The Issue Whether the Appellant has been paid relocation assistance benefits in accordance with the law and applicable regulations.
Findings Of Fact The Appellant, Mr. Alfred J. Harris, lived in a one bedroom mobile home on property identified as Parcel No. 145 on Interstate 95. The area on which Mr. Harris and his wife and daughter lived was needed for the Interstate Highway and Mr. Harris became eligible for relocation assistance funds. Relocation assistance eligibility was found to be Eleven Thousand One Hundred Fifty Dollars ($11,150.00) which was based on the difference between a comparable home and location and the land of Mr. Harris. The eligibility mistakenly did not include the mobile home on Mr. Harris' land. A comparable mobile home and lot was found for Mr. Harris and his family in the general area where he lived which could have been purchased for Twenty-Six Thousand Five Hundred Dollars ($26,500.00) in relocation benefits as well as receiving payment of Fifteen Thousand Three Hundred Fifty Dollars ($15,350.00) for his land. It was not learned until after the computation for relocation assistance was made and paid that Mr. Harris and his wife had living with them a daughter. The fact that the mobile home was a one bedroom home and three people were living there removed the home from the condition of decent, safe and sanitary housing for the occupants therein. Had the computation been made for relocation assistance with the knowledge that the mobile home in which the Appellant lived did not meet the conditions for decent, safe and sanitary housing, the relocation assistance benefits would have been Nine Thousand Two Hundred Fifty Dollars ($9,250.00) which is less Sixteen Hundred Dollars ($1,600.00), the amount for which Mr. Harris sold his mobile home. Mr. Harris was paid Sixteen Hundred Dollars ($1,600.00) more than he would have been entitled to had the Appellee, the Florida Department of Transportation, not made an error with respect to the mobile home which Mr. Harris later sold by transfer upon the buyer assuming the payments of Sixteen Hundred Dollars ($1,600.00). Mr. Harris and his family decided to buy a conventional type home for the sum of Twenty-Six Thousand Two Hundred Dollars ($26,200.00) rather than the comparable mobile home and land found by the Appellee for the Appellant which was valued at Twenty-Six Thousand Five Hundred Dollars ($26,500.00) . Mr. Harris then refunded Three Hundred Dollars ($300.00) to the Appellee from the Eleven Thousand One Hundred Fifty Dollars ($11,150.00) he had received in relocation assistance. The problem of the overpayment by the Appellee to the Appellant was reviewed by the federal government which refused to absorb the relocation benefits overpaid to Mr. Harris in the amount of Sixteen Hundred Dollars ($1,600.00) but he Appellee, Florida Department of Transportation, agreed that inasmuch as it had made the error and overpaid the Appellant Sixteen Hundred Dollars ($1,600.00), it would absorb the mistake and not collect the amount from the Appellant. The Appellant, Mr. Harris, had misunderstood the error of Appellee and the amount of overpayments and was under the mistaken belief that the Department of Transportation, Appellee, owed him additional relocation assistance monies. Thus, he filed a Complaint on February 18, 1976.
Recommendation Dismiss the appeal inasmuch as the Appellee owes no monies to the Appellant. DONE and ORDERED this 28th day of April, 1977, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Philip S. Bennett, Esquire George L. Waas, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32304 Mr. Alfred J. Harris 509 Tumbling Kling Road Fort Pierce, Florida Mr. Joseph A. Alfes, Chief Bureau of Right of Way Department of Transportation Haydon Burns Building Tallahassee, Florida 32304
The Issue The issue in this proceeding is whether Petitioner is entitled to attorney’s fees and costs.
Findings Of Fact This case was filed by Petitioner on behalf of Ida Heaps pursuant to Section 760.35, Florida Statutes. The case alleged that Respondent discriminated against Petitioner, Heaps, based on race when Respondent did not lease a home to Petitioner Heaps. On July 22, 2004, in Tavares, Florida, a one-day hearing was held after which post-hearing recommended orders were filed. Based on the evidence a Recommended Order finding Respondent guilty of a discriminatory housing practice against Ms. Heaps in violation of Section 760.23(1), Florida Statutes, was entered on February 1, 2005. Petitioner was therefore the prevailing party in this matter. The Recommended Order also found that Petitioner was entitled to attorney’s fees and costs; and reserved jurisdiction to determine the amount of fees and costs in the event the parties were unable to agree on such an award. On January 31, 2005, the Commission issued its Final Order approving the Recommended Order. The time limit for appealing the Final Order has passed. Petitioner has not been able to resolve the amount of fees and costs incurred in this matter. As evidence of the amount of attorney’s fees, Petitioner, FCHR, submitted an affidavit outlining the hours and costs spent incurred in the underlying case by its attorney. The requested fees are limited to hours expended on Petitioner’s behalf in DOAH Case No. 04-1593, including time spent in travel and establishing a right to attorney’s fees and costs. Petitioner’s attorney spent a total of 53 hours on this case, which include 46 hours for legal services and seven hours for travel. The hours multiplied by the reasonable rate results in a total of $14,850.00 for attorney’s fees. The Commission’s direct costs total $453.70, which include the travel costs of Petitioner’s attorney and investigator to attend the hearing and the court reporter’s fee. The time spent on this case by the Petitioner’s attorney was reviewed by an outside expert. The expert has found the time to be reasonable and has recommended a reasonable hourly rate, arrived at independently of the Commission and its attorneys and without direction by Petitioner, based on the nature, novelty and complexity of the case, and the expertise of the Petitioner’s attorney in federal and Florida administrative and anti-discrimination law. The expert opined that a rate of $300.00 per hour legal services and $150.00 per hour for travel was reasonable. Respondent did not challenge the affidavit of Petitioner’s or the expert’s opinion. The amount of hours and costs reflected in the affidavit are reasonable for this type of case. Likewise, the hourly fees for such litigation are reasonable for this type of case and the long experience of Petitioner’s attorney. Therefore, Petitioner, FCHR, is entitled to an award of attorney’s fees and costs in the amount of $15,303.70.
The Issue The issue for determination is whether Petitioner is entitled to creditable service in the Florida Retirement System for service in the Florida Virtual School from September 15, 2001, through June 30, 2002.
