Findings Of Fact On approximately May 31, 1985, Petitioner, Maria Dejesus was employed as a public assistance specialist with Respondent, Department of Health and Rehabilitative Services. Petitioner continued in that employment through early June, 1986. On Friday, June 6, Petitioner and her children, while enroute to Petitioner's home, were injured in an automobile accident. On Monday, June 9, at approximately 8:30 a.m., Petitioner called Brian Leverrier a public assistance liability supervisor and Respondent's supervisor during that period, and advised that "she had been in an automobile accident and that she would not be in that day because she had to take one of her children to the doctor; ... that she was positive or sure that she would be in to work the next day and that was the end of the conversation." (TR-13). Petitioner did not return to work until the following Tuesday, June 17. During the period between June 9, and June 17. Petitioner did not report to work nor did she call and advise her supervisor on June 10, 11, 12, or 13, that she would not be reporting to work. Petitioner relied on Bayla Lipsitz, a co-worker, to advise her supervisor that she would not be returning to work until Monday, June 16. Mr. Leverrier denied that Bayla Lipsitz advised him that Petitioner would not be returning to work until June 16, and employee Bayla Lipsitz did not appear as a witness in these proceedings. 2/ On Monday, June 16, Petitioner telephoned her supervisor, Brain Leverrier to advise him that she would not return to work until Tuesday, June 17, because her ride did not pick her up. Barbara Chattin, public assistance specialist supervisor, was fielding calls for Mr. Leverrier on June 16, and took Petitioner's phone call. When Petitioner advised Ms. Chattin that she would not return to work until the following day, June 17, Ms. Chattin advised her that she failed to call in everyday as she was supposed to although she (Chattin) would relay her message to Brian Leverrier. On the following day, June 17, Petitioner reported for work and was directed to report to Patty Jolly, Human Services Program Administrator, South Services Area, Economic Services. Ms. Jolly is overall responsible for eight supervisors who in turn supervise approximately 60 odd employees including Petitioner. When Petitioner reported to Ms. Jolly, she was advised that in accordance with personnel rules and regulations, she had abandoned her job based on her lack of contact with her supervisor for more than three days. (TR 37). Petitioner did not offer any explanation or other reason for failing to advise her supervisor of her need to be absent from work. All employees are provided with a copy of HRS's pamphlet entitled Personnel Employee Handbook. (Respondent's Exhibit 1). Respondent acknowledged receipt of that handbook by executing an acknowledgment. (Respondent's Exhibit 3).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Administration enter a Final Order denying Petitioner's petition for review. RECOMMENDED this 24th day of February, 1987, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of February, 1987.
Findings Of Fact On October 12, 1981, Petitioner pleaded guilty to the felony charge of unemployment compensation fraud, adjudication of guilt was withheld, and Petitioner was placed on probation for one year (Exhibit 2). The probation was terminated by Order Dismissing Warrant entered October 27, 1982 (Exhibit 3). The unemployment compensation fraud resulted from Petitioner's continuing to receive unemployment compensation following his discharge from the armed services after he had obtained full-time employment. The Information charged Petitioner with failure to disclose a material fact, to wit: he reported that he was unemployed while he was in fact working and receiving wages from Pacific Packing Company (Exhibit 2). In Application For Filing for Examination as an Ordinary Life, Including Health, agent dated March 16, 1984, Petitioner, in response to question 11(a) on this application asking if he had ever been charged with a felony, answered, "no." He gave the same answer to question 11(b) which asked if he had ever been convicted of a felony. Petitioner testified that he discussed the completion of this application with a fellow employee of an insurance agency at which he was working; and, since he had, on a earlier application for temporary employment, furnished the information regarding his unemployment compensation fraud conviction to the Department of Insurance, he did not deem it necessary to again report this offense. The fellow employee confirmed that he had discussed this answer with Petitioner and had suggested Petitioner answer the question as he did. Neither petitioner nor this witness satisfactorily answered the Hearing Officer's question how Petitioner could answer no to question 11 and then swear that all answers given on the application are true and correct. Petitioner's minister testified that Petitioner is a deacon in his church and he has found Petitioner to be truthful, honest, and capable of making mistakes and admitting them. As a temporary employee of A. L. Williams Company, a distributor of insurance products, Petitioner was deemed to be truthful, honest, and upright.
The Issue Whether Petitioner timely filed her Employment Complaint of Discrimination ("Complaint") with the Florida Commission on Human Relations ("FCHR"), and, if so, whether FCHR has jurisdiction to entertain Petitioner's Complaint on the merits.
Findings Of Fact Petitioner was previously employed by Respondent as an attorney in its Miami, Florida office. On November 13, 2012, Petitioner tendered her resignation via correspondence entitled a "Notice of Constructive Discharge." The correspondence provided that her resignation would be effective on November 23, 2012. Petitioner's last date of employment with Respondent was November 23, 2012, and she was paid through that date. Petitioner completed a FCHR form entitled Technical Assistance Questionnaire for Employment Complaints ("Questionnare") and signed the same on November 20, 2013. The Questionnare provides on its face the following langauge: "REMEMBER, a charge of discrimination must be filed within 365 days of the alleged act of discrimination." Additionally, the Questionnare describes the principal purpose of the document as follows: The purpose of this questionnaire is to solicit information about claims of employment discrimination, determine whether the Florida Commission on Human Relations has jurisdiction over those claims, and provide charge filing counseling, as appropriate. On December 23, 2013, Petitioner filed an Employment Complaint of Discrimination ("Complaint") against Respondent with FCHR. The Complaint was stamped as received by FCHR on December 23, 2013 at 4:47 p.m. In the Complaint, under section C——"Cause of Discrimination"——Petitioner checked the boxes for sex and retaliation. Petitioner alleged discrimination pursuant to chapter 760 of the Florida Civil Rights Act. The Complaint further alleges that November 23, 2012, was the date that the "most recent discrimination took place." On March 20, 2014, following the completion of its investigation, FCHR issued a Determination: No Jurisdiction, on the grounds that "[t]he complaint was not timely filed."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Commission on Human Relations dismissing the subject petition in its entirety due to lack of jurisdiction. DONE AND ENTERED this 24th day of July, 2014, in Tallahassee, Leon County, Florida. S TODD P. RESAVAGE 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 24th day of July, 2014. COPIES FURNISHED: Violet Denise Crawford, Agency Clerk Florida Commission on Human Relations Suite 100 2009 Apalachee Parkway Tallahassee, Florida 32301 Dietrich Renee Jenkins, Esquire Unit 1503 1861 Northwest South River Drive Miami, Florida 33125 Laurie Michele Chess, Esquire Jones Walker, LLP Suite 2600 201 South Biscayne Boulevard Miami, Florida 33131 Kenneth E. Walton, II, Esquire The Walton Law Firm 1999 Southwest 27th Avenue Miami, Florida 33145 Elizabeth M. Rodriguez, Esquire FordHarrison LLP 100 Southeast 2nd Street Miami, Florida 33131 Cheyanne Costilla, General Counsel Florida Commission on Human Relations Suite 100 2009 Apalachee Parkway Tallahassee, Florida 32301
The Issue This is a proceeding pursuant to the Florida Equal Access to Justice Act, Section 57.111, Florida Statutes, and Rule 60Q-2.035, Florida Administrative Code. Petitioner, Dr. Hoover, seeks to recover his attorney's fees and costs incurred in the defense of an action brought against him by the Department of Professional Regulation, Board of Medicine. The issues for determination are whether Respondent, the state agency charged with regulation of the professional conduct of physicians in the State of Florida, was substantially justified with regard to the initiation of disciplinary proceedings against Petitioner, a licensed physician, in DOAH Case No. 92-2202, DPR Case No. 0104601, and whether, in the absence of such substantial justification, Petitioner is entitled to the award of the amount of attorney's fees and costs sought, or whether special circumstances exist which would make an award unjust.
