author: JAMES HARVEY, District Judge.

text:
    Charles D. MELCHI, Plaintiff, v. BURNS INTERNATIONAL SECURITY SERVICES, INC., Defendant.
    Civ. No. 82-10014.
    United States District Court, E.D. Michigan, N.D.
    Jan. 20, 1984.

      Robert A. Hahn, Midland, • Mich., for plaintiff.
    Gary E. Murg, Sally Akan, Nancy S. Katz, Detroit, Mich., for defendant.
   MEMORANDUM OPINION AND ORDER

JAMES HARVEY, District Judge.

Plaintiff brought this action under the Michigan “Whistleblowers’ Protection Act”, M.C.L. § 15.361 et seq, seeking both legal and equitable relief from the defendant Burns International Security Services Inc. (hereinafter “Burns” or “the Company”), for allegedly discharging him in an unlawful manner. Plaintiff claims that he was fired in retaliation for writing a letter to various public officials and agencies purportedly revealing violations of laws and/or regulations by Burns.

This claim was tried to the Court sitting without a jury. At the conclusion of trial, the parties submitted their requests for findings of fact and conclusions of law. Having considered the pleadings, testimony, and documents admitted in evidence, the Court makes the following findings of fact and conclusions of law pursuant to F.R.Civ.P. 52(a).

FINDINGS OF FACT

1.) Plaintiff Charles Melchi worked for Burns Security from September 1, 1978, until he was fired on November 5, 1981. During his employment, Burns Security was under contract with the Consumers Power Company of Michigan (CPC) to provide security services during the construction and operating phases of CPC’s nuclear power facility in Midland, Michigan.

Originally hired as a member of the guard force, plaintiff was promoted in April, 1980, to the position of sergeant which he held until January, 1981. Plaintiff was then promoted to the position of shift lieutenant. As a shift lieutenant plaintiff supervised approximately twelve guards and the main gate sergeant. Along with additional supervisory responsibilities, this promotion removed plaintiff from the bargaining unit and placed him in management ranks.

2. ) On February 2, 1980, while still a guard, plaintiff received a 12-month evaluation. Plaintiff’s overall performance was rated “above average.”

3. ) In May of 1981, following his promotion to shift lieutenant, plaintiff’s performance was again evaluated. Captain James R. Bradshaw, the Midland Site Commander and plaintiff’s immediate supervisor, conducted the appraisal and rated plaintiff’s overall performance “above average.” Captain Bradshaw noted however, that “Chuck has been slightly erratic in the performance of his duties ... [and] has made less than adequate judgment on a few occasions — more experience will be helpful.”

4. ) In July, 1981, Burns’ non-nuclear operations manager, Gerald Bradshaw, met with plaintiff to discuss his performance as a lieutenant. Specifically, plaintiff was reprimanded concerning an incident where he had permitted a guard on duty to leave the premises to cash a paycheck, and ordered another guard to cover for him. Bradshaw also explained that the Company was troubled by allegations that the plaintiff had breached the confidentiality of managerial discussions.

According to Bradshaw, plaintiff was further cautioned about his personal relationships with some of the guards. Apparently, the Burns’ management was concerned that plaintiff’s off-duty socializing with the guard force was interfering with his ability to be an effective supervisor. Plaintiff was warned that if his performance did not improve he could be demoted to sergeant or guard.

5. ) Some time between October 16 and October 19, 1981, Captain James Bradshaw became aware of two other incidents involving plaintiff’s actions as a lieutenant. Captain Bradshaw was advised that plaintiff had prepared an employment reference for a Burns employee to the Babcock & Wilcox Construction Company, one of the contractors on the Midland site. Bradshaw was also advised that plaintiff had found the main gate sergeant asleep on duty and had failed to report this to the Company.

6. ) Although Captain Bradshaw was admittedly aware of these incidents, he did not attempt to contact the plaintiff. Indeed, prior to October 25, 1981, Bradshaw did not, in any manner, bring these alleged violations of company policy to the plaintiff’s attention.

7. ) On October 25, 1981, the plaintiff asked Bradshaw to accompany him in a Burns vehicle while he made his rounds. Bradshaw agreed, and as he made his rounds, plaintiff explained that he had heard rumors circulating among the guard force that Bradshaw was disappointed with plaintiff’s performance and was contemplating his discharge. Bradshaw explained to plaintiff that he should not pay so much attention to rumors among the guards and that if he wanted to fire plaintiff, he would have done so in connection with plaintiff’s prior actions. Plaintiff was again admonished for his off-duty contacts with union employees (guards and sergeants), and specifically for his decision to maintain guard Mapes as a roommate despite plaintiff’s promotion to a management position. Captain Bradshaw believed that plaintiff’s work performance and evaluations would improve if he was not living with a member of the guard force.

8. ) During this conversation, Captain Bradshaw asked plaintiff if he had written a letter of reference for a Burns employee to the Babcock & Wilcox Construction Company. Plaintiff answered that' he had not. Bradshaw then asked plaintiff if he had ever found the main gate sergeant asleep on duty. Plaintiff again answered that he had not.

9. ) During trial plaintiff testified that although he had indeed prepared an employment reference, he submitted the reference to a college placement office on forms submitted by the college. Plaintiff indicated that he did not realize the reference had been forwarded to Babcock & Wilcox. Thus plaintiff believed his answer to Captain Bradshaw was truthful since he had not prepared or sent a reference to Babcock & Wilcox and at the time of Bradshaw’s questioning was not aware the reference had been sent to Babcock & Wilcox. As to the sleeping incident, plaintiff denied that he had ever observed the main gate sergeant asleep on duty.

. 10.) Although the Company’s stated reasons for firing plaintiff was “lying ... and below standard performance” the Court makes no finding as to whether plaintiff lied to Captain Bradshaw. As will become clear in the Court’s conclusions of law, such a determination is not necessary to the resolution of this lawsuit.

11.) Following his conversation with Captain Bradshaw, plaintiff returned to his duties. Later in the evening of October 25, or in the early morning hours of October 26, plaintiff prepared and sent the following letter to Captain Bradshaw:

Dear Capt. Bradshaw.,
In regards to our conversation of the evening of the 25 Oct. 81, I feel I must make official my request for voluntary demotion to the ránk of sergeant or guard. If being a part of management means that Burns can dictate who I can or cannot share living quarters with, and who I can and cannot socialize with during my off hours, then the price of being a part of management is too high. If my request for demotion is granted, I will strive to do the same good job that the sergeant and guard appraisals indicate I can do. This request in no way dampens my desire to be a part of the nuclear guard force. I hope you consider my request favorably. Thank you.
Sincerely yours,
/s/
Charles D. Melchi II
P.S. I respectfully request a copy of this be placed in my employment file.

12. ) On Wednesday, October 28, 1981, plaintiff wrote the letter that he claims prompted his discharge. The letter was addressed and sent to the National Labor Relations Board and was copied to the Attorney General of the State of Michigan, Senator Carl Levin, Rep. Donald Albosta, the Nuclear Regulatory Commission, the Consumers Power Company and Donald Zastrow, the Burns District Manager. The letter complained of various management deficiencies including favoritism and promotions based on personal friendship. In his letter plaintiff also reported the destruction and falsification of security records and reports.

13. ) On Monday, November 2, 1981, Zastrow received a telephone call from CPC indicating they had received their copy of plaintiff’s letter. Burns and CPC were very concerned about the letter and viewed it as a serious matter. Later the same day Burns received its copy of plaintiffs letter to the NLRB.

14. ) After talking with CPC, Zastrow assigned Lowell Wilds, Burns’ nuclear operations manager, to investigate plaintiff’s NLRB letter. In the early afternoon of November 2, Wilds called Captain Bradshaw and advised him that he had been assigned to investigate the letter. In the course of this conversation Captain Bradshaw informed Wilds of his discussion with plaintiff on October 25, and plaintiff’s request for demotion on October 26. Wilds instructed Captain Bradshaw not to take any action regarding the letter of reference or sleeping incident pending Wilds’ investigation of the NLRB letter.

15. ) In regard to finding of fact number fourteen, the Court notes that during trial Wilds testified concerning the precise time of day he contacted Bradshaw to inform him that Burns had received the letter. Specifically, Wilds recalled that he telephoned Bradshaw at about 2:00 p.m. on November 2, 1981.

In a document submitted by Burns (DX 22), it appears that at approximately 1:18. p.m. on November 2, 1981, Captain Bradshaw began his investigation of the sleeping incident. Based on Wilds’ testimony and the document admitted in evidence, the defendant contends that when plaintiff’s NLRB letter was received, he was already under investigation to determine if he lied to Captain Bradshaw about the sleeping incident.

However, in view of the amount of time between the day of the phone call and trial (approximately 16 months), and having had an opportunity to observe the witness’ demeanor on the stand and considering the witness’ relation to the defendant, the Court attaches little weight to Wilds’ testimony concerning the exact time he telephoned Captain Bradshaw. In weighing this' testimony the Court has endeavored to determine the facts and inferences representing the more probable course of events. As indicated in finding of fact number fourteen, the Court believes that Wilds’ telephone call was placed in the early afternoon, at or about the same time Captain Bradshaw began investigating the sleeping incident.

16. ) Wilds arrived at the Midland site on November 4, 1981, and began his investigation of the allegations made by plaintiff in his lgtter. Wilds interviewed the plaintiff, Captain Bradshaw, and several other Burns employees, as well as representatives of CPC.

17. ) At the conclusion of his interviews, Wilds concluded that there was no substance to the allegations made in the NLRB letter.

18. ) During his investigation of November 4, Wilds directed Captain Bradshaw to obtain reports from the alleged sleeping sergeant and the guard that was with the plaintiff when he allegedly observed the sleeping incident. Wilds also obtained a copy of the reference letter written by plaintiff,

19. ) The following day, November 5, 1981, plaintiff was ordered to report to work early. Wilds met with plaintiff and explained why the allegations contained in his NLRB letter were false and then confronted plaintiff with the letter of reference and reports concerning the sleeping incident.

20. ) At the conclusion of this interview, Wilds wrote “terminated” on his note pad and left the room. A few minutes later Captain Bradshaw entered the room and informed plaintiff that he was being fired for lying and below standard performance.

