The Issue Whether Petitioner was the subject of an unlawful employment practice by Respondent based on disability.
Findings Of Fact On February 7, 2011, an Order Granting Continuance and Rescheduling Hearing was entered setting the day, time, and location of the final hearing in this case. The Order was mailed to the last known, valid address of the Petitioner. The Order was not returned. On February 16, 2011, Petitioner filed a letter in this case indicating she was aware of the date, time, and location of the rescheduled final hearing. This cause came on for hearing as noticed. After waiting more than 15 minutes, Petitioner failed to appear to prosecute her claim. There has been no communication from the Petitioner indicating that she would not be attending the final hearing. Petitioner has the burden to establish by a preponderance of the evidence a violation of chapter 760. In this case, Petitioner failed to appear at the hearing after proper notice of the hearing was issued. Because Petitioner failed to appear, no evidence that Respondent violated chapter 760 was presented. Absent such evidence, Petitioner has not carried her burden of proof in this matter and the Petition for Relief should be dismissed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Commission on Human Relations dismissing the Petition for Relief. DONE AND ENTERED this 17th day of May, 2011, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of May, 2011. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Harold R. Mardenborough, Esquire Carr Allison 305 South Gadsden Street Tallahassee, Florida 32301 Joyce Herring 501 South Main Street Havana, Florida 32333 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether Respondent committed the unlawful employment practice alleged in the Employment Complaint of Discrimination filed with the Florida Commission on Human Relations (FCHR) and, if so, what relief should Petitioner be granted.
Findings Of Fact The Petitioner began his employment with the Respondent on or about April 9, 2004. The Petitioner worked as a houseman. This job description was within the Respondent's housekeeping section. His original schedule required him to work a shift that ran from 6:00 a.m. until 2:00 p.m. In October or November of 2004, the Petitioner's work schedule changed and he was directed to work the overnight shift. The overnight shift personnel reported for duty from 11:00 p.m. until 7:30 a.m. The Petitioner accepted this re-assignment. The change in shift assignment was requested by Elizabeth Cortes' predecessor. Some time after December 2004, the Petitioner's supervising manager changed and Elizabeth Cortes became the director or manager for housekeeping. The Petitioner asked Ms. Cortes if he could return to the 6:00 a.m. to 2:00 p.m. shift. That request was not approved. The Petitioner accepted this decision and continued to work as scheduled. Ms. Cortes told the Petitioner at that time that she did not have another employee who would be available to take the night shift. In 2007 the Petitioner enrolled in school and requested that his shift be changed to a 9:00 p.m. to 5:00 a.m. shift so that he could attend school at Miami Dade. That request was approved. From the time of approval, the Petitioner was permitted to work three days from 9:00 p.m. to 5:00 a.m. (his school days) and two days from 11:00 p.m. to 7:30 a.m. The modification of the schedule allowed the Petitioner sufficient time to get to school in the morning. The Petitioner continued to work these shift times without complaint or issue. In November or December of 2006, the Petitioner made an application to become a banquet server for the Respondent's restaurant. He alleged that he gave the application to Elizabeth Cortes who was to sign it and forward it to Human Resources. According to Esther Sandino, the Petitioner did not file an application for restaurant server. Further, Ms. Cortes did not recall the matter. The Petitioner did not file a claim of discrimination for this alleged incident but presumably alleged that this incident demonstrates an on-going disparate treatment. There was no evidence that a non- Haitian was hired for the job as banquet server. There was no evidence any banquet servers were hired. Ms. Cortes did not hire banquet servers. Her responsibilities were directed at housekeeping. During the time Ms. Cortes was the housekeeping supervisor, the Respondent employed approximately 90 employees within the housekeeping section. Of those employees approximately 70 were Haitian. The remainder were Hispanic, Jamaican, Filipino, and other. Of the five persons who held supervisory positions, one was Haitian, two were Hispanic, one was from Czechoslovakia, and the country of origin of the fifth supervisor was unknown to Ms. Cortes. Ms. Cortes did not have the authority