The Issue The issues are whether Respondent, Baker Distributing Co., LLC ("Baker") committed unlawful employment practices contrary to section 760.10, Florida Statutes (2012),1/ by discriminating against Petitioner based on his race or national origin and/or whether Baker retaliated against Petitioner for complaining of discriminatory conduct by discharging Petitioner from his employment.
Findings Of Fact Baker is an employer as that term is defined in subsection 760.02(7), Florida Statutes. Baker markets and distributes air-conditioning, refrigeration and heating equipment, as well as parts and supplies for that equipment. Baker has put in place written policies and procedures that prohibit, among other things, discrimination or harassment on the basis of race, national origin, or any other categories of persons protected by state or federal anti-discrimination laws. At the time of his hiring, Petitioner received a copy of Baker's employee handbook setting forth Baker's anti- discrimination and anti-retaliation policies. Petitioner, who identifies himself as mixed race, Hispanic and African-American, was hired by Baker on August 2, 2010, as a temporary warehouse employee at its Jacksonville distribution facility. Because of the quality of his work, Petitioner was soon thereafter retained as a full-time Baker employee by Don Crenshaw, the warehouse manager of the Jacksonville facility. Petitioner and Mr. Crenshaw became friendly enough to go to lunch together on at least a dozen occasions. Mr. Crenshaw also helped Petitioner with some personal matters, including helping bail Petitioner out of jail on one occasion and taking him to orthodontist appointments. The parties agree that Petitioner's relationship with Mr. Crenshaw and with Baker in general soured in August 2011. Petitioner claims that his problems began when Mr. Crenshaw overheard him speaking Spanish with a fellow employee. Petitioner testified that Mr. Crenshaw made fun of him after learning of his Hispanic heritage and treated him differently than when he believed Petitioner was white. Petitioner testified that he complained to Mr. Crenshaw about making fun of his heritage. Petitioner stated that he was subjected to a "random" drug test two days later. He then noticed that hours were being shaved from his paychecks. Within two months, Petitioner had been fired. Petitioner offered no corroborating evidence to support any of these allegations. Mr. Crenshaw categorically denied Petitioner's allegations and denied that Petitioner had ever complained about any discriminatory comments or actions. Mr. Crenshaw's denials are credited. Mr. Crenshaw stated that Petitioner's attitude changed after management declined his written demand for more money in August 2011. Mr. Crenshaw testified that Petitioner had been a good worker when he started at Baker, but that his attitude changed after his salary demand was rejected. Mr. Crenshaw noted that Petitioner had become hostile towards him, "slamming my door open in the office wanting to talk about things." Mr. Crenshaw denied Petitioner's claim that his hours were being shaved. Mr. Crenshaw testified that another employee, Robert Robinson, had complained that his time card was two hours short. Mr. Crenshaw pulled the records and found that Baker's administrator had made a mistake on Mr. Robinson's time. Mr. Robinson was given credit for the missing two hours. This incident apparently gave Petitioner the idea that Baker was shaving hours on his time card. Mr. Crenshaw investigated, and made copies of all the time records for Petitioner, but could find no errors on Petitioner's time cards. On October 20, 2011, two Baker employees reported to Mr. Crenshaw that Petitioner had changed the screen saver on a warehouse computer to read, "Baker. Sucks. Balls. Don-Key-Kong Balls." The employees told Mr. Crenshaw that they found the language offensive. Mr. Crenshaw reported the incident to Angelia Hiers, Baker's vice president of human resources, and Colin Dees, Baker's director of distribution. Mr. Crenshaw, Ms. Hiers, and Mr. Dees met with Petitioner to discuss the incident. At the meeting, Petitioner did not deny that he was the author of the offensive language on the warehouse computer. At the hearing, Petitioner admitted that he changed the message on the warehouse computer, but testified that he intended to write the message, "Baker blows away the competition." He stated that the character limit on the screensaver only allowed him to write, "Baker blows away the." Mr. Crenshaw testified that after the employees complained to him, he went down to the warehouse and saw the offending language for himself. The language was as reported by the two employees. Petitioner theorized that these employees must have changed his innocuous message of support for the company to the offensive language after Petitioner left the area. He could offer no evidence to confirm his theory. Petitioner's version of these events is not credible on its face, and is rendered more unlikely by the fact that he did not relate his version during the meeting with Mr. Crenshaw, Ms. Hiers, and Mr. Dees, when doing so might have saved his job. As the head of human resources, Ms. Hiers had the responsibility for Petitioner's discipline. She decided, with the agreement of Mr. Crenshaw and Mr. Dees, that Petitioner's actions constituted a violation of Baker's computer access policy. Baker's computer access policy provided, in relevant part: Any employee that allows or uses computers at Baker locations for purposes not directly attributed to business is subject to disciplinary action that may include dismissal. Non-business uses include, but are not limited to, playing games, Internet access for other than business reasons, and any display of offensive or pornographic information that may be in violation of the law. Ms. Hiers concluded that Petitioner's use of the warehouse computer was in violation of the quoted policy. Because the warehouse computer was available to and could be seen by any employee working on the warehouse floor, Ms. Hiers also concluded that Petitioner's screensaver message also constituted harassment. Based on Petitioner's actions, Ms. Hiers decided to terminate Petitioner's employment on October 20, 2011, the same day that the incident occurred. Petitioner never complained of discriminatory treatment or harassment to any supervisor at Baker. On this point, Mr. Crenshaw's testimony is credited and Petitioner's testimony is found not to be credible. Petitioner offered no credible evidence disputing the legitimate, non-discriminatory reasons given by Baker for his termination. Petitioner offered no credible evidence that Baker's stated reasons for his termination were a pretext for race discrimination or national origin discrimination. Evidence presented at the hearing indicated that Baker enforces its harassment policies without reference to an employee's race or national origin. Baker discharged a white male employee due to a complaint of harassment filed by Petitioner. Petitioner alleged that the employee had touched him while reaching for a radio on a table. Ms. Hiers investigated the incident and terminated the white male employee. Petitioner offered no credible evidence that Baker discriminated against him because of his race or national origin in violation of section 760.10, Florida Statutes. Petitioner offered no credible evidence that his dismissal from employment was in retaliation for any complaint of discriminatory employment practices that he made while an employee of Baker.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding that Baker Distributing Co., LLC, did not commit any unlawful employment practices and dismissing the Petition for Relief filed in this case. DONE AND ENTERED this 24th day of May, 2013, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of May, 2013.