Findings Of Fact Petitioner is a regular class member of the Florida Retirement System (FRS). On October 23, 2003, Petitioner entered the Deferred Retirement Option Program (DROP) and left her employment on June 30, 2004. Petitioner worked most of her career as a teacher and an administrator for the Pasco County School Board (School Board). The School Board is a local education association (LEA) and a local agency employer within the meaning of Subsection 121.021(42)(a), Florida Statutes (2001). Beginning with the 2001-2002 school year, Petitioner undertook additional employment by working in the Florida Virtual School (FVS) in accordance with former Section 228.082, Florida Statutes (2000).1 Petitioner undertook additional employment to increase the average final compensation (AFC) that Respondent uses to calculate her retirement benefits. From September 15, 2001, through June 30, 2004, Petitioner worked for the LEA and served in the FVS. During the 2001-2002 school year, Petitioner was a full-time employee for the LEA and also served part-time in the FVS. Beginning with the 2002-2003 school year, Petitioner served full-time in the FVS and also worked for the LEA during the summer. The LEA paid Petitioner annual salaries as a full-time employee for all relevant school years and made the necessary contributions to the FRS. The AFC includes compensation Petitioner received from the LEA, and that compensation is not at issue in this proceeding. With one exception, the AFC includes the compensation Petitioner received for service in the FVS. The AFC does not include $6,150 (the contested amount) that Petitioner earned during her first year of service in the FVS from September 15, 2001, through June 30, 2002 (the contested period).2 Sometime prior to April 2004, Petitioner requested that Respondent include the contested amount in her AFC. In a one- page letter dated April 6, 2004 (the preliminary denial letter), Respondent notified Petitioner that Respondent proposed to deny the request. The grounds for denial stated that Petitioner earned the contested amount in a temporary position and that FVS did not join the FRS until December 1, 2001. In relevant part, the preliminary denial letter states: . . . you filled a temporary instructional position as an adjunct instructor whose employment was contingent on enrollment and funding pursuant to Section 60S- 1.004(5)(d)3, F.A.C., copy enclosed. As such, you are ineligible for . . . FRS . . . participation for the time period in question. The School joined the FRS on December 1, 2001 and past service was not purchased for you since you filled a temporary position. Effective July 1, 2002, you began filling a regularly established position with the Florida Virtual High School and were correctly enrolled in FRS. The School has reported your earnings from July 1, 2002, to the present to the FRS. Respondent's Exhibit 2 (R-2). A two-page letter dated June 23, 2004 (the denial letter), notified Petitioner of proposed final agency action excluding the contested amount from her AFC. The only ground for denial stated that Petitioner earned the contested amount in a temporary position. The denial omits any statement that FVS did not join the FRS until December 1, 2001. However, the denial letter includes a copy of the preliminary denial letter and is deemed to include, by reference, the stated grounds in the preliminary denial letter. In relevant part, the denial letter states: By letter dated April 6, 2004 (copy enclosed). . . [Respondent] advised you filled a temporary instructional position as an adjunct instructor from September 15, 2001 through June 30, 2002. We have reviewed the information submitted in your recent letter and maintain our position that you were an adjunct instructor from September 2001 through June 2002, pursuant to Section 60S-1.004(5)(d)3, F.A.C. (copy enclosed). Your employment with the Florida Virtual School during the time period in question was contingent on enrollment and funding. Since you filled a temporary position, the School was correct in excluding you from the [FRS]. This notification constitutes final agency action. . . . R-3 at 1. The legal definition of a temporary position varies depending on whether the employer is a state agency or a local agency. If the employer is a state agency, a position is temporary if the employer compensates the position from an account defined as "an other personal services (OPS) account" in Subsection 216.011(1)(dd), Florida Statutes (2001) (OPS account). If the employer is a local agency, a position is temporary if the position will exist for less than six consecutive months; or as otherwise provided by rule. § 121.021(53), Fla. Stat. (2001). The distinction is based, in relevant part, on the practical reality that local agencies do not maintain OPS accounts for "the fiscal affairs of the state." § 216.011(1), Fla. Stat. (2001). The employer that paid Petitioner the contested amount was not an LEA. Three different employers may have been responsible for payment of the contested amount. Some evidence supports a finding that the employer was the Board of Trustees of FVS (the Board). Contracts of employment for service in FVS identify the employer as the Board.3 The Board has statutory authority over personnel serving FVS and has statutory authority to govern FVS. Other evidence supports a finding that the employer that paid Petitioner the contested amount was FVS. The record evidence identifies the employer that enrolled in FRS and made contributions on behalf of Petitioner as FVS. Finally, there is evidence that the Orange County School Board, acting as the statutorily designated fiscal agent for FVS (the fiscal agent), was the employer that paid Petitioner the contested amount. The contested amount was paid from funds administered by the fiscal agent in the name of FVS. The Board, FVS, and the fiscal agent each exemplify distinct characteristics of a state agency defined in Subsection 216.011(1)(qq), Florida Statutes (2001). The Board consists of seven members appointed by the Governor for four-year staggered terms. The Board is a public agency entitled to sovereign immunity and has authority to promulgate rules concerning FVS. Board members are public officers and bear fiduciary responsibility for FVS. The Board has statutory authority to approve FVS franchises in each local school district. §§ 228.082, Fla. Stat. (2000) and 1002.37, Fla. Stat. (2001). FVS is administratively housed within an office4 of the Commissioner of Education, as the Head of the Department of Education (Commissioner). The fiscal year of FVS is the state fiscal year. Local school districts cannot limit student access to courses offered statewide through FVS.5 The fiscal agent of FVS is a state agency. The fiscal agent receives state funds for FVS and administers those funds to operate FVS for students throughout the state. The Board, FVS, and the fiscal agent each satisfy judicial definitions of a state agency pursuant to "territorial" and "functional" tests discussed in the Conclusions of Law. Each agency operates statewide in accordance with a statutory mandate to serve any student in the state. Each serves students in public and private schools; in charter schools; in home school programs; and in juvenile detention programs. Unlike an LEA, the scope of authority and function of the employer that paid the contested amount to Petitioner was not circumscribed by county or other local boundaries; regardless of whether the employer was the Board, FVS, or the fiscal agent (collectively referred to hereinafter as the employer). The employer did not pay the contested amount from an OPS account. The fiscal agent for FVS is the presumptive repository of funds appropriated for FVS. The fiscal agent is organically structured as a local agency even though it functions as a state agency in its capacity as fiscal agent. Unlike a state agency, an organic local agency does not maintain an OPS account, defined in Subsection 216.011(1)(dd), Florida Statutes (2001), for the "fiscal affairs of the state." The legislature funded FVS during the contested period in lump sum as a state grant-in-aid provided in a line item appropriation pursuant to Subsection 228.082(3)(a), Florida Statutes (2000). The legislature subsequently began funding of FVS through the Florida Education Finance Program (FEFP). Each FVS student with six-credit hours required for high school graduation is included as a full-time equivalent student for state funding. Each student with less than six-credit hours counts as a fraction of a full-time equivalent student. A local LEA cannot report full-time equivalent student membership for courses that students take through FVS unless the LEA is an approved franchise of FVS and operates a virtual school. As student enrollment in FVS increased, the legislature changed the funding formula to avoid paying twice for students in FVS; once to fund FVS and again to fund local LEAs that were authorized to earn FTE funding for students enrolled in FVS. The employer that paid the contested amount to Petitioner was a state agency that did not compensate Petitioner from an OPS account defined in Subsection 216.011(1)(dd), Florida Statutes (2001). Petitioner did not earn the contested amount in a temporary position within the meaning of Subsection 121.021(53)(a), Florida Statutes (2001), and Florida Administrative Code Rule 60S-6.001(62). Respondent argues that Petitioner earned the contested amount in a temporary position in a local agency defined in Subsection 221.021(42), Florida Statutes (2001), and Florida Administrative Code Rule 60S-6.001(36). A temporary position in a local agency is generally defined to mean a position that will last less than six months, except as otherwise provided by rule. By rule, Respondent defines a temporary position to include temporary instructional positions that are established with no expectation of continuation beyond one semester. Fla. Admin. Code R. 60S-1.004(5)(d)3. Respondent supports its argument with limited documentary evidence (the documents). The documents consist of several items. An undated FVS Information Sheet indicates the employer started Petitioner as an adjunct instructor on September 15, 2001. An FVS memorandum dated several years later on March 16, 2004, indicates Petitioner started an adjunct position on September 6, 2001, and includes a parenthetical statement that it was seasonal employment.6 The employer paid Petitioner $3,150 during 2002 as miscellaneous income and reported it to the Internal Revenue Service (IRS) on a "Form 1099-Misc." An undated letter of intent for the 2002-2003 school year, which requests submission before March 8, 2002, indicates that Petitioner intended to continue her adjunct employment status and requested a full-time position if one became available.7 Use of labels such as "adjunct" to describe employment status during the contested period would be more probative if the duties Petitioner performed were limited to the duties of a part-time, on-line instructor. As discussed hereinafter, Petitioner earned the contested amount while occupying a dual- purpose position in which she performed both the duties of an instructor and significant other duties unrelated to those of an instructor. The trier of fact would be required to disregard a substantial body of evidence to find that Petitioner's position was limited to that of a part-time, on-line instructor. The IRS requires taxpayers to report miscellaneous income paid to independent contractors on Form 1099-Misc. Neither the denial letter nor the preliminary denial letter includes a statement that Petitioner occupied a non-employee position as an independent contractor. Judicial decisions discussed in the Conclusions of Law give little weight to the use of IRS Form 1099-Misc in cases such as this one where there is little other evidence of independent contractor status or where the evidence establishes an employer-employee relationship. The record evidence discussed hereinafter shows that Petitioner and her employer enjoyed a continuing employment relationship within the meaning of Florida Administrative Code Rule 60S-6.001(32)(f). Respondent was not a party to the employment contract and did not witness the employment relationship between Petitioner and her employer. Nor did Respondent call a witness from FVS who was competent to testify about events that occurred during the contested period. The testimony of Petitioner is supported by the totality of evidence. In relevant part, Petitioner disclosed to her supervisors at FVS at the time of her employment that she sought employment to enhance her retirement benefits. The proposed exclusion of the contested amount from the AFC is inconsistent with a material condition of