to terminate the Respondent's employees. Standard procedure would cause any allegation of improper conduct to be referred to the Human Resources office for follow up and investigation. There were two incidents referred for investigation regarding the Petitioner prior to the incident of April 22, 2007. Neither of them resulted in suspension or termination of the Petitioner's employment with the Respondent. On April 22, 2007, a security officer reported to the hotel manager on duty, Bingina Lopez, that the Petitioner was discovered sleeping during his work shift. Based upon that report, Ms. Lopez sent an e-mail to the housekeeping department to alert them to the allegation. When the Petitioner next reported for work, Mr. Saldana told the Petitioner to leave the property and to report to the Human Resources office the next day to respond to the allegation. The Petitioner did not report as directed and did not return to the property. Mr. Saldana did not have the authority to suspend or terminate the Petitioner's employment. Moreover, the Respondent did not send a letter of suspension or termination to the Petitioner. In fact, the Respondent assumed that the Petitioner had abandoned his position with the company. Ms. Cortes presumed the Petitioner abandoned his position because all of his uniforms were returned to the company. To avoid having the final paycheck docked, the Respondent required that all uniforms issued to an employee be returned upon separation from employment. The Petitioner acknowledged that he had his brother return the uniforms to the Respondent for him. The Respondent considered turning in uniforms to be an automatic resignation of employment. To fill the Petitioner's position (to meet housekeeping needs), the Respondent contacted an agency that provides temporary staffing. The person who came from the agency for the assignment was a male Hispanic. The male (who may have been named Lewis Diaz) arrived at the Trump Resort for work about ten days after the Petitioner left. The replacement employee's schedule was from 4:00 p.m. to midnight or 1:00 a.m. The temporary replacement remained with the Respondent until a permanent replacement for the Petitioner could be hired. It is unknown how long that was or who the eventual permanent employee turned out to be. Because the Petitioner never returned to the Trump Resort as directed, he was not disciplined for any behavior that may have occurred on April 22, 2007. The Petitioner's Employee Return Uniform Receipt was dated April 25, 2007. Prior to the incident alleged for April 22, 2007, the Petitioner had been investigated in connection with two other serious charges. Neither of those incidents resulted in discipline against the Petitioner. Both of the incidents claimed improper conduct that was arguably more serious than the allegation of April 22, 2007. Of the 400 plus employees at the Respondent's resort, the majority are Haitians. The Respondent employs persons from 54 different countries. The Petitioner's claim that he was referred to as a "fucking Haitian" by a security guard has not been deemed credible. The Petitioner was unable to indicate when the comment was made. Moreover, the Petitioner did not complain to anyone at the time the comment was allegedly made. Finally, no other employee could corroborate that the comment was made. One former employee testified that the Petitioner told him about the alleged comment. At best it was one offensive statement made on one occasion. There is no evidence that the Petitioner was treated in a disparate or improper manner based upon his national origin.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the FCHR issue a final order finding no cause for an unlawful employment practice as alleged by the Petitioner, and dismissing his employment discrimination complaint. DONE AND ENTERED this 27th day of February, 2009, in Tallahassee, Leon County, Florida. J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of February, 2009. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Erwin Rosenberg, Esquire Post Office Box 416433 Miami Beach, Florida 33141 Warren Jay Stamm, Esquire Trump International Beach Resort 18001 Collins Avenue, 31st Floor Sunny Isles, Florida 33160 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Derick Daniel, Executive Director Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether signs were properly permitted and whether the subject sign violated the set back requirements of state and federal law.
Findings Of Fact Subject signs were not properly permitted and subject sign on U.S. 1 North was nearer than 660 feet from the nearest edge of the right of way.
The Issue Whether Respondent has committed an unlawful employment practice in violation of Chapter 760, Florida Statutes, and if so, what remedy should be ordered?
