The Issue The issue in this case is whether Petitioner is entitled to a Florida teaching certificate.
Findings Of Fact By letter dated February 23, 1995, Respondent informed Petitioner that his application for a Florida teaching certificate was denied for the reasons set forth in the accompanying Notice of Reasons, which is also dated February 23. The Notice of Reasons states that from 1971 through 1974 Petitioner engaged in inappropriate sexual conduct with a female student at a high school in Michigan while he was employed as a teacher at the school. The Notice of Reasons states that from 1985 through 1987 Petitioner engaged in inappropriate sexual conduct with four or more female students at Lemon Bay High School in Charlotte County while he was employed as the girls' basketball coach at the school. The Notice of Reasons alleges that Petitioner violated Sections 231.17(1)(e), which requires good moral character, and that 231.17(5)(a) requires Respondent to deny the application if the applicant has committed acts that are grounds for revocation of a teaching certificate. Other allegations in the Notice of Reasons include that Petitioner violated the Principles of Professional Conduct for the Education Profession prescribed by the State Board of Education Rules, the penalty for which is revocation. The Notice of Reasons alleges that Petitioner violated Rule 6B-1.006(3)(a), which requires a teacher to make reasonable effort to protect a student from conditions harmful to learning or to the student's safety or mental or physical health; Rule 6B- 1.006(3)(e), which prohibits a teacher from intentionally exposing a student to unnecessary embarrassment or disparagement; Rule 6B-1.006(3)(g), which prohibits a teacher from harassing or discriminating against any student on the basis of sex; and Rule 6B-1.006(3)(h), which prohibits a teacher from exploiting a relationship with a student for personal gain or advantage. Petitioner taught and coached in high school in Michigan over 10 years prior to moving to Florida in 1983. Petitioner was high school coach of the year for the 1979-80 school year. In the winter of 1969-70, Petitioner and his wife hired as a babysitter a female student at the high school where Petitioner taught. The student was a freshman, and she developed a close relationship with the Hubers. Eventually, the student accompanied the Hubers on out-of-town trips where she could watch her brothers play road games for their high school teams. The student even accompanied the Hubers on their family vacations. In the winter of 1970-71, the relationship between the student and Petitioner changed. At first, Petitioner asked her to walk on his back to relieve muscular tension, and she did so. Then, Petitioner asked the student to rub his back, and she did so. At some point, Petitioner began to fondle her vaginal area with his fingers while the student rubbed his back. The fondling was repeated several times. On one occasion, the student accompanied the Hubers down to Florida on a visit to Mrs. Huber's family. While the student was sleeping on a screened-in porch, with other family members nearby, Petitioner fondled the student's breasts and genitalia. On another trip to Long Island, New York, Petitioner began to fondle the student, who was in the front seat, even though Petitioner's brother was in the back seat of the car with them. On another trip to Florida in late summer or early fall 1972, Petitioner and the student drove back to Michigan by themselves. The student had previously massaged Petitioner's penis through his pants, but, during this trip, Petitioner removed his penis from his pants, and she massaged the penis directly. After moving to Florida in 1983, Petitioner was employed as a teacher and coach at Lemon Bay High School in Charlotte County from 1983-87. He held a Florida teaching certificate during that time, but he allowed it to expire in 1989, after he resigned from his teaching position in 1987. Although Petitioner did not seek the assignment, the high school principal assigned him the responsibility of serving as the girls' varsity basketball coach at Lemon Bay High School in 1984. At the time, Petitioner also taught health and served as the athletic director of the school. Petitioner asked for help, and the principal assigned the assistant principal, Dan Jeffers as an assistant coach. During the summer of 1986, Alice H. B., a rising sophomore, moved into the Lemon Bay High School zone. Interested in playing basketball, she began attending workouts on Sunday nights. Petitioner also attended these workouts. Petitioner drove Alice home after practice a couple of times. One night, after dropping off two other girls, Petitioner asked Alice to lay down across the front seat and rest her head on his lap. After Alice did so, Petitioner asked her if she wanted a massage, and she said she did. After rubbing her neck, shoulders, and full length of her back, Petitioner began to rub her face, cheeks, and lips. He tried to stick his fingers in her mouth, but Alice would not let him. During the summer of 1986, Petitioner also drove home Kristine E. R. after the Sunday night basketball workouts. Also a rising tenth grader at Lemon Bay High School, Kristine three times rested her head on Petitioner's lap while he was driving her home. On other