The Issue Dr. Mark H. Feldman maintained a practice in podiatry at 1101 West Broward Boulevard, Fort Lauderdale, Florida. A widening and upgrading of Broward Boulevard resulted in a taking of a portion of the building in which Dr. Feldman maintained his practice. Because the widening of this highway was a part of a federal aid project, the doctor became eligible for certain payments to businesses as provided in the manual of Right-of-Way Bureau operating procedures and incorporated by reference into the Florida Administrative Code as Chapter 14-1. The provisions concerning payments to businesses include payment of actual reasonable expenses in moving the business and personal property, direct loss of tangible personal property in moving or discontinuing the business and actual reasonable expenses in searching for a replacement business. Further, in lieu of payment for actual moving and losses as indicated above, a fixed payment may be paid. Dr. Feldman applied for a fixed payment and was denied by the Department of Transportation. The Department of Transportation based its denial on two grounds: Dr. Feldman had already received payments for reasonable expenses, direct less of personal property and discontinuing his business, and for search of a replacement business site; and Dr. Feldman was ineligible for a fixed payment because the doctor maintained a commercial enterprise with more than one establishment, which was not being acquired by the State or the United States and was engaged in the same or similar business. Dr. Feldman asserted that he accepted payment because of the representation of employees of the Department and that he did not maintain two (2) business locations.
Findings Of Fact Dr. Mark H. Feldman maintained a practice in podiatry at 1101 West Broward Boulevard in Fort Lauderdale, Florida. A portion of the building in which Dr. Feldman maintained his practice was taken by the State under a construction project, which was partially federally funded, to widen Broward Boulevard. As a result of this taking, it was necessary for Dr. Feldman to move his practice. Dr. Feldman became eligible for certain payments to businesses required to move because of such construction. Dr. Feldman asserted that prior to receipt of the Department's notice, he engaged in discussions with representatives of the Department regarding his options. Dr. Feldman requested consideration for fixed payment in lieu of actual moving expenses, which resulted in a preliminary investigation by the Department of Transportation. This investigation revealed that in addition to maintenance of his practice at 1101 West Broward Boulevard. Dr. Feldman also was listed in the telephone directory and in the building directory as maintaining offices at 7301 North University Drive, Tamarack, Florida. This second location was not affected by any taking. Based upon this information, the Department made a determination that the doctor was not eligible for fixed payment in lieu of actual moving expenses because Dr. Feldman's business affected by the taking was part of a commercial enterprise having at least one other establishment which was not being acquired by the State or the United States and which was engaged in the same or similar business. See Right-of-Way Bureau Operating Procedures Manual, 4.3.7E(1)(b). Based upon this initial denial, and having received notice that he could only be guaranteed 90 days' occupancy, Dr. Feldman applied for actual expenses, which were paid. Thereafter, Dr. Feldman submitted his application for fixed payment in lieu of actual moving expenses, which was denied on the basis that he had received actual moving expenses. Approximately one year prior to the announcement by the Department of the incipient taking of the property of 1101 West Broward Boulevard, Dr. Feldman had been in practice with another podiatrist, Harry Westridge. Dr. Westridge originally maintained his practice at 1101 West Broward Boulevard. Dr. Westridge had joined Dr. Feldman's practice at 7301 North University Drive in Tamarack several years ago. In April of 1977, Dr. Westridge purchased Dr. Feldman's practice at North University Drive. As a part of their agreement, Dr. Feldman took over the lease and personal property located at 1101 West Broward Boulevard. Further, as a part of their agreement, Dr. Feldman agreed to permit Dr. Westridge to utilize his name in conjunction with the Tamarack practice. Both doctors explained that this was because Dr. Westridge was a newcomer to the area and was purchasing the "good will" in Dr. Feldman's practice, and it protected Dr. Feldman's investment if Dr. Westridge was unable to meet his obligations under the purchase agreement. However, both doctors testified that subsequent to Dr. Westridge's purchase of the practice Dr. Feldman did not maintain regular office hours at the Tamarack address, did not regularly see patients at the Tamarack address, and had seen approximately twelve (12) patients at the Tamarack address between April of 1977, and April of 1978. This included consultations and referrals to Dr. Feldman by Dr. Westridge. The nature of his surgical practice in podiatry prevented Dr. Feldman from waiting to move his practice until the Department of Transportation took his property where he was located. Further, Dr. Feldman could not afford to move his practice without assistance. Dr. Feldman only applied for payment of his actual expenses, which he received, when he was initially told he did not qualify for in-lieu of payment.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the Department of Transportation pay Dr. Feldman a fixed payment in lieu of actual expenses and offset any amounts paid to Dr. Feldman against the fixed payment. DONE and ORDERED this 2nd day of November, 1979, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Charles G. Gardner, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32301 Dr. Mark H. Feldman 6468 Racket Club Drive Lauderhill, Florida 33319 =================================================================
The Issue Whether City of Belleair Beach Treasurer Robert K. Hebden was an independent contractor or an employee of the city.
Findings Of Fact The Petitioner City of Belleair Beach (City) is a participating local agency of the Florida Retirement System (FRS) and is subject to the laws applicable to the FRS. The City began participating in the FRS through the adoption of City Ordinance 99 in 1973. The Respondent Division of Retirement (Division) is the state agency charged by statute with the administration of the FRS. On a date unspecified, the Division's Management Review Section audited the City as required by statute. Based on the audit, the Division concluded that Mr. Hebden was not an independent contractor, but was a part time employee of the City. The Division communicated this information to the City by letter of May 27, 1992. The Division's Enrollment Section, responsible for enrolling employees in the FRS, conducted an analysis of the materials obtained by the Management Review Section, and concurred in the initial employment status determination. By letter of October 11, 1993, the Director of the State Division of Retirement notified the City that the Division had determined Mr. Hebden to be have been an employee in a regularly established position for purposes of the FRS from July 1979 through February 1991, and that FRS contributions were due for that period. On October 15, 1993, Mr. Hebden signed an FRS application for service retirement. The application was filed with the FRS. Mr. Hebden completed the application on the suggestion of the Enrollment Section Administrator. Mr. Hebden considers himself to have worked for the City as an independent contractor and would not have filed an FRS application without the request by the enrollment administrator. In concluding that Mr. Hebden was an employee, the Division reviewed all materials furnished by the City. Such materials included copies of contracts, billing statements and IRS forms. At all times, the Division has been amenable to reviewing any additional documents submitted by the City. Beginning in 1972, and continuing to February of 1991, Robert K. Hebden provided various services to the City. Beginning in July 1979, Mr. Hebden served as the City Treasurer. The position of Belleair Beach City Treasurer is established by city ordinance. The position description for the City Treasurer sets forth duties as follows: The treasurer works on a daily basis primarily under the mayor's supervision but is ultimately accountable to the city council. Compiles operating and capital expense estimates for annual budget. Forecasts problem areas of income and expense and proposes possible solutions. Maintains general accounting system and appropriate operating cash balances. Submits to council a monthly detailed statement of revenue