Findings Of Fact This case came before the Division of Administrative Hearings based upon the filing of a complaint alleging employment discrimination filed with the Florida Commission on Human Relations (The Commission). The Commission transmitted the complaint on March 27, 2008, for the assignment of an administrative law judge. The case was originally assigned to Administrative Law Judge Diane Cleavinger, and the matter was set for hearing to be held June 3, 2008. On May 21, 2008, Respondent filed a Motion to Continue based upon the unavailability of a key witness. The motion alleged that Petitioner had been contacted, but "prefers to state whether he has any objection to this motion in writing." On May 28, 2008, Judge Cleavinger granted the Motion to Continue and rescheduled the hearing for July 24, 2008. On June 3, 2008, Petitioner wrote a letter requesting to be heard on the request for continuance. Because his correspondence did not indicate that counsel for Respondent had been served, a Notice of Ex Parte Communication was filed. On June 12, 2008, a pre- hearing conference was conducted by telephone, and on July 14, 2008, Petitioner filed a Request for Recusal, which was granted July 16, 2008. The case was reassigned to the undersigned and on July 24, 2008, the case proceeded to hearing as previously scheduled. At the outset of the hearing, counsel for the Department made an appearance. However, Petitioner was not present in the hearing room. At the request of the administrative law judge, a representative for the Department checked the Division lobby to see whether Petitioner was present. A recess was taken to afford Petitioner an opportunity to appear. During the recess, the clerk's office was consulted to confirm that staff had received no contact from Petitioner indicating he was on his way to the hearing. After a twenty-five minute recess, the hearing was reconvened. Petitioner did not appear.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered dismissing Petitioner's complaint of unlawful discrimination. DONE AND ENTERED this 30th day of July, 2008, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of July, 2008. COPIES FURNISHED: J. Yvette Pressley, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Elleton R. Collins, Jr. 4768 Woodville Highway, No. 412 Tallahassee, Florida 32305 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether Respondent committed an unlawful employment practice against Petitioner in violation of Section 760.10 et. seq., Florida Statutes, as set forth in Petitioner's Charge of Discrimination filed with the Florida Commission on Human Relations (FCHR) on October 29, 2001, and, if so, the penalties that should be imposed.
Findings Of Fact Petitioner presented no evidence in support of his allegation that Respondent discriminated against him.
Recommendation Based on the foregoing findings of fact and conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief filed in this case. DONE AND ENTERED this 16th day of October, 2002, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of October, 2002. COPIES FURNISHED: John C. Seipp, Jr., Esquire Bonnie S. Crouch, Esquire Seipp, Flick and Kissane, P.A. 2450 Sun Trust International Center 1 Southeast 3rd Avenue Miami, Florida 33131 Brian D. Albert, Esquire 2450 Northeast Miami Gardens Drive Miami, Florida 33180 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether subject sign required current permits and whether said signs were in an "unsightly condition".
Findings Of Fact Previous to the date of this Recommended Order subject signs were properly permitted and refurbished to remove them from the "unsightly" violation category.
The Issue The issue in this case is whether the Department of Children and Families (DCF) should fine the Respondent for alleged violations in the operations of two child care centers in Lakeland.
Findings Of Fact The Respondent, Faith Without Works, Inc., d/b/a The Early Years CDC, is licensed by DCF to operate a child care facility at 5100 U.S. Highway 98, North, and at 2933 Duff Road, both in Lakeland. The Respondent's license certificate for the Highway 98 facility is C10PO0696; its license certificate for the Duff Road facility is C10PO0799. The charges in this case pertain to the Highway 98 license, C10PO0696. Late License Renewal The Respondent's annual license for Highway 98 was due to expire on December 14, 2013. On November 4, 2013, the Respondent's principal, Elizabeth Jackson, telephoned DCF on behalf of the Respondent to report that no renewal packet had been received. Normally, DCF sends licensees a renewal packet in time to file a renewal application at least 45 days prior to the license expiration date (i.e., by the filing deadline). The evidence was not clear why the Respondent had not received the packet. The Respondent picked up a renewal packet from DCF and filed its renewal application on November 6, 2013. There was no evidence of an affirmative misrepresentation from an authorized DCF employee that reasonably led the Respondent to delay filing its license renewal application. At best, there was evidence that the Respondent's license renewal application was late in 2011, but that no fine had been assessed. In that year, the Respondent asked DCF in early December as to the whereabouts of the renewal packet and was told that one had been sent on October 27, 2011. The Respondent then reported to DCF that a renewal packet was received on December 10, 2011, four days before expiration of its annual license, but the packet pertained to a different licensee. The Respondent picked up a renewal packet from DCF and filed for renewal. The Respondent was not fined for late renewal that year. Children Left in Van On October 18, 2013, the Respondent's van driver took a four-year-old boy and his one-year-old sister home from the Highway 98 facility. On the way, he stopped at the Duff Road facility to drop off a box lunch. He parked the van in front of the building, very close to the door, went inside