Findings Of Fact By their petition, as further defined at hearing, petitioners attack the provisions of Baker Correctional Institution Operating Procedure No. 78-G-13 relating to the requirement that all inmates be clean-shaven; several alleged unwritten enforcement procedures such as tear-gassing or the withholding of food when inmates violate the clean-shaven requirement; and Department Rule 33- 3.02(6), Florida Administrative Code, which establishes the clean-shaven requirement for inmates at all correctional facilities. The parties stipulated that Department Rule 33-3.02(6), invalidated in a prior rule-challenge proceeding, is not in force, and that the Department would not appeal the order invalidating that rule. As to Baker Correctional Institution Operating Procedure No. 78-0-13, it was agreed that the Department would withdraw, in writing and within a specified time frame, all provisions relating to the clean-shaven requirement. Finally, the Department adamantly denied that the clean-shaven requirement had been enforced by tear-gassing or withholding food from inmates. However, for the purpose of disposing of this case by stipulation, it agreed that no such enforcement procedures would be used to enforce the clean-shaven requirement at Baker Correctional Institution. On November 16, 1983, W. Marion Ellis, Superintendent of Baker Correctional Institution--by written directive--withdrew and ordered deletion of all provisions of Operating Procedure No. 78-0-13 relating to the clean-shaven requirement.
The Issue The issue in this case is whether Respondent violated the provisions of chapter 440, Florida Statutes, by failing to secure the payment of workers? compensation, as alleged in the Stop-Work Order and Third Amended Order of Penalty Assessment, and if so, what penalty is appropriate.
Findings Of Fact The Department of Financial Services (Petitioner or the Department) is the state agency responsible for enforcing the statutory requirement that employers secure the payment of workers' compensation for their employees and corporate officers. Mr. Donald Hurst is a workers? compensation compliance investigator for the Department of Financial Services, Division of Workers? Compensation. He has been employed in that capacity for about nine years and has conducted approximately 7,000 investigations. On December 20, 2007, Mr. Sherman Yarbrough registered the fictitious name of Custom Granite Kitchens and Baths (CGKB) with the Florida Department of State, showing the mailing address for the business as 1210 West 15th Street, Panama City, Florida. Department of State records show Mr. Yarbrough as the owner of the fictitious name, and show that it was in effect until December 31, 2012. Payroll Services, Inc. (Payroll Services), is a broker for employee leasing companies. Ms. Betty Jo Laws is the office manager. Ms. Laws performs bookkeeping duties, and, at all times relevant here, sold employee leasing services to employers. When clients came in seeking employee leasing services, she would take down all of the information, find an appropriate leasing company from among the several that Payroll Services represented, and assist the client in completing all of the required paperwork. American Staff Management (ASM), a Florida corporation engaged in employee leasing, assigns its employees to various clients as “co-employers.” ASM provides those employees with workers? compensation coverage and payroll and tax services, while allocating to the client extensive direction and control over the day-to-day work activities of the assigned employees. On or about October 6, 2011, CGKB entered into a Service Agreement through Payroll Services under which ASM would provide it employee leasing services. Under the agreement, ASM would co-employ certain employees and provide them with workers? compensation and other benefits of employment. ASM would issue the payroll checks and be responsible for meeting tax accounting and reporting requirements related to the employment. The agreement provided that ASM would not be considered the employer for any individual until ASM?s new hire paperwork, an I-9 form (if required), and a W-4 tax withholding form were received by ASM. It further provided that ASM would not be considered the employer until CGKB had been notified by ASM that the employee had been hired by ASM as an assigned employee. CGKB would pay ASM the regular rate of pay for the employees along with an additional fee of 19.68 percent of the payroll for these services. In December of 2011, Mr. Charles Burchell, representing SSI Management (SSI), came down from Brentwood, Tennessee, to look at the VUE, a condominium that SSI was constructing at 2303 Highway 98, Mexico Beach, Florida. Mr. Yarbrough walked onto the site, gave Mr. Burchell a card from CGKB, and told Mr. Burchell that he did tile and cabinet work. Sometime in the middle of June 2012, SSI entered into a contract with CGKB for construction work at the VUE. Mr. Burchell?s testimony indicated that he was not sure if SSI?s contract was with the LLC or CGKB: Q: So in the course of your dealings with Mr. Yarbrough, did he ever –- do you remember what he said about the LLC? A: No. Q: Do you recall him saying anything about the LLC? A: You know, I just know when we wrote checks, we wrote it to his personal name. I don?t know about the LLC. Q: So you?re not sure? A: No, I?m not sure. Q: Okay. A: I just know his business card said Custom Granite Kitchens and Baths. I don?t have any idea, you know, the status of the company or anything else. Mr. Burchell testified that he asked Mr. Yarbrough for proof of insurance when he started the job and several times afterwards, but did not receive any information from him. Mr. Burchell testified that SSI distributed its first check for the Mexico Beach project, made out to Sherman Yarbrough, on or about June 22, 2012. The contract for the construction work had to have been entered into sometime before this, and Custom Granite Kitchens and Baths, LLC, was not yet in existence. Custom Granite Kitchens and Baths, LLC, was created on June 29, 2012. The registered agent was listed as Mr. Sherman Yarbrough, 1210 West 15th Street, Panama City, Florida. Mr. Yarbrough testified that he was aware his ownership of the fictional name of Custom Granite Kitchens and Baths was due to expire at the end of the year. He testified that he was planning to sell the company and so decided not to renew the fictional name but instead create an LLC and convert the existing business into that. Mr. Sherman Yarbrough is the sole owner of Custom Granite Kitchens and Baths, LLC. Mr. Yarbrough is a managing member of the LLC and is the party in actual control of the LLC. On July 3, 2012, Mr. Yarbrough obtained a notice from the Internal Revenue Service assigning the LLC an Employer Identification Number. On this same date, Mr. Calvin Johnson filled out the following employment paperwork: a W-4 form for tax withholding allowances; portions of the Department of Homeland Security?s Employment Eligibility I-9 form; an ASM Employee Enrollment Paperwork form, and an ASM Employment Agreement. The bottom portion of the I-9 form indicated the “Business or Organization Name” as “Custom Granite Kitchens and Baths, LLC,” but was not signed in the space provided for the signature of an authorized representative of the employer. At the bottom of the ASM Employee Enrollment Paperwork form, in a box indicating that it was “To be completed by Supervisor,” the worksite employer was identified as “Custom Granite Kitchens and Baths, LLC.” Mr. Johnson began construction work at the Mexico Beach property on July 3, 2012, working alongside employees of CGKB. Mr. Johnson was paid on Fridays in cash for his work by Mr. Yarbrough. Beginning with an ASM check dated July 24, 2012, he was paid by check. On July 11, 2012, Mr. Nicholas