employment. Respondent asserts that the documents satisfy requirements for notice and documentation of a temporary position in Florida Administrative Code Rule 6.1004(5). The rule requires an employer to notify an employee at the time of employment that the employee is filling a temporary position and cannot participate in the FRS; and to document the intended length of the temporary position. However, the terms of the documents from Respondent are ambiguous and insufficient to provide the required notice and documentation. The documents did not expressly notify Petitioner she was filling a temporary position that did not qualify as a regularly established position in the FRS. None of the documents use the term "temporary" or "temporary position." The notice and documentation requirements of the rule must be satisfied, if at all, by implication from terms on the face of the documents such as "adjunct," "adjunct position," and "adjunct employment status." Unlike the term "temporary position," neither the legislature nor Respondent defines the term "adjunct." One of the several common and ordinary uses of the term "adjunct" can mean, "Attached to a faculty or staff in a temporary . . . capacity." The American Heritage Dictionary of the English Language, at 21-22 (4th ed. Houghton Mifflin Company 2000). The employer used an undefined term such as "adjunct" as an ambiguous euphemism for a temporary position. The ambiguity of the term "adjunct" is underscored when each document from Respondent is considered in its entirety. The letter of intent form requested Petitioner to indicate whether she intended to continue her "adjunct employment status" and whether she would be interested in "a full-time position." The form did not refer to either a "temporary position," or a "part-time position." Petitioner reasonably inferred that "adjunct employment status" was the part-time alternative to "a full-time position." The inference was consistent with the announced purpose for serving in FVS and the evidence as a whole. Respondent also does not define part- time employment to exclude a regularly established position. The FVS utilized different contracts for adjunct and part-time instructors. The contracts of record pertaining to Petitioner are not contracts for adjunct instructors (adjunct contracts). The contracts are annual contracts. Even if Petitioner were to have signed a contract for adjunct instructors, the contract used for adjunct instructors was ambiguous. In relevant part, the adjunct contract included a caption in the upper right corner labeled, "Terms of Agreement for Part-Time Instructional Employment." (emphasis supplied) As previously found, a part-time position may be a regularly established position. Use of the term "part-time employment" on a contract for an adjunct instructor supported a reasonable inference that the employer was using the terms "adjunct" and "part-time" synonymously to differentiate part-time employment from full-time employment. The employer required Petitioner, unlike adjunct instructors, to sign in on an instructor log sheet and to attend training sessions and staff meetings. Petitioner attended training sessions on September 8 and 22, and October 24, 2001. Petitioner attended other training sessions on February 26 and 27, 2002, and on March 27 and April 10, 2002. The employer also issued office equipment to Petitioner that the employer did not issue to adjunct instructors. Petitioner performed significant duties in addition to those required of a part-time instructor. Petitioner wrote grant applications and assisted in writing a procedures manual for FVS. By November 30, 2001, Petitioner had completed and submitted a federal "Smaller Learning Communities Grant" for $230,000. On December 27, 2001, Petitioner began working on the procedures manual, finalized the work on January 3, 2002, and was listed in the credits in the manual. The additional duties assigned to Petitioner continued through the second semester of the contested period. On February 26 and 27, 2002, FVS asked Petitioner to develop their "FCAT" course for the eighth grade. Petitioner wrote and developed the course. By May 30, 2002, Petitioner had written and submitted three more grant applications and was a member of a team that developed strategies for additional fundraising. For the 2002-2003 school year, Petitioner entered into an annual contract for a full-time non-instructional position, as Grants Manager, and a separate contract for employment in a part-time instructor position. Each contract was terminable only for "good cause" within the meaning of Subsection 1002.33(1)(a), Florida Statutes (2002). The expectation of continued employment is further evidenced by the general business experience of FVS leading up to the contested period. In the 1997-1998 school year, approximately 25 students were enrolled statewide in FVS. In the next three years, enrollment grew to 5,564. Professional staff grew from 27 teachers to 54 full-time teachers. Legislative funding was adequate for the growth FVS experienced, and the legal contingency of enrollment and funding was not a realistic condition of continued employment. There was nothing temporary in the expectations of the employer and Petitioner during the contested period. FVS staff had legitimate business reasons to expect continued student enrollment and legislative funding during the contested period. The employer also had legitimate reasons to expect continued employment of Petitioner based on the individual experience the employer enjoyed with Petitioner, the ongoing and continuous nature of Petitioner's work, and the significant additional duties assigned to Petitioner. The employer, in fact, employed Petitioner continuously after the contested period. When FVS enrolled in the FRS on December 1, 2001, some employees purchased past credit. Petitioner was not on the list of employees for whom past credit was purchased. That omission is consistent with Petitioner's understanding that she was already receiving FRS credit. By rule, Respondent required the employer to make an affirmative disclosure that Petitioner did not occupy a position qualifying for FRS credit. After FVS enrolled in the FRS on December 1, 2001, FVS was required to make contributions to the FRS on behalf of Petitioner for approximately 208 days during the remainder of the contested period. FVS did not make the required contributions to the FRS.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order including in the AFC that portion of the contested amount earned on and after December 1, 2001, and excluding the remainder of the contested amount from the AFC. DONE AND ENTERED this 25th day of March, 2005, in Tallahassee, Leon County, Florida. DANIEL MANRY 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 25th day of March, 2005.
Findings Of Fact The home of Hazel Philpot was licensed as a Shelter Home on 2 October 1979 for a maximum of seven children ages 2 through 12 (Exhibit 1). This license was to expire 6/15/80. to coincide with Sanitation Report On 21 November 1979, the day before Thanksgiving, a 6-months old girl (Melanie) was delivered to Mrs. Brenda Moore, a foster mother licensed by Petitioner. No records accompanied this child, who appeared to be in some discomfort. The baby was accompanied by a bottle full of whole milk with a nipple that had been previously used by an older baby and which did not appear sterile. Mrs. Moore called to find out what formula Melanie was on and was advised to call Respondent's home. Moore then called Philpot. During this phone conversation Mrs. Moore was told that Melanie did not sleep well but would eat anything put before her; that whole milk with vitamins was given to Melanie; that Mrs. Philpot didn't always have money for baby foods and fed mashed table scraps; and, regarding poor sleepers, that a little bit of booze sometimes worked wonders. When questioned about this conversation by a Single Intake Counsellor from Respondent, Mrs. Philpot denied the incident and stated she does not use home remedies (Exhibit 5). Melanie continued to cry all hours of the day and night over Thanksgiving and the weekend following. On Thanksgiving eve, Mrs. Moore called the pediatrician assigned for the children in her foster hone, but he would not come and told her to watch over Melanie and if she got worse to take her to the Emergency Room at the hospital. Melanie had no Medicaid card which would have allowed Mrs. Moore to take her to the clinic which was otherwise available. During this period Mrs. Moore found Melanie very constipated and after she did have a bowel movement her stool indicated unmashed food had been fed to her. When Barbara Rittner, Direct Services Supervisor for HRS, visited the Moore home on Monday, 26 September 1979, to check on the two children assigned to her and living at the Moore home, she found Mrs. Moore exhausted from lack of sleep caused by Melanie's crying for four days, and upset by the situation. Mrs. Moore reported what she knew and what she had been told to Mrs. Rittner, who submitted an Unusual Incident report (Exhibit 2) containing the information regarding Melanie and Mrs. Philpot's comments which had been told to her by Mrs. Moore. Shelter homes take children on an emergency basis while the child's situation is determined. Abused children are those normally placed in a shelter home, pending a judicial determination if the child is to be returned to its parents or placed elsewhere. Normally, children stay in a shelter home less than one month. Foster mothers take children and act as sub-parents until the child can be returned to its home or placed for adoption. Petitioner looks for similar qualities in the operators of both shelter and foster homes. Shelter homes are supervised by Single Intake and are licensed by Social and Economic Services, both units of DHRS. Normally, incidents involving shelter homes are investigated by Single Intake. The Unusual Incident report was referred to Single Intake but no written report of an investigation was submitted or presented at this hearing. The Unusual Incident follow-up report (Exhibit 5) appears based entirely on hearsay and no witness corroborated any information contained therein. Specifically, this follow-up report stated that Melanie had been fed hard liquor by Mrs. Philpot and the only evidence to support that conclusion is the information Moore received from the Philpot Home as noted above. Prior to the issuance of Mrs. Philpot's current license (Exhibit 1) her home had been licensed for several years as a shelter home, however, in 1978 it appears her relicensing was delayed because of a drinking problem of Mr. Philpot. He moved to North Carolina to live with a son and upon the condition that he not be allowed to return to live at the home Mrs. Philpot's license was renewed to certify her home as a shelter home for up to seven children, ages two through twelve. Prior to rescinding Mrs. Philpot's license information was received by HRS (Exhibit 3--not admitted) that Mr. Philpot had been observed at the home at Christmastime. No evidence in this regard was presented at the hearing and this incident was not given as a reason for rescinding the license in the January 18, 1980 letter (Exhibit 1). Those grounds are only that Respondent failed to provide proper nourishment to shelter children in her home. The only evidence respecting the nourishment provided children in the Philpot Shelter Home is the testimony of Mrs. Moore above noted. Most of Mrs. Moore's conclusions were obtained from a telephone conversation she had with the Philpot home and a person she assumed to be Mrs. Philpot. She did not say she knew Mrs. Philpot or had previously talked to her on the telephone. No evidence was presented that the bottle accompanying Melanie when she was deposited at the Moore home came from the Philpot home. If an effort was made to verify the information contained in the Unusual Incident Report, no competent evidence wad presented in this regard, nor was any corroborating evidence presented to verify the information contained in the Unusual Incident report other than the testimony of Mrs. Moore, the source of that information. There was only one shelter home in the Miami specifically approved to take babies in 1979. This home was frequently full and children under two years of age were routinely placed in shelter homes not licensed for them such as the Philpot home. Relicensing Summary (Exhibit 4) submitted on Philpot home prior to the issuance of this current license shows the home fully qualified for licensure as a shelter home. Respondent's objection to hearsay evidence was overruled subject to the caveat that no finding would or could be based upon such evidence not corroborated by competent evidence.