briefly, returned to the van to get what he was delivering, and brought the delivery into the building. He then returned to the van and continued on his way to deliver the children to their destinations. During the time he was at the Duff Road facility, the driver left the two children in the van with the engine running. The driver recalled: that the door to the facility was unlocked; that he entered the building the first time just to announce his presence; that the entire delivery process took just 30 seconds; and that the Duff Road facility staff was watching the van from the door the entire time. The Duff Road employee testified that the door was locked; that she interrupted her lunch break to unlock it and hold the door open; and that she was watching the van from the doorway the entire time. An employee of the Early Learning Coalition, who happened to drive up for a scheduled appointment just before the van arrived, testified that she saw no one at the door; that she could see the older child squirming in his seat; and that the children were left alone in the van long enough for her to make her observations, telephone her supervisor, report her observations, and ask what she should do, which probably took considerably longer than 30 seconds. A child protective investigator testified that she learned from interviews with the driver, the older child, and the child's father that the child had a history of removing, or attempting to remove, his seat belt and moving about, or attempting to move about, while in vehicles. However, the evidence was not clear and convincing that the driver, who was a new employee, knew the child's propensities in that regard. During the incident and the investigation on it, the Respondent accepted DCF's expression of concern that the driver's conduct could have resulted in serious harm to the children. The Respondent blamed the incident on the driver being a new employee, who was a school bus driver but was inexperienced transporting preschool children. The Respondent reprimanded the driver and required him to take training in transporting young children. The driver was appropriately remorseful and welcomed the training as being appropriate and helpful. All involved were grateful that no actual harm to the children occurred. In its defense of the charge and during the hearing, the Respondent took the position that there was no serious harm, or threat of serious harm, based on the testimony of the driver and the Duff Road employee. The Respondent attempted to impeach the testimony of the protective investigator, that the driver did not mention the purported supervision by the Duff Road employee during her interview of him, by eliciting that the investigator did not directly ask whether staff was watching from the door. However, in the context of the interview, the driver would have been expected to offer that information had it been true. Overall, the contemporaneous reaction and statements of all involved belie the Respondent's current position and the referenced testimony of its witnesses. It is found that the driver's conduct posed an imminent threat that serious harm could have occurred. The boy could have climbed out of his seat and gotten out of the van, which may not have been detectable by staff standing at the front door to one side of the van, or started playing with the van's gear shift and accelerator, which also may not have been observable from that vantage point, even assuming staff was monitoring the van the entire time. Employee Work History Not Checked The driver of the van on October 18, 2013, had Level 2 screening, but there was no documentation that his work history was checked. On July 16, 2012, during a routine DCF inspection, it was revealed that the Respondent had three employees whose work history had not been checked at the time. DCF provided "technical assistance" by telling the Respondent that all employees should have their two-year history checked before starting work, which should be documented. At the time of this earlier violation, DCF gave the Respondent a formal warning stating its intent to take administrative action if further violations of the standard were found. Employee Not Screened On July 19, 2013, the Respondent employed Desaundra Oldfield, who did not have Level 2 screening at the time. In its defense against this charge, the Respondent took the position that Ms. Oldfield was a participant in the Welfare-to-Work Program of Polk Works and was screened through that program. However, it is clear that Ms. Oldfield did not get required Level 2 screening until July 20, 2013. On March 19, 2013, the Respondent was unable to produce documentation that Regina Curtis, who was employed for 30 days and also a parent of a child at the daycare center, had Level 2 screening. The Respondent's defenses at the time of the hearing were that Ms. Curtis was a participant in the Polk Welfare-to- Work Program, and also that she was no longer employed on March 19, 2013, so that on-site documentation was not required. However, the evidence was clear and convincing that Ms. Curtis did not have required Level 2 screening during the time she was working for the Respondent. Non-compliance was noted. Since Ms. Curtis no longer was employed, nothing further was done in the way of technical support. At the time of this earlier violation, DCF gave the Respondent technical support and a formal warning stating its intent to take administrative action, if further violations of the standard were found. Inadequate Supervision On June 7, 2013, a DCF inspector responding to an unrelated (and unfounded) complaint observed a single employee in charge of a room of 19 four-year-olds having a party. While the employee's back was turned to help one child in the adjoining bathroom, the other children were jumping off tables and playing with balloons. One parent was in the room with the other children while this was going on, but the parent was not an employee, was not screened, and did not have her work history