Findings Of Fact The Department of Professional Regulation, a state agency, initiated action against Dr. Hoover by filing an Administrative Complaint on May 16, 1991, in DPR Case No. 0104601 (Hoover I); Dr. Hoover by election of rights requested a formal hearing; the case was referred to the Division of Administrative Hearings (DOAH) and was assigned DOAH #91-4068. (DOAH Case No. 91-4068: Administrative Complaint, Election of Rights form) The case was set for final hearing on November 13-14, 1991. Dr. Hoover requested a continuance on October 16 because he would be unavailable to assist counsel prepare for hearing. Hearing Officer Robert Meale denied his request. (DOAH Case No. 91-4068: Request for Continuance, Order Denying Continuance) The Department moved for a continuance on October 29th because the primary expert witness had gone to Japan and could not return in time for the hearing or depositions by Dr. Hoover. The Hearing Officer also denied this motion. (DOAH Case No. 91-4068: Petitioner's Motion for Continuance, Order Denying Continuance) On November 5, 1991, the Department filed a Notice of Voluntary Dismissal, Without Prejudice. (DOAH Case No. 91-4068: Notice) The Hearing Officer closed the DOAH file on November 13, 1991. (DOAH Case No. 91-4068: Order) Dr. Hoover then filed a Petition for Fees and Costs on November 21, 1991, and the case was assigned DOAH Case No. 91-7526F. (DOAH Case No. 91- 7526F: Petition) After formal hearing the Petition was denied by the Hearing Officer, who on March 31, 1992, ruled that "the Department has met its burden of showing that the filing of the Administrative Complaint was substantially justified." (DOAH Case No. 91-7526: Final Order) Immediately, without returning the case to the Probable Cause Panel, the Department served the same Administrative Complaint in DPR Case #0104601 on Dr. Hoover (Hoover II). By election of right, he again requested a formal hearing. (DOAH Case No. 92-2202) On April 8, 1992 two cases against Dr. Hoover were referred to DOAH, DPR Case #0104601 and #110008. They were assigned DOAH Case #92-2202 and 92- 2201, respectively, and were assigned to Hearing Officer Mary Clark, who consolidated them without objection. (DOAH Case Nos. 92-2201, 92-2202) Dr. Hoover's counsel withdrew and Mr. Brooten became counsel of record on May 4, 1992. (DOAH Case No. 92-2202) On May 14, 1992, Dr. Hoover filed his Motion to Dismiss DOAH Case #92- 2202. After oral argument the motion was granted by the Hearing Officer on September 16, 1992. (Recommended Order of Dismissal, DOAH Case No. 92-2202) The Hearing Officer held in her Conclusions of Law that the Department of Professional Regulation had no jurisdiction to dismiss a complaint, hold it in abeyance, and refile at its convenience without a new probable cause determination. The Hearing Officer also noted that the passage of time might yield changed circumstances and a changed result. (Recommended Order of Dismissal, DOAH Case No. 92-2202) On October 12, 1992, Dr. Hoover filed a Motion for Attorney's Fees and Costs which was denied without prejudice by the Hearing Officer on October 21, 1992, on the grounds that, without a final order, he was not a prevailing small business party. (DOAH Case No. 92-2202) On October 4, 1992, a Probable Cause Panel of the Board of Medicine again found probable cause in DPR Case #0104601. (Memorandum of Finding of Probable Cause, filed by DPR in DOAH Case No. 93-0168F) By Final Order filed on December 30, 1992, the Board of Medicine dismissed DPR Case #0104601 without prejudice. The Board of Medicine in its Conclusions of Law in the Final Order expounded and clarified the Board's intentions and interpretation of the governing statutes. The Board rejected the Hearing Officer's conclusions, but "in the interest of equity" determined that ". . . the disposition recommended by the Hearing Officer be ACCEPTED AND ADOPTED." (DOAH Case No. 92-2202) On February 8, 1993, the Department served the Administrative Complaint in DPR Case #0104601 (Hoover III) on Dr. Hoover. (Motion to Abate, filed 3/8/93 in DOAH Case No. 92-2201). DPR Case #0104601 (Hoover III) is now pending in the Fifth District Court of Appeal, Case #93-455, on a petition for writ of prohibition by Dr. Hoover. DOAH Case #92-2201 (DPR Case #0110008) is in abeyance, at the request of the parties, awaiting determination by the appellate court on the extraordinary writ. (Order of Abeyance dated 3/17/93 in DOAH Case No. 93-2201) It is uncontroverted that DOAH Case #92-2202 was initiated by a state agency, that Dr. Hoover prevailed when the case was dismissed, and that Dr. Hoover is a "small business party" as defined in Section 57.111(3)(d), F.S. The reasonableness of the claimed fees and costs, $10,376.22, total, is likewise uncontroverted.
The Issue Whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Charge of Discrimination filed by Petitioner on April 22, 2005.