21. ) The Court believes that when plaintiff wrote the NLRB letter he held an actual, subjective belief that the destruction or falsification of security reports and records at a nuclear power facility is a violation of a state or federal law, regulation or rule.

22. ) At the time of his discharge, plaintiff was compensated at the rate of $7.20 per hour and worked 40 hours per week.

23. ) Plaintiff is á citizen of the State of Michigan.

24. ) Defendant Burns is a Delaware corporation with its principal place of business in the State of New York.

CONCLUSIONS OF LAW

1. ) The Court has jurisdiction of this case pursuant to 28 U.S.C. § 1332.

2. ) The Court notes initially that since this is a diversity action, Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), and its progeny mandate that this Court apply the law of Michigan to all substantive questions raised.

3. ) With the Findings of Fact in mind, the. Court now turns to an analysis of the legal standards under which plaintiffs allegations of retaliatory discharge may be evaluated. The Court’s analysis will first identify and discuss the legal standards, including the appropriate burden of proof, applicable to a claim brought under the Michigan Whistleblowers’ Protection Act; the Court will then consider whether plaintiff has met his burden of proof and if so, what damages are available and appropriate.

4. ) As we have seen, plaintiff claims that his discharge was in retaliation for writing a . letter that revealed suspected violations of laws and/or regulations by his employer, Burns Security. In Suchodolski v. Michigan Consolidated Gas Company, 412 Mich. 692, 695, 316 N.W.2d 710 (1982), the Michigan Supreme Court recognized that while generally “either party to an employment contract for an indefinite term may terminate it at any time for any, or no, reason” (citing Toussaint v. Blue Cross & Blue Shield of Michigan, 408 Mich. 579, 292 N.W.2d 880 (1980)), “some grounds for discharging an employee are so contrary to public policy as to be actionable.”

For instance, Michigan courts have prohibited retaliatory discharges when the reason for the discharge was the employee’s exercise of a well-recognized statutorily created right. Sventko v. Kroger Co., 69 Mich.App. 644, 245 N.W.2d 151 (1976) (discharge in retaliation for filing a worker’s compensation claim.) Similarly, Michigan has implied a cause of action for wrongful termination where the alleged reason for the discharge was the employee’s refusal to violate a law. Trombetta v. Detroit, Toledo, & Ironton Ry. Co., 81 Mich.App. 489, 265 N.W.2d 385 (1978) (discharge in retaliation for refusing to falsify pollution control reports.)

Acknowledging the importance of these judicially-carved public policy exceptions to the employment-at-will doctrine, the Suchodolski Court noted that most often these proscriptions are found in explicit legislative statements prohibiting the discharge of an employee for acting pursuant to a statutory right or duty. The Michigan Whistleblowers’ Protection Act, M.C.L. § 15.361 et seq. (hereinafter “the Whistleblowers’ Act” or “the Act”) represents one of Michigan’s, “legislative statements” referred to in Suchodolski. In essence, the Act is a statutory recognition that the protection of employees who report violations of laws, regulations, and rules is a part of Michigan public policy.

5.) The Act provides that,

An employer shall not discharge, threaten, or otherwise discriminate against an employee regarding the employee^ compensation, terms, conditions, location, or privileges of employment because the employee, or a person acting on behalf of the employee, reports or is about to report, verbally, or in writing, a violation or a suspected violation of a law or regulation or rule promulgated pursuant to law of this state, a political subdivision of this state, or the United States to a public body, unless the employee knows that the report is false, or because an employee is requested by a public body to participate in an investigation, hearing, or inquiry held by that public body, or a court action. M.C.L. § 15.362

Although the Act became effective March 31, 1981, the Court’s research has failed to disclose any Michigan case law construing the Act and its protections.

6.) There is, however, an analogous state statute providing similar protection against retaliatory' discharges to employees who file complaints with the Michigan Civil Rights Commission. Enacted as a part of Michigan’s Elliott-Larsen Civil Rights Act, the statute provides that an employer shall not “retaliate or discriminate against” an employee that has “made a charge, filed a complaint, testified, assisted or participated in an investigation, proceeding or hearing under this act.” M.C.L. § 37.2701.

In interpreting claims of employment discrimination under the Elliott-Larsen Civil Rights Act, Michigan courts have looked to federal decisions construing parallel provisions of Federal legislation, specifically the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (hereinafter “Title VII”). In Michigan Civil Rights Commission ex. rel. Boyd v. Chrysler, 80 Mich.App. 368, 263 N.W.2d 376 (1977), the Michigan Court of Appeals remarked that:

the federal courts have had a much greater opportunity to review questions dealing with ... discrimination in employment ' than have the state courts. We believe that federal precedent, although not binding, is persuasive in determining what the substantive law of [employment discrimination] is at the present time.

See also Jones v. Cassen Transport, 538 F.Supp. 929 (E.D.Mich.1982).

In view of the lack of guidance from Michigan courts in the area of retaliatory discharges, and since the federal courts have had occasion to construe § 704(a) of Title VII which, similar to § 701 of the Elliott-Larsen Civil Rights Act, prevents an employer from retaliating against an employee for filing a charge or participating in proceedings before the Equal Employment Opportunity Commission, the Court believes it must look to federal court decisions and precedents for the proper legal standard to apply to plaintiff’s claim under the Whistleblowers’ Act. There are, of course, some differences between § 704(a) of Title VII and the Act. Section 704(a) is a narrowly drawn provision relating “solely to discrimination against an applicant or employee on account of his participation in legitimate civil rights activities or protests.” McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). The Whistleblowers’ Act on the other hand, enlarges the scope of protected activity to include the reporting of violations or suspected violations of any law, regulation or rule of the State of Michigan or the United States. The Act also permits recovery of certain damages not available under Title VII.

Despite the extended reach of the Act, it shares the goals of § 704(a) in that it seeks to protect the integrity of the law by removing barriers to employee efforts to report violations of the law. The common purpose and design of the statutes permit and perhaps require this Court to look to federal case law for the appropriate legal standards. See Stafford v. International Harvester Co., 668 F.2d 142 (2nd Cir.1981).

7.) In a case of alleged retaliatory discharge the order and allocation of the burden of going forward parallels the allocation first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and refined in Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). See Cohen v. Fred Meyer Inc., 686 F.2d 793 (9th Cir.1982).

In Burdine, supra, the Supreme Court defined the parties’ respective burdens as follows:

First, the plaintiff has the burden of proving by the preponderance of the evidence a prima facie case of discrimination. Second, if the plaintiff succeeds in proving the prima facie case, the burden shifts to the defendant “to articulate some legitimate, nondiscriminatory reason for the employee’s rejection.” [McDonnell Douglas, 411 U.S.] at 802 [93 S.Ct. at 1824].
Third, should the defendant carry this burden, the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination. Id., at 804, 93 S.Ct. at 1825.

8. ) In establishing a prima facie case of retaliation, a plaintiff must demonstrate three elements:

1. ) That the plaintiff engaged in protected activity as defined by the Act;
2. ) That the plaintiff was subsequently discharged from employment; and
3. ) That there is a causal connection between the protected activity and the discharge.

Canino v. EEOC, 707 F.2d 468, 471 (11th Cir.1983), Cohen v. Fred Meyer Inc., 686 F.2d 793, 796 (9th Cir.1982), Burrus v. United Telephone Co. of Kansas Inc., 683 F.2d 339, 343 (10th Cir.1982), Womack v. Munson, 619 F.2d 1292, 1296 (8th Cir.1980).

9. ) There are some courts that have stated the elements of plaintiffs prima facie case as follows;

1. ) participation in protected activity;
2. ) that the employer knew of this protected activity;
3. ) that plaintiff was subsequently discharged or subjected to other damages; and
4. ) that the employer had a retaliatory motive or that the timing of its action was such as to allow an inference of retaliation to arise.

Brown v. ASD Computing Center, 519 F.Supp. 1096, 1114-15 (S.D.Ohio 1981), Sutton v. National Distillers Products Co., 445 F.Supp. 1319, 1325-26 (S.D.Ohio 1978), aff'd. 628 F.2d 936 (6th Cir.1980).

By stating the elements of plaintiffs prima facie case in four parts, these courts have seemingly stiffened plaintiffs burden by requiring a showing that the employer knew of the protected activity and reacted with a retaliatory motive. This apparent difference, however, is somewhat illusory and misleading. In adopting the three-part test of a plaintiffs prima facie case, the majority of courts have recognized that in a retaliation case, the element of causation must be shown. Unlike the more common failure to hire cases, wherein causation is inferred upon a showing that a qualified member of a protected' class was not hired and that the employer continued to seek persons of his or her qualifications, a whistleblowing plaintiff must demonstrate that his discharge was caused by his participation in protected activities.

With this in mind, it becomes clear that the additional element set forth by some courts i.e. that the employer knew of the protected activity, is simply a factor to consider in determining the principal question of causation. Thus the Court believes the three part prima facie case more clearly and precisely establishes a plaintiffs initial burden in a claim brought under the Whistleblowers’ Act.

10. ) If a plaintiff should establish the three elements of his prima facie case, then the burden of production shifts to the defendant to articulate a legitimate, non-discriminatory reason for the adverse action. The defendant need not prove “absence of retaliatory motive, but only produce evidence that would dispel the inference of retaliation by establishing the existence of a legitimate reason.” Womack v. Munson, 619 F.2d at 1296.

11. ) If the defendant comes forward with a legitimate reason, the plaintiff may still prevail in a Whistleblowers’ action if he demonstrates that the legitimate reason was a mere pretext for the retaliatory action. The overall burden of persuasion re-, mains of course, with the plaintiff.

12. ) When and if the pretext stage of the analysis is reached, the question of mixed-motive discharge, i.e. retaliation plus a legitimate business reason, must be considered. The more difficult question concerns the appropriate standard to apply in deciding whether the mixed-motive discharge violates the Act. Four possible standards may apply,

1. ) whether participation in activity protected by the Act played any part in the discharge, no matter how remote,
2. ) whether plaintiffs protected activity played a substantial factor in the discharge,
3. ) whether plaintiffs protected activity was the principal, but not sole reason for the discharge, or
4. ) whether the discharge would have occurred had there been no protected activity.

