Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: Respondent Charley O. Young & Sons Trucking, Inc. (Company) is engaged in the business of hauling United States Mail between various United States Postal Service's post offices in the State of Florida, and is an employer as that term is defined in Section 760.10(7), Florida Statutes. Charley O. Young (Young), president of the Company, has been involved in the business of hauling United States mail for over 35 years. The mail which the Company hauls from post office to post office comes from places throughout the United States and the world. Such mail is considered to be in a continuous flow in interstate commerce from the moment it is mailed until it reaches its ultimate destination. Petitioner Dennis Bonville has been employed by the Company from time to time as an employee and as a subcontractor. Petitioner's last employment with the Company was as an employee driving a truck hauling mail from Tampa, Florida to Ruskin, Florida. The Company hired Petitioner with the full knowledge and understanding that Petitioner had a handicap known as monocular vision (vision capacity in one eye). Notwithstanding his handicap, Petitioner had been granted medical certification and was qualified to operate a commercial motor vehicle in the State of Florida in intrastate commerce in accordance with Section 316.302(2)(j), Florida Statutes. The position held by Petitioner was created as a result of the Company being awarded an emergency mail hauling contract between Tampa, Florida and Ruskin, Florida by the U. S. Postal Service beginning February 10, 1990, for an indefinite period. At the time Petitioner was hired, he understood that his employment with the Company was indefinite since the contract for the Tampa to Ruskin run with the U. S. Postal Service was for an indefinite period. On or about April 27, 1991, the Company was audited by the United States Department of Transportation, Office of Motor Carrier Safety, Florida Division (USDOT). The USDOT agent reviewed, among other things, the personnel and medical files of all the Company's drivers. During the audit, the agent discovered that Petitioner had monocular vision. The contract for the Tampa to Ruskin mail run required the Company to comply with all state and federal regulations, including those promulgated by the USDOT. Under USDOT rules, monocular vision disqualified Petitioner from driving a commercial motor vehicle in interstate commerce. The agent demanded that Young immediately remove Petitioner from the Tampa to Ruskin run since it involved operating a commercial motor vehicle in interstate commerce. However, since Young had no qualified driver to relieve Petitioner, the agent agreed to allow Petitioner to complete the run for the day with the understanding that the Petitioner would be relieved upon his return. The agent then advised Young that he would return the next day to complete the audit, and if the Petitioner had not been relieved, he had the authority to, and would, put a padlock on the door and shut down the Company's business. It was the agent's position that the Company was engaged in interstate commerce due to its hauling mail that was in interstate commerce, notwithstanding that the Company's vehicles never left the State of Florida. Therefore, the Petitioner's monocular vision rendered him unqualified to drive a commercial motor vehicle operating in interstate commerce under the USDOT rules which governed drivers under mail contracts. When the Petitioner returned that night to the Company's office, Young informed the Petitioner that due to the agent's position and his threat to shut down the Company's business if Petitioner continued to make the Tampa to Ruskin run, he had no alternative but to relieve the Petitioner of the Tampa to Ruskin run. When the agent returned to complete the audit the next day, the Petitioner had a heated discussion with the agent concerning the agent's position and its effect on the Petitioner's employment. The agent maintained his position that Petitioner was not qualified to drive the vehicle being used in the Tampa to Ruskin mail run which was considered to be in interstate commerce. At the conclusion of the audit, the Company was issued, among others, citations for violating 49 C.F.R. 391.11(b)(6), using a physically unqualified driver, and was fined $6,000. At this time, the Company had no other positions which it could offer the Petitioner that would accommodate his handicap. Therefore, as a result of the audit and the agent's threat to "shut down the business", the Petitioner was terminated by the Company effective April 27, 1991. At the time Petitioner was terminated he was earning $11.19 per hour and working 40 hours per week. Petitioner's job performance was not an issue in the Petitioner's termination. The Company's bid for the renewal of the Tampa, Florida to Ruskin, Florida contract was unsuccessful, and on April 30, 1991, the Company's contract for the Tampa to Ruskin mail run expired. Petitioner was replaced by a Company employee who was qualified under the USDOT rules to operate the vehicle used on the Tampa to Ruskin run for the three days remaining on the contract. After Petitioner's termination, sometime around October, 1991, the Petitioner was offered employment with the Company driving a van, which Petitioner was qualified to drive, delivering special delivery mail. However, this employment offered less money than Petitioner's previous employment with the Company and was turned down by the Petitioner.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Florida Commission on Human Relations enter a Final Order dismissing the Petition For Relief filed by the Petitioner. RECOMMENDED this day 29th of August, 1994, at Tallahassee, Florida. WILLIAM R. CAVE 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 29th day of August, 1994.
The Issue Whether Respondent, John J. Fugate, Sheriff of DeSoto County, willfully violated Subsection 104.31(1)(a), Florida Statutes (2003), which prohibits an officer or employee of the state, or of any county or municipality, from using his or her official authority or influence for the purpose of interfering with an election or a nomination of office or coercing or influencing another person's vote or affecting the results thereof.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following findings of fact are made: At the time of hearing, Respondent, John J. Fugate, was the incumbent Sheriff of DeSoto County, Florida. He was first elected in November 2000 and took office in January 2001. At the times pertinent to this case, Sheriff Fugate was a candidate for re-election, having filed the initial paperwork appointing a campaign treasurer and naming a depository for campaign contributions on May 20, 2003. Also on May 20, 2003, Sheriff Fugate submitted his signed "Statement of Candidate," pursuant to Section 106.023, Florida Statutes (2003). This document attested that Sheriff Fugate had received, read, and understood "the requirements of Chapter 106, Florida Statutes (2003)." These statutory provisions were included in the "2000 Candidate Handbook On Campaign Financing," published by the state Division of Elections and given to Sheriff Fugate by the local Supervisor of Elections, when Sheriff Fugate filed his paperwork for the 2000 election. The "2004 Candidate and Campaign Treasurer Handbook" was given to Sheriff Fugate when he filed his re-election paperwork with the local Supervisor of Elections and also included the provisions of Chapter 106, Florida Statutes (2003). During the Commission's investigation, Sheriff Fugate admitted that he had also read Chapter 104, Florida Statutes (2003), and believed he understood its provisions. Though Sheriff Fugate had filed the papers establishing his candidacy for re-election, some Sheriff's Office employees openly questioned whether he really intended to stand for re-election. These questions stemmed from the fact that Sheriff Fugate's teenage son had been killed in an automobile accident in 2002. Sheriff Fugate was aware of these questions and was concerned that loyal employees were unsure of his intentions. For some time, Sheriff's Office employees had also been discussing the status of Major William Wise, the second-in- command to Sheriff Fugate. Major Wise had been the chief deputy under Sheriff's Fugate's predecessor, was kept in that position by Sheriff Fugate, and was very popular among the Sheriff's Office employees. Major Wise was a participant in the State of Florida's Deferred Retirement Option Program ("DROP"), which he believed would require him to separate from the Sheriff's Office for one year upon his official retirement in October 2004. However, in October 2003, Major Wise learned that there was a way for him to reduce his separation to 30 days and still retain his full retirement benefit. Sheriff Fugate decided to prepare a letter to all Sheriff's Office employees that would convey both his re-election intentions and the good news concerning the fact that Major Wise would not have to vacate his position. The letter was written on stationery with a header reading, "Re- Elect Fugate for Sheriff," along with Sheriff Fugate's mailing address and phone number. The text of the letter read as follows: It hardly seems possible that the second half of the third year of this term of office is upon us and I can only concur with the saying that "time stands still for no one." For those that have been here for a while, we have made giant strides for the DeSoto County Sheriff's Office in the past two and a half years and for the newer employees, with your help and our combined efforts, I look forward to more success in the future. Thank you for your help and I truly appreciate the service given to the citizens of DeSoto County. In anticipation of running for a second term of office and as legally required, I have opened my official campaign account. This is the first step in any campaign and this announcement is not to be construed as a request for a contribution to my campaign. I, like you, have been in an employment position when the incumbent was seeking another term of office and can personally relate to pressure applied to assist with the campaign. Please understand that I will, and do value your support in any way that you may be inclined to offer. I also encourage anyone that feels that I have not earned your support in any way in the performance of my duty to feel free to talk to me and you can be assured that it will remain professional and will not be made personal. On another note, I know that there has been some question as to what was going to happen to the position of Major due to Major Wise being in the Drop program and it coming to an end. It is with great pleasure that I announce that a way has been found for Major Wise to continue in his position and he has made the decision to do so. Major Wise has contributed a great deal to this office and I am very pleased that he will be staying with us. If anyone has any questions about this letter, I remind you of our "open door" policy and invite you to feel free to stop by and visit with me. Again, thank you and I look forward to our working together to build a better office for the employees and the community. Beneath Sheriff Fugate's signature was the following: "Pd. Pol. Adv. Paid For In-Kind By John J. Fugate. Approved by John J. Fugate (D)." Sheriff Fugate's review of the Candidate Handbooks led him to conclude that he should not use the Sheriff's Office or DeSoto County resources in preparing or distributing his letter and that none of the costs involved in preparing or distributing the letter should be borne by the Sheriff's Office or the County. Thus, Sheriff Fugate drafted the letter on his home computer. He printed approximately 120 copies of the letter on his home printer, using paper and ink that he purchased at Wal- Mart. On his campaign treasurer's report for the third quarter of 2003, Sheriff Fugate reported the cost of ink and paper associated with this letter as an in-kind contribution from himself to his campaign. Sheriff Fugate brought the copies of the letter to the Sheriff's Office and placed one copy in the pay envelope of each Sheriff's Office employee. At the DeSoto County Sheriff’s Office, it was common practice for items other than pay checks to be included in the pay envelopes. Such items had included advertising circulars and public service memoranda, but not political advertisements. The Sheriff's Office had no specific policy setting forth what may or may not be placed in the pay envelopes, nor was there any particular procedure for obtaining approval of what was to be placed in the pay envelopes. Neither Sheriff Fugate, Major Wise, nor payroll supervisor Kathy Willcutts could recall a request to place an item in the pay envelopes ever having been denied. The pay envelopes, including Sheriff Fugate's letter, were distributed to the Sheriff's Office employees in the usual manner, either at the front desk in the Records Division for pickup or in the employee's mail slot. The employees received Sheriff Fugate's letter upon retrieving their paychecks on or about October 2, 2003. Several Sheriff's Office employees testified at the hearing. None of these employees felt that Sheriff Fugate was attempting to influence their vote or pressuring them to make a monetary contribution to his campaign. Lieutenant Carol Williamson is a 28-year Sheriff's Office employee and has worked for five different sheriffs. Lt. Williamson testified that in the past, she has been essentially ordered to campaign for her bosses, but that she did not consider Sheriff Fugate's letter to be anything other than informational. Deputy Mark Lawrence testified that "I read it, said 'okay,' and threw it away." Sheriff Fugate disclaimed any intent to influence his employees' votes or pressure them for campaign contributions. During his career, he had been forced to campaign for his elected superiors. Because of this experience, Sheriff Fugate did not wish to place his own employees in the position of feeling coerced to support him. Sheriff Fugate testified that he used campaign letterhead and included the "paid political advertisement" disclaimer because his reading of the statutes led him to conclude that those items were legally required on any correspondence referencing his campaign. Nevertheless, Sheriff Fugate maintained that his letter was intended solely to convey information, not to coerce or influence anyone's vote. Sheriff Fugate's testimony is supported by the letter itself, which expressly stated that he was not seeking contributions to his campaign and that employees should feel no pressure to support his candidacy. Nonetheless, Sheriff Fugate's letter was clearly an attempt to favorably influence his employees, albeit a low-key one that did not demand support in the apparent manner of previous sheriffs. The letter solicited the support of Sheriff's Office employees, "in any way that you may be inclined to offer." The letter may not have been coercive, but it was disingenuous for Sheriff Fugate to suggest that the letter was not designed to influence his employees in the upcoming election. Sheriff Fugate was cognizant of Section 104.31, Florida Statutes (2003), and its prohibition on the use of "official authority or influence for the purpose of . . . coercing or influencing another person's vote . . . ." However, Sheriff Fugate believed, mistakenly but in all good faith, that his placement of the letters was allowed under another provision of Section 104.31, Florida Statutes (2003): The provisions of this section shall not be construed so as to prevent any person from becoming a candidate for and actively campaigning for any elective office in this state. All such persons shall retain the right to vote as they may choose and to express their opinions on all political subjects and candidates. For reasons expressed in the Conclusions of Law below, Sheriff Fugate's good faith belief that his actions were within the ambit of the statute negates any suggestion that he "willfully" violated Subsection 104.31(1)(a), Florida Statutes (2003). Sheriff Fugate did not seek advice from the local Supervisor of Elections or an advisory opinion from the state Division of Elections pursuant to Subsection 106.23(2), Florida Statutes (2003), because he believed that he understood the application of the relevant statutes to his situation, including Section 104.31, Florida Statutes (2003).