checked. A balloon burst while in a child's mouth, and the DCF inspector attended to the child to make sure the child did not swallow the burst balloon and choke. On October 26, 2012, a DCF inspector responding to an unrelated (and unfounded) complaint came upon a child in a room by himself. Unnoticed, the child left the room where he was being supervised by an employee of the Respondent to look for candy and was in an adjoining room when seen by the DCF inspector. According to the inspector, when she returned the child, the employee indicated not knowing the child had left. During the hearing, the Respondent asserted that the employee saw the child walk around the DCF inspector, undetected, and enter the adjoining room. The defense was not supported by any competent evidence and was not presented in the Respondent's proposed order. At the time of this earlier violation, DCF gave the Respondent technical support and a formal warning stating its intent to take administrative action, if further violations of the standard were found. Safety Violation Rule 65C-22.002(1)(a) and (b) requires child care facilities to be free from health and safety hazards and not be used for any activity that endangers the health and safety of children. DCF proved a violation of this rule during a routine inspection on August 14, 2013, because several electrical sockets did not have required safety plugs. This was a Class III violation. DCA also proved by clear and convincing evidence two previous violations of this rule, one on June 7 and another on July 19, 2013. After the earlier violations, DCF gave technical support; after the second, DCF gave the Respondent a formal warning stating its intent to take administrative action, if further violations of the standard were found. Selective Enforcement Defense The Respondent asserts as an additional defense that it was the victim of selective overzealous and picayune enforcement because of the personal prejudices and animosity of certain DCF personnel for various reasons, including that the Respondent licensed a second facility (at Duff Road) and intended to expand further. The evidence did not prove the alleged prejudice and animosity, or selective enforcement.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Families enter a final order finding the Respondent guilty of the alleged violations and fining the Respondent a total of $475. DONE AND ENTERED this 30th day of April, 2014, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of April, 2014. COPIES FURNISHED: Esther Jacobo, Interim Secretary Department of Children and Families Building 1, Room 202 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Marion Drew Parker, General Counsel Department of Children and Families Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Gregory Venz, Agency Clerk Department of Children and Families Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Karen I. Meeks, Esquire Meeks, Lewis and Cabrera, P.A. Post Office Box 1598 Bartow, Florida 33831-1598 Cheryl Dianne Westmoreland, Esquire Department of Children and Families 1055 U.S. Highway 17, North Bartow, Florida 33830-7646
Findings Of Fact The initial Petition for Administrative Hearing was filed on November 8, 1991. The Petition was filed by Ervin James Horton. In the Petition Rule 2-1.007, Florida Administrative Code and "[a]ny and (all) State Attorney memorandums, statements, policy, rules, directive, consistent to this practice" were challenged. The Challenged Rule deals with the issuance of Attorney General opinions. The Petition is, to say the least, confusing. This confusion is caused by the Petitioners frequent use of legal terms and phrases with little in the way of factual explanation. The confusion is also caused by the failure of the Petitioner to actually be challenging the Challenged Rule. Although the Petitioner contains some "legalese", it does not, read alone or in conjunction with all of the Petitioner's pleadings, adequately put the Respondent on notice as to what the Petitioner is challenging or the basis for his challenge. Apparently, the Petitioner is complaining of the alleged failure of the State Attorney of the Eighth Judicial Circuit to take action against employees of the Department of Corrections and the failure of the Attorney General of the State of Florida to do anything about it. The Petitioner has also attempted to raise constitutional arguments to support his challenge to the Challenged Rule. The statements concerning constitutional issues consist of mere statements that constitutional rights are being violated without any facts to support an argument that the Challenged Rule is unconstitutional. Insufficient alleged facts concerning why it is believed that the Challenged Rule is an "invalid exercise of delegated legislative authority", as defined in Section 120.52(8), Florida Statutes, were included in the Petition. On December 4, 1991, an Order Granting Motion to Dismiss with Leave to Amend and Cancelling Formal Hearing was entered. On December 23, 1991, an Amended Petition was filed by the Petitioner. The Amended Petition consolidated the Petitioner's challenges in this case and case number 90-7189R. The Amended Petition is very similar to the Petition and suffers from the same deficiencies. Additionally, the Petitioner includes the Department of Corrections, the Respondent in case number 91-7189R, as a Respondent and addresses his challenge to other rules, internal operating procedures and directives of the Department of Corrections. The Amended Petition is devoid of a sufficient statement of the alleged facts pertinent to the issues raised in the Petition or the Amended Petition which, if proven, would support a determination that the Challenged Rule or the other materials challenged in the Amended Petition are invalid under Section 120.56, Florida Statutes. On January 14, 1992, an Order Concerning Amended Petition was entered dismissing the Amended Petition and giving the parties an opportunity to file proposed final orders.
