a tarp from the top of the house down to the ground. The man asked Fulton what gas was going to used, and Fulton advised him that Baker's intended to use Vikane. They discussed the Vikane and Fulton advised the man that the shrubs had to be trimmed back from the house so that they could get a tarp down to the ground. The man never identified himself. Fulton returned to his truck and, using the truck radio, contacted Lloyd Baker, one of Baker's certified operators who was on his way to the Gillen job. As a result of being advised that the job had been cancelled, Lloyd Baker proceeded to the next job, and Fulton and the crew left the Gillen residence. The Gillen job was rescheduled on the morning of July 7, 1989, by a real estate agent, who rescheduled the Gillen job for Friday, September 8, 1989. On Thursday before the scheduled fumigation, a Baker's employee obtained a key to the Gillen residence from the occupants of the house since they would be out of town from Friday morning to Sunday night. In accordance with the rescheduling, the Baker's crew arrived at the Gillen residence on Saturday, September 9, 1989, to perform the fumigation. No one was home when the crew arrived, but the bushes around the house had been trimmed so that the tarps could be dropped to the ground. While preparing the house for introduction of the Vikane, the crew did notice several containers of chemicals in the garage of the residence, which chemicals are restricted and can only be purchased by persons holding the proper licensure. The house was properly fumigated with Vikane. Because Vikane is a colorless, odorless poison, Baker's also used chlor-o-pic, a tear gas which is properly used with Vikane as a warning agent. On Sunday, September 10, Respondent went with the crew to the Gillen residence to lift the tarps. At that time, Respondent also noticed the presence in the garage of restricted chemicals requiring licensure. Respondent walked through the house after the tarp was lifted and the house had been aired. He determined through the use of a device called an Interscan that no Vikane was present in the house. While he was in the house, Baker experienced no nausea or eye irritation from the chlor-o-pic. Fulton, who was also in the house after the tarp was lifted and the house was aired out, experienced no physical irritations resulting from the Vikane or the chlor-o-pic. Respondent Baker placed a treatment sticker on the circuit breaker panel box, which sticker identified the fumigant used as being Vikane. He also placed a notice on the front door indicating that the house was safe to enter. On Monday, September 11, 1989, Respondent Baker received a telephone call from a Mr. Jenkins, complaining that he, his wife and his children had returned to their home the previous evening and had experienced physical discomforts and symptoms necessitating that they leave the house. Jenkins was seeking reimbursement for medical expenses, hotel expenses, and other monies. The first knowledge that Respondent or Baker's had of Mr. and Mrs. Jenkins was the phone call from Mr. Jenkins to Respondent on September 11. At the time that the Gillen residence was fumigated by Baker's, Respondent and Baker's did not know that Mrs. Jenkins had purchased the Gillen residence; that the closing of that real estate transaction had occurred on July 5, two days before the fumigation date scheduled in the contract between Gillen and Baker's; and that the man who had sent away the crew from Baker's on July 7 because he was not prepared was not Mr. Gillen, the owner of the house with whom Baker's had a contract, but rather was Mr. Jenkins, the husband of the new owner of the house. It is uncontroverted that Respondent never saw the contract for purchase and sale between the Gillens and Mrs. Jenkins, that Respondent had no knowledge of any terms of that real estate transaction between the Gillens and Mrs. Jenkins, that Respondent did not know that a closing was scheduled to take place on July 5, or that it had in fact taken place, that Mrs. Jenkins and the Gillens had agreed to close without the fumigation being performed, or that the Jenkins family had moved into the Gillen residence prior to it being fumigated. If Respondent had known that a closing had taken place on the house, he would have required that the new owner enter into a contract with Baker's before Baker's performed fumigation services. Baker's would not have performed fumigation services pursuant to a contract with someone who did not own the property that was being fumigated. In late September, Mrs. Jenkins filed a complaint with Petitioner regarding the fumigation performed by Baker's. Petitioner's entomologist- inspector contacted Baker's, and Respondent returned to the Jenkins residence and again tested for the presence of Vikane. None was detected. Petitioner's inspector later attempted to "scan" the Jenkins residence as part of his investigation in this matter using equipment loaned to him by Baker's, Mr. and Mrs. Jenkins refused to allow him to test their residence. Based upon his investigation, Petitioner's inspector concluded that the fumigation performed by Baker's was not performed in a negligent manner.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent not guilty of the allegations contained in the Administrative Complaint and dismissing the Administrative Complaint filed against him in this cause. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 7th day of January, 1991. LINDA N. RIGOT 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 7th day of January, 1991. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 90-0944 Petitioner's proposed finding of fact numbered 1 has been rejected as not constituting a finding of fact but rather as constituting a conclusion of law. Petitioner's proposed findings of fact numbered 2, 3, and 6-8 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed findings of fact numbered 4, 5, and 12 have been rejected as being unnecessary for determination of the issues involved in this cause. Petitioner's proposed findings of fact numbered 9- 11, and 13-15 have been rejected as not being supported by competent or credible evidence in this cause. Respondent's proposed findings of fact numbered 1-8 have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed findings of fact numbered 9 and 10 have been rejected as being unnecessary for determination of the issues involved in this cause. Respondent's proposed findings of fact numbers 11 and 12 have been rejected as not constituting findings of fact but rather as constituting conclusions of law or argument of counsel. COPIES FURNISHED: John Rodriguez Senior Attorney Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Suite 100 Tallahassee, Florida 32399-0700 Peter T. Gianino, Esquire Grazi, Gianino & Cohen 217 East Ocean Boulevard Post Office Box 2846 Stuart, Florida 34995 Sam Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Linda K. Harris, Esquire Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
Findings Of Fact On September 25, 1989, Fredrick Hassut, Jr., an entomologist-inspector in the Department's Winter Park office, received a telephone call from Mary Ellen Jenkins complaining about fumigation services which had been rendered by Petitioner. In response to that telephone call, Hassut forwarded to her the Department's official form for complaints against pest control companies. Hassut received Jenkins' completed form, together with her five-page handwritten letter of complaint, on October 6, 1989. On October 9, 1989, Hassut sent to Petitioner the Department's official form for pest control companies to use in responding to consumer complaints made against them. Hassut received Petitioner's completed form on October 16, 1989. Between September 27, 1989, and November 13, 1989, when Hassut completed his investigation, he had numerous telephone conversations with Petitioner concerning Jenkins' allegations, had visited the Jenkins' residence, and had reviewed the contract entered into between Mike and Susan Gillen and Petitioner for tent fumigation of the subject residence. By the conclusion of his investigation, Hassut knew the following facts. Petitioner had been contacted by a real estate brokerage company to do an inspection for termites and wood destroying organisms at a residence, attendant to a contract for the purchase and sale of that residence. The residence was owned by Mike and Susan Gillen. Petitioner's employee performed the inspection, located drywood termites, and recommended tent fumigation for eradication. On June 9, 1989, a contract was entered into between Petitioner and Mike and Susan Gillen for fumigation services, and the contract established July 7, 1989, as the date on which such services would be performed. Although the contract called for cash upon completion of service, subsequent arrangements had been made, and Petitioner had agreed that he would be paid for the fumigation services from monies to be escrowed at the closing, a routine business arrangement in the industry. A fumigation crew went to the residence on July 7 as agreed by contract, but the services were postponed to Friday, September 8, 1989. On Saturday, September 9, the residence was tented, and a certified operator employed by Petitioner injected Vikane, the fumigant specified in the contract. On Sunday, the tarps were removed, and Petitioner "cleared" the residence, using an Interscan to test for the presence of Vikane. One of the complaints made by Jenkins and by her husband who works in the pest control industry and had done so for the previous six years was that Petitioner had failed to furnish them with a printed list of items to be removed from the structure, prior to fumigation. Mrs. Jenkins told Hassut that she was the new owner of the residence which she had purchased from Mike and Susan Gillen, that the closing on the sale had taken place on July 5, and that the Jenkins had moved into the structure prior to the structure being treated for termites. Mrs. Jenkins never represented to Hassut that she had advised Petitioner, prior to fumigation, that the ownership of the property had changed. Petitioner advised Hassut that he had never heard of Mrs. Jenkins or her husband until the day after the fumigation services were completed when Mr. Jenkins called to complain about the services. Petitioner advised Hassut that he did not know that a closing had in fact taken place and that a new owner was occupying the structure when the fumigation services were performed. Petitioner believed at all times through the completion of the fumigation work that he was dealing with the Gillens. Petitioner advised Hassut that Mike Gillen had been given a Customer Duty List, which included the written list of items to be removed from the structure, on June 9, 1989, when Mike Gillen signed the contract with Petitioner for fumigation services, and that Gillen had signed a copy of that list to show that it had been provided to him. Petitioner had assumed the closing had been postponed because the fumigation services were postponed, and termite treatment is normally a condition precedent to a closing. Had Petitioner known that there was a new owner of the structure, he would have obtained a contract from the new owner prior to the rendering of services rather than performing services for someone with whom he did not have a contract. At the time, Hassut believed that a pest control operator is under no legal duty to verify that the owner of a structure for which there is a contract for fumigation services is still the owner at the time that the services are performed. Hassut further believed that if Petitioner did not know that the Gillens had completed the sale of their home to Mrs. Jenkins and if Petitioner had given the required printed list of items to be removed to the Gillens, then Petitioner would have complied with the regulations requiring provision of that printed list. Hassut made no attempt