Sutton v. National Distillers, 445 F.Supp. at 1328.

The Court believes that in the context of a claim for retaliatory discharge, a plaintiff retains the. ultimate burden of proving that the discharge would not have occurred had there been no protected activity. Id. See also Mt. Healthy City Board of Education v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 576, 50 L.Ed.2d 471 (1977) (holding that the controlling- question in retaliation cases is whether the employer would have reached the same decision “even in the absence of the protected conduct.”) Applying this standard to plaintiffs claim under the Whistleblowers’ Act, and presuming the Court’s analysis reaches the pretext stage, it is apparent that plaintiff would have to prove that “but for” his NLRB letter, which is allegedly protected activity under the Act, he would not have been discharged. This standard is plainly correct, as it does not preclude a finding of a Whistleblowers’ Act violation when an employer acts from mixed motives. The mere production, by defendant, of a legitimate business reason underlying the discharge will not sterilize unlawful retaliation, where the latter is the controlling factor.

13.) We now turn to the first element of plaintiff’s prima facie case, i.e. whether plaintiff engaged in protected activity. The Act provides that “An employer shall not discharge ... an employee ... because the employee reports ... a violation or a suspected violation of a law or regulation or rule [of this state or the United States] to a public body, unless the employee knows that the report is false.” Since plaintiff introduced no evidence that the destruction or falsification of security records at a nuclear power facility is actually a violation of any state or federal law, rule or regulation, the Court must determine if plaintiff’s letter reports a “suspected violation.”

The Court believes it is realistic to conclude that the Michigan legislature, by using the term “suspected violations,” meant to bring within the Act’s protections an employee’s subjective good faith belief that he was reporting a violation of the law. This interpretation is supported by the language of the Act itself.

The Act’s protections are extended beyond the reporting of actual violations-by the clause “suspected violations.” This is clearly consistent with the purpose of the Act to permit and perhaps encourage employees to report violations of the law without retaliation, which would be thwarted if an employee could only report violations on peril of reprisal if it is ultimately shown that the employer did not violate any laws, rules or regulations. The Act goes on, however, to limit the Act’s protection by excluding from its coverage reports that “the employee knows ... is false.” Thus the legislature recognized that employees must not be permitted to use the statute in a purely offensive manner by reporting violations known to be false. By precluding protection to those acting in bad faith, the legislature clearly implied that only those acting in good faith are entitled to protection.

In applying the Act as interpreted, the Court must determine if a Whistle-blowing plaintiff held a subjective good faith belief that his employer had violated the law. In view of the pervasive regulation of the nuclear power industry by a host of state and federal agencies the Court feels that it is eminently reasonable to believe that the destruction and/or falsification of reports and records by the security force would constitute a violation of a law, rule or regulation. Thus, in the present case the Court has found that plaintiff did hold a subjective belief that the destruction or falsification of security records and reports is a violation of a state or federal law, regulation or rule. (Finding of Fact number 23) Accordingly, the Court believes plaintiff has established the first element of his prima facie case. There is also no doubt that plaintiff was discharged. Therefore, plaintiff has established the second element of his prima facie case.

14. ) Before proceeding to the third element, the Court observes that the holding in this case extends only to the reported falsification and destruction of reports. Most of plaintiffs remaining allegations concern management practices of the Company which would not support an action for retaliatory discharge either under the Act or Michigan common law. Suchodolski v. Michigan Consolidated Gas Co., 412 Mich. 692, 316 N.W.2d 710 (1982).

15. ) Addressing the element of causation, the Court believes that plaintiff has established that a motivating factor in his discharge was the letter to the NLRB. There are two factors that establish the causal link. First, Burns became aware of the letter in the afternoon of November 2, 1981, and plaintiff was discharged on November 5, 1981. The timing of Burns’ action is itself sufficient to allow an inference of retaliation to arise. See Womack v. Munson, (suspension within five days, discharge within twenty days of protected activity sufficient to establish prima facie case), McCarthy v. Cortland County Community Action Program, 487 F.Supp. 333 (S.D.N.Y.1980) (discharge within two weeks of protected activity held sufficient to establish prima facie case.) Second, Burns’ investigation of plaintiff’s alleged performance deficiencies began at or about the same time plaintiff’s NLRB letter arrived at the Company’s regional office. This fact provides persuasive support for plaintiff’s claim of retaliatory discharge, and in conjunction with the timing of his discharge establishes the final element of his prima facie case.

16. ) The Company alleges however, that plaintiff was discharged for “Lying-presenting falsehoods to management and below standard performance.” Prior to the alleged incidents involving the sleeping sergeant and letter of reference, plaintiff had indeed been advised that his work performance was inadequate in certain areas. (See findings of fact number three and four.) Captain Bradshaw testified at trial, however, that plaintiff’s prior inadequacies were not relevant to his termination. He stated that the reference letter and lying were the actual reasons for the discharge.

17. ) Presuming that plaintiff lied to Captain Bradshaw about the sleeping incident and reference letter, the Company would have established a legitimate business reason for firing plaintiff. However, as previously indicated, such a determination is not necessary in the present case because the Court believes that even if plaintiff did act as alleged, the Company’s stated reasons are a pretext for their retaliatory action.

18. ) The pretextual nature of the Company’s actions is demonstrated most aptly by the delay in commencing the investigation of plaintiff’s alleged lying and letter of reference. Although Captain Bradshaw was aware of the reference letter as early as October 16 and no later than October 19, he did not attempt to investigate the matter or even confront plaintiff with the allegation until the evening of October 25, and then only after plaintiff had approached Bradshaw with a request to speak to him. As to the alleged lying incident, Bradshaw again took no action until the early afternoon of November 2, about the same time that the Company received the NLRB letter.

These delays in investigating plaintiff were attributed to Bradshaw’s absence during the week in question. However, as previously noted, Bradshaw was at work at least two days during his vacation. Furthermore, it is crucial to note that the allegations against plaintiff were very serious, according to the Company. Plaintiff’s actions constituted infractions that upon investigation required immediate discharge. These were matters, again according to the Company, that did not warrant a suspension, or even demotion, but that mandated immediate termination.

It seems somewhat anomolous to the Court, that when faced with allegations of such magnitude, Captain Bradshaw would not act until the early afternoon of November 2, about the same time plaintiffs NLRB letter arrived at the Company. Additionally, the Company did not, upon learning of plaintiffs allegedly improper acts, suspend plaintiff pending an investigation, which was an option always available to the Company.

19. ) Based on the above analysis, the Court finds that plaintiff has shown that but for his participation in activities protected by the Act, he would not have been discharged. We turn now to an analysis of available and appropriate damages.

20. ) The Act provides that “A Court ... shall order, as the Court considers appropriate,

reinstatement of the employee, the payment of back wages, full reinstatement of fringe benefits and seniority rights, actual damages, or any combination of these remedies. A Court may also award the complainant all or a portion of the costs of litigation, including reasonable attorney fees and witness fees, if the court determines that the award is appropriate.” M.C.L. § 15.364

21. ) Plaintiff has requested reinstatement, back pay including vacation benefits, and damages for emotional distress and humiliation. Plaintiff is also seeking approximately $1,000.00, representing the difference between the fair market value and sales price of plaintiffs motorcycle, which plaintiff claims he was forced to sell after his discharge.

For the reasons set forth below, the Court feels that damages should be limited to an award of back pay including vacation benefits. The Court does not believe that reinstatement or other damages requested by plaintiff are appropriate.

22. ) In determining plaintiffs award of back pay, the Court has considered plaintiffs hourly rate of $7.20 and average work week of forty hours. The Company argues that this is improper in light of plaintiffs request for a demotion to guard or sergeant. Apparently the Company believes that any back pay award should reflect the lower hourly raté for a guard or sergeant. However, the Company produced no evidence indicating that at the time of plaintiffs discharge he had actually been demoted or was even considered as a candidate for demotion. To base an award of back pay on a guard or sergeant’s pay rate would require the Court to engage in pure conjecture as to plaintiff’s fate with the Company had he not been discharged. The Court refuses to so speculate.

Thus, plaintiff is entitled to $33,177.60 in back pay, computed by multiplying plaintiff’s daily wage of $57.60 by the number of days between November 5, 1981, and the date of this order.

23. ) The Act clearly authorizes the award of plaintiffs remaining damage requests, including reinstatement and actual damages. In a fashion similar to § 706(g) of Title VII, the Act recognizes however, that damages must be shaped to the particular facts of a case. The Act states that the Court “shall order [damages] as the court considers appropriate.”

The Sixth Circuit has held that the award of affirmative relief “should rest within the sound discretion of the trial judge.” Head v. Timken Roller Bearing, 486 F.2d 870 (6th Cir.1973), Thornton v. East Texas Motor Freight, 497 F.2d 416 (6th Cir.1974). See also Franks v. Bowman Transportation Co., 424 U.S. 747, 96 S.Ct. 1251, 47 L.Ed.2d 444 (1976).

24.) In exercising discretion to determine the “appropriate” relief in the present case, the Court is guided by the objectives sought to be accomplished by the Act. As previously stated, the Act is a remedial measure designed to protect employees that report violations or suspected violations of the law. In the present case the Company clearly acted in a manner inconsistent with the purpose of the Act, and accordingly plaintiff is entitled to relief.

However, there are factors present in this case that support the denial of certain aspects of relief. The Company introduced evidence tending to support a finding that plaintiff may have acted in part with an improper motive. Although the plaintiff held a subjective good faith belief that the Company had violated the law, it remains that on October 25, 1981, plaintiff had expressed apprehension concerning his job security. His immediate request for a demotion to a union position protected by the grievance procedure, along with his express pronouncement of an intent to seek protection from the Act casts some doubt on plaintiffs motivation in reporting the violation. These peculiar facts persuade the Court that the appropriate relief in this case is limited to an award of back pay.

It should be emphasized that the tailoring of damages to reach a just result merely reflects the Court’s belief that the Company’s violation of the Act overshadows by far any questionable motives by plaintiff. Additionally, the Court is persuaded that denying certain aspects of relief will not frustrate the' purpose, of the Act.

25.) No attorney fees are awarded.