Tucker, who had worked for Mr. Yarbrough previously, started to work on the Mexico Beach property. On his ASM Employee Enrollment Paperwork form, the “Worksite Employer” was listed as “Custom Granite Kitchens and Baths.” Mr. Tucker signed the ASM Employment Agreement, the W-4 form, and the I-9 form on July 20, 2012. The bottom portion of the I-9 form, which had a space for “Business or Organization Name,” was left incomplete. On or about July 14, Mr. Yarbrough told Ms. Laws at Payroll Services that Ms. Marion Tucker would be bringing Payroll Services two new employment applications. Ms. Tucker worked for Mr. Yarbrough at CGKB as the secretary, and was also listed as a managing member of the new LLC. On or about July 17, 2012, Mr. Michael Chapman began work at the Mexico Beach property. On the ASM Employee Enrollment Paperwork form, the “Worksite Employer” was listed as “Custom Granite Kitchens and Baths.” Mr. Tucker signed the ASM Employment Agreement, the W-4 form, and the I-9 form on July 18, 2012. The bottom portion of the I-9 form, which had a space for “Business or Organization Name,” was left incomplete. On July 20, 2012, Mr. Hurst conducted a site visit at 2303 Highway 98, Mexico Beach, Florida. He observed a worker cutting tile in the parking area. The worker identified himself as Mr. Eulalio Galindo and he produced a business card for CGKB. The card indicated that Mr. Sherman Yarbrough was the owner. Mr. Galindo indicated the employees were paid through an employee leasing company, but he did not know the name of it. Mr. Hurst interviewed three other workers at the worksite. Mr. Charles Rustad and Mr. Nick Tucker were sanding down drywall. Mr. Rustad said he had been working for Mr. Yarbrough for about 10 months. Mr. Tucker said he had been working about a week. In another room, Mr. Chapman was painting. He said he had been working for Mr. Yarbrough for only about three days. Mr. Johnson was also on the worksite on July 20, 2012, doing tile edging in a bathroom. He and Mr. Hurst did not meet, and Mr. Johnson only learned of Mr. Hurst?s visit later, when he came down for another load of tiles. Mr. Johnson, Mr. Tucker, and Mr. Chapman were engaged in construction activity at the Mexico Beach property. Mr. Hurst checked the Department of State?s website for information on Custom Granite Kitchens and Baths, and when he did his search he came up with Custom Granite Kitchens and Baths, LLC. It showed that the LLC had been an active entity since June 29, 2012, and listed Mr. Yarbrough as the registered agent. Mr. Hurst completed a Field Interview Worksheet, on which he listed the time as 11:30 a.m. on July 20. He listed the business name as Custom Granite Kitchens and Baths, LLC, and wrote down the names and contact information for the four workers with whom he had talked. Mr. Hurst checked the Coverage and Compliance Automated System (CCAS) maintained by the Department to see if an insurance company had provided information regarding workers? compensation insurance. CCAS did not show any workers? compensation coverage for the LLC. CCAS also did not show any exemptions for the LLC on file. On July 20, 2012, Mr. Yarbrough went to Payroll Services and told Ms. Laws that he wanted to obtain workers? compensation coverage for the LLC. He provided her with the notice from the Internal Revenue Service dated July 3, 2012, assigning the LLC an Employer Identification Number. Mr. Yarbrough watched Ms. Laws complete a Service Agreement between ASM and the LLC, which Mr. Yarbrough then signed and dated. Based on information provided to her by Mr. Yarbrough and a printout of information he gave her from the “Sunbiz” web site, Ms. Laws also completed the Payroll Services Client Information Form for the LLC, indicating the “desired effective date” of coverage to be July 20, 2012. Mr. Yarbrough gave Ms. Laws the employment papers for Mr. Johnson to submit to ASM as an employee of the LLC. Although Mr. Yarbrough maintained he did not take action on July 20, 2012, to obtain workers? compensation for Mr. Johnson on behalf of the LLC, Mr. Yarbrough was evasive and nonresponsive in his testimony, and generally not at all credible. Mr. Yarbrough also gave Ms. Laws the employment application papers that had been completed by Mr. Johnson. Mr. Yarbrough said that “Marion” (Ms. Tucker) would be bringing a couple more new employment applications later. After Mr. Yarbrough left, Ms. Laws noted that there was no signature of employer in the bottom portion of the I-9 form, so she signed Mr. Johnson?s name to it. Mr. Yarbrough did not take any steps on June 20, 2012, to transfer any of the four people who were already covered employees of CGKB to the new LLC. Mr. Hurst called Ms. Tucker and asked about workers? compensation coverage. Ms. Tucker referred him to Ms. Laws. When Mr. Hurst contacted Ms. Laws, she explained that Payroll Services was a broker for leasing companies, and that the leasing company for CGKB was ASM. When Mr. Hurst asked about any new employees, Ms. Laws stated she had a new application for Mr. Johnson. She provided Mr. Johnson?s documentation to Mr. Hurst by e-mail. She told Mr. Hurst that it was her understanding that Mr. Yarbrough was transferring the company over to the LLC. Mr. Hurst then called ASM. He was told that ASM provided no coverage to the LLC, but covered four employees -- Mr. Yarbrough, Ms. Tucker, Mr. Rustad, and Mr. Galindo –- under Sherman Yarbrough as employer. Mr. Hurst was told that Mr. Tucker and Mr. Chapman were not covered by ASM. Based upon the information provided to him that Mr. Tucker and Mr. Chapman had no coverage, Mr. Hurst contacted his supervisor. She authorized issuance of a Stop-Work Order and an Order of Penalty Assessment, which were served on the LLC on July 20, 2012. No Stop-Work Order or Order of Penalty Assessment was served on CGKB. The LLC also received a Request for Production of Business Records for Penalty Assessment Calculation from the Department on July 20, 2012. The Department requested business records from June 29, 2012 (the date the LLC was made active with the Department of State), until July 20, 2012. Mr. Hurst testified that he issued the Stop-Work Order to Custom Granite Kitchens and Baths, LLC, instead of Sherman Yarbrough because, in addition to the information from Ms. Laws, “the business card I was given stated Custom Granite Kitchens and Baths, and I verified on the corporate website that Custom Granite Kitchens and Baths, LLC, was an active company.” Department of State records also indicated that “Custom Granite Kitchens and Baths” was registered as a fictitious name owned by Mr. Yarbrough, but there was no evidence as to whether Mr. Hurst was aware of that fact at the time. Shortly after Mr. Yarbrough left the Payroll Services office on July 20, 2012, Ms. Tucker delivered the employment documents of Mr. Tucker and Mr. Chapman to Ms. Laws. Ms. Laws filled in the bottom portion of Mr. Tucker?s I-9 form. She indicated the “Business or Organization Name” as “Custom Granite Kitchens and Baths, LLC, Panama City.” Ms. Laws testified that she did this based upon the statements of Mr. Yarbrough earlier that day that he was transferring CGKB into the LLC. She stated that Mr. Yarbrough did not specifically tell her that the LLC was Mr. Tucker?s employer and that this was an assumption on her part. Ms. Laws did not have the Florida driver?s license information and social security number filled out on Mr. Tucker?s I-9 form, and so his paperwork was not immediately faxed to ASM. Ms. Tucker gave that information to Ms. Laws the following Monday, and Ms. Laws then completed the form and faxed it to ASM on July 23, 2012. Ms. Laws also filled in the bottom portion of Mr. Chapman?s I-9 form. She filled in the “Business or Organization Name” information with “Custom Granite Kitchens and Baths, Panama