The Issue Whether or not the Department of Banking and Finance is required by law to transmit $2,159.41 to the State of Florida Department of Education or $2500.00 to the Petitioner.
Findings Of Fact DOE, through its Office of Student Financial Assistance, functions as a guarantee agency for purposes of the guaranteed student loan programs. In this capacity, DOE issues a loan guarantee to a participating lender, such as a bank, when the lender has applied for the guarantee in connection with making a student loan to a student borrower. If the student borrower defaults on repaying the loan to the lender, the lender submits to DOE a claim for DOE to repay the loan to the lender. When DOE repays the loan to the lender, the promissory note evidencing the debt is assigned to DOE which then pursues collection of the loan against the defaulting student borrower. On or about November 18, 1988, Petitioner Leonard K. Williams applied for a guaranteed student loan to be made by the Florida National Bank. On or about December 11, 1988, DOE issued its guarantee and the loan was made by the bank to Petitioner. Petitioner's first payment to repay the loan was due on February 1, 1990. He made no payments then or thereafter. On July 1, 1990 he was in default. DOE, as the guarantee agency, paid the bank's claim on December 27, 1990 and the bank assigned the promissory note evidencing Petitioner's indebtedness to DOE. Petitioner purchased a winning Florida Lottery ticket for the Play 4 drawing of November 19, 1991. On November 26, 1991, Petitioner submitted his claim to DOL to claim the prize of $2,500.00. On November 26, 1991, DOE certified to DOL that Petitioner had an outstanding defaulted student loan and requested that the lottery prize money won by Petitioner be transmitted to the Comptroller to be credited toward the Petitioner's student loan debt. The total principal and interest accrued on that debt as of December 11, 1991 was $2,159.41. On December 4, 1991, Petitioner requested from DOE a form captioned, "Physician's Certification of Borrower's Total and Permanent Disability." On January 3, 1992, DOE received the completed form signed by Petitioner's physician, Anne L. Rottman, M.D. Dr. Rottman treated Petitioner from August 18, 1986 through July 19, 1990, treating him for chronic cervical and lumbar spinal pain. She was unable to state when Petitioner's condition began or when he became unable to work, as the condition and disability commenced prior to the date she first saw him on August 18, 1986. Petitioner's condition was static during the time she treated him. Petitioner was unable to work during the time she treated him.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Banking and Finance enter a final order which withholds $2,159.41 from Petitioner's lottery winnings and transmits that sum to the Department of Education and which also transmits the balance of $340.59 to Petitioner. Since the money has already been effectively transmitted as recommended, the Final Order could simply ratify those prior transmittals. DONE and RECOMMENDED this 17th day of September, 1992, at Tallahassee, Florida. COPIES FURNISHED: Scott C. Wright ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The De Soto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17 day of September, 1992. Assistant General Counsel Office of the Comptroller The Capitol, Suite 1302 Tallahassee, Florida 32399-0350 Leonard K. Williams 1425 NE 13th Street Gainesville, Florida 32601 Leonard K. Williams Post Office Box 490955 College Park, Georgia 30349 Louisa Warren, Esquire Department of Lottery 250 Marriott Drive Tallahassee, Florida 32301 Charles S. Ruberg Assistant General Counsel State Board of Education The Capitol, Suite PL-08 Tallahassee, Florida 32301 Honorable Gerald Lewis Comptroller, State of Florida The Capitol, Plaza Level Tallahassee, Florida 32399-0350 William G. Reeves General Counsel The Capitol, Room 1302 Tallahassee, Florida 32399-0350
Findings Of Fact Petitioner, Julia B. Fiorentino, is presently employed by the Duval County School Board (Board) as Assistant Principal for Curriculum at Fort Caroline Junior High School in Jacksonville, Florida. From 1949 until 1959, petitioner was a teacher in the North Carolina public school system. In August, 1960, she began employment with what is now the Duval County School Board and established membership on that date in the Teacher's Retirement System (TRS). She worked continuously for the Board until June, 1964 and made all required contributions into the TRS during that period of time. On June 4, 1964, while employed as a teacher at Terry Parker High School, petitioner was granted maternity leave by the Board for the period of July 1, 1964 through July 1, 1965 in order to adopt a child. On July 16, 1964, she made application for refund of all contributions previously paid into the TRS through June 30, 1964. This amount totaled $1,264.92. A warrant was subsequently issued by the State on August 25, 1964 and Fiorentino cashed the warrant at a later time. When the application for refund was submitted to the State, the Board certified that Fiorentino had terminated employment with the Board as of June 30, 1964. When petitioner made application for maternity leave and withdrawal of her contributions, she did not inquire nor was she told by any Board employee of the consequences of withdrawing the contributions and terminating membership in the TRS for purchasing out-of-state service on her date of retirement. Instead, she was under the impression that she could repay the contributions, plus interest, before retirement and reestablished her prior membership date as of August, 1960. Fiorentino later decided that she did not wish to take maternity leave and was rehired by the Board as a full-time employee effective September, 1964. She was re-enrolled in the TRS and has made the required contributions to the plan since that date. At the same time she left her teaching position in June, 1964, Fiorentino was employed as a part-time instructor at Florida Junior College in Jacksonville. This employment continued at least until she again became a full- time employee with the Board in September, 1964. It is disputed as to whether Fiorentino made contributions to the TRS while employed on a part-time basis. However, this is immaterial to the resolution of the issue herein. At some point in early 1983, Fiorentino made inquiry with respondent, Department of Administration, Division of Retirement, to determine her retirement benefits. She also repaid the $1,264.92 with interest previously withdrawn in 1964 which by then amounted to $3,147.05. When she sought to claim the ten years out-of-state service in computing her benefits, she was advised that in order to receive credit for that time, she must pay the "total cost" of her salary during those years, or approximately $79,000. This was because her TRS membership date was September 1, 1964, and any membership date after October 1, 1963 caused the claimant to be subject to the total cost method. Had her membership date been August, 1960, when she was first employed by the Board, the required payment would have been reduced to approximately $6,000, which represented the salary earned multiplied by 8 percent plus interest. A Department bureau chief explained that under long-existing Department policy, as authorized by Subsection 238.05(4) Florida Statutes, only full-time employees are permitted to be members of the TRS. Therefore, her employment with a junior college did not qualify Fiorentino for membership in the TRS. Further, in order to receive a refund from the TRS, a teacher must terminate his or her employment. If reemployed again, the membership date becomes effective on the date of employment, and cannot be made retroactive even if the contributions are repaid. A member is not dropped from membership in the TRS by going on a leave of absence, as Fiorentino did, but if the contributions are withdrawn, membership is automatically terminated.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the request of Julia B. Fiorentino to have her membership date in the Florida Retirement System established as of August, 1960 be DENIED. DONE and ENTERED this 12th day of January, 1984, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of January, 1984. COPIES FURNISHED: J. Clark Hamilton, Jr., Esquire 801 Blackstone Building 233 East Bay Street Jacksonville, Florida 32302 Augustus D. Aikens, Jr., Esquire 2639 North Monroe Street Suite 207C-Box 81 Tallahassee, Florida 32303 Nevin G. Smith Secretary Department of Administration Room 435, Carlton Building Tallahassee, Florida 32301
Findings Of Fact There are no disputed issues of material fact which would preclude entry of this summary recommended order of dismissal based on the undisputed facts and law involved. Petitioner was dismissed from his career service position with Respondent state agency. On appeal, the dismissal was reversed. Petitioner was off the state agency payroll and did not work for seven months. In backpay proceedings before the Public Employees Relations Commission (PERC), Petitioner was awarded backpay for only one month. Petitioner was paid for the one month that pay was awarded, but not for the other six months. Petitioner received retirement credit, annual leave credit, and sick leave credit for that one month awarded and paid, but not for the other six months.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the Department of Management Services enter a final order denying all claims of Petitioner and dismissing the Petition. RECOMMENDED this 12th day of April, 1993, at Tallahassee, Florida. ELLA JANE P. DAVIS 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 12th day of April, 1993.
