The Issue Whether the Respondent is a Public Employer within the meaning of Florida Statutes, Chapter 447. Whether the Petitioner is an employee organization within the meaning of Florida Statutes, Chapter 447. Whether there is a sufficient showing of interest as required for the filing of a representation election petition under Florida Statutes, Chapter 447. Whether the employee organization is a properly registered organization with the Public Employees Relations Commission. What is the appropriate unit of public employees in the cause before the Public Employees Relations Commission. HEARING OFFICER'S REPORT The five issues were discussed at the hearing with the following results: It was agreed that the City of Rockledge is a public employer. It was agreed that the Petitioner is an employee organization within the meaning of Florida Statutes, Chapter 447. It was agreed that there is a sufficient showing of interest as required for the filing of a presentation election petition under Florida Statutes, Chapter 147. It was agreed that the employee Organization is a properly registered organization with the public Employees Relations Commission. The appropriate unit of public employees in the cause was in dispute. The Petitioner stated that the Association wanted to represent the dispatchers, patrolmen, sergeants, lieutenants and the detectives. The Public Employer requested that only patrolmen and detectives should make up the unit.
Findings Of Fact The Petition, styled Brevard County P.B.A, Petitioner, and City of Rockledge, Public Employer, seeks a certificate of representation as the exclusive bargaining agent for Officers of the City of Rockledge, Florida, including patrolmen, sergeants, dispatchers lieutenants and detectives. Excluded are captains and the chief of police. The city Counsel of the city of Rockledge, Florida, in the minutes dated April 2, 1975, agreed to follow guidelines under "Section 300" (8H300) of the Florida Administrative Code. See "Exhibit (1)". An envelope furnished by PERC containing authorization cards for the Brevard County P.B.A., alphabetized list of employees provided by the employers, notice of appearance forms for the attorneys, request to appear forms by the public, registration file (original) for the Brevard County P.B.A, original petition file including Petition, affidavit of registration, affidavit for 30 per cent showing interest, was circulated and without objection entered into evidence. See "Exhibit (2)". There are eighteen (18) men in the proposed bargaining unit: nine (9) patrolmen, two (2) detectives, three (3) dispatchers, three (3) lieutenants and one sergeant. A copy of the official job description of the City of Rockledge Police Department effective prior to the instigation of these proceedings was requested to be examined by both parties and submitted to the Hearing Officer and was submitted and marked as Supplement to the Record" and is made a part of this file. The major functions of personnel as delineated in the job descriptions submitted are as follows: Lieutenant: This is supervisory work in coordinating police activities on an assigned shift or specialized division of the department. The employee is responsible for the overall supervision of the subordinate personnel (patrolmen, dispatchers, etc.) engaged in police activities on an assigned shift or a specialized division. Part of the duties are to assign, direct and supervise the work of subordinate personnel engaged in routine police activities or criminal investigations. This employee reviews and makes recommendations for disciplinary action of subordinate personnel of the department. Sergeants: This is supervisory and specialized police work in the field and in police headquarters. An employee in this classification may also assume the total responsibilities as assigned to a regular shift commander. An employee in this classification may also be assigned the duty of coordinating the communication operators (dispatchers). When working as a shift commander the duties are the sane as listed for a lieutenant's duties. Patrolmen: This is general duty police work in enforcing laws and ordinances of the federal, state and local governments. Specific assignments are received from superior officers and carried out in accordance with the established rules and procedures. Personnel must be able to act without direct supervision in emergencies. Primary duties are to enforce the laws and ordinances and investigate and see whether these laws and ordinances are being violated. Detectives: The major functions of the detective is specialized police work but also includes enforcing the laws and ordinances of the federal, state and local governments. Major duties include the conducting of surveillance assignments to help detect crime and general investigative work. Communication operator or dispatcher: This is specialized work receiving, screening and dispatching messages of police communication systems. His duty largely is the operation of the radio transmitter for the purpose of dispatching patrol and detective units and receiving messages. In accordance with Chapter 447, Florida Statutes, no recommendations are submitted. August 8, 1975. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: James D. Williams, Vice President Brevard County P.B.A. 978 Beacon Road Rockledge, Florida 32955 Vernon Weekly, Past President Brevard County P.B.A. 700 Sandgate Street Merritt Island, Florida 32952 Dale Dixon, President Brevard County P.B.A. 2460 North Coutenay parkway Suite 216 Merritt Island, Florida 32952 John A. Hipp, City Manager City of Rockledge Post office Box 488 Rockledge, Florida 32955 Jim Gilliard 993 Pinson Boulevard Rockledge, Florida Ronald F. Ray Post office Box 206 Rockledge, Florida Chairman Public Employees Relations Commission Suite 105 2005 Apalachee parkway Tallahassee, Florida
The Issue In an order dated January 29, 1992, the State of Florida, Commission on Ethics found probable cause that the Respondent, as a city commissioner of the City of Cottondale, violated Section 112.313(7)(a), Florida Statutes, by having a contractual relationship with a business entity which was doing business with the city. The issue in this proceeding is whether the violation occurred and, if so, what penalty should be recommended.