CONCLUSION

For the reasons stated herein, the Court DIRECTS the Clerk to enter a judgment for plaintiff in the amount of $33,177.60, with costs and interest.

IT IS SO ORDERED.

      . Gerald Bradshaw is the father of Captain James Bradshaw, the Midland Site Commander.

      . The guard involved in this incident was John Mapes, who at the time was plaintiffs roommate.

      . Attached to the letter was a copy of a notice of the Whistleblowers’ Act that plaintiff had obtained from a CPC bulletin board at the Midland site. On this notice plaintiff wrote "In writing this letter to all recipients, I am claiming protection under the ‘Whistleblowers’ Protection Act!’ ’’

      . At least by May of 1980, CPC had indicated to Burns that it was dissatisfied with their performance at the Midland site. Captain Bradshaw testified that he had been assigned to the Midland site because of “contract problems,” and that Burns had been under continuing pressure from CPC to strictly follow procedures. Much of this concern was undoubtedly caused by the highly competitive nature of the security industry.

      . Captain Bradshaw testified that the reason he did not begin investigating the reference letter and sleeping incident until November 2, 1981, was because he had been on vacation since October 20. However, despite his vacation Captain Bradshaw admitted to being present and working at the Midland site on at least two occasions — the evening of October 25 and on November 1.


source: Caselaw Access Project

license: Public Domain

text:
    BANK ONE TRUST COMPANY, N.A., Executor of the Estate of Albert Valko, Deceased, Plaintiff, v. COUNTY OF IOSCO and the Iosco County Board of Commissioners, Defendants.
    Civ. No. 82-10238.
    United States District Court, E.D. Michigan, N.D.
    Feb. 2, 1984.

      Jason A. Blue, Wolske & Blue, Columbus, Ohio, for plaintiff.
    Keith J. Lerminiaux, Thomas M. Peters, Detroit, Mich., for defendants.
   MEMORANDUM OPINION AND ORDER

JAMES HARVEY, District Judge.

Plaintiff brought this diversity action claiming that defendants were negligent in failing to properly light the approach and runway areas of the Iosco County Airport (airport), and that their negligence was a proximate cause of the plane crash that claimed Albert Valko’s life. This matter is presently before the Court on defendants’ motion for summary judgment.

On August 27, 1980, at approximately 2:30 a.m., a twin-engined Piper aircraft departed Columbus, Ohio, for the purpose of transporting the decedent and three other individuals to northern Michigan for a fishing trip. After stopping in Utica, Michigan, to pick up the final passenger, the aircraft headed for its destination at the Iosco County Airport. At approximately 4:01 a.m., with a professional pilot at the controls, the ill-fated craft began its approach to the airport. At approximately 4:18 a.m., the pilot, now experiencing very limited visibility due to a lingering fog, advised Approach Control that he had missed the approach, i.e., he did not visually sight the airport. He was then cleared to climb to 3,500 feet and repeat his approach. ' During his climb and return to approach position, the pilot indicated that the problem was that the passengers’ ground transportation was waiting for them at the Iosco County Airport. The pilot then advised Approach Control, “Okay, we’ll give it one more try.” While maneuvering for his final approach the pilot was again given the weather conditions, and at 4:33:10 was advised that his descent on approach had now taken him below radar service. At 4:33:20 the pilot acknowledged the termination of radar service. There, were no further communications.

While continuing its descent, the aircraft apparently struck the top of a stand of trees, flipped over and crashed. Due to the fog, search efforts were delayed until late morning. The wreckage was located approximately 1.25 miles from the end of the runway. All but one of the occupants died as a result of the crash.

Defendants assert two grounds in support of their motion for summary judgment. First, defendants claim that they are immune from the tort liability claimed by plaintiff. Second, they contend that pilot error was the sole and proximate cause of the accident.

To warrant the grant of summary judgment, the moving party bears the burden of establishing the non-existence of any genuine issue of fact that is material to a judgment in his favor. Adickes v. S.H. Kress & Co., 398 U.S. 144, 147, 90 S.Ct. 1598, 1602, 26 L.Ed.2d 142 (1970); United States v. Articles of Device ... Diapulse, 527 F.2d 1008, 1011 (6th Cir.1976). If no genuine issue as to any material fact is established, the moving party is entitled to judgment as a matter of law. Chavez v. Noble Drilling Co., 567 F.2d 287 (5th Cir.1978); Irwin v. U.S., 558 F.2d 249 (5th Cir.1977).

It is true, of course, that a motion for summary judgment brought by a defendant asserting more than one affirmative defense will be granted when it presents no issues of triable fact and raises at least one legally sufficient defense that would bar plaintiff’s claim. 10 A Wright, Miller & Kane Federal Practice and Procedure § 2734 at p. 407. In view of the Court’s belief that defendants are entitled to summary judgment on the defense of governmental immunity, the Court will not address the issue of causation, which has received considerable attention in the parties’ briefs.

Having reviewed the affidavits, reports, and depositions submitted by the parties, it is clear that plaintiff’s claim of negligence is based on defendants’ alleged failure to provide proper lighting. Plaintiff maintains that defendants should have turned the approach and runway lights on high and/or that defendants failed to install proper lighting equipment. As stated in the affidavit of plaintiff’s expert witness, “this aircraft crash in question was not caused solely by pilot error, and the lighting equipment or lack thereof, at defendant airport was a contributory, direct and proximate cause of the crash.”

In Michigan, the law relating to governmental immunity is found at M.C.L.A. § 691.1407 which provides:

Sec. 7. Except as in this act otherwise provided, all governmental agencies shall be immune from tort liability in all cases wherein said government agency is engaged in the exercise and discharge of a governmental function.

Thus, torts committed by a governmental agency give rise to absolute immunity if they occur while the agency is engaged in a governmental function. If a plaintiff cannot bring an action within one of the statutory exceptions to governmental immunity, the action is normally barred. Stremler v. Michigan Department of State Highways, 58 Mich.App. 620, 228 N.W.2d 492 (1975), Campbell v. City of Detroit, 51 Mich.App. 34, 214 N.W.2d 337 (1973). Statutory exceptions to governmental immunity exist for injuries incurred on negligently maintained highways, in dangerous and defective public buildings, and as the result of negligently operated public vehicles. See M.C.L.A. §§ 691.1402, 691.1403, 691.1405, and 691.1406. It is apparent that plaintiff is not and cannot claim to be within one of the enumerated exceptions to governmental immunity. Therefore, a determination of whether defendants are entitled to governmental immunity depends on whether they fall within M.C.L.A. § 691.1407, i.e. were defendants engaged in a governmental function while maintaining the airport. The test of what constitutes a governmental function is an important one, since a governmental agency engaged in a proprietary function is not protected by immunity. Lykins v. Peoples Community Hospital, 355 F.Supp. 52 (E.D.Mich.1973), Smith v. Board of Commissioners of the Huron-Clinton Metropolitan Authority, 49 Mich. App. 280, 212 N.W.2d 32 (1973). A proprietary function is defined as “any activity which is conducted primarily for producing a pecuniary profit for the state, excluding, however, any activity normally supported by taxes or fees.” M.C.L.A. § 691.1413.

Thus, the ultimate issue presented by this motion is whether the defendants allegedly negligent actions occurred while they were engaged in a governmental or proprietary function. This issue is generally resolved through resort to Michigan case law and the current definition of what constitutes a governmental function. See Parker v. City of Highland Park, 404 Mich. 183, 273 N.W.2d 413 (1978), Weaver v. Duff-Norton Company, 115 Mich.App. 286, 320 N.W.2d 248 (1982). However, the Michigan legislature has ostensibly resolved the issue in the context of tort actions arising from the government’s operation of an airport by providing that,

the enlargement, improvement, maintenance, equipment and operation of airports, landing fields and other aeronautical facilities ... are hereby declared to be public, governmental and municipal functions, exercised for a public purpose, and matters of public necessity. M.C.L.A. § 259.132.

Applying this statute to plaintiff’s claim leads the Court to conclude that defendants were performing a governmental function in maintaining and operating the Iosco County Airport. Fulco v. Martin Tropf 36 Mich.App. 39, 45, 193 N.W.2d 194 (1971). Accordingly, defendants are entitled to the protections of governmental immunity.

In arriving at this conclusion, the court is not unmindful that Michigan courts have applied a very narrow construction of the term “governmental function.” Pichette v. Manistique Public Schools, 403 Mich. 268, 280, 269 N.W.2d 143 (1978). The Courts have primarily focused on whether the precise action allegedly giving rise to liability is “of essence to governing.” Id., at 281, 269 N.W.2d 143, quoting Thomas v. State Highway Department, 398 Mich. 1, 21, 247 N.W.2d 530 (1976). A function has been held to be governmental if the activity it entails is uniquely associated with those activities having no common analogy in the private sector. Pichette, 403 Mich. at 281, 269 N.W.2d 143.

An application of these well-reasoned definitions to the present case would, quite likely, cause the Court to reach a different conclusion. However, the Michigan legislature’s definition of governmental function as it relates to airports precludes the Court’s consideration of these judicially recognized and traditional definitions of governmental function. When the legislature uses a term and further defines its application to a particular situation, the Court’s obligation is not to second guess the wisdom of the legislature, but to apply the definition as intended. Such judicial restraint is especially noteworthy when a federal court is faced with the application of state law.principles.

Accordingly, defendants’ motion for summary judgment is GRANTED and plaintiff’s complaint is DISMISSED.

IT IS SO ORDERED.


text:
    UNITED STATES of America, Plaintiff, v. (1) 30 FOOT 1982 MORGAN, VIN. MGJ 300120382, Defendant.
    No. 83-72-Civ-FtM-17.
    United States District Court, M.D. Florida, Fort Myers Division.
    Feb. 14, 1984.

      Loretta B. Anderson, Asst.. U.S. Atty., Tampa, Fla., for plaintiff.
    Lawrence D. Martin, Naples, Fla., for defendant.
   ROBERT D. MORGAN, District Judge, Sitting by Designation.

DECISION AND ORDER ON STIPULATED FACTS

This cause was brought in rem by the Government pursuant to 19 U.S.C. § 1595(a), seeking the forfeiture of the defendant boat, which quite apparently was used to unlawfully transport marijuana. The claimant, Heyward Malcolm Smith, Jr., claims ownership of the boat and seeks to prevent forfeiture. The parties have submitted the case to the court for determination on a stipulated set of facts.

