Findings Of Fact From August 15, 1967, until his retirement on April 1, 1991, Jackson continued to serve as a game management specialist and a laboratory technician (Petitioner's Exhibit No. 9). As part of his duties, Mr. Jackson would perform controlled burns and post wildlife areas. However, Col. Robert Brantly, the Executive Director of the Commission since 1977 and an employee of the Commission since 1957, stated that those duties were not law enforcement duties and were commonly done by biologists and other non-law enforcement personnel. James A. Carpenter testified that Mr. Jackson worked on controlled hunts and was responsible for the check stations. However, the Commission hired civilians to perform that job, and Col. Brantly stated that the operation of a check station was not a law enforcement function. Mr. Jackson's Commission ID card contained the statement as contained in the Recommended Order, Findings of Fact No. 9. The ID card shows that Mr. Jackson was an "employee" of the Commission and not a "law enforcement Officer". Col. Brantly, was and is a certified law enforcement officer, testified that he had two (2) identification cards (Respondent's Composite Exhibit 2). The first card stated as follows: This card identifies: Robert M. Brantly as a Certified Florida Law Enforcement Officer who has complied with Section 943.14(1) (2), Florida Statutes, and Section 11B-7, relating to Standards and Training Col. Brantly's second ID card contained the following statement: Certificate of Appointment Pursuant to Section 372.07 Florida Statutes State of Florida at Large Be it known that Colonel Robert M. Brantly is a regularly constituted officer of the Florida Game and Fresh Water Fish Commission with full arrest powers to bear arms and to execute and fulfill the duties of said office. This appointment is in full effect until revoked. Dated this 1st day of March, 1990 Col. Brantly's ID card states he is an "officer" with full police powers while the ID cards of Jackson and Carlton Chappel, a biologist employed by the Commission, state that they are "employees" with full authority to enforce the laws relating to protection of the environment and wildlife resources. In fact, the ID cards of Mr. Jackson and Mr. Chappel are identical. (Compare Petitioner's Exhibit No. 7 with Respondent's Exhibit No. 6) Col. Robert Brantly, Executive Director of the Commission, testified concerning Mr. Jackson's claim. Col. Brantly began his career with the Commission in 1957 as a wildlife officer, became the Deputy Director in 1974 and Director in 1977. He has been and is currently a law enforcement officer and has had special risk membership in FRS. He stated that Mr. Jackson and several others classified as game management specialists had been given law enforcement powers in the mid-1960's and had certain limited duties with respect to enforcement of the state fish and game laws. When the Police Standards Commission was established in 1972, Mr. Jackson and the others were "grandfathered" by Police Standards as law enforcement officers. He testified that the Commission had two (2) classes of law enforcement officers in the 1960's and 1970's. Wildlife officers were full time law enforcement officers whose primary duties were law enforcement. Game management specialists were not considered to be law enforcement officers and had no duties in law enforcement. As an exception to that rule were Mr. Jackson and some other game management specialists who had been "grandfathered" in as law enforcement officers by the Police Standards Commission in 1972. These individuals had law enforcement authority but were considered by the Commission to be part-time law enforcement officers. Col. Brantly stated that law enforcement was not a part of their primary or essential duties. The amount of law enforcement that each of the game management specialists performed was up to each individual, but law enforcement was not a duty required of any of them. For example, one of the above specialists could perform no law enforcement activities if he did not want to. Col. Brantly testified that controlled burning was a wildlife management practice and not a law enforcement activity. He stated that the operation of hunt check stations was not a law enforcement activity, and the check stations were manned by citizens of the area. Likewise, posting of the management areas was not a law enforcement activity. Jackson introduced Exhibit No. 10 from the Commission clarifying the Police Standards Board ruling. Field personnel other than those in the Law Enforcement Bureau were "auxiliary officers" who were to call a wildlife officer to the scene of the violation for the arrest, if possible. Petitioner's Exhibit No. 11 makes it even clearer and also explains the policy and the attachment thereto. The attachment, Administrative Directive No. 25, clearly states that "(w)ildlife management duties will remain the first priority job for Division personnel", with clear guidelines for open and closed hunting seasons. The work week was 40 hours with no deviation permitted. Thus, the primary duty of Jackson was game management and not law enforcement. In September, 1979, a number of problems concerning the law enforcement powers of the game management specialists forced Col. Brantly as the agency head to remove the certification (law enforcement powers) from the game management specialists with such power such as Mr. Jackson. The removal of the certification was effective September 6, 1979 (Respondent's Exhibit No. 1, letter to Don Dowling). In Petitioner's Exhibit No. 14, the memorandum from Col. Brantly of September 27, 1979, he made it abundantly clear that the wildlife (game) management specialists were part-time law enforcement personnel. Toby Harris, the personnel officer for the Commission since December, 1979, also testified on both State and Commission personnel practices. He had previous service with the Pay and Classification Section of the Department of Administration and had worked in pay and classification for a state agency for 25 years. He was admitted as an expert in the area of state pay and personnel classification. Mr. Harris stated that at the time Jackson's position questionnaires or descriptions were prepared, it was a requirement that the employee himself prepare the section on "duties and responsibilities" and assign the percentages of time on the form. These forms were not mass produced by the agency but were individually crafted for each job and for each employee. Mr. Harris stated quite emphatically that the position description is (and was for the period in question) the most important document in a state employee's personnel file. It is only on the basis of that position description that the employee knew what his duties were and knew the criteria upon which he would be evaluated. He identified the letter of October 10, 1975, from Brantley Goodson, Director, Division of Law Enforcement, concerning Jackson's status as a grandfathered law enforcement officer in a part-time position. Harris also stated that the evaluations for Jackson up to the early 1970's were above average and that after that date, they were average. The Florida Department of Law Enforcement, Police Standards Commission, kept the files for the Police Standards Commission for all state agencies with law enforcement officers. The records showed whether or not a law enforcement officer was considered full-time, part-time or an auxiliary officer. According to the records of the Commission , Mr. Jackson was considered a full- time law enforcement officer from March 1, 1965, until August 15, 1967, and a part-time law enforcement officer from August 15, 1967, until September 27, 1979, when he was removed from any law enforcement activities by the Commission. Carlton Chappel, an employee of the Commission, testified that in the late 1960's and during the 1970's, he and all field personnel of the Commission, including game management specialists, were issued the same uniforms, badges and identification cards as wildlife officers. On an "as needed basis", the field personnel would be assigned to field duty and had the power to make arrests and enforce the game and fish laws of the State; however, during this time, he did not consider himself to be a law enforcement officer and never had applied for such status. His identification card was identical to the ID card of Mr. Jackson. He further stated that all game management specialists had to prepare work plans for each management area to explain the work that was to be done during the upcoming fiscal year. These work plans included both State and federal projects. (Respondent's Exhibit No. 7) The work plans for the fiscal years 1969-70 and 1970-71 for Mr. Jackson were introduced (Respondent's Exhibit No. 7) and show for FY 1969-70 that Mr. Jackson spent his time in the following projects: PROJECT NO. OF PAY PERIODS Wildlife Research Project 2 No. W-48-4 No. W-35 Mgt. Area Develop. 18 Apalachee Mgt. Area 10 Robert Brent Mgt. Area 4 Point Washington Mgt. Area 2 The work plans for the 1970-71 fiscal year show that Mr. Jackson spent his time on the following projects: PROJECT NO. OF PAY PERIODS Fed. Statistical Harvest & Inventory 1 Fed. Statewide Mgt. Area Development 10 State Hunts 8 State-General Game Management 7 TOTAL PAY PERIODS 26 SPECIFIC PROJECTS NO. OF PAY PERIODS Wildlife Inventory, Harvest & Economic Survey (Project No. W-33-21) 1 Development and Operations (Project No. W-35-20) 10 State-Apalachee Wildlife Mgt. Area 10 Carolyn McGlamery, an employee of the Division, testified that Jackson had transferred from SCOERS to the FRS during the initial transfer period effective December 1, 1970. She further testified about the statutes and the various changes over the years and the administrative rules that concerned high hazard membership under SCOERS and then special risk membership under FRS.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered denying Petitioner's application for high hazard or special risk membership in either SCORES or FRS. DONE and ENTERED this 31st day of March, 1992, at Tallahassee, Florida. DIANE 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 1st day of April 1992.