Findings Of Fact Leonard Norsworthy served two two-year terms as a city commissioner for the City of Cottondale, a small community in the Florida panhandle. His tenure spanned from 1987 until July 1991. Mr. Norsworthy is sole proprietor of J. & L. Housepainting and Remodeling (J & L), a roofing and remodeling business. He has a State of Florida contractor's license. Sometime in 1990, the City of Cottondale, through its grants coordinator in Tallahassee, sought and obtained Community Development Block Grant (CDBG) funds for various needed public works. The project was advertised, and a bid was awarded to T & A Utilities Contractors, Inc. (T & A), a Lynn Haven, Florida, firm owned by Charles Williams. The total contracted amount of $244,282 included resurfacing two streets, a parking lot, a children's park, 8-inch water lines, and renovations to the city hall. Not all of the work was done immediately, as the city needed to get various permits. Due to changes in the scope of work, additional money became available for other projects, including renovating a public bathroom to make it accessible for handicapped persons. Some of the work was subcontracted by T & A to other firms. Charles Williams did not advertise for bids for the subcontracted work, but obtained proposals. He had obtained proposals from some Panama City firms for the bathroom and city hall renovations because he was not aware of firms closer to Cottondale. "Pete" Hilton was Cottondale's Public Works Director for eight years until he left in October 1992 for medical reasons. He told Charles Williams that he knew someone who could do the work for a good price, and shortly thereafter Leonard Norsworthy called Williams. Mr. Norsworthy's proposal was less than the prices quoted by the Panama City firms, and on June 5, 1991, T & A subcontracted with J & L for the renovation work for a total amount of $8,460. The sum was paid in three releases. The jobs performed by Mr. Norsworthy under the subcontract included redoing the bathroom and a handicap ramp entrance, installing rain gutters, removing a wall and plastering and finishing a wall. At no charge for his labor, Mr. Norsworthy also painted the building. Leonard Norsworthy knew about the city's revitalization contract with T & A because he was a city commissioner at the time. While the city was a party to the contract, the specifications and the background work were handled by the city engineer, who recommended the award to T & A. Leonard Norsworthy admits that he did the work and says, "You live and learn." He concedes that there are others in the area who could have done the work, but believes he gave a good price for the job. He says that work is scarce in the area and you have to take it where you find it. He knew that the law prohibited doing business with one's own agency, but he had no idea that the prohibition extended to subcontracts as well.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED: That the Commission enter its final order and public report finding that Leonard Norsworthy violated Section 112.313(7), Florida Statutes, and recommending a penalty of $300.00. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 12th day of April 1993. MARY CLARK 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 12th day of April 1993. COPIES FURNISHED: Craig Willis, Esquire Michael Ingraham, Esquire Department of Legal Affairs The Capitol, Suite 1502 Tallahassee, Florida 32399 Leonard Norsworthy Post Office Box 299 Cottondale, Florida 32431 Bonnie Williams, Executive Director Ethics Commission Post Office Box 6 Tallahassee, Florida 32302-0006 Phil Claypool, General Counsel Ethics Commission Post Office Box 6 Tallahassee, Florida 32302-0006