Findings Of Fact Petitioner is an African-American female who began her employment with Respondent on May 7, 2004. Respondent, the Department of Children and Family Services (Department), is an employer within the meaning of the Florida Civil Rights Act. At all times while she was employed by Respondent, Petitioner worked as a child protective investigator (CPI) and was on probationary status. That is, she had not yet achieved permanent status in the Career Service System and was an "at will" employee. After being hired as a CPI, Petitioner received classroom pre-service training and computer training which is provided to every new CPI. Following this initial training, new CPI's are assigned a limited case load, as was Petitioner. Allegations of Race Discrimination Wilfredo Gonzalez is a child protective investigator supervisor (CPIS) and has been a supervisor for approximately 10 years. At all times material to this proceeding he was Petitioner's immediate supervisor. Mr. Gonzalez is an Hispanic male. After Petitioner was assigned cases, she received additional on-the-job training and coaching by Mr. Gonzalez. Other child protective investigator supervisors and experienced CPI staff were also available to the Petitioner to answer questions. The work of new CPIs is carefully scrutinized by supervisors. They are expected to learn from mistakes and become increasingly proficient at the job. Mr. Gonzalez did not give Petitioner a semi-annual performance evaluation at the mid-point of her probationary period due to workload issues, although he was supposed to have done so. However, Mr. Gonzalez regularly met with Petitioner, in his office and in hers, to discuss the progress of her cases and to advise her of areas in which she needed improvement. He also provided e-mail comments and other instruction with regard to her performance on specific cases as well as on Department policy. He also provided her with reports from Respondent's computer case system, HomeSafeNet, which showed whether or not she was meeting certain performance standards. During these communications with Petitioner, Mr. Gonzalez informed Petitioner of problems with her performance. In addition to Mr. Gonzalez, there are two other CPISs in the Alachua County office of Respondent: Haydee Shanata and Patricia Alvarado, who are white females. In instances in which a person's immediate supervisor is unavailable, other CPISs review a CPI's work and deal with other office issues. Because of the nature of the work involved, CPIs and CPISs have to work weekends, nights, and holidays. If a CPI works at a time that his or her immediate supervisor is not on duty, the CPI reports to the CPIS on duty at that time. During the fall of 2004, Ms. Shanata prepared a holiday "on-call" schedule for December 2004. This was done with input from the other CPSIs. Leave was approved for certain employees, including Petitioner, during the holidays. However, due to some CPIs being out due to illness, the holiday on-call schedule had to be revised so that there would be sufficient staff to cover the holidays. The revisions in the holiday on-call schedule placed Petitioner on-call on days that she originally did not have to work. She was upset to see the revised on-call list. Upon learning that she would have to work on days when she originally was not scheduled, she called Ms. Shanata on her cell phone to ask her about these changes. Ms. Shanata explained that the changes were due to not having enough staff scheduled to cover the work. On December 10, 2004, Petitioner complained to Mr. Gonzalez about the revised holiday on-call schedule. During that meeting, Petitioner called CPIS Shanata a liar to Mr. Gonzalez. In addition, Petitioner wrote an e-mail entitled "Poor Holiday Planning." Petitioner sent the e-mail to the three CPISs, Mr. Gonzalez, Ms. Shanata, and Ms. Alvarado. The e-mail also copied their supervisor, Barbara Ross, and the District Administrator, Ester Tibbs. The e-mail reads in pertinent part: I am writing to express my total dissatisfaction with the planning for the holidays by the supervisors here at the Alachua County office. It is apparent to myself as a new employee and should have been apparent to the experienced supervisors here at the Alachua County office that about half of the current staff here is new. I understand that there are some time difficulties and that in the normal day of conducting business that things can be hectic as you are unaware of what may happen however, there is no excuse for poor planning and then FORCING a new investigator to cover three on call shifts during both Christmas and New Years holiday weekends within a seven day work week when originally being scheduled for only one day. As I know that sometimes duty calls however, no organization should infringe on the personal lives of their employees. From this day on, I will be sure not to make plans with my son, as the supervisors here in Alachua County can easily cover their failure to plan properly by dictating to me what time I can spend with my family and when. Also, I was told in a conversation with Haydee Shanata when the schedules were originally created that I did not want to work any more back to back on-call days (clarified by two days within a three day period) and Haydee assured me that she would not schedule me any more back to back days and then I was randomly selected for two additional on-call days which included both Christmas and New Year weekends without my agreement. This e-mail did not complain of race or sex discrimination. The racial composition of those persons whose on-call schedules were changed is not in evidence. Mr. Gonzalez responded the same day with an e-mail that read as follows: Demetria at the writing of your email you had 21 open cases. I was actually locking a case. A case in which I was helping you by going ahead and editing the evidence entries and also entering the findings that you had failed to enter. I was doing this because I know you have been overwhelmed and also to help you get some cases closed that you are soon to roll-over so that you can attend the conference next week. I locked that case and now you have 20 open cases. I try to provide as much support as possible. Earlier this afternoon I pointed out that Myrtle Hodges will be assisting you with your cases so you can get over that hump created by the number of cases you received in Oct. In addition to that--while on-call supervisor for the month of November I specifically limited the number of cases the trainees would receive. In November you were one of the CPI's with the fewest cases at 9 total. This month CPIS Shanata worked hard to try and prevent those staff who will be here at the end of the month from receiving a lot of cases. You are one of those again who benefited. You have been off rotation since Wednesday and as of today you have received only one case for the month of December. On-call is a function of the CPI and CPIS position. This months on- call was an experience unlike any I've experienced since being a supervisor. I have been a supervisor for quite some time. We limited the leave requests we approved. In addition we tried to help persons plan by preparing and presenting the schedules in advance. Since then we've had a CPI out on extended leave as well as other action that limited the number of staff available to accept reports. Because of this we have had to revise the schedule. No doubt that in the work we do, someone has to work holidays and around the holidays. This IS a job that in a sense infringes on our personal lives. Every time I get a call in the middle of the night to assist a CPI investigating a case can be perceived that way but it is not. It's my job. As supervisors we do the best we can and hopefully in the process we learn along the way. Barbara has come to morning meetings and indicated that when there are concerns you should follow the chain of command. Though you addressed the email to me and the other supervisors you copied Barbara as well as Ester Tibbs. Give us the chance to resolve the issues before you send it up the chain of command. (emphasis in original) Incredibly, Petitioner responded with another e-mail to Mr. Gonzales with copies to Ms. Shanata, Ms. Alvarado, and Ms. Ross, accusing the supervisors of being inconsiderate, not courteous or professional, and that the supervisors "shoved it" in her face. On December 15, 2004, Petitioner wrote an apology for the choice of words she used in the series of e-mails regarding the holiday on-call schedule and for violating the chain-of command. Mr. Gonzalez wrote a letter of counseling dated December 27, 2004, to Petitioner regarding her unprofessional behavior toward Ms. Shanata and the insubordinate and disrespectful nature of her e-mails. Mr. Gonzalez admonished her for not following the chain of command and reminded her that she must treat her supervisors and co-workers with respect and courtesy. He also reminded her that she was not a permanent employee and that failure of her to use appropriate behavior would result in her immediate dismissal. The December 27, 2004, memo was the first time that Mr. Gonzalez had issued a counseling memo to Petitioner. Petitioner believes that her e-mail complaining about the holiday on-call schedule was the trigger for what she inaccurately believes was retaliation. Petitioner was scheduled to attend a conference in January 2005. The conference, referred to as the Dependency Summit, involved participants from throughout Florida and involved discussions and training that was separate from the general training given to CPIs when they begin employment with the Department. At some point, Petitioner's name was removed from the list of persons approved to attend the conference. Of the seven CPIs approved to attend the conference, four were African-American. During the early months of 2005, both Mr. Gonzalez and Ms. Shanata expressed concerns over Petitioner's work performance. Ms. Shanata sent several e-mails to Mr. Gonzalez documenting incidents in which Petitioner failed to respond to her e-mails requesting information or directing action on a case. Of particular concern was Petitioner's failure to contact law enforcement on cases in which law enforcement should have been called, such as cases involving sex abuse allegations. According to Ms. Shanata, if a criminal act has occurred, law enforcement must be notified immediately and they then take the lead in the case investigation. Mr. Gonzalez had instructed Petitioner on several occasions to involve law enforcement immediately in certain types of investigations. On March 7, 2005, Ms. Shanata received a telephone call from Detective Sherry French of the Alachua County Sheriff's Office regarding cases