Findings Of Fact Respondent holds Florida teaching certificate number 380391, Post Graduate, Rank II, valid through June 30, 1986, covering the areas of math and junior college. Respondent was employed in the public schools of Palm Beach County as a math teacher at Lake Shore Middle School for the 1979-1980 school year. During the first few weeks of school, Respondent summoned her students into the classroom by shouting an obscenity at them and staged a funeral ceremony for a dead rat in her math class. Students reported these incidents to the principal and to the assistant principal for administration at Lake Shore Middle School. Respondent told another teacher in her carpool that she had found herself in the emergency room of a hospital and did not know how she had gotten there or why she was there. She further admitted being under the care of a psychiatrist. On October 12, 1979, Respondent was seen outside chasing students in an attempt to get them into her classroom, including students that did not belong there. Later, Assistant Principal Davis took Respondent out of her classroom and sent her to the teachers' lounge since she was unable to maintain control over her students in the classroom. Respondent later became subject to alternating outbursts of laughing and crying, without apparent reason. Respondent was driven home by the members of her carpool. Respondent did not return to Lake Shore Middle School. She was absent without leave from October 13, 1979, until her written resignation was accepted by the Palm Beach County School Board on December 3, 1979. On June 18, 1979, Respondent was arrested for possession of marijuana. She elected to participate in the Palm Beach County Pre-Trial Intervention Program. On November 8, 1979, Respondent was again arrested for possession of marijuana. Respondent was not prosecuted pursuant to the first arrest because of her participation and completion of the Pre-Trial Intervention Program. The record in this cause contains no evidence as to the disposition of Respondent's second arrest. The Petition for the Revocation of Teacher's Certificate dated July 29, 1980, was mailed by certified mail to Respondent at her last-known address. This and all subsequent mailings to her at her last-known address were returned marked "Unclaimed." Notice of Action was published in The Post, a Palm Beach County newspaper. Respondent's present whereabouts is unknown to each of the Petitioner's witnesses.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is, therefore, RECOMMENDED THAT: A final order be entered revoking the teaching certificate of Henrietta Forbes, certificate number 380391. RECOMMENDED this 16th day of April, 1982, in Tallahassee, Florida. LINDA M. RIGOT 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 16th day of April, 1982. COPIES FURNISHED: Thomas F. Woods, Esquire Woods, Johnston, Carlson & Sanford 1030 East Lafayette Street Suite 112 Tallahassee, Florida 32301 Mr. Donald L. Griesheimer Executive Director Education Practices Commission 125 Knott Building Tallahassee, Florida 32301 Ms. Henrietta Forbes 1812 "B" Road Loxahatchee, Florida 33470
The Issue The issue in this case is whether Respondent's certification as a law enforcement officer should be revoked or otherwise disciplined for the reasons set forth in the Administrative Complaint.
Findings Of Fact Based upon the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following findings of fact are made: The Respondent was certified by the Criminal Justice Standards and Training Commission on November 10, 1983 and issued certificate number 16-83- 002-04. At all times pertinent to this procceeding, Respondent was a certified law enforcement officer and was employed as a Deputy Sheriff by the Palm Beach County Sheriff's Office. Respondent was not on duty or in uniform at the time of the incident described in the Administrative Complaint. On October 1, 1989, the Respondent and his wife, Janet Phillips, were leaving the TCBY Yogurt Shop in the Royal Palm Beach area. As the Respondent was proceeding to get into the driver's side of their BMW and Janet Phillips was proceeding to get into the passenger side, another car, driven by JoAnn Baker, pulled into the space next to the Respondent's car. Mrs. Baker parked in a position where the driver's door of her car was next to the passenger door of the Respondent's car. As Mrs. Baker was getting out of her car and Mrs. Phillips was getting into her car, the car doors bumped into each other causing the BMW door to knock Mrs. Phillips in the back. After the cars doors bumped, Mrs. Phillips and Mrs. Baker began exchanging words. While Mrs. Baker contends that she was only attempting to apologize, the more credible evidence established that she was a vocal and agitated participant in the argument. Respondent joined in the verbal altercation while all parties were still in the parking lot. At this point, there was no physical contact between Mrs. Baker and Mrs. Phillips nor between Mrs. Baker and the Respondent. Mrs. Baker flipped a "bird" at Respondent and his wife and walked into the yogurt store. The Respondent and his wife got into their car. However, after a few moments, the Respondent's wife got out of the car and went back into the yogurt shop after Mrs. Baker. Respondent followed his wife into the yogurt shop a short time later. Mrs. Phillips walked directly up to Mrs. Baker and got within two (2) or three (3) feet of her. The two women exchanged verbal insults and vulgarities. Mrs. Phillips then stepped toward Mrs. Baker, raised her hand and slapped Mrs. Baker in the face. Mrs. Baker immediately put her hands up in defense to block any other blows. She also made a move towards Mrs. Phillips. Respondent, who by this point had entered the shop, stepped between the two women and pushed Mrs. Baker back against the counter. The Respondent grabbed Mrs. Baker by her arms, lifted her up off the floor and physically placed her down on the counter in a rough manner. The Respondent also placed his forearm and elbow against Mrs. Baker's throat and chest area pinning her against the counter while bending her backwards with her legs dangling off the floor. While pinning Mrs. Baker against the counter, the Respondent was very upset; he put his face within a few inches of Mrs. Baker's face and was screaming at her. Respondent called her a "whore" and a "bitch". After a brief period had passed, the Respondent let go of Mrs. Baker. The Respondent did not apologize to Mrs. Baker nor did he offer any type of assistance to her after the incident. Mrs. Baker went outside to get the Respondent's tag number and told them she was going to call the cops. She also threatened to sue Respondent, which she subsequently did. The Respondent and his wife got in their BMW and left the area. Mrs. Baker received minor bruises and injuries to her back as a result of the incident. Prior to the Respondent grabbing Mrs. Baker, Mrs. Baker had not made any physically aggressive moves towards the Respondent. At the time of the incident, the Respondent was 6'3" in height and weighed 215 pounds; JoAnn Baker was 5'4" in height and weighed between 126 and 135 pounds. The evidence was inconclusive as to the size of Mrs. Phillips, but she was roughly the same size as Mrs. Baker. The Respondent was subsequently charged with a misdemeanor battery based on a complaint filed by Mrs. Baker. He entered a nolo contedere plea to the charge on the advice of his attorney. Adjudication was withheld and Respondent was sentenced to a brief probationary period which he successfully completed . As a result of this incident, Respondent has lost his job with the Palm Beach County Sheriff's office. Respondent's wife had abdominal surgery approximately two weeks before this incident. Respondent claims that he was very concerned about her physical condition and was simply trying to protect her when he thought that Mrs. Baker was going to "attack" his wife. While Respondent's concern is understandable, it is clear that he overreacted and used undue force in restraining Mrs. Baker.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Criminal Justice Standards and Training Commission enter a Final Order finding the Respondent guilty of the allegations contained in the Administrative Complaint and suspending his certification as a law enforcement officer for three months followed by a probationary period of one year. DONE and ENTERED this 25th day of March, 1992, at Tallahassee, Florida. J. STEPHEN MENTON 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 25th day of March, 1992. APPENDIX TO RECOMMENDED ORDER Both parties have submitted Proposed Recommended Orders. The following constitutes my rulings on the proposed findings of fact submitted by the parties. The Petitioner's Proposed Findings of Fact Proposed Finding Paragraph Number in the Findings of Fact of Fact Number in the Recommended Order Where Accepted or Reason for Rejection. Adopted in substance in Findings of Fact 1. Adopted in substance in Findings of Fact 2. Adopted in substance in Findings of Fact 2. Adopted in substance in Findings of Fact 3. Adopted in substance in Findings of Fact 4. Adopted in substance in Findings of Fact 4. Adopted in substance in Findings of Fact 5. Adopted in substance in Findings of Fact 6. Subordinate to Findings of Fact 7. Subordinate to Findings of Fact 7. Subordinate to Findings of Fact 7. Subordinate to Findings of Fact 8. Subordinate to Findings of Fact 9. Subordinate to Findings of Fact 9. Rejected as unnecessary. Adopted in substance in Findings of Fact 10. Subordinate to Findings of Fact 11. Rejected as unnecessary and not supported by the weight of the evidence. Adopted in substance in Findings of Fact 11. Adopted in substance in Findings of Fact 12. Subordinate to Findings of Fact 13. Adopted in substance in Findings of Fact 13. Subordinate to Findings of Fact 14. Subordinate to Findings of Fact 14. Subordinate to Findings of Fact 15. Adopted in substance in Findings of Fact 16. Adopted in substance in Findings of Fact 17. Adopted in substance in Findings of Fact 18. Subordinate to Findings of Fact 19. Subordinate to Findings of Fact 13. Adopted in substance in Findings of Fact 20. Adopted in pertinent part in Findings of Fact 21. Subordinate to Findings of Fact 22. The Respondents's Proposed Findings of Fact Proposed Finding Paragraph Number in the Findings of Fact of Fact Number in the Recommended Order Where Accepted or Reason for Rejection. Adopted in substance in Findings of Fact 1. Adopted in substance in Findings of Fact 2. Adopted in substance in Findings of Fact 2-3. Rejected as vague and unnecessary. Adopted in substance in Findings of Fact 4-6. Adopted in substance in Findings of Fact 7. Adopted in substance in Findings of Fact 8. Adopted in substance in Findings of Fact 9-10. Subordinate to Findings of Fact 11-12. Subordinate to Findings of Fact 11-12. Rejected as a summary of testimony rather than a Finding of Fact. This subject matter is addressed in Findings of Fact 12-13. Rejected as a summary of testimony rather than a Finding of Fact. This subject matter is addressed in Findings of Fact 11-12. Rejected as a summary of testimony rather than a Finding of Fact. This subject matter is addressed in Findings of Fact 11-12. The first sentence is adopted in substance in Findings of Fact 23. The second sentence is rejected as not supported by the weight of the evidence. Subordinate to Findings of Fact 12-15 and 17. Subordinate to Findings of Fact 12-15. Rejected as unnecessary. Adopted in substance in Findings of Fact 22. Adopted in substance in Findings of Fact 22. COPIES FURNISHED: Dawn Pompey, Esquire Assistant General Counsel Florida Department of Law Enforcement P.O. Box 1489 Tallahassee, Florida 32302 Mark D. Ewart, Esquire 319 Clematis Street, Suite 817 West Palm Beach, Florida 33401 Jeffrey Long, Director Department of Law Enforcement Criminal Justice Standards Training Commission P.O. Box 1489 Tallahassee, Florida 32302 James T. Moore, Commissioner Department of Law Enforcement Criminal Justice Standards Training Commission P.O. Box 1489 Tallahassee, Florida 32302