Findings Of Fact The Petitioner, at times pertinent hereto, was a resident of Scott's Mobile Home Park (Park), located in Duval County, Florida. She lived in the Park with William Scott, the son of the Park owners, their child, and four other children who are Ms. Allen's natural children. The Petitioner, Mr. Scott, and the five children lived in a three-bedroom, double-wide mobile home, at the pertinent time in 1993. It had been provided by Mr. Scott's parents, the owners of the Park. The Department acquired certain property in Duval County, Florida, in 1993, as a result of an inverse condemnation action of which the property known as Scott's Mobile Home Park was a part. The Department, in due course, notified the Park residents that it would be closed and that efforts would be undertaken to relocate the residents. The Department staff obtained information from Ms. Allen and Mr. Scott, as well as from the other Park residents, in order to determine the amount of relocation assistance funds each displaced resident should receive, in accordance with the legal authority cited below. The Allen-Scott family were determined to be "90-day occupants" of the Park, as that term is used in applicable regulatory provisions. In calculating the relocation assistance amount to which the Petitioner may be entitled, the Department follows certain procedures set out in the Code of Federal Regulations, adopted by reference in its own rules and procedures. It must find replacement housing and then pay displaced residents a lump sum equal to 42 months of the difference between the new higher rent, if that be the case, and utility payments and what the displaced residents had been paying for rent and utilities prior to being displaced. The Department initially located replacement housing for the Allen- Scott family on Phillips Highway in Jacksonville, Florida. While the family had been living in a three-bedroom mobile home, the standards adopted by the Department for decent, safe, and sanitary housing for a family of seven required four bedrooms, which is the type residence the Department sought. The rent and utilities amount for the mobile home suitable to those standards, located on Phillips Highway, was $691.00 per month. The Allen-Scott family, however, desired a mobile home on the west side of Jacksonville, Florida. In order to calculate the amount due to the Petitioner, the Department had to subtract from the $691.00 per month figure for the property on Phillips Highway, the rent and utility total amount that the family had been paying at the Park. The evidence shows, however, that the living arrangements under which they occupied that dwelling in the Park were not the result of an arms-length transaction and that, in reality, the family was not paying any rent for the premises. Therefore, the Department had to impute a rental figure for them. Accordingly, Mr. William Kelbaugh, a Property Appraiser for the Department, made that imputed calculation, based upon the square footage of the Allen-Scott mobile home and the amount per square foot paid for other decent, safe, and sanitary dwellings in the same area, or comparable residences. After establishing that the average rent for mobile homes was approximately $.41 per square foot, Mr. Kelbaugh multiplied the square footage of the Allen-Scott family mobile home by that figure and, after making a deduction because of the condition of the Park, in terms of the actual rental value of the premises they had been living in, he arrived at a "market rental" of $375.00 per month. He then reduced the "market rental" figure by 15 percent based upon his observation of the premises, its condition, and his experience of 20 years or more in making such appraisals. The Department also had to include utility payments in its calculation. It received information from two utility companies about the family's utility bill over the prior 12-month period and computed an average monthly utility payment amount of $202.29. The Department also attempted to establish the family's income. It was required to do so because, in calculating the payment to be made for relocation assistance, the Department must subtract from the new rent and utility payment the smaller of the sums equal to the rent paid or, in the Petitioner's case, imputed, or 30 percent of gross monthly family income. In trying to determine their income amount, the Department asked the Petitioner and Mr. Scott to provide income information on its income certification form, which the Petitioner and Mr. Scott signed and dated March 10, 1993. The Petitioner represented that their income came from Aid to Families with Dependent Children and other welfare benefits, which are not considered income for purposes of the Department's calculation of relocation assistance. Mr. Scott represented that he earned $3,764.25 in income and $3,000.00 in "income from rental" for 1992, which is the year used in making the calculation. The Department asked repeatedly for verification of their income figures in the form of tax records, payroll stubs, or statements from employers. Mr. Scott, however, worked for his parents, the former owners of the Park. They were asked to provide pay stubs and other verification of his income but did not do so at any time during 1993. Relocating the family was a protracted affair because the family required a four-bedroom mobile home, and such dwellings for rental are scarce. On September 14, 1993, the Department delivered an updated income certification form, since the one that the Petitioner and Mr. Scott had signed in March 1993 had expired. The Petitioner signed that form on September 14, 1993, and Mr. Scott signed it on September 22, 1993. That form indicated that Mr. Scott's income was certified by him as gross wages and salaries equal to $3,764.25. No verification of this income had been provided, however, so the Department calculated the relocation assistance due the family by using the market rental figure of $375.00, plus $202.29 for utilities. The Petitioner and Mr. Scott refused to accept this figure and appealed the determination to the Department's "central office". While their appeal was pending in the Department's process, the Department, at the Petitioner's request, located another four-bedroom mobile home for rent on Beaver Road in Jacksonville, Florida. This was with the assistance of Robert Scott, Mr. William Scott's father. The Department re- calculated the Allen-Scott family relocation assistance eligibility supplement. The re-calculated amount was $6,161.82. That amount was presented to the Petitioner and Mr. Scott, but they refused to accept it. On December 7, 1993, Mr. Bud Eddleman, the Department's Administrator of Relocation Assistance, made his decision concerning the Petitioner's appeal and concluded that the $6,161.82 sum to be correct. On February 17, 1994, the Department received a handwritten note signed by Vivian Scott, William Scott's mother, stating that William Scott had been paid $842.25 in cash in 1992 and was furnished rent in lieu of salary equal to $3,000.00. (See Exhibit 8 in evidence). The Petitioner, thus, took the position that that was the totality of income of the family during the calculation period in question, as that relates to the calculation of the amount of relocation benefits they felt they should receive. The Department takes the position that this verification is not accurate and acceptable for a number of reasons. The Allen-Scott household had numerous possessions that suggested a lifestyle that could not be supported by a discretionary income of $842.25 annually. The family could apparently afford $202.79 per month as an average utility payment. Further, the family acquired a second car during the time period that Department employees were on the premises in the process of making its calculation and appraisal. The family had the funds to acquire and operate two cars, pay the utilities throughout 1993; and their personal property included certain items of antique furniture, at least four televisions, and three videocassette recorders. The Petitioner contended at hearing that Mr. Scott had no income because of the inverse condemnation proceedings because his work had been as a maintenance man for the operating Park. This is irrelevant in the context of relocation assistance, which concept is not designed to include considerations of whether the displacee is rendered unemployed by the taking of the property involved. It is also irrelevant factually because the year in question was 1992, and the relocation of people from the Park could not begin until 1993. Even then, Mr. Scott's maintenance duties would be needed for a certain period of time. Thirdly, there is also evidence that Mr. Scott worked on projects other than those located in the Park, for which he earned income. Mr. Scott did not provide tax returns, pay stubs, bank records, or a statement from his employer (his parents) despite numerous entreaties by the Department to do so. No more defining, verified evidence of the family income was offered at hearing. Accordingly, the income figures which the Petitioner provided are not credible. The family lifestyle and possessions evidence much more income than Mr. Scott would admit. The only evidence produced to verify Mr. Scott's income was sent from his mother some two months after the Department denied the "appeal". The statement is not credible, as Mrs. Scott alleged that in 1992, her son had been paid $842.25 for his work as a maintenance man. Mr. Scott's parents paid another resident of the Park $4,609.92 for performing the same type of work, at the same time. Further, the Petitioner testified inconsistently at hearing regarding income. She said on the one hand that Mr. Scott's parents "took the rent out of his paycheck", and on the other hand, said that he made approximately $127.00 per week as a maintenance man and Mrs. Scott "sometimes wrote him a check" and "would take out, you know, a little bit each week". This testimony demonstrates that, with the other evidence referenced above, the Allen-Scott family has not been forthcoming concerning its income. The totality of the evidence shows that Mr. Scott and his parents, as his employer, the source of the Petitioner's relevant income, had not been acting in good faith. Accordingly, it is reasonable to compute the relocation assistance payments by ignoring the 30 percent factor and instead merely subtracting the old rent and utilities from the new rent and utilities chargeable at the new premises occupied by the Allen- Scott family. The income figures presented by the Petitioner are simply unverified and are not credible. Another candidate for relocation assistance, Kirk Kostenko, a resident of the Park, refused to provide income verification. In his situation, as in that of the Allen-Scott family, represented by the Petitioner, the income figures presented by the Petitioner were not accepted by the Department. In the Kostenko situation, no relocation assistance was paid. While the Petitioner argued and made reference to other families allegedly receiving much larger sums for relocation assistance from the Park, the Petitioner produced no evidence that different standards or criteria were applied in those situations, as opposed to those applied to her family situation involved in the relocation assistance payment question. She adduced no evidence that would demonstrate that the Department had acted in a manner departing from the standards of its rules and procedures or in a manner aberrant from its normal policy in calculating the relocation assistance payments in the manner found above. The relocation assistance program is not a social welfare program based upon actual financial need of a family or based upon the number of dependents involved. Rather, it is a program to compensate persons forced to find replacement housing because the Department acquires their private property, either through eminent domain or inverse condemnation. The assistance is based upon what the family was paying for its rent and utilities and what it would have to pay for them after relocation. The final figure presented and supported by the Department in this proceeding was calculated by applying the regular, accepted criteria set out in the Department's rules, regulations and procedures.