assigned to Petitioner that should have been referred to law enforcement, but had not. Ms. Shanata's supervisor, Ms. Ross, instructed Ms. Shanata to review Petitioner's cases which Detective French called her about. During her review, Ms. Shanata became concerned about Petitioner's handling of a case that involved a child who had been taken to the hospital on December 31, 2004. In that case, the child had tears to her vaginal area, which is an indication of possible sexual abuse. Ms. Shanata noted that Ms. Alvarado had "backed down" the case from being classified as an immediate case to a 24-hour case. In this type of case, it is important that the Child Protection Team become involved immediately to conduct their examination of the child, as vaginal tears heal quickly. Ms. Shanata discussed this case with Ms. Alvarado who recalled the circumstances of the case. According to Ms. Alvarado, Petitioner informed Ms. Alvarado that the Child Protection Team had seen the child, which led Ms. Alvarado to authorize that the case be "backed down." Ms. Alvarado considered receiving inaccurate information regarding a case of this nature to be an extremely serious problem. During her review, Ms. Shanata found other cases in which Petitioner had not followed Department policy and operating procedures. Ms. Shanata reported her findings to her supervisor, Ms. Ross, and to Mr. Gonzalez in an e-mail dated March 10, 2005. On March 24, 2005, Petitioner was directed to take a child to the Child Advocacy Center for a forensic interview. However, she failed to do so. In addition to these job performance issues, Mr. Gonzalez and Ms. Shanata expressed concern that Petitioner was habitually late to morning meetings at which cases are presented and discussed. On March 24, 2005, Mr. Gonzalez completed a Performance Evaluation of Petitioner. Performance ratings range from one to five points, with "5" being the highest rating in any category. A rating of "2" means that the employee's performance sometimes meets expectations and needs improvement. Petitioner received a "2" rating in three performance expectations. Her overall rating was a 2.70. A rating of "3" means that an employee's performance consistently achieves expectations. On March 29, 2006, Mr. Gonzalez wrote a memorandum to Marc Williams, District Operations Manager, detailing concerns about Petitioner's work and recommending that Petitioner be removed from her position. Mr. Williams is a white male. Petitioner was reassigned to a non-CPI position on March 26, 2005. She received the same pay and benefits during her period of reassignment. Consistent with Department policy, the reassignment was done abruptly and Petitioner was no longer allowed access to the Department's case management system. Petitioner requested a meeting with Mr. Gonzalez and Mr. Williams. Petitioner met with Mr. Gonzalez, Mr. Williams and Bonnie Robison on March 29, 2005, to discuss the Department's concerns and to give her a chance to present her side of the story. Petitioner was presented with a copy of her performance appraisal at this meeting. At the meeting, Petitioner requested a list of the issues regarding her job performance and an opportunity to respond to their concerns. The meeting lasted two to three hours. Petitioner was provided a bulleted list of concerns on April 1, 2005, which contained issues of concern that Mr. Williams felt she had not adequately refuted at the March 29, 2005, meeting. Petitioner provided a response on April 6, 2005. Probationary employees may be fired at will. The employing agency only needs to notify the employee that he or she has failed to complete the probationary period. Although probationary employees may be fired at will, Mr. Williams does not lightly recommend dismissal of a CPI investigator. However, Mr. Williams expects mistakes to diminish over time and, in Petitioner's case, the mistakes had not diminished and supervisors found that she was not receptive to coaching. Further, Mr. Williams felt that they had reason to doubt Petitioner's word. He recommended Petitioner's dismissal to Ester Tibbs. Ester Tibbs is the District 3 Administrator of the Department. She has the final authority in making the decision with regard to whether or not to terminate an employee. Ms. Tibbs is an African-American woman. According to Ms. Tibbs, she expects supervisors and managers to present compelling reasons as to why a probationary CPI should not be retained in a permanent status. This is because recruitment and training of CPIs are costly and terminating a probationary CPI interrupts investigations and adds to the workloads of other CPIs. In order to make the decision to terminate the employee, she must be convinced that the Department has provided appropriate training, necessary coaching, and support and that, despite their best efforts, she is convinced that the employee cannot carry out the demands of the job. Ms. Tibbs approved Petitioner's termination. On March 31, 2005, Petitioner filed a Career Service Employee Grievance seeking reinstatement of employment, and modification of her performance appraisal. The grievance alleges that she had been harassed by Mr. Gonzalez, Ms. Shanata, and Ms. Alvarado; that she disagreed with her performance appraisal; and that she was discriminated against based on sexual orientation on July 1, 2005. The grievance does not allege race discrimination. As a probationary employee, Petitioner was not entitled to a grievance process regarding her dismissal. The record is not clear as to whether Petitioner should have been provided an opportunity to grieve the portion of her grievance relating to her performance appraisal, since she had already been informed she was being terminated at the time she filed the grievance. In any event, there is no evidence that not granting her request for a grievance process was based upon race. Other Employees in the Alachua County Office of Respondent Amanda Mash is a senior CPI with five years experience and permanent career service status. Ms. Mash is a white female. She was frequently late to morning meetings. However, if she was going to be late for a morning meeting, she called to let her supervisor know that she would be late. She has turned in cases late. She has not received disciplinary action. Ms. Mash never called a supervisor late at night and failed to inform of critical information; never failed to take a child to a child advocacy center appointment when asked to do so; never failed to respond to e-mails from supervisors asking information about cases; never neglected to submit her files to her supervisor when required to do so; and never called her supervisor a liar. Melissa Delcher is a CPI and is a white female. In February 2005, she interviewed a child in a case that was not assigned to her. The case was assigned to Petitioner. The child had disclosed to Ms. Delcher that he had been hit, but she did not see any visible signs of injury. According to Ms. Delcher, she did not contact the child protection team or law enforcement because the case was not assigned to her. Crystal Long-Lewis, an African-American female, was secretary for Mr. Gonzalez from July 2003 through April 2005. She was terminated from her position for conduct unbecoming a state employee and falsifying documents. She was a permanent career service employee at the time of her termination. It is Ms. Long-Lewis's perception that she was not treated fairly because of her race and her young age. She believed that there was favoritism of white CPIs over non-minority CPIs. Myrtle Hodges, an African-American female, became a probationary CPI when her other job with the Department was privatized. She received a below standards evaluation and was encouraged to resign rather than face termination. When asked was it possible that she was terminated based upon her race, she responded, "No, I don't think I was terminated on race." Torrey Kincade, an African-American male, was a CPI in the Alachua County office until he was transferred to another city where he currently works for Respondent. His supervisor while in Alachua County was Ms. Alvarado. He believes that when he worked for Ms. Alvarado, that she targeted him by giving him more tasks and "riding him" harder than a non-minority CPI. He believes he was held to a different standard regarding the dress code. He also believes that he did not receive as high a pay increase as his coworkers, who did not testify. There was no evidence presented as to employees' salaries or amount of pay increases for Mr. Kincade or any of his coworkers. Regarding his perception of the office while he worked under Ms. Alvarado's supervision, he stated, "I definitely--I can't say its discriminatory behavior, but I could say that each minority in the office was at one point targeted." Monica Felder is an African-American female who was employed by the Department for approximately a year and a-half. She was terminated from employment in January 2006 for personal misuse of the cell phone issued to her by the Department and failure to reimburse the Department for the personal calls. As a permanent career service employee, she appealed her dismissal to the Public Employees Relations Commission which affirmed her dismissal. In March 2005, Ms. Felder had received a satisfactory performance appraisal from Ms. Alvarado. Ms. Alvarado made positive comments on Ms. Felder's March 2005, performance evaluation. In January 2004, an employee of Respondent sent an e- mail to Ms. Tibbs regarding concerns about Ms. Alvarado, including an allegation of racism. Ms. Tibbs determined that an internal investigation was needed, and one was conducted. The investigative report concluded that while certain employees held this perception, there was no evidence that Ms. Alvarado targeted anyone based on race. The remaining allegations concerned Ms. Alvarado's management style. Allegation of Sex Discrimination In July 2004, Mr. Gonzalez was approached by another CPI in his unit. Mr. Gonzalez was informed by the CPI that Petitioner had been seen hugging another female CPI in her office in a "romantic way." He instructed that person not to repeat that information and then conferred with his supervisor at that time, Lori Walker. As a result of hearing this allegation, Mr. Gonzalez called Petitioner into his office and told her that there was a rumor in the office that she was having a relationship with another female employee, that her conduct needed to be professional, and that she should keep her door open when that CPI was in her office.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 29th day of September, 2006, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS 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 September, 2006.