Findings Of Fact Respondent, Philip Lee Sullivan (Sullivan), has served as Chief of Police for the City of Panama City Beach, Florida since August 10, 1977. Sullivan's salary as Police Chief was $62,326.12 in 1994, and will total $63,211.20 in 1995. As Police Chief, Sullivan's duties include planning, organizing, and directing all activities of the Panama City Beach Police Department. He is also charged with supervision of all members of the police force, with particular attention to personnel at the administrative and supervisory level, and with the investigation and disposition of complaints against police officers. In his official capacity, Sullivan is also required to cooperate with state and federal officers in the apprehension and detention of wanted persons and with other agencies where activities of the police department are involved. Sullivan has the authority to take disciplinary action against an employee of the police department up to and including suspension without pay for 30 days, and can recommend termination to the City Manager. He also completes written performance evaluations on members of his command staff, which is comprised of the Patrol Division Commander, the Investigative Division Commander, the Assistant to the Chief, and the Reserve Division Commander. In 1987, Sullivan began a business as a loss prevention and security consultant, operating as a sole proprietorship. Sullivan's first client was Hilton, Inc. Charles Hilton is the Chief Executive Officer of Hilton, Inc. It was Mr. Hilton who made the initial decision to hire Sullivan. He considered one other person for the work, but rejected that individual based on the fee sought. Sullivan verbally sought approval from the City Manager to contract with Hilton, Inc. The City Manager verbally approved the arrangement. Hilton, Inc. owns and operates five hotels in Panama City Beach: The Holiday Inn Sun Spree, Ramada Inn, Days Inn, Best Western Del Coronado, and Best Western Casa Loma. All except Sun Spree, which was added in 1990, were owned by Hilton, Inc., when Sullivan began contracting with the corporation. Hilton, Inc. pays Sullivan $2,000 a month with an additional fee for background checks. Sullivan's next client was the Bay Point Improvement Association (Bay Point). Bay Point is outside the city limits of Panama City Beach. By letter dated February 2, 1989, Sullivan formally requested approval from the City Manager to accept the position of Director of Security for Bay Point. Approval was granted by letter dated February 15, 1989. Sullivan was initially hired in February, 1989, as Director of Security, but his employment status was subsequently changed to that of an independent contractor, similar to his position with his other private employers. Bay Point pays Sullivan $18,000 per year for his services. Sullivan's next client was the La Vela Beach Club ("La Vela") in March, 1993. He was hired by the club's owner, Alois Pfeffer. Sullivan no longer works for the La Vela Beach Club, but while he was working for the club he was paid $6,000 per year. Sullivan's next client was Boardwalk Beach Resorts, which hired him in September, 1993. Boardwalk Beach Resort is the fictitious name for a limited partnership, Resort Hospitality Enterprises, Ltd. ("Resort Hospitality"). The majority of the stock of Resort Hospitality is owned by People's First Properties, Inc. ("People's First"). Resort Hospitality owns and operates four hotel properties, totaling approximately 625 rooms, on Panama City Beach. Robert Henry, the chief financial officer for People's First, was the person who decided to contract with Sullivan after independently determining to the satisfaction of People's First that Sullivan did not have a conflict of interest. People's First pays Sullivan $18,000 per year with additional fees for background checks. In 1994 Sullivan was paid $6,450 for background checks and as of September 11, 1995, he was paid $4,720 for the background checks performed in 1995. Sullivan incorporated his business as Beach Security, Inc. on December 12, 1993. Sullivan's next client was the Miracle Strip Park/Shipwreck Island (Miracle Strip). He was hired in May, 1994 by the Miracle Strip's General Manager, Shelton Wilkes. Miracle Strip is located on Panama City Beach. Sullivan receives $7,200 per year from Miracle Strip. Sullivan's next client was Spinnakers, where he was hired in July, 1994, by W. B. Sparkman, III. Spinnakers paid Sullivan $6,000 per year. As of the date of the final hearing it was not known whether Spinnakers would continue its contract with Sullivan for the next season. Except for Bay Point, there are no written contracts between Sullivan and any of the businesses with which he contracts. Sullivan has no job description, no set work hours, and no regular meetings with his employers. As part of the services offered by Beach Security, Sullivan makes recommendations to his clients in developing their safety and security policies and procedures, particularly with respect to policies, procedures and training for the security staff. The ultimate decision whether to implement any of Sullivan's recommendations rests with Sullivan's clients. Sullivan is also expected to defend those policies and procedures in court as an expert witness in the event his employer adopts his recommendations and is sued. Sullivan neither sets nor manages security for his clients. He makes recommendations. Sullivan does not hire, fire, or make other employment decisions for the security personnel of his clients. He does not supervise or evaluate the performance of his clients' security staff on a daily basis, and does not evaluate the individual performance of any of his clients' employees. As part of Sullivan's services to Hilton, Inc., Boardwalk Beach Resort and La Vela, Sullivan did background checks for potential employees. Sullivan hired an employee of the police department to do the background checks for him. The background checks were performed at the Bay County Courthouse for local applicants. If the information needed was located in another county or state, Sullivan would contact the clerk of the court at the appropriate location for the information. Getting information from another county or state can be a slow process. The information which Sullivan uses in doing the background checks is information which is available to the general public. The Police Department of Panama City Beach (Police Department) has an agreement with the Florida Department of Law Enforcement to allow the Police Department access to criminal history record information. Access to the information is limited to police department business. If a police department employee desires to access the information, the employee must log in on the computer, which creates a computer-generated log at FDLE. Sullivan personally does not know how to access the information. Sullivan could request a police department employee to access the information for him. Panama City Beach is a popular resort area, which experiences a large influx of teenagers and young adults during spring break. Problems associated with alcohol consumption, including traffic violations and accidents, assaults, and disorderly conduct, are commonplace police concerns, particularly during spring break. Spinnakers and La Vela are clubs located on Panama City Beach which cater to the spring break crowd and serve alcohol. The La Vela has a capacity for about 6,000 people and Spinnakers about 4,000. The Hilton, Inc. hotels, the Boardwalk Beach Resort, and the Miracle Strip also do heavy spring break business. The Miracle Strip deals with more than 600,000 visitors over the course of its season. The police department investigates crimes and responds to calls and complaints made by citizens. The department also investigates accidents and is routinely called any time an ambulance is called. In the past two years the police department has received more than five thousand calls for service at businesses which are located in Panama City Beach and which contract with Sullivan. No evidence was presented that Sullivan has ever disregarded public duty in favor of private interests, or misused confidential police information for the benefit of his private employers. In February 1993, Spinnakers was sued for the wrongful death of one of its patrons. The Complaint alleged that the deceased, Robert Gaither, was involved in an altercation with one or more of the club's other patrons. Spinnaker security became involved, and the other patrons were ejected. When Mr. Gaither left, security allegedly saw these individuals in Spinnakers' parking lot, but took no action. After leaving the club, Mr. Gaither was beaten to unconsciousness by these same people, and was either left or passed out in the street, where he was run over by a drunk driver. The Complaint alleges that Spinnakers' security staff was negligent in its handling of the incident. Although the incident took place before Spinnakers hired Sullivan, Sullivan has given a deposition in the case as a potential expert witness. The Panama City Beach Police Department investigated the death of Mr. Gaither. Part of Sullivan's services to Le Vela has been to instruct its staff on how to handle fights. The owner of the club has complained to Sullivan about reaction from Panama City Beach police officers when fights have occurred at the club. It is the club owner's observation that the police, in protection of their own physical safety, often leave the burden of breaking up a fight to the security officers, or wait until the participants wear themselves out. Since the club's insurance will not pay for damages if the club's security officers get involved in the fight, the owner wants the police officers to intervene at an earlier stage in the fight and has so complained to the police department. At the June 23, 1994 meeting of the Panama City Beach City Council, Sullivan's outside employment as a consultant was thoroughly discussed. Sullivan gave a detailed account of his operation. At that meeting the City Council voted to continue the City's policy of encouraging outside employment of its police officers and allowing police officers to use the police vehicles during off-duty hours as long as the police officer is on call. On October 12, 1995, the City Council of the City of Panama City Beach enacted Ordinance No. 455, which codified the rules governing secondary or off- duty employment by employees of the City of Panama City Beach. Section 2-46 of the ordinance deals specifically with law enforcement officers, including the Chief of Police. Section 2-46(d)(1) of Ordinance 455 provides: The following types of off-duty employment do not, on their face, constitute a conflict of interest for law enforcement officers: Security guard duty protecting premises or property. Security consultant within or without the City. Providing dignitary or official's protection. Conducting pre-employment checks into the applicant's previous criminal history provided that only public records are accessed. Performing accident investigations or providing technical services as otherwise per- mitted by the Department. Ordinance 455 requires that police officers who desire to have outside employment must submit an "Off-Duty Employment Request" form. The forms were made available to the police officers sometime during the early part of December, 1995. Shortly after Sullivan received the forms, he submitted authorization requests for off-duty employment with Bay Point Resort, Miracle Strip Amusement Park, Boardwalk Beach Resort, and Hilton, Inc.