The Issue Whether Petitioner, who was convicted of three felony counts in federal court, must forfeit his rights and benefits under the Florida Retirement Systems (FRS), pursuant to Section 112.3173, Florida Statutes (2006).1 Whether Petitioner's conviction in U.S. District Court in the underlying criminal case is not final because a petition for writ of habeas corpus, based upon ineffective assistance of trial counsel, is pending in the U.S. District Court.
Findings Of Fact Based on the joint exhibits and joint stipulation of facts submitted by the parties, the following findings of fact are made: The Division of Retirement (Respondent) is charged with the responsibility of managing, governing, and administering the FRS on behalf of the Department of Management Services. The FRS is a public retirement system, as defined by Florida law. As such, Respondent's proposed action regarding the forfeiture of Petitioner's rights and benefits under the FRS are subject to administrative review. Petitioner was formerly employed by the Charlotte County Sheriff's Department as a deputy sheriff. Petitioner retired from the aforesaid employment and began receiving FRS benefits in March of 2003. Petitioner is a special risk class member of the FRS. On May 28, 2003, Petitioner was charged by Incident in the U.S. District Court for the Middle District of Florida, Fort Myers Division, in case number 2:03-cr-00065, with (1) One Count of Deprivation of rights under color of law, in violation of 18 U.S.C. Section 242; (2) One Count of engaging in misleading conduct, in violation of 18 U.S.C. Section 1512(b)(3); and (3) One Count of making a false statement, in violation of 18 U.S.C. Section 1001. On September 18, 2003, a Superseding Indictment was entered charging the same offenses. Count One of the Superseding Indictment, dated September 18, 2003, provides: On or about May 21, 2002, in Charlotte County, in the Middle District of Florida, defendant WYATT O. HENDERSON, who was then employed as a detective with the Charlotte County, Florida Sheriff's Department, while acting under color of the laws of the State of Florida, did willfully deprive C.G., a juvenile, resulting in bodily injury to C.G. and did thereby willfully deprive C.G. of the right preserved and protected by the Constitution of the United States not to be deprived of liberty without due process of law, which includes the right to be secure in his person and free from the intentional use of unreasonable force by one acting under color of law. All in violation of Title 18, United States Code, Section 242. 18 U.S.C. Section 242 provides, in relevant part: Whoever, under color of any law, . . . willfully subjects any person in any State . . . to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, or to different punishments, pains, or penalties, on account of such person being an alien, or by reason of his color, or race, that are prescribed for the punishment of citizens, shall be fined under this title or imprisoned not more that one year, or both; and if bodily injury results from the acts committed in violation of this section or if such acts include the use, attempted use, or threatened use of a dangerous weapon, explosives, or fire, shall be fined under this title or imprisoned not more than ten years, or both. . . . Count Two of the Superseding Indictment provides: On or about May 22, 2002, in Charlotte County, in the Middle District of Florida, defendant WYATT O. HENDERSON, who was then employed as a detective with the Charlotte County, Florida Sheriff's Department, did knowingly engage in misleading conduct toward another person, with intent to hinder, delay or prevent the communication to a law enforcement officer of information relating to the commission or possible commission of a Federal offense, namely, Deprivation of Rights Under Color of Law, as charged in Count One of this Indictment, by submitting to Sergeant Jerry White of the Charlotte County Sheriff's Department an incomplete and inaccurate statement regarding the arrest on or about May 21, 2002, of C.G., a juvenile. In violation of Title 18, United States Code, Section 1512(b)(3). 18 U.S.C. Section 1512(b)(3) provides, in relevant part: (b) Whoever knowingly uses intimidation, threatens, or corruptly persuades another person, or attempts to do so, or engages in misleading conduct toward another person, with intent to -- * * * (3) hinder, delay, or prevent the communication to a law enforcement officer . . . of information relating to the commission or possible commission of a Federal offense . . .; Shall be fined under this title or imprisoned not more that ten years, or both. Count Three of the Superseding Indictment provides: On or about October 4, 2002, in Charlotte County, in the Middle District of Florida, defendant WYATT O. HENDERSON, who was then employed as a detective with the Charlotte County, Florida Sheriff's Department, did knowingly and willfully make a false and fictitious statement and representation of material fact in a matter within the jurisdiction of the Federal Bureau of Investigation, an agency of the United States, in that the defendant stated and represented while being interviewed by agents of the Federal Bureau of Investigation, that on or about May 21, 2002, prior to pushing C.G., a juvenile, to the ground, the defendant threw his handgun into the window of his car, whereas the defendant then knew that on or about May 21, 2002, he did not throw his handgun into the window of his car prior to pushing C.G., a juvenile, to the ground. In violation of Title 18, United Stated Code, Section 1001. 18 U.S.C. Section 1001 provides, in relevant part: Except as otherwise provided in this section, whoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully -- falsifies, conceals, or covers up by any trick, scheme, or device a material fact; makes any materially false, fictitious, or fraudulent statement or representation; or makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry; Shall be fined under this title, imprisoned not more that 5 years . . . or both. The charges contained in the Superseding Indictment were committed prior to Petitioner's retirement under the FRS. On December 10, 2003, a jury returned a verdict of guilty of all three counts in the Superseding Indictment. On March 12, 2004, the Amended Judgment in a Criminal Case was entered on the aforesaid verdict, by the Honorable Anne C. Conway, United States District Judge. Therein, Petitioner was adjudicated guilty of all counts charged in the aforesaid superseding indictment. Petitioner was sentenced to a term of imprisonment in the custody of the United States Bureau of Prisons. Petitioner appealed his conviction and in an opinion issued on May 23, 2005, the U.S. Court of Appeals for the Eleventh Circuit, in case number 04-11545, affirmed the aforesaid judgment in part, vacated the same in part, and remanded the case to the District Court. See United States v. Henderson, 409 F.3d. 1293 (11th Cir. 2005), certiorari denied, 126 S.Ct. 1331 (2006). The Circuit Court issued its mandate on July 26, 2005. On May 3, 2006, a Judgment on Remand in a Criminal Case was entered by the District Court on the aforesaid verdict, wherein Petitioner was again adjudicated guilty of all counts charged in the aforesaid Superseding Indictment and was re- sentenced. An appeal was again taken and in an opinion issued on December 22, 2006, the U.S. Court of Appeals for the Eleventh Circuit, in case number 06-12816, affirmed the aforesaid judgment on remand. See United States v. Henderson, 211 Fed. Appx. 919, 2006 U.S. App. LEXIS 31565 (11th Cir. 2006). The Circuit Court issued its mandate on January 22, 2007. On July 24, 2006, Petitioner filed a Petition for Writ of Habeas Corpus and Motion to Vacate and Set Aside Sentence in the U.S. District Court for the Middle District of Florida, in case number 2:06-cv-00373. Said Petition and Motion are now pending before the U.S. District Court (M.D. Fla.). On March 19, 2007, Petitioner received the Notice of Action to Forfeit Retirement Benefits signed by Sarabeth Snuggs, State Retirement Director, by certified letter, dated March 15, 2007. The letter advised Petitioner of the proposed agency action to forfeit his FRS rights and benefits as a result of the above referenced conviction. Petitioner timely requested a formal hearing before an Administrative Law Judge to challenge the proposed agency action.