The Issue Whether Respondent's alleged repeated absences without receiving prior approval from her supervisor in December 1998, and January and February 1999, alleged insubordination and conduct unbecoming a school board employee, constitute just cause for termination/discipline.
Findings Of Fact The employment relationship between the School Board and the Respondent is subject to the terms and conditions of collective bargaining agreement between the School Board and the Seminole Educational Clerical Association, Inc. (SECA). The Respondent, Helena Clark, is currently employed by the Petitioner, School Board, as a Finance Cashier assigned to the Human Resources Department. Her direct supervisor is John Reichert, Director. The Superintendent of Public Schools of Seminole County, Florida, is authorized to recommend the suspension and termination of non-instructional employees to the School Board. The School Board is authorized to suspend and terminate non-instructional employees upon the recommendation of the Superintendent of Public Schools, provided that just cause for suspension and termination is present. The Respondent is currently under suspension without pay pending the outcome of the administrative hearing process. Prior to being employed in the Human Resource Department, Respondent was employed for several years as a finance clerk in the school district's finance department. In settlement of disciplinary proceedings for misconduct, Respondent was given a two-day suspension without pay. In addition, Respondent was transferred from the Finance Department to the Human Resources Department on February 5, 1997. At that time, Respondent was instructed that she should perform her duties in a professional and courteous manner. Respondent complied with the directive to conduct herself in a professional and courteous manner for about the first six months of her tenure in the Human Resources Department. Thereafter, Respondent began engaging in unprofessional and discourteous conduct directed to other employees on a regular basis, including: "Shooting them a bird;" spraying one fellow employee with Lysol spray; and making threatening gestures to two employees in a manner that reasonably caused them to believe that their physical safety was in danger. Additionally, Respondent failed to follow procedures for notifying her supervisor that she required personal leave with pay for December 23, 1998; vacation leave for January 12 and 13, 1999; and personal leave without pay for December 18, 1998. Because the leave requests were submitted after the fact, in violation of the Petitioner's published policies and the terms and conditions of the collective bargaining agreement, they were denied. Respondent was deemed to have been "absent without leave" on each of the respective days. Initially, Respondent's supervisor, John Reichert, intended to recommend a five-day suspension without pay for the "absent without leave" infractions. However, following her meeting with Reichert, Respondent engaged in unprofessional, threatening, and discourteous conduct directed to Barbara Williams, Mary Kristeff, and Barbara Thayer. He then determined to recommend that she be terminated. Prior to being transferred to Human Resources Department pursuant to the agreement of February 5, 1997, Respondent had an extensive disciplinary record involving unprofessional and discourteous conduct while assigned to the Finance Department. Respondent's conduct had a negative effect upon the day-to-day operation of the Human Resources Department. Respondent's conduct in December, January, and early February 1999 was insubordinate and conduct unbecoming a School Board employee. Just cause for the termination of Respondent has been shown.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Seminole County School Board find that Respondent's actions constitute absence without approved leave, insubordination and conduct unbecoming a school board employee; and that Respondent's conduct constitutes just cause for termination. DONE AND ENTERED this 3rd day of August, 1999, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 3rd day of August, 1999. COPIES FURNISHED: Ned N. Julian, Jr., Esquire Seminole County Public Schools Educational Support Center 400 East Lake Boulevard Sanford, Florida 32773 Dr. Paul J. Hagerty, Superintendent School Board of Seminole County Educational Support Center 400 East Lake Boulevard Sanford, Florida 32773 Helena Clark 1114 West 8th Street Sanford, Florida 32771
The Issue The issue is whether Petitioner's application for a real estate license may lawfully be denied based on her criminal history.