Recommendation Based upon the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Florida Elections Commission enter a final order finding that Respondent, John J. Fugate, did not violate Subsection 104.31(1)(a), Florida Statutes (2003), as alleged, and dismissing the Order of Probable Cause. DONE AND ENTERED this 22nd day of December, 2004, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of December, 2004.
The Issue The ultimate issue in the instant case is whether Petitioner abandoned his position with Respondent and resigned from the Career Service.
Findings Of Fact Based upon the record evidence, the Hearing Officer makes the following Findings of Fact: Respondent was formerly employed as a Tax Auditor II in Respondent's Fort Lauderdale office. In May, 1987, Petitioner filed a charge against Respondent with the Equal Employment Opportunity Commission (EEOC). The charge was docketed as Charge No. 150871115. Eleven months later, Petitioner filed a second charge against Respondent with the EEOC. This second charge was docketed as Charge No. 150881243. By letter dated May 3, 1988, Petitioner requested that he be granted leave without pay "until both EEOC investigations [were) over." Petitioner's request resulted in a memorandum of understanding and agreement between Petitioner and the Acting Director of Respondent's Division of Audits, Glenn Bedonie. The memorandum was signed by Bedonie on May 9, 1988, and by Petitioner the following day. It provided in pertinent part as follows: This memorandum will confirm our agreement that the Department is granting your request for leave without pay until such time as the two Equal Employment Opportunity Commission (EEOC) investigations are completed and the findings or conclusions are rendered and final. This action is based upon your voluntary request dated May 3, 1988 attached herein. You will remain on approved leave without pay commencing at 8:00 a.m., Wednesday, May 11, 1988 for (12) twelve calendar months or until a finding or conclusion has been rendered and becomes final by the EEOC in both of the above EEOC investigations. If a finding is not so rendered in both investigations within (12) calendar months, and if you make a timely request to this office the Department agrees to request an extension from the Department of Administration of your leave of absence without pay under Rule 22A- 8.016(2), F.A.C. Such extension is to last until such time as an investigative finding or conclusion is rendered and becomes final in both investigations. On May 10, 1988, the same day he signed the foregoing memorandum of understanding and agreement, Petitioner advised his supervisor in writing that the following were "two addresses where mail will reach me:" P.O. Box 22-2825, Hollywood, Florida 33022 and 8311 Dundee Terrace, Miami Lakes, Florida 33016. Petitioner did not indicate any other manner in which he could be contacted. By letter dated August 31, 1988, Petitioner and Respondent were informed that the EEOC's Miami District Director had determined, with respect to Charge No. 150871115, that the evidence obtained during the investigation [did] not establish a violation of the statute." The letter also contained the following advisement: This determination does not conclude the processing of this charge. If the charging Party wishes to have this determination reviewed, he must submit a signed letter to the Determination Review Program which clearly sets forth the reasons for requesting the review and which lists the Charge Number and Respondent's name. Charging Party must also attach a copy of this Determination to his letter. These documents must be personally delivered or mailed (postmarked) on or before 09-14-88 to the Determinations Review Program, Office of Program Operations, EEOC, 2401 E. Street, N.W., Washington, D.C. 20507. It is recommended that some proof of mailing, such as certified mail receipt, be secured. If the Charging Party submits a request by the date shown above, the Commission will review the determination. Upon completion of the review, the Charging Party and Respondent will be issued a final determination which will contain the results of the review and what further action, if any, the Commission may take. The final determination will also give notice, as appropriate, of the Charging Party's right to sue. Petitioner requested review of the Miami District Director's determination in Case No. 150871115. By letter dated April 28, 1989, Petitioner and Respondent were notified of the results of that review. The body of the letter read as follows: The Commission has reviewed the investigation of this charge of employment discrimination and all supplemental information furnished. Based upon this review, we agree with the determination issued by our field office and hereby issue a final determination that the evidence obtained during the investigation does not establish a violation of the statute. Therefore, the Commission dismisses and terminates its administrative processing of this charge. As the charge alleged a Title VII violation, this is notice that if the Charging Party wishes to pursue this matter further, (s)he may do so by filing a private action in Federal District Court against the Respondent(s) named above within 90 days of receipt of this Determination. IF CHARGING PARTY DECIDES TO SUE, CHARGING PARTY MUST DO SO WITHIN 90 DAYS FROM THE RECEIPT OF THIS DETERMINATION; OTHERWISE THE RIGHT TO SUE IS LOST. By letter dated March 8, 1989, Petitioner and Respondent were informed that the EEOC's Miami District Director had determined, with respect to Charge No, 150881243, that the "evidence obtained during the investigation [did) not establish a violation of the statute," The letter further advised: If the Charging Party does not request a review of this determination by March 22, 1989 this determination will become final the following day, the processing of this charge will be complete, and the charge will be dismissed. (This letter will be the only letter of dismissal and the only notice of the Charging Party's right to sue sent by the Commission.) FOLLOWING DISMISSAL, THE CHARGING PARTY MAY ONLY PURSUE THIS MATTER FURTHER BY FILING SUIT AGAINST RESPONDENT(S) NAMED IN THE CHARGE IN FEDERAL DISTRICT COURT WITHIN 90 DAYS OF THE EFFECTIVE DATE OF THE DISMISSAL. Therefore, in the event a request for review is not made, if a suit is not filed by June 21, 1989 the Charging Party's right to sue will be lost. Petitioner did not request review of the District Director's determination in Case No. 150881243. Therefore, this determination became final on March 23, 1989. On May 5, 1989, Respondent's Personnel Officer, William P. Fritchman, sent Petitioner a letter by certified mail, return receipt requested, directing Petitioner to report to work immediately. The letter was mailed to P.O. Box 22- 2825, Hollywood, Florida 33022. The body of the letter provided as follows: This letter is to notify you that your tax auditor II position in Fort Lauderdale, Florida is ready for you to return to work. Your return to work will be effective immediately upon your receipt of this letter. The Department of Revenue agreed to your request for a leave of absence without pay for 12 months or until EEOC in Miami had concluded its investigation of your EEOC charges, numbers 150-88-1234 [sic] and 150-87-1115. As you know, EEOC has now concluded its investigations and issued its findings in both cases. The Department considers the reason for granting the leave of absence to be expired. Please contact Mr. Bill Hammock, Chief of Audit Activity or Mr. Howard Maxwell, Field Audit Supervisor, immediately upon receipt of this letter concerning your intentions regarding your actual reporting to work in Fort Lauderdale. Their phone number is (904) 488-0310. Your immediate supervisor will be Ms. Mary Jane Myscich. Please report to her concerning any necessary details surrounding your reporting to work. If you do not contact either of the above individuals as instructed in this letter within three workdays from the date you receive this letter, the Department will consider that you have been on unauthorized leave without pay for that three workday period. Such unauthorized leave will be considered to be abandonment of position and a resignation from the Department of Revenue as outlined under Rules 22A- 7.010(2) and 22A-8.002(5). Please contact me at (904) 488-2635 if you have any questions concerning this matter. Efforts to deliver the letter to Petitioner were unsuccessful. It therefore was subsequently returned to Fritchman as "unclaimed." By letter dated May 7, 1989, but not mailed until May 10, 1989, Petitioner requested "an extension of leave without pay status for six additional months."/1 In support of his request, Petitioner erroneously stated the following in the letter: Findings and conclusions of both EEOC Charge Nos.:150871115 dated 5/13/87 and 150881243 are as EEOC has informed you are rendered but not final. The former charge is still under appeal. Petitioner's May 7, 1989, letter, as well as the envelope in which it had been sent, reflected that Petitioner's current mailing address was 8311 Dundee Terrace, Miami Lakes, Florida 33316. Accordingly, on May 12, 1989, utilizing a next- day delivery service, Fritchman sent to that address the following letter informing Petitioner of the denial of his leave request: I am in receipt of your letter sent May 10, 1989 to Mr. Bedonie. In your letter you request the Department to seek an extension of your leave without pay for an additional six months. For the reasons expressed in my letter to you dated May 5, 1989, copy attached, your approved leave of absence is concluded. Under the written agreement between you and the Department the two EEOC investigations have concluded; therefore the reason for your leave no longer exists. A copy of my letter to you dated May 5, 1989 is attached to this letter and incorporated by reference as if fully set forth. If you have already received a copy of that letter, then your return to work is effective on that date of your receipt. You are expected to resume your duties as a Tax Auditor II. Please contact me at (904) 488-2635 if you have any questions concerning this matter. The next-day delivery service unsuccessfully sought to deliver this letter and attachment to Petitioner at 8311 Dundee Terrace, Miami Lakes, Florida 33316. On May 18, 1989, the letter and attachment were returned to Fritchman. Later that same day, Fritchman attempted to contact Petitioner by telephone, but was unable to reach him. As of May 18, 1989, Petitioner had not yet returned to work, notwithstanding that he had not received authorization to be absent at any time subsequent to the expiration of the leave he had been granted pursuant to the May, 1988, memorandum of understanding and agreement. In view of Petitioner's failure to report to work, Fritchman sent to Petitioner's Hollywood post office box a letter dated May 19, 1989, informing Petitioner that, because he had been absent without authorized leave for three consecutive workdays, he was deemed to have abandoned his Tax Auditor II position with Respondent and resigned from the Career Service. Fritchman further explained in the letter as follows: You did not report to work on May 11, 1989 under the terms of your agreement with the Department. You were therefore on unauthorized leave without pay effective May 11, 1989 or on receipt of the May 5, 1989 letter, whichever occurred first. You have not reported to work as agreed in the May 11, 1988 agreement. You are not entitled to rely on a unilateral request for an extension of leave without reporting to work. Rule 22A-8.002(5)(b), F.A.C. states: "If an employee's request for leave is disapproved and the employee takes unauthorized leave, the agency head shall place the employee on leave without pay and after an unauthorized leave of absence for 3 consecutive workdays shall consider the employee to have abandoned the position and resigned from the Career Service." You did not report to work on May 11, 1989 nor any day after that. The Department considers you have been on unauthorized leave of absence for three consecutive workdays. The Department considers that effective certainly no later than 5:00 p.m., Thursday, May 18, 1989 you have abandoned your position and resigned from the Career Service. The Department's records will indicate that this is a voluntary resignation from employment with the Department. It is this determination that Petitioner abandoned his position and resigned from the Career Service which is the subject of the instant controversy.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department of Administration enter a final order sustaining Respondent's determination that Petitioner abandoned his Tax Auditor II position with Respondent and resigned from the Career Service. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 12th day of October, 1989. STUART M. LERNER 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 October, 1989.