The Issue Whether Respondents acted as a loan broker by assessing or collecting advance fee payments from borrowers in violation of sections 687.14(4)(a) and (b) and 687.141(1), Florida Statutes, and, if so, the appropriate penalty to be imposed against Respondents.
Findings Of Fact OFR is responsible for the administration and enforcement of chapter 687, Florida Statutes. On December 13, 2010, First Solutions, Inc. (“First Solutions”), was incorporated in the state of Florida. At all times material hereto, Andrew Mangini has been the sole officer/director of First Solutions. The mailing address of First Solutions and Mr. Mangini are the same: 830 Hawthorn Terrace, Weston, Florida 33327. At all times material hereto, First Solutions has been the sole owner of the fictitious name, Credit One. Credit One was registered as a fictitious name with the State of Florida, Department of State, on December 22, 2010. The mailing address for the fictitious name of Credit One is 830 Hawthorn Terrace, Weston, Florida 33327. On July 20, 2010, Unsecured Loan Source II, Inc., was incorporated in the state of Florida. At all times material hereto, Michael Puglisi has been the sole officer/director of Unsecured Loan Source II, Inc. The mailing address of Unsecured Loan Source II, Inc., is 5340 North Federal Highway, Suite 201, Lighthouse Point, Florida 33064. On January 22, 2009, Internet Transaction Center, Inc., was incorporated in the state of Florida. At all times material hereto, Mr. Mangini and Mr. Puglisi have been officers/directors of Internet Transaction Center, Inc. The mailing address of Internet Transaction Center, Inc., is 830 Hawthorn Terrace, Weston, Florida 33327. During the time in which Mr. Puglisi was an officer/director of Internet Transaction Center, Inc., his mailing address was 5340 North Federal Highway, Lighthouse Point, Florida 33064. At all times material hereto, Respondents operated and conducted business as Unsecured Loan Source and Credit One Total. On December 24, 2010, Mr. Mangini opened a business bank checking account at TD Bank, N.A., in the name of First Solutions, Inc., d/b/a Credit One. In early 2012, Nicole Gentry sought to obtain an unsecured personal loan over the internet. Ms. Gentry’s internet search led her to Unsecured Loan Source. Ms. Gentry contacted Unsecured Loan Source by telephone and spoke with a representative named “Ed” about securing an unsecured personal loan. Ms. Gentry provided “Ed” with certain personal, credit, and bank account information to withdraw a loan fee of $499.00. Ms. Gentry paid the $499.00 loan fee in order to obtain a personal loan from Unsecured Loan Source. The $499.00 fee was debited from Ms. Gentry’s bank account shortly after she submitted her online application for the loan, and the fee was deposited directly into the TD business bank checking account of First Solutions, Inc., d/b/a Credit One. Subsequently, Ms. Gentry received an email requesting additional information, and she provided the information requested. However, Ms. Gentry never received a loan. In August 2011, Rosa Saenz of Taft, California, attempted to obtain an unsecured personal loan. Ms. Saenz’s internet search led her to Credit One Total. Ms. Saenz contacted Credit One Total and spoke with a representative named “Nick” about securing an unsecured personal loan in the amount of $5,000. Ms. Saenz completed a form titled “Credit One Total Payment by Check Authorization Form” and faxed it to Credit One Total. The form reflects that Credit One Total is located at “5340 North Federal Hwy #201 Lighthouse Point, FL 333064 Ph. 312-554-5980 Fax 954-531-1440.” In the form, Ms. Saenz provided Credit One Total with certain personal, credit, and bank account information, so that Credit One Total could withdraw an initial installment loan fee of $267.00. Ms. Saenz made the initial installment fee payment of $267.00, and, within a couple of weeks, she made a second installment fee payment to Credit One Total. Ms. Saenz did not specify the amount of the second installment. No direct evidence was presented that the two payments made by Ms. Saenz were, in fact, deposited into the First Solutions business bank checking account at TD bank. The bank records received in evidence do not include records from the year 2011, and begin with the year 2012. However, the business checking account of First Solutions was utilized by Credit One Total. The TD bank records reflect that checks made payable to Credit One Total were deposited directly into the business bank checking account of First Solutions, Inc., d/b/a Credit One. Both payments were made by Ms. Saenz as an advance fee in order that she would obtain the loan from Credit One Total, and so that Credit One would repair her credit report. The credit repair, however, was ancillary to Ms. Saenz’s principal reason for making the advance fee payments--to obtain a personal loan. Although Ms. Saenz paid the two installment fee payments to Credit One Total for a loan, she never received a loan. The persuasive and credible evidence adduced at hearing clearly and convincingly establishes that Respondents assessed or collected advance fee payments from two borrowers, Ms. Gentry and Ms. Saenz. The clear and convincing evidence adduced at hearing establishes that Respondents acted as a loan broker by assessing or collecting advance fee payments from Ms. Gentry and Ms. Saenz. Respondents did not have an exemption from section 687.14 in order to be considered a loan broker. OFR failed to prove by persuasive, credible, and clear and convincing evidence that Respondents acted as a loan broker with regard to anyone other than Ms. Gentry and Ms. Saenz.2/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Office of Financial Regulation, enter a final order finding Respondents operated as a “loan broker” by assessing or collecting advance fees in two instances in violation of section 687.141(1), Florida Statutes; imposing a total fine not to exceed $10,000; and ordering Respondents to cease and desist from all such activity. DONE AND ENTERED this 15th day of February, 2016, in Tallahassee, Leon County, Florida. S DARREN A. SCHWARTZ 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 15th day of February, 2016.
The Issue The issues for determination are: (1) whether Petitioner, Amr Sallam's, education meets the "substantially equivalent" criteria as set forth in Florida Administrative Code Rule 61G15-20.007; and, if so, (2) whether, by virtue of its reviews of Petitioner's education and the grounds listed in the two related previously issued notices of denial, Respondent, Board of Professional Engineers, is estopped from denying Petitioner's application.