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order forfeiting Petitioner's rights and benefits under the FRS. DONE AND ENTERED this 10th day of September, 2007, in Tallahassee, Leon County, Florida. S 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 10th day of September, 2007.
The Issue The issue in this case is whether the Respondent should grant the Petitioner's application for licensure as a "community association manager."
Findings Of Fact The Petitioner, George Charles Fair, applied for licensure as a "community association manager" on or about April 26, 1992. His application included three character references. Licensure as a "community association manager" is a license to perform community association management services to one or more associations containing more than 50 units, or having an annual budget or budgets in excess of $100,000. A "community association manager" is licensed to control or disburse funds of a community association, prepare budgets or other financial documents for a community association, assist in the noticing or conduct of community association meetings, and coordinate maintenance for the residential development and other day-to-day services involved with the operation of a community association. Performance of the functions of a "community association manager" involves specialized knowledge, judgment and managerial skill; it is not a clerical or ministerial position under the direct supervision of another. It can involve writing checks, disbursing association funds, accounting for and depositing unit owner assessments, some of which might be paid in cash, placing association funds in investment accounts, and budgeting association funds. Depending on the size of the association, a "community association manager" could have access to subtantial sums of money in the form of cash, credit cards, and checking accounts. On or about August 20, 1990, the Petitioner pled guilty to and was convicted of one federal felony count of misapplication of bank funds. While an officer with the Southeast Bank in Dunedin, Florida, the Petitioner made a supposed loan of approximately $60,000 to a fictitious borrower. He personally used the proceeds of the supposed loan. For a time, he paid the interest on the "loan." But when he did not repay the "loan," the bank discovered what the Petitioner had done and reported him to the authorities. Upon his conviction for the offense, the Petitioner was sentenced to ten months in prison. After serving the prison term, the Petitioner was released under the supervision of a probation officer for a period of 24 months. The Petitioner also was ordered to pay restitution to the Southeast Bank "in the amount of $61,634.92 in payments under such terms and conditions as prescribed by the probation office." The Petitioner is making small monthly payments at this time due to his lack of funds and unemployment. The Petitioner's federal conviction is for conduct that is related to the work of a "community association manager." Despite the Petitioner's character references, cooperation with federal authorities and personal assurances that he would not repeat the kind of conduct that resulted the federal conviction, inadequate time has passed for the Petitioner to be able to prove that he has rehabilitated himself so as to be trusted handling others' money. The Petitioner testified that he was conditionally offered a job that primarily would involve soliciting community association clients for a property management company. He understood that licensure as a "community association manager" would be necessary for him to get and perform the job. That is why he applied for licensure. The Petitioner's testimony at final hearing was to the effect that the real reason he asked for formal administrative proceedings was to raise objections to the manner in which his application was processed by the Respondent. First, he felt that he was invited to apply for licensure despite his conviction, and to pay his application fee, although his conviction was enough to preclude licensure. Second, he felt that the process took too long, especially if denial was a foregone conclusion in view of the conviction. Third, the application was denied although his references were not contacted by the Respondent. As to the Petitioner's first complaint, it was not demonstrated that the Petitioner fully explained to the representatives of the Respondent with whom he spoke on the telephone, before he applied, the nature of the offense for which he was convicted. To the contrary, he asked generally whether a felony conviction necessarily would preclude licensure, and he was told, "not necessarily." He testified that he did not think it would make any difference what kind of felony it was. As to the second complaint, the process indeed seemed to be unduly prolonged. The Petitioner received no response to his application by June 17, 1992, and telephoned to inquire. He was told the application was just sent "downstairs" for investigation of the criminal conviction. He then got a letter asking for an explanation of the conviction, and he supplied the information by letter dated June 26, 1992. In two subsequent telephone inquiries, the Petitioner was told that his application was "in process." In three telephone inquiries on August 18 and 19, 1992, the Petitioner was told that the person responsible for his application was on vacation until August 24, 1992. The Petitioner called the person back on August 24 and was told that his application was on her desk but that she had to review it. She called the Petitioner the next day to tell him that his application was being denied, but the written Notice and Order of Rejection was not issued until on or about October 22, 1992. As for the third complaint, the evidence was that the Petitioner's written character references in his application were considered even though the references themselves were not personally contacted. The Petitioner suggested, as a compromise resolution to his license application, that he be issued a conditional license. He envisions that the job he has been offered, conditioned upon his licensure, will not require that he handle funds but only that he solicit association clients for his employer. He suggests the issuance of a conditional or probationary license that would not allow him to handle money for a time certain. The Respondent's agency policy and practice is not to issue "conditional" or "probationary" or "conditional" licenses, or the like.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Respondent enter a final order denying the Petitioner's application for licensure as a "community association manager." RECOMMENDED this 24th day of March, 1993, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 24th day of March, 1993. COPIES FURNISHED: George Charles Fair 1540 Fife Court Dunedin, Florida 34698 Jeanne M. L. Player, Esquire Assistant General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007 Henry M. Solares, Director Florida Land Sales, Condominiums, and Mobile Homes Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee Florida 32399-1000 Donald D. Conn, Esquire General Counsel Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee Florida 32399-1000