and disbursements in contrast with annual budget. Prepares for submission to council a detailed financial statement as of the end of each fiscal year. Invests surplus General Government Funds in conjunction with the Mayor or Deputy Mayor and recommends investment of Sewer Trust Funds in conjunction with the approved Trustee. Provides for payment of bonds and interest and maintains files for cancelled coupons and bonds. Maintains capital assets inventory including acquisition and disposition. Between July 1, 1979 and February 12, 1991, Mr. Hebden was the Belleair Beach City Treasurer. He performed the duties of the position description and such additional duties as were assigned at the discretion of the Mayor and Council. In February 1983, Mr. Hebden and the City entered into a written contract regarding his service as Treasurer. The initial contract was retroactive to October 1, 1982. Prior to this point, Mr. Hebden acted as City Treasurer under an oral agreement with the City officials. The February 2, 1983 contract identifies Mr. Hebden as "the Contractor." The contract is for the one year period of October 1, 1982 to September 30, 1983 and provides as follows: The Contractor will be allowed twelve (12) days of paid sick leave and at times mutually agreeable fifteen (15) days of vacation without adjustment to the monthly fee. Absence in excess of this amount will be adjusted on a prorata basis. The work week will be 8:30 A. M. to 12:30 P. M. daily, Monday through Friday, except for legal holidays recognized by the City. In addition, attendance will be required at Council meetings, work sessions and committee meetings, as may be determined by the Mayor. Services will be reimbursed on a monthly basis at the rate of SEVEN HUNDRED DOLLARS ($700.00) per month, plus an allowance of SEVENTY DOLLARS ($70.00) for expenses upon receipt of a statement. This agreement may be extended beyond the original term of One (1) year upon such terms and conditions as the parties shall mutually agree between them. Beginning with the subsequent agreement dated July 14, 1983, all contracts identify Mr. Hebden as "the City Treasurer" rather than "the Contractor." The July 14, 1983 contract provides as follows: That Robert K. Hebden shall serve the City of Belleair Beach as the City Treasurer, appointed by the City Council. The services of the City Treasurer shall be performed between the hours of 8:30 a.m. to 12:30 p.m. daily, Monday through Friday, except for legal holidays recognized by the City. In addition, attendance will be required at Council meetings, work sessions and committee meetings, as may be determined by the Mayor. The duties of the City Treasurer shall include but not be limited to: -compilation of current and capital expense estimates for the annual budget -maintenance of a general accounting system -submission to the city council of a monthly detailed statement of revenue and disbursements in contrast with the annual budget -preparation for submission to council of a detailed financial statement as to the end of each fiscal year A RETAINER fee shall be paid by the City of Belleair Beach to the City Treasurer for the above service which shall be EIGHT HUNDRED THIRTY DOLLARS AND NO/100 ($830.00) per month. THIS AGREEMENT shall be reviewed annually by the Personnel Committee of the City Council, the Mayor and the City Treasurer. THIS AGREEMENT shall expire on September 30 of each year unless renewed by Council prior to that time. THIS AGREEMENT shall be cancelled by either party upon a thirty (30) day notice of intent to do so. The September 10, 1984 contract for the one year period to September 30, 1985 is identical to the agreement of July 14, 1983 except that the retainer fee was increased to $900.00 monthly. The July 15, 1985 contract for the one year period to September 30, 1986 is similar to the agreement of September 10, 1984. The retainer fee was increased to $1100.00 monthly and paid leave was again included. The agreement provides as follows: ....In addition, the City Treasurer shall receive three work-weeks vacation annually (allowing for a base figure of 3 work-weeks for the current fiscal year) and twelve work-days sick leave annually (allowing for twelve work-days for the current fiscal year). THIS AGREEMENT shall be reviewed annually by the Personnel Committee of the City Council, the Mayor and the City Treasurer. THIS AGREEMENT shall commence October 1, 1985, and shall expire on September 30 of each year unless renewed by Council prior to that time. THIS AGREEMENT shall be cancelled by either party upon a thirty (30) day notice of intent to do so. The September 23, 1986 contract for the one year period to September 30, 1987 is substantially similar to the preceding contract, however, an amendment was made to the paid leave provisions. The agreement provides as follows: That Robert K. Hebden shall serve the City of Belleair Beach as the City Treasurer, appointed by the City Council. The services of the City Treasurer shall be performed between the hours of 8:30 a.m. to 12:30 p.m. daily, Monday through Friday, except for legal holidays recognized by the City. In addition, attendance will be required at Council meetings, work sessions and committee meetings, as may be determined by the Council or Mayor. The duties of the City Treasurer shall include but not be limited to: compilation of current and capital expense estimates for the annual budget maintenance of a general accounting system submission to the city council of a monthly detailed statement of revenue and disbursements in contrast with the annual budget preparation for submission to council of a detailed financial statement as to the end of each fiscal year A RETAINER fee shall be paid by the City of Belleair Beach to the City Treasurer for the above service which shall be ELEVEN HUNDRED THIRTY DOLLARS AND NO/100 ($1100.00) per month. In addition, the City Treasurer shall receive three work-weeks vacation annually and twelve work-days sick leave annually. Annual leave, which will only be applied against working days, and shall be taken in not less than four (4) hour increments, may accrue to a maximum of fifteen (15) days. Annual leave in excess of fifteen (15) days will be forfeited on the following anniversary date after the year in which earned. The August 3, 1987 contract for the one year period of October 1, 1987 to September 30, 1988 is substantially similar to the preceding contract except that the work hours were amended to 8:00 a.m. to 12:30 p.m. and monthly payment was increased to $1300.00. The September 12, 1988 contract for the one year period of October 1, 1988 to September 30, 1989 is substantially similar to the preceding contract except that monthly payment was increased to $1350.00. In 1989, some Council members questioned Mr. Hebden's performance and considered termination of his contract. The September 25, 1989 contract for the one year period of October 1, 1989 to September 30, 1990 is substantially similar to the preceding contract except that the agreement provides "for a six months performance evaluation." Apparently, the concerned Council members were satisfied with the review and the contract was again renewed. The September 10, 1990 contract reflected Mr. Hebden's intention to leave his position. The contract provides as follows: That Robert K. Hebden shall serve the City of Belleair Beach as the City Treasurer, appointed by the City Council. The services of the City Treasurer shall be performed between the hours of 8:00 a.m. to 12:30 p.m. daily, Monday through Friday, except for legal holidays recognized by the City. In addition, attendance will be required at Council meetings, work sessions and committee meetings, as may be determined by the Council or Mayor. The duties of the City Treasurer shall include but not be limited to: compilation of current and capital expense estimates for the annual budget maintenance of a general accounting system submission to the city council of a monthly detailed statement of revenue and disbursements in contrast with the annual budget preparation for submission to council of a detailed financial statement as to the end of each fiscal year * A RETAINER fee shall be paid by the City of Belleair Beach to the City Treasurer for the above service which shall be [[THIRTEEN HUNDRED AND FIFTY DOLLARS AND NO/100 ($1350.00)]] <<FOURTEEN HUNDRED FIFTY DOLLARS AND NO/100 ($1450.00)>> per month. In addition, the City Treasurer shall receive [[three work-weeks vacation annually and twelve]] <<three>> work-days sick leave [[annually. Annual leave, which will only be applied against working days, and shall be taken in not less than four (4) hour increments, may accrue to a maximum of fifteen (15) days. Annual leave in excess of fifteen (15) days will be forfeited on the following anniversary date after the year in which earned.]] <<Annual leave earned through September 30, 1990 and not taken will be paid on completion of this contract.