occasions, Petitioner held Kristine's hand while they drove home. Twice when he would drop her off, he asked where was his kiss, presenting his cheek for a kiss. When Kristine went to kiss his cheek, he quickly turned his head so that she kissed him on his lips. Several times, while Kristine rested her head on Petitioner's lap, he stroked her hair, rubbed her neck, placed his fingers in her mouth, and then rubbed her breasts. One day during the summer of 1986, Petitioner drove Kristine, at her request, to a sporting goods store. On the way back, he drove the car in the opposite direction from home. He drove to a secluded location and began rubbing her breasts inside her shirt. He placed her hand on his penis, outside of his pants. He began to unzip her jeans, but Kristine began crying. Petitioner ceased his advances at this time and instructed Kristine to remain quiet about the incident. He said it would destroy his family and job and ruin her life. This was the last time that Petitioner inappropriately touched Kristine. At the start of basketball season in the fall of 1986, Petitioner drove Kristine, Kelly H., who was then in tenth grade, and a third girl to a basketball game in Tampa to watch a recent graduate play her first college game. After the game, Petitioner drove the girls back home with the third girl in the front seat and Kelly and Kristine in the back seat. During the trip, Petitioner reached into the back seat and massaged Kelly's bare leg for a long time. After dropping off the third girl, Kelly moved into the front seat at Petitioner's urging. Petitioner pulled her head into his lap and massaged her neck and arm. He placed his fingers into her mouth and sucked on her fingers. When the vehicle went over a bump, Kelly jumped up and asked where were they. Petitioner said they were almost home and tried to pull her head back down, but Kelly resisted successfully, saying she was not tired. Kelly was spending the night at Kristine's house. After Petitioner left them at the house, Kelly began crying and told Kristine what had happened. Without supplying specifics, Kristine said that he had done worse to her and began crying herself. They decided not to tell anyone because Petitioner was powerful, and they did not feel that anyone would believe them. Shannon T. was also in the same class as Alice, Kelly, and Kristine at Lemon Bay High School. Unlike the other girls, however, Shannon did not play basketball. She was the president of the junior and senior classes and played volleyball with Alice. She knew Kristine since kindergarten, but was not as close a friend with either Kristine or Kelly as she was with Alice. Sometime prior to the summer of 1987, Shannon received a call from Petitioner asking her to help out at a high school fundraiser in Punta Gorda. Shannon agreed to do so, and Petitioner drove her there. Once there, the organizers determined that they did not need Shannon, so Petitioner drove her back home. On the way, she rested her head on the jacket on the front passenger door. She was tired because she had just returned to town from volleyball camp. After Petitioner twice suggested that she rest her head on the bench seat, Shannon did so. Petitioner began to rub her hair and then her head for a couple of minutes. Shannon assumed that he was trying to relax her. Petitioner then began rubbing her right cheek and her shoulders. He then placed his finger in her mouth, at which point Shannon sat up and remained seated until they got to her home. The summer of 1987, Petitioner and Mr. Jeffers each drove a number of the girls to Gainesville for basketball camp. A recent graduate of Lemon Bay High School was attending University of Florida and playing varsity basketball. She was a counsellor at the camp. The second evening at the camp, some of the girls found Petitioner and the recent graduate in a dorm room and inferred that they were involved in an intimate relationship. The girls, including Kristine, Alice, and Kelly, went to one of their rooms and began talking. At that time, Kristine, Alice, and Kelly revealed what Petitioner had done to them. The girls were confused and angry. Kristine quit working at camp. When Petitioner pressed her to work or sit on the bench, she abruptly quit the team. Alice also declined to play basketball during her junior and senior years. The girls discussed their concerns with Mr. Jeffers. When they returned home after camp, Kristine repeated her assertions to school officials. Later, Alice, Kelly, and Shannon added their assertions. Denying the allegations, Petitioner nonetheless resigned rather than subject his family to the publicity and cost of a hearing. At the time, unlike at present, Petitioner was not a member of the teachers' union and could not afford to hire an attorney on his own. The student in Michigan never informed anyone of her sexual activity with Petitioner except for a close friend whom she told in 1985 and a therapist. Now a nursing administrator at a 320-bed hospital in Colorado, the former student learned in September 1994 about the allegations concerning Petitioner in Florida from a friend back home in Michigan. The student reported her experiences with Petitioner to local and state school officials in Florida at that time. Petitioner commenced several years of nonschool employment, first at a sporting