The Issue Whether Respondent, Seven Lakes Association, Inc. (the Association), violated section 760.10, Florida Statutes (2018),1 by discriminating against 1 Unless otherwise indicated, all statutory and administrative rule references are to the 2018 codifications of the Florida Statutes and Florida Administrative Code. Petitioner, Donald Chew, based on his race (African American) when it terminated his employment; and, if so, what is the appropriate remedy.
Findings Of Fact Petitioner, Donald Chew, is an African American male who was employed by the Association from January 23, 2017, to September 19, 2018. During the time he was there, Mr. Chew was one of the Association's few non-white employees. Respondent, the Association, is a condominium association governed by chapter 718, Florida Statutes. According to Mr. Chew, a majority, if not all, of the condominium owners are white. The Association has approximately 50 employees. The Association is governed by a Board of Directors (Board), made up of five to seven members. All the Board members who testified at the hearing were white. The Board hires a General Manager, who oversees the day-to-day operations of the Association. This includes oversight over the condominium grounds, recreation, and financial aspects of the Association. The General Manager had check-writing authority for the Association. For the times relevant to Petitioner's claims, Timothy Day served as the General Manager.2 Prior to being hired Mr. Day was involved in an investigation related to his employment with a local government entity. 2 Mr. Chew was hired by the Association's General Manager Judy Grosvenor, but Mr. Day became General Manager in August 2017. Neither the reason for the investigation nor the outcome of that investigation was clear from the evidence. Regardless, Mr. Day was given the opportunity to explain the circumstances related to the investigation to the Board prior to being hired. Relevant to this case, the General Manager oversaw the Accounting Manager, who managed a staff of accountants. June Gibbs served as the Accounting Manager who oversaw Mr. Chew from the date of his hire to May 2018, while he was in the staff accountant role. MR. CHEW'S JOB HISTORY AND DUTIES The Association originally hired Mr. Chew for the position of staff accountant. The hiring process consisted of review of Mr. Chew's resume, an interview, and then a criminal background and reference check. The Association did not check Mr. Chew's litigation history at the time it hired him. In September 2017, Ms. Gibbs gave Mr. Chew a mixed written performance review. Although he was "Above Average" in initiative and working relationships, Ms. Gibbs indicated he was "Below Average" in his basic accounting skills and his tardiness. In her comments, she noted: Don, I really dislike writing a negative evaluation. But, your accounting skills really concern me. This is why I hired you and the core of your position. It's been great that you have done well with the insurance and working with Brown & Brown. Even though we have struggled with the accounting parts of the insurance UMS you have done well assisting everyone setting [ ] this software up. And I believe you are above average in computer technology. But, once again accounting is the core. At this point because I really need someone strong in accounting behind me. I am going to have you stay with what you are good at – working on the insurance and UMS. And I will appoint you some basic accounting jobs. Also work on any tardiness issues. In March 2018, the Association requested that Mr. Chew obtain a Community Association Manager License (CAM License) from the Florida Department of Business and Professional Regulation. Mr. Chew submitted an online application in which he was required to answer a number of questions, including the following: 2. Are you or have you ever been a defendant in civil litigation in this or any other state … in which the basis of the complaint against you was alleged negligence, fraudulent or dishonest dealing, foreclosure, bankruptcy, or breach of fiduciary duty related to the practice or profession for which you are applying, or is there any such case or investigation pending. Mr. Chew answered "No" to this question. On May 2, 2018, the Association promoted Mr. Chew to the Administrative Services Manager (ASM) position, which reported directly to the General Manager, Timothy Day. Along with this promotion, Mr. Chew