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order and Public Report be entered finding that Philip Lee Sullivan's employment with businesses within the jurisdiction of the Panama City Beach Police Department and his employment in doing pre-employment application background checks is in violation of Section 112.313(7)(a), Florida Statutes, and recommending that Philip Lee Sullivan be dismissed from his employment as Police Chief of the Panama City Beach Police Department. DONE AND ENTERED this 21st day of February, 1996, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of February, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-4141EC To comply with the requirements of Section 120.59(2), Florida Statutes, the following rulings are made on the parties' proposed findings of fact: Advocate's Proposed Findings of Fact. Paragraphs 1-4: Accepted. Paragraph 5: Accepted to the extent that the computer database can be accessed from the Police Department but rejected to the extent that it implies that Sullivan, himself, can physically access the information based on his testimony that he does not know how to operate the computer to get the information. Paragraph 6: Rejected as subordinate to the facts found Paragraph 7: Accepted in substance. Paragraphs 8-12: Accepted. Paragraph 13: The first two sentences are accepted. The remainder is rejected as unnecessary. Paragraphs 14-21: Accepted. Paragraph 22: Rejected as unnecessary. Paragraph 23: The first sentence is rejected as constituting argument. The remainder is accepted. Paragraphs 24-28: Accepted. Paragraphs 29-32: Accepted in substance. Paragraphs 33-34: Accepted. Paragraph 35: Rejected as unnecessary. Paragraph 36: The first sentence is accepted in substance to the extent that the information is available at the Police Department and can be accessed by Police Department staff pursuant to an agreement with FDLE. The remainder is accepted in substance. Paragraph 37: Accepted in substance except for the employment outside the police department jurisdiction. Respondent's Proposed Findings of Fact. Paragraph 1: Accepted. Paragraph 2: Accepted in substance that Sullivan requested approval for employment as Director of Security for Bay Point. Rejected to the extent that the request could be construed as a request for blanket approval for Sullivan to do security consulting services. It appears from Sullivan's letter that his employment at that time dealt with more than consulting services given that he had the authority to hire, fire, and direct the security force at Bay Point. Paragraph 3: Accepted to the extent that Beach Security Inc. was incorporated in December, 1993. Paragraph 4: Accepted in substance. Paragraph 5: Accepted to the extent that Sullivan has submitted the off-duty employment authorization requests. Paragraph 6: Accepted in substance. Paragraph 7: Rejected as constituting argument. Paragraph 8: Rejected as subordinate to the facts found Paragraph 9: Rejected as constituting argument. Paragraph 10: Rejected as constituting argument. Paragraphs 11-15: Accepted in substance. Paragraph 16: Accepted as not supported by the greater weight of the evidence. Paragraph 17: The last sentence is rejected as not supported by the greater weight of the evidence that such an arrangement could not tempt dishonor. The remainder is accepted in substance. Paragraph 18: The first sentence is rejected as not supported by the greater weight of the evidence. The first part of the second sentence is accepted in substance. The last part of the second sentence is rejected to the extent that although the businesses were anticipating that Sullivan would gather his information from public records, human nature being what it is, if Sullivan knew that an applicant was a suspect in a criminal investigation the employers would not want Sullivan to recommend that the applicant be hired. Paragraphs 19-22: Rejected as not supported by the greater weight of the evidence. COPIES FURNISHED: Virlindia Doss Advocate For the Florida Commission on Ethics Department of Legal Affairs PL-01, The Capitol Tallahassee, Florida 32399-1050 Mary Ellen Davis, Esquire Hilton, Hilton, Kolk, Penson & Roesch Post Office Box 1327 Tallahassee, Florida 32308 Carrie Stillman Complaint Coordinator Commission on Ethics Post Office Box 15709 Tallahassee, Florida 32317-5709 Bonnie Williams Executive Director Florida Commission On Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Phil Claypool General Counsel Ethics Commission 2822 Remington Green Circle, Suite 101 Post Office Drawer 15709 Tallahassee, Florida 32317-5709
The Issue The issue for determination is whether Respondent should be dismissed from employment with Petitioner.
Findings Of Fact In 1987, Steven E. Belford, hereinafter Mr. Belford, began his employment with the Palm Beach County School Board, hereinafter School Board, as a School Police Officer. From 1991 through April 1995, Mr. Belford considered the conduct of the School Board’s employees, including supervisory and management personnel, towards him to be racially hostile. During this same time period, from 1992 through April 1995, the School Board considered the conduct of Mr. Belford towards co-workers, supervisors, superiors, and students to be inappropriate. On April 10, 1995, a meeting, which could affect Mr. Belford’s employment, was held regarding his job performance. At this meeting, Mr. Belford was represented by counsel from the Police Benevolent Association, hereinafter PBA. Also among those present at the meeting was James Kelly, Chief of the School Police for the School Board. Chief Kelly was concerned with Mr. Belford’s conduct in the performance of his duties. During this meeting, Mr. Belford described the problems that he was experiencing in the work place. After listening to Mr. Belford, Chief Kelly’s concerns extended to the safety of students, staff, and visitors at the school to which Mr. Belford was assigned. As a result of this meeting, Chief Kelly determined that Mr. Belford should and would be required to undergo a fitness for duty examination. Mr. Belford’s PBA counsel advised him to undergo the fitness for duty examination. Even though Mr. Belford’s position was that there was no basis for the examination and that it was, therefore, inappropriate, he agreed to the examination. Mr. Belford was willing to comply with whatever was required of him, even though he may not agree, to keep his job. It is undisputed that the referral of Mr. Belford for a psychological evaluation was reasonable. On April 25 and 26, 1995, Dr. Harley V. Stock performed what he referred to as the “mandatory fitness for duty examination.” In Dr. Stock’s evaluation, dated May 3, 1995,2 he stated, among other things, the following: [Mr. Belford] shows no impairment in relationship to reality. . . . there was no indication of any underlying mood disorder. . . . There is no indication of any underlying thought disorder. . . . In summary this examiner has had the opportunity to review a significant amount of collateral information regarding Mr. Belford’s employment with the Palm Beach School Police Department. It appears that he has had fluctuating reviews, particularly in areas as it relates [sic] to interpersonal interactions. When confronted with documentation, Mr. Belford always has an “excuse”. He essentially feels that most of the problems that he is currently facing are a result of racial discrimination. He takes absolutely no responsibility for his own behavior. He is overly suspicious about other people’s motives towards him. He denies any type of provocative physical action towards the students or others. He believes that he is “misunderstood”. Psychological testing reveals him to be a skeptical, suspicious, over-controlled individual who may have the propensity to lose his “temper” at times when provoked. He, however, will have no insight into this. Instead, he would rather shift the blame, and responsibility to others for any problems that he finds himself in. I find some of Mr. Belford’s explanations for his behavior, as contained in the allegations, incredible. Based on psychological testing, Dr. Stock made the following recommendations in his evaluation: Because of his current psychologic [sic] functioning, his behavior at this time cannot be predicted in terms of his interactions with students and faculty members. He obviously harbors a great deal of hostility towards others, but does not either acknowledge, or recognize it. This can lead to episodes where he may become physically assaultive at the most, or at the very least, verbally aggressive in a way that is inappropriate in a school environment. I would therefore recommend that he is temporarily Unfit For Duty and that he needs mandatory psychologic [sic] counseling. Mandatory psychologic [sic] counseling means that the School Board should be appraised [sic] of his keeping scheduled counseling appointments, and that within a reasonable time, he be re-evaluated to ascertain whether he is making any progress in psychotherapy and gaining any insight into how to both understand his behavior and to modulate his impulses. During the time of treatment, I would recommend that he not engage in any functions that would place him in the role of having any type of “police authority”. This would include coming into contact with students and administrators. However, his psychologic [sic] condition does not render him totally incapable of employment. A “light duty” position would be appropriate in which he can carry on selected roles as described by the School Board while receiving treatment. After treatment is completed, within a reasonable time, Mr. Belford should then be re-evaluated to see if indeed treatment has had any effect on him. At that juncture, a further determination can be made about his work placement. In a meeting held on May 17, 1995, the results of Dr. Stock’s evaluation were discussed with Mr. Belford who was accompanied by his PBA counsel. Mr. Belford was advised that Dr. Stock considered him to be temporarily unfit for duty. In May 1995, in accordance with Dr. Stock’s recommendations, Mr. Belford was removed from duty. He was assigned light duty in the risk management department while he underwent counseling. Mr. Belford’s psychological counseling sessions were conducted by MCC Behavioral Care. His counseling sessions began on May 18, 1995. The School Board coordinated Mr. Belford’s appointments with MCC Behavioral Care and Dr. Stock. Melinda Wong was the coordinator for the School Board. During his last counseling session with MCC Behavioral Care held on August 4, 1995, Mr. Belford and his counselor agreed that he need not return to MCC Behavioral Care for any more counseling sessions. However, the counselor did not indicate to Mr. Belford whether he should or was required to return to Dr. Stock for a final evaluation. In August 1995, a representative from Ms. Wong’s office informed Mr. Belford that his final evaluation with Dr. Stock would be conducted on August 29, 1995. Mr. Belford attended the session with Dr. Stock on August 29, 1995. Mr. Belford departed the session with the understanding that the session was for his final evaluation and that Dr. Stock would submit his final report to the School Board within the next week. However, no final determination was made by Dr. Stock regarding Mr. Belford’s fitness for duty. Dr. Stock had concerns regarding the appropriateness of the counseling provided to Mr. Belford by MCC Behavioral Care. During the month of September 1995 and subsequent months, Mr. Belford periodically inquired of Ms. Wong about the status of Dr. Stock's final determination. Each time, she informed him that no determination had been made by Dr. Stock. Mr. Belford was clearly frustrated. On October 5, 1995, Mr. Belford filed a complaint of discrimination with the Equal Opportunity Employment Commission, hereinafter EEOC, against the School Board. Finally, Dr. Stock's office contacted Ms. Wong and informed her that Dr. Stock needed to have one more session with Mr. Belford in order to make a final evaluation. Ms. Wong arranged for the session to be conducted on January 3, 1996, after Mr. Belford's Christmas vacation. On Friday, December 15, 1995, at approximately 2:40 p.m., Ms. Wong went to Mr. Belford’s workplace which was in the immediate vicinity of her workplace. She advised Mr. Belford that he needed to attend a final session with Dr. Stock on January 3, 1996, in order for Dr. Stock to prepare the final evaluation. Believing that he had attended his final session with Dr. Stock on August 29, 1995, and that Ms. Wong was not aware of the final session, Mr. Belford informed Ms. Wong that he had already completed his final session and requested that she check her records. Mr. Belford was visibly tense and upset. Ms. Wong was surprised by Mr. Belford's reaction. She interpreted Mr. Belford's conduct as refusing to attend his last session with Dr. Stock for a final evaluation. Ms. Wong departed Mr. Belford’s workplace and immediately contacted Chief Kelly. Seeking advice, Chief Kelly telephoned