goods store, then self-employed selling sporting goods, and finally at a community center, during which time he sold T-shirts on the side. For the fall of 1994, the Charlotte County School District reemployed Petitioner as a teacher in the exceptional student education program. However, after about a month, the district terminated his employment when the allegations resurfaced. Petitioner claims that the tenth grade girls conspired against him. He believes that Kristine was angry over his reaction to a silly prank that backfired on the girls on their trip to Gainesville for camp. He believes that Kristine was also jealous of Petitioner's relationships with the former student who was a counsellor and with older members of the basketball team. He believes that Kelly and Alice lied to support their friend. There were poor relations between the tenth grade girls and some of the older girls on the team, who remain to this day certain that Petitioner did nothing improper. There were also poor relations between the tenth grade girls and the recent graduate who served as a camp counsellor. But there is no indication that Shannon or the Michigan student were upset with Petitioner or loyal to Kristine. Petitioner claims that Shannon was on the basketball team her freshman year, but she was not. Petitioner claims that the Michigan student had a drug problem in high school. Given her present occupation, she knew that she would be subjecting herself to potential embarrassment if she told her story, and she demonstrated courage in doing so. There is no suggestion in the record that drug use influenced her testimony, nor is there any suggestion why she would make up such allegations against Petitioner. Petitioner never could explain why Shannon or the Michigan student would lie about him. Alice, Kelly, and Shannon were entirely credible witnesses. (The Michigan student testified by deposition.) Alice testified that she did not recount her experience with Petitioner that evening in the dorm room in Gainesville, but others recalled that she did. This discrepancy is minor and attributable to the eight years that have passed since the basketball camp. Kristine was also believable. She was vague or even contradictory as to some relatively minor details, but there were more details for her to recall and she was clear as to the main points.
Recommendation It is RECOMMENDED that the Education Practices Commission enter a final order denying Petitioner's application for a Florida teaching certificate. ENTERED on November 3, 1995, in Tallahassee, Florida. ROBERT E. MEALE, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings on November 3, 1995. APPENDIX Rulings on Petitioner's Proposed Findings 1-4: adopted or adopted in substance. 5: rejected as recitation of evidence. 6: adopted or adopted in substance except that Shannon was only a volleyball teammate and only of Alice. 7: adopted or adopted in substance. 8: rejected as unsupported by the appropriate weight of the evidence. 9-19: rejected as subordinate and recitation of testimony. 20-21: adopted or adopted in substance. 22-27: rejected as subordinate and recitation of testimony. 28-29: adopted or adopted in substance. 30-32: rejected as subordinate and recitation of testimony. 33: adopted or adopted in substance. 34: rejected as subordinate and recitation of testimony. 35: adopted or adopted in substance, although she was good friends with only one of the girls. 36-37: rejected as unsupported by the appropriate weight of the evidence. 38: adopted or adopted in substance. 39: rejected as unsupported by the appropriate weight of the evidence. 40: rejected as subordinate. 41: adopted or adopted in substance except for last sentence. 42-43: rejected as subordinate and recitation of testimony. Rulings on Respondent's Proposed Findings 1-13: adopted or adopted in substance. 14: rejected as recitation of evidence. 15-18: rejected as subordinate. 19-20: adopted or adopted in substance. 21: rejected as speculative. 22-23: rejected as subordinate. 24-30: adopted or adopted in substance. 31-35: rejected as subordinate. 36: rejected as irrelevant and subordinate. 37: adopted or adopted in substance. 38-39: rejected as subordinate. 40: adopted or adopted in substance. 41: rejected as subordinate. 42: rejected as unsupported by the appropriate weight of the evidence as to the year. 43-42 (second): adopted or adopted in substance. (second): rejected as unnecessary. 44: adopted or adopted in substance. 45: rejected as irrelevant. (second): adopted or adopted in substance. (second)-46: rejected as subordinate. 47-48: adopted or adopted in substance. 49: rejected as irrelevant. 50: adopted or adopted in substance. 51-54: rejected as recitation of evidence and subordinate. 55-56: adopted or adopted in substance. 57: rejected as subordinate. 58-64: adopted or adopted in substance. 65: rejected as subordinate. 66: rejected as unsupported by the appropriate weight of the evidence. 67-68: rejected as subordinate. 69-74: adopted or adopted in substance. 74 (second): rejected as unsupported by the appropriate weight of the evidence. 75-76: adopted or adopted in substance. 77-81: rejected as subordinate. COPIES FURNISHED: Karen Barr Wilde, Executive Director Education Practices Commission 301 Fla. Education Center 325 W. Gaines St. Tallahassee, FL 32399-0400 Kathleen M. Richards, Administrator Professional Practices Services 352 Fla. Education Center 325 W. Gaines St. Tallahassee, FL 32399-0400 Barbara J. Staros, General Counsel Department of Education The Capitol, PL-08 Tallahassee, FL 32399-0400 Attorney Mark Herdman 34650 US 19 North, Suite 308 Palm Harbor, FL 34684 Attorney Bruce P. Taylor 501 1st Ave. North, Suite 600 St. Petersburg, FL 33701