Findings Of Fact The Commission is a state licensing and regulatory agency charged, inter alia, with granting or denying real estate licenses. Certain administrative services are provided to the Commission by the Division of Real Estate (Division) of the Department of Business and Professional Regulation (Department). Ms. Ellis, at the time of the hearing, was a 34-year- old female residing in Tallahassee, Florida. She is currently employed as a legal secretary and has held a commission as a notary public in Florida since 1997. On July 20, 2007, a DBPR 0010-2 Master Individual Application, prepared by Ms. Ellis, was received by the Department. The application sought a real estate sales associate license. In a letter dated August 7, 2007, the Department notified Ms. Ellis that her application was incomplete. Specifically, the letter noted that she had checked the "yes" block on the inquiry addressing criminal matters and requested additional information with regard to her involvement with the criminal justice system. The letter also requested matters, labeled "Questions 2, 3, and 4," that were not relevant to her application. In a letter dated October 23, 2007, Ms. Ellis responded to the demand for additional information. She provided the Department with letters of recommendation written by her father, Tallahassee attorney Vinson Barrett, and fellow legal secretary Adriana Bernstein. The gist of the letters was that she is a good worker, honest, an exemplary mother, trustworthy, and maintains good working relationships with her fellow workers. In a letter dated October 29, 2007, she provided additional documents illuminating her involvement with the criminal justice system. Despite her input, the Commission rejected her application at its November 14, 2007, meeting. Ms. Ellis did not attend this meeting. The Commission recited findings of fact using reference "keys" as follows: CRIMES IN APPLICATION Applicant's criminal record is revealed in application. * * * UNPERSUASIVE TESTIMONY Applicant's testimony or evidence in explanation/mitigation was unpersuasive. CRIMES RECENT Applicant's criminal history is recent in time. PATTERN OF CRIME Applicant's criminal history shows a pattern and practice of criminal behavior over an extended period of time. * * * The Commission made the following conclusions of law: * * * Failing to demonstrate: honesty, truthfulness, trustworthiness and good character, a good reputation for fair dealing, competent and qualified to conduct transactions and negotiations with safety to others. 475.17(1)(a), 475.181 F.S. Having engaged in conduct or practices which would have been grounds for revoking or suspending a real estate license. 475.17(1)(a), 475.181 F.S. * * * F. Found guilty of a course of conduct or practices which show applicant is so incompetent, negligent, or dishonest that money, property, and rights of others may not safely be entrusted to applicant. 475.25(1)(o), 475.181 F.S. * * * Applicant is subject to discipline under 475.25 (specify), 475.181 F.S. The Commission concludes that it would be a breach of its duty to protect the health, safety, and welfare of the public to license this applicant and thereby provide him/her easy access to the homes, families, or personal belongings of the citizens of Florida. 455.201, F.S. A "Summary of Applicants, FREC Meeting: November 14, 2007" prepared for the Commission meeting in Ms. Ellis' case, is inaccurate, and unless read closely and supplemented with additional facts, would cause a reasonable person to believe that Ms. Ellis was convicted of four offenses. In fact, she was found guilty of two offenses, battery and stalking. Although it is apparent that the Commission once had rules in place that perhaps provided guidance in relation to the standards expected of an applicant's behavior, the rules have been repealed and new rules have not be adopted. The events giving rise to the findings recited by the Commission, relate to incidents arising from Ms. Ellis' interaction with law enforcement authorities while a resident of Tampa, Florida. Ms. Ellis moved into Ms. Lisa Nawrocki's home at East 99th Street, in Tampa during the latter part of 1998 with her two children. She and Ms. Nawrocki had a series of disputes with their neighbors. From late 1998 until October 1999, law enforcement was summoned by Ms. Ellis, Ms. Nawrocki, or their neighbors on 30 occasions. On January 31, 1999, Ms. Ellis was arrested for a battery precipitated by a dispute with one of her neighbors. She pleaded not guilty, but was found guilty of battery at a bench trial. She was sentenced on May 26, 1999, to one year of probation and community service. Ms. Ellis was also directed to attend an anger management class. Ms. Ellis alleged to the media that she and Ms. Nawrocki were victims of "hate" crimes. Ms. Ellis asserted to the media that their difficulties with their neighbors arose because she was a homosexual. Ms. Ellis was arrested again on August 25, 1999, as a result of a confrontation with neighbors. The neighbors were witnesses against Ms. Ellis in another case so she was charged with witness tampering. In order to avoid a trial and possible imprisonment, with attendant separation from her children, she pleaded guilty to the lesser offense of stalking and was sentenced to one year of probation on October 27, 1999. Because the latter offense was a violation of probation on the battery offense of January 31, 1999, her probation was revoked. She was sentenced to 30 days in jail. After serving six days in jail Ms. Ellis was released after promising the judge that she and Ms. Nawrocki would move out of their troubled neighborhood on East 99th Street, and relocate to Tallahassee, Florida. Ms. Ellis did in fact move to Tallahassee and has experienced no involvement with the criminal justice system since her move. Her probation, resulting from the battery conviction was successfully completed on March 7, 2000. Her probation resulting from the stalking charge, which was continued subsequent to her release from confinement, was successfully completed on May 15, 2001. All of the charges resulted from the neighborhood dispute that began late 1998 and ended with her departure from her neighborhood early in November 1999. There is no record of Ms. Ellis' involvement with the criminal justice system before or since these events. The period of the neighborhood dispute is insufficiently long to be termed as "a pattern and practice of criminal behavior over an extended period of time." Ms. Ellis' unrebutted testimony at the hearing was that since the end of 1999, she has been employed as a legal secretary in Tallahassee. Ms. Ellis testified that she works with confidential attorney-client matters and that she has maintained the accounts of law firms. Ms. Ellis' testimony at the hearing is supported by the written evidence of record, including a letter penned by Attorney Vinson Barrett, who stated that she was honest and trustworthy. Her testimony is deemed credible.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Real Estate Commission withdraw its Notice of Intent to Deny the Application of Dawn J. Ellis, if she is otherwise qualified, that the Commission certify to the Department of Business and Professional Regulation that Dawn J. Ellis has satisfied the applicable statutory and rule criteria for licensure as a real estate sales associate. DONE AND ENTERED this 25th day of March, 2008, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER 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, 2008. COPIES FURNISHED: Dawn J. Ellis 3409 Cedarwood Trail Tallahassee, Florida 32312 Garnett Chisenhall, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399 Thomas W. O'Bryant, Jr., Director Division of Real Estate Department of Business and Professional Regulation Suite 802 - North Tower 400 West Robinson Street Orlando, Florida 32801 S. W. Ellis, Chairman Florida Real Estate Commission Department of Business and Professional Regulation 400 West Robinson Street, Suite 801N Orlando, Florida 32801 Ned Luczynski, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue in this case is whether an interpretation of Section 458.331(1)(jj), Florida Statutes, by the Board of Medicine is an agency statement which violates Section 120.54(1)(a), Florida Statutes (2007), pursuant to Section 120.56(4), Florida Statutes.