Findings Of Fact Petitioner is an applicant to take the Fundamentals Examination. Unless an applicant is otherwise exempted, the Fundamentals Examination is the first of two examinations an applicant must pass to be licensed as a professional engineer in Florida. Prior to applying to take the Fundamentals Examination, on two previous occasions, Petitioner applied to take the Principles and Practice Examination, the second examination required for licensure as a professional engineer in Florida. Petitioner's Educational Credentials and Teaching Experience Petitioner received a bachelor's degree in engineering from Alexandria University in Egypt in 1994. Petitioner received a master's degree in engineering from Alexandria University in Egypt in 1998. Petitioner received a doctorate degree in engineering from the University of South Florida (USF) in Tampa, Florida, in 2004. After completing his undergraduate degree, Petitioner began teaching at Alexandria University. Petitioner taught there for seven years, including the time he was in the master's degree program. In 2002, prior to receiving his doctorate degree, Petitioner taught geotechnical engineering at USF, which has an engineering program that is accredited by the Accreditation Board for Engineering and Technology, Inc. (ABET). In the summer of 2006, after receiving his doctorate degree, Petitioner taught a geotechnical design course at the University of Central Florida (UCF). The engineering program at UCF is accredited by ABET. At the time of this proceeding, Petitioner was employed by an engineering company. However, until Petitioner is licensed as a professional engineer, he cannot get a promotion within that company. "Substantial Equivalency" Requirement for Applicants with Degrees from Foreign Institutions Florida Administrative Code Rule 61G15-20.0071/ requires that applicants for licensure as professional engineers, who have foreign degrees, document that the engineering program they completed is substantially equivalent to an ABET accredited engineering program. Pursuant to Rule 61G15-20.007(4), Petitioner obtained an evaluation of his education in Egypt through an evaluation service, Joseph Silny and Associates (Silny). The evaluation conducted by Silny was a course-by- course evaluation of Petitioner's academic credentials at Alexandria University, in relation to the United States courses and semester credit hours. However, the Silny evaluation was limited to courses that Petitioner took in order to earn his bachelor of science degree in civil engineering. The Silny evaluation did not have Petitioner's transcript from USF, and, thus, none of those courses was considered or included in that evaluation. Based upon a review of Petitioner's academic credentials from Alexandria University from 1989 to 1994, the Silny evaluation concluded that Petitioner's bachelor's degree in civil engineering was not substantially equivalent to such degrees earned at a regionally accredited institution of higher learning in the United States. Specifically, the Silny evaluation determined that Petitioner had 27.5 of the required 32 semester credit hours in the Mathematics and Basic Sciences area and 1.5 credits of the required 16 semester credit hours in the Humanities and Social Sciences area. To satisfy the requirements in Mathematics and Basic Sciences, the Silny evaluation indicated that Petitioner needed 4.5 semester credit hours, "including a course in probability and statistics and an additional course in either general chemistry or calculus-based physics." The Silny evaluation awarded Petitioner 1.5 semester credit hours in Humanities and Social Sciences based on an English course he completed during his undergraduate studies. To satisfy the requirement in this area, the Silny evaluation found that Petitioner needed an additional 14.5 semester credit hours. The Silny evaluation indicates that Petitioner took 5.5 semester credit hours in physics and lists the course as a one-class and not a two-class sequence. Although the Silny evaluation listed the physics course as one course, the credible testimony of Petitioner was that he took two classes, one after the other, to receive the 5.5 semester credit hours. Moreover, the credible testimony of both Petitioner and the Board's executive director was that they have never seen and are unaware of any physics course that offers 5.5 semester credit hours. Given this undisputed testimony, the weight of the evidence established that the 5.5 semester credit hours for physics were not for one physics course, but for a two-class sequence. Despite the deficiencies noted in the Silny evaluation, Petitioner was not concerned. First, with respect to the deficiencies cited in Mathematics and Basic Sciences, Petitioner knew that the Silny evaluation did not include a review of his transcript from USF, which showed six additional hours of higher mathematics. Second, when Petitioner applied to take the Principles and Practice Examination and his application was being considered, the Board's Rule 61G15-20.007(5) waived the Humanities and Social Sciences requirement for applicants, such as Petitioner, who had a post baccalaureate degree in engineering from a university in the United States that had an accredited undergraduate engineering degree program. The Silny evaluation report dated March 31, 2005, was advisory. Pursuant to Rule 61G15-20.007(3), the Board's Education Advisory Committee (EAC) makes the final decision regarding equivalency of programs and recommends to the Board whether an applicant should be approved for admittance to the examination. Petitioner's Initial Application Filed on April 2005 On April 14, 2005, Petitioner submitted his initial application to the Board. This application was to take the Principles and Practice Examination. At the time Petitioner submitted his initial application, he had not taken the Fundamentals Examination. The Silny evaluation was forwarded to and considered by the Board in its determination of whether Petitioner's bachelor's degree from Alexandria University was substantially equivalent to a degree from an ABET accredited engineering program at a regionally accredited institution of higher learning in the United States. Prior to the Board taking final action on Petitioner's initial application, Petitioner's educational credentials were reviewed by the Board's EAC. The EAC is responsible for reviewing and evaluating the educational credentials of applicants holding foreign degrees. Typically, members of the EAC are engineering educators who have special expertise in discerning and comparing education courses. Dr. Anderson was the evaluator for the EAC that considered Petitioner's educational credentials in connection with his April 2005 application. Dr. Anderson has a doctorate degree in engineering and has been in education for many years and testifies as an expert for the Board. Like the Silny evaluation, Dr. Anderson determined that in the Mathematics and Basic Sciences area, Petitioner had 27.5 semester credit hours from courses taken at Alexandria University. However, in addition to those 27.5 semester credit hours in Mathematics and Basic Sciences, Dr. Anderson also determined that Petitioner had an additional six semester credit hours for two, three-semester credit hours of mathematics courses he took at USF, as part of his doctorate degree program. These mathematics classes, Numerical Methods III and Vector Analysis III, were higher level courses. The EAC's July 2005 evaluation determined that Petitioner should receive credit for the higher level mathematics courses taken at USF. Dr. Anderson's evaluation determined that Petitioner had a total number of 33.5 semester credit hours in Mathematics and Basic Sciences (27.5 from Alexandria University and six from USF), 1.5 credits more than the required number. However, Dr. Anderson noted on the educational credential review form that to satisfy the Mathematics and Basic Sciences course requirement, Petitioner still needed to take a course in "Prob [Probability] and Stat [Statistics]." Initially, Dr. Anderson wrote on the educational credentials review form that to meet the Mathematics and Basic Sciences requirements, Petitioner "needs 4.5 hours of Math and Bas Sci [Basic Science], which must include a Prob [Probability] & Stat [Statistics] course and a second course in chem [Chemistry] and phy [Physics]." However, Dr. Anderson crossed out that entire statement and wrote that Petitioner "[n]eeds to take a course in Prob [Probability] & Stat [Statistics]." The EAC educational credentials review form listed the following courses in Humanities and Social Sciences for which Petitioner could be given credit: English, 1.5 credits; American Civilization, three credits; Introduction to Music, three credits; and The Family, three credits. Although Petitioner did not have the 16 semester credit hours required in Humanities and Social Sciences to