Findings Of Fact The department hereby adopts and incorporates by reference the findings of fact set forth in the Recommended Order.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered which dismisses the administrative complaint filed against Good Samaritan Hospital. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 31st day of October, 1990. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of October, 1990. APPENDIX TO THE RECOMMENDED ORDER The following rulings are made on the proposed findings of fact submitted on behalf of the Petitioner. The proposed findings of fact in paragraphs 1-2, 4, 8, and 10 are adopted in material part by the Recommended Order. The proposed findings of fact in paragraph 3 are adopted in part by the Recommended Order and are rejected in part as being contrary to the findings made. The proposed findings of fact in the first sentence of paragraph 5 are adopted in material part by the Recommended Order. The proposed findings of fact in the second sentence of paragraph 5 are rejected as being an erroneous conclusion. The proposed findings of fact in paragraph 6 are rejected as being unnecessary to the conclusions reached and as being vague. The proposed findings of fact in paragraph 7 are rejected as being unnecessary to the conclusions reached. The proposed findings of fact in paragraph 9 are rejected as being unnecessary to the conclusions reached and for failure to comply with the provisions of Rule 22I-6.031(3), Florida Administrative Code. The following rulings are made on the proposed findings of fact submitted on behalf of the Respondent. The proposed findings of fact in paragraphs 1, 3-17, 19-23, 27-36, and 38-40 are adopted in material part by the Recommended Order. Those findings of fact not adopted are rejected as being subordinate to the findings made or as being unnecessary to the conclusions reached. The proposed findings of fact in paragraph 2 are rejected as being unnecessary to the conclusions reached and is treated as a preliminary matter. The proposed findings of fact in paragraphs 18 and 24-25 are rejected as being subordinate to the findings made. The proposed findings of fact in paragraphs 26, 37, and 41-47 are rejected as being unnecessary to the conclusions reached. COPIES FURNISHED: Darrell White, Esquire William B. Wiley, Esquire McFarlain, Sternstein, Wiley & Cassedy First Florida Bank Building Suite 600 Post Office Box 2174 Tallahassee, Florida 32316-2174 John Rodriguez, Esquire Terry Meek, Esquire 1317 Winewood Boulevard Building One, Room 304 Tallahassee, Florida 32399-0700 James A. Farrell, Esquire Good Samaritan Hospital P.O. Box 3166 West Palm Beach, Florida 33402 Sam Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Linda K. Harris General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
Findings Of Fact New findings of fact have only been made in accord with the limited mandate/remand jurisdiction of the appellate court. Otherwise, findings of fact contained in the recommended order of Hearing Officer R. T. Carpenter entered September 18, 1985, have been adopted and incorporated by reference. To the extent the adopted original findings impact on the new findings, they have been adopted, following review of the record and the parties' submissions, for content. Any language from the original recommended order which has not been adopted is rejected in accord with the court's limited remand. Paragraph 1 (including footnote 1) of the original recommended order entered in this cause, copy attached as Exhibit "A", is adopted and incorporated by reference. The "service area" at issue was disputed by the parties. HRS District 9 encompasses Palm Beach, Indian River, Okeechobee, Martin and St. Lucie counties. Paragraph 3 of the original recommended order entered in this cause, copy attached as Exhibit "A", is adopted and incorporated by reference. Only the second and third sentences of paragraph 4 of the original recommended order entered in this cause, copy attached as Exhibit "A", are adopted and incorporated by reference. Paragraph 5 including (footnote 3) of the original recommended order entered in this cause, copy attached as Exhibit "A", is adopted and incorporated by reference. See also new finding of fact 8 infra. The Network 19 representative, who was similarly qualified, calculated a need for five additional stations but his methodology, calculations, and ultimate result is rejected for reasons clear from the remand opinion dealing with application by Mr. Moutsatos of the wrong population data and for use of an incorrect "service area" as set forth in new finding of fact 7 infra. As noted, the geographic location wherein the applicant, West Boca, seeks to locate, is Boca Raton, Palm Beach County, Florida, a county within HRS District 9. Rule 10-5.11(18), Florida Administrative Code, does not define "service area." District 9 has not been subdivided by either the local health