Findings Of Fact The matters of fact being stipulated to by the parties are as follows: The City of Panama City has enacted a "local option" ordinance pursuant to Section 447.603, Florida Statutes. The City Ordinance No. 933 created the Panama City Public Employees Relations Commission ("PC-PERC") to exercise jurisdiction over labor relations matters arising between public employers and public employees of the City of Panama City in lieu of the State Public Employees Relations Commission ("PERC"). This ordinance was approved by the State of Florida Public Employees Relations Commission pursuant to Section 447.603, Florida Statutes following an order of the First District Court of Appeal in City of Panama City v. Florida Public Employees Relations Commission, 364 So.2d 109 (Fla. 1st DCA 1978) directing PERC to do so. On June 6, 1979 PERC issued an order to PC-PERC pursuant to Florida Administrative Code Rule 38D-23.01(2), the subject of this proceeding. The order relies on language in the Rule in question, which provides that "upon failure of the local commission . . . to timely submit such modifications, the commission shall revoke approval of the local commission and shall assume jurisdiction over all matters in dispute pending before the local commission". Thus, whereas the order is directed to the local commission, the penalty for failure to comply with the order is revocation of approval of the City's local option ordinance itself. Ordinance No. 933 gives the PC-PERC the sole power to adopt rules. Section 1.004(1) provides that the Commission "shall adopt, promulgate, amend or rescind such rules and regulations as it deems necessary and administratively feasible to carry out the provisions of this ordinance " Ordinance No. 933 further makes the local commission an independent body, providing at Section 1.003(1) that "the Commission in the performance of its duties and powers under this ordinance shall not be subject to the control, supervision or direction by the City Manager or City Commission." The City has no control whatsoever over whether, or to what extent, the Panama City Public Employees Relations Commission complies with PERC's order of June 6, 1979. That order, which is pursuant to Rule 38D-23.01, purports to provide for the revocation of approval of the local commission created by the City's ordinance within ninety (90) days unless PC-PERC complies with it. By request dated August 17, 1979, the Petitioner filed a Request to Take Official Notice of certain orders of the Public Employees Relations Commission and of certain sections of Panama City Ordinance No. 933. Respondent having been noticed of that request and entering no opposition thereto and, further, Respondent having referred in its brief herein to certain of the orders for which official notice was requested (PERC Order dated July 23, 1979, Page 1 of Respondent's brief) the Request to Take Official Notice is granted, and those items 1-11 in that request are admitted into evidence and made a part of the record of this proceeding. By order of the Public Employees Relations Commission dated July 23, 1979, the order of that same Commission dated June 6, 1979, and referred to in paragraph 1(b) above was vacated to allow the City of Panama City to make certain alleged necessary amendments to its local option ordinance and for such amendments to be approved by the Public Employees Relations Commission. By order dated July 19, 1979, the Public Employees Relations Commission notified the City of Panama City that Chapter 447, Park II, Florida Statutes had been substantially amended and that the City's local option ordinance must be amended and submitted to PERC for review and approval within ninety (90) days. The order further noted that "[f]ailure by the City to timely submit modifications for review and approval by the Commission may subject the local option to revocation of approval and jurisdiction." Finally, the order recited Florida Administrative Code Rule 38D-23.01(2) as the authority for the foregoing requirement. That is the same rule being challenged in this proceeding.