Recommendation Based on the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is RECOMMENDED that a Final Order be entered finding that the relocation assistance benefit, which the Department proposes to award the Petitioner in the amount of $6,161.82, is reasonable and should be awarded. The Petition should be dismissed in its entirety. DONE AND ENTERED this 1st day of September, 1995, in Tallahassee, Florida. P. MICHAEL RUFF, 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 1st day of September, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-4899 Petitioner's Proposed Findings of Fact The Petitioner presented no discreetly set forth proposed findings of fact. Rather, in essence, the Petitioner's post-hearing "pleading", in letter form, consists essentially of argument concerning the quantity and quality of evidence. Therefore, specific rulings on proposed findings of fact cannot be made. Respondent's Proposed Findings of Fact The Respondent's proposed findings of fact numbers 1-34 are accepted, to the extent consistent with those made by the Hearing Officer. Those proposed findings of fact which are not consistent with those made by the Hearing Officer are rejected as being either not supported by preponderant evidence of record, being irrelevant, immaterial or unnecessary to the resolution of the disputed issues. COPIES FURNISHED: Ms. Emma Allen 3523-1 Alcoy Road Jacksonville, FL 32221 Thomas H. Duffy, Esq. Department of Transportation 605 Suwannee Street, M.S. 58 Tallahassee, FL 32399-0458 Ben G. Watts, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, FL 32399-0450 Attn: Diedre Grubbs, M.S. 58 Thornton J. Williams, Esq. General Counsel Department of Transportation 562 Haydon Burns Building 605 Suwannee Street Tallahassee, FL 32399-0458
The Issue Whether the Respondent committed an unlawful employment practice by discriminating against the Petitioner on the basis of national origin,1 in violation of the Florida Civil Rights Act of 1992, as amended, Section 760.10 et seq., Florida Statutes (2005).2
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: Neiman Marcus Group, Inc., owns and operates specialty retail stores. Its headquarters are located in Dallas, Texas. In the summer of 2005, Neiman Marcus began hiring personnel to work in a new store that would open in the fall of 2005 in the Town Centre mall in Boca Raton, Florida. Ms. Jean-Pierre is a permanent resident alien in the United States. She was born in Haiti in 1970 and entered the United States in 1983. In September 2005, Ms. Jean-Pierre was employed as a sales associate in the accessories section of the Nordstrom department store in the Town Centre mall when she was approached by two women who inquired about Chanel sunglasses. They requested her business card and later called to tell her that they were very impressed with her sales skills. They asked if she was interested in working as a sales associate at the new Neiman Marcus store. Ms. Jean-Pierre applied for a position with Neiman Marcus, went through an interview and a drug test, and was hired to begin work on October 24, 2004. Hurricane Wilma hit South Florida on October 24, 2005, and the Neiman Marcus employees were not able to go to the hiring site during the week following the hurricane. As a result, the newly-hired employees who were to begin work on October 24, 2005, including Ms. Jean-Pierre, were told to report to work on November 1, 2005. Ms. Jean-Pierre's group of newly-hired employees joined the group of newly-hired employees that were to report to work on October 31, 2005. Because there were a large number of people, they were split in two groups. Ms. Jean-Pierre's group went to the store site to begin training on the first day they reported for work, while the other group reported to the hiring center to receive training and to complete the paperwork required of newly-hired employees. Ms. Jean-Pierre's group went to the hiring center on November 3, 2005, for training and to complete their paperwork. All newly-hired employees of Neiman Marcus are required to complete an Immigration and Naturalization Service Employment Eligibility Verification form, known as the "I-9 Form." The I-9 Form consists of three pages. The first page is divided into three sections, two of which must be completed for newly- hired employees. The second page consists of the instructions for completing the I-9 Form, and these instructions "must be available during completion of this form." The third page is headed "Lists of Acceptable Documents" and consists of List A, List B, and List C. Section 1 on the front of the I-9 Form, Employee Information and Verification, must be completed and signed by the employee. The employee must include his or her name, address, maiden name (if applicable), date of birth, social security number, and an attestation, given "under penalty of perjury," that the employee is either a "citizen or national" of the United States, a "Lawful Permanent Resident," or an "Alien authorized to work" in the United States. Section 2 of the I-9 Form, Employer Review and Verification, must be completed and signed by the employer. The employer is required to examine one document from List A ("Documents that Establish Both Identity and Employment Eligibility"), or one document from List B ("Documents that Establish Identity") and one document from List C ("Documents that Establish Employment Eligibility"). The document or documents provided by the employee must be listed in Section 2, and the employer or a representative of the employer must sign the form, attesting, "under penalty of perjury," that he or she has "examined the document(s) presented by the above-named employee, that the above listed document(s) appear to be genuine and to relate to the employee named, that the employee began employment of (month/day/year) and that to the best of my knowledge the employee is eligible to work in the United States." The "Instructions" sheet that must be available during completion of the I-9 Form directs the employee to complete Section 1 of the form "at the time of hire, which is the actual beginning of employment." The instructions direct the employer, in pertinent part, to complete Section 2 by examining evidence of identity and employment eligibility within three (3) business days of the date employment begins. If employees are authorized to work, but are unable to present the required document(s) within three business days, they must present a receipt for the application of the document(s) within three business days and the actual document(s) within ninety (90) days. . . . Employers must record document title; 2) issuing authority; 3) document number; 4) expiration date, if any; and 5) the date employment begins. Employers must sign and date the certification. Employees must present original documents. Employers may, but are not required to, photocopy the document(s) presented. These photocopies may only be used for the verification process and must be retained with the I-9. (Emphasis in original.) When newly-hired employees report to the hiring site for training, they are placed at a computer to type in the information required in Section 1 of the I-9 Form. It is Neiman Marcus's policy to provide all newly-hired employees, at the time they are completing Section 1 at the computer, a copy of the page setting forth the "Lists of Acceptable Documents," with a copy of the "Instructions" page stapled to that document. When the information required in Section 1 is complete, the I- 9 Form prints out of the computer with the employee's information included. The employee signs the form, and the Neiman Marcus representative examines the documents presented by the employee and completes and signs Section 2 of the I-9 Form. Neiman Marcus requires all newly-hired employees to present original documents from List A or List B and List C for verification within 72 hours of the beginning of employment. If an employee fails to provide the necessary original documents or a receipt for the application of the documents within the 72- hour timeframe, it is Neiman Marcus's policy to suspend the employee's employment with Neiman Marcus and to allow them a week to provide documents required for identification and employment verification. If the newly-hired employee is unable to produce the necessary documents, the employee is terminated, but the employee is advised that they are welcome to re-apply for a job when they are able to produce the original documents that satisfy the requirements on the I-9 Form. It is not Neiman Marcus's policy to specify the documents a newly-hired employee must present to verify his or her identity and employment eligibility. Rather, Human Resource Managers at the various Neiman Marcus stores have been told not to specify any document that must be produced to satisfy the identification and employment verification requirements on the I-9 Form. Donna Bennett is, and was at the times pertinent to this proceeding, the Human Resource Manager for the Neiman Marcus store in Boca Raton. Amy Wertz was the Human Resources Coordinator and worked for Ms. Bennett at the times pertinent to this proceeding. When Ms. Jean-Pierre reported to the hiring center on November 3, 2005, she completed Section 1 of the I-9 Form on the computer provided by Neiman Marcus and, to verify her identity, presented her Florida driver's license to Ms. Wertz, who was the Neiman Marcus representative verifying employment