council or HRS. The original application filed by West Boca indicated the proposed service area would be Palm Beach County. At the administrative hearing, West Boca, over Boca Raton AKC's and Delray AKC's objections, was permitted to introduce an amended application which designated a sub-area of Palm Beach County as its "service area", and the original recommended order entered herein recognized such an abbreviated area. Contrariwise, the HRS final order ruled that Palm Beach County was the appropriate service area to be used in applying the need methodology contained in the rule. Because this aspect of the final order was affirmed by the First District Court of Appeal, it becomes "law of the case" and Palm Beach County must be used as the service area for applying the methodology to this applicant. State v. Stebile, 443 So.2d 398 (Fla. 4th DCA 1984), Marine Midland Central v. Cote, 384 So.2d 658, (Fla. 5th DCA 1980). However, because the parties' submissions have insinuated this element of "service area" into the remand consideration of this cause, it may be noted that the record is clear that at all times relevant (including but not limited to the date West Boca's application was deemed complete, the date the application was preliminarily reviewed by HRS, and the date of hearing) HRS used Palm Beach County as the appropriate "service area" as contemplated by Rule 10- 5.11(18). West Boca has failed to demonstrate within the evidence received at the prior hearing that a smaller area should be defined for purposes of these proceedings. This determination is made notwithstanding evidence of desirable driving times for end stage renal dialysis (ESRD) patients and superfluous language employed by HRS' expert witness, Ms. Dudek, to the effect that although HRS policy and procedure always utilized Palm Beach County, a sub-area need determination is not an inappropriate measure of need for health planning purposes. These latter elements have been considered but are not persuasive that a smaller sub-area is appropriate in the face of sound health planning reasons for not using smaller than county sub-areas. The present submissions of West Boca on remand also fail to demonstrate any compelling reason to depart from normal HRS policy and procedure. In evaluating an application for a CON for a proposed chronic renal dialysis facility, HRS utilizes the methodology contained in Rule 10-5.11(18), Florida Administrative Code. The First District Court of Appeal has ruled that the need for the West Boca facility must be determined utilizing the "1983-84 population data as received into evidence at the prior hearing" and determining need for the proposed dialysis center one year from the date that the application is deemed complete by HRS. West Boca's application was deemed complete in February of 1983. The 1984 population of the service area (Palm Beach County) was 689,325. The 1984 new patient acquisition rate was 197.29 per million. The 1984 service area mortality rate was 23.8 percent. This data was gathered by the District 9 Health Council and the HRS Office of Community Medical Facilities from ESRD providers for the calendar year 1984. In calculating the need under the ESRD methodology the first variable is "current ESRD patients by census for service area." At the administrative hearing in this case, Elizabeth Dudek, Community Medical Facilities Consultant for HRS concluded that 4 stations were needed. (See original Finding of Fact 5, adopted in new Finding of Fact 5 supra.) However, Ms. Dudek also testified that this "patient census" number was 260. Ms. Dudek obtained this "260" figure from the Florida ESRD Network 19 First Quarter Report 1985. She totaled the in-patient census figures for the Palm Beach County facilities to obtain this figure. However, since that figure represents only in-center patients, from which the second variable ("ESRD patients on home dialysis") is to be subtracted, the patient census number of 260 as given by Ms. Dudek and as contained in HRS exhibit 1 is in error. The correct number for the first variable in the ESRD methodology can only be determined by adding in-center patients and home dialysis patients (260 + 24 284). HRS is required to correct any factual errors within its knowledge. Balsam v. HRS, 486 So.2d 1341 (Fla. 1st DCA 1986). Since the patient census in HRS exhibit 1 is in error, the correct figure should be substituted. Once this is done, the correct procedure for calculating the need for a proposed ESRD facility in Palm Beach County, which application was deemed complete in 1983, is as follows: Current ESRD patients by census for service area (Palm Beach County) 284 Less ESRD patients on home dialysis 24 Plus new ESRD patients per 1 million population for one year [computed using 1984 new patient acquisition rate multiplied by 1984 projected population] 136 Less projected number of ESRD patients to receive home dialysis training 12 Less number of ESRD patients receiving transplant operations for one year 7 Less number of unsuccessful transplants for one year 0 Less ESRD patient mortality for one year [In calculating need under the ESRD methodology, if the "patient census" number is changed, then the variable "ESRD patient mortality for one year" will also change. Therefore, the patient mortality is determined by the following procedure: mortality rate based on experience for service area applied to the subtotal of previous calculations (284-24+136-12-7-0--377; 377 x 23.8 percent 90). See Rule 10-5.11(18)(b)1. Florida Administrative Code and HRS exhibit 1.] 