document "substantial equivalency," the EAC determined that this was not an impediment to Petitioner's satisfying this requirement. On the educational credentials review form, in the Humanities and Social Sciences section, Dr. Anderson wrote, "Ph.D. 2004." This notation reflected the Board's Rule 61G15- 20.007(5), in effect when Petitioner submitted his application, which waived the Humanities and Social Science requirements for applicants who had a doctorate degree in engineering from an institution with an ABET accredited undergraduate engineering degree program. On July 13, 2005, Dr. Anderson and Gerry Miller, Ph.D., P.E., a Board member, signed a form on which they recommended that the Board deny Petitioner's application because he needed a course in probability and statistics. The Board accepted the EAC's determination regarding Petitioner's educational deficiencies and recommendation that Petitioner's April 2005 application be denied. By letter dated July 15, 2005, the Board denied Petitioner's application to take the Principles and Practice Examination. Petitioner received the letter by certified mail on August 1, 2005. The letter cited three reasons for the denial: (1) Petitioner's educational deficiencies; (2) his lack of engineering experience; and (3) his failure to take the Fundamentals Examination. With regard to educational deficiencies, the Board's letter stated only that Petitioner was deficient in Mathematics and Basic Sciences. The letter stated the basis of this determination and indicated how this deficiency could be satisfied, as follows: Based on the evaluation from JSA&A [Silny] and review for compliance with 61G15-20.007, Florida Administrative Code, it was determined that you [Petitioner] were deficient in the following areas: 1.0 semester credit hours in Mathematics & Basic Sciences-A course in Probability & Statistics is needed. Except for the deficiencies in Mathematics and Basic Sciences, the Board's July 15, 2005, letter indicated that Petitioner had satisfied the requirements in Rule 61G15-20.007. The letter expressly stated that Petitioner had "satisfied" the 16-semester credit hour requirement in Humanities and Social Sciences. According to the letter, the second reason Petitioner's application was denied was that he had not taken the Fundamentals Examination. The Board noted that Petitioner had applied for consideration of "waiving the Fundamentals Examination under Section 471.013(3)(d)[sic],"2/ but was ineligible for such waiver. In explaining the reason Petitioner was not entitled to a waiver, the letter stated the following: Section 471.013(3)(d),[sic][3/] F.S. addresses Licensure in Florida by examination requires Ph.D. waiver applicants to have an ABET accredited Ph.D., along with having taught full time for a minimum of three years, in order to qualify for the Fundamental Waiver. The teaching requirement has not been met, therefore, your waiver was denied. The denial letter explained that eligibility for waiver of the Fundamentals Examination required applicants to have a doctorate degree and three years of full-time teaching experience. However, the letter failed to state that waiver provisions required that the full-time teaching experience be after Petitioner received his doctorate degree. Third, and finally, the letter indicated that Petitioner's application was considered under Subsection 471.013(1)(a)1., Florida Statutes (2006), which requires four years of engineering experience. The letter stated, Your application was considered under the provision of Section 471.013(1)(a)1[.], Florida Statutes (F.S.). Under that provision, you receive credit of four (4) years for your degree, and you must verify four (4) years of engineering experience. The Board has determined that you do not evidence four years of experience at this time. Petitioner received the denial letter and assumed that the information contained therein was correct. In a Petition dated August 18, 2005, Petitioner responded to the Board's denial letter. In regard to his teaching experience, Petitioner indicated he had taught geotechnical engineering at USF for one year. He also indicated that prior to that, he taught Geotechnical Engineering I and II, college-level courses in Egypt for five years (from 1996 through 2001). Petitioner did not state whether these teaching positions were full-time or part-time, but the teaching experience in Egypt and at the USF was before he received his doctorate degree. In the Petition dated August 18, 2005, Petitioner also noted that based on his calculations, he had more than the four years of engineering experience required in Subsection 471.013(1)(a)1., Florida Statutes (2006). Rule 61G15-20.002 sets out the criteria for determining engineering experience. The mere assertions in the Petition did not establish that Petitioner had the prescribed engineering experience. Petitioner did not dispute that he needed a statistics course. Instead, in reliance on the Board's July 15, 2006, letter regarding his educational deficiencies, Petitioner enrolled in a three-semester credit hour statistics course at USF in August 2005. After Petitioner completed the statistics course in December 2005, a copy of the Petitioner's transcript reflecting such completion was sent to the Board. The Board's executive director testified that it was reasonable for Petitioner to rely on the July 15, 2005, denial letter. Had the July 15, 2005, denial letter indicated that Petitioner was missing any additional courses, he would have taken all such courses during the fall of 2005, the same semester he took the statistics class. Petitioner's Second Application Filed January 2006 In or about January 2006, after completing a three- semester credit hour statistics course, Petitioner submitted an application to the Board to take the Principles and Practice Examination. As of January 2006, Petitioner had never applied for or taken the Fundamentals Examination, although he did not meet the eligibility requirements to waive that examination. Specifically, he did not have at least three years of full-time teaching experience at the baccalaureate level or higher after receiving his doctorate degree. See § 471.013(1)(d), Fla. Stat. (2006). By letter dated March 29, 2006, the Board denied Petitioner's second application to take the Principles and Practice Examination. According to the Board's March 29, 2006, letter, Petitioner's application was considered under Subsection 471.013(1)(a) and (c), Florida Statutes (2006), but was denied because Petitioner lacked the requisite engineering experience and had not passed the Fundamentals Examination. The letter states in relevant part the following: Your application was considered for eligibility under Section 471.013(1)(a)[and](c), and [sic] Florida Statutes. Under these provisions, you receive credit of four (4) years for your degree. You must demonstrate 4 years of engineering experience and a passing score on the Fundamentals of Engineering exam. Your application was denied for failure to evidence having passed the NCEES 8 hour Fundamentals examination. Additionally, pursuant to Section [Rule] 61G15-20.002(11), F.A.C. you must evidence experience at the time of application. The Board has determined that you have not demonstrated four years of professional experience at the time of application. The Board's March 29, 2006, letter did not indicate that Petitioner had any educational deficiencies in the areas listed in Rule 61G15-20.007(2). After reading the March 29, 2006, letter, Petitioner was assured that his education had been approved, since no deficiencies were mentioned in the letter. Moreover, Petitioner had successfully completed the statistics course, which the denial letter dated July 15, 2005, indicated he needed to take to satisfy the Mathematics and Basic Sciences requirements.4/ Petitioner's Third Application Filed in April 2006 Relying on information in the March 29, 2006, letter, on or about April 19, 2006, Petitioner submitted an application to take the Fundamentals Examination. On or about May 17, 2006, the Board's EAC evaluated Petitioner's educational credentials and recorded information pertinent to its evaluation on an educational credential review form.5/ This evaluation was performed by Board members, Chris Bauer, Ph.D., P.E., and David Bloomquist, Ph.D., P.E. According to the form, the EAC used the Silny evaluation and transcripts from USF and the University of North Carolina for its course-by- course evaluation. Based upon its course-by-course evaluation, the EAC concluded that Petitioner's application should be denied because its review indicated the educational criterion is not substantially comparable to EAC/ABET and Rule 61G15-20.007. In the comment section of the May 17, 2006, educational credentials review form, the EAC noted that Petitioner needed 1.5 semester credit hours in Mathematics and Basic Sciences and 2.5 semester credit hours in