eligibility for the newly-hired Neiman Marcus employees in Ms. Jean-Pierre's group. Ms. Jean-Pierre advised Ms. Wertz that her "Green Card"3 and her Social Security card had been in her car, which was stolen from the parking lot of her condominium building after the Hurricane Wilma. Ms. Jean-Pierre did not provide Ms. Wertz an original document from either List A or List C to verify her employment eligibility on November 3, 2005. She did give Ms. Wertz her Social Security number and a copy of her Permanent Resident Card, income tax return, and pay stub from her previous employment. Ms. Wertz would not accept these documents for purposes of satisfying the I-9 Form requirement of verification of employment eligibility. On November 3, 2005, Ms. Wertz advised Ms. Bennett that Ms. Jean-Pierre had failed to produce the original document from List A or List C required to verify her employment eligibility. Ms. Bennett directed Ms. Wertz to send Ms. Jean- Pierre home to look for an original document that would satisfy the requirements for establishing her employment eligibility. Ms. Jean-Pierre reported for work on November 4, 2005, without an original document from List A or List C. Ms. Bennett went to the official website of the United States Citizenship and Immigration Services to verify the government policy on the production of documentation to establish employment eligibility. After reviewing the information on the website, Ms. Bennett advised Ms. Jean-Pierre that, if she produced a receipt showing she had applied for a replacement document among those on List A or List C, she could have an additional 90 days in which to produce the original document. Ms. Bennett did not contact Neiman Marcus's corporate legal department with regard to this information before she passed it on to Ms. Jean-Pierre. On November 5, 2005, Ms. Jean-Pierre provided either Ms. Wertz or Ms. Bennett a document printed from the United States Citizenship and Immigration Services website entitled "I-90 Form: Application to Replace Permanent Resident Card" and told them that she had an appointment with the Immigration and Naturalization Service at the end of November 2005.4 Ms. Bennett believed that this document was an acceptable receipt for an application for a replacement document, and she advised Ms. Jean-Pierre that she had 90 days from November 5, 2005, in which to produce the original document. A notation was made on the I-90 Form that "[y]ou have 90 days from today." Ms. Bennett did not consult with anyone at Neiman Marcus corporate headquarters regarding the sufficiency of the document provided by Ms. Jean-Pierre or receive authorization to allow Ms. Jean-Pierre an additional 90 days in which to produce the original document. In late November 2005, Ms. Wertz told Ms. Bennett that Ms. Jean-Pierre had missed her appointment with the Immigration and Naturalization Service because of a death in her family. Ms. Bennett became concerned that Ms. Jean-Pierre did not take seriously the requirement that she provide original documents to establish her employment eligibility within the 90-day grace period, which, according to Ms. Bennett's understanding, began to run on November 5, 2005. Ms. Bennett called Ms. Jean-Pierre into her office and spoke with her about the importance of providing the necessary original documentation. Ms. Jean-Pierre told her that she would take care of the matter. On or about December 15, 2005, Ms. Jean-Pierre produced to Ms. Bennett a document identified as a Citizens and Immigration Services form I-797C, Notice of Action. The "Case Type" specified on the document was "I-90 Application to Replace Alien Registration Card"; the "Receipt Number" noted on the document was "MSC-06-800-46861" the date on which the application was received was noted as December 14, 2005; the applicant was identified as "A37 888 854 Jean-Pierre, Nita"; and the "Notice Type" specified on the document was "Receipt Notice." When she gave Ms. Bennett this document, Ms. Jean- Pierre told Ms. Bennett that it would take between six months and one year to receive the replacement card because of September 11, 2001. Ms. Bennett became concerned that Ms. Jean- Pierre would not be able to provide the required original document within the 90-day grace period. At this time, she contacted Susan Moye, a manager in Associate Relations at Neiman Marcus's corporate headquarters in Dallas, Texas, and arranged to have the I-797C form faxed to Ms. Moye. Ms. Moye consulted with Neiman Marcus's legal department about the sufficiency of the I-797C Form Ms. Jean- Pierre had provided on December 15, 2005. Ms. Moye was advised that this document was not sufficient to meet the I-9 Form requirement that the employer examine the original of one of the documents included on List A or List C to verify employment eligibility. Ms. Bennett was absent from work for a period of time due to the illness and death of her father. During her absence, Ms. Wertz was in communication with Ms. Moye regarding Ms. Jean- Pierre's employment status. Ms. Moye directed Ms. Wertz to notify Ms. Jean-Pierre that the I-797C form she had provided was not sufficient to verify her employment eligibility and that she was suspended from employment for one week to give her the opportunity to obtain an acceptable original document. Ms. Jean-Pierre did not provide the required documentation by the end of the one-week period of her suspension. Ms. Bennett returned to work on December 27, 2005. Ms. Bennett spoke with Ms. Moye about the matter on December 27, 2005, and Ms. Moye told her that Ms. Jean-Pierre needed to provide an original document in order to establish her eligibility for employment and that the document Ms. Jean-Pierre had provided on December 15, 2005, was not an acceptable original document. Ms. Moye advised Ms. Bennett that she would need to terminate Ms. Jean-Pierre. At the time she directed Ms. Bennett to terminate Ms. Jean-Pierre, Ms. Moye was not aware of Ms. Jean-Pierre's race or national origin.5 Ms. Bennett called Ms. Jean-Pierre into her office and explained to her that it was Neiman Marcus's policy to require original documentation of identification and employment eligibility within three days of beginning employment; that the document she provided on December 15, 2005, was unacceptable; and that she was terminated. During this meeting, Ms. Jean-Pierre argued that the document she had provided on December 15, 2005, was acceptable. Ms. Bennett explained to Ms. Jean-Pierre that, in accordance with Neiman Marcus's policy, she needed to produce the original document, not the receipt for an application for a replacement document. When she terminated Ms. Jean-Pierre, Ms. Bennett told her that she was welcome to re-apply for a job when she was able to produce the appropriate documents to establish her employment eligibility. Ms. Bennett did not tell Ms. Jean-Pierre that a "Green Card" was the only acceptable document to establish her employment eligibility. Nor did she tell Ms. Jean-Pierre that she needed to provide more documentation than others because she was Haitian. In January 2006, Ms. Jean-Pierre returned to the Neiman Marcus Boca Raton store and provided Ms. Bennett with a receipt showing that she had applied for a Social Security card on January 10, 2006. Ms. Bennett faxed this document to Ms. Moye, who responded that the receipt was insufficient and that Ms. Jean-Pierre needed to produce an original document. On January 5, 2006, Ms. Jean-Pierre obtained a stamp on her passport indicating that employment was authorized for her, which authorization would expire on January 4, 2007. Ms. Jean-Pierre received her replacement Social Security card on January 16, 2006. Ms. Jean-Pierre did not present an original Social Security card to Neiman Marcus or her stamped passport to Neiman Marcus as verification of her employment eligibility. Ms. Bennett has previously terminated newly-hired employees who failed to timely provide the documents required to establish employment eligibility. Those employees were invited to re-apply when they received their original documents. Several re-applied, provided their original documents, and were re-hired. Of the more than 59 newly-hired employees reporting to work on or about November 1, 2005, Ms. Jean-Pierre was the only employee who failed to produce to Neiman Marcus the required original documentation verifying her employment eligibility. Summary The direct evidence presented by Ms. Jean-Pierre is not sufficient to establish that Neiman Marcus discriminated against her on the basis of her national origin. Ms. Wertz and Ms. Bennett were aware that Ms. Jean-Pierre was from Haiti residing in the United States, but the evidence establishes that both Ms. Wertz and Ms. Bennett were concerned about her failure to produce any original documents as required for verification of employment eligibility and that Ms. Bennett talked to her about the seriousness of the issue and urged her to get the necessary document. Ms. Jean-Pierre's testimony that Ms. Bennett told her she needed more documentation because she was a Haitian is unsupported by any other testimony or documentary evidence. Finally, Ms. Moye, the person who directed Ms. Bennett to terminate Ms. Jean-Pierre, was not aware that she was born in Haiti. Ms. Jean-Pierre's testimony that both Ms. Wertz and Ms. Bennett insisted she must provide a "Green Card" to verify her permanent residence is, likewise, unsupported by any other