Findings Of Fact The Hearing Officer officially recognized the following facts: the existence of section 381.494(5), Fla. Stat. (1986) and rule 10-5.08(1), as amended September 6 1984, and that September 12, 1986, was a Friday, September 15, 1986, was a Monday, January 2, 1987, was a Friday, and January 5, 1987, was a Monday. Mease Ex. 6 is the letter of intent in question. By this letter, the Petitioner, Mease Health Care, seeks to provide notice of an intent to apply for a certificate of need for a cardiac catheterization laboratory for review in the October, 1986, batching cycle. The envelope containing the letter of intent was properly addressed. Mease Ex. 7; T. 18. The envelope contains the metered postage date of September 12, 1986, and is marked pre-sort first class. Id. The Postal Service checks mail of this type to be sure the metered date is correct. T. 28. All evidence in the record compels the conclusion that the letter of intent was properly placed in the United States Postal Service system on or before 4:30 P.M. on September 12, 1986, in Dunedin, Florida. Mease Ex. 2, pp. 5-8; Mease Ex. 4, pp. 4-6, 9; Mease Ex. 7. The letter of intent was not sent as a certified letter. T. 36. To have been timely received by HRS, the letter of intent needed to have been delivered to HRS by no later than September 15, 1986. T. 19. Receipt in the HRS mail room would have satisfied the timeliness requirement. T. 18-19. The letter of intent was date stamped as having been received by the HRS Office of Community Medical Facilities on September 16, 1986. This date stamp is the only record at HRS of the date of receipt. None of HRS's employees can specifically remember the date of receipt of this particular letter. T. 21- 22, 18. By a letter dated September 29, 1986, HRS notified the Petitioner that its letter of intent had not been timely filed with HRS and that therefore its certificate of need application would not be accepted by HRS. Mease Ex. 8. On October 15, 1986, the Petitioner filed its application for certificate of need. Mease Ex. 9. By letter dated October 23, 1986, HRS rejected the application solely because of the timeliness of the filing of the letter of intent. Mease Ex. 9 and 1, p. 8. If the letter of intent in fact was timely received by HRS, HRS would accept the application of the Petitioner for the October, 1986, batching cycle. T. 19-20. The United States Postal Service has a standard of two days for delivery for a letter such as Mease Ex. 7. T. 27. To comply with this standard, the letter of intent would have been delivered Sunday, September 14, 1986. Since no mail of this type is delivered on Sundays, the standard would have been met by delivery on Monday, September 15, 1986. T. 27-28; Mease Ex. 5, pp. 6-8. Mail that must be delivered on Mondays to meet United States Postal Service standards like the one above is color coded blue. T. 35. By Postal standards, all blue coded mail then in the possession of the Tallahassee facility must be delivered on Monday, even if the carrier must stay out on the route beyond a normal work period. Id.; 38. If the Postal Service fails to deliver any such letter on Monday, that fact must be shown on the daily Tour Condition Report, Mease Ex. 13. T. 35. Thus, if the letter of intent had in fact been received by the Postal Service in time to be accounted for in the Tour Condition Report on September 15, 1986, the fact of failure to deliver until Tuesday, September 16, 1986, would have been evidenced by the Report. T. 29-30. The Tour Condition Report for September 15, 1986, as well as the preceding two days, shows that no first class mail was delayed and not delivered according to Postal Service standards. Mease Ex. 13; T. 36, 29-30. The expert witness from the Postal Service who testified for the Petitioner could not be 100 percent sure that the letter of intent actually was delivered to HRS on September 15, 1986. T. 34. The letter of intent might have been delayed in the mails and not received by the Tallahassee Postal facility until September 16, 1986, in which case the fact that it was delayed would not have been noted on the Tour Condition Report of September 15, 1986. However, this is highly improbable. First, there is no evidence in this record from which such a conclusion could be drawn. All of the evidence in the record is to the contrary. Ordinarily, a letter from Dunedin, Florida, with a two day standard, would have been received by the Tallahassee, Florida, facility by Sunday, September 14, 1986, if mailed the preceding Friday. Thus, the letter of intent could have been received either as normal, on Sunday, or on Monday, and still must have been delivered on Monday, September 15, 1986, since the failure of delivery is not noted on the September 15, 1986, Tour Condition Report. T. 37. The improbability of a delay until September 16, 1986, is further underscored by the fact that on Friday, January 2, 1987, a certified letter was sent by Mease from Dunedin which was received by HRS in its main mail room on the following Monday, January 5, 1987. Mease Ex. 10; T. 31-33, 46. This certified letter, mailed on a Friday like the letter of intent, would have been held to the same two day delivery service standard as the letter of intent. T. Moreover, the certified letter would have tended to travel slower than ordinary first class mail (the letter of intent) since the Postal Service keeps a written record of signatures of receipt every time such a letter changes custody within the Postal System. T. 31-32. The main HRS mail room is the only HRS mail room in the Winewood complex at Tallahassee receiving mail delivered by the United States Postal Service. T. 41. The mail room receives and delivers mail for about 50 offices in eight buildings at the Winewood office complex. Id. The mail room receives regular mail twice a day from the United States Postal Services. Monday is the heaviest day of receipt of mail for HRS, and on Mondays the mail room receives three to four thousand separate pieces of mail. T. 42. Although the supervisor of the mail room asserted that he and his staff are able to deliver all of the mail received on a given day in 99 percent of the cases, T. 48, this expectation does not apply to Mondays when he does not have all of his staff available for delivery. As recently as the Friday before the hearing, the mail room was not able to deliver all mail received that day. T. 44. It thus may be inferred that not all mail received by HRS on Mondays is likely to be delivered to HRS offices on Monday since this is the heaviest day. Shortage of staff on a particular day in the mail room is a prime cause of an inability to deliver all mail on the same day of receipt. On Monday, September 15, 1986, one employee in the HRS mail room who was needed to help with the mail was on leave after 11:00 A.M. for the rest of the day. T. The supervisor of the HRS mail room testified that he in fact did not deliver all of his mail on Monday, September 15, 1986. T. 52. The HRS mail room does not date stamp all mail received, but only certified mail. T. 49,-0 45. Petitioner's letter of intent, Mease Ex. 6 and 7, was received by HRS in its main mail room on Monday, September 15, 1986.