Louis Haddad, the School Board’s Coordinator of Employee Relations. Mr. Haddad advised Chief Kelly to immediately contact Mr. Belford and to arrange a meeting with Mr. Belford that afternoon in Mr. Haddad's office, which was in the same building. Attending the meeting would be Mr. Belford, Chief Kelly, Ms. Wong, and Mr. Haddad. Chief Kelly telephoned Mr. Belford and informed Mr. Belford that he wanted to meet with him in Mr. Haddad's office. Mr. Belford informed Chief Kelly that he was getting-off work in approximately 10 minutes at 3:00 p.m.. At that time, Chief Kelly made it clear that he was giving Mr. Belford a direct order to attend the meeting. Mr. Belford advised Chief Kelly that he wanted his counsel present at the meeting. Chief Kelly did not respond to Mr. Belford's request, but asked him if he was refusing to attend the meeting, thereby disobeying a direct order. Immediately, Mr. Belford became nervous and afraid and felt queasy in the stomach. He inquired as to the location of the meeting. Chief Kelly informed him where the meeting was being held, and they both terminated the telephone conversation. Mr. Belford was on duty when Chief Kelly gave him the direct order to attend the meeting. Mr. Belford did not refuse to attend the meeting. He intended to attend the meeting. When the telephone conversation ended, Chief Kelly had a reasonable expectation that Mr. Belford would obey the direct order and attend the meeting being held that afternoon. Shortly after the telephone conversation with Chief Kelly, Mr. Belford began recalling the events leading up to the telephone conversation, and his nervousness and queasy feeling intensified. Mr. Belford became ill and was unable to attend the meeting. He departed from his workplace without notifying anyone of his sudden illness3 and without attending the meeting. While waiting for Mr. Belford, Chief Kelly, not being aware that Mr. Belford had departed his workplace, telephoned Mr. Belford's PBA counsel and informed him of the meeting and briefly of the underlying circumstances. The PBA counsel considered the meeting appropriate and advised Chief Kelly that he would be available by telephone when Mr. Belford arrived. Immediately after leaving his office, Mr. Belford contacted his new counsel. At approximately 3:25 p.m., a representative from the office of Mr. Belford's new counsel telephoned Chief Kelly. The representative of Mr. Belford's new counsel indicated to Chief Kelly that Mr. Belford would not be attending the meeting due to his sudden illness. Chief Kelly informed the representative that Mr. Belford had disobeyed a direct order and that, among other things, Mr. Belford was relieved of duty and would be recommended for termination due to insubordination. Prior to this telephone call, Chief Kelly had no knowledge that anyone other than the PBA counsel was representing Mr. Belford. Unbeknownst to the PBA counsel and Chief Kelly, Mr. Belford had decided prior to December 15, 1995, that he no longer wanted the PBA counsel's representation and that he wanted new counsel. On Monday, December 18, 1995, the next business day, Chief Kelly received written notification from Mr. Belford's new counsel regarding the reason for Mr. Belford's failure to attend the meeting. It is undisputed that there is no right to consult an attorney before obeying a direct order of a superior officer. Furthermore, it is undisputed that obeying a direct order from a superior officer is a critical and important aspect of the responsibilities of a police officer. On December 20, 1995, Chief Kelly recommended that Mr. Belford be terminated from employment with the School Board for insubordination. Mr. Belford never had a session with Dr. Stock subsequent to August 29, 1995. It was reasonable for Mr. Belford to presume that, since he was being recommended for termination, he was not expected to attend any future session with Dr. Stock. Dr. Stock never made a final determination as to whether Mr. Belford was fit to return to duty. On January 9, 1996, a pre-termination meeting was held with Mr. Belford at which he was represented by counsel. At the meeting, Mr. Belford was notified that he was being terminated for gross insubordination. By letter dated January 26, 1996, the School Board notified Mr. Belford that he was being suspended without pay and that he was being recommended for termination due to gross insubordination. On February 23, 1996, the School Board responded to Mr. Belford's charge of discrimination filed with the EEOC. The School Police for the School Board has a written policy regarding separation from employment. The policy defines gross insubordination in section "IV. C. Suspension/Termination" as "a willful disregard or constant or continuing intentional refusal to obey a direct order, reasonable in nature and given by and with proper authority." Furthermore, section "IV. D." provides that "Employees included in a bargaining unit are subject to suspension/dismissal provisions of the collective bargaining agreement." The School Board and the Palm Beach County PBA have a collective bargaining agreement, hereinafter CBA. Article 7 of the CBA, entitled "Police Officers Bill of Rights," provides in pertinent part as follows: 7.1 All law enforcement officers employed by the School Board shall have the following rights and privileges: Whenever a law enforcement officer is under investigation and subject to interrogation by members of his agency for any reason which could lead to disciplinary action, demotion, or dismissal, such interrogation shall be conducted under the following conditions: * * * I. At the request of any law enforcement officer under investigation, he/she shall have the right to be represented by counsel or any other representative of his/her choice who shall be present at all times during such interrogation when the interrogation relates to the officer's continued fitness for law enforcement service. * * * 5. No law enforcement officer shall be discharged, disciplined, demoted, or denied promotion, transfer, or reassignment, or otherwise be discriminated against in regard to his/her employment, or be threatened with any such treatment, by reason of his/her exercise of the rights granted by this part. Article 29 of the CBA, entitled "Progressive Discipline," provides in pertinent part as follows: This Section covers actions involving oral or written warnings, written reprimands, suspensions, demotions, dismissals, or reductions in grade or pay with prejudice. Disciplinary action may not be taken against an employee except for just cause, and this must be substantiated by sufficient evidence which supports the recommended disciplinary action. * * * 8. The discipline, dismissal, demotion, and suspension of any employee shall be for just cause. Where just cause warrants such action(s), any employee may be demoted, suspended, or dismissed upon recommendation of the Chief of Police to the Superintendent of Schools. Except in cases that constitute a real immediate danger to the District or other flagrant violation, progressive discipline shall be administered as follows: Verbal warning (written notation). Written warning. Written reprimand filed in Personnel. Suspension with or without pay. Dismissal. It is inferred and a finding is made that Mr. Belford is a member of the Palm Beach County PBA and is, therefore, subject to the collective bargaining agreement.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Palm Beach County School Board enter a final order revoking the suspension and dismissal and reinstating Steven E. Belford under terms and conditions as are appropriate. DONE AND ENTERED this 13th day of October, 1997, in Tallahassee, Leon County, Florida. ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 13th day of October, 1997.
Findings Of Fact The Respondent. The Respondent, Charles Polk, served as the President of Daytona Beach Community College from 1974 to 1990. [Stipulated Fact.] Mr. Polk resigned as President of Daytona Beach Community College in 1990. Mr. Polk's Purchase of Real Estate from Anargyros N. Xepapas. In November, 1985, Mr. Polk and his wife purchased a life estate and one-half interest in a condominium unit from Anargyros N. Xepapas. Mr. Xepapas owned the other one-half interest in the condominium unit. [Stipulated Fact.] The purchase price of the life estate and one-half interest in the condominium unit was $150,000.00. [Stipulated Fact.] The weight of the evidence failed to prove that this price was not the fair market value or that the transaction was not an arms-length transaction. Under the terms of the agreement, Mr. Polk and his wife were required to pay $30,000.00 immediately. They subsequently executed and delivered to Mr. Xepapas a note and mortgage for the remaining $120,000.00. [Stipulated Fact.] Mr. Polk was a mortgagor and Mr. Xepapas was a mortgagee. Under the terms of the agreement, Mr. Polk was required to pay maintenance fees of approximately $5,000.00 per year, taxes, insurance and all other expenses of the unit, which totaled approximately $14,000.00 per year. [Stipulated Fact.] Mr. Xepapas agreed to maintain the payments on the first mortgage. [Stipulated Fact.] Following the closing, Mr. Polk paid Mr. Xepapas an additional $60,000.00 on the mortgage, reducing the principal balance to $60,000.00. [Stipulated Fact.] A warranty deed was provided to Mr. Polk for the purchase of the property. [Stipulated Fact.] Neither the deed nor the mortgage were recorded. [Stipulated Fact.] Mr. Polk and his wife used the condominium as their residence. [Stipulated Fact.] Mr. Xepapas action in selling the condominium to Mr. Polk and his wife was a business transaction. Mr. Xepapas. Mr. Xepapas is an architect and developer who designs, builds, and sells property in the Daytona Beach area. [Stipulated Fact.] At the time Mr. Polk purchased the one-half interest in the condominium unit from Mr. Xepapas, Mr. Xepapas was the owner of the condominium building in which the unit was located. [Stipulated Fact.] In addition to being the owner of the condominium building at issue, Mr. Xepapas was the architect, developer and contractor for the condominium and for other condominium buildings in the areas. Mr. Xepapas was trying to sell the condominium units as part of his business because of cash-flow problems. [Stipulated Fact.] The condominium sales market was "soft" and Mr. Xepapas was trying to eliminate the carrying costs for unsold units. Mr. Xepapas sold a total of four condominium units pursuant to an arrangement similar to the arrangement by which he sold the condominium unit to Mr. Polk. Mr. Xepapas had made offers to sell one-half interests in condominium units to various other persons besides Mr. Polk. [Stipulated Fact.] Mr. Xepapas was a sole proprietor. He entered into his relationship with Mr. Polk in his capacity as a sole proprietor. Mr. Xepapas has known Mr. Polk for ten to fifteen years and considers himself a friend of Mr. Polk. [Stipulated Fact.] Mr. Xepapas' Business with Daytona Beach Community College. In 1987, the Board of Trustees of the Daytona Beach Community College decided to expand the College's educational facilities by obtaining a new center in the Deltona area. [Stipulated Fact.] In September, 1987, the Board of Trustees instructed staff to develop a request for proposal for the design and construction of the facility which would be leased to the College. [Stipulated Fact.] Mr. Polk was involved to some extent in the decision as to whether the new center should be purchased or constructed, and whether it should be acquired through a long-term lease/purchase agreement. In response to the advertisement of the request for proposal in September, 1988, Mr. Xepapas submitted a proposal. [Stipulated Fact.] There were a total of nine persons or businesses that responded to the request for proposal for the Deltona facility. Mr. Polk knew that Mr. Xepapas had picked up a bid proposal package and, therefore, believed that Mr. Xepapas would submit a proposal. Mr. Polk appointed the committee which reviewed the proposals. This committee ultimately narrowed the acceptable proposals to two, including Mr. Xepapas, and directed that those two proposers submit final proposals. In January, 1989, Mr. Xepapas, in his capacity as a sole proprietor, was the successful bidder on the contract; however, there is no evidence to indicate that Mr. Polk abused his position in order to ensure this result. [Stipulated Fact.] Mr. Xepapas and Mr. and Mrs. Polk were co-owners of the condominium prior to and at the time that Mr. Xepapas was awarded the Daytona Beach Community College contract. Ultimately, Mr. Xepapas was not able to fulfill his obligations under the contract with Daytona Beach Community College. Although the evidence failed to prove that Mr. Polk asserted any influence over the decision to award the contract to Mr. Xepapas, Mr. Polk was involved to some small degree in the award of the contract to Mr. Xepapas. The evidence failed to prove that Mr. Polk disclosed his co-ownership of the condominium with Mr. Xepapas to the Board of Trustees of the Daytona Beach Community College, that he refused to participate in any way in the bidding process or that he attempted to take the more drastic step of severing his relationship with Mr. Xepapas while the bidding process was going on. In May, 1989, Mr. and Mrs. Polk ultimately quit claim deeded the property to Mr. Xepapas. The evidence failed to prove why. They, therefore, lost their investment in the property. Mr. Polk also resigned as President of Daytona Beach Community College as a result of the allegations concerning his relationship with Mr. Xepapas.