A United- States customs patrol vessel found the defendant vessel abandoned at New Pass, near Bonita Springs, Florida. Large amounts of marijuana residue were found on her decks, and two other abandoned vessels were found nearby. One of those vessels was laden with' marijuana bales, and numerous bales were found floating in the waters nearby. The customs vessel encountered this picture in response to an alert that an off-load of marijuana was in progress at New Pass.

By way of deposition, claimant Smith asserted that his boat had been stolen from its rented berth on the property of a Mr. Townsend. Claimant took no precautions whatsoever to guard against potential theft, nor did he make arrangements with others to provide security for the vessel. Smith carried no insurance on the vessel, and he never made a claim against Townsend for his loss. The keys were kept on the vessel in an unlocked cabinet. Claimant also identified numerous other instances of theft of small items from his vessel.

On December 31, 1982, the day after its seizure, claimant Smith reported to the Collier County sheriff that the vessel had been stolen. Smith asserted that he learned of the vessel’s disappearance by checking on it, as was his practice, “every four, five days, or a couple weeks'sometimes.”

Faced with this background of stipulated facts, the parties are essentially in agreement that this court’s evaluation and application of the principles of Calero-Toledo v. Pearson Yacht Leasing Company, 416 U.S. 663, 94 S.Ct. 2080, 40 L.Ed.2d 452 (1974), will control decision of this case. This court agrees.

In Calero-Toledo, the Supreme Court of the United States clearly determined that innocence of any participation in illegal use by the owner of a vessel is not ordinarily a defense to forfeiture. Id. at 688, 94 S.Ct. at 2094. The Court, however, went on to note that there may be exceptions to this rule, as follows:

“It therefore has been implied that it would be difficult to reject the constitutional claim of an owner whose property subjected to forfeiture had been taken from him without his privity or consent. (Citations omitted.) Similarly, the same might be said of an owner who proved not only that he was uninvolved in or unaware of the wrongful activity, but also that he had done all that reasonably be expected to prevent the proscribed use of his property; for, in that circumstance, it would be difficult to conclude that forfeiture served legitimate purposes and was not unduly oppressive.” Id. at 689-90, 94 S.Ct. at 2094-95.

The Government must show probable cause for seizure, which is clear and stipulated here, and claimant Smith bears the burden of proof on any such affirmative defenses, as the stipulation also recognizes. See 19 U.S.C. § 1615.

It is clear to the court that the claimant has not borne his burden of placing himself within one of the Calero-Toledo stated defenses.. First, it is significant that Smith has not demonstrated the vessel was actually stolen. The stipulation carefully circumscribes that issue, and the record before the court merely establishes that claimant Smith filed a report with the Collier County Sheriffs Department claiming a theft of the vessel. That purported theft was in fact reported the day after the seizure, which strongly undermines its probative value. In any event, evidence of an alleged theft is not sufficient to sustain the claimant’s burden of bringing this case within the first Calero-Toledo exception.

Alternatively, as to the second CaleroToledo exception, claimant has not established that he had done “all that reasonably be expected to prevent the proscribed use of his property.” Claimant points to affidavit testimony from two local fishermen to the effect that leaving his keys in the vessel was “reasonable.” The fact remains, however, that despite his knowledge of the earlier thefts, Smith admittedly took no precautions with regard to the vessel itself, carried no insurance, effected no security arrangements as to its berth or marina, and didn’t even look for the vessel nearly as often as once a day. In short, the court is persuaded by the Government’s argument that'Smith failed to satisfy his duty to do all that he reasonably could do to prevent the proscribed use. See also United States v. One 1976 Lincoln Mark IV, 462 F.Supp. 1383, 1391 (W.D.Pa.1979), which interprets Calero-Toledo as requiring affirmative action to prevent the proscribed use.

Based upon this stipulated record, the court finds that claimant Smith has failed to meet his burden of establishing a legitimate claim to the defendant vessel under the precepts of Calero-Toledo. The-court consequently finds in favor of the plaintiff.

IT IS ORDERED, therefore, that forfeiture of the defendant vessel is appropriate and that judgment shall be entered to that effect.


author: MAHON, District Judge.

text:
    In the Matter of Establishment Inspection of TEXAS TANK CAR WORKS.
    Inspection Warrant No. 6-82-1M.
    No. CA-6-82-22-E.
    United States District Court, N.D. Texas, San Angelo Division.
    Feb. 24, 1984.
   OPINION

MAHON, District Judge.

Petitioner Texas Tank Car Works filed its petition to quash inspection warrant on April 7, 1982. Respondent is the Occupational Safety and Health Administration (hereinafter sometimes referred to as OSHA).

On October 20, 1981, OSHA Austin area Safety Compliance Officer W.B. Cunningham sought to make a general administrative plan inspection of Petitioner and was permitted to conduct an accident record review. Such review revealed that Petitioner’s lost work day injury rate (herein referred to as LWDI rate) was above the national manufacturing average. Cunningham’s request for a safety inspection was refused and OSHA thereafter obtained an inspection warrant from Magistrate Philip Lane on January 13, 1982. An attempt to serve the warrant on January 14, 1982, failed because bad weather had halted Petitioner’s operations. A second warrant request was again granted by Magistrate Lane on April 6, 1982, for inspection pursuant to a general administrative plan.

Texas Tank Car Works filed its petition to quash on April 7, 1982. Magistrate Bill Brister conducted a hearing on the petition on June 8, 1982, pursuant to the April 12, 1982 order of Chief Judge Halbert O. Woodward. In a written report and recommendation filed November 16, 1982, the magistrate recommended denial of the petition to quash, citation in civil contempt and imposition of a fine for each day that inspection under the warrant was refused following entry of a final order denying the petition to quash. Petitioner’s written objections to the magistrate’s report dated November 24, 1982, Respondent’s response to Petitioner’s objections dated December 29, 1982, and Petitioner’s answer to Respondent’s responses dated January 17, 1983, were subsequently filed. Having been referred to the court by Judge Woodward’s April 19, 1982 order and having considered the magistrate’s report and recommendation, and the parties objections, response and answer, the court determines the objections of Texas Tank Car Works should be overruled and a judgment entered substantially as recommended by the magistrate.

Petitioner objécts to the magistrate’s report and recommendations as follows:

1. OSHA Instruction CPL 2.25B (herein referred to as CPL 2.25B) was not placed in evidence at the hearing on the petition to quash and cannot be considered in the probable cause finding.
2. The inspection plan is not valid because there is no showing that Petitioner’s establishment or industry group were less safe than others not yet inspected or scheduled for inspection.
3. The warrant application does not show how Petitioner’s industry or establishment was selected under the inspection plan.
4. The evidence shows Petitioner’s LWDI rate was below the national manufacturing average, precluding inspection.
5. The scope of the inspection allowed under the warrant is overly:broad.

Petitioner’s first objection concerns the sufficiency of the evidence used in the issuing magistrate’s probable cause determination. Probable cause in the criminal sense is not required for an OSHA inspection warrant. Marshall v. Barlow’s, Inc., 436 U.S. 307, 98 S.Ct. 1816, 56 L.Ed.2d 305 (1978). Administrative probable cause may be based either on (1) specific evidence of an existing violation, or:

(2) a general administrative plan for the enforcement of the [Occupational Safety and Health] Act derived from neutral sources such as, for example, dispersion of employees in various types of industries across a given area, (footnote omitted)

Id. 436 U.S. at 321, 98 S.Ct. at 1824. Probable cause in this case is based on the second standard,, a neutral inspection program. To meet this probable cause requirement, the applicant must at least show (1) a reasonable legislative or administrative inspection program exists and (2) the desired inspection fits within the program. Chicago Zoological Society v. Donovan, 558 F.Supp. 1147 (N.D.Ill.1983).

In its warrant application Respondent described an administrative program that led to Petitioner’s selection for inspection. A copy of the internal OSHA directive on the program, CPL 2.25B, was attached to the application and incorporated therein, according to W.B. Cunningham’s application affidavit of April 6, 1982, Paragraph No. 7.

Petitioner objects that CPL 2.25B cannot be considered by the court in reviewing probable cause because it was not in evidence at the June 8, 1982 hearing. Magistrate Brister found that a copy of CPL 2.25B had been attached to the warrant application (R. p. 7), and the application so indicates. CPL 2.25B however was not introduced at the hearing and since it is an internal operating document judicial notice cannot be taken. The absence of CPL 2.25B from the hearing is nonetheless irrelevant to a probable cause review. A reviewing court may consider only the information before the issuing magistrate except in the case of intentional or reckless falsehood. West Point-Pepperall, Incorporated v. Donovan, 689 F.2d 950, 960 (11th Cir.1982). While errors in the warrant application were found at the hearing, they were neither intentional nor reckless, nor did they affect probable cause. Since CPL 2.25B was properly before the issuing magistrate it may be considered in reviewing the probable cause determination.

Petitioner next objects that the magistrate should have examined the plan to assure that Petitioner’s establishment and the tank car repair industry were not slated for inspection before others with a greater hazard potential. In effect Petitioner asks that the magistrate review the policy considerations behind OSHA’s development of the plan. It is not the magistrate’s duty to examine the agency’s decision to adopt the plan. Donovan v. Wollaston Alloys, Incorporated, 695 F.2d 1 (1st Cir.1982). The magistrate, need only assure that the plan provides neutral and non-arbitrary selection of establishments and industries before approving an inspection scheduled pursuant to the plan.

CPL 2.25B sets out:

... the steps to be followed and the criteria to be applied in selecting workplace establishments for programmed inspection.