Recommendation It is therefore recommended that the Department of Health and Rehabilitative Services enter its final order that Mease Health Care timely filed a letter of intent to file an application for a cardiac catheterization laboratory at its existing facility in Pinellas County, Florida, and that the application of Mease Health Care for a certificate of need for such a facility be considered by the Department in the October, 1986, batching cycle. DONE and ORDERED this 20th day of February, 1987, in Tallahassee, Florida. WILLIAM C. SHERRILL 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 20th day of February, 1987. APPENDIX The following are rulings upon proposed findings of fact which have been rejected. Numbers correspond to the numbers used by the parties. A ruling in this case that a finding of fact is subordinate is not a ruling that the proposed fact is not true. Facts proposed by the Petitioner which were subordinate were also true. Findings of fact proposed by the Petitioner 1. The last sentence is subordinate to finding of fact 3. 3. The mailing time to the local health council is not relevant absent evidence in the record to show that the mailing standard and distance is the same or substantially similar. 5. The first paragraph is not relevant. The Petitioner has a substantial interest to have its application considered. The results that may flow from not having the application considered are speculative. 6-12. These findings of fact are subordinate to findings of fact 3 and 12. 13-15. This finding of fact is subordinate to finding of fact 8. This finding of fact is subordinate to finding of fact 12. This finding of fact is subordinate to findings of fact 8-12. This finding of fact is summarized in findings of fact 8-12. The first sentence is subordinate to finding of fact 5. This finding of fact is subordinate to findings of fact 13-15. 32. This finding of fact is subordinate to findings of fact 13 and 14. Findings of fact proposed by the Respondent 7. It is true that the witnesses were not "sure that the letter was delivered. None of the witnesses were "sure" in that sense. See e.g. the HRS witnesses who could not specifically remember the date of receipt of the letter. Finding of fact 5, supra. However, the evidence of record supports the conclusion that it is very probable that the letter arrived on September 15, 1986. The standard of proof is not that witnesses be sure, but that the facts asserted by one side or another be supported by a preponderance of the evidence. Thus, in context, the proposed finding is not relevant, although the finding was in substance adopted. COPIES FURNISHED: W. DAVID WATKINS, ESQUIRE Oertel & Hoffman, P.A. Post Office Box 6507 Tallahassee, Florida 32314-6507 ROBERT L. POWELL, SR., ESQUIRE Assistant General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 GREGORY L. COLER, SECRETARY Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
Findings Of Fact In Exhibit 3 Petitioner disputed the overpayment of sales tax, penalties and interest in the amount of $62,035.63. At the hearing it was stipulated that the disputed sum is $62,000.00. Petitioner is owner and publisher of a weekly paper, The Tampa/Metro Neighbor (Neighbor), published in Tampa and distributed in the Tampa metropolitan area of Hillsborough County. The Neighbor is distributed to readers free of charge. Petitioner started rack sales September 27, 1980, and has sold approximately 125 per week since that time. Its total circulation is approximately 164,009. The Neighbor has not been entered or qualified to be admitted and entered as second class mail matter at a post office in the county where it is published. The Neighbor is delivered by approximately one thousand carriers to residences and apartments in Hillsborough County each Thursday. The papers are placed in plastic bags to protect them from the weather. Petitioner claims sales tax exemption for the purchase of newsprint, ink, and plastic bags used to print and distribute the Neighbor. Newspapers such as The Tampa Tribune are exempt from sales tax on these items. Only newspapers and other periodical publications are eligible for mailing at second class rates of postage. Publications primarily designed for free circulation and/or circulation at nominal rates may not qualify for the general publications category (Exhibit 24). General publications primarily designed for advertising purposes may not qualify for second class privileges. Those not qualifying include those publications which contain more than 75 Percent advertising in more than half of the issues published during any 12- month period (Exhibit 24). Second class mail privilege is a very valuable asset for newspapers and other qualifying publications. The editorial content of the Neighbor, which they define as everything except advertisement, is comprised of local news, sporting news, local investigative reporting, an opinion section, and an entertainment section. The advertising is split into classified ads and other. The Neighbor contains no national or international news, no wire service reports, no comics, no stock market reports, no sports statistics, no weather reports, no national syndicated columnists, no state capital news, no obituaries, no book review section, and no special section such as home design, gardening, etc. Neighbor considers its primary competitor to be The Tampa Tribune. However, this competition is limited to advertising as the Neighbor has none of the traditional newspaper features above noted which are normally carried in daily newspapers. Petitioner presented two expert witnesses who opined that the Neighbor met the requirements to be classified as a newspaper because it was published in newspaper format; that it had an editorial section which provided some news as contrasted to that provided in a shopping guide; that the 75 percent - 25 percent advertising-editorial content did not make the Neighbor primarily an advertising paper; that the requirements of the U.S. Post Office for a periodical to obtain second class mail privileges is not relevant to a determination that the Neighbor is not newspaper; that the requirements of the Department of Revenue Rules 12A-1.08(3)(d) and 12A-1.08(4) Florida Administrative Code, are not relevant in determining whether the Neighbor is a newspaper; and that in a journalistic concept the Neighbor is a newspaper. The Neighbor was purchased in 1979 by North American Publications, Inc., a wholly owned subsidiary of Morris Communications Corporation. Morris Communications Corporation owns several newspapers scattered from Florida to Alaska, both daily and weekly publications. Most of these publications are sold to paid subscribers. Petitioner's testimony that sales tax was not collected from Petitioner's predecessor owners was flatly contradicted by the testimony of Respondent's witness. Since the latter witness is in a much better position to know the facts respecting sales taxes levied on the former owner of the Neighbor, this testimony is the more credible. In any event, Petitioner did not claim estoppel.
The Issue Whether Petitioner is entitled to a consumer's certificate of exemption from sales tax as a "charitable institution" as that term is defined by Section 212.08(7)(o)2b., Florida Statutes.
Findings Of Fact Petitioner is a nonprofit organization incorporated under the laws of the State of Florida as a corporation. Petitioner has applied to Respondent for a certificate of exemption from sales and use tax based on its claim that it is a "charitable institution" within the meaning of, and pursuant to the provisions of, Section 212.08(7)(o)2.b., Florida Statutes. 2/ The Internal Revenue Service has determined that Petitioner is exempt from federal income tax under Section 501(a) of the Internal Revenue Code as an organization described in Section 501(c)(3). Edy Sanon, Petitioner's executive director, testified in general terms as to the services performed by Petitioner to persons of Haitian descent. Based on that general testimony, it cannot be determined with any degree of certainty the precise services performed by Petitioner. Mr. Sanon testified that his organization provides translation services and referral services that assist Haitian immigrants in adjusting to life in the United States, becoming employable, and obtaining services from various government agencies. Petitioner engages in fund raising and searches for governmental grants for a center where people can come for help. The extent of its resources expended on fund raising was not established. Mr. Sanon testified that Petitioner provides its services free of charge and that it served approximately 800 clients last year. Chapter 212, Florida Statutes, imposes a tax on sales, use and other transactions. Respondent is the agency of the State of Florida charged with administering Chapter 212, Florida Statutes, and its duties include the issuance of certificates of exemption from tax pursuant to Section 212.08(7)(o), Florida Statutes. Pursuant to its rule-making authority, Respondent has adopted Rule 12A-1.001, Florida Administrative Code, to implement the provisions of Section 212.08(7)(o), Florida Statutes. Although Petitioner has been recognized as a nonprofit organization by the Internal Revenue Service, Petitioner must receive a certificate of exemption from Respondent to be exempt from Florida's tax on sales, use, and other transactions imposed by Chapter 212, Florida Statutes. The provisions of Section 212.08(7)(o), Florida Statutes, and Rule 12A-1.001, Florida Administrative Code, provide the criteria for the exemption sought by Petitioner. Section 212.08(7)(o), Florida Statutes, provides, in pertinent part, an exemption from sales tax as follows: (o) Religious, charitable, scientific, educational, and veterans' institutions and organizations. There are exempt from the tax imposed by this chapter transactions involving: * * * b. Sales or leases to nonprofit religious, nonprofit charitable, nonprofit scientific, or nonprofit educational institutions when used in carrying on their customary nonprofit religious, nonprofit charitable, nonprofit scientific, or nonprofit educational activities . . . * * * The provisions of this section authorizing exemptions from tax shall be strictly defined, limited, and applied in each category as follows: * * * b. "Charitable institutions" means only nonprofit corporations qualified as nonprofit pursuant to s. 501(c)(3), Internal Revenue Code of 1954, as amended, and other nonprofit entities, the sole or primary function of which is to provide, or to raise funds for organizations which provide, one or more of the following services if a reasonable percentage of such service is provided free of charge, or at a substantially reduced cost, to persons, animals, or organizations that are unable to pay for such service: * * * (IV) Social welfare services including adoption placement, child care, community care for the elderly, and other social welfare services which clearly and substantially benefit a client population which is disadvantaged or suffers a hardship . . . 3/ Rule 12A-1.001(3)(g), Florida Administrative Code, implements the provisions of Section 212.08(7)(o), Florida Statutes, and provides, in pertinent part, as follows: (g)1. "Charitable institutions" means only nonprofit corporations qualified as nonprofit pursuant to s. 501(c)(3), United States Internal Revenue Code, 1954, as amended, and other nonprofit entities that meet the following requirements: the sole or primary function is providing a "qualified charitable service" as defined in this subsection; and a reasonable percentage of such service is provided free of charge, or at a substantially reduced cost, to persons, animals, or organizations that are unable to pay for such service. * * * 3.a. For the purpose of this subsection the following terms and phrases shall have the meaning ascribed to them except when the context clearly indicates a different meaning: I. "Persons unable to pay" means persons whose annual income is 150 percent or less of the current Federal Poverty Guidelines . . . * * * "Substantially reduced cost" means the normal charge, market price, or fair market value to a purchaser or recipient, diminished in an amount of considerable quantity. "Sole or primary function" means that a charitable institution, excluding hospitals, must establish and support its function as providing or raising funds for services as outlined in subparagraphs 1. and 2. above, by expending in excess of 50.0 percent of the charitable institution's operational expenditures towards "qualified charitable services", as defined in subparagraph 2.a. - g. within the charitable institution's most recent fiscal year. Petitioner established that it is a nonprofit organization. Petitioner did not present any financial data at the formal hearing. In the absence of that financial information, it cannot be found that Petitioner disburses more than fifty percent of its expenditures to provide or raise funds for a provider of a statutorily listed service. The absence of that information is fatal to Petitioner's application. 4/ The unchallenged testimony of Mr. Sanon was sufficient to establish for the purposes of this proceeding that Petitioner does not charge for its services. Petitioner did not establish at the formal hearing the ability of any of its client to pay a reasonable fee for the services provided by Petitioner. The general testimony of Mr. Sanon failed to establish that the translation, referral, and other services provided by Petitioner are "social welfare services" within the meaning of Section 212.08(7)(o)2.b., Florida Statutes. 5/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order that denies Petitioner's application for a certificate of exemption. DONE AND ENTERED this 1st day of December, 1998, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 1st day of December, 1998.