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission on Ethics enter a Final Order and Public Report finding that the Respondent, Charles Polk, violated Section 112.313(7), Florida Statutes, as alleged in Complaint No. 89-80. It is further RECOMMENDED that Mr. Polk be subjected to public censure and reprimand. DONE and ENTERED this 13th day of December, 1991, in Tallahassee, Florida. LARRY J. SARTIN 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 13th day of December, 1991. APPENDIX TO RECOMMENDED ORDER The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Advocate's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 1. 2 3-11. 3 13. 4 14-16. 5 16 and 18. 6 4, 12 and 19-20. 7 Hereby accepted. 8 3, 21, 27-28 and 30. The Respondent's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 1-2. 2 13. 3 3, 11 and 14. 4 20. 5 16. 6 4 and 17-18. 7 5 and 8-9. 8 6-7. 9 21. 10 22. 11 24. 12 26 and hereby accepted. See 23, 27 and 30. 13 27 and 30. COPIES FURNISHED: Virlindia Doss Assistant Attorney General Department of Legal Affairs The Capitol, Suite 101 Tallahassee, Florida 32399-1050 David A. Monaco, Esquire Post Office Box 15200 Daytona Beach, Florida 32015 Bonnie J. Williams Executive Director Commission on Ethics The Capitol, Room 2105 Post Office Box 6 Tallahassee, Florida 32302-0006
The Issue Whether Respondent, a dentist, committed the offenses alleged in the second amended administrative complaint and the penalties, if any, that should be imposed.
Findings Of Fact Petitioner, Agency for Health Care Administration (AHCA), is the state agency charged with regulating the practice of dentistry pursuant to Section 20.42, Florida Statutes; Chapter 455, Florida Statutes; and Chapter 466, Florida Statutes. References to Petitioner in this Recommended Order include the Department of Business and Professional Regulation, which regulated the practice of dentistry prior to the creation of AHCA. Respondent is, and has been at all times material hereto, a licensed dentist in the State of Florida, having been issued license number DN 0005929. Respondent's main area of practice is general dentistry. Respondent's last known address is his residence at 1205 Lincoln Road, Miami Beach, Florida 33139. At all times pertinent to this proceeding, Respondent lived at that address with his wife, Lisa Iver. Cocaine is a highly addictive central nervous system stimulant. Benzodiazepines, such as Valium and oxazepam, are central nervous system depressants that have the opposite effect of cocaine on the central nervous system. The usage of these two types of drugs by a cocaine user with medical knowledge may act to balance the visible and medically detectable effects of cocaine on the central nervous system. Since at least 1988, Respondent has been a cocaine addict. Various toxicology tests have reflected that he has taken a form of benzodiazepine following cocaine use. There are several factors that have worked to make Respondent's recovery more difficult. He has experienced severe marital problems, his mother was an alcoholic, and wife is also chemically dependent. The addiction recovery of one spouse directly affects the addiction recovery of the other. If one spouse falls off the wagon, the other spouse is very likely to fall out of recovery. The Physician's Recovery Network (PRN) is an independent program for monitoring certain impaired professionals, including dentists. PRN requires individuals to be evaluated and enter drug treatment, if appropriate, pursuant to a written agreement with the impaired practitioner. The PRN conducts random drug screens and provides for the exchange of information between the treatment programs, PRN, and the Petitioner for the protection of the public. The advocacy of PRN is designed to protect practitioners who have been offered the opportunity to receive care instead of discipline. The PRN program is confidential and not subject to public scrutiny. THE FIRST PRN CONTRACT - 1988 On or about March 12, 1988, Respondent was arrested as a result of a shooting incident involving his wife. Respondent was transported to South Miami Hospital due to his alleged cocaine abuse. Respondent was admitted to South Miami Hospital for substance abuse evaluation and treatment. During his evaluation and treatment at South Miami-Hospital, Respondent claimed a prior sedative overdose which required hospitalization at Mount Sinai Medical Center, allegedly due to his wife spiking his drink. During his evaluation and treatment, Respondent admitted to prior sporadic use of intra-nasal cocaine. Respondent also admitted to previously free basingcocaine, experiencing paranoia, and having other reactions from cocaine. Respondent refused a nasal examination. Detoxification was required and Respondent was diagnosed as possibly being addicted to cocaine. Respondent left South Miami Hospital against medical advice on March 15, 1988, two days after being admitted. Respondent was readmitted to South Miami Hospital on April 11, 1988. As a result of Dr. Iver's arrest in March 1988, and the recommendations of the doctors who evaluated him, the PRN was contacted. Respondent signed a Chemical DependencyContract with the PRN on or about May 23, 1988. On or about June 26, 1990, Respondent signed a Chemical Dependency Contract extending his monitoring for an additional three (3) years. On or about June 26, 1993, Respondent completed his PRN contract. AFTER THE FIRST PRN CONTRACT - SEPTEMBER 1993 On September 21, 1993, the PRN received multiple telephone calls from Ms. Iver stating Respondent was using "free base" cocaine. She later retracted this story and stated that she had spiked his food. On that date, Mrs. Iver filed a domestic violence complaint (#93-33887) against Respondent with the Miami Beach Police Department. An assault rifle, and other gun-related items were taken into custody by the police. The offense report states that the attack by Respondent on his wife was a result of an argument regarding his "narcotic use." The PRN ordered Respondent to submit to a professional evaluation. On September 24, 1993, Respondent was admitted to Mount Sinai Hospital for an inpatient evaluation. Dr. John Eustace was the evaluating physician. Dr. Eustace is board certified by the American Society of Addiction Medicine and is the medical director of the addiction treatment program at Mount Sinai. During that evaluation, Respondent tested positive for oxazepam and cocaine. As a result of the inpatient evaluation, Dr. Eustace formed the opinion that Respondent was in relapse and recommended that Respondent sign a chemical dependency contract with PRN and that he refrain from practicing dentistry until he had entered a recovery life-style. Dr. Eustace used the term "relapse" without regard to whether the ingestion was voluntary or involuntary. Dr. Eustace was of the opinion that Respondent did not have an adequate recovery program in September 1993 because he was no longer involved in the PRN monitoring program, he was not attending or actively involved in the twelve step program for recovering addicts. During the evaluation, Respondent admitted responsibility for having an inadequate recovery program. Dr. Eustace's diagnosis on Respondent's discharge were as follows: Chemical dependency, inactive by history. Chemical dependency relapse behaviors, active. Obsessive compulsive traits. Adult child of alcoholic mother. Co-dependent behavior. Dr. Eustace's specific recommendations for Respondent pertinent to this proceeding, made at a time Respondent and his wife were contemplating divorce and before she entered a treatment program, were as follows: Reinstitute a program of total abstinence. Enter into a second PRN contract with the length of time to be determined by the PRN staff. Recruit a home group of Alcoholics Anonymous (AA) or Narcotics Anonymous (NA). Recruit a sponsor for the purpose of working the twelve steps. Attend ninety meetings of AA or NA within the next ninety days. Detach from his office practice until his drug screen had cleared and he had entered a life- style of recovery. Detach emotionally and physically form his wife. Turn all further matters concerning his divorce over to his attorney. Obtain a personal physician to avoid self- medication. Begin a professional relationship with a therapist knowledgeable about the adult child of an alcoholic syndrome, knowledgeable about the disease of addiction, and knowledgeable about co-dependency treatment. PRN, based largely on Dr. Eustace's evaluation, recommended that Respondent enter into a new contract for monitoring and to continue treatment. Respondent refused to sign a new contract. On or about December 16, 1993, PRN forwarded a letter of complaint to Petitioner. Dr. Roger Goetz, Director of PRN, noted that Respondent had a urinalysis which contained metabolites of cocaine and benzodiazepines and that Respondent refused to voluntarily enter PRN. No further action was taken against the Respondent at that time. JULY AND AUGUST 1994 On or about July 7, 1994, PRN informed Petitioner it had information from a confidential informant that Respondent was free basing cocaine. The allegations stated that Respondent appeared to be "coked" up and failed to show up at his dental office. Dr. Goetz, Director of PRN, believed that intervention might be possible through a Miami affiliate. On July 7, 1994, Dr. Jules Trop, a doctor with the Miami affiliate of PRN, evaluated Respondent. Respondent denied any drug use but refused to submit a urine sample for drug testing. Dr. Trop observed Respondent's appearance to be disheveled and his speech pattern strained. Dr. Trop expressed the opinion that Respondent was in need of professional help. On or about July 26, 1994, the Agency was informed by PRN that Respondent refused intervention by PRN. As a result of the foregoing, an Order Compelling Physical and Mental Examination was ordered by the Agency on August 15, 1994. The evaluation pursuant to the Order Compelling Physical and Mental Examination was conducted a week after the Order was served upon Respondent. On August 23, 1994, Dr. Hans Ueli Steiner, a psychiatrist, evaluated Respondent pursuant to the Order Compelling Physical and Mental Examination. Dr. Steiner formed the opinion that Respondent presented characteristics of an addict in denial and was a potential risk to his patients. Dr. Steiner believed that objective monitoring was the only reliable way to ascertain the continued sobriety of Respondent. Respondent admitted to Dr. Steiner that he had used drugs in the past. He further admitted that he was an addict. JULY AND AUGUST 1995 On July 28, 1995, police officers from the City of Miami Beach Police Department were called to the Iver residence in response to a 911 call. Upon arrival the officers observed drug paraphernalia commonly associated with free basing cocaine in the bedroom