City.” Ms. Laws did not explain why she did not put the LLC as the business on Mr. Chapman?s form as she had on Mr. Tucker?s. Mr. Chapman?s forms were faxed to ASM shortly after Ms. Tucker dropped them off. On July 23, 2012, Mr. Hurst called Ms. Laws to see if she had received any new employee paperwork. She stated that she had, and sent him the documentation. ASM later confirmed to Mr. Hurst that they had received the paperwork for Mr. Tucker and Mr. Chapman, and that they were now covered as employees. The employee list from ASM dated July 23, 2012, shows Mr. Johnson, Mr. Tucker, and Mr. Chapman all listed as employees of Sherman Yarbrough, all with a “Hire Date” of July 23, 2012. Mr. Galindo, Mr. Rustad, Ms. Tucker, and Mr. Yarbrough also continued to be shown as employees of Sherman Yarbrough. In checks prepared by ASM on Monday, July 23, 2012, and dated July 24, 2012, Mr. Johnson was paid for 36 hours of work, Mr. Tucker was paid for 27 hours of work, and Mr. Chapman was paid for 20 hours of work. As the president of ASM, Mr. James Moran, testified, ASM would pay employees retroactive wages to make sure the taxes were accounted for properly. He attributed the work hours to days prior to July 23, 2012, and testified that because of the number of hours, it was reasonable to assume that these three men were working on July 20, 2012, or before. Mr. Moran testified that he received payment for ASM?s services for these hours from Mr. Yarbrough, and that insurance premiums were paid to the workers? compensation carrier, Castle Point, for this period of time. He also testified, however, that all three men were only accepted as ASM employees on July 23, 2012. CGKB did not meet its responsibility to secure workers? compensation for Mr. Tucker and Mr. Chapman until July 23, 2012. The LLC did not meet its responsibility to secure workers? compensation for Mr. Johnson until July 23, 2012. On July 26, 2012, Mr. Yarbrough signed the Election of Proceeding Form on behalf of the LLC, stating that there was a dispute of the material facts alleged in the Stop-Work Order. Respondent did not respond to the Request for Business Records for Penalty Assessment Calculation. Mr. Hurst referred the file on the LLC to the Department?s Penalty Audit Section so that the penalty could be imputed. A letter on ASM letterhead dated August 3, 2012, and addressed to Mr. Michael Chapman indicated that ASM had been notified that Mr. Chapman was “no longer employed at Sherman Yarbrough as of 7/17/2012.” This was the same date that had been indicated as the “Original Date of Hire” on Mr. Chapman?s ASM Employee Enrollment Paperwork form. There was no testimony explaining how he could have been terminated on a date prior to his acceptance as an ASM employee on July 23, 2012, or the reasons for his termination. Mr. Yarbrough submitted the Election of Proceeding form and a letter to the Department stating: The company in question, Custom Granite Kitchens and Baths, LLC has no employees. This company was just founded and has no activity of any kind in the State of Florida. This matter has been a mistake. The Election form and letter were received by the Department on August 9, 2012. Respondent was served with an Amended Order of Penalty Assessment from the Department on August 9, 2013. Mr. Yarbrough filed another Election of Proceeding dated August 10, 2012, again requesting a formal hearing, which was received on August 16, 2012, by the Department. Sometime in August, Mr. Burchell asked Mr. Yarbrough not to come back to the Mexico Beach property and SSI hired someone else to finish the job. Mr. Burchell testified that he believed Mr. Yarbrough and his company were not large enough to handle a project of the size SSI was pursuing. He said the termination had to do with timeliness more than any failure to obtain workers? compensation coverage. A check dated August 17, 2012, made out to the order of Sherman Yarbrough and drawn on the account of SSI-MDI Mexico Beach, LLC, was received as final payment for the construction work CGKB performed on the Mexico Beach property. The name and address shown on the check were Sherman Yarbrough, Custom Granite Kitchens and Baths, 1210 West 15th Street, Panama City, Florida. In a letter dated August 24, 2012, ASM notified Mr. Yarbrough that the agreement between ASM and CGKB was terminated as of August 7, 2012, “for failure to report, run, and/or pick up payroll.” It went on to say that all certificates of insurance issued on CGKB?s behalf had been cancelled. Separate letters on ASM letterhead with the same date and addressed to Mr. Nick Tucker and Ms. Marion Tucker indicate that the “leasing agreement between American Staff Management IV, Inc., (ASM) and Sherman Yarbrough dba Custom Granite Kitchens has ended.” The letter goes on to explain that the recipients of the letter were no longer covered under ASM?s workers? compensation policy. On October 26, 2012, Mr. Yarbrough and Mr. Johnson entered into a Lease/Purchase Agreement. Mr. Yarbrough leased Mr. Johnson “Custom Granite Kitchens and Baths dba and Custom Granite Kitchens and Baths, LLC.” The Agreement provided for the transfer of equipment and supplies, as well as arrangements for Mr. Johnson to pay Mr. Yarbrough $300.00 per job, with a minimum of six jobs per month, for a period of 36 months. After this lease period of three years, Mr. Johnson would become the owner. The agreement itemized several items of equipment and stated, “Sherman Yarbrough will maintain the Cabinet Division of Custom Granite Kitchens & Baths, LLC.” It also provided, “Sherman Yarbrough will continue to sell granite for the Granite Division during promotion of the Cabinet Division at no commission other than the $300.00 per job as set forth in this agreement.” Respondent received the Second Amended Order of Penalty Assessment from the Department on February 26, 2013, assessing a penalty for violation of the Stop-Work Order. Mr. Hurst had concluded from the Lease/Purchase Agreement that the LLC was in violation of the order because it conducted several activities. Mr. Hurst testified, “It wrote the contract up, he signed the contract, and it also stated in the contract that the division of the –- the Granite Division and the Cabinet Division of Custom Granite Kitchens and Baths, LLC, was active and was continuing to remain active.” The Department referred this matter to the Division of Administrative Hearings on March 5, 2013, about seven and a half months after the Stop-Work Order was served. After taking a telephonic deposition of Mr. Johnson, the Department determined that he had been employed by the LLC and did not have workers? compensation coverage. The Department prepared a Third Amended Order of Penalty Assessment. Respondent was provided with a copy of the proposed Third Amended Order of Penalty Assessment on June 5, 2013. None of the employees listed in the penalty worksheets included with any of the Orders of Penalty Assessment can be classified as independent contractors, as defined in section 440.02, Florida Statutes. Mr. Johnson was an employee of the LLC on July 20, 2012, and before. The Department did not prove that Mr. Chapman or Mr. Tucker were employees of the LLC at any time between June 29, 2012, and July 20, 2012. Evidence showed that Mr. Chapman and Mr. Tucker were instead employees of CGKB on July 20, 2012, and before. The LLC did not secure workers? compensation coverage for Mr. Johnson before July 23, 2012. The LLC did not engage in business operations on October 26, 2012. The parties stipulated that the Department assigned the appropriate class code and manual rates from the National Council on Compensation Insurance, Inc., SCOPES Manual. The parties stipulated that if the charged violations were proven, the penalty amounts calculated by Petitioner in the Penalty Assessments were accurate.