90 Plus 10 percent of current and projected ESRD patients on home dialysis 4 Equals number of patients requiring chronic dialysis services for one year in the service area 291 The Rule also provides that 80 percent of the capacity of four patients per station per week is to be utilized, yielding a factor of 3.2. This is divided into the number of patients requiring chronic dialysis services for one year in the service area (291). The dividend, 91, is the number of stations needed in the service area, less the 84 existing stations, for a net need of seven stations in Palm Beach County in 1984. (Note that where permitted all figures have been "rounded" to the nearest whole number). Petitioners identified some relatively minor errors in input data and calculations. These errors would not, however, significantly change the so- called "hard numbers" stated above in new Finding of Fact 8. The more significant error of Ms. Dudek described therein is purely one of arithmetic and its required correction, in no way does violence to that witness' correct application of the rule methodology. Both the Applicant and Petitioners presented additional expert testimony of health care consultants. Not surprisingly, their conclusions tended to reduce the need on one hand (Petitioners) and increase it on the other (Applicant). Although their testimony is incorporated in those considerations discussed in new Finding of Fact 11 (adopting original recommended order paragraphs 11-24 inclusive), it is rejected as to modification of the data utilized and generated by the HRS witness. 11. Paragraphs 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22 (see also new findings of fact 5-8,) 23, and 24 of the previous recommended order entered in this cause, copy attached as Exhibit "A", are adopted and incorporated by reference.
The Issue Whether the Respondent discriminated against the Petitioner by failing to promote the Petitioner as set forth in the claim.
Findings Of Fact The Petitioner was an employee at the South Florida State Hospital (the Hospital) from October 15, 1979, until approximately October 31, 1998. On the latter date, a private company assumed full management of the hospital. From that time neither the Respondent nor its predecessor (Florida Department of Health and Rehabilitative Services) has maintained management or administration of the facilities. Prior to October 31, 1998, the Hospital was operated by a State of Florida agency. As of October 31, 1998, the Petitioner ceased to be a State of Florida employee. The Petitioner is a black female. On or about May 6, 1997, the Petitioner applied and interviewed for a job at the Hospital. She sought the position of Unit Treatment and Rehabilitation Director. At that time, the Hospital advertised two open positions for Unit Treatment and Rehabilitation Director. Three applicants were ranked for the open positions. Among the three, the Petitioner was ranked third by the selection committee. At or near the same time, the administrator of the Hospital received notice that he would have to cut positions from his budget. This slashing of employee positions was in response to budget demands created at the agency level. It had nothing to do with the job performances of employees at the Hospital. In fact, the Petitioner has always received favorable employee performance evaluations. She was a valued employee at the Hospital and was considered to be hard working by peers and supervisors alike. Nevertheless, when faced with the directive to cut positions, the administrator elected to eliminate open or unfilled positions. Pertinent to this case is the slot that the Petitioner would have filled had it not been eliminated. At least under one theory, the Petitioner would have been promoted to Unit Treatment and Rehabilitation Director had the position not been deleted. The promotion would have happened because one of the higher-ranked applicants for the job chose to reject the Hospital's offer of employment. Thus as the third-ranked applicant, the Petitioner would have been selected. Notwithstanding the foregoing, the Petitioner maintained she should have received the position of Unit Treatment and Rehabilitation Director that was filled by an individual named Driscoll. She maintains that although Driscoll was the highest-ranked applicant, she was equally or better qualified for the promotion. Driscoll is a white male. Prior to his employment at the Hospital, Driscoll had served as the director of a short-term residential facility. He had also been the director of case management for a hospital and had supervised other case managers and support staff. The Petitioner had no similar or equivalent supervisory experience. The Petitioner had never supervised employees to any level of supervision as demonstrated by Driscoll at the time of the selection process. The advertised opening sought an individual with "a bachelor's degree and four years of professional direct services experience in a social, rehabilitative or health care treatment program, two of which must have been in a supervisory capacity." The