shared by Dr. and Mrs. Iver. Respondent had been free basing cocaine prior to the arrival of the police. The officers confiscated the paraphernalia, but took no further action against Respondent that evening. On Wednesday, August 2, 1995, at approximately 8:38 p.m., police officers with the City of Miami Beach Police Department were dispatched to the Iver residence because Mrs. Lisa Iver called 911 stating that her husband Robert Iver had overdosed on cocaine. The 911 tape reveals a voice in the background making a loud verbal noise. According to the incident report prepared by the Miami Beach Police Department, Ms. Iver told the police officers who came to the Iver residence in response to the 911 call that the Respondent had gone crazy and was out of control due to free-basing cocaine. Accompanied by professionals from the City of Miami Beach Fire and Rescue Unit, the police officers entered the Iver residence and found Respondent naked and covered in blood. Additionally, the police discovered broken glass along with a cocaine pipe, propane torch, a glass beaker, and a can that had been altered to accommodate the smoking of crack cocaine. The cocaine pipe, propane torch, and glass beaker are items or devices commonly associated with free basing cocaine and are similar to the items removed from the house on July 28, 1995. Respondent indicated to the police officers at the scene that he had been free-basing cocaine and stated that he had taken a "hit" off the pipe and then thought he was being attacked by three men. According to the Miami Beach Police Department incident report, Mrs. Iver stated that Respondent had been smoking a lot of cocaine and then requested that she sodomize him with a sexual apparatus. Upon refusing, he began punching her in the chest and kicking her. He also pulled her across the floor by her hair. Ms. Iver had physical injuries that were consistent with the reported abuse by Respondent. Respondent was arrested for battery as a result of this incident. During this police investigation, Mrs. Iver was wearing a bandage on her chin and had two (2) broken teeth. Mrs. Iver stated that the observed injuries were a result of her husband, Respondent, punching her two days earlier, on Monday, July 31, 1995 after an argument regarding Respondent's drug abuse. A police photographer was called to the scene by Officer Hochstadt. Color photographs of Dr. and Mrs. Iver and of the scene were taken by the crime scene technician. The photographer's report listed the investigation as a possible attempted suicide. The cocaine pipe, propane torch, and glass beaker were taken into custody by the police. Respondent was transported by the Fire and Rescue Unit to Jackson Memorial Hospital emergency room for treatment. The States Attorney's Office charged Respondent with two counts of misdemeanor battery and one count of misdemeanor possession of drug paraphernalia based on the events of August 2, 1995. On or about October 17, 1995, Robert Iver was found guilty of one count of use, possession, manufacture, delivery, or advertisement of drug paraphernalia, and one count battery, after pleading nolo contendre to each charge. Adjudication was withheld and Iver was sentenced to twelve months probation for each charge to run concurrently. Among the terms of his probation was the requirement that he participate in a PRN approved recovery program. The aforementioned crimes relate to the practice of dentistry or dental hygiene. 1/ THE EMERGENCY SUSPENSION ORDER - SEPTEMBER 15, 1995 On September 13, 1995, after reviewing the substance abuse history of Respondent and the foregoing police incident reports relating to drug usage in the middle of the workweek, Dr. Roger Goetz of PRN opined that Respondent is impaired and that his inability to practice dentistry poses an immediate and serious danger to the public health, safety, and welfare. This opinion resulted in an Emergency Suspension Order being filed on September 15, 1995. Respondent has been prohibited from practicing dentistry since that date based on that order. MISCELLANEOUS FACTS BASED, IN PART, ON THE STIPULATION Respondent, by and through counsel, on approximately February 15, 1994, proffered to the Agency that Respondent had submitted himself to numerous drug screens and all were negative for any controlled or illegal substances. No actual laboratory reports were produced. From approximately January 1994 to June 1994, the Petitioner actively cooperated with Respondent's counsel to negotiate a satisfactory resolution to the complaint. Respondent has, at times, denied his addiction to cocaine after numerous past positive tests, treatment and counseling. Respondent's enthusiasm about prior recovery attempts tailed off as he became more involved with his dental practice. Lisa Iver testified that she and her husband, Robert Iver, Respondent, were getting along better since entering the Mount Sinai program in September 1995, because they were currently both clean and off drugs. THE SECOND PRN CONTRACT - OCTOBER 20, 1995 On September 22, 1995, Respondent went to Dr. Eustace for the purpose of establishing a program of personal recovery, marriage and family recovery, and reentry into the PRN. Mrs. Iver also entered a recovery program at Mt. Sinai. On October 20, 1995, Respondent signed a new contract with the PRN. While Respondent asserts that he "voluntarily" entered into this contract, that characterization is inaccurate since he entered this contract after the entry of the ESO. The order of probation entered in the criminal proceeding, also signed October 20, 1995, required his participation in such a program. By signing this PRN contract, Respondent agreed that he would have random unannounced urine or blood screens, that he would abstain from using all mood altering substances, medications, alcohol and others, that he would be monitored by a physician, that he would notify the PRN if he changed his address or employment; that he was to attend a self help group such as AA or NA seven times per week; that he would receive continuing care in group therapy one time per week; that he would attend a twelve step program for recovering professionals; that he would notify the PRN in the event of a relapse; that he would agree to withdraw from practice at the request of the PRN if any problem developed; and that his wife would also enter a recovery program. In his present capacity, Dr. Eustace provides evaluations for the PRN. In this respect he sees his role as that of a servant for the PRN. He renders reports and recommendations to the PRN. The PRN relies with confidence upon Dr. Eustace's opinions and reports. Since October 20, 1995, the date Respondent signed a PRN contract, Dr. Eustace has been his monitoring physician within the program. While in the program, Respondent has undergone psychological testing, personal interviews and has otherwise complied with the terms of his PRN contract. Dr. Eustace found no evidence of any chemical relapse, Respondent's behavior is one of compliance with the PRN and he is participating in a monitored group and in a peer professional group. Both Dr. and Mrs. Iver are progressing satisfactorily. It is important to the recovery life-style of Respondent that his wife continue progressing satisfactorily in her recovery program. One important difference in Respondent's life-style prior to his signing the October 20, 1995, PRN contract and subsequent thereto is that his wife is seeking professional help for her addiction. On October 31, 1995, Dr. Eustace wrote to Dr. Goetz advising him that it was his opinion that Respondent is adhering to a recovery life-style, is in full compliance with PRN directives, is not a danger to the public or himself and that he can safely practice dentistry. Dr. Goetz acquiesced in Dr. Eustace's opinion in testimony before the Board of Dentistry in November 1995. Both Dr. Eustace and Dr. Goetz testified that in their opinions, Respondent can practice dentistry with safety and without danger to the public health, safety or welfare as long as he is being monitored by the PRN. Dr. Goetz further testified that there has been a "decent" period of time over which to monitor Respondent since his emergency suspension in September. Dr. Hans Ueli Steiner, who had evaluated Respondent in August 1994, expressed the opinion that Respondent was beyond hope. Dr. Steiner based this opinion on his one and one half hour conversation with Respondent in August 1994, on the testimony presented at the formal hearing, and on his observations of Respondent at a deposition and on the first day of the formal hearing. He did not review any medical records as he thought that they were not important. It was Dr. Steiner's opinion that Respondent was not safe to practice dentistry based primarily on the fact that Respondent had relapsed in 1993 and 1994 and therefore the PRN program was unsatisfactory for him. Dr. Steiner also questions Respondent's honesty and his commitment to recovery. Dr. Steiner disagrees with Dr. Goetz and Dr. Eustace and states that they are emotionally involved with his recovery. This emotional involvement, in Dr. Steiner's opinion, prevents them from giving an objective medical opinion. However, Dr. Eustace clearly stated that all of his opinions related to Respondent were based upon the professional relationship and were medical opinions. Dr. Goetz stated that he had never met Respondent until the Board's November 1995 meeting and has relied, in most part, on the opinions expressed by Dr. Eustace. There was testimony as to the dangers of a recovering addict. An addict may be sober one day and under the influence of an addictive substance the next. It is possible that even after signing a PRN contract and being monitored, the Respondent may relapse. It is also possible that if the Respondent falls off the wagon or falls out of recovery, he could harm a patient before PRN is notified and appropriate action is taken. It is also true that no one, including PRN, Dr. Goetz, and Dr. Eustace, can guarantee that the Respondent will not use cocaine, and no one can guarantee that Respondent is able to practice dentistry with reasonable skill and safety. The greater weight of the evidence established, however, that the PRN was developed to assist recovering addicts, that the program is as good as any of its type, and that the program works as long as the impaired practitioner is adhering to the terms of the contract. The testimony of Dr. Eustace and of Dr. Goetz on January 10, 1996, that Respondent is presently safe to practice dentistry and that he poses no danger to the public's health, safety or welfare is more persuasive than that of Dr. Steiner that Respondent is beyond help. This conclusion is reached, in part, because of Dr. Eustace's expertise, his extensive work with the Respondent, and because Respondent was able to practice without incident while being monitored by the PRN. It is also concluded that Dr. Eustace is in a better position than Dr. Steiner to evaluate Respondent's honesty and his commitment to recovery. The PRN program worked for Respondent in the past as he was able to safely practice between 1988 and 1993 when he was being monitored pursuant to a PRN contract.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered which finds that Respondent violated the provisions of Section 466.028(1)(c) and (s), Florida Statutes, which imposes an administrative fine in the amount of $6,000.00, which suspends his license to practice dentistry until September 14, 1996, which requires the PRN to attest at its Board meeting in August 1996 that Respondent has adhered to the terms of his PRN contract and that he remains capable of safely practicing dentistry, and which places his licensure on probation for as long as he practices dentistry in Florida. It is further recommended that the terms of his suspension and the terms of his probation require that he maintain a contract with the PRN at all times and that he strictly adhere to all terms of the PRN contract. It is further recommended that Respondent be reprimanded for these two offenses. DONE AND ENTERED this 2nd day of February 1996 in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON, 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 1996.