The Issue The issues to be resolved in this proceeding concern whether the Petitioner, Community Health Charities of Florida (CHC), is entitled to an award of attorney's fees and costs as a "prevailing small business party" pursuant to Section 57.111, Florida Statutes (2008), by being a prevailing small business party in the underlying case of Community Health Charities of Florida, et. al v. Florida Department of Management Services, DOAH Case No. 07-3547, Recommended Order February 29, 2008; Final Order May 29, 2008. Also, at issue is whether the Respondent Agency's actions, with regard to the underlying case, were substantially justified or whether special circumstances exist which would render an award of attorney's fees and costs unjust.
Findings Of Fact This cause arose upon the filing of a motion or petition for attorney's fees and costs on July 22, 2008, by the Petitioners, CHC and the Charities (the American Liver Foundation, Cystic Fibrosis Foundation, Crohn's and Colitis Foundation, Prevent Blindness Florida, Children's Tumor Foundation, March of Dimes, Lupus Foundation of America, Florida Chapter, Florida Hospices and Palliative Care, Hemophilia Foundation of Greater Florida, National Parkinson Foundation, American Diabetes Association, Leukemia and Lymphoma Society, American Lung Association, ALS Association, Alzheimer's Association, Juvenile Diabetes Research Foundation, Arthritis Foundation, Florida SIDS Alliance, Sickle Cell Disease Association of Florida, Easter Seals Florida, St. Jude Children's Research Hospital, Muscular Dystrophy Association, Nami Florida, National Kidney Foundation, National Multiple Sclerosis Foundation, Huntington's Disease Society of America, and Association for Retarded Citizens). This attorney fee and cost motion was filed in connection with the above Charities having received distribution of undesignated contributions from the 2006 Florida State Employees' Charitable Campaign (FSECC). The Charities made application for the funds and then contested the initial decision of the Steering Committee charged with determining distribution of undesignated contributions (by fiscal agent area). Ultimately, after obtaining a Writ of Mandamus from the First District Court of Appeal, requiring an administrative proceeding and hearing before the Division of Administrative Hearings on the contested claims, the Charities received additional distribution of undesignated contributions. Those additional distributions represent an additional benefit the Charities received upon the entry of the Recommended Order and the Final Order in the underlying proceeding. Therefore, one Petitioner, CHC, in the motion for attorney's fees and costs asserts that it is thus a prevailing party and a small business for purposes of Section 57.111, Florida Statutes, and is entitled to an award of attorney's fees and costs. The Respondent is an Agency of the State of Florida with authority to establish an maintain the FSECC.1/ It administers the decision-making process involving distribution of undesignated funds and issued the Final Order in the original proceeding. The attorney fee and cost proceeding was initially assigned to Administrative Law Judge Charles Adams. Thereafter the case was re-assigned to Administrative Law Judge T. Kent Wetherell, II. He issued an Order, sua sponte, on July 29, 2008, instructing the Petitioners to show cause why the case should not be held in abeyance pending disposition of the appeal of the Final Order in Community Health Charities of Florida v. State of Florida, Department of Management Services, 1D08-3126, the appeal before the First District Court of Appeal. The Petitioners filed a response to the Order to Show Cause stating, in essence, that the issues preserved for appeal involved discreet claims under Section 120.56(4), Florida Statutes. The parties agreed that the portions of the Final Order in the underlying proceeding which granted undesignated fund distributions to the Charities were separable, and not the subject of the appeal to the First District Court of Appeal in the above-cited case. The parties thus stipulated that the case could proceed on the matter of fees and costs, notwithstanding the pending appeal. An Order was entered by Judge Wetherell on August 11, 2008, based upon the responses to the Order to Show Cause. The Order references the parties' agreement that the case could go forward notwithstanding the pending appeal of the Final Order in the underlying case and then, significantly, Judge Wetherell made the following finding: "a closer review of the motion [the motion seeking the award of attorney's fees and costs] reflects that the only Petitioner alleged to be a prevailing small business party entitled to an award of fees under that statute [Section 57.111, Florida Statutes] is Community Health Charities of Florida." Judge Wetherell thereupon proceeded to order that the case style be amended to identify Community Health Charities of Florida (CHC), as the "only Petitioner in this fee case." The Petitioner, CHC, is a Florida non-profit corporation that employs less than 25 full-time employees and has a net worth of less than two million dollars. It is a "federation" under the FSECC Act. A "federation" is defined as an umbrella agency that supplies "common fund raising, administrative and management services to . . . charitable constituent member organizations. . . ." Fla. Admin. Code R. 60L-39.0015(1)(j). Federations were required to file with the Committee (the Steering Committee) a Direct Local Certification Form, describing the direct services that each member charity provided in the various fiscal agent areas. In this capacity, the Petitioner CHC represented 27 member charities in the 2006 charitable campaign. Charitable organizations that provide "direct services in a local fiscal agent's area" are entitled to receive "the same percentage of undesignated funds as the percentage of designated funds they receive." § 110.181(2)(e), Fla. Stat. (2006). CHC is not a provider of services or direct services. Therefore, it, itself, did not receive any undesignated funds. The charitable organizations named above, are the entities which received undesignated funds related to direct services they provided in local fiscal agents' areas. Some received them through the initial decision of the subject Steering Committee, and some after the underlying administrative proceeding was litigated through Final Order. On February 28, 2007, the Steering Committee, under the Respondent's auspices, conducted a public meeting in which it found the charities named above provided direct services in 18 percent of the fiscal agent areas in which they had applied. The Committee therefore denied Charities their share of undesignated funds in the remaining fiscal agent areas. That Committee decision was