The Issue The issue is whether Respondent committed a violation of the Florida Civil Rights Act of 1992, as alleged in the Charge of Discrimination filed by Petitioner on January 2, 1998.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: In his Charge of Discrimination, Petitioner, Jeffrey S. Wytrwal, alleges that after he had suffered a knee injury, Respondent, Waste Management of Putnam County, violated the Florida Civil Rights Act of 1992, as amended, by failing to find him a "light duty" position "due to [his] disability and [because of] unfair favoritism throughout this company." Respondent denies the charge of discrimination and contends that Petitioner does not suffer from a disability, and even if he did, it had no positions in the company which were compatible with his medical restrictions. Respondent is engaged in the business of providing solid waste collection services for the residents of Putnam County, Florida. Testimony by Respondent's district manager, Brian Watkins, established that Respondent is an employer within the meaning of the law and is thus subject to the provisions of Chapter 760, Florida Statutes. Petitioner worked for Respondent as a driver on a garbage truck from 1990 until 1993, and then again beginning in January 1995. The work is physically demanding, and it requires that the driver frequently jump in and out of the vehicle to sling or empty garbage cans into the rear-end loader. After working a 12-15 hour shift on January 28, 1997, Petitioner was home sitting on his bed "half Indian style" when he attempted to stand up. His right knee locked; he was transported to a local hospital; and he later underwent arthroscopic surgery to correct the injury. After suffering the foregoing injury, Petitioner qualified for disability payments from his employer, and he began receiving a monthly disability check in the amount of $888.00. On an undisclosed date after Petitioner suffered his injury, Respondent changed its hauling operation from a two-man team (a driver and swingman) on each truck to a single driver. This meant that the bona fide occupational requirements for the position of driver required that he engage in bending, stooping, and climbing on a repetitive basis for long hours each day without the aid of a "swingman." On October 14, 1997, Petitioner was released by his doctor to return to work and was given a certificate which read "No bending, stooping, climbing (Light Duty Only, if available)." These restrictions obviously did not allow Petitioner to return to his former job. Upon obtaining the release, Petitioner telephoned his supervisor, John Rakoczy, and asked if he could go back to work on "light duty," performing duties that would be compatible with his medical restrictions. On a very few occasions, Respondent had authorized an injured worker to perform other temporary duties if his injuries "fit a temporary job." However, except for two already filled dispatcher positions in the office, Respondent had no jobs which did not require bending, stooping, or climbing. Therefore, without making fundamental alterations in the company's operations, which would result in an undue hardship to the company, Rakoczy could not offer Petitioner part- time or restricted work. Petitioner did not seek the office dispatcher position, and he produced no evidence that he was qualified to perform that job. Although Petitioner admits that his knee has improved since October 1997, he never again contacted his employer regarding reemployment. At hearing, Petitioner acknowledged that he agreed with Rakoczy's assessment that no light duty jobs were available within the company. Even so, he and his wife "took it hard," and in January 1998 he filed his Charge of Discrimination. Petitioner has not alleged, nor presented competent and credible evidence, that his knee injury continues to limit the full and normal uses of his physical facilities. While it is undisputed that the injury may have limited his physical facilities during his recuperation, there is no evidence that it continues to do so, or that others regard him as having a disability. Therefore, Petitioner has failed to demonstrate that he is disabled within the meaning of the law. Respondent's decision to not offer Petitioner light duty was not based on discriminatory reasons, as Petitioner has alleged, but was based on the fact that there were no jobs which were compatible with Petitioner's medical restrictions. While collecting medical disability payments, Petitioner also filed a worker's compensation claim against his employer in October 1997, and this claim was settled in May 1999 for the sum of $27,000.00. By agreeing to the settlement, Petitioner was no longer eligible for disability payments, and they terminated in May 1999. Until he settled his worker's compensation claim, Petitioner did not look for other employment. After the case was settled, however, he secured a job within a week at a local country club doing maintenance and landscaping work, and he has worked there since that time. There is no evidence as to how his current job duties compare with the duties that he performed for Respondent. Further, the difference in compensation, if any, between the new job and Petitioner's former job is not of record. Although Petitioner contended that Respondent had offered "light duty" to other injured workers in the past, he could only identify one such worker named "Keith," who had lost four fingers in an accident. Unlike Petitioner, however, that worker was able to perform a variety of temporary jobs despite the limitations caused by his injury. Neither the Charge of Discrimination, nor the record evidence, reveals the specific relief that Petitioner is requesting. Rather, the complaint merely lodges allegations of discrimination against Respondent. Respondent suggests that Petitioner's injury was pre-existing, and occurred before January 28, 1997, and that Petitioner may be malingering. This is based on the treating physician's notes which reflected that Petitioner had his symptoms prior to the date of the injury. Even if this were true, however, this fact would appear to bear on the legitimacy of Petitioner's worker's compensation claim, and not the charge of discrimination. Finally, even though the treating physician suspected that Petitioner might be malingering with his injury, this was only a suspicion and was not medically confirmed.