Humanities and Social Sciences. The EAC specified that in Mathematics and Basic Sciences, Petitioner needed 1.5 hours in chemistry or physics "for sequence." No specific courses were listed as needed to satisfy the Humanities and Social Sciences requirements. The Board adopted the EAC's findings made on May 17, 2006, regarding Petitioner's educational deficiencies and also followed the EAC's recommendation that Petitioner's April 2006 application be denied. By letter dated May 18, 2006, the Board denied Petitioner's application to take the Fundamentals Examination based on a determination that Petitioner had educational deficiencies in Mathematics and Basic Sciences and in Humanities and Social Sciences. The letter stated that because Petitioner has a bachelor's degree from Egypt, the Board reviewed the Silny evaluation to determine substantial equivalency to EAC/ABET and compliance with Rule 61G15-20.007. With regard to the educational deficiencies, the Board's May 18, 2006, letter stated, in relevant part, the following: [Rule] 61G15-20.007, F.A.C., states that to document substantial equivalency to an ABET accredited engineering degree, the candidate must demonstrate: 32 semester credit hours in Mathematics and Basic Sciences - Deficient * * * 16 semester credit hours in Humanities and Social Sciences - Deficient * * * The areas of deficiencies noted above are identified as follows: 1. [Rule] 61G15-20.007, F.A.C. requires 32 semester credit hours of Mathematics & Basic Sciences. In reviewing the evaluation from Josep Silny & Associates [Silny]; [sic] the Board determined that you have evidenced 30.5 semester credit hours in Mathematic [sic] and Basic Sciences. You are deficient in 1.5 semester credit hours in Mathematics and Basic Sciences including a secondary course in Chemistry and/or Calculus based Physics. [5/] 2. Rule 61G15-20.007 requires 16 semester credit hours in Humanities and Social Sciences. You have evidenced 13.5 semester hours. In reviewing the evaluation from Josep Silny & Associates, the Board determined that you are deficient 2.5 semester credit hours in Humanities and Social Sciences. . . . The 13.5 semester credit hours in Humanities and Social Sciences was based on a 1.5-semester credit hour English class Petitioner took at Alexandria University and four, three- semester credit hour classes that were listed on a University of North Carolina transcript. The Board's May 18, 2006, letter denied Petitioner's application because it concluded that he was deficient by 1.5 semester credit hours in Mathematics and Basic Sciences, including a secondary course in chemistry and/or calculus-based physics and by 2.5 semester credit hours in Humanities and Social Sciences. The Board's determination, relative to Petitioner's educational deficiencies, in the May 18, 2006, letter is contrary and inconsistent with the Board's two prior decisions. In the first denial letter dated July 15, 2005, the Board ratified the EAC's July 13, 2005, educational credential review and decision, which determined that Petitioner needed one semester credit hour in Mathematics and Basic Sciences, including a probability and statistics course.7/ Prior to May 1, 2005, and when Petitioner initially applied to take the Principles and Practice Examination, Rule 61G15-20.007(5) waived the Humanities and Social Sciences requirements for applicants with post-baccalaureate degrees. The Board's March 29, 2006, letter did not indicate that Petitioner had any educational deficiencies, even though the waiver provision for Humanities and Social Sciences requirements was no longer in effect. According to the second denial letter, Petitioner's application was denied because he lacked the required engineering experience and had not passed the Fundamentals Examination. The deficiency in Mathematics and Basic Sciences noted in the Board's third denial letter dated May 18, 2006, was based on the Silny evaluation that indicated Petitioner was 4.5 semester credit hours short in Mathematics and Basic Sciences. After reducing the 4.5-semester credit hour deficiency by the three semester credit hours Petitioner earned in the statistics course, the Board concluded that Petitioner needed 1.5 semester credit hours in Mathematics and Basic Sciences. This calculation was erroneous in that Petitioner was not granted credit for two higher level mathematic courses he took at the USF as part of his doctorate program. These two courses, Numerical Methods III and Vector Analysis III, were each three semester credit hours. Therefore, Petitioner should have been given credit for an additional six semester credit hours. By appropriately giving Petitioner credit for 27.5 semester credit hours for courses completed at Alexandria University and three semester credit hours each for Numerical Methods III, Vector Analysis III, and Statistics, he has a total of 36.5 semester credit hours in Mathematics and Basic Sciences, 4.5 semester credit hours more than the 32 hours required. Deficiency in Humanities and Social Sciences is Discovered After May 2006 Denial Letter During this proceeding, the Board's executive director revealed that "sometime this past summer" (the summer of 2006), he discovered that an error had been made regarding Petitioner's credits/deficiencies in Humanities and Social Sciences. This error came to light after it was discovered that the Board had erroneously given Petitioner credit for four courses listed on a University of North Carolina transcript, which had been mistakenly placed in Petitioner's file. The four, three semester-hour courses for which Petitioner was given credit were English, American Civilization, The Family, and Introduction to Music. There was no evidence or testimony to indicate that Petitioner was responsible in any way for this "transcript" error. In fact, none of Petitioner's various applications to the Board listed the University of North Carolina as a school Petitioner ever attended. Petitioner acknowledged that he never attended the University of North Carolina or took any of the courses listed on that transcript. As noted on the Silny evaluation, Petitioner has completed only one course in the Humanities and Social Sciences area, the 1.5-semester credit hour English class he completed at Alexandria University. The waiver of Humanities and Social Sciences requirement for applicants with doctoral degrees is no longer in effect. That wavier provision was deleted from Rule 61G15- 20.007 pursuant to an amendment, which became effective on May 1, 2005. As a result of the transcript error, Petitioner has a deficiency of 14.5 semester credit hours in the Humanities and Social Sciences area, and not the 2.5-semester credit hour deficiency noted in the Board's May 18, 2006, letter. Therefore, Petitioner needs an additional 14.5 semester credit hours in appropriate courses to satisfy the Humanities and Social Sciences requirement. As of the date of this proceeding, the Board had not notified Petitioner of the mistake in its May 18, 2006, letter, regarding his deficiencies in Humanities and Social Sciences. Action on Petition for Formal Hearing Petitioner filed a Petition for Formal Hearing with Respondent on June 13, 2006. The Board held a duly-noticed meeting on July 26 and 27, 2006. Respondent did not act on the Petition for Formal Hearing. Thereafter, on July 30, 2006, Petitioner filed a Petition for Writ of Mandamus with the First District Court of Appeal. The Board did not advance any legitimate explanation as to why Petitioner's Petition for Formal Hearing filed six weeks prior to the July 26 and 27, 2006, meeting was not placed on that agenda. The Board's agendas are usually set about one month before the meeting. By letter dated August 24, 2006, the Board notified Petitioner that his Petition for Formal Hearing would be considered by the Board of Professional Engineers on October 26, 2006. On September 13, 2006, the First District Court of Appeal granted Petitioner's Petition for Writ of Mandamus and directed the Board to rule on the Petition for Formal Hearing within 15 days of the date of the Order. On or about September 25, 2006, the Board forwarded Petitioner's Petition for Formal Hearing to the Division of Administrative Hearings. This was more than three months after the Petition was filed with the Board.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Board of Professional Engineers, enter a final order which (1) finds that Petitioner has met the Mathematics and Basic Sciences requirement; (2) conditionally approves Petitioner's application to take the Fundamentals Examination in accordance with Florida Administrative Code Rule 61G15-21.007(5); and (3) allows Petitioner to take the Fundamentals Examination the next time it is administered. DONE AND ENTERED this 19th day of March, 2007, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD 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 19th day of March, 2007.