Findings Of Fact Petitioner, a black (Afro-American) female, was employed from July 1987 to January 1993 as a clerk-typist in the Economic Services Division of the Department of Health and Rehabilitative Services (HRS) District II, located in Tallahassee, Florida. In that position, she performed primarily clerical tasks, including typing for seven persons and answering phones. HRS' District II headquarters for Economic Services oversees the operation of HRS field offices providing benefits for state and federal entitlement programs over a fourteen county area. Economic Services Program Administrator Donna McKenzie is in charge of HRS' District II Economic Services office. During 1992, the staff in the District Economic Services office under Ms. McKenzie's supervision consisted of twenty workers, some of whom were clerical staff. Emma Harrell, Ms. McKenzie's personal secretary was classified as a Secretary Specialist, also considered clerical staff. Four other female clerical staff, designated Clerk-Typists, were Betty Simmons, Sheila Bethea, Petitioner, and Janna Lewis-Harrell. Of these five, only Ms. Harrell is white (Caucasian). The other clerical staff are black (Afro-American). At all times material, Janna Lewis-Harrell was physically located in the Economic Services Division but was technically a part-time employee of another division. At all times material, Emma L. Harrell was the only clerical person responsible primarily to just one supervisor, Ms. McKenzie. Except for Emma Harrell, all the clericals were responsible to numerous "professionals" in the HRS chain of command. Emma Harrell was employed at a higher grade than all the other "clericals" except Betty Simmons, who was employed at a grade higher than Ms. Harrell. Sheila Bethea and Petitioner were employed at grades lower than Ms. Simmons. Normal working hours in the HRS Economic Services office were from 8:00 a.m. to 5:00 p.m., with a one hour lunch break, Monday through Friday. However, at least two HRS employees, one black clerical and one white clerical, were approved to work flex-time. In both situations, their flex-time requests were required to be in writing and were approved not by Ms. McKenzie, but by Ms. McKenzie's supervisors. From October 1991 through June 1992, Emma Harrell (a white clerical) was authorized to work on Mondays, Wednesdays and Fridays from 7:30 a.m. to 4:30 p.m. with a one hour lunch, and on Tuesdays and Thursdays from 7:30 a.m. to 4:00 p.m. with a half hour lunch. Ms. Harrell had applied for this as an open-ended arrangement on October 21, 1991, because it was the only way to adequately coordinate parental supervision with the activities of her then fifteen year old son. Apparently, Ms. Harrell minimally abused this first flex-time authorization, because she testified that at all times, she was the only person who had a set one hour lunch period from 12:00 noon to 1:00 p.m. Subsequently, when Ms. Harrell's son's circumstances changed, she applied June 5, 1992 for another change of schedule. On June 9, 1992, Ms. Harrell was authorized to work every day from 7:30 a.m. to 4:30 p.m. with a one hour lunch break. Ms. Harrell worked this schedule partly to accommodate Ms. McKenzie, who worked 7:30 a.m. to 4:30 p.m. On June 26, 1990, Betty Simmons (a black clerical) had applied retroactively for a differential schedule limited to the period of June 25 - August 31, 1990. This also was to accommodate child care considerations. The last paragraph of her request read, "If you see that this time change is for the betterment of the agency, I would like for my hours to remain the same after this period." On July 3, 1990, Donna McKenzie's supervisors approved Betty Simmons' request upon the following terms, "begin the workday at 8:00 a.m., observe a 30 minute lunch period and complete the workday at 4:30 p.m. This approval will be for June 25 through August 31, 1990, only." The approval either overlooked or denied Ms. Simmons' request to leave the change in place indefinitely. Janna Lewis-Harrell's (a black clerical's) work schedule was also adjusted at her request by her supervisors. Responsibility for answering the phone fell on the five clericals, including part-time worker Janna Lewis-Harrell. Under the monthly phone duty schedules, each clerical staff member was assigned primary duty to answer the phone one day a week, and was assigned backup duty another day of the week. Usually, a person's "primary" day immediately followed her "back up" day on the planned schedule. Staff with primary duty would be responsible for answering the phones on their designated day, while the back up staff would answer the phones when the primary staff member was unavailable for reasons including, but not limited to, chores such as photocopying, which took them away from their respective desks. This setup gave the impression that some people would have two busy phone days in a row, depending on respective work loads and the number of phone calls that came in on any given day. Office policy dictated that the phones be answered between 7:30 a.m. and 5:00 p.m. Although the prescribed schedule was posted weekly and in advance, the schedule was aspirational, not mandatory. Clericals were free to trade primary and backup duty days with another clerical without their supervisors' permission, and they did so on a frequent basis. The expectation was that each clerical requesting such a trade off would make up the time traded to her during the month by working the time-slot traded to her by the clerical who had covered for her. The need for phone coverage from 7:30 a.m. to 8:00 a.m. was not instrumental in either of Ms. Harrell's adjustments of hours. However, both by aspiration and in practice, Ms. Harrell usually answered the phones between 7:30 a.m. and 8:00 a.m., every day Monday through Friday. On the days Ms. Harrell was authorized to leave at 4:30 p.m., her backup was routinely required to handle the phones until 5:00 p.m. That meant that routinely Emma Harrell's backup, which backup rotated among the other four clericals, was required to answer phones for an extra hour or half hour at the end of Emma Harrell's primary days and no clerical staff member except Emma Harrell had to answer phones before 8:00 a.m. any day. Since the other clericals did not arrive until 8:00 a.m., they saw only that Emma Harrell left early, requiring them to provide her backup. They did not understand or believe that she was also arriving at work early. Sometimes, Mr. Jimmy J. Cozart and others also answered phones before 8:00 a.m. (See FOF 25). Mr. Cozart was an intermediate "professional" and a mid-level supervisor between clericals Petitioner, Sheila Bethea, Betty Simmons, and Division Administrator Donna McKenzie. By all accounts of all witnesses (white, black, professional, or clerical) the aspirational phone rotation system never functioned ideally. It was an ongoing source of disgruntlement to everyone in the office, but it was most especially vexing to the five clericals responsible for answering the phones. There was constant chatter and commentary by the clericals concerning the failure of certain people, most notably Emma Harrell, to cover the phone on their primary or backup days because they were away from their desks on other employment related tasks. Ms. Harrell's insistence on taking lunch at a set time and her abuse of taking one hour instead of thirty minutes Tuesdays and Thursdays from October 1991 to June 1992 probably aggravated matters (See FOF 8). In the months immediately prior to August 1992, some clerical staff, most notably Petitioner, complained orally to Mr. Cozart and to Ms. McKenzie that it was unfair for Ms. Harrell to leave early, requiring one of the other four clericals to answer the telephone from 4:30 p.m. to 5:00 p.m. and that Ms. Harrell was "not pulling her fair share." No one specifically complained to Mr. Cozart or Ms. McKenzie that on certain weeks Ms. Harrell had no phone duty, that Ms. Harrell disregarded or refused to answer phones on days when she had primary coverage, that Ms. Harrell refused to honor her promises to take another's phone duty when she and a coworker had traded phone coverage days, or that she was regularly abusing her lunch hour privileges. Oddly enough, events seem to have reached a fever pitch after Ms. Harrell reverted on June 9, 1992 to a uniform 4:30 p.m. departure time with a one hour lunch period. In July 1992, the black clericals, that is, all the clericals except Emma Harrell, requested a meeting to resolve phone coverage issues. Donna McKenzie met with each of the five clericals individually instead of in a group because, as Ms. McKenzie testified at formal hearing, "It seemed like they were all ganging up on Emma." Petitioner construed Ms. McKenzie's refusal to hold a group meeting of the clericals as racially based and racially biased. She sent Ms. McKenzie a July 28, 1992 letter expressing dismay that the black clericals' request for a group meeting had not been granted, in her opinion, in order to protect the white employee from meeting with black clericals in a group to discuss the phone coverage. On August 12, 1992, Ms. McKenzie did hold a group meeting of the entire office staff, white and black, clerical and professional, to go over the phone situation. Although Ms. Harrell was not singled out in a negative manner, the need for everyone to work as a team was stressed in a positive manner and a written memorandum of detailed phone duties was circulated to all personnel. During the meeting, Mr. Cozart made a comment to Petitioner when she tried to ask a question. Petitioner testified that she took Mr. Cozart's remark to be derogatory of herself personally, because it was not directed at Ms. Simmons (black) or Ms. Harrell (white), who also had asked questions. Petitioner was not satisfied with the interracial group meeting. She prepared a letter dated August 12, 1992. That letter, which is long and disjointed in its approach, stressed that everyone, including Emma Harrell, should leave at the same time, preferably 5:00 p.m., or that everyone should rotate the privilege of leaving early. The letter also peripherally alluded to Ms. Harrell's temper and bad attitude and asserted that the office was run on coloring. Petitioner clearly stated that until that situation was corrected, Petitioner refused to cover the phone for the white clerical, Emma Harrell. Although Petitioner, Ms. Simmons, and Ms. Bethea testified that the phone rotation system was racially biased and that their superiors "letting [Ms. Harrell] get away" with abuses of the rotation schedule was racially motivated, their testimony was not persuasive. Ms. McKenzie tried to respect Ms. Harrell's phone schedule, but sometimes chores had to be done away from Ms. Harrell's desk. The office diagram in evidence does not show that any of the three black clericals who testified had a desk situated so that she could tell at all times when Ms. Harrell was legitimately away from her desk and phone on necessary work-related chores. The unrefuted evidence showed that Ms. Harrell's phone abuses, if any, never increased anyone's hours of work; that no one ever worked more than forty hours a week; and that no one ever had to work later than her normal quitting time as a result of Ms. Harrell's alleged abuses. Petitioner apparently decided that Ms. Harrell was not answering telephones before 8:00 a.m. because a few times she called in between 7:30 and 8:00 a.m. and other people answered the phone. The credible evidence of Ms. Harrell, Ms. McKenzie, and Mr. Cozart is that anyone who was present before 8:00 a.m. answered the phones on a first come/first served basis (See FOF 16). Petitioner also testified that when she complained to Ms. McKenzie about being Ms. Harrell's primary backup just before the Cozart