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Commission on Human Relations enter a final order dismissing, with prejudice, Petitioner's Charge of Discrimination. DONE AND ENTERED this 31st day of August, 1999, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (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 31st day of August, 1999. COPIES FURNISHED: Jeffrey S. Wytrwal Post Office Box 701 Satsuma, Florida 32189-0701 Joseph P. Shelton, Esquire 1500 Resurgens Plaza 945 East Paces Ferry Road Atlanta, Georgia 30326-1125 Sharon Moultry, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Dana A. Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue Is Petitioner entitled to attorney's fees and costs under Section 57.111, Florida Statutes, the Florida Equal Access To Justice Act?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: The action in this case was initiated by the Respondent, a state agency. The Respondent was not a nominal party. Petitioner was the prevailing party in the administrative action brought against his license by Respondent in Department of Business and Professional Regulation, Board of Veterinary Medicine vs. William H. Jernigan, D.V.M., Case No. 95-4487 in that Respondent voluntarily dismissed the case. Petitioner incurred attorney's fees and costs in excess of $15,000, and there is no dispute as to the reasonableness of attorney's fees and costs. There are no special circumstances which would make an award of attorney's fees and costs unjust. At all times pertinent to this proceeding, Petitioner's veterinary practice was organized as a sole proprietorship under the fictitious name of Sebring Animal Hospital located in Sebring, Florida. Petitioner is the sole proprietor of Sebring Animal Hospital, an unincorporated business. Both Petitioner and Sebring Animal Hospital are domiciled in the State of Florida. At all times pertinent to this proceeding, Petitioner through Sebring Animal Hospital employed less than 25 employees. At no time pertinent to this proceeding, did Petitioner and Sebring Animal Hospital have a combined net worth in excess of two million dollars. Petitioner is a "small business party" as that term is defined in Section 57.111(3)(d), Florida Statutes. On or about September 23, 1993, a dog was presented to the Sebring Animal Hospital for boarding and grooming. On or about October 1, 1993, a hospital employee, during the course of grooming the dog, left the dog unattended. While unattended, the dog either fell or jumped off the grooming table and accidentally hanged herself with a leash that was being used to restrain her. The dog's owner was notified of the accident on October 1, 1993. Petitioner was not present in the hospital at the time of the accident. The owner of the dog subsequently filed a complaint with the Respondent on March 28, 1995. An investigation of the incident was conducted by an investigator from the Department of Business and Professional Regulation (Department). The investigator prepared an Investigative Report which included, among other things, the Investigator's interview with the complainant and Petitioner's response. The factual allegations of the incident contained in the Investigative Report are the same as those set out in findings of fact 9, 10, and 11. The Investigative Report was presented to the Probable Cause Panel (PCP) of the Board of Veterinary Medicine. The members of the PCP reviewed the Investigative Report prior to its meeting and discussed the Investigative Report at the PCP meeting on June 29, 1995. The PCP found probable cause and issued a Memorandum of Finding of Probable Cause but did not state the statutory violations upon which the finding of probable cause was based. The PCP directed the Department to file an Administrative Complaint. Although the Board's attorney was present at the PCP meeting on June 29, 1995, none of the panel members made an inquiry of the Board's counsel as to whether under the facts presented there was a violation of Chapter 474, Florida Statutes, specifically Section 474.214(1)(o), Florida Statutes. In fact, the PCP made no inquiry of anyone as whether the facts as presented constituted a violation of Chapter 474, Florida Statutes. Of all the evidence considered by the PCP, there was no evidence which would reasonably indicate that a violation of Chapter 474, Florida Statutes, had occurred. As directed by the PCP, the Department filed an Administrative Complaint against Petitioner alleging a violation of Section 474.214(1)(o), Florida Statutes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is accordingly, ORDERED that Petitioner's Application for Attorney's Fees is Granted and the Respondent shall forthwith pay Petitioner the sum of $15,000 for attorney's fees and costs. ORDERED this 18th day of August, 1997, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6947 Filed with the Clerk of the Division of Administrative Hearings this 18th day of August, 1997. COPIES FURNISHED: Richard T. Ferrell Secretary Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Lynda L. Goodgame General Counsel Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Sue Foster Executive Director Board of Veterinary Medicine Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Bert J. Harris, III, Esquire SWAIN, HARRIS, SHEEHAN and MCCLURE, P.A. 212 Interlake Boulevard Lake Placid, Florida 33852 James E. Manning, Esquire Department of Business and Professional Regulation Suite Number 60 1940 North Monroe Street Tallahassee, Florida 32399-0792