The Issue The issue presented for decision herein is whether or not the Respondents, Andrew DeGraffenreidt and Circle D. Realty, are guilty of conduct, set forth hereinafter in detail, amounting to fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme or device, culpable negligence and breach of trust in a business transaction and have failed to account and deliver rental money all in violation of Subsections 475.25(1)(b)and (d), Florida Statutes.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and entire record compiled herein, I hereby make the following relevant factual findings. Petitioner, Department of Professional Regulation, Division of Real Estate (hereinafter sometimes called the Petitioner), is a state government licensing and regulatory agency charged with the responsibility and duty to prosecute the Administrative Complaints pursuant to Chapters 20, 120, 455 and 475, Florida Statutes and rules promulgated pursuant thereto. Respondent, Andrew DeGraffenreidt, is now and was at all times material, a licensed real estate broker having been issued license number 0320099. Respondent, Circle D Realty, Inc., Is now and was at all times material hereto, a corporation licensed as a real estate broker in Florida having been issued license number 0221329. At all times material hereto, Respondent DeGraffenreidt was an officer of, and was the qualifying broker for Respondent, Circle D Realty, Inc. Respondents, in their capacity as a real estate broker, entered into an agreement with Emmett and Louis Anderson, during August, 1984 to handle the rental management of certain residential property owned by the Andersons located at 320 Northwest 20th Avenue, Fort Lauderdale, Florida. The management agreement was by its terms, effective for a period of one year beginning August 21, 1984 and ending August 22, 1985, and continuing from year to year until either party terminated the agreement by giving notice to the other party sixty (60) days prior to the end of any yearly renewal period. The Andersons, as owners, granted Respondents, inter alia, the following authority: Full management and control of said property with authority to collect rents and other monies and securities from tenants, to negotiate leases and renewals thereof, to have minor repairs made and to purchase necessary supplies and to pay all bills and charge same to owner, to serve vacate notices upon tenants and to prosecute in the name of the owner, to hire, discharge and pay from owners' funds any and all employees necessary to the maintenance and operation of the building, and were clothed with such general authority and powers as maybe necessary or expeditious to carry out the spirit and intent of the management agreement with respect to the renting, management and operation of the property. For such services, Respondents would receive 10 percent of gross rentals and other monies. Respondent was authorized to deduct from the owners' funds held by them, any amount due Respondent for any charges incurred on the owners' behalf. At the time when Respondents entered into the management agreement with the Andersons, there were two outstanding mortgages on the subject property in favor of Associates Financial Services Company and California Federal of Florida, Inc. Both mortgages were delinquent at the time Respondents agreed to manage the Andersons' property. When Respondent assumed management of the subject property, the tenants were paying monthly rent of $450.00, an amount insufficient to cover the outstanding mortgages. During some undetermined time during August 1984 and June, 1985, Respondent raised the rent from $450.00 to $600.00, an amount agreed to by the tenants who were desirous of purchasing the property. The management agreement between Respondent and the Andersons was for management of the property and not one for the payment of the mortgages. However, during some unspecified period of time, Mrs. Emmett Anderson, by telephone, requested Respondent's office manager, Mary MacDonald, to mail the mortgage payments of $338.48 and $207.00 to the various mortgage companies. Ms. MacDonald agreed to accept Mrs. Anderson's request and have rent monies mailed directly from Respondent to the two financial institutions without consulting Respondent, DeGraffenreidt. Respondent DeGraffenreidt, upon learning of the verbal agreement with Mrs. Anderson and the office manager, MacDonald, informed Ms. MacDonald that she would have to assume the task of paying and mailing mortgage payments each month and he (DeGraffenreidt) would cash the rental check and give her money orders to be mailed and/or paid to the respective financial institutions. As early as February, 1984, the mortgages were delinquent for the Andersons' property and both institutions were contemplating instituting foreclosure proceedings. (Respondent's Exhibit 2). All written communications between the financial institutions concerning the delinquency were mailed to the Andersons who had relocated to Boston, Georgia. Unbeknownst to Respondent DeGraffenreidt, the mortgage payment to California Federal was increased from $207.00 to $296.00 per month. California Federal refused one payment for $207.00 which had been sent by Respondent after the amount was increased to $296.00. Respondent DeGraffenreidt requested Anderson to advise him of the correct amount of the mortgage payment to be sent to California Federal. Mr. Anderson did not respond to this request. During October and November, 1985, Respondent DeGraffenreidt advised the Andersons that additional monies were needed from them to bring the mortgages current. Respondent DeGraffenreidt again telephoned the Andersons and advised them during early December, 1985 that he needed $1,000.00 to prevent California Federal from foreclosing on the mortgage. At that time, Mr. Anderson requested that the Respondents try to sell the property. Respondent DeGraffenreidt contacted some business associates and investors trying to arrange a sale for the Anderson property. However, no investors were interested based on the asking price and all potential buyers lost interest in the Andersons' property when they learned that the two outstanding mortgages exceeded the marketable value for the property. During June and July, 1986, Respondent DeGraffenreidt attempted to reconcile the Anderson account and determined the exact amount that the Andersons were owed based on some returned payments which Circle D received from the financial institutions and which were placed in an escrow account. Respondent determined this amount to be approximately $557.35, which amount was tendered to the Andersons via a money order during the course of the hearing. Respondents maintained a ledger which correctly showed the monies due and owing to the Andersons based on monies returned by the financial institutions. The Andersons never provided Respondents a written account of any change in the mortgage payments. On or about January, 1986, the Andersons notified the Johnsons (tenants) to pay the rent directly to the Andersons. The Andersons never advised the Respondents that they were terminating the management contract which required written notice from the Andersons.