announced by memorandum of March 12, 2007, which provided the Petitioners with a point of entry to dispute the initial decision in an administrative proceeding. On March 30, 2007, the Petitioners filed an Amended Petition which alleged that they had provided direct services in all the fiscal agent areas in which they applied for undesignated funds, and identified alleged deficiencies in the Committee's decision-making process. That Amended Petition was ultimately referred to the Division of Administrative Hearings for conduct of a formal proceeding, by Order of the First District Court of Appeal, requiring the Agency to refer the Amended Petition to the Division of Administrative Hearings. With the Amended Petition pending before the Division of Administrative Hearings, the Steering Committee called an unscheduled meeting on September 10, 2007, to further address the Petitioners' claims and re-visit the earlier decision denying some applications for undesignated funds. Thereafter, the Respondent changed its initial decision by increasing the percentages of fiscal agent areas where direct services were provided and undesignated funds awarded to the Petitioners, the Charities, as a result of the September 10, 2007, meeting. This percentage thus increased from 18 percent to 77 percent as a result of "additional review of material provided by Petitioners." The Respondent Agency ultimately rendered a Final Order that adopted the decision of the Statewide Steering Committee, approving 77 percent of the Petitioners' previous submittals, as well as the finding of the Administrative Law Judge with regard to the three additional member charities. The Respondent had maintained in the original proceeding that the Committee must limit its consideration to the Direct Local Certification Form. The Petitioners, on the other hand, argued that they were entitled to a de novo review of the Agency action before the Division of Administrative Hearings. Reserving ruling on that matter, Judge Adams permitted the Petitioners, at the Final Hearing, to introduce additional evidence of direct services provided in those fiscal agent areas in which their applications had been denied by the Committee. The issue of direct services was considered de novo before the Division. The judge considered not only the direct local services certification form, but also supporting evidence of direct services introduced by the Petitioners at the Final Hearing. On considering that evidence, the Administrative Law Judge found that three additional member charities, not previously approved by the Committee, had provided direct services, which entitled them to receive undesignated funds. The Final Order entered by the Respondent Agency adopted the Administrative Law Judge's ruling. No exceptions were filed to that Recommended Order, thus the Agency waived its appellate rights with respect to any issue it might have raised, and the Charities prevailed as to the relief they sought in the Amended Petition. In their affidavits filed with the Motion for Attorney's Fees and Costs on July 22, 2008, the attorneys Byrne and Hawkins, for the above-named Petitioners, stated that they were "retained" by those Petitioners, meaning all the above- named charities and also the Petitioner CHC. In the affidavits they stated that those Petitioners "incurred" the attorney's fees and costs to which the affidavits relate. As stated above, the attorney's fee Motion was filed and joined-in by all the above-named charities and CHC. The Petitioners in the underlying case, which was appealed to the First District Court of Appeal, were all the above-named charities and CHC. Nonetheless, the Petitioner CHC took the position at the hearing in this proceeding that an agreement or understanding existed with the affiliate charities, whereby CHC would bear the attorney's fees and costs on behalf of all the affiliate charities. CHC has an agreement concerning how revenue it receives is shared with its national office and member charities. CHC pays its national office a percentage of revenue. It sends money to the national office and the national office also sends an allocation of funds to CHC. CHC is a member of the Arlington, Virginia-based Community Health Charities of America. For the fiscal year beginning July 1, 2006, CHC withheld 25 percent of charitable donations from Florida employees to its affiliated charities as its fee. This is the maximum amount authorized by Florida law in order for it to participate in the FSECC. § 110.181(1)(h)1., Fla. Stat. (2006). In the 2006 campaign at issue, CHC did not file an application in its own name to the Steering Committee for receipt of undesignated funds. As Ms. Cooper testified "we did not apply." CHC received no allocation or award of undesignated funds either in the initial Steering Committee consideration process or as a result of the underlying proceeding through the Agency's Final Order. All the undesignated fund distributions were made to the charities themselves, who were the entities who filed applications to the Steering Committee seeking receipt of undesignated funds. The Steering Committee, which made the initial decisions about distribution of undesignated funds is composed of appointed volunteers. The members of the committee are not compensated and do not have support staff to assist them in their fact-finding review of applications concerning receipt of undesignated funds. The committee members personally review all applications. Review of the applications takes many hours by each member of the committee, much more time than is spent in actual committee meetings. The combined net worth and number of employees of some or all of the Charities, was not established. It was not established that the net worth of one or more of the charities filing this Motion for Attorney's Fees and participating as Petitioners in the underlying case, is less than two million dollars, nor that one or more of them have less than 25 employees. The legislature appropriated $17,000.00 dollars to DMS to administer the FSECC for 2006. Substantially more than that appropriated sum has been expended by DMS to administer the campaign. DMS has no insurance coverage which would pay attorney's fees and costs if they were awarded. DMS is also subject to at least a four percent budget "hold back" for the current fiscal year and is contemplating laying off employees in January 2009, due to budget reductions. If DMS is ordered to pay attorney's fees and costs to CHC, DMS will bill the fiscal agent, United Way, for payment of those amounts from the FSECC charitable contributions. Contrary to the situation with the Petitioner Charities, who made the original filing of the Amended Petition in the underlying case and were named as parties in the filing of the Motion for Attorney's Fees at issue in this case, CHC did offer evidence that its net worth was less than two million dollars and that it had less than 25 employees. Thus, it established this threshold for being considered a small business party. It is also true, however, that the Recommended Order from the Administrative Law Judge and the Final Order from the Agency in the underlying proceeding specifically make no mention of CHC as a prevailing party and award nothing of benefit to CHC, as opposed to the other actual charities, who filed the subject applications.
The Issue Administrative determination of validity of Rule 22B-1.05(3)(b), Florida Administrative Code, pursuant to Section 120.56, Florida Statutes.