Hospital's consideration of the Petitioner's role as a "lead worker" was a generous allowance. Technically, the Petitioner did not meet the job description requirements. Additionally, the Petitioner's advanced degree did not qualify her for the position of Unit Treatment and Rehabilitation Director. The advertisement for the position of Unit Treatment and Rehabilitation Director provided that a: . . . masters degree in health, special education or one of the behavioral or rehabilitative sciences can substitute for one year of the required [sic] nonsupervisory experience. A doctorate degree in health, special education or one of the behavioral or rehabilitative sciences can substitute for the required [sic] nonsupervisory experience. The Petitioner did not hold either the referenced master's degree or doctorate degree. The Petitioner was not an equally qualified or a superiorly qualified applicant for the position of Unit Treatment and Rehabilitation Director. Nevertheless, when she was not chosen for the position the Petitioner wrote a memorandum to the Commission to complain about the selection of Driscoll. The memorandum stated: A blatant campaign of racism reigns at South Florida State Hospital. Most recently, the hospital advertised for the position of Unit Treatment and Rehabilitation Director. Two (2) positions were to be filled as a result of that advertisement. Qualified applicants were interviewed from within the hospital. There were two (2) Afro-American and three (3) Anglo-Saxon applicants. Of the two (2) Afro-American applicants applying, I met all of the qualifications to fill one (1) of the positions. Over the dissent of others on the interviewing committee, Patricia Espinosa Thomson (acting hospital administrator) re-advertised the position(s). On September 12, 1997, the Commission acknowledged receipt of the Petitioner's Memorandum of June 27, 1997, and, in accordance with a Worksharing Agreement with the Equal Employment Opportunity Commission (EEOC), the complaint was forwarded to the Miami District Office of the EEOC. This complaint became the subject matter of the instant case. The Commission's notice to the Petitioner provided: Within 35 days of notice of EEOC's Letter of Determination regarding the above referenced complaint, you may request the FCHR to review the final finding and orders of the EEOC by requesting a Substantial Weight [sic] Review. There is no evidence regarding whether the Miami District issued a Letter of Determination. It is undisputed, however, that the Commission did not issue its Notice of Determination until October 9, 2001. The Notice of Determination represented that the Respondent was advised of the Petitioner's claim in January of 1998. The Notice of Determination also recognized that the Respondent had asserted that the claim was "time-barred" and that it would not provide information regarding the claim. Based upon the inference found in Rule 60Y-5.003(4), Florida Administrative Code, the Commission entered a determination of cause. The Commission apparently did nothing to timely investigate the complaint, did not act within 180 days of its filing, and did not notify the Hospital that its records should be maintained in connection with the allegations of this case. When the Hospital went to private management all public records that had been maintained were stored or destroyed according to agency rules. There was no effort to conceal or destroy records related to this matter. The Hospital administrators faced the daunting tasks of trimming the Hospital FTEs, preparing for and transitioning to the private company, and organizing records for storage. There was no effort to single Petitioner out for discriminatory purposes. When eventually questioned regarding this case, the Department elected not to participate in the investigation as under the then known precedent it was not required to do so. The Department's decision predated Joshua v. City of Gainesville, 768 So. 2d 432 (Fla. 2000). Both parties claim prejudice as a result of the delays in pursuing this cause. The Petitioner maintains that records that would have helped her assessment of the matter have been either lost or destroyed. The Respondent maintains that witness unavailability, loss of records, and the fact that it does not even manage the Hospital anymore compounds its inability to appropriately respond to the Petitioner's claim. What is certain is the fact that the Department cannot award the position to the Petitioner. Further, even at the time in question, the Hospital could not have awarded the position to the Petitioner since the position had been eliminated. The only way the Petitioner could have gotten the position would have been if Driscoll had been removed. And, as previously noted, the Petitioner was not equal to or superior to Driscoll in her qualifications for the position. In June 2002, the instant case was heard on a motion to dismiss. That motion was granted. The conclusions of law from the Recommended Order of Dismissal found that the Division of Administrative Hearings does not have jurisdiction over the subject matter of this proceeding. Despite that conclusion, the Commission entered an Order Remanding Petition for Relief from an Unlawful Employment Practice. Accordingly, this matter was re-opened and scheduled for hearing.