The Issue Whether Florida Administrative Code Rule 61G16-9.001 is an invalid exercise of legislatively delegated authority in violation of Section 120.52(8), Florida Statutes, and whether certain statements of the Department of Business and Professional Regulation (DBPR or the Department) are "agency statements" defined as rules that should be adopted through the rulemaking process pursuant to Section 120.54, Florida Statutes.
Findings Of Fact Petitioner, Dr. Bacchus, is a hydroecologist with a multidisciplinary degree. While Dr. Bacchus lives in Georgia, she alleges that a substantial amount of her income comes from conducting environmental consulting services in Florida. According to her Amended Petition, Dr. Bacchus is not licensed by the Department. Respondent, Department of Business and Professional Regulation, is the state agency charged with the licensing and regulation of a variety of professions. The practice of geology is among the professions it regulates, pursuant to Chapters 455 and 492, Florida Statutes. Created within the Department is the Board of Geology. Petitioner is the subject of an Administrative Complaint issued on or about September 27, 2006, charging her with the unlicensed practice of geology in violation of Section 492.112(1)(a), Florida Statutes (2005). The Administrative Complaint, which is attached as an Exhibit to the Amended Petition, does not cite to any rules. As of the date of hearing, the Administrative Complaint had not been referred to the Division of Administrative Hearings Petitioner does not allege that she has any intention of seeking licensure from the Department. Florida Administrative Code Rule 61G16-9.001 Florida Administrative Code Rule 61G16-9.001 is a rule adopted by the Board of Geology, as opposed to the Department of Business and Professional Regulation. The rule, entitled "Disciplinary Guidelines," identifies the range of penalties normally imposed by the Board of Geology against licensees for violations of provisions in Chapters 455 and 492. All of the possible violations addressed by the Disciplinary Guidelines are statutory violations. The rule is lengthy and will not be repeated ver batim. The text of subsections (1) and (2) are tables of penalty ranges. Subsection (1) deals with violations of provisions in Chapter 492, whereas subsection (2) of the rule addresses violations of Chapter 455. Subsection (3) is entitled "The Usual Conditions" and outlines provisions that are included in all disciplinary orders; conditions imposed whenever fines and costs are imposed; conditions which may be imposed with probation; and conditions which may be imposed when a license is suspended. Subsection (4) identifies the purpose of the Disciplinary Guidelines, and states: (4) Purpose of guidelines -- The range of penalties set forth above is the range from which disciplinary penalties will be imposed upon licensees guilty of violations of the laws and rules. The purpose of these guidelines is to give notice of the range of penalties which will normally be imposed for specific violations. The guidelines are based upon a single count violation of the provision listed. Multiple counts of violations of the same provision, or unrelated provisions of the law or rules will be grounds for enhancement of penalties or imposition of additional penalties. [Emphasis supplied.] Subsection (5) of the rule addresses aggravating and mitigating circumstances to be considered when imposing penalty, and subsection (6) identifies those instances when the Department may issue a Notice of Noncompliance. The rule lists as its specific authority Sections 455.2273, 492.104(1), and 492.113(3), Florida Statutes. The laws implemented are Sections 455.227, 455.2273, 492.104(1), and 492.113(2), Florida Statutes. Section 455.227, Florida Statutes, identifies "across- the board" acts that constitute grounds for which disciplinary action may be taken by professional licensing boards or by the Department, where no professional licensing board exists. The penalties that can be imposed are the refusal to certify, or certify with restrictions, an application for a license; suspension or permanent revocation of a license; restriction of practice; imposition of an administrative fine; issuance of a reprimand; placement of a licensee on probation; or corrective action. Section 455.2273, Florida Statutes (2006), provides in pertinent part: 455.2273 Disciplinary Guidelines Each board, or the department where there is no board, shall adopt, by rule, and periodically review the disciplinary guidelines applicable to each ground for disciplinary action which may be imposed by the board, or the department where there is no board, pursuant to this chapter, the respective practice acts, and any rule of the board or department. Section 492.104(1), Florida Statutes (2006), provides: The Board of Professional Geologists has authority to adopt rules pursuant to ss. 120.536(1) and 120.54 to implement this chapter. Every licensee shall be governed and controlled by this chapter and