The affidavit of W.B. Cunningham III, describes the CPL 2.25B plan. In essence, establishments in the area are selected consecutively from a list of high safety hazard industries supplied by the national office. They are placed in an annual inspection cycle and each establishment is inspected in an order which conserves inspection resources. All establishments are to be inspected before a new cycle begins. The CPL 2.25B plan has been specifically upheld as meeting the Barlow’s neutrality requirement in Ingersoll-Rand Company v. Donovan, 540 F.Supp. 222 (M.D.Pa.1982). Similar OSHA plans have been upheld in Donovan v. Wollaston Alloys, Incorporated, supra at 2 n. 1; and Stoddard Lumber Company v. Marshall, 627 F.2d 984, 985 n. 2 (9th Cir.1980). In Wollaston Alloys, supra at 5 the court found a showing that the plan provided non-arbitrary selection of establishments to be sufficient to uphold the plan’s validity. A plan of much less specificity was upheld in Marshall v. Chromalloy American Corporation, 589 F.2d 1335 (7th Cir.1979), cert. denied, 444 U.S. 884, 100 S.Ct. 174, 62 L.Ed.2d 113 (1979), where the court stated at page 1342:

In effect Chromalloy asks this court to hold that the Secretary would have to show, every time he wants a warrant, a complete set of updated industry statistics, the rationale for applying a particular index factor to the foundry industry, and the reason for inspecting foundries in lieu of another industry. Such a massive evidentiary showing of particularized cause ... is not required here either by statute or previous court decisions.

According to Section H(4) of CPL 2.25B establishments once selected can be inspected in any order that conserves resources and the worst industries or establishments need not be scheduled first. Since the plan provides a valid, non-arbitrary selection process, it meets the Barlow’s neutrality requirement and Petitioner cannot challenge the warrant on grounds that the plan could have been better designed.

Petitioner next objects that the warrant application fails to show its particular industry and workplace were selected pursuant to the plan. The application states the tank car repair industry’s Standard Industrial Classification Code but the Code does not appear on any list ranking industries nor does the establishment name appear on any list in the application.

Inspector Cunningham stated in his affidavit that Petitioner was slated for inspection pursuant to the plan. An OSHA inspector’s sworn statement is sufficient to show that an establishment was selected according to the plan, Wollaston Alloys, supra at 6, and the Secretary’s failure to provide individual statistics on Petitioner’s business does not make the warrant defective, Stoddard Lumber Company, Incorporated v. Marshall, supra at 988. Since the warrant application shows Petitioner was selected pursuant to a- valid, neutral inspection plan the minimum of the Barlow’s probable cause requirement is met. The court does not suggest that the Secretary’s warrant application did more than meet the bare minimum of the probable cause requirement. If the Secretary had made a clearer showing of Petitioner’s selection, the delay created in this petition might have been averted. The court is compelled to uphold the probable cause determination in its review capacity but as an issuing court might have required a more explicit showing of the existence of probable cause to inspect.

Petitioner next objects that its LWDI rate was below the national manufacturing average when the warrant issued thereby precluding inspection. Under CPL 2.25B, Appendix D-6, and OSHA regulations an inspection may not be conducted if the establishment LWDI rate is below the national rate for manufacturing. When Inspector Cunningham conducted an injury records review of Petitioner in October of 1981, he calculated the LWDI rate to be 17.58 days lost. At that time the national average was 5.7. A new LWDI rate of 8.45 was computed on April 6, 1982, when the second warrant was served, but the warrant application had stated the old rate of 17.58. The 8.45 rate still exceeded the national average so that inspection was required. At the June hearing, Petitioner’s employee James H. Green, Sr., testified that he computed the LWDI rate to be 2.4975, below the national average and Petitioner seeks to void the warrant based on the allegedly false information contained in the affidavit and on Petitioner’s alleged exclusion from inspection due to the low LWDI rate.

Magistrate Brister chose the OSHA figure of 8.45 as the credible LWDI rate at the time of issuance. Although misleading the 17.48 figure has no impact on the probable cause determination because 8.45 exceeds the national average. Unintentional errors will invalidate a warrant only if the errors affect probable cause. Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). The warrant remains valid in spite of the LWDI rate mistatement.

Petitioner’s final objection concerns the scope of the inspection allowed. The warrant states only the street address of the establishment. Petitioner contends that inspection should be limited to those areas where accidents have occurred. CPL 2.25B, Section I provides for comprehensive inspection of an establishment except for low-hazard areas such as offices. A general inspection warrant must be comprehensive in scope because the location of violations is not known. Marshall v. Chromalloy, supra; Ingersoll-Rand Co. v. Donovan, supra. The warrant is not too broad for an administrative inspection.

The Secretary of Labor requests that Petitioner be assessed a fine of $2,000.00 for its initial refusal to honor the warrant and an additional $500.00 for each day that the refusal continues. The magistrate recommends that Petitioner be held in civil contempt for its April 6, 1982 refusal and be fined for each day after entry of a final order that inspection is refused. The Ninth Circuit in Stoddard Lumber, supra at 986, upheld a district court contempt fine of $500 plus $100 for each succeeding refusal. The district court imposed a $1,000 fine in a warrant decision affirmed by the Seventh Circuit in Matter of Establishment Inspection of Gilbert and Bennett Manufacturing Company, 589 F.2d 1335, 1337 n. 2 (7th Cir.1979). In Ingersoll-Rand Company, supra at 226, the court set a fine of $500 per day for each day inspection was refused. Such fines were approved in this circuit in Marshall v. Shellcast Corporation, 592 F.2d 1369, 1372 n. 7 (5th Cir.1979). Other courts have assessed the costs of enforcement against parties held in contempt for opposing a valid inspection warrant. See Donovan v. Athenian Marble Corporation, No. 81-0795-BT (W.D.Okl. July 15, 1982). The court finds Petitioner in contempt, and a fine in the amount of $1,000.00 should be imposed and in addition thereto a fine of $500.00 for each day after the date of a separate judgment herein that it continues to refuse inspection.

Petitioner’s good faith in seeking to quash the warrant is irrelevant to the civil contempt fine. McComb v. Jacksonville Paper Company, 336 U.S. 187, 69 S.Ct. 497, 93 L.Ed.2d 599 (1949). Although this warrant, due to Petitioner’s efforts, is now almost two years old it remains a valid authorization for an administrative search. Federal Casting Division v. Donovan, 684 F.2d 504 (7th Cir.1982).

In summary, the court finds:

1. the petition to quash should be denied; and

2. Petitioner should be adjudged in civil contempt and fined $1,000.00 plus an additional $500 for each day after the date of the separate judgment entered herein that inspection is attempted and refused.


author: NEALON, Chief Judge.

text:
    Daniel J. HOULIHAN, Trustee For Pocono Downs, Inc., Debtor In Reorganization Under Chapter X of the Bankruptcy Act, Plaintiff, v. EAST SIDE LANDFILL AUTHORITY, City of Wilkes-Barre, Township of Plains, Borough of Ashley, and Township of Hanover, Defendants.
    Civ. No. 82-1612.
    United States District Court, M.D. Pennsylvania.
    March 6, 1984.

      Thomas P. Kennedy, Francis J. Wormuth, Kennedy, Hodin & Wormuth, Scranton, Pa., Bruce D. Shuter, Joseph A. Dworetzky, Cynthia J. Giles, Drinker Biddle & Reath, Philadelphia, Pa., for plaintiff.
    Charles D. McCormick, Wilkes-Barre, Pa., for Borough of Ashley.
    B. Todd Maguire, Wilkes-Barre, Pa., for East Side Landfill.
    William F. Anzalone, Ronald P. Sweeda, Hourigan, Kluger & Spohrer, Wilkes-Barre, Pa., for Township of Plains.
    Donald H. Brobst, and Jos. B. Finlay, Rosenn, Jenkins & Greenwald, Wilkes-Barre, Pa., and John L. McDonald, Mountaintop, Pa., for Township of Hanover.
    Carl N. Frank, City Atty., Wilkes-Barre, Pa., for City of Wilkes-Barre.
   MEMORANDUM AND ORDER

NEALON, Chief Judge.

Plaintiff, Daniel J. Houlihan, trustee in bankruptcy for Pocono Downs, brought this action against the named defendants alleging breach of a landfill contract. One of the defendants, East Side Landfill Authority (Authority), is a municipal authority formed on or about May 12, 1964, by the remaining defendants, viz., the City of Wilkes-Barre, the Township of Hanover, the Township of Plains, and the Borough of Ashley, for the purpose of providing the municipalities with facilities for solid waste disposal. By written agreements, the municipalities promised to appropriate, from their annual budgets sufficient funds to pay the Authority’s expenses including principal and interest on any indebtedness incurred. Plaintiff has filed a motion for partial .summary judgment against the Authority whi.ch.is now ripe for disposition. After careful consideration, the court will grant plaintiffs motion for partial summary judgment.

BACKGROUND

On October 31, 1970, Pocono Downs entered into a lease with the Authority Whereby the Authority rented 170 acres of land for use as a landfill area for solid waste disposal. The Authority agreed to conduct all operations in accordance with “the Pennsylvania Solid Waste Management Act, all rules and regulations of the Pennsylvania Department of Health pertaining to the same, together with all ordinances, resolutions, rules and regulations of any political subdivision, or any agency or department thereof having jurisdiction over the lessee’s landfill operation.” Lease attached to Plaintiff’s Motion for Partial Summary Judgment as Exhibit A at 1, Document No. 63 of the Record. The Authority also agreed to indemnify and save harmless the plaintiff, its successors and assigns, from all claims and demands arising from the landfill operation. At the time of opening the landfill site, the Authority received a temporary permit for operation, pending promulgation of the regulations by the Department of Environmental Resources (DER). The regulations were not adopted until August 2, 1971. The Authority never received a formal permit from the DER since by the time the regulations were adopted the Authority determined it would be too costly to comply with their standards. The regulations required that before refuse may be disposed in a pit, one-half of the pit must first be filled with a substance of fine soil. The Authority had already disposed of approximately 500,-000 cubic yards of waste at Pocono Downs without the sub-base. In order for the Authority to receive a DER permit, all of the existing waste would have to be excavated and a suitable sub-base provided. Plaintiff contends that by violating the Pennsylvania Solid Waste Management Act (Act) the Authority materially breached the terms of the first lease.

On January 14, 1981, plaintiff and the Authority entered into a second lease whereby the Authority extended its lease on the land through December 31, 1981. The Authority agreed to comply with all state and local rules and regulations and to save harmless and indemnify Pocono Downs, its successors and assigns, from all claims arising from the Authority’s operations. The Authority also recognized as a continuing obligation the fulfillment of all obligations arising out of the first lease. Lease attached to Plaintiff’s Motion as Exhibit J, Document No. 63. of the Record. Plaintiff contends the Authority materially breached the terms of the second lease by continued violations of the law.