received a salary increase. In the ASM position, Mr. Chew handled a variety of issues and considered himself the General Manager's "right hand man." Mr. Chew did very well in this position and was well liked by the Board, Mr. Day, and the Association staff. In August 2018, Mr. Day announced that he would be resigning from the Association and recommended Mr. Chew for General Manager position. On August 30, 2018, the Board voted unanimously to appoint Mr. Chew as the Interim General Manager. The credible testimony at the hearing established that at this point the Board believed a final decision would be made for the permanent General Manager position after more extensive background checks were conducted on Mr. Chew. Meanwhile, Mr. Chew would serve in an interim capacity. Later on August 30, Mr. Day informed Mr. Chew that he had received information that there was judgment for embezzlement against Mr. Chew in an action brought by the Attorney General for the State of Illinois. Mr. Chew explained that the suit was not against him personally, but against a corporation. On September 4, 2018, Mr. Day informed Mr. Chew that he was being placed on paid administrative leave pending an investigation into the Illinois litigation. On September 19, 2018, the Association's attorney sent Mr. Chew a letter of termination. DISCRIMINATORY ACTS Mr. Chew testified that his accounting co-workers made racial comments that made him feel uncomfortable while he was working as a staff accountant. As described by Mr. Chew, these remarks were made while he was working under Ms. Gibbs, prior to May 2018. Mr. Chew's co-worker, Joan Farus, confirmed that Ms. Gibbs (Ms. Farus's and Mr. Chew's supervisor) and other employees talked about "black people" in a derogatory way around Mr. Chew.3 The undersigned finds that Petitioner established that he was subject to discriminatory comments by staff prior to Mr. Chew becoming an ASM. Mr. Chew also asserts that he was treated less favorably by the Board than the white employees. Mr. Chew presented little, if any, evidence of how he was treated less favorably by the Board. To the contrary, based on the testimony at the hearing by the Board members and staff, it was clear that Mr. Chew was well liked; the Board promoted him and provided him with bonuses and pay raises. The fact that the Board unanimously approved him for the Interim General Manager position on August 30, 2018, leads to the conclusion that the Board did not have any racial animus toward Mr. Chew. Although the Association has an Equal Opportunity Employer and Non-Harassment Policy, there is nothing in its Employee Handbook 3 Ms. Farus was terminated by the Association in August 2018. specifically prohibiting discriminatory conduct based on race. The Handbook indicates employees "deserve to be treated with respect and courtesy." It also states it is company policy that the "workplace be free of tensions involving matters which do not relate to our business" such as "ethnic, religious, or sexual remarks," but stops short of explicitly prohibiting racism or racist comments. The Handbook does urge an employee who feels harassed to notify a supervisor or the Human Resources department. It also provides that any grievances regarding the job, working conditions, or problems with another employee be submitted to the employee's immediate supervisor in writing. There is no credible evidence Mr. Chew ever submitted a written complaint to his supervisor, Human Resources, or anyone else at the Association regarding the racist comments. MR. CHEW'S BACKGROUND HISTORY After the Board appointed Mr. Chew as the Interim General Manager, Kathy Miske, a white female who lived in an Association condominium, researched Mr. Chew's background.4 Ms. Miske previously performed background checks for a law firm in Chicago before she moved to a condominium in the Association. She researched Mr. Chew because she had a "habit of checking on people," and she had been approached by a condominium resident, Debbie Combs, also a white female, who was suspicious of Mr. Chew. The reason for Ms. Combs's suspicion was not disclosed at the hearing. Ms. Miske discovered that the Attorney General of Illinois had filed a "Verified Complaint for an Injunction, an Accounting, Surcharge, and Other Equitable Relief" (Complaint) against Mr. Chew personally in May 2013. The Complaint essentially described an embezzlement scheme, and specifically accused Mr. Chew of abusing a