incident, Ms. McKenzie agreed to accommodate her request for a change (TR 99), and when she complained about Ms. McKenzie not calling a biracial meeting, Ms. McKenzie did so. Ms. McKenzie just did not call the meeting to Petitioner's exact specifications. This is accounted for by managerial "style" rather than racial bias (See FOF 23). It is therefore found that the phone rotation as a racially discriminatory factor was perceptual, not factual. On Friday, August 14, 1992, Emma Harrell was "primary" on the printed phone schedule and scheduled to leave at 4:30 p.m., as usual. Janna Lewis- Harrell was her "backup." For reasons not fully disclosed in the record, Janna Lewis-Harrell (black) was not expected to "cover" for Emma Harrell (white) from 4:30 to 5:00 p.m. that day, and Emma Harrell's offer to stay to "help out" was rejected by Mr. Cozart. Under the circumstances, Mr. Cozart's duty was to find alternative phone coverage for the period between 4:30 and 5:00 p.m. He did not want to do it himself because he was suffering back pain and wished to go to a pre- scheduled chiropractic appointment. First, Mr. Cozart tried to persuade Ms. Simmons and Ms. Lewis-Harrell to cover the phone, but was informed that both were going home early that day. Around 3:50 p.m., Mr. Cozart went to Sheila Bethea's office, where he spoke with Ms. Bethea and Petitioner, requesting that one of them answer the phone after Emma Harrell went home at 4:30 p.m. Ms. Bethea refused Mr. Cozart's request outright. Petitioner also refused Mr. Cozart's request outright. Rather than simply ordering one of them to cover the phones since their work day did not officially end until 5:00 p.m. anyway, Mr. Cozart started to explain their job descriptions, then stopped and started to exit Ms. Bethea's office. What happened next was the subject of a great deal of testimony. After consideration of all the evidence, it is here found that Mr. Cozart believed Petitioner was impeding his access to the doorway, and he struck the back of Petitioner's shoulder at least three times with a shoving motion sufficient to cause a sound and a mild stinging sensation to Petitioner's back, repeatedly saying "Let's go. Let's go. Let's go!" In doing so, his only intent was to get Petitioner to precede him out of the office doorway and go back to her own work station or at least to get Petitioner out of his way so that he could go back to his own work. Petitioner was never bruised, abraded, or incapacitated in any way by Mr. Cozart's forceful touching. She did, however, utter an angry verbal retort. Mr. Cozart's unrefuted testimony that he never saw Petitioner's August 12, 1992 letter before this incident, and that he would never have asked Petitioner to stay until 5:00 p.m. to answer phones on August 14 if he had known Petitioner previously had written that she henceforth refused to cover for or backup Emma Harrell, is accepted as credible. Mr. Cozart's testimony that he was anxious to get out of Ms. Bethea's office because he thought the conversation with Petitioner was going to evolve into some religious discussion with Petitioner which he did not want also is accepted as credible. In further analysis of the evidence, it is also found that the forceful shoving by Mr. Cozart was not racially or gender motivated and was not intended as a battery to do physical harm to Petitioner. It was, however, of greater impact than Mr. Cozart intended it to be or thought it was at the time, and it constituted a totally unacceptable touching of a subordinate by a supervisor. In making the foregoing findings, the undersigned has carefully considered the testimony of all four witnesses who offered any direct evidence concerning the actual incident: Petitioner, Cozart, Bethea, and Simmons. The credibility or lack thereof of the witnesses' respective versions of the event has been weighed. Specifically, the candor and demeanor of each witness has been assessed and the consistencies and inconsistencies of Petitioner's and Cozart's testimony have been compared with the testimony of Sheila Bethea, the only other eye witness, and the testimony of Betty Simmons, who overheard part of the immediate verbal aftermath of the incident. Petitioner's minor son, who reportedly heard what Mr. Cozart said while touching Petitioner and Petitioner's oral retort, did not testify. Petitioner returned to her desk after the altercation with Mr. Cozart in Sheila Bethea's office and immediately typed up her impressions of what had occurred in Ms. Bethea's office. She did not hand this item, dated August 14, 1992, to Mr. Cozart. Instead, she gave him a multi-page document she had prepared the previous day, August 13, 1992. Petitioner's August 13, 1992 missive is disjointed and verbose. It is filled with vague accusations that Cozart, McKenzie and others have harassed Petitioner and with Biblical quotations and prophetic statements of judgment, retribution, and doom against those who have allegedly harassed Petitioner and against the children of the alleged harassers. Emma Harrell's name is mentioned, and the word "prejudice" appears several times in this item but one would be hard-pressed to figure out it was a complaint about a racist phone situation or about Emma Harrell, specifically. Although persons of Petitioner's unique religious bent might see her August 13, 1992 letter as proclaiming peace and joy, most readers would not reach that interpretation of its contents. Indeed, it would not be stretching a point to see the August 13, 1992 letter as a hostile and threatening letter. Petitioner's testimony characterized this letter as "letting [Mr. Cozart] know that what goes around comes around." Mr. Cozart skipped his chiropractic appointment and answered the office phones himself until 5:00 p.m. on August 14, 1992. Two calls came in. The incident between Mr. Cozart and Petitioner was made known to Ms. McKenzie upon her arrival at 7:30 a.m. on Monday, August 17, 1992. At 8:30 a.m., Mr. Cozart also phoned in and told Ms. McKenzie what had happened. Shortly thereafter, Ms. McKenzie heard that the police were coming to see Petitioner. Ms. McKenzie then called Petitioner to see if the police had arrived. Ms. McKenzie then spoke with the District II Personnel Office, which instructed her to speak with Petitioner. Ms. McKenzie approached Petitioner and asked what had occurred the previous Friday. Petitioner stated only that her civil rights had been violated, and refused to discuss the particulars of the incident. Ms. McKenzie backed off from further "pushing" Petitioner to answer her either at Petitioner's desk or to speak privately with her in Ms. McKenzie's office because of Ms. McKenzie's past experience with Petitioner that Petitioner became easily "upset" and "had a tendency to file grievances," and due to Petitioner's current attitude. Acting pursuant to further instructions from the Personnel Office, Ms. McKenzie interviewed Ms. Bethea and Mr. Cozart separately on August 18, 1992. Ms. McKenzie's supervisors then instructed her to get written statements from each participant. Accordingly, Ms. McKenzie instructed Mr. Cozart, Ms. Bethea, and Petitioner to explain in writing what had happened. Petitioner and Mr. Cozart complied immediately. Petitioner's written statement was the one she had typed on August 14, 1992, immediately after the Cozart incident (See FOF 31). It did not mention Ms. Simmons as a potential witness, but did show Petitioner's son had heard, but not seen, the incident. Ms. Bethea did not provide a written statement until urged to do so in late November 1992 (See FOF 43). Ms. McKenzie did not press Ms. Bethea for a statement because, upon consultation with HRS District Program Manager Ralph D. Harmsen, Ms. McKenzie was instructed that, since the police were investigating the incident, Ms. McKenzie was not to pursue the matter at least until after the police finished. Some of Mr. Harmsen's reasoning on this matter seems to have been that since he knew Petitioner had previously filed internal agency grievances against supervisors and had not done so in this instance, she had made some sort of election to only pursue a criminal action. Petitioner was interviewed by a female police officer in the HRS offices on August 17, 1992 and a written report was filed that day. Petitioner and Sheila Bethea gave sworn affidavits to the police on August 20, 1992. None of these items named Ms. Simmons as a potential witness. Petitioner's affidavit stated her son had heard it all but saw nothing. Mr. Harmsen's initial directive to Ms. McKenzie had been to interview and get written statements from all witnesses. Ms. McKenzie admittedly did not interview either Betty Simmons or Petitioner's minor son, each of whom overheard some of the altercation, but there is no evidence Ms. McKenzie understood that either Ms. Simmons or Petitioner's son had any useful evidence, and she at least orally suggested to a police investigator at some point that Petitioner's son might be a witness. In late August 1992, Hurricane Andrew swept through South Florida. Because of the crisis, HRS actively sought volunteers from HRS offices statewide to go to Miami and assist with the problems caused by the hurricane. Petitioner and Ms. Bethea volunteered and left for south Florida on September 2, 1992. Ms. Bethea returned in two or three weeks. Petitioner stayed in south Florida until early October 1992. Concerned about the time Petitioner was spending in south Florida, Ms. McKenzie telephoned in late September 1992 to ask when Petitioner would be returning. During this conversation, Ms. McKenzie suggested to Petitioner that everyone, including the police, were anxious to conclude the criminal matter. Petitioner told Ms. McKenzie that she planned to drop the charges against Mr. Cozart. When Ms. McKenzie inquired further, Petitioner stated "I wanted to teach Mr. Cozart a lesson." Petitioner phoned the police to drop the charges the same day. However, the police "investigation," as such, had actually concluded on September 8, 1992, after interviews with, and/or statements from, Petitioner, Ms. Bethea, and Mr. Cozart. The police report stated that Donna McKenzie had stated that no other witness had seen the incident, as was, in fact, true. Petitioner's son and Ms. Simmons were not interviewed by the police. As of September 8, 1992, the authorities had concluded that criminal prosecution was not feasible since the case hinged on Mr. Cozart's intent and it was his word against Petitioner's. Petitioner returned to the HRS District II Office in early October 1992. She inquired repeatedly in the HRS Personnel Office concerning the status of HRS' investigation of the August 14, 1992 incident with Mr. Cozart. In response, HRS' Personnel Office instructed Ms. McKenzie to turn in all written witness statements. Since Ms. Bethea still had not provided her statement to HRS as instructed by Ms. McKenzie, Ms. McKenzie repeated her instruction to Ms. Bethea, who then turned in her written statement. Ms. McKenzie forwarded the three written statements of Petitioner, Cozart, and Bethea to the Personnel Office. Ms. McKenzie was informed that management would review the statements and make a decision. On December 10, 1992, Petitioner filed her original discrimination complaint with the Florida Human Relations Commission. Mr. Harmsen reviewed all the information he had, which included the three written eyewitness statements, none of which mentioned a racial issue; the police report; and Petitioner's hostile August 13, 1992 letter (See, FOF 32). He did not have a copy of Petitioner's July 28 or August 12, 1992 letters which more clearly related the phone situation to race. He did have Petitioner's August 14, 1992 statement (See, FOF 31) which also does not allude to any racial problem about the phones. There had been