testimony or documentary evidence. In any event, this evidence would not, of itself, establish that either Ms. Wertz or Ms. Bennett was motivated by the intent to discriminate against Ms. Jean-Pierre because she is Haitian. The evidence presented is sufficient, however, to support an inference that Ms. Jean- Pierre misunderstood the information she received from Ms. Wertz and Ms. Bennett and assumed that they were referring to an original Permanent Resident Card rather than an original document included on the "Lists of Acceptable Documents."6 Ms. Jean-Pierre acknowledged in her testimony that, when Ms. Wertz told her she needed to verify her permanent residence, she interpreted this to mean that she needed to get a replacement copy of her Permanent Resident Card. Similarly, Ms. Jean-Pierre may have interpreted Ms. Bennett's statements that she needed to produce an original document as requiring that she produce a Permanent Resident Card. The evidence presented by Ms. Jean-Pierre is sufficient to establish that Ms. Jean-Pierre is entitled to protection from employment discrimination on the basis of her national origin; that she was qualified for the position of sales associate with Neiman Marcus; and that she was subjected to an adverse employment action because she was terminated from her employment. Ms. Jean-Pierre stated unequivocally in her testimony, however, that she did not know of any other person who failed to verify their employment eligibility that was allowed to work at Neiman Marcus. She has, therefore, failed to establish a prima facie case of employment discrimination.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Florida Commission on Human Relations enter a final order dismissing the Petition for Relief from an Unlawful Employment Practice filed by Nita Jean-Pierre on September 20, 2007. DONE AND ENTERED this 29th day of February, 2008, in Tallahassee, Leon County, Florida. S PATRICIA M. HART 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 29th day of February, 2008.
The Issue The issue in this case is whether Petitioner's request for exemption from disqualification from employment in a position of trust should be granted.
Findings Of Fact AHCA is a state agency required to conduct background screenings for individuals who provide certain types of healthcare related services under chapters 400, 408, and 429, Florida Statutes. § 408.809, Fla. Stat. Petitioner is seeking to become owner of a licensed nurse registry for pediatric and special needs care. As such, Petitioner is required to have a background screening check pursuant to section 408.809. Petitioner is interested in the field because his daughter was born with several disabilities. After completing Petitioner's background screening, Petitioner's 2011 disqualifying felony criminal offenses of owning, operating, or maintaining an assisted living facility without a license were identified. On March 6, 2019, Petitioner submitted a request for exemption from disqualification, which included the exemption application and supporting documentation ("exemption package"). In Petitioner's exemption package, he listed his work history, which included the following employment: Home Reach, LLC, from April 2013 to October 2013; Five Star Home Health from October 2013 to March 2014; unemployment from March 2014 to August 2014; Home Reach, LLC, from August 2014 to August 2018; and a leave of absence from Home Reach, LLC, starting August 2018. Petitioner also detailed his plans to comply with AHCA's laws and regulations in his exemption package. He explained that he has retained a consultant, Elisabeth Jean-Baptiste ("Jean- Baptiste"), to assist him. She is the director of the FEDEN Healthcare Education Institute, an entity that provides continuing legal and regulatory education in the healthcare field. Petitioner included in his exemption package documentation that he completed a 12-hour Adult Family Care Home course, which covered the rules and regulations for running a healthcare business. On May 15, 2019, as part of the exemption application process, Petitioner participated in a telephonic exemption hearing with AHCA. After the telephonic hearing and discussion, AHCA denied Petitioner's request for an exemption by letter dated May 30, 2019. Subsequently, Petitioner requested an administrative hearing. Disqualifying Offenses On May 26, 2011, Petitioner was arrested and charged with a two-count felony of operating, owning, or maintaining an assisted living facility without a license. Petitioner's criminal charges stem from him operating Heaven Sent Group Home, which he labeled "sober living" houses. At the two facilities Petitioner owned and operated, medication was distributed, and daily activities for the residents were performed without being licensed as an assisted living facility. On June 27, 2011, AHCA also charged Petitioner by Administrative Complaint in Case No. 2011001367 for operating Heaven Sent Group Home, which was the same unlicensed assisted living facility subject matter as the criminal Case No. 2011CF001679A. On or about September 20, 2011, Petitioner pled no contest in Case No. 2011CF001679A to the two felony counts of operating, owning, or maintaining an assisted living facility without a license. The court withheld adjudication and sentenced Petitioner to three years of probation, 100 hours of community service, court costs, and fines. On January 25, 2012, AHCA issued a Final Order in Case No. 2011001367, imposing a $99,000.00 fine for Petitioner's unlicensed activity. By letter dated October 2, 2013, Petitioner was notified that he completed his terms of probation and was no longer under the supervision of the Department of Corrections for Case No. 2011CF001679A. Hearing At hearing, Petitioner explained that he opened two facilities in 2007 to help the underprivileged. His residents included those that were released from incarceration or mentally ill and did not have place to live. He testified that most of his residents came from the courts or were referred by New Horizons. Petitioner denied receiving any AHCA notices sent to him regarding his operating the two unlicensed assisted living facilities prior to the 2011 cease and desist on Heaven Sent Group Home. Petitioner further claimed that he did not know he needed a license for the facilities he was running. Petitioner did admit that he was completely responsible for his wrongdoings and not being educated and aware of the rules and regulations regarding operating a group home or an assisted living facility. During the final hearing, Petitioner presented the testimony of Roshina Lakram, who testified that she knew Petitioner for 30 years and that he had been helping people struggling with drugs and mental illnesses with his sober living homes. Vanessa Risch ("Risch"), the health services and facilities consultant manager for AHCA's Background Screening Unit, testified at hearing that in making the decision to deny Petitioner's exemption, AHCA considered Petitioner's entire case file including exemption application, education and training records, personal letters of support, personal attestations, one employment reference letter, and Petitioner's explanations during the telephonic exemption hearing. AHCA concluded that Petitioner was not particularly candid during the May 15, 2019, telephonic hearing, because Petitioner failed to mention prior to and during the teleconference that he has the outstanding AHCA fine in the amount of $99,000.00 from his unlicensed activity from Case No. 2011001367. Although Petitioner had some positive letters of recommendation, his failure to be candid and honest in addition to his lack of effort to make any payments toward the outstanding AHCA fine was a major consideration in the denial of Petitioner's exemption. Risch testified that Petitioner failed to meet section 435.07(3)(a) and had not demonstrated by clear and convincing evidence that he was rehabilitated. At hearing, Petitioner also failed to readily admit that he owed the $99,000.00 fine to AHCA when testifying. First, Petitioner did not own up to currently owing the monies, then testified that maybe it happened while his daughter was in the hospital, and finally inquired about a payment plan. At the time of the hearing, Petitioner had not paid any amount towards the fine nor attempted to negotiate a payment plan agreement with AHCA to pay off the delinquent fine. Findings of Ultimate Fact Upon careful consideration of the entire record, the undersigned finds that Petitioner was both credible and passionate in his testimony about his future and not wanting to work for other individuals for the rest of his life. He even testified that since it was America, he wanted his own. However, Petitioner failed to testify convincingly regarding the monies owed to AHCA. He was dismissive about his past instead of being honest and forthright regarding the outstanding $99,000.00. Such lack of candor and accurateness regarding the delinquent AHCA fine establishes Petitioner's ineligibility for an exemption from disqualification because he has not demonstrated by clear and convincing evidence that he has been rehabilitated.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Agency for Health Care Administration enter a final order upholding its denial of Petitioner's request for an exemption from disqualification for employment. DONE AND ENTERED this 10th day of October, 2019, in Tallahassee, Leon County, Florida. S JUNE C. MCKINNEY 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 10th day of October, 2019. COPIES FURNISHED: Chan Gobin 5839 Northwest Drill Court Port St. Lucie, Florida 34986 Lindsay Worsham Granger, Esquire Agency for Health Care Administration Building 1, Mail Stop 7 2727 Mahan Drive Tallahassee, Florida 32308 (eServed) Richard J. Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 (eServed) Stefan Grow, General Counsel Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 (eServed) Mary C. Mayhew, Secretary Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 1 Tallahassee, Florida 32308 (eServed) Shena L. Grantham, Esquire Agency for Health Care Administration Building 3, Room 3407B 2727 Mahan Drive Tallahassee, Florida 32308 (eServed) Thomas M. Hoeler, Esquire Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 (eServed)