position of trust while employed at Marcy- 4 Although she later became a Board member, at the time she researched Mr. Chew she was not. Newbury Association, Inc. (MNA). It alleged Mr. Chew had misappropriated funds, in violation of the Illinois Charitable Trust Act. Although not a criminal prosecution, the Illinois Attorney General sought injunctive relief, civil damages, punitive damages, and civil penalties against Mr. Chew. Ms. Miske also discovered an Order of Final Judgment (Final Judgment) had been entered against Mr. Chew in the Illinois case on September 9, 2013. The Final Judgement seems to be a default judgment. As a result, Mr. Chew was enjoined from serving as a charitable trustee, was ordered to pay $205,372 in damages, and was also required to pay interest and investigative costs. Although Mr. Chew had a plausible explanation as to the circumstances surrounding the Illinois case, there was no evidence that the Final Judgment had been appealed, withdrawn, reversed, or nullified in any way. Mr. Chew admitted he did not notify the Association of the Final Judgment and that he did not list MNA on the resume he provided to the Association. Ms. Miske made copies of the Complaint and Final Judgment against Mr. Chew. She distributed the copies to three of the Board members that she knew personally. Eventually, copies were provided to the President of the Board, Mr. Day, and the Board's attorney. The Association was required by law to maintain a bond to cover its employees, including the General Manager.5 The Board members testified they were concerned that the Final Judgment would affect the Association's ability to obtain the proper bond if Mr. Chew became General Manager. The Board members relied on the Association's attorney's advice regarding the Association's ability to obtain a bond and the attorney's recommendation to terminate Petitioner based on the Complaint and Final Judgment. Mr. Chew claims that he was discriminated against because he was not given an opportunity to explain the Final Judgement or underlying facts to the Board. In comparison, he claims Mr. Day was given an opportunity to explain a criminal investigation against him and was hired despite the investigation. Mr. Day had previously been involved in the local government, but the nature of the investigation or the outcome of that investigation was not established at the hearing. Mr. Chew had a Final Judgment against him by the Illinois Attorney General for what essentially amounted to embezzlement. In contrast, Mr. Day was only under investigation; there was no evidence he was found guilty of anything. Moreover, Mr. Chew failed to disclose a former employer, MNA. There is no proof that Mr. Day tried to hide that he had been under investigation or that he hid his employment by a previous employer. 5 Section 718.111(11)(h), Florida Statues, states: (11) INSURANCE. * * * (h) The association shall maintain insurance or fidelity bonding of all persons who control or disburse funds of the association. The insurance policy or fidelity bond must cover the maximum funds that will be in the custody of the association or its management agent at any one time. As used in this paragraph, the term "persons who control or disburse funds of the association" includes, but is not limited to, those individuals authorized to sign checks on behalf of the association, and the president, secretary, and treasurer of the association.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Donald Chew's Petition for Relief. DONE AND ENTERED this 18th day of November, 2020, in Tallahassee, Leon County, Florida. S HETAL DESAI 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 COPIES FURNISHED: Tammy S. Barton, Agency Clerk Filed with the Clerk of the Division of Administrative Hearings this 18th day of November, 2020. Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020 (eServed) Donald Chew 1262 Northeast 41st Terrace Avenue Cape Coral, Florida 33909 (eServed) Christina Harris Schwinn, Esquire Pavese Law Firm 1833 Hendry Street Post Office Drawer 1507 Fort Myers, Florida 33901 (eServed) Vanessa Fernandez, Esquire Pavese Law Firm 1833 Hendry Street Fort Myers, Florida 33901 (eServed) Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 (eServed)
The Issue The issue is whether Petitioner timely filed his request for claim form requesting reimbursement for certain covered expenses under the Florida Flexible Benefits Program--Reimbursement Plan.