Recommendation Upon consideration of the above findings of fact and conclusions of law, it is RECOMMENDED: That the Department of Financial Services, Division of Workers? Compensation, enter a final order determining that Custom Granite Kitchens and Baths, LLC, violated the requirement in chapter 440, Florida Statutes, that it secure workers' compensation coverage for Mr. Calvin Johnson, and imposing upon it a total penalty assessment of $1,000.00. DONE AND ENTERED this 23rd day of July, 2013, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of July, 2013.
The Issue Whether Respondent's teaching certificate should be revoked pursuant to Chapter 231, Florida Statutes, as set forth in petition, dated November 8, 1979.
Findings Of Fact Respondent Robert Marshall Stabler holds Florida Teaching Certificate No. 306751, Graduate, Rank III, valid through June 30, 1981, covering the area of elementary education. He was so licensed on May 9, 1979. (Stipulation.) Respondent was employed in the public schools of Brevard County at Pineda Elementary School, Cocoa, Florida, as a teacher from 1971 to May 1979. Respondent was also employed by Brevard Community College to instruct inmates at the Brevard Correctional Institution at Sharpes, Florida, for several years prior to May 9, 1979. (Testimony of Fisher, Brock, Curtis.) In late April 1979 a correctional officer at the Brevard Correctional Institution received information from a confidential informant, who was an inmate, that Respondent would bring marijuana into the institution on May 9, 1979. On that date, at approximately 6:15 p.m., Respondent entered the correctional facility and was advised by a correctional officer that college instructors were going to be searched that evening. Respondent was asked to submit to such a search and he consented to the same. Respondent was thereupon directed to the nearby "shakedown" room where his briefcase was opened and three packages wrapped in white paper were discovered. At this time, Respondent stated "That's just for my own use." A white envelope containing thirteen five dollar bills was also found in the briefcase. A narcotics officer of the Brevard County Sheriff's Department thereupon weighed and made a standard field test of the material contained in the packages and determined that it was cannabis in excess of 100 grams. The officer then placed Respondent under arrest for introducing contraband upon the grounds of a correctional institution. The packages were thereafter submitted to the Sanford Crime Laboratory for analysis and it was determined that they contained a total of 106.6 grams of cannabis and that two of these packages contained more than five grams of cannabis leaf material. (Testimony of Fisher, Pierce, Steger, Thomas, Boling, Petitioner's Exhibits 1-4.) The regulations of the Brevard Correctional Institution authorize a search of visitors which is normally conducted on a random basis. If consent to search is not given, the non-consenting individual is not permitted to enter the institution. (Testimony of Thomas.) Respondent received outstanding teacher performance evaluations at Pineda Elementary School during prior years and is considered by his principal to be an above-average teacher. Another faculty member at the school characterized him as an "excellent" teacher. He excelled in dealing with students with disciplinary problems and had excellent relations with both students and faculty personnel. He was also considered by his supervisor and a fellow instructor to be the most outstanding teacher at the Brevard Correctional Institution who was highly successful in motivating his students. (Testimony of Curtis, Brock, Walker, Weimer, Respondent's Composite Exhibit 1.)
Recommendation That Respondent's teaching certificate be revoked for a period of four years. DONE AND ENTERED this 12th day of May 1980 in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings 101 Collins Building Tallahassee, Florida (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of May 1980. COPIES FURNISHED: Hugh Ingram, Administrator Professional Practices Council Room 3, 319 West Madison Street Tallahassee, Florida 32301 Craig Wilson, Esquire 315 Third Street West Palm Beach, Florida 33401 R. V. Richards, Esquire 1526 South Washington Avenue Titusville, Florida 32780
The Issue This case arises out of a challenge by the Petitioners to the validity of Rule 33-3.02(6), Florida Administrative Code; Policy and Procedure Directive 2.02.13, and Union Correctional Institution Operating Procedure No. 81-82. The Petitioners specifically challenge the validity of those portions of the above- provisions relating to the issue of clothing to the inmates. At the final hearing, Petitioners, Joseph Redman, Nyadzi D. Rufu and Jimmy L. Rogers, testified on their own behalf and also called as witnesses Charles Connors and Paul Gunning. Petitioners offered and had admitted into evidence five exhibits. Respondents called no witnesses and offered no exhibits into evidence. The Petitioner S. B. Ridley, did not appear at the formal hearing. The Hearing Officer was informed by one of the other Petitioners at the formal hearing that Mr. Ridley had been transferred to Polk Correctional Institution. Mr. Ridley was given due notice of the hearing held on February 17, 1984, and has filed no pleading or motion with the undersigned Hearing Officer seeking either a continuance or other relief. The Petitioners and counsel for the Respondent submitted proposed findings of fact and conclusions of law for consideration by the Hearing Officer. To the extent that those proposed findings and conclusions are inconsistent with this order, they were rejected as unsupported by the evidence or as unnecessary to a resolution of this cause.
Findings Of Fact The Petitioners, Joseph Redman, Nyadzi D. Rufu and Jimmy L. Rogers are inmates incarcerated at Union Correctional Institution, Raiford, Florida. On November 5, 1982, as Petitioner Rogers was being released from disciplinary confinement, he entered the laundry to obtain another pair of state issued pants, socks and underwear. The name tag was coming off of his jacket and because of this it was confiscated. He asked for another jacket and was told he could not be issued one. He was eventually issued another jacket which was also confiscated. For a period of time, Petitioner Rogers had no jacket for those times when he was required to walk and be outside in the cold. The laundry manager at Union Correctional Institution is responsible for the issue of all clothing to the prisoners. The manager follows Union Correctional Institution Operating Procedure 81-82 in issuing clothing an Union Correctional Institution. That operating procedure provides in relevant part: 81-82.1 Purpose This memorandum is published as a guide in the issuance of inmate clothing, and the providing of laundry facilities for the inmate population. 81-82.2 Authority Florida Statutes 945.21, 944.09 section 20.315 Department of Corrections Administrative Rules, Chapter 33-3.02(6). 81-82.3 Clothing Issue Each inmate shall be issued the following clothing items: 3 each Blue Shirts 3 pairs Blue Trousers 1 each Web Belt 1 pair Boxer Shorts 1 pair Socks 1 pair Shoes, High Top. Inmates assigned to the Food Service Departments and Canteens shall be issued one additional suit of clothing because of their having to work on Sundays, enabling them to change clothing daily. 81-82.6 Special Issue Inmate Jackets are issued in October of each year and picked up for storage in April. An inmate may have his jacket laundered on any Friday. Hats, caps, and other special clothing items are issued to the Department Supervisor for distribution to the work squad. The Supervisor is responsible for those items of issue. 