By letter of August 5, 1981, Francis J. Wormuth, Esq., attorney for the trustee of Pocono Downs notified the Authority that it was in default of the second lease and that, under the terms of the lease, the landfill should be shut down immediately until the default is cured. Letter attached to Plaintiff’s Motion as Exhibit L, Document No. 63 of the Record. By Order of the DER dated October 19, 1981, the Authority was notified that it was violating the Act by operating without a permit. Order attached to Plaintiff’s Motion as Exhibit M, Document No. 63 of the Record. The Authority was given sixty (60) days in which to submit a closure plan and until December 31, 1981, to cease all landfill operations. Id. The plaintiff refused defendants access to the property, effective January 22, 1982, as the Authority did not cease operations upon receipt of notice of default nor cure the defect. Plaintiff did, however, allow defendants to enter the property for purposes of attempting to comply with the DER Order requiring a closure plan.

The plaintiff filed a complaint dated December 23, 1982, seeking specific performance or, in the alternative, recovery of money damages for alleged violations of the lease agreement between plaintiff and the Authority. Plaintiff also seeks relief from the municipalities as he contends they are, and at all times have been, in control of the Authority. The Authority has filed cross-claims against each Municipality for its share of the closing costs of the landfill and amounts due unpaid creditors. The Municipalities have denied liability to the Authority. The Authority alleges it has no assets to pay creditors or properly close the landfill.

On December 15, 1983, plaintiff filed a motion for partial summary judgment against the defendant East Side Landfill Authority, on the issue of liability for breach of contract. The Authority filed an opposition brief dated December 29, 1983. The Township of Plains also filed a brief in opposition to plaintiffs motion dated December 30, 1983, and the remaining defendants concurred in the Township of Plains’ brief on January 17, 1984.

Plaintiff in his motion for partial summary judgment argues: (1) the record demonstrates that operating the landfill in compliance with the law was an express term of the lease which the Authority violated, as well as failure to close the landfill by Order of a state agency, thereby materially breaching the contractual obligation to the plaintiff; and (2) that plaintiff is entitled to an order of specific performance as there is a clear breach of contract and ho adequate remedy at law.

DISCUSSION

A motion for summary judgment may be entered “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). If the moving party establishes the absence of any material factual dispute the burden then shifts to the opposing party to prove the existence of such a dispute. Under Pennsylvania law, when construing a contract, “where the words are clear and unambiguous the intent [of the parties] is to be determined only from the express language of the agreement.” Robert F. Felte, Inc. v. White, 451 Pa. 137, 143, 302 A.2d 347 (1973). In the case sub judice, the language of the first and second lease agreements is clear and unambiguous and is, therefore, the sole expression of the parties’ intent. Consequently, the lessee is liable to the lessor for any material breach of the agreement. Both the first and second lease agreements provide that the Authority must comply with all state rules and regulations. In addition, the second agreement specifically required the Authority to close the site upon personal notice in writing by lessor that he and the DER have determined the Authority to be in default of the Act or any covenant within the lease. A violation of either provision would constitute a material breach of the contract.

Plaintiff has submitted evidence by way of deposition testimony and reports from the DER which clearly indicate the Authority has not complied with the terms of the Act. For example, the Authority never received a formal operating permit, see Order of DER dated October 19, 1981, attached to Plaintiff’s Motion, supra; and judgment entered by the Commonwealth Court dated April 11, 1983, attached to Plaintiff’s Motion as Exhibit P, Document No. 63 of the Record. Nor did the Authority close the landfill site upon notice of default under the second lease. The Authority alleges that the DER assented to their operation without a formal permit. Also, they contend that the notice of default was insufficient since it did not refer to any violation of law determined by an Inspector of DER. See Defendant, East Side Landfill Authority, Brief in Opposition to Motion for Summary Judgment, Document No. 66 of the Record.

It is apparent that the Authority had been aware it was not operating the landfill in compliance with state law. The DER through Alan W. Stephens, Solid Waste Specialist, sent a Notice of Violation dated December 6, 1973 to the Authority which stated, “I would remind the Authority that the new pit is being filled illegally____” DER Notice of Violation attached to Plaintiff’s Motion as Exhibit C at 3, supra. See also DER Notice of Violation attached to Plaintiff’s Motion as Exhibit E (dated December 10, 1973), DER Letter attached to Plaintiffs Motion as Exhibit F (dated January 21, 1974); DER Letter attached to Plaintiff’s Motion as Exhibit I (dated March 7, 1977); DER Order attached to Plaintiff’s Motion as Exhibit M (dated October 19, 1981). The deposition of Dr. Walter Newman, a member of the Authority, attached to Plaintiff’s Motion as Exhibit B, also indicates the Authority was aware it was violating the Act. Dr. Newman stated, “it was around ’73 that we were already having dialogue with D.E.R. about the fact that we were not qualified to receive a permit at that site ... they knew that we were not in compliance with the regulations, but we had no place to go ... as long as we were pursuing a site, they would continue to allow us to dump____” Id. at 57. “There was no way we could come in compliance to get a permit.” Id. at 60. The continued Notice of Violations sent to the Authority by the DER as well as the subsequent prosecution for failure to comply with the Act clearly indicates the DER did not acquiesce in the Authority’s violations.

The Authority also argues that the notice of default received from the plaintiff was insufficient under the terms of the lease agreement. The second lease provides: “Upon personal notice in writing by Lessor to Lessee, that Lessor or Lessor’s representative and Inspector for D.E.R. have determined that Lessee is in default ... all landfill operations on the leased premises shall immediately cease.” Second Lease at 3, supra. The Authority’s allegation that the notice is deficient in that it is “self-serving” and “does not refer to any violation of law determined to exist by an inspector of DER,” Defendants’ Brief at 6, supra, cannot be accepted by the court. The lease merely requires notice to the lessee that there is a violation of the DER rules or regulations and that the lessor has determined this to be a breach of the lease. Both conditions, i.e., notice to lessee and a determination by DER that the lessee was in default because it was operating the landfill illegally, have obviously been satisfied. There was no need for a formal certification from the DER accompanying plaintiffs notice of default.

The Authority’s final two arguments are likewise without merit. It asserts that the plaintiff has produced no evidence that violations of the Act have not been abated. While some minor violations may have been corrected, this does not affect the Authority’s breach of the agreement as it was still operating the landfill without a formal permit. Additionally, the Authority claims the plaintiff has not explained how he has been harmed by their violations of state law. This, more appropriately, is an issue going to the type and amount of damages, not liability under the contract.

Since the court has determined that there has been a material breach of the lease agreement, the plaintiff suggests that an order of specific performance is appropriate. While partial summary judgment will be granted on the issue of liability, the court will await .further development of the record concerning, inter alia, the cost of closing the landfill, before considering what relief is appropriate.

      . The construction and effect of a written agreement not dependent upon extrinsic facts is a question of law to be decided by the court. "[T]he general rule has been that the interpretation of a writing is for the court and such interpretation has largely been withdrawn from the jury.” Capital Blue Cross v. Paid Prescriptions, Inc., 496 F.Supp. 223, 225 (M.D.Pa.1980). See also Goldinger v. Boron Oil Co., 375 F.Supp. 400, 414 (W.D.Pa.1974), aff'd, 511 F.2d 1393, cert. denied, 423 U.S. 834, 96 S.Ct. 59, 46 L.Ed.2d 52 (1975).


author: KOVACHEVICH, District Judge.

text:
    Donald HARNISH d/b/a ADS of Florida, et. al., Plaintiffs, v. MANATEE COUNTY, FLORIDA, Defendants.
    No. 83-1554-Civ-T-17.
    United States District Court, M.D. Florida, Tampa Division.
    March 30, 1984.
    James R. Betts, of Fowler, White, Gillen, Boggs, Villareal & Banker, P.A., Tampa, Fla., for plaintiffs.
    Ralph Artigliere, Lakeland, Fla., for defendants.
   MEMORANDUM OPINION AND ORDER

KOVACHEVICH, District Judge.

This cause involves the Manatee County sign ordinance, Ordinance 81-23. On February 10, 1983, the County Commission of Manatee County, Florida amended Ordinance 81-23; the amended ordinance is Ordinance 82-24. Section B3d explicitly prohibits the erection or display of any portable or changeable-copy temporary sign in Manatee County.

Portable signs are defined in the ordinance at Section D2 as:

Any sign which is manifestly designed to be transported, including by trailer or on its own wheels, even though the wheels of such sign may be removed and the remaining chasis or support constructed without wheels is converted to an A or T frame sign or attached temporarily or permanently to the ground since this characteristic is based on the design of such a sign.

A changeable copy sign is defined in the ordinance at Section D2 as:

An integral part of a sign not covering more than 65% of the total sign area and design so as to readily allow the changing of its message by removable letters, panels, posters, etc. Unless otherwise specifically provided, all signs permitted by this Ordinance may also be changeable copy signs.

The ordinance imposes severe restrictions on the use of temporary signs (defined in the ordinance at Section D2) as:

any sign designed to be temporarily erected or displayed. This includes the following (a) paper or cardboard signs, A or T frame signs, sandwich board signs, portable signs and sidewalk signs; and (b) any sign which announces any temporary activity such as real estate promotions, commercial promotions, political campaigns, garage sales, fund raising events, grand openings and similar activities.

The ordinance at Section B3A limits the use of temporary signs to three circumstances:

(1) Grand opening signs. On-site signs announcing the grand opening of a premise or establishment.
(2) Signs pending placement of permanent signs. On-site signs erected and displayed pending the placement of permitted permanent signs.
(3) Other signs. Other on-site signs approved by resolution of the Board of County Commissioners.

In Section B3b temporary signs are regulated as follows:

Maximum number of signs: one per premises. Maximum permit duration: one month. Maximum permit frequency: one per calendar year. Maximum area: thirty-two square feet.

The sign ordinance was passed following a series of public meetings during which the County Commission was afforded an opportunity to hear their constituents express a general dislike for portable signs. The primary complaint seemed to be that the portable signs are inherently ugly and there were many of them in Manatee County.