Findings Of Fact Petitioner is a member of the faculty of the University of South Florida. He participates in the Florida Flexible Benefits Program--Reimbursement Program (Program). The Plan allows participants to pay certain eligible medical or dependent day care expenses with pretax earnings. Each year, during an open enrollment period, an employee may elect to participate in the Program and select an amount of salary to be deducted from his or her pay. The amount of salary so deducted is not subject to federal income tax, but is available to reimburse the employee for covered expenses. In order for the Program to continue to enjoy preferential treatment under the federal income tax law, Respondent, which administers the Program, must adhere to certain rules. Most relevant to this case is that that the deducted salary must be at risk. Specifically, an employee is not entitled to a refund of all or part of the deduction if he or she does not timely submit sufficient reimbursable expenses to exhaust his or her account. The Program brochure clearly warns participants of this "use it or lose it" rule. The plan year for the Program is the calendar year. In 1997, Petitioner was a participant in the Program. He and his wife chose not to submit claims for covered expenses, as they paid them during the year. Instead, they accumulated the receipts with the intent of submitting a single claim for their account balance at the end of the plan year. The Program sets a claims filing deadline of April 15 for filing claims arising out of the expenses paid in the preceding calendar year. The Program brochure warns that this deadline means all claims for expenses incurred during a plan year must be postmarked by midnight, April 15 of the following year to be considered for processing. Any claims received after this date will be returned to the participant unprocessed, regardless of the account balances. Participants should file claims as soon as the required documentation is obtained. This case involves only one issue: whether Petitioner timely submitted his claims for reimbursement under the Program. There is no issue concerning Petitioner's payment of these expenses or his account balance. There is no issue whether these expenses are eligible for reimbursement. In early March 1998, Petitioner and his wife collected their receipts for covered expenses from 1997. Petitioner completed a reimbursement form and addressed the envelope to Respondent at the correct address. Wanting to make copies of the materials, Petitioner did not immediately mail the package to Respondent. A few days later, prior to copying the materials or mailing the package, Petitioner's father became ill in the Mideast, where he lives. Petitioner and his wife agreed that she would copy the materials and mail the package to Respondent. On March 21, which marks the birthday of Petitioner's wife and a cultural holiday for Petitioner and his wife, Petitioner's wife telephoned her husband, who was still visiting his sick father. In the ensuing discussion, Petitioner learned that she had not yet mailed the package. They discussed the matter and again agreed that she would copy the materials and mail the package without further delay. Without further delay, Petitioner's wife copied the materials and mailed the package to Respondent at the correct address. She placed the package with sufficient postage in a mailbox across from her home. The package consisted of a claims reimbursement form and receipts for eligible expenses. It appears that she may have written an old return address on the envelope. Respondent never received the package. Respondent's procedures are carefully designed and executed to ensure that it will not lose a claim form. Repeated searches for the missing form never uncovered it. The package was lost after its mailing by Petitioner's wife and prior to its delivery to Respondent. Possibly, the incorrect address precluded notification to Petitioner of problems with delivery. Possibly, the package was just lost. Unfortunately, Petitioner learned only after the April 15 deadline that Respondent had never received the package.
Recommendation It is RECOMMENDED that the Department of Management Services, Division of State Group Insurance, enter a final order determining that Petitioner timely submitted the claim and eligible expenses that were the subject of this case. DONE AND ENTERED this 8th day of March, 2000, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (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 8th day of March, 2000. COPIES FURNISHED: Paul A. Rowell, General Counsel Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-0950 Thomas D. McGurk, Secretary Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-0950 Mohsen M. Milani 15927 Ellsworth Drive Tampa, Florida 33647 Julia Forrester Assistant General Counsel Department of Management Services 4050 Esplanade Way, Suite 260 Tallahassee, Florida 32399