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 Petitioner's claim. DONE AND ENTERED this 25th day of March 2003, in Tallahassee, Leon County, Florida. ___________________________________ J. D. Parrish Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Hearings 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 this 25th day of March, 2003. COPIES FURNISHED: Paul Flounlacker, Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Randy A. Fleischer, Esquire 4801 South University Drive, Suite 3070 Davie, Florida 33328 Sondra R. Schwartz, Esquire Department of Children and Family Services 201 West Broward Boulevard, Suite 502 Fort Lauderdale, Florida 33301
Findings Of Fact Petitioner, Good Samaritan Hospital (GSH), is a hospital with emergency room services located in West Palm Beach, Florida. GSH is licensed under Chapter 395, Florida Statutes. Respondent, Department of Health and Rehabilitative Services (DHRS), is the designated state agency responsible for the regulation of hospitals pursuant to Chapter 395, Florida Statutes. On or about June 12, 1989, DHRS filed an Administrative Complaint against GSH alleging that GSH had, on the evening of November 30, 1988, failed to provide neurosurgical treatment to a patient presented to its emergency room by the West Palm Beach Fire Department Emergency Medical Services in violation of Sections 395.0142, 395.0143, and 401.45, Florida Statutes. The Administrative Complaint notified GSH that DHRS intended to levy an administrative fine against it in the amount of $10,000.00. On February 1, 1989, Department of Health and Rehabilitative Services (DHRS) issued PDRL Letter Policy No. 02-89 (letter policy), which purports to discuss the requirements of Section 395.0142, Florida Statutes. The following appears as paragraph 9 of the letter policy under the portion styled "Policy Statement": 9. If a hospital provides an "ongoing" service and/or specialty and is specifically requested to accept a "stabilized" patient from a transferring hospital not providing such service and/or speciality, the hospital must accept such transfer for treatment. If specialized staff is not "on duty" or readily available, coverage for such service must be arranged by the hospital to which the patient will be transferred. Failure to accept will be considered a violation of this statute. The following findings of fact are based, in part, on the stipulation of the parties: As of November 30, 1988, the date of the incident which is the subject of the administrative complaint, DHRS had not notified GSH of any rule or policy interpreting Sections 395.0142, 395.0143, and 401.45, Florida Statutes. As of November 30, 1988, no rule existed which stated a specific requirement that hospitals which provide neurosurgery in their emergency rooms must staff or provide on-call neurosurgery services on a continuous basis, i.e., twenty-four (24) hours per day, 365 days per year. As of November 30, 1988, no rule had been promulgated which contained the requirements of paragraph 9 of the letter policy. The following findings are based, in part, on admissions made by DHRS: Paragraph 9 of the letter policy is an agency statement of general applicability that implements, interprets, or prescribes law or policy. Paragraph 9 of the letter policy is an agency statement which imposes a requirement not specifically required by statute or by an existing rule. The letter policy was distributed to hospital administrators at all of Florida's licensed hospitals. The letter policy was primarily drafted by Connie Cheren, Director of DHRS' Office of Licensure and Certification, and by Larry Jordan, Chief of DHRS' Office of Emergency Medical Services, following meetings and consultations with staff. Neither Ms. Cheren nor Mr. Jordan is an attorney. The letter policy was sent out over Ms. Cheren's name. The DHRS employees who investigated the incident which occurred at GSH on November 30, 1988, initially submitted a report dated March 7, 1989, which found no violation by GSH. Thereafter, the investigators were provided a copy of the policy letter by their supervisor and advised to submit an amended report based on paragraph nine. The letter policy was used and relied on by DHRS investigators, at the direction of their supervisor, to submit their Amended Investigative Report. The amended report found a violation by GSH. DHRS relied, in part, on the letter policy in determining whether to file an administrative complaint against GSH.
The Issue The issue is whether Petitioners’ request for arbitration under the Florida Lemon Law was timely.
Findings Of Fact Petitioners took delivery in Florida of a 1995 Saturn automobile on September 16, 1994. Thirteen months after taking delivery, Petitioners returned the car to a Saturn dealer for repairs to the cruise control. At this time, the car had less than 9000 miles on it. About 12 months later, Petitioners returned the car to the dealer twice more in the same week with problems with the cruise control. The mileage at the time of the third repair attempt was 17,298. By letter dated March 13, 1997, and received four days later, Petitioners notified the manufacturer of the problems with the cruise control. Petitioners then filed a claim with the manufacturer’s informal dispute settlement program on April 28, 1997. The program operator, BBB Autoline, issued a decision on May 9, 1997, denying the claim because it was untimely filed. Petitioners filed their request for arbitration under the Florida Lemon Law on May 21, 1997. Respondent has determined that the request is untimely, and this hearing addresses that determination.
Recommendation It is RECOMMENDED that the Department of Agriculture and Consumer Services enter a final order denying Petitioners’ request for arbitration. DONE AND ENTERED this 17th day of December, 1997, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 17th day of December, 1997. COPIES FURNISHED: H. R. and T. J. Reagan, pro se 5601 Duncan Road, No. 96 Punta Gorda, Florida 33982-4754 Attorney Rhonda Long Bass Department of Agriculture and Consumer Services Room 515 Mayo Building Tallahassee, Florida 32399-0800 Richard Tritschler, General Counsel Office of the General Counsel Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0800 Bob Crawford, Commissioner Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0800