The Issue Whether the Respondent, Al Paruas (Respondent), as a member of the town council for the Town of Golden Beach, Florida, improperly used his influence, as a public officer, to have his wife’s parking ticket voided in violation of Section 112.313(6), Florida Statutes (2002).
Findings Of Fact At all times material to the allegations of this case, the Respondent was an elected member of the Town council. As such, the Respondent is subject to the mandates of the Code of Ethics for public officers and employees found in Chapter 112, Florida Statutes (2002). On February 10, 2000, at approximately 5:25 p.m. within the Town of Golden Beach, Florida, Dagmarra Paruas (the Respondent’s wife) illegally parked her motor vehicle in a handicapped zone at the public beach pavilion. Mrs. Paruas exited her vehicle for a short amount of time (to see about some tables at the pavilion) and when she returned to the car, Officer Santinello was at her vehicle preparing a citation. Had Mrs. Paruas been respectful, remorseful or apologetic at the time, Officer Santinello would have written only a citation warning as it is his policy to warn persons before writing a citation. Instead, Mrs. Paruas was disrespectful toward the officer. Based upon Mrs. Paruas’ parking violation and the disrespectful manner in which she exited the beach parking area, Officer Santinello decided he would let the citation stand. Factors contributing to the officer’s decision were: the aggressive backing out of the parking space causing Officer Santinello to move quickly out of Mrs. Paruas’ vehicle’s path; Mrs. Paruas’ demand to speak to Hernan (Hernan Cardeno, the Town’s police chief); and the way Mrs. Paruas threw the ticket back at him after he attempted to hand the citation to her. Mrs. Paruas is a member of the Town’s beach committee. At or near the time of the citation, Mrs. Paruas was checking on arrangements at the beach pavilion for the beach committee. She did not believe the citation was fair because she was at the pavilion for a short time and was there in her capacity as a Town beach committee member. After Mrs. Paruas advised the Respondent that she had received a citation for parking at the pavilion, the Respondent telephoned the Town’s chief of police. During the conversation with the chief (Hernan Cardeno) the Respondent stated he was unhappy with the way the police department was being run and was unhappy his wife had received a parking citation. Mr. Paruas did not understand why his wife had received the citation. At a subsequent meeting with the police chief at the police department, the Respondent asked when the Town started giving councilmen’s wives tickets. The Respondent again reminded the police chief that he was unhappy with the police department. At the time, the Respondent was serving as vice mayor for the Town. The Respondent was not persuaded by the information provided to him regarding the ticket. He continued to complain regarding the citation to the police chief and to Officer Santinello. At some point during the meeting at the police office, Officer Santinello was told it would be in his best interests to take back the citation. When Officer Santinello asked whether his job was being threatened, he advised the Respondent and the police chief that he would contact the police union. The Respondent told Officer Santinello to take back the ticket and apologize to his wife. A short while later (after the Respondent had left the police office), the police chief suggested to Officer Santinello that he should void Mrs. Paruas’ ticket. The next day, Officer Santinello voided the citation by preparing a County Court Cancellation Form for the ticket. Mrs. Paruas was not required to pay the citation or appear in court or have any adverse entry on her driving record. Officer Santinello voided the citation because he was afraid of losing his job. He did not want additional conflict over the matter. Officer Santinello did not want to get on the Respondent’s bad side, given his position in the Town. Officer Santinello would like the entire incident to be forgotten. Officer Santinello expressed regret over the incident as it has potentially damaged his employment future with the Town. Mrs. Paruas and the Respondent benefited from the cancellation of the citation. Had the Respondent not challenged Officer Santinello as he did, and had he not been a member of the Town council, the citation would not have been voided. Neither Mrs. Paruas or the Respondent took responsibility for the fact that she had, in fact, parked illegally at the beach pavilion. Mrs. Paruas is not entitled to park in a handicapped zone. Members of the Town council and their spouses are not entitled to park illegally as an extra benefit of their public roles within the Town.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Ethics Commission enter a Final Order and Public Report concluding that the Respondent, Al Paruas, violated Section 112.313(6), Florida Statutes (2002). The Respondent should be subject to a public reprimand and the imposition of a civil penalty not to exceed $10,000. S DONE AND ENTERED this 29th day of July, 2005, in Tallahassee, Leon County, Florida. ___________________________________ J. D. Parrish Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of July, 2005. COPIES FURNISHED: Kaye Starling, Agency Clerk Commission on Ethics 3600 Macclay Boulevard, South, Suite 201 Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Philip C. Claypool, General Counsel Commission on Ethics 3600 Macclay Boulevard, South, Suite 201 Post Office Drawer 15709 Tallahassee, Florida 32314-5709 James H. Peterson, III, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 James J. Birch, Esquire Law Office of Stuart R. Michelson 200 Southeast 13th Street Fort Lauderdale, Florida 33316
The Issue The threshold issue in this case is whether Petitioner's claim is time-barred for failure to timely file an initial charge of discrimination with the Florida Commission on Human Relations. If Petitioner's claim were timely, then the question would be whether Respondent unlawfully discriminated against Petitioner on the basis of her age in violation of the Florida Civil Rights Act.
Findings Of Fact From April 4, 1998 until May 22, 2003, Petitioner Carol Manzaro ("Manzaro") worked for Respondent Department of Children and Family Services ("DCF") as an Inspector Specialist I (essentially, an investigator) in the Office of the Inspector General ("OIG"). Manzaro's duty station was at a satellite office located in Riviera Beach, Florida. Her supervisor was Richard Scholtz, who was based in the OIG's Fort Lauderdale field office. In October 2002, Sheryl Steckler became DCF's Inspector General. Shortly after assuming this position, Ms. Steckler hired Tom Busch as Chief of Investigations. Mr. Busch was responsible for, among other things, overseeing the OIG's field office in Fort Lauderdale and the satellite office in Riviera Beach. Ms. Steckler and Mr. Busch worked at offices in Tallahassee. In late December 2002, Mr. Busch called Manzaro and reprimanded her for sending an e-mail that Ms. Steckler felt was inappropriate. Manzaro believes that the reprimand was unwarranted and demonstrates that she was being singled out (or set up), but the evidence regarding this particular incident is much too sketchy for the undersigned to make such a finding. In January 2003, Manzaro and Louis Consagra, another inspector who worked in the Riviera Beach satellite office, were directed to attend a meeting in Fort Lauderdale, which they did. After they arrived, their immediate supervisor Mr. Scholz, recently back from a trip to Tallahassee, told the two that Mr. Busch had said to him, "Sometimes when you get older, you miss a step." Mr. Scholz further related that Mr. Busch had announced that "changes w[ould] be made." Mr. Scholz warned them that "they are looking to fire people," and that he (Scholz) would fire people to protect himself if need be. The three (Manzaro, Consagra, and Scholz) then met with Mr. Busch, who had traveled to Fort Lauderdale to see them. Mr. Busch informed them that he had just fired an inspector who worked in Fort Lauderdale, and that Ms. Steckler planned to close the Riviera Beach satellite office by June or July of 2003, at which time Manzaro and Mr. Consagra would be reassigned to the Fort Lauderdale field office. Manzaro, who was then 55 years old, decided at that moment it was time to start looking for a new job. Immediately upon returning to Riviera Beach, she began making phone calls to that end. Manzaro claims that for some weeks thereafter she received "haranguing" phone calls from Mr. Busch, who deprecated her abilities and was rude and patronizing. The undersigned credits Manzaro's testimony in this regard (which was not rebutted), but deems it insufficient to support an inference that Mr. Busch was critical of Manzaro because she was over the age of 40.1 Mr. Busch's telephone calls caused Manzaro to see (in her words) the "handwriting on the wall"; by this time, she "knew" her employment would be terminated. In March 2003, Manzaro's co-worker, Mr. Consagra, was fired. Around this time——it is not clear when——Manzaro was given a below-average performance evaluation.2 Not long after that, by letter dated April 18, 2003, Manzaro was notified of her appointment to the job of Economic Self Sufficiency Specialist I with DCF's District Nine, a position which Manzaro had sought.3 By accepting this appointment, she could continue working for DCF in Palm Beach County, albeit at a lower salary than she was earning as an inspector for the OIG. She decided to take the job. Manzaro resigned her position with the OIG via a Memorandum to Ms. Steckler dated April 18, 2003. In pertinent part, Manzaro wrote: I would first like to thank you for the opportunity to serve the Department and Office of Inspector General and for the opportunity to find other employment within the Department. At this time, familial and financial responsibilities preclude my traveling to the proposed new duty location in Ft. Lauderdale. As you will see from the attached letter, I have accepted a position with Economic Self Sufficiency effective May 23, 2003. With your permission, I would like to complete writing the three cases I presently have open and commence annual leave on May 5 through May 22, 2003. On or about May 27, 2003, Manzaro started working at her new job for DCF. On July 12, 2003, Manzaro received some paperwork that had been sent to her accidentally, which revealed that her replacement in the OIG was younger than she, and also was being paid more than she had earned as an investigator. Manzaro claims that it was then she discovered that she had been the victim of age discrimination, absent which she would not have been "involuntarily demoted" to the position of Economic Self Sufficiency Specialist I. Ultimate Factual Determinations Manzaro's theory is that she was forced to resign her position in the OIG by the threat of termination, which caused her to seek and ultimately accept other, less remunerative employment with DCF. Manzaro describes the net effect of her job-switch as an "involuntary demotion" and charges that DCF "demoted" her because she was over the age of 40. Manzaro testified unequivocally, and the undersigned has found, that during a meeting in Fort Lauderdale in January 2003 (the one where Mr. Busch had informed Manzaro and her colleagues that the Riviera Beach satellite office would be closed), Manzaro had made up her mind to look for another