>> [[THIS AGREEMENT shall provide for a six months performance evaluation.]] [[THIS AGREEMENT shall be reviewed annually by the personnel committee of the City Council, the Mayor and the City Treasurer.]] THIS AGREEMENT shall commence October 1, 1985, and shall expire on <<December 31, 1990>> [[September 30 of each year unless renewed by Council prior to that time.]] THIS AGREEMENT shall be cancelled by either party upon a thirty (30) day notice of intent to do so. * Note: In the above quotation, language which has been added is within the <<>>; deleted language is within the [[]]. All the contracts identified herein were between the City and Mr. Hebden personally. Mr. Hebden signed the contracts. Except as otherwise stated herein, the terms of the contracts were negotiated between Mr. Hebden and the City. Mr. Hebden performed all the responsibilities of the contract personally. For a brief period, he was assisted by a man identified as "Mr. Denman," a person employed by the City. He hired no assistants. Mr. Hebden performed his responsibilities according to practices and procedures he created. He was not provided instructions by the City on how to perform his tasks. The City provided no training to Mr. Hebden. Prior to terminating his tenure as City Treasurer, Mr. Hebden trained his successor in the practices and procedures Mr. Hebden had developed. At all times during Mr. Hebden's employment with the City, he worked the hours specified by the contracts in his office at City Hall. Mr. Hebden testified that he could not recall how his office hours had been determined. The space was provided by the City. The responsibilities of Mr. Hebden's position required utilization of city records, and it was therefore appropriate for such tasks to be performed in an office at City Hall. All furnishings for the office and materials used in performing his tasks were provided by the City. During the period between July 1979 and February 1991, Mr. Hebden submitted to the City statements for payment. Generally, the statements were submitted on a monthly basis. Mr. Hebden had no risk of profit or loss based on any actions of the City. He had no personal investment in the City. Mr. Hebden was paid according to the terms of the contract. He did not receive additional remuneration for his appearance at or participation in Council meetings, work sessions or committee meetings as directed by the Council or Mayor. In the first written contract, Mr. Hebden received a payment for "expenses" in addition to the monthly remuneration. Additionally, Mr. Hebden was reimbursed for personal expenses related to City business use of his car and his boat. Although only one formal performance evaluation was completed during his service, the contracts provide for annual review, except for the final contract which terminated Mr. Hebden's service to the City. Upon said termination, Mr. Hebden was paid for the accrued annual leave. Under the terms of the contract, Mr. Hebden's services could be terminated without penalty upon thirty days notice by either party. Mr. Hebden did not advertise his services to the general public, because he was not interested in taking on additional work, however, for a time, he provided accounting consulting services to the Indian Rocks Fire Control District and was compensated for his work. He also provided volunteer services to the Church of the Isles. During the period relevant to this proceeding Mr. Hebden held no business or occupational licenses. For the years 1979 through 1982, the City reported Mr. Hebden's compensation to the Internal Revenue Service Form by using IRS Form 1099-NEC, the form used to report "Nonemployee Compensation." For the years 1983 through 1991, the City reported Mr. Hebden's compensation to the Internal Revenue Service Form by using IRS Form 1099-MISC, the form used to report "Miscellaneous Compensation." The City did not provide health or life insurance coverage to Mr. Hebden. The City did not pay federal social security or withholding taxes for Mr. Hebden. The City did not provide or pay workers compensation benefits or unemployment benefits for Mr. Hebden. The City did not pay retirement contributions to the FRS for Mr. Hebden.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department of Management Services, Division of Retirement, enter a Final Order determining that as City Treasurer of the City of Belleair Beach from July 1979 through February 1991, Robert K. Hebden was an employee of the City, and as such was a compulsory member of the Florida Retirement System for which contributions from the City are due. DONE and RECOMMENDED this 21st day of March, 1994, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of March, 1994. APPENDIX TO CASE NO. 93-6518 The following constitute rulings on proposed findings of facts submitted by the parties. Petitioner The Petitioner's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 3. Rejected, contrary to the greater weight of the evidence. Mr. Hebden submitted invoices for payment as early as July, 1979. 11. Rejected, not supported by greater weight of the evidence. Because Mr. Hebden developed his own procedures for performing the duties of the City Treasurer, and trained his successor in performing the tasks of City Treasurer, it is not possible to conclude that Mr. Hebden's services were "not essential to the success or continuation of the City's operation." Rejected, irrelevant. Rejected, contrary to greater weight of evidence. Mr. Hebden testified on direct examination that he could not recall who chose the work hours set forth by contract. All contracts specify the hours to be worked. As to leave time, the first contract provided that such leave could be used only "at times mutually agreeable...." Subsequent contracts required annual leave to be used in four hour increments. Rejected, contrary to greater weight of evidence. Mr. Hebden testified that some auto and boat expenses had been reimbursed. First contract and invoices for payment through September 30, 1982 include payment of sums for "expenses." Rejected, contrary to greater weight of evidence. The contracts specify standard hours of employment and require attendance at meetings as directed by the Mayor and Council. The Respondent's assertion that Mr. Hebden "could make a profit or suffer a loss" is unsupported by credible evidence. Respondent The Respondent's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 5. Rejected, as to employment status of Mr. Hebden's predecessor or successor as City Treasurer, irrelevant. 28, 30. Rejected, as to employment status of Mr. Hebden's successor as City Treasurer, irrelevant. COPIES FURNISHED: A. J. McMullian, III, Director Division of Retirement Cedars Executive Center, Bldg. C 2639 N. Monroe St. Tallahassee, Florida 32399-1560 William H. Lindner, Secretary Knight Building, Suite 307 Koger Executive Center 2737 Centerview Drive Tallahassee, Florida 32399-0950 Paul A. Rowell, General Counsel Knight Building, Suite 312 Koger Executive Center 2737 Centerview Drive Tallahassee, FL 32399-0950 Thomas J Trask, Esquire Frazer, Hubbard, Brandt & Trask 595 Main Street Dunedin, Florida 34698 Jodi B. Jennings, Esquire Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent repay Petitioner $7,866 in monies expended in violation of the contract and applicable regulations. DONE and ENTERED this 14th day of June, 1982, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of June, 1982. COPIES FURNISHED: Chad J. Motes, Esquire Suite 131-Montgomery Building 2562 Executive Center Circle, East Tallahassee, Florida 32301 Louise S. Aligood P. O. Box 536 Monticello, Florida 32344