Findings Of Fact Petitioners', Joseph and Shelly Grainger, are husband and wife. They have one five year old son, Christopher Grainger. Joseph Grainger is the primary wage-earner for the family. At present, Joseph Grainger is unemployed due to a back problem. His previous employment was with a parcel shipping company. Due to his unemployment, Mr.Grainger is receiving approximately $653.00 a month in unemployment benefits. He will receive unemployment benefits until December, 1990, when his unemployment benefits terminate. As a recipient of unemployment benefits, Mr. Grainger must actively seek employment and is considered to be employable by the State. Proposed Rule 10C-1.11 Florida Administrative Code, implements federal and State law requiring the Department to furnish Aid to Families with Dependent children to indigent families whose principal wage-earner is unemployed (AFDC- UP). The law and the proposed Rule require the principal wage-earner to participate in the Job opportunities and Basic Skills program (JOBS). Florida has mandated that the spouse of the principal wage-earner also participate in the JOBS program, if funds are available. For AFDC-UP purposes, the Graingers constitute a three person assistance group. The assistance group determines the amount of benefits an applicant1 may receive if the applicant qualifies under the myriad eligibility requirements of the AFDC-UP program. The assistance group also sets the amount of income an assistance group may not exceed and still qualify for AFDC-UP. In this case, the Graingers' income limit is $294.00. Clearly, because of the amount of unemployment benefits Mr. Grainger is receiving, the Graingers do not now qualify for AFDC benefits and are not now receiving AFDC benefits which will be impacted by the proposed Rule. Since the Graingers are not now qualified for the AFDC-UP program and Mr. Grainger is employable, they have not established that they will suffer an injury from the proposed Rule's implementation of sufficient immediacy to entitle them to a hearing under s 120.54, Florida Statutes. See Agrico Chemical v. Department of Environmental Regulation, 406 So.2d 478 (Fla. 2d DCA 1981); Department of Health and Rehabilitative Services v. Alice P., 367 So.2d 1045, (Fla. 1st DCA 1979); Florida Department of Offender Rehabilitation v. Jerrv, 353 So.2d 1230 (Fla. 1st DCA 1978); and Village Park Mobile Home Association v. State Department of Business Regulation, 506 So.2d 426 (Fla. 1st DCA 1987). Accordingly, the Graingers do not have standing to challenge the proposed rule. Based on the foregoing Findings of Fact and Conclusions Of Law and being otherwise fully advised in the premises, IT IS ORDERED that the Petitions filed in Case Nos. 90-5157RP and 5158R are dismissed and the Division's files closed. DONE and ORDERED this 2nd day of October, 1990, in Tallahassee, Florida. DIANA CLEAVINGER 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 2nd day of October, 1990. COPIES FURNISHED: Cindy Huddleston Florida Legal Services, Inc. 2121 Delta Way Tallahassee, Florida 32303 Scott LaRue Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building 1, Suite 407 Tallahassee, Florida 32399-0700 Liz Cloud, Chief Bureau of Administrative Code The Capitol, Room 1802 Tallahassee, Florida 32399-0250 Carroll Webb, Executive Director Administrative Procedures Committee Holland Building, Room 120 Tallahassee, Florida 32399-1300
The Issue The issue for consideration herein is whether the Petitioner is entitled to reimbursement from the Florida Flexible Benefits Plan Medical Reimbursement Account for expenses incurred prior to March 8, 1990.
Findings Of Fact At all times pertinent to the matters in issue here, the Petitioner, Quintin A. Clark, was a full-time employee of the Department of Health and Rehabilitative Services in its Sarasota County Public Health unit, and the Respondent, Department, was the state agency responsible for administering all state insurance plans for state employees in the State of Florida. As a part of its insurance program, the state offered the Florida Flexible Benefits Plan, (Plan). This is a benefit program for employees under which specified, incurred medical expenses may be reimbursed. The plan extends for the fiscal year December 1 to November 30 of each year. There is a reimbursement maximum of $2400.00 per year and the maximum reimbursement may not be substantially in excess of the total premium paid for the participant's coverage. During the month of October, 1989, the Respondent conducted an open enrollment period of all state employees who wished to enroll in the plan. Petitioner did not enroll during that open enrollment period. However, in February, 1990, after the birth of his daughter on January 11, 1990, he elected to enroll in the plan and was accepted on the basis that the birth of his child was considered a qualifying status change event. Mr. Clark elected to contribute $1,650.00 per year in the Medical Care account to fund reimbursement payment for medical expenses, and authorized deductions