to contact either Mike or Susan Gillen to ascertain if they had advised Petitioner that the ownership of the house had changed or to ascertain if they had been provided the required printed list, as Petitioner contended. Further, he made no attempt to contact the real estate agent or the title company involved in the closing to ascertain if they had advised Petitioner that ownership of the property had changed. Hassut specifically determined that Petitioner was not negligent in the performance of fumigation services at the Jenkins residence. When Hassut completed his consumer investigation, he prepared his Notice of Recommended Enforcement Action containing his conclusions as to violations he found during his investigation. He forwarded that document to the Department's Jacksonville office, specifically to James Bond, the enforcement coordinator, for final decision as to whether Petitioner would be charged with violating any of the statutes and rules regulating the pest control business. Hassut recommended that Petitioner be charged with two violations only. Section 482.226(6), Florida Statutes, requires that a Notice of Treatment be posted at premises where fumigation services have been performed and that the location of that Notice be notated on the service contract. Since Hassut was unable to locate the Notice of Treatment, he recommended that Petitioner be charged with violating Section 482.226(6). He also recommended that Petitioner be charged with violating Section 10D-55.110(3), Florida Administrative Code, for failing to furnish to the property owner or agent a printed list of items to be removed prior to fumigation. James Bond reviewed Hassut's investigative report and recommendations, and then forwarded that report together with Bond's own recommendation to Philip R. Helseth, Jr., pest control administrator, who made the decision that an administrative complaint should be filed against Petitioner. Part of the reason that Helseth determined to take action against Petitioner was the fact that on one occasion during Petitioner's ten and one-half years in business, Petitioner had received a warning letter from the Department. Before the Administrative Complaint was prepared and served on Petitioner, no one referred the investigation back to Hassut with instructions that he further investigate by interviewing the Gillens. Further, no one in the Jacksonville office consulted Hassut regarding the numerous violations which were included in the Administrative Complaint to determine if Hassut agreed that his investigation had revealed facts supporting the expanded list of violations. The Administrative Complaint prepared by the Department and served on Petitioner charged Petitioner with violating three statutory provisions and four of the Department's regulations. Interestingly, the one statutory violation which appeared in Hassut's recommendation--failure to post a Notice of Treatment and notate its location on the contract--was not one of the charges included in the Administrative Complaint. The Administrative Complaint charged Petitioner with having violated Sections 482.161(1)(a), 482.161(1)(e), and 482.161(1)(f), Florida Statutes, and Sections 10D-55.105(2), 10D-55.106(1), 10D-55.108(3)(c), and 10D-55.110(3), Florida Administrative Code. After service of the Administrative Complaint on him, Petitioner timely requested a formal hearing regarding the allegations contained within that Administrative Complaint. The matter was subsequently transferred to the Division of Administrative Hearings for the conduct of that formal proceeding and was assigned DOAH Case No. 90-0944. The final hearing was conducted on September 27, 1990, in Stuart, Florida. At the commencement of the final hearing, the Department dismissed several of the allegations contained in the Administrative Complaint filed against Petitioner. The Department announced on the record that the only statutes and rules Petitioner was still alleged to have violated were Sections 482.161(1)(a) (violating the Department's statutes or rules), 482.161(1)(f) (performing pest control in a negligent manner), Section 10D-55.108(3)(c) (using an improper fumigant and/or using a proper fumigant improperly), and Section 10D-55.110(3) (failing to furnish the property owner or agent a printed list of items to be removed from the structure prior to fumigation). The Recommended Order entered after the conclusion of the final hearing found that the Department offered no evidence that Petitioner used an improper fumigant or used the fumigant improperly; that the evidence was uncontroverted that Petitioner supplied Gillen, the property owner, with a Customer Duty List, the accepted common name of the fumigant to be used, notification of which materials may be contaminated or damaged by the fumigant, as well as other precautions to be taken by the property holder; that the Department offered no evidence that Petitioner was guilty of performing pest control in a negligent manner; and that Petitioner had not violated any of the Department's statutes or rules with which he was charged. That Recommended Order, entered on January 7, 1991, recommended that a final order be entered finding Respondent not guilty of the allegations contained in the Administrative Complaint and dismissing the Administrative Complaint filed against him. On February 15, 1991, the Department entered its Final Order adopting the findings of fact and conclusions of law set forth in the Recommended Order, finding Petitioner not guilty of the violations with which he was charged, and dismissing the Administrative Complaint. The Department had no reasonable basis in law and fact at the time that it issued its Administrative Complaint against Petitioner. Petitioner expended the sum of $6,923.50 in attorney's fees and $698.30 in costs, for a total of $7,621.80, in successfully defending himself and his company in the administrative action resulting from the Department's Administrative Complaint.