Findings Of Fact The Petitioner and a business associate formed a partnership for the purpose of publishing an administrative reporter. In pursuit of that purpose the Petitioner's partner, in October, 1978, requested from the Division of Personnel, Department of Administration, (hereinafter referred to as "Respondent") copies of several Career Service Commission orders. On October 16, 1978, Petitioner's partner received a packet from Respondent containing the requested orders. The orders totaled 183 pages for which Petitioner and his partner were charged fifty cents a page. Petitioner paid Respondent $91.50 for the copies. The charge of fifty cents a page was assessed by Respondent pursuant to its Rule 22-1.115(1), Florida Administrative Code. It was undisputed at the final hearing that the actual cost of the materials, rental on the copying machine, and the cost to Respondent of its service agreement on the copying machine was less than two cents per page copied. One of Respondent's employees expended time in pulling the requested orders from the files and copying the orders pursuant to the request. The employee did not record nor clearly remember how much time she spent responding to the request for copies. On the evidence presented it is reasonable to conclude that the employee expended one hour of time at the rate of $6.95 per hour, and two hours of time at the rate of $4.63 per hour. Petitioner paid the $91.50 charqe by warrant. Respondent's fiscal officer testified that he did not have at head the cost to Respondent of processing a warrant but he roughtly estimated that cost to be $5.00. The cost items set forth in paragraphs 3, 4, and 5 above are the only elements of the cost of copying for which Petitioner or Respondent could establish a firm dollar value. These elements total $24.87 for the 183 copies. Respondent charged Petitioner $91.50 for the 183 copies. The Respondent presented evidence showing that there are many indirect, "incalculable" costs attributable to the production of copies of public documents pursuant to a request from a member of the public. As examples of these "incalculable" costs Respondent referred to state auditing procedures; budgeting procedures; administrative hearings, such as the instant proceeding; bookkeeping required by the Comptroller's office and Treasurer's office; the cost of obtaining legal opinions; the cost of space for the copying machine; and the cost of electricity for the copying machine. Respondent's witnesses testified that these costs are "incalculable" and therefore have to be estimated. No evidence was presented which would establish that but for the necessity of providing copies to the public these "incalculable" costs would not be incurred. On the contrary, the evidence indicated that these "incalculable" costs would, in large part, be incurred by the agency in the pursuit of their responsibilities without regard to providing the public copies of public records. Respondent's evidence established that, with regard to the challenged rule, these "incalculable" costs were estimated by the Secretary of the Department of Administration and several of his division directors, including the State Budget Director and the State Personnel Director. No evidence was presented to show that these persons had the benefit of any formal or informal estimate or study of these "incalculable" costs. No evidence was presented to establish that these persons made an attempt, beyond their discussion of the matter at a meeting, to accurately and finitely estimate these "incalculable" costs. Other than the fact that these persons occupied senior management positions in State government, no evidence was presented which would establish their expertise or experience in estimating the "incalculable" costs appurtenant to copying public records pursuant to requests from members of the public. No evidence was presented which would establish that the price of fifty cents for the first copy of each page and twenty cents for each additional copy of each page, set forth in Rule 22-1.115(1), Florida Administrative Code, is based on any accounting study or other detailed inquiry into the cost of providing, to the public, copies of public records. Those elements of that price for which known dollar amounts have been established include the costs of the machine, which total less than two cents per copy; the cost of labor involved to produce the copies, which in this case has been established to be 8.86 cents per copy; and the cost of processing the payment warrant, which in this case has been established as 2.7 cents per copy. These identifiable costs with regard to the instant case total approximately 13.6 cents per copy. Respondent argues that the other 36.4 cents charged per copy are accounted for by the above-referenced "incalculable" costs which have been estimated without benefit of any studies as heretofore mentioned.
The Issue By a Notice to Show Cause filed in the above-styled cases, the Petitioner seeks to suspend or revoke the Certificate of Qualification and license issued to Homer (Glen) Leonard Wade, d/b/a American Collection Systems, Inc., Respondent to operate a collection agency for conduct of violative of provisions of provisions of Chapter 559, Florida Statutes; namely -- Threatening to communicate or communicating with a debtor's employer prior to obtaining a final judgment against the debtor or without securing the debtor's written permission in violation of section 559.72(4), Florida Statutes. Collecting or attempting to collect from a debtor or debtors a fee for collection services without authorization to do so in violation of Section 559.75(5), Florida Statutes. Communicating orally or in writing, with a debtor in such a manner as to give the false impression or appearance that the licensee or his agent was an attorney or was associated with an attorney in violation of Section 559.72(12), Florida Statutes. Claiming, attempting or threatening to enforce a consumer claim when knowing the right to collect such claim did not exist in violation of Section 559.72(9), Florida Statutes. While not part of Petitioner's Notice to Show Cause, the issue of Petitioner's jurisdictional authority to revoke or suspend Respondent's license and certificate was raised by its Motion to Dismiss filed herein. NOTICE In that a recommended order was submitted by the hearing officer who conducted the hearing in the instant case and upon consideration of said recommended order the agency intends to reject certain findings of fact and reject or modify certain conclusions of law, it states that such was done only after reviewing the entire record consisting of the specific documents required under Section 120.57(1)(b)(5).
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the arguments of counsel, and the briefs submitted by the parties, the following relevant facts are found. During times materiel herein, Homer (Glen) Leonard Wade, d/b/a American Collection Systems, Inc., has been continuously issued a Certificate of Qualification to operate a collection agency in this State pursuant to Chapter 559, Florida Statutes. At the outset of the hearing, Respondent's counsel contested the Petitioner's jurisdiction to take administrative action to suspend or revoke the Respondent's Certificate of Qualification or license issued pursuant to Chapter 559, Florida Statutes, Part IV, on the basis that Section 559.79, Florida Statutes (1977), provides in pertinent part that only a circuit court and not an administrative agency has the express statutory authority to suspend or revoke certificates of qualification or licenses issued pursuant to Chapter 559, Florida Statutes. After reviewing the arguments and the citations of authorities, the undersigned concludes that the Petitioner is vested with the implied authority to specify conditions under which such certificates (licenses) shall be held and revoked, and such appears to be in keeping and necessarily implied from the power to issue a certificate and thus is in keeping with the necessary and broad power granted to Petitioner to issue certificates. It is thus concluded that the power to issue certificates in this instance carries with it the power to specify the terms and conditions of the issuance, as well as terms and conditions upon which the same may be held or revoked. See, for example, State Board of Education v. Nelson, So.2d 1979, Florida Law Weekly, 880 (1st DCA 1979), and 1 FIa.Jur.Prud., 2nd Adm.Law, 21. In Case No. 78-2428, the Petitioner, in support of its Notice to Show Cause, alleges that the Respondent engaged in the following: On or about January 15, 1976, the Respondent/Licensee or an agent of the Respondent/Licensee, did violate Subsection 559.72(7), Florida Statutes, by willfully communicating with Debtor David Gottlieb or a member of his family with such frequency as to harass the debtor or his family and willfully engaged in other conduct which could reasonably be expected to abuse or harass the debtor or a member of his family during the course of collection agency activity. On or about January 21, 1976, the Respondent/Licensee or an agent of the Respondent/Licensee, did violate Subsection 559.72(5), Florida Statutes, by disclosing to a person other than David Gottlieb or his family information affecting the reputation of Mr. Gottlieb whether or not for credit worthiness, with knowledge or reason to know that the other person did not have a legitimate business need for the information. On or about July 12, 1970, Respondent, American Collection Systems, Inc., by or through its agent, servant or employee did communicate or threaten to communicate with the employer of Mr. Donald Terry, a consumer, prior to obtaining final judgement against Mr. Terry without Mr. Terry having given his permission in writing to contact his employer or having acknowledged in writing the existence of the debt after that debt had been placed for collection in violation of Subsection 