81-82.7 Miscellaneous Information The Laundry Manager/Clothing Officer shall maintain a record of the various clothing items issued to each inmate. If clothing issue is abused, either through neglect or by intent, the officer will initiate appropriate action. The official inmate uniform throughout the institution is issue blue shirt and trousers. Inmates assigned to the following areas are issued white shirts and trousers in lieu of the regular blue uniform: Food Service Administration Building Workers Main Gate Workers Utility Man on each Close Supervision Squad (For Identification) Canteen Workers. Each inmate who turns in a jacket (at the end of winter) shall be issued a pair of hemmed walking shorts for wearing on the athletic field or after hours in the housing area. The manager was not aware of and has not utilized Policy and Procedure Directive 2.02.13, in issuing clothing at Union Correctional Institution. That policy and procedure directive provides in relevant part: AUTHORITY: Section 20.315, 944.09 and 945.21, Florida Statutes Department of Corrections, Administrative Rules, Chapter 33-3.02(6) PURPOSE: The purpose of this Directive is to establish a uniform procedure for issuing inmate clothing and linens. This will enable the Department to control the costs of clothing and linens in a more economical manner. GENERAL: Appropriate internal measures will be taken by each operating location to implement the provisions of this Directive. It is the Department's expressed intent that all inmate clothing be appropriately fitted and suited for the environment and that Departmental facilities provide sufficient laundering facilities to ensure that appropriate health standards are maintained. The clothing and linen will be exchanged on a one for one basis after the initial issue. Should an inmate intentionally damage or destroy his/her uniforms, appropriate action should be taken by the Superintendent to reimburse the State, if possible. It is imperative that the custodial staff be well informed of the provisions of this Directive and any exceptions or deviations from this Policy set forth will have to be approved by the Regional Director. STANDARD CLOTHING ISSUE (MALE): Each male inmate may be issued the items of clothing and linen specified below. The phrase "Maximum Clothing Issue" is used in this Directive to permit the substitution of personal clothing or to permit the issuance of less than maximum quantities where appropriate. Unless otherwise designated, the inmate will not have excess clothing and linens in his possession. Each inmate will be responsible for the clothing and linen issued to him. Maximum Clothing Issue - Blues and Whites Items Quantity Shirts 3 for 5 day post 5 for 7 day post 3 for 5 day post 5 for 7 day post Maximum Clothing Issue - Other Items Items Quantity Undershorts 3 pairs Undershirts/T shirts 3 Socks 2 pairs (changed daily) Belt with Buckle 1 Shoes 1 pair Jacket (winter only) 1 Long underwear (winter only for outside detail) 2 Regions III, IV and V may substitute two sweatshirts for two pairs of long underwear for winter use. E. Clothing - Special Items such as food service linens, coverall's aprons, cooks' caps, gloves, rubber boots, raincoats, athletic uniforms, barber and butcher jackets, straw hats and safety helmets shall be considered tools of the trade and will be issued directly to the department requiring them. The superintendent will, on recommendation and justification by department head, determine what items are to be purchased and issued to inmate. All items issued on a departmental basis that can be appropriately marked shall have the standardized department initials stenciled on the item. It will be the responsibility of the superintendent to establish a laundry schedule for these items. Only those inmates who work outside for eight hours each day are issued long underwear during the winter months. The inmates do not go outside when the temperature is below 40 degrees. The laundry does not issue raincoats to the inmates. The raincoats are under industry inventory and each department can draw raincoats out of that inventory. The raincoats are paid for by the department drawing them out and the work supervisor from that department issues them to the inmates. Raincoats are sold in the canteen at Union Correctional Institution. The laundry stocks long underwear but no longer stocks T-shirts. The laundry does not stock sweatshirts. There are two types of blue uniforms. The laundry issues coveralls to special jobs but no coveralls are issued to inmates personally. It is within the laundry manager's discretion as to when he issues new clothing as opposed to used clothing. It is the laundry manager's responsibility to remain within his budget for the year. T-shirts are not included in the list of clothing issue items in Union Correctional Institution Operating Procedure 81-82. This may be due in part to budget restrictions. T-shirts are included in the "maximum clothing issue" list in Policy and Procedure Directive 2.02.13. Practically every inmate in Union Correctional Institution is required to go outside in order to go to work or to school. The inmates must also go outside in order to go to the chow hall or the clinic. The west unit is approximately a 4 or 5 minute walk from the chow hall. Union Correctional Institution Operating Procedure No. 81-82 is signed and issued by the Superintendent of UCI and cites as its authority Florida Statutes 945.21, 944.09, Section 20.315, and Rule 3303.02(6), Florida Administrative Code. The Respondent has not contested the fact that the operating procedure was not promulgated in accordance with the requirements of Section 120.54, Florida Statutes. There was no evidence presented as to the procedures followed in adopting the Policy and Procedure Directive 2.02.13.
The Issue The issues are whether Respondent committed an unlawful employment practice in one or more of the following ways: by discriminating against Petitioner based on her race and/or gender; (b) by subjecting Petitioner to a hostile work environment; and (c) by retaliating against Petitioner.
Findings Of Fact Respondent hired Petitioner, a black female, as a correctional officer on or about February 25, 2002. Petitioner was initially assigned to the Hernando County Jail. After a series of transfers at Petitioner's request, Respondent assigned Petitioner to the Lake City Correctional Facility in July 2005. Petitioner continued to serve at that facility until she was terminated. On multiple occasions during her employment, Petitioner received copies of Respondent's Harassment/Sexual Harassment policy and Respondent's Code of Ethics policy. Petitioner received formal training relative to the substance of these policies when she was hired and annually thereafter. In October 2007, Petitioner filed two grievances against Captain Michael Register and Chief Daniel Devers. The grievance against Chief Devers alleged a "hostile" work environment. Specifically, Petitioner asserted that Chief Devers created a divide-and-conquer environment by telling new staff that "several dirty officers work for Respondent and that the new staff are to tell on them and replace all the old staff members." The grievance against Captain Register alleged race and gender harassment. Specifically, Petitioner claimed that Captain Register did not relieve Petitioner on time "for three weeks straight." Petitioner believed that Captain Register's alleged conduct was due to his dislike for her and favoritism toward other staff members. Petitioner did not allege that Captain Register or Chief Devers ever said anything to Petitioner or anyone else regarding her race or gender. In response to Petitioner's grievances, Respondent performed an in-house investigation. Subsequently, Petitioner's grievances against Captain Register and Chief Devers were denied as unfounded. Petitioner alleges that she was sexually harassed by Officer/Correctional Counselor Roderick Polite. As a Correctional Counselor, Officer Polite did not have authority to change the terms and conditions of Petitioner's employment except that it was possible for Petitioner to receive work orders from a Correctional Counselor. Petitioner went on two consensual dates with Officer Polite prior to his alleged harassment. The first date was in late November 2007. The second date was in early December 2007. At the time that Petitioner went on these dates, she was temporarily broken up with Correctional Officer Darian Blue. In late November and early December 2007, Petitioner worked the 6 p.m. to 6 a.m. shift. Officer Polite was assigned to the 2 p.m. to 10 p.m. shift. Petitioner refused to go to Respondent's December 14, 2007, Christmas party with Officer Polite. Thereafter, Officer Polite called Petitioner's house