Findings Of Fact The Petitioners have been employed with the Metro Dade County Department of Public Safety as fingerprint technicians for approximately two and one-half years. They perform identical duties in the identification section of the department and both have completed the required police officer minimum standards training. They are sworn regular deputy sheriffs and are on call to enforce the law on a twenty-four hour day basis. However, normally they work a regular shift in the identification section which primarily involves fingerprinting of individuals at that location and examination of crime scenes, vehicles, weapons and other items for latent fingerprints. They must be available to respond to emergency situations and provide assistance in disasters or cases of mass arrests. In connection with their duties, they are required to regularly bear a firearm and qualify periodically in firearms training. They have arrest powers and may be called upon to arrest or assist in the arrest of violators of the law. In the course of their duties at the identification section, they maintain physical custody of individuals being detained in criminal cases. Occasionally, it is necessary to employ force to process recalcitrant or aggressive detainees or prisoners. These officers have received threats from prisoners in the past and consider themselves to be under a certain amount of stress as a result of such incidents in the performance of their duties. (Testimony of Blynn, Crawford, Exhibits 3-4) In the spring of 1977, both Petitioners filed applications with Respondent Division of Retirement for special risk membership in the Florida Retirement System. Their employer certified that their positions were hazardous and met the statutory and regulatory requirements for special-risk membership. They were advised by identical letters from Robert L. Kennedy, Jr., State Retirement Director, on August 12, 1977, that their job descriptions did not support the statement on their application that their primary duties and responsibilities in the position required them to regularly hear a firearm or other weapon, apprehend and arrest law violators or suspected law violators, and to maintain physical custody of prisoners within a prison or detention facility or while being transported. The letters stated: "Accordingly, I am not able to conclude that your continued performance of these duties beyond fifty-five, normal retirement age for special risk members, would jeopardize your physical or mental well-being." The letter further stated that since they did not meet the criteria established by Rule 22B-1.05 C. 2., Florida Administrative Code, nor meet any of the additional criteria in subparagraphs A through D of the rule, the applications were denied, reserving, however, the right for Petitioners to submit revised job descriptions that might more accurately describe their primary duties and responsibilities. Thereafter, on September 1, 1977, the director of the Metropolitan Dade County Public Safety Department wrote to Mr. Kennedy and submitted a revised job description which emphasized the requirement that fingerprint technicians maintain physical custody of prisoners in the course of their duties. However, by letter of November 8, 1977, Kennedy informed the Petitioners that the additional information did not provide adequate information that their continued performance of duties beyond age fifty-five would jeopardize their physical or mental well-being and adhered to his original decision. Petitioners thereafter challenged the decision in separate current administrative proceedings and also filed the present rule challenge. (Exhibits 3,4) Applications for special risk membership are referred to staff personnel in the Division of Retirement who prepare a recommendation of approval or disapproval for the Director of Retirement. After further review by she division legal staff, the decision is made by the director based on the criteria of the division rules and any applicable court decisions. There is no "check list" or other detailed standards or requirements upon which such decisions are based. The retirement director determines on an ad hoc basis as to whether or not an employee is engaged in such duties as to indicate a need for early retirement because of the hazardous or strenuous type of work involved in the primary duties of particular position. The director based his decision to deny special-risk membership to Petitioners because their primary duty was fingerprint technician and he was being consistent with previous decisions in which fingerprint technicians in other areas of the state had been denied special-risk membership. Although a number of fingerprint technicians in the Dade County Public Safety Department do hold special-risk membership, their membership was approved prior to the requirement that job descriptions be furnished along with the application for membership. The division has no staff personnel who are medically qualified, nor has any study been done of the effect on the physical and mental well-being of individuals who perform such duties. (Testimony of Kennedy - Depositions Exhibits 5, 6) The history of Rule 22B-1.05(3)(b) , Florida Administrative Code, shows that it was originally promulgated on January 1, 1972, as Rule 22B-1.05C. It was substantially amended on October 20, 1972, to read as follows: The criteria which shall be used by the employer and the Administrator in determining that a position shall be classified as a special-risk position are: It must first be determined that the position falls into the category of peace officer, law enforcement officer, policeman, highway patrolman, custodial job in a correctional agency employee whose duties and responsibilities involve direct contact with inmates, but excluding secretarial and clerical employees, fireman, or any other job in the field of law enforcement or fire protection. Once it is determined that the position falls into one of the categories of positions enumerated in (1), the positian shall be considered hazardous and classified as special risk if in the judgement of the administrator, continued performance of the primary duties and responsibilities of the position beyond the normal retirement age for a special-risk member will constitute a hazard to the public and the member's fellow workers or will jeopardize the physical and well-being of the member, and at least one of the following statements applies to the position: The duties and responsibilities of the position require that the incumbent regularly bear a firearm or other weapon. The incumbent of the position in the performance of his primary duties and responsibilities is required to apprehend and arrest law violators or suspected law violators. The primary duty and responsibility of the incumbent of the position is to maintain physical custody of prisoners within a prison or detention facility or while being transported. The duties and responsibilities of the position require that the incumbent fight fires, other than controlled fires set for instructional purposes. (Emphasis Added) On December 31, 1974, the rule was again adopted after a public hearing to meet the requirements of the new Administrative Procedure Act. On August 9, 1976, the portion of Rule 22B-1.05 C. 2. that stated "will constitute a hazard to the public and a member's fellow workers" was repealed to comply with a court decision rendered in Florida Sheriffs Association v. State of Florida, Department of Administration, Division of Retirement, 332 So.2d 36 (Fla. 1st DCA 1976). The notice of this intended action as required by Section 120.54(1), F.S., contained the following statement: "ESTIMATE OF ECONOMIC IMPACT ON ALL AFFECTED PERSONS: The repeal of this rule will not have any economic impact." On January 16, 1977, Rule 22B-1.05 was further amended to add a new subparagraph D which established procedures for applying for special-risk membership and for the disposition of applications for such membership. Subparagraphs A through C were unchanged. In the notice of the agency's intended action, it was stated: "ESTIMATE OF ECONOMIC IMPACT: This rule is procedural in nature and therefore has no economic impact." At some unknown date thereafter, Rule 22B-1.05C was renumbered and is presently shown in the Florida Administrative Code as 22B-1.05(3). (Composite Exhibit l)
The Issue Whether Petitioner has shown, by clear and convincing evidence, that he is rehabilitated from his disqualifying offenses, and, if so, whether Respondent's intended action to deny Petitioner's request for an exemption from employment disqualification would constitute an abuse of discretion.