Findings Of Fact Mac's Auto & Tool Supply, Inc. (Mac's Auto) is a business which was started by Mr. Ralph G. McGlauthen in approximately 1962. The business specialized in automobile and truck equipment, supply, tools, and custom made hydraulic hoses for machinery. It had been located on State Road 84 in Fort Lauderdale, Florida just west of State Road 7. Due to the construction of an interchange for Florida's Turnpike, State Road 7, and State Road 84, the property Mac's Auto leased was acquired by the Department of Transportation. The business moved to 4225 S.W. 57th Avenue in Davie, Florida. Negotiations for the acquisition of the land in Ft. Lauderdale were initiated in November of 1983. The original location had included a main building, and behind it a number of trailers used to store merchandise. Wooden 2' X 4' frames to which pegboard had been attached were used to organize the merchandise in the trailers. Other merchandise was kept in several small storage sheds. This method of maintaining merchandise could not be continued when the business was moved to Davie. The fire code there required the merchandise be stored or displayed on steel framing, rather than on pegboard supported by 2' X 4' wooden framing. The highway interchange project was a federally aided highway project. Relocation benefits were available to Mac's Auto as a tenant of the property acquired by the Department under the Uniform Relocation Assistance and Real Property Acquisition Policy Act of 1970, as amended, 42 U.S.C. Section 4601 et seq. (Uniform Act) and the implementing regulations of the United States Department of Transportation published at 49 Code of Federal Regulations, Part The value of any fixtures left at the site would be reimbursable in the eminent domain proceeding, not under the Uniform Act. Mac's Auto was paid certain costs connected with its search for a new business location. The Florida Department of Transportation obtained estimates of the charges for relocating the stock to the new business location from two commercial movers. Mac's Tool was not required to use a commercial mover, and Mr. McGlauthen ultimately elected a self move. The cost which is reimbursable to a displaced business for a self move is the lowest commercial estimate. 49 C.F.R. Section 25.303(c). In his letter of September 1, 1989 Mr. McGlauthen sought reimbursement of a $3,200 appraisal fee paid to Richard K. Cohen in October of 1985. Mr. McGlauthen maintains that the money was spent to assess the cost of moving the merchandise of the business. A letter dated February 7, 1986 from Mr. Cohen is the only written work product from Mr. Cohen. That letter is a progress report, which states that Mr. Cohen is preparing the "pricing of all of the fixture and machinery items" and projects a "final sound value" of $140,000 to $150,000. No final report was prepared. On the face of the letter, it appears that Mr. Cohen was not evaluating the cost of a move, but was assessing the actual value of the property itself. Mr. McGlauthen did abandon certain fixtures at the old site, and was paid by the Department for those fixtures. There is insufficient evidence that Mr. Cohen's work was ever completed, or if completed that it related to estimates of the cost of the move. That portion of the claim should be denied. Ultimately, Mac's Auto was paid $45,350 for a self move, based upon the lowest estimate from a commercial mover. Mr. McGlauthen abandoned at the hearing the claim in his letter for $6,000 for storage fees for seven trailers, because that amount had been paid by the Department. Mr. McGlauthen claimed $13,000 as the amount needed to build a mezzanine to hold the merchandise which previously had been stored in four of the trailers parked behind the main building at the old site. There was no documentation or itemization offered at the hearing of the actual expense incurred to build the mezzanine. The proof at hearing was insufficient to establish the amount of the expense. Moreover, the claim is one for improvement to real property, that is, for construction at the new place of business. Costs for improvements to real property are not reimbursable under the Uniform Act. The U.S. Department of Transportation specifically considered and rejected a proposal that physical changes to the replacement site be reimbursed when it adopted the rules implementing the Uniform Act. 50 Fed. Reg. 8955, 8965. (March 5, 1985) (Comments on Section 25.305). All of the expenses which were categorized on Mr. McGlauthen's letter under the heading "Monies Spent On Electric Installation" were paid by the Department, and are no longer an issue. The claims of Mac's Auto for $307.19 for a business license at the new location, $60.00 for a second business license, and $115.00 for an E.P.A. license were not reimbursed, because the Department regarded them as "additional operating expenses . . . incurred because of operating in a new location" which are ineligible expenses under 49 C. F. R. Section 25.305(f). Claims for $500.00 to complete the water hook-up to the water system at the town of Davie and $3,634.98 for a permit to hook-up to the Davie water supply were not reimbursed for the same reason. Since the Department's original denial of these fees, such fees have become payable due to an intervening decision of an intermediate Florida appellate court, Skiff's Workingman's Nursery v. Department of Transportation, 557 So.2d 233 (Fla. 4th DCA 1990), and a consequent change in characterization of those costs as permits "required of a displaced [business] at the replacement location" by the federal agency responsible for overseeing the relocation program established by the Uniform Act. 49 C.F.R. Section 25.303(a)(6). All these items therefore should be reimbursed. The claim for labor costs paid to employees based on time cards, and the claim for reimbursement of 40% of the salary paid to Mr. Isaac Theodore in the amount of $1,072.28 were not adequately explained at the hearing. The explanation of the manner in which the claim for the labor of employees was allocated on the time cards was superficial. There is an insufficient basis in the record to find that the employees were working on the move, rather than on other work, and an insufficient explanation of why this work was not compensated by payment for the self move. No records for Mr. Isaac Theodore could be produced at the hearing. Both of these reimbursement claims should therefore be denied. The claim for $903.46 were materials for air, water, and lines to hook-up to the sewer had no documentary support at the hearing, and consequently there is a failure of proof which requires that this reimbursement claim be denied. A number of other items listed in the claim letter filed by Mr. McGlauthen for Mac's Auto on September 1, 1989 have already been paid by the Department, and therefore need not be reimbursed again. These include $287.60 for installation of the telephone service, $900 for an alarm system, $250 to St. Jean Plumbing, $315 to pay for a carpenter's aid to the plumber and $3.25 in plumbing supplies. Mac's Auto also made several claims for lighting fixtures, including 50 fluorescent fixtures at a total cost of $1,250; four emergency exit lights, at a total cost of $340; and five emergency spotlights at a total cost $450. These claims had been denied by the Department as improvements to real property which were not reimbursable under the Uniform Act. Under regulations of the U.S. Department of Transportation published at 49 C.F.R. Section 25.305(j) a displaced person is not entitled to reimbursement for physical changes to the real property at the replacement location, which would include the cost of the lighting fixtures. This claim should be denied.
Recommendation It is RECOMMENDED that the Department of Transportation reimburse Mac's Auto & Tool Supply, Inc. for all items listed in Finding 8, but that all other claims be denied. DONE and ENTERED this 25th day of June, 1991, in Tallahassee, Florida. WILLIAM R. DORSEY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of June, 1991. APPENDIX TO RECOMMENDED ORDER All findings proposed by the Department have been adopted, except findings 26 and 27. COPIES FURNISHED: Charles G. Gardner, Esquire Department of Transportation 605 Suwanee Street Tallahassee, FL 32399-0458 Ralph McGlauthern Mac's Auto and Tool Supply 4225 S.W. 57th Avenue Davie, FL 33314 Ben G. Watts, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, FL 32399-0458 Thornton J. Williams, General Counsel Department of Transportation 562 Haydon Burns Building Tallahassee, FL 32399-0458