The record in this case, as established through the use of depositions and photos, tends to support the statements made by citizens at hearings before the Commission. The individuals deposed were unanimous in their belief that temporary signs are inheréntly ugly, dangerous because they. are placed in areas which tend to impede the safe movement of traffic, and are often wired, thus creating a potential electrical hazzard. From an aesthetic point of view, the depositions taken were unanimous in stating that portable signs create a visually polluted environment.

Before this Ordinance, portable signs were being used in Manatee County for religious, social, and political messages. Such expressions are afforded the highest degree of protection by the First Amendment to the United States Constitution. Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 101 S.Ct. 2882, 69 L.Ed.2d 800 (1981). Portable signs were being used for commercial advertising purposes as well.

In Metromedia, the United States Supreme Court struck down a municipal ordinance that permitted on-site commercial advertising but forbade all other billboard advertising, including on-site non-commercial advertising. The Court applied the following four part test originally set forth in Central Hudson Gas v. Public Service Commission of New York, 447 U.S. 557, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980) in determining the validity of government restrictions on commercial speech:

(1) The First Amendment protects commercial speech only if that speech concerns lawful activity and is not misleading. A restriction on otherwise protected commercial speech is valid only if it

(2) seeks to implement a substantial government interest,

(3) directly advances that interest, and

(4) reaches no further than necessary to accomplish the given objective.

The first requirement of the Central Hudson test is that commercial speech is protected by the First Amendment only if that speech concerns lawful activity and is not misleading. In Signs, Inc. of Florida v. Orange County, Florida, 592 F.Supp. 693 (M.D.Fla.1983), this Court held that bans on portable signs are content-neutral bans and thus the first requirement under the Central Hudson test need not be addressed. There has been no assertion by defendant that portable signs promote unlawful activity or are misleading; therefore, the first requirement of the Central Hudson test is satisfied.

The second requirement of the Central Hudson test is that any restriction on otherwise protected commercial speech is valid only if it seeks to implement a substantial government interest. The purpose of the Ordinance is stated in Section A1:

Whereas increased numbers and size of signs, as well as certain types of signs and lighting can distract the attention of motorists and pedestrians and constitute hazards to traffic safety, interfere with emergency access for firefighting and other purposes, interfere with pedestrian and vehicular circulation, create hazards and electrical shock and injury or damage from wind-blown structures, impair visual orientation to the environment and the effectiveness of public safety and other necessary signs;
whereas effectively designed and located signs can enhance visual orientation and safe traffic movement and can contribute significantly to the appearance and attractiveness of commercial, industrial, and other activities and the vitality of the local community.
It is, therefore, the purpose of this ordinance to regulate the use of signs within the county in order to protect and promote the public health, safety, and general welfare.
It is also the intent of this ordinance to supplement and act in conjunction with the Manatee County Zoning and Land Development Code, the Manatee County Comprehensive Plan and other local, state, and federal regulations to carry out these purposes.

In Metromedia the Supreme Court recognized and acknowledged that traffic safety and aesthetics may constitute substantial governmental interests. There can be no argument that public health, safety, and general welfare are substantial governmental interests. Thus, the second requirement of the Central Hudson test is met.

The third requirement of the Central Hudson test is that the restriction on otherwise protected commercial speech is valid only if the restriction directly advances the substantial governmental interests indicated in the second part of the Central Hudson test.

The question is whether the Manatee County regulations directly advance the County’s interest in aesthetics and safety.

This Court recently dealt with a sign ordinance promulgated by Orlando, Florida, which limited the time periods during which portable signs could be displayed. In All American Sign Rentals, Inc., et. al., v. City of Orlando, Case No. 83-871-CIV-ORL-17, 592 F.Supp. 85 (M.D.Fla.1983), this Court found unconstitutional an ordinance which allowed the display of portable signs for no longer than forty-five days. There was a finding in All American that the “on-off requirement had no beneficial effect for public safety purposes or for aesthetic and beautification purposes”.

Manatee County has obviously gone one step further as the County has totally banned the use of portable signs. Manatee is not placed in the position of arguing that portable signs are an aesthetic detriment and safety hazard, while their ordinance allows portable signs for limited periods of time as in All American. A review of the record indicates that the ban on portable signs has had a direct and substantial effect in ameliorating problems in which the County has a substantial interest. Witnesses indicated the county has improved aesthetically since the Ordinance banned portable signs.

In previous cases, this Court has had to review the constitutionality of portable sign ordinances, and the parties have placed evidence before the Court indicating the economic impact of portable signs or ordinances governing the use of portable signs on the local economy. All American supra, at 88-89; Signs, Inc. supra, at 694-695.

In the instant case there was no evidence except testimony by an economist, regarding the economic impact, and, who would bear that impact under this Ordinance. This is strange because the Ordinance does address the economy of Manatee County:

whereas effectively designed and located signs can enhance ... contribute significantly to ... commercial, industrial ... vitality of the local community. See Ordinance 81-23, Section A: Purpose and Intent, Page 1.

In Signs, Inc. supra, at 694, the Court described portable signs as the most popular medium of expression of numerous small businesses, as well as a valuable means of disseminating non-commercial speech by religious, civic and social organizations. Parties have previously stipulated that portable signs are the most cost-effective means of advertising available to a small business. Signs, Inc. supra at 694.

Here, however, the parties have not addressed the economic burden of this Ordinance on small businesses. This is truly unfortunate because: (1) Undoubtedly there has been an impact, given the economic efficiency of portable signs and the limited number of alternatives for many potential portable sign users, and, (2) A purported purpose of the Ordinance is to facilitate commercial and industrial vitality in Manatee County.

Among the evidence presented by Defendant is a list of portable sign rental customers; the first page has such diverse organizations as Asia Restaurant, Beiter Batteries, Bud’s Blossom Flower Shop, D’Anca’s Hair Stylist, Fantasia Organ Center, and Girl Scout Troop 330. A review of the entire list reveals numerous small businesses of every description, churches, and service organizations. Many of the users were repeat customers. Obviously, the users found the signs to be economically effective devices. One cannot help but wonder if this Ordinance has enhanced the “vitality” of the community of businesses, and organizations listed.

No ordinance can be expected to achieve total perfection in its results. Numerous statutes have been on the books in Florida for decades and still violations of those occur daily. In fact, the criminal statutes of the State are a classic example of an area in which the state has a tremendous interest in insuring public safety and many of those criminal statutes provide for substantial periods of incarceration; yet, one cannot pick up the newspaper without reading about another violator. Given the facts before the Court in this case, the Court finds the Manatee ordinance has met the third requirement of the Central Hudson test.

The final requirement of Central Hudson is that the ordinance reach no further than necessary to accomplish its goals. Unquestionably, a total ban as is evidenced in the Manatee County ordinance is the most drastic approach to protect any governmental interest. Central Hudson requires that the ordinance reach no further than necessary to accomplish the given objective.

Manatee County found regulation of portable signs difficult, and enforcement of their regulations prior to the total ban ordinance, to be cumbersome. The portable nature of the sign plus the manner of its use created Manatee County’s enforcement difficulties.

There is no indication from the evidence submitted in this case that substantial setback regulations, coupled with strict electrical hook-up requirements, would not alleviate the primary safety and aesthetic considerations of Manatee County.

Manatee would be well within its rights to require that all portable signs only be displayed a minimum of a specific number of feet from any road. Manatee County could also provide for mandatory minimum standards of electrical hook-up for the signs. Additionally, the County could provide that the signs be anchored to a particular standard to prevent their movement during violent weather. The County could put teeth in an ordinance regulating portable signs. As this Court said in Signs, Inc. supra, at 696:

... there is nothing to indicate enforcement could not include removal and impoundment of signs illegally placed on rights-of-way, or the imposition of stiff-fines for violations. Tough enforcement, even if it only reached a few violators, would most likely cause other violators to come into compliance.
... one does not close the highway simply because one cannot catch all the speeders. Here the County may not close this method of communication simply because it cannot control the violators, unless and until it shows that such action is the less restrictive method of curing the evil.

The total ban of portable signs simply went too far. Their restricted use would still allow individuals wishing to avail themselves of opportunities under the First Amendment, to have a vehicle of expression and at the same time, provide a safer and more aesthetically pleasing environment in Manatee County.

The County was faced with a problem: the control of portable signs. It reacted with a total ban of a freedom guaranteed to. the citizens of this country by the First Amendment. Just as the First Amendment would be offended by an ordinance gagging all citizens between certain hours of the day because the municipality had difficulty with boisterous citizens, the First Amendment is offended by this ordinance’s gagging certain citizen’s ability to speak to others through the messages on portable signs because Manatee County has had difficulty making many of those using portable signs to do so in a reasonable, legal manner. The exercise of a First Amendment freedom, under these circumstances, does not require a total ban; the enforcing authority must try harder.

The Court finds that the fourth requirement of the Central Hudson test has not been met by the Manatee County ordinance.

In light of the foregoing, a permanent injunction is entered in favor of the Plaintiffs prohibiting the enforcement of Section B3d of Ordinance 81-23, as amended by Ordinance 82-24; the Manatee County Sign Ordinance.

The Clerk is directed to enter a declaratory judgment in favor of the Plaintiffs, declaring the specific section of the Manatee County ordinance to be unconstitutional. Jurisdiction is retained for the enforcement of the executory provisions herein.

       Enforcement provisions could be strengthened in numerous ways imaginable to this Court. Besides the noted impoundment and stiff fines, there does not appear to be any reason why the County could not formulate legislation which would place a heavy burden uon the Lessors of the signs to ensure that restrictions were not abused. Further, repeated violations may well give rise to nuisance suits by the County against violators or, perhaps, Lessors of the signs for failure to supervise their Lessees under properly drawn restrictions.

       The County has asserted other safety hazards in relation to the signs. The County points to electrical hazards and the hazards which the signs would present in the event of severe weather, that is to say, the signs could be easily blown over. As to both of these, however, County clearly can enact restrictions to address these problems. Electrical codes for the portable signs could be developed and the County could require the signs to be anchored in a sufficient manner to ensure the stability. Both of these measures are far less drastic than a total ban of the signs.