Findings Of Fact Respondent is the state agency charged under chapter 393 with regulating the employment of persons who seek to become employed working in positions of trust with persons with disabilities. Petitioner is seeking to start and operate a group home, Sunshine Loving Care, for persons with developmental disabilities. Petitioner plans to serve as an administrator for Sunshine Loving Care and performs work as a direct service provider. Petitioner is required to have a background screening before becoming a provider of services. The Department of Children and Families ("DCF") administers the background screening process for APD. Petitioner's background screening identified two criminal convictions: a burglary and larceny stemming from the same June 2, 1995, incident. On June 24, 2016, DCF notified Petitioner that he was disqualified from employment due to his criminal history and specifically because of the two disqualifying offenses, burglary and larceny. On or around November 14, 2016, Petitioner submitted a request for exemption and supporting documentation ("exemption package") to Respondent. On March 17, 2017, Agency Director Barbara Palmer advised Petitioner by letter that his request for an exemption from the disqualifying offenses was denied. The basis for the denial was that Petitioner failed to submit clear and convincing evidence of his rehabilitation. On or about April 10, 2017, Petitioner requested to appeal APD's denial. At the hearing, as well as in the exemption package considered by APD, Petitioner took full responsibility for the incident regarding his disqualifying offenses. At hearing, Petitioner credibly explained the circumstances under which he committed the offenses. On or about June 2, 1995, as General Manager of a U-Haul self-storage facility, a customer did not pay his storage unit fee and the items in the unit went up for auction. Before the auction date, two of Petitioner's employees asked for the unit's items. Petitioner gave the employees authority to take the items. Then, Petitioner and the two employees took the items from the unit for their personal use. On the day of the auction, the unit owner showed up to pay the outstanding bill and contacted the police when he learned his items had been taken. When questioned by police, Petitioner immediately took responsibility for taking the items with his two employees, confessed, and helped facilitate returning the items. Petitioner provided the same account of the incident in his personal statement portion of the exemption package and stated: While working at U-Haul as the General Manager, a customer did not pay for his storage unit and it went up for auction. After several failed attempts to contact the customer, on June 2, 1995, I authorized two of my employees to empty his storage bin. His personal effects were taken with my authorization; he then returned the day of the auction and wanted to pay for his unit. He asked [where] his stuff was and I told him we had them. He said it was theft and he reported it. The police came and asked for the things. I told them that I authorized the employees to take the items but we will return all of it. Nevertheless, we were all arrested and charged. I received 2 year probation and was ordered to pay restitution. After a year and a half, I was finished paying the restitution and my probation was then terminated early. Petitioner's full admission of his involvement at hearing coincides with his personal history statement above from his exemption package because he admits it was him three times specifically stating "we had them," "we will return all of it" and "we were all arrested and charged." Petitioner's exemption package and testimony at hearing also detail he was 22 years old at the time when he committed the disqualifying offenses. Petitioner was terminated from his employment at U-Haul for his actions. He did not challenge the charges. Instead, on September 26, 1995, Petitioner pled no contest to the criminal charges, adjudication of the guilt was withheld, and Petitioner was sentenced to two years of probation with an order to make restitution. He successfully completed his probation early and he paid restitution in full. Petitioner already has experience working, without incident, around and with persons who are or may be considered vulnerable. After Petitioner pled to the charges, he was unable to obtain employment. Eventually, Petitioner started working as a caregiver for several families. He cared for an elderly father for 16 months until he passed and subsequently went to care for another father for a second family for over a year. Petitioner provided compelling letters of recommendation in his exemption package and at hearing from one family attesting to how he took "excellent care of [the father]" and further attesting to his work ethic, reliability, punctuality, gentleness, and trustworthiness. The Doobay letter also stated the father looked forward to Petitioner's presence every day because he motivated the father to get out the house and mingle with others. Another reference letter in the exemption package further detailed how Petitioner successfully cared for a wheelchair-bound male, took him to his medical appointments, and continuously demonstrated patience, calmness when assisting and was loyal, full of life, caring, and a delight to be around. Additionally, for approximately the last 12 years, Petitioner has assisted Ramcharan who is wheelchair-bound. At hearing, Ramcharan testified that Petitioner picks him up to go to the temple, the movies, shopping and other activities and is very loving, understanding, cares for people and is "capable of taking care of [the] disabled." Petitioner has also made substantial efforts to become well-educated so that he can become gainfully employed. He provided evidence in his exemption package of obtaining an AA degree in criminal justice and business administration. He also obtained his real estate license about 18 years ago. In Petitioner's exemption package and at hearing, Petitioner demonstrated how he has given back to his community. He actively works at the Christy House, a place for abused women and children. Specifically, he has been helping renovate by painting, cabinetry, building a bench, and attempting to create a butterfly garden. Petitioner also cooks and feeds the homeless. Petitioner has shown that he a responsible individual by successfully holding jobs for over 14 years. His exemption package mirrors his testimony at hearing detailing his employment. Most recently, Petitioner has been employed as an Operations Manager Supervisor for FedEx Freight since 2013. He also works as a real estate agent for Keller Williams handling commercial real estate transactions with deals ranging from $500,000 to $1,000,000. Prior to FedEx, he maintained steady employment at management levels in the following roles: Store Manager for Advance Auto Parts from 2003-2006; Sales Manager over a 56-million-dollar store for Lowes Home Improvement from 2006- 2009; and Sales Manager and Area Supervisor over three stores and one warehouse for Uniselect Auto Parts from 2010-2013. Over the last 15 years, Petitioner has received 17 traffic citations and he provided the detailed documentation for each citation to APD as part of Petitioner's exemption package. Fourteen citations were dismissed or closed without prosecution as evidenced by the disposition paperwork in Petitioner's exemption package. At hearing, Respondent presented the testimony of Gerry Driscoll ("Driscoll"). Driscoll explained APD's process for reviewing exemption requests and about the vulnerability of the disabled clients APD serves. Driscoll further testified about the importance of ensuring those who work with the clients are competent to provide services because APD's clients can easily be taken advantage of since providers have access to both their living environment and funds. Driscoll testified regarding Petitioner's submittal of his exemption application package and Respondent's review of that package. Driscoll testified that Petitioner was denied an exemption because he does not feel that Petitioner