no previous written allegations concerning discrimination from any other blacks, and historically, Petitioner generally perceived everything she considered negative in the office as related to racial discrimination. Accordingly, Mr. Harmsen did not believe Petitioner's charges to be credible or believe the cause of the phone coverage discontent had a racial component or that the August 14, 1992 incident had been racially motivated. Petitioner has charged that Donna McKenzie intentionally misled Mr. Harmsen when she failed to focus his attention on the black clericals' oral complaints and give him Petitioner's earlier letters charging that the phone rotation system was racially motivated. However, based upon what Ms. McKenzie knew of the phone situation (See FOF 19 and 25), the lack of clarity on this point in all three witnesses' incident statements, and Petitioner's initial lack of cooperation (See FOF 35), this accusation was unproven. Mr. Harmsen felt he could discern no real way to determine who was right or wrong, or even what happened with regard to the incident on August 14, 1992. Although he had Ms. Bethea's statement, from his point of view, the situation presented a "swearing contest" between Petitioner and Mr. Cozart, with Ms. Bethea's statement not clearly supporting either side. Even the Tallahassee Police Department, which was better equipped and trained to ferret out the truth, had not reached a conclusion as to what really happened sufficient to prosecute Mr. Cozart for battery upon Petitioner. Mr. Harmsen, like the police, concluded that there was no way to decide whether Petitioner or Mr. Cozart was right or wrong in their descriptions of the August 14, 1992 incident. Nonetheless, he decided that Mr. Cozart should be disciplined for the incident to prevent any future such incidents. He instructed Donna McKenzie to "counsel" with Mr. Cozart as a means of discipline and to record the counseling in Mr. Cozart's personnel file. This method of discipline is one of the prescribed methods of discipline under the State's personnel rules. On or about December 18, 1992 Ms. McKenzie counselled with Mr. Cozart and filed a memorandum in his personnel file that stated, During your many years with this agency, you have demonstrated an ability to approach staff on all levels in an appropriate manner. It is expected this ability to effectively relate will continue. Harmsen, McKenzie, and Cozart perceived the foregoing as a disciplinary action against Cozart, however mildly worded. Nevertheless, Mr. Harmsen perceived that it had become impossible for Petitioner, Cozart, and McKenzie to work together harmoniously. Mr. Harmsen was authorized to reassign employees within 50 miles of their current work site. In deciding who to reassign, Mr. Harmsen had to consider the following factors: The person reassigned should have the same degree of responsibility in his or her new position and cannot lose salary as a consequence of the reassignment. Management should try to find the best fit between knowledge, skills and abilities of the person reassigned in his or hew new position. Management must avoid if possible the loss of valuable experience as a result of the reassignment. Management must consider the likelihood of finding a replacement of comparable experience, knowledge, skills and abilities of the person reassigned. In the instant situation, Mr. Cozart had thirty-three years experience and Ms. McKenzie twenty-seven years experience as professionals in the economic services area. No available position existed to which they could be reassigned without placing them in a position in which they would be grossly over qualified. Moreover, the likelihood of finding a suitable replacement for Mr. Cozart and/or Ms. McKenzie was slim, and failure to do so would seriously impede the productivity of the District II Economic Services Division. Reassigning Petitioner on the other hand, presented a different picture. There was an available clerical position at Florida State Hospital which fit nicely with her pay grade and her knowledge, skills and abilities. Furthermore, Petitioner's work site at Florida State Hospital was thirty to forty-five minutes closer to her home than the District II Economic Services office in Tallahassee. On January 5, 1993, Petitioner was reassigned to the personnel office at Florida State Hospital in Chattahoochee, Florida. Mr. Harmsen, who ultimately decided this action, did so because of the remaining personnel problems in the Economic Services office, not in any racial retribution against Petitioner. Petitioner claimed at formal hearing that her educational development was impeded by the transfer of job location sites because she was enrolled in a Lively Vocational Technical course in Tallahassee which began shortly after she got off work, but Petitioner did not protest to Mr. Harmsen concerning her reassignment for any reason at the time it was made. Between the date of Petitioner's reassignment and the date of formal hearing, Mr. Cozart retired and legislative budget cuts eliminated Petitioner's former position in the Economic Services office. The possibility this cut could occur existed at the time of Petitioner's reassignment and was known to Mr. Harmsen. There is every likelihood that, because of the cut, Petitioner would have been reassigned to a different, less desirable, location by a "bumping" procedure, had she remained in the Tallahassee office.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the Petition for Relief and its underlying discrimination claim be dismissed. RECOMMENDED this 2nd day of February, 1994, at Tallahassee, Florida. ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of February, 1994. APPENDIX TO RECOMMENDED ORDER 93-2252 The following constitute specific rulings, pursuant to S120.59(2), F.S., upon the parties' respective proposed findings of fact (PFOF). Petitioner's PFOF: 1-3 Accepted. Unnecessary, subordinate or cumulative material has not been utilized. See FOF 1-6, 12-14 and 44. 4 Accepted that these witnesses so testified, but rejected in part upon credibility grounds and in part because this perception was not fully conveyed to appropriate HRS personnel. Covered in FOF 18, 19, 21, 23, 25, 45 and 55. 5-6 Accepted. Unnecessary, subordinate or cumulative material has not been utilized. See FOF 3, 17 and 54. 7-9 Accepted that these witnesses so testified, but rejected in part upon credibility grounds and in part because this perception was not fully conveyed to appropriate HRS personnel. Covered in FOF 4-6, 18-25, 36-38 and 45-48, especially 19 and 21. 10 Rejected as stated as not supported by the greater weight of the credible evidence. Covered in FOF 18-25, 36-38, and 45-48, especially FOF 19 and 21 and 45-48. 11-12 Accepted. Unnecessary, subordinate or cumulative material has not been utilized. Covered in FOF 22-24. Accepted in part and rejected in part upon the greater weight of the credible competent evidence as covered in FOF 26-31, espcially 29-30. Rejected as stated because as stated, it is misleading and mere argument. Covered as proven in FOF 18, 19, 21, 23, 25-30, 36-38, and 43-48, especially 21, 25, and 45-48. Accepted that testimony conflicted on this issue but otherwise rejected as covered in FOF 8 and 25. Rejected as stated, because as stated it is misleading and not supported by the greater weight of the credible competent evidence. Covered in FOF 7-12 and 25. Accepted. Unnecessary, subordinate or cumulative material has not been utilized. See FOF 8-9, 15-16, and 25. Accepted as covered more accurately in FOF 35-39 and 43-48. 19-20 Accepted in part and rejected in part as covered more accurately in FOF 25, 34-39 and 43-48. Also, the footnote is rejected as not accurate as stated and as non-determinative. Mr. Harmsen had seen many hostile discrimination allegations and religious exhortations of Petitioner before, and this history, rather than Ms. Harrell's rank or her being placed in the phone rotation mix, influenced him. See FOF 4-6 on actual ranks. 21-22 Rejected as not supported by the greater weight of the credible competent evidence. See, FOF 19-25, and 35- 48. As to the last clause of the last sentence of PFOF 21, the record actually shows that Ms. Bethea "waffled" on this issue and Ms. McKenzie could not recall if she had told Sheila Bethea at any point that her statement was not needed, but same is still immaterial because both HRS and the police obtained a written statement from Ms. Bethea. The PFOF is rejected as mere argumentation and as not supported by the greater weight of the credible competent evidence. See FOF 35-39 and 42-48. The footnote is accepted at FOF 34. Rejected as mere argumentation and as covered in FOF 29-30, upon credibility. Accepted. Unnecessary, subordinate or cumulative material has not been utilized. See, FOF 48-50 and 56. Respondent's PFOF: 1-2 Accepted in FOF 2-5. Unnecessary, subordinate or cumulative material has not been utilized. 3-4 Accepted except that Janna Lewis-Harrell's employment has been more accurately conformed to the record evidence in FOF 5 and 12, work hour situations and who approved flex-time have been more accurately conformed to the record in FOF 7-11, Ms. Harrell's motives are in FOF 9 and 15. 5-6 Accepted in FOF 13-16. Unnecessary, subordinate or cumulative material and argumentation has not been utilized. 7 Accepted in FOF 18-25 and 43-48, especially 19 and 25; footnote covered in FOF 17. Unnecessary, subordinate or cumulative material has not been utilized. 8 Accepted in FOF 20, 25-26, 35-38 and 43-46. Unnecessary, subordinate or cumulative material and mere argumentation has not been utilized. Accepted in FOF 27. Unnecessary, subordinate or cumulative material has not been utilized. Accepted in part and rejected in part after reconciling where possible and weighing the credible evidence in FOF 28-30. Accepted in FOF 33. Unnecessary, subordinate or cumulative material has not been utilized. Accepted in FOF 34. Accepted in FOF 35. Accepted in FOF 36-39 and 43-48. Accepted in FOF 40. Accepted in FOF 41. Accepted in FOF 43, except for the last sentence, which is deemed out of chronology, or mere argumentation. Accepted as modified for acuracy in FOF 48. Unnecessary, subordinate or cumulative material has not been utilized. Rejected in favor of greater accuracy in 49-50. Argumentation has not been utilized. Accepted in FOF 56 except that introductory, unnecessary, subordinate or cumulative material has not been utilized. Accepted in FOF 45-48. Unnecessary, subordinate or cumulative material has not been utilized. Accepted in FOF 51. Accepted in FOF 52. Accepted in FOF 53. Accepted in FOF 54. Accepted in FOF 55. Accepted as modified in FOF 58 to more accurately reflect the record. COPIES FURNISHED: John R. Perry, Esquire DHRS District 2 Legal 2639 North Monroe Street, Suite 200-A Tallahassee, Florida 32399-2949 Jack McLean, Esquire Legal Services for North Florida 2119 Delta Way Tallahassee, Florida 32303-4220 Sharon Moultry, Clerk Commission on Human Relations 325 John Knox Road, Building F, Suite 240 Tallahassee, Florida 32303-4149 Robert L. Powell, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Kim Tucker, Esquire Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Whether the Respondent, as Mayor of the Town of Eatonville (Town), violated Section 112.313(6), Florida Statutes, (1) by using the Town's postage machine to backdate envelopes containing voter registration forms in an attempt to register voters after the official deadline for registration had expired; (2) by preparing or having another person prepare a fraudulent affidavit concerning the postage machine matter and directing a Town employee to forge the signature of another Town employee and to falsely notarize the document; and (3) if so, what penalty is appropriate.