559.72(4), Florida Statutes. On or about April 9, 1976, Respondent, American Collection Systems, Inc., by or through its agent, servant or employee did communicate or threaten to communicate with the employer of Mr. James T. Redington, a consumer, prior to obtaining final judgement against Mr. Redington and without Mr. Redington having acknowledged in writing the existence of the debt after that debt had been placed for collection in violation of Subsection 559.72(4), Florida Statutes. On or about April 9, 1976, Respondent, American Collection Systems, Inc., by or through its agent, servant or employee did orally communicate with a consumer, Mr. James T. Redington, in such a manner as to give the false impression or appearance that its agent, servant or employee was associated with an attorney in violation of Subsection 559.72(12), Florida Statutes. On or about August 24, 1976, Respondent, American Collection Systems, Inc., did claim, attempt or threaten to enforce a consumer claim against Ms. Patricia M. Tracey when it, its agents, servant or employee knew the claim was not legitimate or that the right to collect the consumer claim did not exist in violation of Subsection 559.72(9), Florida Statutes. Thereafter, in Cases Nos. 79-910 and 79-911, the parties stipulated that the controversy involves a legal question as to whether or not the Respondent is authorized to exact a fee, an amount agreed to be computed at the rate of 6 percent simple interest, which amount was added to the amount Respondent attempted to collect from each of the debtors cited in the Notice to Show Cause herein is permissible under Subsection 559.75(5), Florida Statutes. J. Lymon Babcock, Jr., is Petitioner's investigator who conducts background investigations for collection agency applications. He has custody of the license end records and is familiar with the Respondent's licensing entity, American Collection Systems, Inc. Babcock testified that Respondent was first licensed on or about January 26, 1973, and has continued to hold a license since that time. Respondent's certificate has been renewed annually and audit numbers are changed when the annual renewal is furnished. (See Petitioner's Exhibits 1 and 2 composites.) On or about August 10, 1976, Respondent, by letter of the same date, advised John and Patricia Tracey of Coral Springs, Florida, that they owed a Dr. Jorge $149.60 and requested payment in the full amount at his office within five days to avoid the exaction of additional court costs and other legal expenses. (Petitioner's Exhibit 4 composite.) Ms. Tracey appeared at the hearing and testified that she spoke to an unidentified female employee of Respondent and a Mr. Hawk and a Mr. Richards, who also requested payment of the $149.00 as set forth in the demand letter of August 10, 1976. At that time, the Tracey's testimony was that they had also been contacted by Respondent and Broward Adjustment Bureau for the same indebtedness to Dr. Jorge which, according to their records, reflected an amount owing of $136.00. The Traceys received a second letter from Respondent on September 8, 1976, from Mr. Richards, the General Manager, and Bruce L. Glaskin, attorney for Respondent. (Petitioner's Exhibits 6 and 7.) Both letters also requested payment within five days of the date of the letters. The Traceys testified that they had made arrangements with Broward Adjustment to pay the indebtedness in two monthly installments of $68.00 each. The Traceys contacted Consumer Affairs prior to the time that they received the last demand letter from Respondent and it appears that the indebtedness had been paid by October 12, 1976. (See Petitioner's Exhibits 3, 4, 5, 6, 7 and 8.) On cross-examination, the Traceys acknowledged that the debt was a legitimate debt which was due and owing and that they never notified the Respondent in writing that the debt had been paid to either Dr. Jorge or the Respondent. Maxine Hughey is employed by Rolando Jorge, M.D., P.A., in the collection department primarily in the workmen's compensation collection section. Ms. Hughey testified that she turned the Tracey account over to Respondent sometime during 1970. It appears that after the Traceys advised Respondent that they had been contacted by another collection service for payment of the same indebtedness to Dr. Jorge, Mr. Godette of Respondent's office advised Ms. Hughey that Respondent was still working the Tracey account for Dr. Jorge. Ms. Hughey advised Respondent by letter dated August 11, 1976, that the accounts for Dr. Jorge had been withdrawn from the Respondent verbally during mid-September, 1974. Ms. Hughey testified that she withdrew the collection accounts of Dr. Jorge from Respondent due to the slow recovery on collections. (See Petitioner's Exhibits 9 and 10.) Ms. Hughey spoke to Respondent, Homer (Glen) Leonard Wade, during August or September, 1976, and inquired of Respondent why he was working the Tracey account. Respondent replied that Dr. Jorge had not withdrawn the accounts that had been assigned to him and that for him (Dr. Jorge) to assign the accounts to anyone without prior contact and arrangement with Respondent would subject Dr. Jorge to a legal suit. On cross-examination, Ms. Hughey testified that the Tracey account was turned over to Respondent during December, 1973, and that Broward adjustment received two payments from the Traceys account on September 15, 1976, and October 26, 1976. She also testified that she formally notified Respondent that Dr. Jorge was withdrawing the accounts assigned to Respondent during 1974. In this regard, no written evidence was offered establishing that any attempt at withdrawal of accounts was sent to Respondent until the letter dated August 11, 1975, was mailed by Ms. Hughey allegedly per instructions from Dr. Jorge. Ms. Hughey forwarded a copy of the letter to Mr. Godette of Consumer Services on or about August 25, 1976, when she received inquiry from the Traceys referencing the demand letters the Traceys had received from the Respondent. In this regard, Respondent introduced a copy of its collection procedures which was submitted to all its clients and prospects. Respecting Respondent's collection procedures, paragraph 2A provides in pertinent part that: We will close any account to you upon your request after listing, with these exceptions: (1) Those paying (2) Those promised to pay (3) Forwarded accounts (4) Those accounts in law or hands of attorney and of course, those we have reduced to judgements for you. (Respondent's Exhibit 1.) James Redington, an engineer for Motorola, appeared and testified that he received demand letters requesting collections from Respondent during January, 1976. Mr. Redington acknowledged a past-due account with Dr. Jacobsen. Mr. Redington testified that "Bob Cash", one of the Respondent's aliases, called him at work and inquired when his delinquent bill would be paid. According to Redington, after receiving two calls from "Bob Cash", he was advised by "Cash" that Respondent was holding a check payable to Dr. Jacobsen which was returned for insufficient funds. Thereafter, in April, 1976, Redington received another call from a Mr. Richardson, who was then Respondent's General Manager, who advised Mr. Redington that there was an outstanding warrant which had been issued due to the outstanding sufficient insufficient funds check made payable to their client, Dr. Jacobsen, and requested that payment be made immediately or the Sheriff would serve the warrant. Redington immediately went to Respondent's office and spoke to "Bob Cash", who advised that Richardson, Respondent's General Manager, had called. Redington tendered "Cash" a money order for the indebtedness and requested that the returned check be given to him. Redington had no further contact with Respondent, although the Sheriff did serve the warrant on him at work. Donald Terry, an instructor at Plantation High School, received a demand letter from Respondent during the summer of 1976 for a $48.00 indebtedness he owed a Dr. Segal. Mr. Terry received a phone call from a representative of Respondent advising him that if he did not make arrangements to pay the indebtedness owed Dr. Segal, the Respondent would "take him to court." Terry testified that within two days he received another call from an employee of Respondent who advised that if he did not pay his indebtedness, his employer would be contacted. Terry received a copy of the letter which, in his opinion, had been mailed to his employer. The letter was received from Respondent at Plantation High School. (Petitioner's Exhibits 12 and 13.) Additionally, Mr. Terry received another demand letter inquiring of the Segal's indebtedness in the mail. (Petitioner's Exhibit 14.) On cross-examination, Terry testified that the letter was not distributed at the school and that he paid the indebtedness in