provided a detailed account of the criminal offenses as compared to the police reports; but, instead, he determined Petitioner blamed others for the stolen items in his home and vehicle. Driscoll also testified Petitioner's exemption package was a problem because Petitioner's report of events did not match the police reports and he felt Petitioner minimized the incidents. Additionally, Driscoll was concerned about Petitioner's 17 traffic citations since the administrator position Petitioner seeks to get includes transportation of vulnerable individuals. Driscoll determined that Petitioner's traffic record shows a disregard of the law, which is part of the reason Petitioner was denied. At hearing, Thomas Rice ("Rice") confirmed that APD was primarily concerned with Petitioner's exemption package and determined that Petitioner was not rehabilitated because Petitioner did not admit to a more direct role with the stolen merchandise. Rice testified that Petitioner's exemption package was troubling, and it lacked honesty and trustworthiness based on the police reports; and, therefore, APD concluded that rehabilitation was not sufficiently demonstrated. Findings of Ultimate Fact Upon careful consideration of the entire record, it is determined that Petitioner has demonstrated by clear and convincing evidence that he is rehabilitated from his disqualifying offenses of burglary and larceny and that he will not present a danger to disabled or otherwise vulnerable persons with whom he would have contact if employment is allowed. It has been over 23 years since Petitioner committed the disqualifying offenses as a young adult. Petitioner was not convicted of the disqualifying offenses. Instead, adjudication was withheld, and Petitioner has had no further criminal arrests or convictions subsequent to his disqualifying offenses. Petitioner was honest and forthright about his past and expressed his remorse in his exemption package by stating "I made a mistake [that ruined my life]." Petitioner has worked reliably over a sustained period in a position in which he cared for vulnerable persons. By all accounts, Petitioner was a reliable, kind, caring, and diligent employee. This experience shows that Petitioner can be trusted to behave appropriately in situations involving vulnerable persons, such as the disabled. Petitioner's completion of his AA degree, licensure as a real estate agent making million-dollar monthly sale totals, and an almost 14-year history of employment in management is further evidence of appropriate behavior and moving his life forward. The undersigned further finds that denial of Petitioner's exemption request would constitute an abuse of discretion. As discussed above, it appears that Respondent relied heavily on the hearsay in the police reports and 17 charged traffic citations in making its decision to deny his exemption request and failed to adequately consider the information Petitioner provided regarding his rehabilitation. In doing so, Respondent failed to recognize Petitioner's admissions of his wrongdoing by using "we" three times in the exemption package personal statement. Respondent also failed to properly evaluate Petitioner having only three traffic infractions, not 17, because 14 were closed or dismissed. The evidence also indicates that Petitioner has and continues to perform well and safely in a work setting involving interaction with vulnerable individuals. Petitioner demonstrated, by credible and very compelling evidence, that he made a wrong decision and took the initiative to turn his life around. For these reasons, it is determined that no reasonable individual, upon fully considering the record in this proceeding could find that Petitioner is not rehabilitated.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Agency for Persons with Disabilities, enter a final order granting Petitioner's request for an exemption from disqualification from employment. DONE AND ENTERED this 31st day of July, 2017, in Tallahassee, Leon County, Florida. S JUNE C. MCKINNEY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of July, 2017. COPIES FURNISHED: Kurt Eric Ahrendt, Esquire Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed) Matthew M. Fischer, Esquire Chapman Law Group 4000 Hollywood Boulevard, Suite 555-S Hollywood, Florida 33021 (eServed) Jada Williams, Agency Clerk Agency for Persons with Disabilities 4030 Esplanade Way, Suite 335E Tallahassee, Florida 32399-0950 (eServed) Richard D. Tritschler, General Counsel Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed) Barbara Palmer, Director Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed)
The Issue Whether Respondent engaged in an unlawful employment practice.
Findings Of Fact Mr. McMillian, at the time of the hearing, was a 30-year-old resident of Marianna, Florida. He is an African- American. CBO is an employer as that term is defined in Subsection 760.02(7), Florida Statutes, and thus subject to the Florida Civil Rights Act of 1992. CBO provides in-home support to clients who need help in addressing their daily needs. The program under which they operate is run by the Agency for Persons with Disabilities (Agency). Mr. McMillian worked for CBO from January 25, 2006, until August 28, 2006. He worked as a caretaker in a private home. He took care of two men with mental disabilities. Both of the men, clients of CBO, were of the Caucasian race. Mr. McMillian was required to keep a "journal of living" that, when kept up-to-date, recorded the activities in the home and provided an account of client funds. CBO did not have enough homes in the Marianna area to warrant a supervisor, so Donald Bradley Graham, Executive Vice-President of CBO, was assigned to supervise the single-home maintained in Marianna, which was the home in which Mr. McMillian worked. Mr. Graham is of the Caucasian race. Mr. McMillian had conflicts with one of the clients. Mr. Graham gave Mr. McMillian a cleaning checklist to aid him in maintaining the cleanliness of the home, because there were issues involving sanitation, or more specifically, issues involving deficiencies in sanitation. Mr. Graham also found that Mr. McMillian was not keeping track of spending and was not maintaining receipts. Barbara Williams, a "life coach," also interacted with Mr. McMillian. Ms. Williams is of the Caucasian race. A "life coach" pays the bills for a client's house, makes medical appointments, and addresses the administrative needs of clients. Ms. Williams did not supervise Mr. McMillian. Mr. McMillian and Ms. Williams had a dispute involving the grocery supply for the house. Allegations were made by Ms. Williams and a client that Mr. McMillian had purloined raw chicken from the house. Mr. McMillian was informed on August 28, 2006, that CBO had suspended him and that he was the subject of an abuse investigation by the Department of Children and Family Services (DCFS). The allegations of theft were not proven. An abuse investigation conducted by DCFS Investigator Culbreath determined that no abuse had occurred. However, in the interim, the CBO clients in the home informed CBO that they did not want Mr. McMillian to return. If a client served by CBO does not want a particular person to work in his or her home, then that person, by Agency rules, may not work there. The client does not have to offer a reason for not wanting a person working in his or her home. Mr. McMillian was offered other work with CBO in homes in the Panama City area but made no effort to take advantage of the offer. The evidence is clear that he was not terminated and was not the subject of discipline.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 9th day of August, 2007, 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 9th day of August, 2007. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Rodney McMillian 4052 Old Cottondale Road, Apartment 805 Marianna, Florida 32448 R. W. Tres Long Chief Financial Officer Community-Based Options, Inc. Post Office Box 438 Panama City, Florida 32402-0438 Glen Lord Community-Based Options, Inc. Post Office Box 438 Panama City, Florida 32402 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