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Administrative Complaint filed herein be DISMISSED. DONE and RECOMMENDED this 24th day of November, 1987, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of November, 1987. COPIES FURNISHED: Arthur R. Shell, Jr., Esquire Department of Professional Regulation - Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Andrew DeGraffenreidt and Circle D. Realty, Inc. 2123 Northwest Sixth Street Ft. Lauderdale, Florida 33311 Harold Huff, Executive Director Department of Professional Regulation, Division of Real Estate 400 West Robisnon Street Post Office Box 1900 Orlando, Florida Tom Gallagher, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 William O'Neill General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: Petitioner Thomas B. Webb, Jr. has been employed by the State of Florida, Department of Transportation for twenty-four years and is currently a member of the Florida Retirement System. While a student at the University of Florida, petitioner was employed at the Hume Library from September of 1948 through September of 1950. He worked continuously at the library during this period of time at the rate of approximately 20 to 25 hours per week. His nighttime working hours, from 7:00 p.m. to 10:00 p.m., were regular and his daytime hours varied depending upon his class schedule. Mr. Webb worked when school was not in session due to holidays or breaks between sessions. The Hume Library was open during these periods to provide service to the agricultural experiment stations around the State. He also worked for a few weeks after his graduation from the University of Florida. While working at the Hume Library, petitioner's duties included supervisory responsibilities; manning the circulation desk; checking out, receiving, shelving and indexing books and periodicals; assisting students with bibliographic research; servicing orders from the eight to ten agricultural experiment stations around the State; and closing up the library at night. During the time that he was employed at the library, approximately one-half of the employees were students and the other half were non-students. As of October 22, 1979, the duties which petitioner performed were being performed by both full time regular employees whose job classification title is Clerk III and by student assistants. Petitioner could not recall whether he received annual leave, sick leave, insurance or other employee benefits while working at the Hume Library. He was paid on an hourly basis. He replaced a prior employee when he started to work at the library, and someone replaced him when he left. The quarterly check tapes from the Office of the Comptroller, which the Division of Retirement uses on a daily basis in carrying out its functions, show that petitioner received salary payments for 19 months between the periods of October 1948 through September of 1950. The petitioner was unable to explain why payments for one month in 1948, four months in 1949 and one month in 1950 were not reflected on these documents. He is certain that he worked continuously during these years in order to support his family and that he gas paid for his work. He was not able to produce any documentary evidence to substantiate his employment or salary for these six months. Petitioner is seeking retirement service credit under the Florida Retirement System for his employment at the Hume Library between September of 1948 and September of 1950. Be is willing to make all payments necessary for him to claim This prior service.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that: petitioner is entitled to prior service credit for purposes of retirement for his employment at the University of Florida Hume Library during the period of September 1948 through September 1950, inclusive; and the amount of contribution owed by petitioner be calculated by attributing the average amount of his nineteen reported payments to the six unreported payments. Respectfully submitted and entered this 16th day of May, 1980, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: John Radey, Esquire Holland and Knight Post Office Drawer 810 Tallahassee, Florida 32302 Diane K. Keisling, Esquire Assistant Division Attorney Cedars Executive Center 2639 North Monroe Street Suite 207C - Box 81 Tallahassee, Florida 32303 McMullian, III State Retirement Director Cedars Executive Center 2639 North Monroe Street Tallahassee Florida 32303 ================================================================= AGENCY FINAL ORDER =================================================================
Findings Of Fact Respondent contracted to build a gymnasium and a science research center on the campus of Florida Technological University. petitioner was among the people respondent hired to perform this contract, which had project number BR-FTU-172. Petitioner began working for respondent on or about January 12, 1976. At that time, respondent's agent Ward hired petitioner as a carpenter's helper with the understanding that petitioner would be paid at the laborers' rate of five and thirty hundredths dollars ($5.30) per hour. The prevailing wage for carpenters on project number BR-FTU-172 was eight and thirty-five hundredths dollars ($8.35) per hour. As reflected in their respective proposed recommended orders, the parties are in agreement that petitioner worked for respondent doing carpentry from March 31, 1976, until his employment ended, and it is so found as a fact. From March 31, 1976, until petitioner left respondent's employ, petitioner worked as a carpenter for one thousand five hundred eighty-three hours during regular working hours and for ten and a half hours overtime. At the same time that petitioner was hired, one Lester Dove was hired as a carpenter. Petitioner worked with Lester Dove as a carpenter's helper for their first full two weeks on the job, at the end of which Lester Dove was laid off. Petitioner helped Lester Dove erect wooden forms for the pouring of concrete columns. Afterwards, he continued to work at erecting wooden forms for concrete columns. The forms consisted of two plywood halves, approximately sixteen feet long and weighing approximately one hundred pounds each. It took more than one man to stand the forms upright. After the forms were in place, they had to be clamped together Carpenters built the column forms on the job site, but outside the building under construction. Petitioner worked inside, placing the forms in position. Sometimes the forms had to be shortened or otherwise altered "right there on the floor, not back at the saw." Testimony of Carlo Rinaldi. Generally, however, it was a matter of transferring measurements from blue- prints to the floor, nailing a template to the floor, fitting the form halves together around the template, clamping the form together, then checking to make sure the column was plumb and the corners were square. After Lester Dove's departure, petitioner, Ralph Pierson, whom respondent hired as a carpenter, and one Carl, whom respondent hired as a laborer, worked together as a team erecting forms for pouring the concrete columns through March 30, 1977. During this time petitioner worked not as a carpenter, but as a carpenter's helper, paid at the prevailing rate for laborers. For the entire time petitioner worked for respondent, he was paid at the rate for laborers. STATEMENT REQUIRED BY STUCKEY'S OF EASTMAN, GEORGIA v. DEPARTMENT OF TRANSPORTATION, 340 So.2d 119 (Fla. 1st DCA 1976 Paragraph one of respondent's proposed findings of fact has been adopted, in substance, as has been paragraph two of respondent's proposed findings of fact. Petitioner's testimony was that he worked for respondent from mid-January 1976 to mid-January 1977. Petitioner's composite exhibit No. 1 contains xeroxed reproductions of 49 paycheck stubs. Petitioner's affidavit alleges that he worked a total of 2,031 3/4 hours during regular working hours. Respondent, in paragraph five of its proposed findings of fact, concedes that petitioner worked 1,583 1/2 hours during regular working hours from and after March 31, 1976. Between January 12, 1976, and March 30, 1976, inclusive, there were 57 working days, or 456 working hours. Adding 456 to 1,583 1/2 yields 2,039 1/2. Thus the parties are only eight and one quarter hours, or approximately one working days apart and it is respondent who gives petitioner credit for the longer total work time. Petitioner claims more work time before March 31, 1976, than respondent concedes, but respondent's proposed finding of fact as to the starting date is more favorable to petitioner. Paragraph two of petitioner's proposed findings of fact has been adopted, in substance. Paragraph three of petitioner's proposed findings of fact has not been adopted because the testimony as to general carpentry, as opposed to erecting column forms, did not go to "the entire period of employment." Paragraph four of petitioner's proposed fact findings has not been adopted, either as to regular hours or as to overtime hours. Respondent's concession of ten and a half hours overtime has been accepted as true. Paragraph five of petitioner's proposed findings of fact has been adopted, in substance. Paragraph one of respondent's proposed findings of fact has been adopted, in substance. Paragraph three of respondent's proposed findings of fact has been adopted, in substance. Petitioner as much as conceded that he worked as a carpenter's helper or laborer until Dove left. After that, until the end of March, he continued doing essentially the same work. The hearing officer was faced with the question whether the three man team putting up column forms consisted of a carpenter and two helpers or a helper and two carpenters. Petitioner did not meet his burden to show that he was one of two carpenters rather than one of two helpers. Paragraph four of respondent's proposed findings of fact has been adopted, in substance, except that no findings have been made as to the date of petitioner's first written claim to respondent or as to the contents of respondent's bookkeeping records, because no evidence was adduced on these matters. Paragraph five of respondent's proposed findings of fact has been adopted, in substance.