full the following year, which was a legitimate debt owed to Dr. Segal. Derrick Costa, Respondent's manager, was first employed during 1974 and since 1976, has served as a quasi-manager. Costa testified that the name changed from American Collection Service to American Collection Systems, Inc., during September or October of 1976. He testified that at all times material, Wade had ultimate responsibility and authority for the operation of both American Collection Service and American Collection Systems, Inc. Costa expressed familiarity with the Redington account and testified that he worked the account, which was due for Dr. Jacobsen. Costa testified that he never threatened to contact Mr. Redington's employer nor had he violated in any manner Chapter 559, Florida Statutes. On redirect examination, Costa testified that true names were never used when dealing with debtors and that the aliases such as "Richards", "Cash", etc., are used extensively in a collection business. Petitioner also introduced into evidence copies of a letter which had been forwarded to Irving Weislander of Sunrise, Florida, and Jeanette Mims of Boca Raton, Florida. According to Petitioner, these letters were intended as a threat and mailed to the above-named debtors' employers. (See Petitioner's Exhibits 15 and 16.) Another letter of the same type was mailed to James Fannin of Lauderdale Lakes, Florida. (See Petitioner's Exhibit 17.) Homer (Glen) Leonard Wade, Respondent, appeared and testified in his own behalf. Wade heard Costa's testimony and adopted it in all respects. Respondent testified that he never threatened Redington or Terry, nor did be indicate to them that he would contact their employers. He testified that he never held himself out as an attorney with Redington. Respondent testified that he has a collections manual which is given to all employees and that that manual sets forth in vivid detail, the practices and procedures utilized in collecting accounts assigned to him. He testified that new employees are oriented respecting the do's and don'ts of the collection business for approximately four days and they are administered a test on the fifth day. The employees are assigned collection tasks only if they pass the examination. Respondent stressed that he apprises new employees that both the "spirit" and "letter" of the law must be adhered to rigidly. Respondent testified that he uses the "gag" of long distance calls on occasion as the situation dictates. He testified that it is not improper to engage in such gags in the collection business. He testified that the gag of making a long distance telephone call was used in the case wherein the James T. Redington account was serviced because, in his personal opinion, a review of Redington's credit history file revealed that his account was in fact collectible. Respondent has serviced the collection accounts for Dr. Jorge since approximately 1973. A problem in the servicing of Dr. Jorge's accounts when he was unable to pick up same accounts that Dr. Jorge wanted serviced one day during 1973. According to Respondent, there was never any conversations with Dr. Jorge respecting termination of his contract with him, nor did Dr. Jorge ever write him a letter advising that he wanted to terminate his contract with Respondent. Respondent has been engaged in business since 1951. CASE NOS. 79-910; 79-911 The Petitioner has alleged that the Respondent violated Subsections 559.72(4) and 559.72(5), Florida Statutes, by its allegation dent Respondent has either communicated or threatened to communicate with the employers of debtors without first obtaining the debtors' written permission to do so and by sending certain demand letters to debtors demanding payment of sums which are in excess of the original amount of the debt. Respecting the allegation that the Respondent has attempted to collect a fee violative of Subsection 599.75(5), Florida Statutes, the parties stipulate that the method of calculating the amount set forth in the demand letter is based on an amount less than 6 percent simple interest. The uncontroverted evidence clearly indicates that in every instance Respondent's letters to the debtors are for an amount in excess of the original obligation. However, the difference between the original amount of the debt and the amount sought to be collected, in each instance, falls below the permissible interest rate allowed by Section 687.01, Florida Statutes. Respondent gave sworn testimony that the excess amounts demanded represented interest and was not a collection fee. Both Subsections 559.75(1) and 687.01, Florida Statutes, provide for the calculation and collection of interest. Subsection 559.75(1), Florida Statutes, states in applicable part: Any payment made by a debtor to a collection agency shall be deemed to be made to the creditor and such payment shall be made in the following order: Court costs and attorney fees; Principal amount of the consumer claim and incurred interest; and Other legally chargeable fees. Additionally, Section 687.01, Florida Statutes, states: In all cases where interest shall accrue without a special contract for the rate thereof, the rate shall be 6 percent per annum, but parties may contract for a lesser or greater rate by contract in writing. Inasmuch as the language of Subsection 559.75(1), Florida Statutes, provides that a collection entity such as Respondent is permitted to charge interest at the legal rate for all debts collected and inasmuch as all of the requested sums fall within the prescribed rate of interest, it can only be concluded that such was a legally chargeable rate of interest and not a fee for the collection of the debt which is passed on to the debtor. This is especially true in view of the sworn testimony of Respondent and/or its employees. Respecting the allegations that the Respondent either communicated or threatened to communicate with the employers of the debtors without first obtaining the debtors' written permission, the evidence reveals that Respondent's employees sent to the employee-debtor carbon copies of letters addressed to the employee's employer. The contents of the letters are demands to assist the Respondent in collecting a lawful debt owed by the debtor- employee. In all instances, the debtors acknowledged that the debts were in fact legal debts which had not been paid. The evidence also reveals that the original of the letters were never sent to the employers or anyone else and at no time did the debtors' employers ever receive the letter. It view thereof, it is impossible for the Respondent to have violated the cited statutes under its terms concerning "communication" with the debtors' employers. The remaining portion of the above allegation is to the effect that the Respondent "threatened to communicate with the debtor's employer. . .,". Under the above-referred to facts, it is impossible to "threaten" to do the act which the statutes proscribes. The Respondent's action herein is clearly not a "declaration of intention. . .to do an unlawful act." An intent to do an act evidences the accomplishment of it sometime in the future. Under the circumstances herein, any act in the mind of the debtor was clearly consummated. Nothing remained to be done and hence no threat was possible at the time the debtors received the communication from the Respondent. Although the debtor could only believe in his mind after reading the letter that the employer had already been contacted, which if said act had occurred, would be a violation of the statute, it cannot operate to take away the debtor's voluntary consent to allow Respondent to contact his employer. No such request or demand was made by the letter and, in fact, it never happened. In view thereof, and inasmuch as no future action remains to be done, the letter can in no way be interpreted as a threat in violation of Subsection 559.72(4), Florida Statutes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby, RECOMMENDED: That the allegations contained in the Notice to Show Cause filed herein be DISMISSED. RECOMMENDED this 26th day of September, 1979, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Francis Bayley, Esquire Division of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Emerson Allsworth, Esquire and Charles L. Curtis, Esquire Allsworth, Doomar, Schuler, Padula & Laystrom, P.A. 1177 Southeast Third Avenue Fort Lauderdale, Florida 33310 ================================================================= AGENCY FINAL ORDER =================================================================
The Issue The issue is whether Respondent retaliated against Petitioner for signing an affidavit allegedly adverse to Respondent and for testifying on behalf of another employee in a proceeding filed under Section 760.10, Florida Statutes, in violation of the Florida Civil Rights Act of 1992, as amended.