the rules adopted by the board. The board is authorized to set, by rule, fees for application, examination, certificate of authorization, late renewal, initial licensure, and license renewal. These fees should not exceed the cost of implementing the application, examination, initial licensure, and license renewal or other administrative process and shall be established as follows: The application fee shall not exceed $150 and shall not be refundable. Section 492.113(2), Florida Statutes (2006), states that the Board of Geology shall specify what acts or omissions constitute a violation of section (1) of the section, which is entitled "Disciplinary Proceedings." Subsection (1) identifies several different grounds for which disciplinary action may be taken against a licensee. While Section 492.113(2) is listed as a law being implemented by Rule 61G16-9.001, the Rule does not specify any acts or omissions constituting a violation of Section 492.113(1), Florida Statutes. It simply paraphrases the statutory language of each statutory provision and gives a range of penalties for each violation. Agency Statements as Rules Petitioner also attempts to challenge agency statements and agency actions not adopted as rules. The Amended Petition states: 2. . . . Examples of the text and description of the statements and agency actions, pursuant to § 120.56(4)(a), F.S. and as defined in § 120.52, F.S., are provided in the Department's: Administrative Complaint against Petitioner, SYDNEY T. BACCHUS, Ph.D. (hereinafter "Dr. Bacchus") signed on September 27, 2006, attached and incorporated by reference hereto as Exhibit A; Undated Settlement Stipulation accompanying the above-referenced Administrative Complaint against Dr. Bacchus, attached and incorporated by reference hereto as Exhibit B. Cease and Desist Order against Dr. Bacchus signed on February 15, 2006, attached and incorporated by reference hereto as Exhibit C. Complaint No. 2005056737 against Dr. Bacchus signed on January 26, 2006 and threatening criminal charges, attached and incorporated by reference hereto as Exhibit D; and Complaint No. 2003063556 against Dr. Bacchus signed on May 22, 2003 and threatening criminal charges, attached and incorporated by reference hereto as Exhibit E. [Emphasis Supplied.] Failure to Adopt Rules Petitioner apparently also seeks to address the failure of the Department to adopt rules identifying what acts constitute the unlicensed practice of geology. The Amended Petition states in pertinent part: In 1987, the Board was authorized to govern and control every licensed professional geologist, pursuant to s. 4, ch. 87-403, Laws of Florida. The Board was not authorized to govern and control persons not licensed as a professional geologist. In 1987, the Department was mandated to "specify, by rule what acts or omissions constitute a violation" of the "[P]ractice of geology," pursuant to subsection (2) s. 12, ch. 87-403 Laws of Florida. * * * 46. The Department has failed to specify, by rule, "what acts or omissions constitute a violation" of the "[P]ractice of geology," to allow an unlicensed person to "know" what constitutes the practice of geology. In the absence of such specificities, a person cannot "knowingly" engage in the unlicensed "[P]ractice of geology" or "knowingly employ unlicensed persons to practice geology, pursuant to subsection (1) s. 12, ch. 87-403 Laws of Florida. [Emphasis in original.] Petitioner's Unilateral Pre-Hearing Statement does not mention Rule 61G16-9.001. Petitioner's statements identifying what she views as the scope of the proceeding state the following: Brief General Statement of Petitioner's Position The Department is regulating unlicensed members of the public under Chapters 492 and 455 Florida Statutes, using unpromulgated rules and rules that are an invalid exercise of delegated legislative authority. Such unlawful regulation violates the constitutional freedom of speech of unlicensed persons. The Department is impermissibly encroaching on the powers of the judiciary. * * * Issue of Fact that Remain to be Litigated 1. Whether the Department is regulating unlicensed members of the public under Chapters 492 and 455 Florida Statutes, using unpromulgated rules and rules that are an invalid exercise of delegated legislative authority. Issue of Law that Remain to be Litigated Whether the Department exceeded its lawful delegation of authority to regulate the "practice of professional geology" in the manner in which it is being regulated in Florida. Whether the Department has failed to give adequate notice to the public regarding what constitutes the unlicensed "practice of professional geology" in Florida. Whether the Department's rules are over- broad, vague, and are in invalid exercise of delegated legislative authority. . . . Whether the Department was required to promulgate rules to regulate the unlicensed "practice of professional geology" in Florida, but failed to promulgate those rules. Whether the Department has been engaged in a pattern of action that