of $82.50 per paycheck for 20 biweekly pay periods. By the same token, he also elected to contribute $1,700.00 to the Dependent care account for dependent care reimbursement and authorized a payroll deduction for that expense of $85.00 per biweekly payroll cycle. Mr. Clark submitted his Form FB-2, Enrollment/Qualifying Status Change Form, on February 6, 1990. A copy of that form, revised in December, 1989, reflects, on the back of the employee's pink copy: The effective date of plan participation or qualifying status change will be the date the signed and properly completed form is received by DSEI. The form signed by Mr. Clark does not indicate it is a copy of the revised form, but there is no evidence to indicate the forms are different in this particular. Notwithstanding Mr. Clark submitted his completed form on February 6, 1990, the form was not received by Respondent, DSEI, until March 8, 1990. No explanation was given for the delay of approximately 32 days between the time the form was submitted by Petitioner and the day it reached the Department. On April 24, 1990, Mr. Clark submitted claims for medical reimbursement for his wife and infant daughter for services incurred on the following dates: 6/89 - 1/90. prenatal $130.00 11/6/89 pregnancy 30.00 11/13/89 " 30.00 11/20/89 " 30.00 12/16/89 Hosp. visit 20.30 1/10/90 Sara. Mem. 466.25 1/11/90 Epidural 112.00 1/12/90 Sara. Mem. 789.95 1/12 - 13/90 well baby care 39.00 1/26/90 " " " 37.00 3/9/90 " " " 3.70 Among these claims, the total value of which exceeded $1,386.20, were included claims for services rendered prior to the date DSEI received Petitioner's enrollment form on March 8, 1990. All these claims incurred prior to that date were denied by the Respondent for that reason. Only the March 9, 1990 claim was considered as qualifying and eligible for payment. Petitioner claims that the information contained in the literature on the program given out by the Department is unclear and contradictory. Specifically he refers to the sample instructions which are outlined on Page 17 of the September, 1989 edition of the plan brochure made available to prospective participants. In that portion entitled "Instructions & Information", which appears to be the reverse of the sample form found on Page 16, at 5, the form reads: Expenses must occur within the plan year and while the employee was a plan participant to qualify. The plan year runs from December 1 through November 30. That provision does not appear to be inconsistent with the Department's denial of reimbursement for the expenses claimed prior to March 8, 1990.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that a Final Order be entered denying Petitioner, Quintin A. Clark, reimbursement for the expenses incurred prior to February 6, 1990. RECOMMENDED this 13th Tallahassee, Florida. day of November, 1990, in ARNOLD H. POLLOCK, 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 13th day of November, 1990. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-4345 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: 1. Accepted and incorporated herein except that Petitioner was a participant in the plan at the time the expenses were incurred. FOR THE RESPONDENT: 1 - 9. Accepted and incorporated herein. COPIES FURNISHED: Quintin A. Clark 1025 Putnam Drive Sarasota, Florida 34234 Augustus D. Aikens, Jr., Esquire General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399- 1550 Aletta Shutes Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550
The Issue The issue is whether Respondent was an employee engaged in the construction industry and required to obtain workers' compensation insurance while working on the roof of the Myakka Animal Clinic and, if so, what penalty should be imposed.
Findings Of Fact On August 24, 1998, Petitioner's investigator observed Respondent working on the roof of the Myakka Animal Clinic in Venice, Florida. At the time, Respondent was regularly employed by Paradise Roofing, Inc., where he had an exemption from workers' compensation insurance coverage. He has never previously been guilty of a violation of the workers' compensation laws. The contract price was $800. However, the evidence is conflicting as to the identity of the party that entered into the contract with the Myakka Animal Clinic. The veterinarian testified that her understanding of the agreement was that Respondent was to do the work, but, if any problems arose, he was not alone, and she could go to Paradise Roofing, Inc., to ensure that the labor and materials were satisfactory. Although there are other indications in the record that Respondent may have been working on his own on this job, there is sufficient conflict in the evidence that Petitioner has failed to prove that Respondent was doing the job as a self- employed person, rather than an exempt employee of Paradise Roofing, Inc. Respondent's understanding of the contractual relationship carries less weight than the veterinarian's understanding of this relationship.