continuously for three days. In a telephone conversation on December 17, 2007, Officer Polite allegedly told Petitioner that he "just had sex with a girl." Officer Polite also allegedly stated that his fascination with her would be over if she would just give him oral sex. Petitioner told Officer Polite "no" and ended the conversation. Petitioner claims that Officer Polite began to harass her at work after the December 17, 2007, telephone conversation. According to Petitioner, the harassment continued until January 10, 2008. Specifically, Petitioner claims that Officer Polite was critical of her work performance and changed the procedures she was to follow regarding mail distribution and the cleaning of pods by inmates. Officer Polite allegedly also accused Petitioner of improperly counseling an inmate. Petitioner alleges that Officer Polite "wrote her up" on one occasion. However, Petitioner admits that she never saw the alleged write-up. Petitioner also admits that she never suffered any adverse action as a result of the alleged write-up. The greater weight of the evidence indicates that Officer Polite never filed a disciplinary action against Petitioner. Petitioner did not complain about Officer Polite's conduct until January 9, 2008. On that date, Petitioner spoke with Captain Joseph Ruby about Officer Polite's alleged conduct. Respondent’s sexual harassment policy prohibits physical and verbal harassment, including inappropriate threats and requests. The policy also set forth the procedure by which employees should utilize to complain about harassment and states that complaints will be promptly and thoroughly investigated. Accordingly, on January 10, 2008, Petitioner was interviewed by Respondent's in-house investigator. Petitioner told the investigator about Officer Polite's alleged harassment but stated that she did not want to file a formal grievance against him. Petitioner simply requested that she be allowed to return to work and that she not have to work with Officer Polite. Officer Polite subsequently resigned his position as a Correctional Counselor and stepped down to a Correctional Officer position. Additionally, Respondent changed Officer Polite to the 6 a.m. to 6 p.m. shift. If there were occasions when Petitioner's and Officer Polite's shifts overlapped, Respondent granted Officer Polite's requests not to work around Petitioner. In March 2008, Petitioner applied for one of three open positions as a Correctional Counselor. Based on the interview panel's recommendation, Warden Jason Medlin selected a white female and two black females for the positions. Petitioner was not selected for one of the positions because of her personnel and disciplinary record, including a prior allegation of excessive force against inmates. Moreover, there is no evidence regarding the personnel and disciplinary records of the three females selected for the positions. On March 30, 2008, Petitioner was assigned to the control room in the South 2 Unit. Her primary duty was to maintain the log and to open doors for other officers. At some point during her shift, Petitioner removed an inmate from his cell, took him to master control, and left him there. A Lieutenant requested another Correctional Officer, Amanda Sanders, to escort the inmate back to his cell and assist Petitioner with a search of the inmate's cell. When Officer Sanders and Petitioner arrived at the cell, the inmate's cellmate, Jose Sandoval, was sitting on his bunk bed. Officer Sanders told Inmate Sandoval to leave the cell. When Inmate Sandoval did not comply, Petitioner ordered him to stand up to be handcuffed. Inmate Sandoval continued to sit on his bunk bed. Petitioner then told Officer Sanders to call a "code red," a request for assistance from other officers. Officer Sanders did not comply immediately with Petitioner's request because Officer Sanders did not believe there was a need for assistance or a reason to handcuff Inmate Sandoval. Next, Petitioner grabbed Inmate Sandoval by his arm, physically removed him from his bed, and placed him face first into the wall. Officer Sanders did not have any contact with Inmate Sandoval when Petitioner removed him from his bed. Inmate Sandoval somehow turned to face Petitioner who had her back to Officer Sanders. Officer Sanders heard a "smack" and concluded that Petitioner had struck Inmate Sandoval. Officer Sanders then saw Inmate Sandoval spit at Petitioner. Officer Sanders immediately called a "code red" and assisted Petitioner in placing Inmate Sandoval on the floor and handcuffing him. Other officers arrived and removed Inmate Sandoval from his cell and the unit. As recorded on the facility's video cameras, the officers carried Inmate Sandoval by his neck, two or three feet off the floor. The officers choked him and slammed him onto the floor. The cameras recorded Inmate Sandoval in the medical department, so incoherent that he had to be held up to prevent him from falling over. When force is used against an inmate, the incident report must be sent to the Florida Department of Corrections' Inspector General (IG). In this case, the IG performed an investigation, concluding that Inmate Sandoval was assaulted by the facility's officers and that blood was cleaned off the walls to hide the assault. Respondent subsequently received a copy of the IG's report. On April 11, 2008, Respondent terminated all officers involved, including Petitioner, for violation of Respondent's Code of Ethics. Specifically, Respondent terminated Petitioner for physically abusing the inmate, for failing to report the extent of abuse on the inmate in written reports and during the IG's investigation, and for failing to call into the facility as directed while on administrative leave after the incident. Other officers that were terminated included the following: (a) Correctional Officer Darian Blue (black male) for use of excessive force; (b) Lieutenant Phillip Mobley (white male) for failure to accurately report the extent of abuse; (c) Captain/Shift Supervisor Joseph Ruby (white male) for failure to accurately report the extent of abuse; (d) Correctional Officer Grace Davie (white female) for failure to accurately report the extent of abuse; (e) Correctional Officer Melissa Fontaine (white female) for failure to accurately report the extent of abuse; and (f) Correctional Officer Eunice Cline (white female) for failure to accurately report the extent of abuse. Respondent did not terminate Officer Sanders. The IG's report did not show that she violated any of Respondent's policies during the incident.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That FCHR dismiss the Petition for Relief with prejudice. DONE AND ENTERED this 9th day of February, 2009, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of February, 2009. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Chelsie J. Roberts, Esquire Ford & Harrison LLP 300 South Orange Avenue, Suite 1300 Orlando, Florida 32801 Dafney Cook 2445 Dunn Avenue, Apt 610 Jacksonville, Florida 32218 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway. Suite 100 Tallahassee, Florida 32301
Findings Of Fact There are no issues of material fact in dispute. Respondent, Department of Children and Families (Department), pursuant to section 394.9151, Florida Statutes (2018),2/ has contracted with a private entity, Wellpath, LLC (Wellpath), to use and operate a facility, Florida Civil Commitment Center (FCCC), to comply with the requirements of chapter 394, part V (entitled “Involuntary Civil Commitment of Sexually Violent Predators”). Petitioner, who is a sexually violent predator, is a person subject to chapter 394, part V, and is confined in the FCCC. Petitioner alleges that the FCCC Resident Handbook is an unpromulgated rule which is imposed on FCCC residents, and that the same is an improper exercise of delegated legislative authority as a de facto agency rule that has not been adopted pursuant to the rulemaking procedures of section 120.54(1)(a), Florida Statutes. Petitioner also claims that because “Baker Act residents” are housed at FCCC, then “all rules governing every aspect of the facility must be implemented” in accordance with section 394.457. Petitioner does not allege that he is housed at FCCC pursuant to the Baker Act.