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That the contracting authority pay petitioner the sum of four thousand eight hundred seventy-seven dollars and seventy-one cents ($4,877.71). That the contracting authority pay respondent the balance of moneys heretofore withheld, pursuant to Section 215.19 ()(b) Florida Statutes (1975), with respect to project number BR-FTU-172. DONE and ENTERED this 28th day of June, 1977, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Mr. T. M. Woods, Esquire Suite 1465, CNA Tower 255 South Orange Avenue Orlando, Florida 32801 Mr. Bromley Dyson Dyson and Company Post Office Drawer F Pensacola, Florida 32581 Mr. Patrick G. Emmanuel, Esquire Post Office Drawer 1271 Pensacola, Florida 32596 Mr. Jack C. Koons Department of General Services 512 Larson Building Tallahassee, Florida 32304 Mr. Luther Moore Administrator of Prevailing Wage Department of Commerce Division of Labor 1321 Executive Center Drive - East Tallahassee, Florida 32301
The Issue Whether Respondent, First Commerce Credit Union (“First Commerce”), discriminated against Petitioner, Ian H. Williams, in violation of the Florida Human Rights Act; and, if so, what penalty should be imposed?
Findings Of Fact Mr. Williams is a 29-year-old, African-American male who contends he was discriminated against by First Commerce when he applied for a position as a teller at that institution. First Commerce is a credit union doing business in Tallahassee, Florida. It has more than 15 employees. On December 2, 2016, Mr. Williams submitted an employment application with First Commerce. He was seeking a part-time position as a teller, identified internally by First Commerce by Job ID No. 10201603. In his application, Mr. Williams indicated that he had received a bachelor’s degree from the University of Colorado, but that he had no experience as a teller in a bank or credit union. He also answered a question in the application about his experience handling cash; he indicated he had “None.” However, in his resume attached to the application, Mr. Williams noted that he had “Adept skill in infrastructure of cash operations.” The resume did not provide any explanation as to what that skill may have entailed. Ms. Sorne reviewed about 170 applications for the part- time teller position. Her initial review was done to determine which applicants met the minimum requirements for the job, i.e., whether the applicant had teller experience and/or experience handling cash. Ms. Sorne did not know the age, race, or gender of the applicants at that point in time. From her review of Mr. Williams’ application, Ms. Sorne determined that Mr. Williams did not meet the minimum qualifications. That is, she did not interpret the statement concerning “infrastructure of cash operations” as meeting the “cash handling” requirement. Ms. Sorne sent letters by way of email to all applicants who did not meet the minimum requirements. Unfortunately, when she sent the email to Mr. Williams, she selected the wrong “form letter” from her computer drop-down selections. The letter in the email to Mr. Williams stated: “Thank you for taking time to interview for our Teller position at First Commerce Credit Union. It was a pleasure meeting you. Although your credentials are impressive, we have chosen to pursue other candidates that better align with the needs of our company.” In fact, Mr. Williams had not been afforded an interview and had never met Ms. Sorne. He apparently believed the emailed letter was therefore indicative of some discriminatory animus by First Commerce. How he made the connection between the erroneously-selected letter and discrimination was not made clear from the evidence presented at final hearing. Nonetheless, he replied to Ms. Sorne’s email, stating, “I did not interview with you people.” Upon receiving Mr. Williams’ email response, Ms. Sorne called him to explain her mistake in sending the erroneous “form letter” concerning rejection of his application. During the telephone conversation, Mr. Williams simply advised Ms. Sorne that he would be filing a complaint with the FCHR and that he would see her in court within the year. He did not attempt to correct his erroneous application, i.e., he offered no other information concerning his experience handling cash. True to his word, Mr. Williams filed a complaint with FCHR. First Commerce, meanwhile, hired two people to fill the part-time teller position it had advertised. Both of the hired individuals were African-American; one was male and the other was female. At final hearing, Mr. Williams pointed out that the two applicants hired for the teller position may have had less education or experience than he had. He noted that he was a graduate of the University of Colorado (although his application says that he attended there for less than one year), while the two hired applicants attended Florida A & M University. He did not explain why that fact may have contributed to the discrimination against him by First Commerce. However, both of the other applicants had indicated on their application forms that they had teller experience and cash-handling experience. That is, each of them met the minimum requirements for the position. That was enough to get them a job interview. Inasmuch as Mr. Williams’ application said he did not have that experience, he was not chosen for an interview. Mr. Williams presented no evidence whatsoever that he was treated differently from any other applicant based on his race (black, African-American) or his gender (male). At final hearing he raised the issue of discrimination based on age, apparently because one of the competing applicants erroneously indicated on her application that she was “under the age of 18.” That disclosure was later determined to have been a mistake. Age was not a consideration for the part-time teller position anyway. Mr. Williams failed to establish even a prima facie case of discrimination. It is, in fact, difficult to make any connection between the way he was treated and discriminatory practices in general. Mr. Williams appears to have been treated equally with all applicants; there is no evidence that he was discriminated against for any reason.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered dismissing the Complaint filed by Ian H. Williams. DONE AND ENTERED this 29th day of August, 2017, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN 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 29th day of August, 2017. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399 (eServed) Ian H. Williams Apartment 311C 2315 Jackson Bluff Road Tallahassee, Florida 32304 Jason Curtis Taylor, Esquire McConnaughhay, Duffy, Coonrod, Pope and Weaver, P.A. Suite 200 1709 Hermitage Boulevard Tallahassee, Florida 32308 (eServed) Donna Carson Utecht First Commerce Credit Union Post Office Box 6416 Tallahassee, Florida 32314 Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 (eServed)