Recommendation It is RECOMMENDED that the Division of Workers' Compensation enter a final order dismissing the Notice and Penalty Assessment Order and any related stop work order. DONE AND ENTERED this 2nd day of April, 1999, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (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 2nd day of April, 1999. COPIES FURNISHED: Edward A. Dion, General Counsel Department of Labor and Employment Security 307 Hartman Building 2012 Capital Circle, Southeast Tallahassee, Florida 32399-2152 Mary Hooks, Secretary Department of Labor and Employment Security 303 Hartman Building 2012 Capital Circle, Southeast Tallahassee, Florida 32399-2152 Louise T. Sadler, Senior Attorney Department of Labor and Employment Security 307 Hartman Building 2012 Capital Circle, Southeast Tallahassee, Florida 32399-2152 Eric Kristiansen 3750 Aba Lane North Port, Florida 34287
The Issue The ultimate issue for determination in this proceeding is whether Respondent is entitled to fees and cost pursuant to the Florida Equal Access to Justice Act promulgated in Section 57.111, Florida Statutes.
Findings Of Fact Petitioner seeks reimbursement of fees and costs paid to defend an administrative proceeding conducted by former Hearing Officer Jane Hayman in Case Number 89-3883, Division of Administrative Hearings (the "Division"). Respondent sought fines against Kehoe on the Bay, a licensed Adult Congregate Living Facility, for four alleged deficiencies determined to have existed during a follow up visit to an annual survey of the facility. The four allegations of deficiencies were: (a) one smoke detector did not work; (b) the facility had failed to document that the fire alarm system had been tested; (c) the facility failed to document that the smoke detectors had been tested; and (d) seven doors did not close properly in violation of fire safety requirements. At the outset of the formal hearing, Respondent voluntarily dismissed the allegation concerning the faulty smoke detector and proceeded on the remaining three allegations. Respondent prevailed in the Final Order with respect to two of the three allegations at issue. The Final Order reversed findings of fact in the Recommended Order with respect to two of the allegations. The Final Order found that the facility had failed to document that the smoke detectors had been tested, and that seven of the doors did not close properly. The Final Order sustained the findings in the Recommended Order that the facility had documented the testing of the fire alarm system. No penalty was imposed in the Final Order due to mitigating circumstances proved at the formal hearing. Petitioner did not appeal the Final Order, and the time for seeking judicial review of the Final Order has expired. Petitioner's fees and costs are not allocated or apportioned among the four original allegations in Case Number 89-3883. The affidavit of counsel for Petitioner contains 39 entries for fees and costs totalling $4,729.49. Additional fees in the amount of $705 and costs in the amount of $225 were incurred by Petitioner through the date of the formal hearing in this proceeding. The total amount of fees and costs stipulated to by the parties is $5,002.50. There is no evidence, however, of what proportion of those fees and costs are attributable to either the single allegation in Case Number 89-3883 with respect to which Petitioner prevailed or the allegation voluntarily dismissed by Respondent. Petitioner has 30 employees at all the five facilities owned and operated by Petitioner in Florida. Petitioner owns and operates five facilities. Two are Dade County facilities, two are Department of Health and Rehabilitative Services facilities, and one is a veteran's administration facility. Petitioner has reported no profit on his facilities for seven years. The administrative proceeding brought by Respondent in Case Number 89- 3883 had a reasonable basis in law and fact at the time it was initiated by Respondent. That proceeding was based upon an annual survey and follow up visit conducted by one of Respondent's inspectors in the ordinary course of business, and the credibility assessment of the testimony of Respondent's inspector. Respondent's inspector had been inspecting similar facilities since 1986. Prior to that, the inspector inspected homes for the elderly in New York for approximately 23 years. The assessment of the inspector's testimony regarding the results of the annual survey and follow up visit was not so unclear that no general counsel would have prosecuted the case, and it was not unreasonable for Respondent to do so.