The Issue This case concerns the issue of whether the Department of Corrections Policy and Procedure Directive No. 2.02.13 and Baker Correctional Institution Operating Procedure 78-G-14 are invalid exercises of delegated legislative authority. This action was initiated by the filing of a petition to determine the invalidity of a rule with the Division of Administrative Hearings on December 2, 1983. By order of assignment dated December 12, 1983, the undersigned Hearing Officer was assigned to hold a formal hearing upon the issues raised by the petition. The formal hearing was held in this matter on January 5, 1984. At the formal hearing, the Petitioners called as witnesses W. Ellis, G. L. Martin, and Michael L. Odom. Petitioner Richard Chadock testified on his own behalf. Petitioners offered and had admitted into evidence four exhibits and were permitted to file a late filed exhibit which was the most recent copy of the Baker Institutional Operating Procedure No. 78-G-14. The Respondent presented no evidence. Petitioners and counsel for the Respondent submitted proposed findings of fact and conclusions of law for consideration by the Hearing Officer. To the extent that those proposed findings and conclusions are inconsistent with the findings and conclusions contained in this order, they were rejected as not supported by the evidence or as unnecessary to the resolution of this cause.
Findings Of Fact The Petitioners are inmates who at the time of hearing were Incarcerated in Baker Correctional Institution, Olustee, Florida. Baker Correctional Institution is a prison facility operated by the Florida Department of Corrections. The Superintendent of Baker Correctional Institution has issued an Institutional Operating Procedure No. 78-G-14, titled, "Inmate Clothing & Laundry Procedures." This operating procedure was originally issued on August 1, 1978, and last revised December 21, 1983. That operating procedure provides in relevant part: III. STANDARD CLOTHING ISSUE D. Winter Clothing Issue Winter clothing will be issued during the period of October 15th through April 15th and will be turned in on April 15th. The maximum amount of winter clothing Is as follows: 1 denim jacket, standard issue for all inmates. 1 gray sweatshirt issued to inmates assigned to the maintenance department and warehouse. 2 suits of thermal weave under- wear to inmates assigned to outside work details. XIII. MEDICAL RELATED CLOTHING NEEDS Inmate clothing related to special medical needs will be issued only upon receipt of a medical prescription issued by the Chief Medical Officer. The authority relied upon by the superintendent in issuing Operating Procedure 78-G-14 is set forth in the reference portion of that operating procedure as: Florida Statutes, Chapter 20.315, 944.09, and 945.21 Department of Corrections Rules, Chapter 33-3.02(6) Department of Corrections Policy and Procedure Directive No. 2.02.13 and 4.07.20, VIII(B) The operating procedure is reviewed annually by the superintendent. The operating procedure was not promulgated as a rule in accordance with the requirements of Florida Statute 120.54. The Department of Corrections has issued a Policy and Procedure Directive No. 2.02.13 titled, "Inmate Clothing and Linen Policy." That directive was issued on January 25, 1979, and revised on January 18, 1983. That directive provides in relevant part: IV. STANDARD CLOTHING ISSUE (MALE): Each male inmate may be issued the items of clothing and linen specified below. The phrase "Maximum Clothing Issue" is used in this Directive to permit the substitution of personal clothing or to permit the issuance of less than maximum quantities where appropriate. Unless otherwise designated, the inmate will not have excess clothing and linens in his possession. Each inmate will be responsible for the clothing end linen issued to him. Maximum Clothing Issue - Blues and Whites ITEMS QUANTITY Shirts 3 for 5 day post 5 for 7 day post Pants 3 for 5 day post 5 for 7 day post Maximum Clothing Issue - Other Items ITEMS QUANTITY Undershorts 3 pairs Undershirts/T shirts 3 Socks 2 pairs (changed daily) Belt with Buckle 1 Shoes 1 pair Jacket (winter only) 1 Long underwear (winter only for outside detail) 2 pairs Regions III, IV and V may substitute two sweatshirts for two pairs of long under- wear for winter use. E. Clothing Special Items such as food service linens, coveralls aprons, cooks' caps, gloves, rubber boots, raincoats, athletic uniforms, barber and butcher jackets, straw hats and safety helmets shall be considered tools of the trade and will be issued directly to the department requiring them. The superintendent will, on recommendation and justification by department head, determine what items are to be purchased and issued to inmate. All items issued on a departmental basis that can be appropriately marked shall have the standardized department initials stenciled on the item. It will be the responsibility of the superintendent to establish a laundry schedule for these items. This policy and procedure directive has not been promulgated as a rule. It is not published in the Florida Administrative Code and does not bear a numerical designation that accords with the rules of the Department of State. Both Operating Procedure 78-G-14 and the Policy and Procedure Directive No. 2.02.13 cite Rule 33-3.02(6), Florida Administrative Code, as one of the authorities authorizing their issuance. That rule provides in relevant part: Inmates shall be issued sufficient clothing, including outer clothing, underwear, socks and shoes. Inmates shall be furnished sufficient clothing during cold weather to insure adequate warmth. Under Rule 33-3.045, Florida Administrative Code, the "Package Permit Form for Male Institutions," form DC3-302M, is incorporated by reference. An inmate may receive a package from someone outside the facility only by obtaining a package permit. The package permit does not allow the prisoner to receive thermal weave underwear. Inmates possessing thermal weave underwear when transferred to Baker Correctional are not allowed to keep them. If it is not inclement weather, inmates are required to go outside from 8:00 a.m. to 10:00 a.m. and from 1:00 p.m. to 3:00 p.m. Inmates do not go out on outside work assignment if the temperature is below 40 degrees or if it is raining. Clothing such as thermal weave underwear and sweatshirts are issued by the laundry. Only those inmates assigned to permanent outside details are issued thermal weave underwear. Inmates assigned to the warehouse and maintenance are issued sweatshirts. No other inmates are issued thermal weave underwear or sweatshirts. Prisoners can receive sweatshirts pursuant to a package permit. Inmates are not issued raincoats. Raincoats can be received by the inmates through a package permit. Prior to a complaint being filed by Petitioner Joe Richardson, the manager of the laundry issued thermal weave underwear to the inmates assigned to the laundry. These individuals are required to go back and forth from the laundry to the dorms throughout the day. The laundry manager considered this an outside detail. After being informed by his supervisor, Mr. Townsend, that this was not considered an outside detail the laundry manager confiscated the thermal weave underwear from the laundry workers. The manager of the laundry is allowed to deviate from the Operating Procedure 78-G-14 only if he first obtains permission from his supervisors. If the medical department states that an inmate is ill and needs additional clothing, the additional clothing such as thermal weave underwear will be issued to the inmate. The superintendent did not recall any instance where additional clothing had been issued under this unwritten policy. Because of the length of the line and the lack of a large enough shelter outside the entrance to the dining hall, inmates are required on occasion to stand in the rain and cold weather outside the dining hall. The dormitories are released at different times in order to avoid this problem. However, this does not totally eliminate the occurrence of long lines waiting outside the dining hall. Petitioners Joe Richardson and Richard Chadock have requested thermal weave underwear because of the cold weather. These requests were denied.