Findings Of Fact At all times pertinent to this proceeding, Respondent, Anthony Grant, was Mayor of the Town of Eatonville, Florida. He was elected to this office in or about November 1994, and has served in this capacity continuously since that time. As the Mayor of Eatonville, Respondent was subject to the requirements of Part III, Chapter 112, Florida Statutes, the Code of Ethics for Public Officers and Employees (the Code of Ethics). Pursuant to Section 97.055, Florida Statutes, February 3, 1995, was the deadline for the receipt of voter registration forms in the Office of the Supervisor of Elections for those registrants to be eligible to vote in the March 4, 1995, election of Eatonville Town Council members. Registration forms were deemed received by the deadline if the postmark affixed by the United States Postal Service was February 3, 1995, or a date prior thereto. At all times relevant to this proceeding, Louise Franklin was employed as a clerk by the Town of Eatonville. In that position, Ms Franklin was responsible for operating and setting the date on the Town's postage meter machine. The duties associated with the postage meter machine were also performed by one other clerk who worked with Ms. Franklin. Typically, the date on the machine was set either the morning of that particular day or at or near the close of business the preceding business day. On Monday morning, February 6, 1995, Respondent and his secretary, Ms. Tammy Stafford, went to the office where Ms. Franklin worked to stamp six voter registration forms that were to be mailed to the Supervisor of Elections Office. The Town of Eatonville had been involved in a voter registration campaign and these registration forms had been brought to Respondent's office that morning by a local citizen. According to Respondent, after he and his secretary stamped two or three of the envelopes containing the voter registration forms, his secretary noticed that the date imprinted the envelopes was February 3, 1995, rather than February 6, 1995. Respondent further testified that after the error was discovered, he asked Ms. Franklin to show them how to change the date on the machine. Ms. Franklin showed Respondent how to set the date on the postage meter machine. At the time of Respondent's request for assistance with the postage meter machine, the Town had only recently acquired the machine, and it had been used by Ms. Franklin and the other clerk for only a short period of time. Prior to February 1995, Respondent had not used the postage meter machine. Ms. Franklin complied with Respondent's request for instructions on how to use the postage meter machine. Ms. Franklin went into the room in which the machine was located and showed the Respondent and his secretary how to use it. Ms. Franklin's instruction to the Respondent and Ms. Stafford included an explanation and demonstration of how to change the date on the postage meter machine. During the course of her explanation to the Respondent and Ms. Stafford, Ms. Franklin inserted a blank envelope in the postage meter machine to show how the machine worked. Thereafter, Ms. Franklin left Respondent and his secretary in the room where the postage meter machine was located. Ms. Franklin was unsure if the Mayor and/or Ms. Stafford stamped any of the envelopes before the Respondent came and asked for her assistance in using the postage meter machine. Ms. Franklin did not see Respondent or Ms. Stafford use the postage meter machine. Nor did Ms. Franklin actually see the date that had been imprinted on the six envelopes by the postage meter machine. However, Ms. Franklin assumed that, after she left the immediate area where the postage meter machine was located, Respondent and Ms. Stafford used the machine to stamp the envelopes that were addressed to the Supervisor of Elections Office. Later on the morning of February 6, 1995, some time after Respondent and Ms. Stafford left the area where the postage meter machine was located, Ms. Franklin noticed that the date on the postage meter machine was set to February 3, 1995. Ms. Franklin believed that during the time that she was training Respondent and Ms. Stafford on how to use the postage meter machine, the machine was set for February 6, 1995. Although Ms. Franklin had no independent or clear recollection that the postage meter machine was set for February 6, 1994, she testified at hearing that she "probably would have noticed if the date was incorrect." Ms. Franklin never observed Respondent or Ms. Stafford backdate the postage meter machine. Neither did Ms. Franklin see anyone go into the room in which the postage meter machine was located after Respondent and his secretary left that room. On the afternoon of February 6, 1995, Ms. Franklin went to Betty Golson, Acting Town Clerk, and told her that Respondent and his secretary had used the postage meter machine to stamp voter registration forms and that she had given them instructions on how to use the machine. Ms. Golson was not in or near Ms. Franklin's office or the room where the postage meter was located on the morning of February 6, 1995, when Respondent and his secretary were there. However, based on Ms. Franklin's comments, Ms. Golson felt compelled to report her perception of the incident to Betty Carter, the Orange County Supervisor of Elections, in a February 7, 1995, memorandum. The memorandum stated: [Ms. Franklin] witnessed the Mayor's secretary sending a voter's registration form through the postage meter. She also said that she witnessed the Mayor sending through the postage meter at least three (3) voter's registration forms. [Ms. Franklin] further stated that both the Mayor and his secretary asked for directions on how to change the meter's date to which she did give them both instructions on the procedures. After Respondent learned about Ms. Golson's memorandum to the Supervision of Elections, he and Mr. Harley met with Ms. Franklin. During the meeting, Respondent asked Ms. Franklin to prepare a written statement describing what occurred on February 6, 1995, when he and his secretary were in her office. However, Respondent did not tell or suggest to Ms. Franklin what she should include in the statement. Pursuant to Respondent's request, on February 8, 1995, Ms. Franklin typed and signed a statement in which she recounted the events of February 6, 1995, relative to the postage meter machine. Ms. Franklin's statement read: This is to verify that I, Louise Franklin, gave instructions to staff how to change the postage meter machine after they had sent a few pieces of mail through which reflected the date February 3, 1995. After Respondent read Ms. Franklin's February 8, 1995, statement, it was his opinion that the statement was vague. Based on this opinion, Respondent asked Ms. Franklin to write a more precise, detailed statement describing the events of February 6, 1995. In making this second request, Respondent did not tell Ms. Franklin what the statement should say. Ms. Franklin complied with Respondent's request and, on February 9, 1995, she typed and signed a second statement. The second statement provided more details and was more precise than the first statement. For example, in this statement, rather than stating that she instructed "staff" on how to use the postage meter machine, Ms. Franklin specifically noted that she provided the instruction to "the Mayor and his secretary." Furthermore, in her second statement, Ms. Franklin included the date on which the instruction occurred, a detail that was absent from Ms. Franklin's first statement. Also, in the second written statement, Ms. Franklin wrote: I demonstrated for them step-by-step, which consisted of changing the dates, months, year, etc., I even carried a blank envelope through the machine as an example. They were able to send a few pieces of mail throuth [sic] themselves. The two statements prepared and signed by Ms. Franklin in February 1995, truthfully and accurately describe the postage meter incident that occurred on February 6, 1995, and do not conflict with Respondent's version of the incident. Ms. Franklin testified that she did not know whether Respondent or Ms. Stafford ever changed the date on the postage meter machine. Moreover, Ms. Franklin acknowledged that she did not know what date was on the postage meter machine when the Respondent and his secretary finished using the machine on February 6, 1995. Finally, notwithstanding Ms. Golson's memorandum and Ms. Franklin's second statement, both of which indicated that Respondent and his secretary used the postage meter machine to stamp mail or voter registration forms, Ms. Franklin testified that she did not know whether the Respondent and/or Ms. Stafford sent any mail through the postage mater machine. After Respondent received Ms. Franklin's second statement, Respondent told Mr. Harley that he was not pleased with the affidavit and wanted it redone. Respondent then met with Mr. Harley and discussed what should be included in the affidavit. Moreover, just before or during the meeting, Respondent directed Mr. Harley "to take care of it today." Respondent's intent was to accurately and completely memorialize the incident of February 6, 1995. Catherine Williams, a clerk with the Town of Eatonville, worked in the area immediately outside the office where Respondent and Mr. Harley met to discuss the affidavit. Prior to Respondent's and Mr. Harley's entering the office to begin their meeting, Ms. Williams overheard Respondent tell Mr. Harley that he was not pleased with Ms. Franklin's second statement and that he wanted it redone. After the meeting between Respondent and Mr. Harley was over, Respondent left the office and exited the building. After Respondent left the office, Mr. Harley approached Ms. Williams, gave her a handwritten copy of an affidavit, and told her to type it. The affidavit that Mr. Harley gave to Ms. Williams was in Mr. Harley's handwriting. Once Ms. Williams typed the affidavit, Mr. Harley immediately directed her to sign Ms. Franklin's name on the affidavit, and to notarize the affidavit. In compliance with Mr. Harley's directive, Ms. Williams signed Ms. Franklin's name on the affidavit and, also, notarized the affidavit. Notwithstanding Mr. Harley's testimony to the contrary. Respondent never instructed or told Mr. Harley to direct Ms. Williams to prepare, forge or notarize the affidavit. Respondent did, in fact, instruct Mr. Harley to have a more concise affidavit prepared. However, Respondent never instructed Mr. Harley to have the affidavit prepared in a fraudulent manner. Although Respondent merely told Mr. Harley that he wanted the affidavit redone and directed Mr. Harley "to take care of it today," Mr. Harley testified that he understood this to be an order that he direct Ms. Williams to forge Ms. Franklin's signature on the affidavit and then to falsely notarize that signature. Mr. Harley's interpretation of Respondent's directive was both unreasonable and inaccurate, and his testimony in that regard lacks credibility. Mr. Harley never presented the affidavit referred to in paragraph 24 above to Ms. Franklin for her review and signature. Although Ms. Franklin never read or signed the document, the affidavit purported to be that of Louise Franklin. Furthermore, it was undisputed that Mr. Harley never gave a copy of the forged affidavit to Respondent. The affidavit written by Mr. Harley and typed, signed, and notarized by Ms. Williams was not seen or read by Respondent until December 1996, during an investigation being conducted pursuant to a complaint filed by Mr. Harley. On February 9, 1995, when Respondent and Mr. Harley met regarding the affidavit, Mr. Harley was a disgruntled employee. By his own admission, Mr. Harley was discontent while working in Respondent's administration. This was due, at least in part, to Mr. Harley's philosophical differences with Respondent over Respondent's management style. As early as December 1994, Mr. Harley approached Respondent about Harley's desire to sever his employment relationship with the Town of Eatonville. In the context of the discussion, the issue of Mr. Harley's receiving severance pay was raised. Respondent told Mr. Harley that pursuant to Harley's employment contract, he would be entitled to severance pay if he were fired, but not if he resigned. The issue of Mr. Harley's entitlement to severance pay had not yet been resolved on February 9, 1995. Mr. Harley left his employment with the Town of Eatonville in March 1996, as part of a negotiated resignation agreement. As a result of his resignation, Mr. Harley suffered a financial loss in that he did not receive severance pay when he resigned. Mr. Harley eventually received $9,000.00 in severance pay as a settlement in a lawsuit he filed against the Town of Eatonville in March 1996, after he resigned. Also, shortly after resigning from the Town of Eatonville, Mr. Harley filed a complaint against the Town with the State Attorney's Office in which he alleged approximately fifty-four instances of wrongdoing.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order and Public Report be entered finding that the Respondent, Anthony Grant, did not violate Section 112.313(6), Florida Statutes. DONE AND ENTERED this 29th day of October, 1998, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD 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 Filed with the Clerk of the Division of Administrative Hearings this 29th day of October, 1998. COPIES FURNISHED: Eric S. Scott Assistant Attorney General Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Gary R. Dorst, Esquire Post Office Box 947509 Maitland, Florida 32794-7509 Bonnie Williams, Executive Director Commission on Ethics 2822 Remington Green Circle Suite 101 Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Kerrie Stillman Commission on Ethics 2822 Remington Green Circle Suite 101 Post Office Drawer 15709 Tallahassee, Florida 32317-5709
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 =================================================================