Findings Of Fact These findings of fact, with a few changes based upon the stipulated record in this case, are facts contained in the Joint Stipulation: The Parties. Petitioner Franciso Vazquez, M.D., is a licensed medical doctor within the State of Florida, having been issued license number ME 68742. Respondent Board of Medicine (hereinafter referred to as the “Board”), is charged with regulating the practice of medicine pursuant to Section 20.43 and Chapters 456 and 458, Florida Statutes. Dr. Vazquez’s address of record is 4595 Palm Beach Boulevard, Fort Myers, Florida 33905. DOAH Case No. 07-0424PL, Dr. Vazquez’s Disciplinary Case. Dr. Vazquez signed a written opinion in the form of an Affidavit on September 5, 2003, as required by Section 766.104(1), Florida Statutes (2003), in support of a medical malpractice action related to the death of C.L. Dr. Vazquez named approximately 40 doctors and one hospital in the sworn statement. The sworn statement generally stated that each of the defendants committed medical negligence and a breach of the prevailing professional standard of care in a multitude of ways, but did not specify which doctor committed which negligent act or how any individual doctor breached the prevailing standard of care. Dr. Vazquez further asserted in this sworn statement that the negligence and breach of the prevailing professional standard of care of all the doctors caused injury, damage and ultimately the death of C.L. That sworn statement ultimately formed the basis for a civil malpractice action filed on February 2, 2004, in the Circuit Court of the Sixth Judicial Circuit of Florida, in and for Pinellas County, Civil Division, Case Number 04-875CI-7. On or about February 22, 2005, circuit court judge Bruce Boyer of the Circuit Court of the Sixth Judicial Circuit of Florida, in an for Pinellas County, Civil Division, in case Number 04-875CI-7, entered an order of dismissal as to two defendant doctors. In the order of dismissal, Judge Boyer stated that the Dr. Vazquez was not a gastroenterologist and did not otherwise appear to be qualified to comment on the defendants’ care and did not appear to have made any reasonable effort to investigate and determine what role the [two] defendants played in C.L.’s care. Dr. Vazquez was not provided with any notice of the hearing on February 22, 2005, and neither he nor anyone acting on his behalf was present at the hearing to defend his interests. The court forwarded its order to the Division of Medical Quality Assurance as required by Section 766.206(5)(a), Florida Statutes (2003). On or about May 3, 2006, an Administrative Complaint was issued against Dr. Vazquez charging him with a one count violation of Section 458.331(1)(jj), Florida Statutes (2003), which subjects a physician to license discipline for “being found by any court in this state to have provided corroborating written medical expert opinion attached to any statutorily required notice of claim or intent or to any statutorily required response rejecting a claim without reasonable investigation.” The recommended penalties for a violation of Section 4458.331(1)(jj), Florida Statutes (2003), include revocation of the physician’s license. Dr. Vazquez is the first and only physician in Florida who has been formally charged with violating Section 458.331(1)(jj), Florida Statutes (2003). On or about January 22, 2007, the Department of Health referred Case No. 2005-03579 (DOH v. Francisco Vazquez, M.D.) to the Division of Administrative Hearings (hereinafter referred to as the “DOAH”) for a formal evidentiary hearing on the Administrative Complaint pursuant to Chapter 120, Florida Statutes. The case was assigned DOAH Case Number 07-0424PL. The case was assigned to the undersigned. On or about March 1, 2007, Dr. Vazquez filed a Motion to Relinquish Jurisdiction in the administrative proceeding, advising the court of his intent to file his constitutional challenge to Section 458.331(1)(jj), Florida Statutes, in circuit court and arguing the DOAH should relinquish jurisdiction until after the Leon County Circuit Court has ruled on his constitutional challenge. On or about March 5, 2007, Dr. Vazquez filed a Petition for Declaratory Action and/or Injunctive Relief in the Second Judicial Circuit Court in and for Leon County, Florida, alleging that Section 458.331(1)(jj), Florida Statutes, is unconstitutional under the U.S. and state constitutions, in that it allows disciplinary action against a physician’s license based exclusively on the existence of a court order entered in a proceeding in which the physician, acting as a presuit medical expert, is not a party and has no right to notice and an opportunity to be heard. The case was assigned case number 2007-CA-0663. On or about March 19, 2007, an Order Denying Motion to Relinquish was entered by the undersigned. On or about March 21, 2007, a hearing was held before the undersigned on Dr. Vazquez’ Motion to Continue Hearing. At the hearing, counsel for the Department of Health, argued that it is her client’s position that Section 458.331(1)(jj), Florida Statutes, only requires proof of the existence of a court order that includes the language mentioned in the statute and that, once this is proven, there is no opportunity for the physician to dispute the findings of the court order. The Department of Health’s argument was accepted by the undersigned. On or about April 17, 2007, after a formal administrative hearing was conducted but before a recommended order was issued, the Department of Health filed a Motion to Reopen the Hearing and Record and Schedule Evidentiary Formal Hearing. In the motion, the Department of Health urged the undersigned that a new interpretation of Section 458.331(1)(jj), Florida Statutes (2003), should be accepted, stating: It is the [Department of Health’s] position that Section 458.331(1)(jj), Florida Statutes, creates a rebuttable presumption. Under this interpretation, to create a prima facie case, the Department must prove that [Dr. Vazquez] was found to have provided a corroborating written affidavit in support of a notice of a claim without reasonable investigation. [Dr. Vazquez] may rebut such a showing by demonstrating that, notwithstanding the finding, his investigation was in fact reasonable. On or about May 8, 2007, the undersigned denied the Department of Health’s Motion to Reopen, holding that its new interpretation of Section 458.331(1)(jj), Florida Statutes (2003), is contrary to any reasonable reading of the statute. On or about July 5, 2007, the Department of Health filed its Exceptions to the Recommended Order of the undersigned in DOAH Case No. 07-0424PL, in which it reasserted that the correct interpretation of Section 458.331(1)(jj), Florida Statutes (2003), is the one set forth in its Motion to Reopen Hearing (quoted in paragraph 20, supra). On or about July 6, 2007, Dr. Vazquez filed his Reply to Petitioner’s Exceptions urging that, even if Petitioner’s new interpretation of Section 458.331(1)(jj), Florida Statutes, were to be adopted and applied to this case, the case should be dismissed and sent back to the probable cause panel for a determination made based upon the new interpretation. On or about August 10, 2007, a meeting of the Board was held in Fort Lauderdale, Florida at which the Board approved the Department of Health’s Exceptions to the Recommended Order and entered an Order remanding the case back to the DOAH for a “de novo hearing so that findings may be entered consistent with the Board of Medicine’s reading of Fla. Stat. § 458.331(1)(jj), as set forth in this order.” By accepting the Department of Health’s Exceptions, the Board adopted as its own, the interpretation of Section 458.331(1)(jj), Florida Statutes (2003), asserted by the Department of Health in its Motion to Reopen the Hearing and Record and Schedule Evidentiary Formal Hearing and quoted in paragraph 20, supra. In light of the fact that the Board has the final authority over its interpretation of the laws it is charged with applying, the Order of Remand was accepted by Order Accepting Remand and Reopening File entered September 17, 2007. On or about January 8, 2008, Dr. Vazquez filed his Motion to Dismiss Administrative Complaint and Remand to Agency for Probable Cause Determination, again arguing that the probable cause determination made against him was based on a reading of the statute which is substantially different than the reading that the Board adopted in the Order on Remand. The Department of Health opposed this motion. The motion was denied by an Order entered by the undersigned on January 18, 2008. The final hearing on remand in DOAH Case No. 07-0424PL was held on January 29, 2008, pursuant to Section 120.57(1), Florida Statutes. In his Amended Petition, Dr. Vazquez has challenged the statement adopted by the Board through its Order of Remand. That statement, which is quoted in paragraph 20, supra, will hereinafter be referred to as the “Challenged Agency Statement.” The Challenged Agency Statement has not been adopted a rule pursuant to Section 120.54(1), Florida Statutes, and the Board has not initiated any rule-making procedures in this regard. The Board has not argued or presented evidence to support a finding that rule-making is not feasible and practicable under Section 120.54(1)(a), Florida Statutes.
The Issue Whether Petitioner Rafael Oropesa is entitled to licensure as a Florida registered trainee real estate appraiser.