constitutes an unpromulgated rule. Whether the Department's recent regulation of the "practice of professional geology" in Florida constitutes selective enforcement. Petitioner was questioned at length during the consideration of the Motion to Dismiss regarding the basis of her challenge. She indicated not that she was concerned with the application of Rule 61G16-9.001 against her, but that she wished to challenge the entire regulatory scheme: THE COURT: . . . Doctor, all the disciplinary guideline rule does is name a statutory or rule violation. It paraphrases the statute itself. It doesn't provide any additional language to my knowledge and provides what penalty would be imposed should a licensee violate one of those statutory provisions. It doesn't -- and as I look at this, it doesn't even have any rule violations. Its statutory. DR. BACCHUS: Yes, Your Honor, I understand that, and I understand that it is confusing, but in fact I had received two charges from the department over a period of -- beginning -- I received the first notice in 2003 for a complaint filed I believe the previous year, and then second complaint that I received early in 2006 for a complaint filed against me in 2005 basically alleging that I was producing documents that in fact were required to have the seal and signature of a licensed geologist. So in fact the agency is regulating unlicensed persons using the language from 61G16 despite the fact that they are not referencing the rule citation. You know, I'm an unlicensed individual, complaints are being filed against me because I am producing documents that have only my name. No reference to the title of professional geology, no insinuation that I am a geologist, a professional geologist, a licensed professional geologist, no reference to that whatsoever, yet complaints are being filed against me with the department and they are taking action against me. THE COURT: But again, getting back to this rule. Even assuming -- and the merits of your administrative complaint are not before me and we're not going to talk about them. DR. BACCHUS: Yes, Your Honor, I understand. THE COURT: But even assuming that, even assuming that the department were going to take action against you based on whatever is charged in that administrative complaint, how is this rule -- you're not going to be -- this rule specifically says licensees. DR. BACCHUS: Yes, Your Honor, I understand that, but that's not how its being applied by the Department. I understand that this hearing is not a hearing to be addressing my complaints, but as I understand, my complaints are relevant with regard to my standing for this issue before the court today. And in fact because of the actions of the department against me, you know, multiple complaints can be filed against me for any written document that I have produced in the past or any written document that is pending, peer-reviewed publications that are pending to be released, because I don't have a license, they are using that language without referencing that rule to take action against me, your Honor. THE COURT: But again, you're saying they're not referencing that rule. DR. BACCHUS: That's correct, Your Honor. They're not referencing that, but because there is no comparable rule that has been promulgated and adopted and is being implemented for unlicensed activities, there is only the statute they are referencing, only 492 and 455, and because there isn't a comparable rule to 61G16 for unlicensed people, then by nature you have to look at what the licensed activity is to determine what the unlicensed activity is. Similarly, with respect to the actions taken by the Department against her personally, Dr. Bacchus asserted that these actions, which she characterizes as agency statements, give her standing to file this rule challenge. However, she does not allege that the Department's actions necessarily give her standing to challenge the specific rule alleged in the Amended Petition: THE COURT: So what is your position in terms of standing? These agency statements give you standing to challenge what? DR. BACCHUS: To challenge the regulation of unlicensed practice of professional geology in Florida. Because the broad sweeping net they are casting, Your Honor, encompasses every form of speech, every form of written document that I produce, whether it is a peer-reviewed publication, whether it is a comment letter to a public agency proposed action, I would have to challenge every single act. I literally cannot act until I am able to know what constitutes the practice of professional geology and the statute does not tell me that. Finally, with respect to what Dr. Bacchus describes as "illegal unpromulgated rules," Dr Bacchus described the unpromulgated rule as "this sweeping action, the fact that the statute does not define geological services, the statute does not define geological documents, yet the agency is taking action not only against me but against a myriad [of] other people for theoretically actions that constitute geological services."