The Issue Whether Respondent unlawfully discriminated against Petitioner.
Findings Of Fact For many years Mark Dunning Industries, Inc. (MDI), held the contract for trash removal and processing for Naval Air Station, Pensacola, Florida (NAS Pensacola). In the summer of 1995, the contract for these services, for a period beginning January 1996, were the subject of a bid solicitation. The apparent winner of the bid was Ohio Disposal Systems, Inc (ODSI). This bid was contested by MDI. Ultimately, ODSI prevailed in the bid contest and was selected to perform the contract. Performance was to begin on January 1, 1996, however, ODSI was not informed that it was to be the contractor until early December 1995. Petitioner was born on July 12, 1922. He is a U.S. citizen from Puerto Rico, and of Hispanic origin. Petitioner first came to be employed by MDI in the summer of 1994. Petitioner worked on the "hill," which is an elevated portion of the trash dump on board NAS Pensacola. It was his job to weld broken equipment. He also operated two kinds of equipment: a Bobcat, which is a small front-end loader, and a backhoe with a dozer blade mounted on the front. Petitioner was paid about $16.00 per hour as a welder. Victor Cantrel, Petitioner's friend, commenced employment with MDI in July 1995. He worked on the "hill" and also drove the Bobcat and the back-hoe. He would utilize this equipment to push trash into a compactor. In trash-handling parlance, he was known as a "hill man." He was not a welder. He worked closely with Petitioner. Mr. Cantrel was born on June 25, 1972, and is Anglo- American. He was paid about $9.00 per hour. The supervisor of Petitioner and Mr. Cantrel, during the latter months of 1995 while they were working for MDI, was Thomas Lucky. The principal of ODSI was Vince Crawford. On or about December 28, 1995, at the end of the workday, Mr. Lucky informed the employees, including Petitioner, Mr. Cantrel, and a number of trash truck drivers, that there was to be a meeting in the company office near the "hill." Present at the meeting in the office, which commenced around 6:30 p.m., was Petitioner, Mr. Cantrel, Mr. Lucky, several truck drivers, Mr. Crawford, and his wife Cathy. Mr. Crawford informed the assembled employees that he was bringing in all new equipment; that because there would be new equipment, the new employees of ODSI would be able to work 40 hours per week; and that due to the requirement to get his company in shape in time to meet the January 1, 1996, deadline, many of the employees of MDI would be offered jobs with ODSI. After revealing these preliminary matters, Mr. Crawford asked a man named Lee what he did at MDI; this man said that he was a truck driver. Mr. Crawford told him that he was hired with the new company. Then he asked Mr. Cantrel what he did; he said he drove the Bobcat. Mr. Crawford said, "Recycle, huh. You are hired." Mr. Cantrel subsequently filed an employment application. However, he knew that after the announcement at the meeting, he was going to work for ODSI. When Mr. Crawford inquired of two more people, they both responded, "truck driver," and Mr. Crawford informed them that they were hired. When he asked Petitioner, Petitioner said, "Welder." Mr. Crawford then said, "We don't need no welders here." This was the first and last encounter Petitioner had with Mr. Crawford. The next day Petitioner arrived at work at the usual time and was informed that he no longer was employed at that facility. On January 2, 1996, Petitioner presented an employment application to the office at ODSI seeking employment as a "Welder and/or Heavy Equip. Opr." He never received a response. No evidence was adduced that at that time there were job openings for a "welder and/or heavy equipment operator." Additionally, according to Petitioner, no one from ODSI informed Petitioner that he was not qualified. No evidence was adduced at the hearing which indicated that Mr. Crawford noticed that Petitioner was 73 years of age, or that he was a Puerto Rican, or that he was of Hispanic origin. The unrebutted evidence demonstrated that Petitioner was not hired, at the time jobs were available, because Mr. Crawford was bringing in new equipment. New equipment does not require frequent welding and, therefore, Mr. Crawford did not need a welder.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a final order be entered finding Respondent committed no unlawful employment practice. DONE AND ENTERED this 28th day of March, 2002, in Tallahassee, Leon County, Florida. HARRY L. HOOPER 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 28th day of March, 2002. COPIES FURNISHED: Bruce Committe, Esquire 17 South Palafox Place, Suite 322 Pensacola, Florida 32501 Denise Crawford, Agency Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 H. William Wasden, Esquire Pierce, Ledyard, Latta, Wasden & Bowron, P.C. Post Office Box 16046 Mobile, Alabama 36616 Cecil Howard, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