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: Petitioner applied for licensure as a trainee appraiser. Respondent, an agency of state government, is charged with the duty of licensing and regulating Florida real estate brokers, sales associates, schools and appraisers. With particular relevance to the instant case, it is Respondent's responsibility to investigate the qualifications of individuals who apply for licensure as trainee appraisers, and to issue licenses to applicants who meet the licensure criteria set forth in relevant provisions of the Florida Statutes. Respondent determined that Petitioner did not meet licensure criteria and denied his application. Respondent requires applicants to submit, in writing, information relevant to its investigation of the qualifications of individuals who apply for licensure as trainee appraisers. Respondent prescribes the form and detail required of applicants in submitting such information. More specifically, applicants are provided application forms approved by Respondent (application forms). The application forms include detailed, specific, and unambiguous questions and instructions. Applicants are required to "attest" that they read the questions asked in the application and answered the questions "completely and truthfully to the best of [applicant's] knowledge." Once a completed application is submitted, Respondent's staff commences to verify information provided and attested to by the applicant, and to make a recommendation regarding the applicant's qualifications for licensure. Respondent reviews staff recommendations and makes a determination as to whether the applicant meets licensure criteria; based upon its determination, Respondent grants or denies licensure. Upon review and investigation of the information provided and attested to by Petitioner, staff determined that Petitioner failed to meet licensure criteria and recommended that his application for licensure be denied. The staff recommendation was based upon Petitioner's criminal record, which included three felony convictions for crimes involving moral turpitude, as well as Petitioner's failure to disclose two of the convictions in such form and detail as Respondent prescribes. At a meeting held October 3, 2005, Respondent considered Petitioner's application and afforded Petitioner a full opportunity to present whatever information he wished Respondent to consider. Following discussion of Petitioner's criminal record, and his failure to disclose two of the convictions, Respondent concluded that Petitioner had not demonstrated that he met licensure criteria. The evidence established and Petitioner admits that on or about February 20, 1991, the Circuit Court of the 13th Judicial Circuit, in and for Hillsborough County, Florida (the Court) adjudicated Petitioner guilty of three felonies he committed on or about April 19, 1990: attempted arson; armed burglary of a structure; and making, possessing, throwing, placing, projecting, or discharging a destructive device. Petitioner broke into the referenced structure, a building which housed a bar owned by a business competitor, for the purpose of destroying the structure and its contents. Following Petitioner's conviction, the Court pronounced sentence of 30 years in prison, of which 15 were suspended at the time of sentencing. Petitioner served two years in prison, at which time he was released and placed on probation. Petitioner was released from probation on or about October 27, 2000. On or about August 2, 2005, Petitioner filed his application forms. The application forms include "background information" questions, one of which asks if the applicant has ever been convicted of crime(s) other than minor traffic offenses. Applicants who answer this question in the affirmative are unambiguously instructed to provide "full details of any criminal conviction . . . including the nature of any charges, dates, outcomes, sentences, and/or conditions imposed; the dates, name and location of the court and/or jurisdiction in which any proceedings were held or are pending. . . ." (full details). Applicants are directed to supply full details on a separate form known as DBPR 0050-1--- Explanatory Information for Background Questions (form 0050- 1). Form 0050-1 contains space for applicants to list the crimes of which they have been convicted and to provide the required full details with respect to each offense. Having answered the background question regarding criminal conviction(s) in the affirmative, Petitioner filled out form 0050-1. On it, he disclosed only his conviction for attempted arson; he failed to reveal his contemporaneous convictions on the charges of armed burglary of a structure and making, possessing, throwing, placing, projecting, or discharging a destructive device. Petitioner does not claim that he did not understand the form and detail Respondent had prescribed with reference to the disclosures required to be made on the application forms in general and form 0050-1 in particular. Rather, he attempted to justify his failure to disclose, claiming under oath that he had attached "court documents" (documents) to his application; that the documents he furnished fully disclosed all required information; and that the documents had been lost by Respondent. Assuming arguendo that Respondent has discretion to grant licensure to an applicant who chooses to submit documents in lieu of submitting an application in the form and detail prescribed by Respondent, this Petitioner is not a candidate for the exercise of such discretion. The fact-finder had the opportunity to closely observe Petitioner's demeanor as he testified that he had attached documents to his application, and that the documents fully disclosed all information required to be disclosed by applicants with criminal backgrounds. On direct and cross- examination with respect to the documents, as well as with respect to matters of lesser significance, Petitioner was evasive and on occasion combative. Petitioner's testimony regarding the documents was not corroborated in any way. The fact-finder does not believe that Petitioner attached documents to his application; it follows that Respondent did not lose any documents. There is no persuasive evidence that Petitioner's application was mishandled in any way. Even if the fact-finder credited Petitioner's uncorroborated testimony to the effect that he had furnished full details regarding his criminal history, the crimes themselves are sufficiently egregious to warrant a denial of licensure. Each of the Petitioner's crimes involved moral turpitude. Each related directly to the activities of a trainee appraiser, in that each was calculated to cause the destruction of real and personal property. In this case, the property Petitioner sought to destroy belonged to the owners of a business competitor. Petitioner's crimes victimized not only the owners of the structure, but also their employees, customers, and vendors. Because trainee appraisers have substantial access to the property of sellers and purchasers, a record of crimes against property raises grave concerns as to an applicant's fitness for licensure. Petitioner's crimes reflect depraved indifference to the lives of individuals who may have been in the structure at the time the crimes were committed, as well as to the lives of the firefighters and police who would forseeably be called upon to put out the fire and to pursue the individual(s) who committed the crimes. Licensure is limited to applicants who demonstrate competence and qualifications to make real estate appraisals with safety to those with whom they may undertake a relationship of trust and confidence. Petitioner's crimes demonstrate that he lacks the requisite trustworthiness, competence, and qualifications for licensure. Petitioner's failure to reveal two of his felony convictions on form 0050-1 furnishes an independent basis upon which licensure should be denied. Form 0050-1 as attested to by Petitioner was an attempt to obtain a license by means of knowingly making a false statement, submitting false information, refusing to provide complete information in response to an application question. Petitioner's form 0050-1 was a knowing fraud, misrepresentation, and concealment with respect to information at the heart of Respondent's discharge of its duty to assure that applicants meet statutory criteria for licensure.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent enter a final order denying Petitioner's application for licensure as a Florida registered trainee real estate appraiser. DONE AND ENTERED this 13th day of July, 2006, in Tallahassee, Leon County, Florida. S FLORENCE SNYDER RIVAS 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 13th day of July, 2006. COPIES FURNISHED: Brian J. Stabley, Esquire Department of Legal Affairs The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 John R. Sutton, Esquire John R. Sutton & Associates, P.A. 7721 Southwest 62nd Avenue, Suite 101 South Miami, Florida 33143 Frank Gregoire, Chairman Real Estate Appraisal Board Department of Business and Professional Regulation 400 West Robinson Street, Suite 801N Orlando, Florida 32802-1900 Josefina Tamayo, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