job. This means that the untoward pressure allegedly used by DCF to force Manzaro's resignation had achieved its purpose by January 31, 2003, at the latest.4 Therefore, if the alleged discrimination against Manzaro were a discrete act——which is, at least implicitly, how Manzaro views the matter——then the discrete act apparently occurred on or before January 31, 2003.5 Assuming, for argument's sake, that DCF did in fact force Manzaro to decide, in January 2003, to resign her position as an inspector, then the pressure that DCF exerted on Manzaro consisted of: (a) a verbal reprimand regarding an e-mail; (b) Mr. Busch's comment (reported via Mr. Scholz) that age sometimes causes one to "miss a step"; (c) Mr. Scholz's warning that people would be fired; (d) the firing of a Fort Lauderdale-based inspector; and (e) the announcement that the Riviera Beach satellite office would be closed. Assuming for argument's sake that the foregoing circumstances amounted to discriminatory coercion, the undersigned determines that Manzaro should have known, when she succumbed to the threat of termination and involuntarily decided to resign, that she might possibly be a victim of age discrimination.6 The undersigned comes to this conclusion primarily because Mr. Busch's comment about older people sometimes missing a step is the strongest (if not the only) hint of age discrimination in this record.7 The significance of the previous finding is that, if the discrimination consisted of the discrete act of demotion (as Manzaro urges), then the 365-day period within which a charge of discrimination must be filed with the FCHR began to run on Manzaro's claim no later than January 31, 2003, by which time she was on notice of the allegedly discriminatory act.8 Because Manzaro's charge of discrimination was not filed with the FCHR until June 10, 2004, it is clear that, as a claim involving a discrete act of discrimination, Manzaro's charge was untimely. Putting aside the question whether Manzaro's case is time-barred, it is further determined that, in any event, Manzaro did not suffer an "adverse employment action." The undersigned is not persuaded that Manzaro was forced to take another job, as she now contends. Rather, the greater weight of the evidence establishes that Manzaro elected voluntarily to seek other employment after learning that her duty station was being moved to Fort Lauderdale and developing concerns about her job security in light of new management's efforts to weed out employees it viewed as under-performers. Ultimately, it is determined that DCF did not discriminate unlawfully against Manzaro on the basis of her age.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the FCHR enter a final order dismissing Manzaro's Petition for Relief as time-barred, or alternatively finding DCF not liable for age discrimination. DONE AND ENTERED this 13th day of September, 2005, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of September, 2005.
The Issue The issue is whether Respondent is guilty of violating the Florida Civil Rights Act of 1992, as amended, as alleged in the Petition for Relief.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: This proceeding involves an age discrimination complaint filed with the Florida Commission on Human Relations (Commission) by Petitioner, Michael A. Demchak. The complaint alleges that Respondent, City of Ormond Beach (City), unlawfully refused to hire him on account of his age. In a preliminary determination made on June 11, 2002, the Commission's Executive Director concluded that there was no reasonable cause to believe that an unlawful employment practice had occurred. Mr. Demchak is a white male born on July 16, 1935. He worked as a police officer with the City of New York for twenty years (1957-1977); as a counselor and employment developer (1985-1986) and supervisor (1993-1997) with Daytona Beach Community College; as an investigator with the State Attorney's Office in Daytona Beach for an undisclosed period of time; and as a substitute teacher with the Volusia County School District (1988 and 1989). In addition, Mr. Demchak served for two years in the United States Army, having received an honorable discharge in 1956. He has also been a licensed real estate salesperson in the State of Florida for over twenty-five years, and has worked in that profession, at least part time, for many years. For the last four years, Mr. Demchak has been employed by Prudential Real Estate in Daytona Beach selling real estate. His specific income from that job since filing his complaint was not disclosed, but he described it as being not "very good" and only a "few thousand dollars." He received a B.A. in Management from Adelphi University in 1976. In 2001, the City reorganized its Code Enforcement function and created in lieu thereof a new Community Improvement Division (Division). The purpose of the change was to give the new department a "kinder, gentler name for the public," to focus less on the writing of citations, and to provide instead a more customer-oriented service for its citizens. Prior to the change, the City had emphasized enforcement activities rather than assisting the citizens in complying with code regulations. Joanne Naumann, who had some thirty years' experience in code enforcement, mainly in Orange County, was named its manager. At the same time, the City created at least one position in the new Division, a Neighborhood Improvement Officer. In late January or early February 2001, the vacant position was advertised in the Daytona Beach News Journal. According to the advertisement, the position's primary duties included "inspecting properties and developments for compliance with Land Development Code, City Ordinances, and State Statutes." Minimum qualifications included a Bachelor's degree in Public Administration or related field. The City also desired someone with "[s]ome experience in interpreting regulations related to zoning and other codes, [and] [k]nowledge of state and local environmental protection standards and regulations." Having read the foregoing newspaper advertisement, by application dated February 12, 2001, Mr. Demchak applied for the new position with the City. He was then sixty-five years of age and was one of around twelve applicants for the job. All applications were forwarded to Ms. Naumann for a preliminary review. Eight of the applicants, including Mr. Demchak, were selected by Ms. Naumann for a 30-minute initial interview, although one of the eight declined to be interviewed. There was no "favorite" candidate for the job, and the City did not have a particular candidate in mind when the applications were filed. Ms. Naumann and the City's director of the Human Resources Department, Lorenda Volker, conducted these interviews, although Ms. Naumann made the ultimate recommendation for hiring. Neither interviewer knew any of the candidates personally. Each of the seven candidates was asked the same questions, and the two interviewers recorded the candidates' answers on an Interview Questionnaire. The interviewers' impressions of the candidates, however, were not recorded on that document. This same process was used by the City for filling virtually all of its job vacancies. Both Ms. Naumann and Ms. Volker independently reached the same conclusions regarding Petitioner: that he was "brash"; that he was "arrogant"; that he was "authoritative"; that he was "evasive" in his answers; and that he had a "know it all" attitude. Both interviewers were also unhappy with what they perceived to be an unsolicited sexist comment made by Mr. Demchak at the end of the interview. While Ms. Naumann agreed that Mr. Demchak had extensive work experience listed on his application (which was why he was selected for an interview), she desired someone who could "reach out to the community" rather than taking a "heavy-handed" position with the citizens. This was consistent with the City's desire to create a more customer-oriented department rather than an authoritarian department which existed prior to the organizational change. Indeed, without good customer skills, an applicant would be rejected, and neither interviewer perceived Mr. Demchak as having those skills. After the initial round of interviews, the interviewers narrowed the field to four candidates who were invited for a second round of interviews by Ms. Naumann alone. For the reasons described in Finding of Fact 8, Petitioner was not asked to participate in this round of interviews. The four candidates were then ranked, based on the outcome of their respective interviews. After the highest ranked candidate accepted another position, and the second ranked candidate could not pass a background check, the position was offered to, and accepted by, the third ranked candidate, Joshua A. Wall, then a 28-year-old white male. The age of the other three ranked candidates is not of record. Mr. Wall graduated from Florida State University in 1996 with a degree in criminology. After graduation and until he accepted this position, he was employed at a golf club in the City as a proshop assistant and sales clerk. He was hired because of his good demeanor, his outstanding customer service skills, and his ability to coordinate activities, all of which were required for the position of Neighborhood Improvement Officer. In addition, he possessed a degree in criminology. Since being hired, Mr. Wall has done an "excellent" job for the City. In choosing Mr. Wall, the City did not consider age as a criterion, and it did not reject Petitioner's application for that or any other discriminatory reason. In fact, the City employment records show that in the same year that Petitioner applied for the job, the City hired at least eleven persons who were fifty years of age or older, and almost half of its new employees that year were more than forty years of age. Although the City later advertised a second Neighborhood Improvement Officer vacancy, Mr. Demchak did not apply for that position. A person "approximately 50 years old" was eventually selected for the job. Petitioner contended at hearing that even though the application did not ask for the candidate's age, the interviewers obviously knew his age by merely examining the documents attached to his application, and that they then used his age as a basis for his rejection. The evidence shows otherwise, however. He also contended that the interviewers were "disinterested" during the interview, that they were biased in their selection process, and that they concocted their negative impressions of him only after he filed his discrimination complaint. There is no credible evidence to support these contentions. Mr. Demchak further denied that he made a sexist comment during the interview, and he contended that his comments were misconstrued. However, both interviewers were offended by the statement. Finally, Petitioner criticized the impartiality of the Commission investigator who conducted the investigation of his complaint prior to its referral to the Division of Administrative Hearings. Even if this were true, however, the Commission's investigative report has not been considered in the resolution of this case.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order denying the Petition for Relief and finding that no unlawful employment practice has occurred. DONE AND ENTERED this 4th day of March, 2003, in Tallahassee, Leon County, Florida. ___________________________________ DONALD R. ALEXANDER 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 4th day of March, 2003.
