Delmonte v. Dept. of Bus. Pro. ABT of Fla.

• Decision Date: 03 March 1995
• Docket Number: No. 92-1319-Civ.,92-1319-Civ.
• Citation: 877 F. Supp. 1563
• Parties: Leonard H. DELMONTE, Plaintiff, v. DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, DIVISION OF ALCOHOLIC BEVERAGES AND TOBACCO OF THE STATE OF FLORIDA, and George Stuart, Secretary, Department of Business and Professional Regulation, in his official capacity, Defendants.
• Court: U.S. District Court — Southern District of Florida

877 F. Supp. 1563

Leonard H. DELMONTE, Plaintiff, v. DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, DIVISION OF ALCOHOLIC BEVERAGES AND TOBACCO OF THE STATE OF FLORIDA, and George Stuart, Secretary, Department of Business and Professional Regulation, in his official capacity, Defendants.

No. 92-1319-Civ.

United States District Court, S.D. Florida.

March 3, 1995.

Robert E. Weisberg, Law Offices of Robert E. Weisberg, Coral Gables, FL, for plaintiff.

JC Miller, Dept. of Legal Affairs, Hollywood, FL, for defendants.

MEMORANDUM OF DECISION AND ORDER

MISHLER, District Judge.

On January 6, 1995, after a four day trial, the jury returned a verdict in favor of Plaintiff and against Defendants. The issue of jurisdiction, based on Defendants' claim of the requirement that Plaintiff has the burden of establishing that the Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco of the State of Florida ("ABT") was a recipient of Federal financial assistance pursuant to Section 504 of the Rehabilitation Act of 1973, delayed entry of judgment.

For the following reasons we find that ABT was a recipient of Federal financial assistance and thus, Plaintiff has satisfied the jurisdictional requirements of § 504 of the Rehabilitation Act.

FACTS

Background

Plaintiff Delmonte began his employment with ABT in 1977. As of July 1988, Delmonte held the position of a sworn Law Enforcement Investigator, which is now known as Special Agent. On July 22, 1988, Delmonte suffered a back injury when his car was hit from behind by a Florida Power and Light truck while preparing a report. His injuries required hospitalization and kept him out of work for three months. In October 1988, he returned to work and was put on light duty. On or about June 8, 1990, Delmonte was demoted to the position of non-law enforcement Investigator because of the back injury.

Federal Training

Both prior to and after the 1990 demotion, ABT received training by federal law enforcement agencies at no cost to ABT or the State of Florida. The training was conducted by the Federal Bureau of Investigation (FBI), the Drug Enforcement Agency (DEA), the Internal Revenue Service (IRS), the Federal Bureau of Alcohol, Tobacco and Firearms (ATF) and the Secret Service. The training consisted of the following:

1. FBI

a. FBI National Academy Program, Quantico, Virginia.

Over ten ABT officers since 1980 through the present have attended the FBI National Academy Program. The Program is a three month intensive training course for state and local law enforcement. There is no cost to ABT for this training.

b. Transitional Firearms Training, Tallahassee, Florida.

Training was conducted by FBI Special Agents Dennis Durden and Jim Whitaker during the years 1991 and 1992. Training was provided to all ABT officers over a three and on-half day period to classes of 15-20 people. Although ABT paid for the materials used (i.e. ammunition), no payment was made to the FBI for the training.

c. Interviews and Interrogation Training, Tallahassee, Florida.

Training was conducted by Special Agent Gene Holly during the years 1990, 1991 and 1992. There was no cost to ABT for this training.

2. DEA

DEA personnel conducted narcotics investigation courses throughout Florida since 1989. These classes were attended by 2-3 ABT agents at no cost to ABT.

3. IRS

In 1989, the IRS provided a three day training and financial course for approximately ten law enforcement officers from ABT. There was no cost to ABT for this IRS training.

4. ATF

ATF personnel provided dangerous weapons training for new ABT recruits during the years 1991 and 1992. There was no cost to ABT for the 2-4 hour class attended by 15-18 ABT law enforcement recruits.

5. Secret Service

A three day training course in dignitary protection was provided by the Secret Service at no charge. The purpose was to help prepare ABT in case their services were needed at the international Conference of the Americas that took place in Miami, Florida.

Hurricane Relief

In addition to the training, ABT also received approximately 1.3 million dollars from the Federal Emergency Management Agency ("FEMA") to reimburse ABT for costs associated with the aftermath of Hurricane Andrew. These costs related primarily to overtime pay and equipment used solely for work related to Hurricane Andrew.

DISCUSSION

The sole issue left before this court is whether ABT was a recipient of Federal financial assistance pursuant to § 504 of the Rehabilitation Act of 1973. Section 504 provides in pertinent part:

No otherwise qualified individual with a disability in the United States, as defined in section 706(8) of this title shall, by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subject to discrimination under any program or activity receiving Federal financial assistance ...