Findings Of Fact The Respondent is an employer as defined in the Florida Civil Rights Act of 1992, as amended. At all times material to this proceeding, Respondent employed Petitioner at Respondent's place of business located in Tallahassee, Florida. On March 29, 1990, Petitioner and Respondent's representative signed an Employment Agreement in which Petitioner agreed, inter alia, that during his employment, he would refrain from: (1) performing services for any person, during business hours, or at any other time, when said services were not authorized by Respondent; (2) soliciting work for or accepting any business from any customer of the company on behalf himself or for any others. On March 30, 1990, Petitioner and Respondent's representative signed a Sales Employee Compensation Plan in which Respondent agreed to pay Petitioner a starting salary of $1,200 per month as a guarantee against commission on sales for the first three months. Thereafter, Respondent's salary of $1,200 per month was to be a draw against commission on sales. Petitioner had to sell a minimum of $8,000 per month to earn his draw. Pursuant to the Sales Employee Compensation Plan, Petitioner earned a percent of sales, ranging from 10 percent to 20 percent, depending on the type of service Petitioner sold. He received commissions after the work was completed and the customer paid for the service. For example, Petitioner earned 15 percent of the annualized value of all pest control work, termite work, or special onetime service that he sold. He earned 20 percent of the initial month's service charge on all annual pest control service that he sold provided that he performed the start-up. Respondent paid Petitioner 20 percent of the total value of all real estate inspections (certification or clearance letter) that Petitioner performed. Under the Sales Employee Compensation Plan, Petitioner elected to receive 2.5 percent of monthly net commissionable sales, or $150, whichever was greater, as a gasoline allowance and to furnish his own transportation. However, Respondent's former branch manager gave Petitioner a gasoline credit card and told Petitioner to put the gasoline allowance in his pocket. The record indicates that the former branch manager acted beyond the scope of his authority in this regard. Upon employment, Respondent's former branch manager gave Petitioner a key to the office. Petitioner also received a pest control kit with which to perform the initial pest control treatment after selling a service contract. Respondent gave Petitioner a voice-pager so that he could stay in touch with the office and respond quickly to "office" leads. No other employee had the benefit of a voice-pager. In May of 1990, Petitioner successfully completed a training course in pest control. That September, he completed a course in termite control. On or about January 14, 1991, Petitioner became qualified to prepare wood infestation reports. At all times material to this proceeding, Petitioner was allowed to sell Respondent's services in north Florida and south Georgia. There were two kinds of sales leads. Petitioner could develop his own "creative" leads and sell anywhere within the sales territory of the Tallahassee branch office. Respondent's office manager logged all incoming "phone" or "office" leads and distributed them to the salesmen based on a geographic division of the sales territory. Petitioner lived in south Georgia; therefore, the office manager gave him all "office" leads originating in Georgia and on the east side of Tallahassee. Contrary to Petitioner's testimony, neither the office manager nor any other supervisor ever discriminated against Petitioner by withholding leads from him or by taking the best leads for themselves or another salesman. On or about September 16, 1991, Petitioner sold a customer a termite protection contract instead of a termite service contract on a very expensive home without Respondent's approval. This incident resulted in the preparation of a written Disciplinary Action Report (DAR) which states that Petitioner would be terminated if he could not follow Respondent's policy governing sales of termite protection and service contracts. Respondent's testimony that he signed this DAR under the threat of violence not credible. On February 26, 1992, Petitioner signed an affidavit relating to the employment relationship between Norm Arrington and Respondent. Mr. Arrington had been a salesman for Respondent and Petitioner's coworker. On March 9, 1992, Petitioner performed a wood-destroying organism inspection on residential property in Tallahassee, Florida. Petitioner issued a Form 1145 (October '89) Wood Destroying Organisms Inspection Report without identifying visible and accessible evidence of and damage caused by subterranean termites on the exterior of the structure. The Florida Department of Agriculture fined Petitioner $300 dollars for failing to report evidence of termite damage. Respondent paid this fine on Petitioner's behalf. Petitioner failed to report to work on September 12, 1992, for a sales meeting. He claimed he had an emergency but did not call in to explain his absence. Respondent wrote a DAR dated September 14, 1992, warning Petitioner that he would be suspended without pay for three days or terminated if he repeated this type of conduct. Petitioner presented contradictory record evidence concerning his reason for missing the sales meeting: (a) family medical emergency; and (b) mechanical problem with vehicle. Until October of 1992, Petitioner was successful in meeting or exceeding his minimum quota of $8,000 in sales revenue on an averaged monthly basis. One month he earned an award for being Respondent's top salesman statewide. However, in November of 1992, Petitioner's monthly sales revenues dropped below an acceptable level for an experienced salesman. Thereafter, Petitioner was in overdraw status, averaging between $3,000 and $4,000 per month in sales. Except for the month of February, 1993, Petitioner never again met his monthly minimum quota. At all times material to this proceeding, Petitioner's father owned a construction company. Respondent occasionally hired Petitioner's father to perform termite repair work. Respondent always hired outside contractors to do repair work for customers because of the liability involved and to prevent giving the impression that Terminix, Inc. was in the construction business. Petitioner was also trained as a carpenter. Petitioner admits that, during the months of his highest sales, he solicited and received "building" leads from Respondent's customers. As a result of these leads, Petitioner performed carpentry work, such as building cabinets or repairing damaged woodwork, for Respondent's customers. Petitioner's testimony that Respondent authorized this outside employment is not persuasive. In February of 1993, Tim Carey was Respondent's sales manager. He attended an out-of-town divisional sales meeting and returned to Tallahassee with motivational material to share with his staff. In the material was a poster which stated, "If you don't know where you going . . . you'll probably end up someplace else." Mr. Carey gave a copy of the poster to all salesmen including Petitioner sometime before Petitioner gave testimony adverse to Respondent. Petitioner's testimony that Mr. Carey gave the poster to Petitioner alone as a means of retaliation is not persuasive. On March 22, 1993, Petitioner testified by deposition on behalf of Norm Arrington in an unrelated age discrimination case. Around the end of March or the first of April, 1993, Tim Carey became Respondent's sales manager-in-charge. Respondent's Tallahassee branch did not have a branch manager at that time. Mr. Carey was responsible for all operations under the direct supervision of Ralph Potter, Respondent's regional manager. Mr. Carey officially became branch manager before Respondent terminated Petitioner on June 30, 1993. One of Mr. Carey's first acts as sales manager-in-charge was to change the locks to the office and the pesticide storage room. Petitioner signed a statement that he received a key to the office on March 31, 1993. However, Mr. Carey did not reissue an office key to Petitioner or any other sales representatives because they, unlike route technicians, did not work after normal business hours. Petitioner's testimony that his key was taken away as a discriminatory act is not persuasive. The undersigned also rejects Petitioner's testimony that the office was locked during office hours so that he was unable to use the phone. Mr. Carey also took Petitioner's company gasoline credit card because Petitioner was not entitled to use the card and receive a gasoline allowance too. This action was to enforce company policy, and not to retaliate against Petitioner. Soon after Mr. Carey became sales manager-in-charge, he and the office manager began receiving calls from customers wanting to know when Petitioner was going to finish their carpentry work. Sales meetings were interrupted at times by calls on Petitioner's voice-pager with inquiries about unfinished jobs. On one occasion, Petitioner came to the office at noon with paint on his hands which had been clean earlier that morning. On another occasion Mr. Carey could hear saws operating in the background when Petitioner called the office during business hours. Mr. Carey gave Petitioner repeated verbal warnings not to solicit outside employment or perform outside work for Respondent's customers. After each verbal reprimand, Petitioner would promise that he would stop and that it would not happen again. Mr. Carey eventually took Petitioner's voice-pager away and replaced it with a tone beeper like the ones used by other employees. The purpose of this action was to reduce overhead expenses and alleviate problems with Petitioner abusing the privilege of having a voice-pager. Petitioner could no longer receive direct messages relating to his construction business. Petitioner's testimony that Respondent discriminated against him by taking his voice-pager is contrary to more persuasive testimony. In April or May of 1993, Petitioner performed unauthorized work for one of Respondent's customers who sent one check to pay for a termite inspection and for Petitioner's carpentry work. In order to balance the office books, Respondent deposited the customer's check and wrote a separate company check made payable to Petitioner. Respondent again warned Petitioner not to perform unauthorized work for the company's customers. On May 17, 1993, Respondent prepared another DAR reprimanding Petitioner for two incidents. The first involved Petitioner's issuance of a clearance letter for Ms. Fortune's residence even though Petitioner had identified wood rot on the premises. Petitioner claimed he knew Ms. Fortune and issued the clearance letter based on her promise that she would repair the damage. A subsequent inspection revealed that the customer had not made the repairs. The second incident covered by the May 17, 1993, DAR involved one of Respondent's national relocation customers, Prudential Relocation. Petitioner prepared a wood destroying organism report for the customer without inspecting the inside of the structure. Respondent was responsible for repairing wood rot damage on the house. Petitioner violated Respondent's policy regardless of whether he wrote "exterior only" on the report. Neither party signed the May 17, 1993, DAR. However, Mr. Carey discussed both incidents with Petitioner and warned him that he would be suspended or discharged if: (a) Petitioner gave a clearance letter without inspecting the interior of the structure; and (b) Petitioner issued a clearance letter on a structure with water damage. On another occasion, Petitioner informed Mr. Carey that someone had stollen his pest control kit out of the back of his truck. Petitioner filed a police report on the missing pesticide kit. Several days later, a lady, who was not Respondent's customer, reported that Petitioner left the service equipment at her home after using it to treat her residence. Respondent recovered the missing equipment and did not return it to Petitioner. From that time on, a service technician performed Petitioner's initial pesticide treatments. Petitioner's testimony that Respondent took his pest control kit as a retaliatory act is rejected. Petitioner was not allowed to use the service equipment again because: (a) He left registered material in an unsupervised location; (b) He used the equipment to service a non-customer's property; and (c) He could schedule the start-ups for his new customers through the office. Petitioner's testimony that Respondent took the pest control equipment away and deliberately delayed the start-up service or failed to service on Petitioner's new accounts is not persuasive. On June 8, 1993, Ralph Potter and Tim Carey had a conference with Petitioner. The result of the meeting was a DAR signed by Mr. Potter and Mr. Carey. During the conference, the parties discussed: (a) Petitioner's poor performance for the first week of June, 1993, in which he created only $90 in revenues; (b) Petitioner's poor attitude; and (c) Petitioner's work ethic. Mr. Potter advised Petitioner that he would thereafter be expected to produce $2,500 per week in sales. Petitioner was counseled not to make negative comments, not to perform outside jobs on company time, and not to solicit from or do any work for Respondent's customers. The DAR listed suspension without pay or termination as future corrective action, if required. Petitioner refused to sign the June 8, 1993, DAR. Petitioner's attitude created problems as follows: (1) Mr. Carey had to ask Petitioner to leave a sales meeting because of his negative comments; (2) Petitioner disagreed with Mr. Carey over the proper way to complete required daily written sales reports; (3) Mr. Carey had to ask Petitioner to leave the office by 9:00 a.m. for his first appointment of the day; and (4) Petitioner resented not being allowed to answer the office phone even though company policy dictated that only the office manager, sales manager, or branch manager could answer the phone. Petitioner's testimony that Respondent offered him a job which would have reduced his income significantly is rejected as contrary to more persuasive evidence. Likewise, the undersigned rejects Petitioner's testimony that Ralph Potter physically attacked Petitioner in the men's room during an out-of-town meeting. Respondent discharged Petitioner on June 30, 1993. Petitioner's termination was the result of his unsatisfactory job performance and his failure to follow his supervisors' instructions. There is no persuasive competent substantial evidence to indicate that Respondent retaliated against Petitioner because he participated in a discrimination suit on behalf of a co-worker. To the contrary, Petitioner's employment record presents a history of problems with his supervisors. When Tim Carey became sales manager-in-charge, he and Ralph Potter warned Petitioner repeatedly that, regardless of his past working conditions, Petitioner would be expected to follow company policies. Petitioner's refusal to heed their advice and to increase his productivity resulted in job separation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the undersigned recommends that the Florida Commission on Human Relations enter a Final Order denying Petitioner's Petition for Relief. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 21st day of August, 1995. SUZANNE F. HOOD, Hearing Officer 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 21st day of August, 1995. APPENDIX The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. Petitioner's Proposed Findings of Fact Petitioner did not file Proposed Findings of Fact. Respondent's Proposed Findings of Fact 1-3 Accepted as modified in Findings of Fact 1-6. 4-5 Accepted as modified in Findings of Fact 9 & 14. Accepted as modified in Findings of Fact 11 & 18. Accepted in Findings of Fact 10, 13, 25, & 30. Accepted in Findings of Fact 12 except the administrative case involved only one incident. Accepted as modified in Findings of Fact 25-27. Accepted in Findings of Fact 10. Accepted in Findings of Fact 9 regarding leads. However, Petitioner never received a new key from Mr. Carey. Accepted in Findings of Fact 28 & 29. 13-14 Accepted but unnecessary to resolution of case. Accepted. See Findings of Fact 11, 33, & 34. Not a finding of fact. More of a conclusion of law. COPIES FURNISHED: Linda G. Miklowitz, Esquire Post Office Box 14922 Tallahassee, Florida 32317-4922 James M. Nicholas, Esquire Post Office Box 814 Melbourne, Florida 32902 Sharon Moultry, Clerk Human Relations Commission 325 John Knox Rd., Bldg. F, Ste. 240 Tallahassee, FL 32303-4149 Dana Baird General Counsel 325 John Knox Rd., Bldg. F, Ste. 240 Tallahassee, FL 32303-4149