29 U.S.C. § 794(a).

Plaintiff claims that ABT received Federal financial assistance in two forms: 1) training by the Federal Bureau of Investigation (FBI), the Drug Enforcement Agency (DEA), the Internal Revenue Service (IRS) and the Secret Service at no cost; and 2) reimbursement from the Federal Emergency Management Agency (FEMA) for work performed during the aftermath of Hurricane Andrew. Defendant claims that the above relationships with the federal government do not make ABT a recipient of Federal financial assistance under § 504.

"The starting point of any inquiry into the application of a statute is the language of the statute itself." U.S. Dept. of Trans. v. Paralyzed Veterans of America, 477 U.S. 597, 604, 106 S.Ct. 2705, 2710, 91 L.Ed.2d 494 (1986) (citing Reiter v. Sonotone Corp., 442 U.S. 330, 337, 99 S.Ct. 2326, 2330, 60 L.Ed.2d 931 (1979)). Section 504 coverage is triggered by the receipt of Federal financial assistance. Congress sought to impose § 504 coverage as a form of contractual cost of the recipient's agreement to accept federal funds. Paralyzed Veterans, 477 U.S. at 605-06, 106 S.Ct. at 2711. "`Congress apparently determined that it would require contractors and grantees to bear the costs of providing employment to the handicapped as a quid pro quo for the receipt of federal funds.'" Paralyzed Veterans, 477 U.S. at 605, 106 S.Ct. at 2711 (quoting Consolidated Rail Corporation v. Darrone, 465 U.S. 624, 633, n. 13, 104 S.Ct. 1248, 1254 n. 13, 79 L.Ed.2d 568 (1984)). Thus, Congress imposes the obligations of § 504 upon those who are in a position to accept or reject them as a condition of receiving federal funds. Paralyzed Veterans, 477 U.S. at 606, 106 S.Ct. at 2711.

Although § 504 does not define "Federal financial assistance," the governing federal regulation at 28 C.F.R. § 41.3(e) provides:

Federal financial assistance means any grant, loan, contract (other than a procurement contract or a contract of insurance or guaranty), or any other arrangement by which the agency provides or otherwise makes available assistance in the form of:

(1) Funds;

(2) Services of Federal personnel; or

(3) Real and personal property or any interest in or use of such property, including:

(i) Transfers or leases of such property for less than fair market value or for reduced consideration; and

(ii) Proceeds from a subsequent transfer or lease of such property if the Federal share of its market value is not returned to the Federal Government.

On its face, the training of ABT employees by federal law enforcement personnel at no cost would seem to fall squarely under "assistance in the form of ... services of Federal personnel." However, defendant argues that the training was isolated and conducted by federal volunteers. Defendant further asserts that if there is no intention by the federal government to subsidize the entity, then there is no Federal financial assistance. See DeVargas v. Mason & Hanger-Silas Mason Co., 911 F.2d 1377, 1382 (10th Cir.1990).

Therefore, we must look to the grant statute to determine whether Congress intended to provide a subsidy when it authorized this type of training. See Paralyzed Veterans, 477 U.S. at 603-04, 106 S.Ct. at 2710; see also DeVargas v. Mason & Hanger-Silas Mason Co., 911 F.2d at 1382. In other words, the question really is whether Congress intended for this type of assistance to trigger the coverage of § 504 and its inherent obligations. The answer to this question is yes; this is exactly the type of assistance that the Department of Justice and Congress contemplated would trigger coverage under § 504. In fact, this training is explicitly listed in the Department of Justice regulations as Federal financial assistance pursuant to § 504.

The Department of Justice implements § 504 of the Rehabilitation Act of 1973, as amended, through Subpart G¹ of Title 28 C.F.R. § 42. See 28 C.F.R. § 42.501. "This subpart applies to each recipient of Federal financial assistance from the Department of Justice and to each program receiving or benefitting from such assistance." 28 C.F.R. § 42.502. The definition of "Federal financial assistance" found in this subpart is identical to the definition in 28 C.F.R. § 41.3(e), quoted above, and therefore includes "services of Federal personnel". See 28 C.F.R. § 42.540(f). More importantly, Appendix A to Subpart G contains a list of types of Federal financial assistance administered by the Department of Justice to which the Rehabilitation Act applies. Included in this list are the following:

* * * * * *

4. Assistance provided by the Drug Enforcement Agency (DEA) including training, joint task forces, information sharing agreements, cooperative agreements, and logistical support, primarily to State and local government agencies (21 U.S.C. 871-886).

* * * * * *

7. Assistance provided by the Federal Bureau of Investigation (FBI) including field training, training through its National Academy, National Crime Information Center, and laboratory facilities, primarily to State and local criminal justice agencies (Omnibus

...