The Issue The issue is whether Respondent committed a violation of the Florida Civil Rights Act of 1992, as alleged in the Charge of Discrimination filed by Petitioner on January 2, 1998.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: In his Charge of Discrimination, Petitioner, Jeffrey S. Wytrwal, alleges that after he had suffered a knee injury, Respondent, Waste Management of Putnam County, violated the Florida Civil Rights Act of 1992, as amended, by failing to find him a "light duty" position "due to [his] disability and [because of] unfair favoritism throughout this company." Respondent denies the charge of discrimination and contends that Petitioner does not suffer from a disability, and even if he did, it had no positions in the company which were compatible with his medical restrictions. Respondent is engaged in the business of providing solid waste collection services for the residents of Putnam County, Florida. Testimony by Respondent's district manager, Brian Watkins, established that Respondent is an employer within the meaning of the law and is thus subject to the provisions of Chapter 760, Florida Statutes. Petitioner worked for Respondent as a driver on a garbage truck from 1990 until 1993, and then again beginning in January 1995. The work is physically demanding, and it requires that the driver frequently jump in and out of the vehicle to sling or empty garbage cans into the rear-end loader. After working a 12-15 hour shift on January 28, 1997, Petitioner was home sitting on his bed "half Indian style" when he attempted to stand up. His right knee locked; he was transported to a local hospital; and he later underwent arthroscopic surgery to correct the injury. After suffering the foregoing injury, Petitioner qualified for disability payments from his employer, and he began receiving a monthly disability check in the amount of $888.00. On an undisclosed date after Petitioner suffered his injury, Respondent changed its hauling operation from a two-man team (a driver and swingman) on each truck to a single driver. This meant that the bona fide occupational requirements for the position of driver required that he engage in bending, stooping, and climbing on a repetitive basis for long hours each day without the aid of a "swingman." On October 14, 1997, Petitioner was released by his doctor to return to work and was given a certificate which read "No bending, stooping, climbing (Light Duty Only, if available)." These restrictions obviously did not allow Petitioner to return to his former job. Upon obtaining the release, Petitioner telephoned his supervisor, John Rakoczy, and asked if he could go back to work on "light duty," performing duties that would be compatible with his medical restrictions. On a very few occasions, Respondent had authorized an injured worker to perform other temporary duties if his injuries "fit a temporary job." However, except for two already filled dispatcher positions in the office, Respondent had no jobs which did not require bending, stooping, or climbing. Therefore, without making fundamental alterations in the company's operations, which would result in an undue hardship to the company, Rakoczy could not offer Petitioner part- time or restricted work. Petitioner did not seek the office dispatcher position, and he produced no evidence that he was qualified to perform that job. Although Petitioner admits that his knee has improved since October 1997, he never again contacted his employer regarding reemployment. At hearing, Petitioner acknowledged that he agreed with Rakoczy's assessment that no light duty jobs were available within the company. Even so, he and his wife "took it hard," and in January 1998 he filed his Charge of Discrimination. Petitioner has not alleged, nor presented competent and credible evidence, that his knee injury continues to limit the full and normal uses of his physical facilities. While it is undisputed that the injury may have limited his physical facilities during his recuperation, there is no evidence that it continues to do so, or that others regard him as having a disability. Therefore, Petitioner has failed to demonstrate that he is disabled within the meaning of the law. Respondent's decision to not offer Petitioner light duty was not based on discriminatory reasons, as Petitioner has alleged, but was based on the fact that there were no jobs which were compatible with Petitioner's medical restrictions. While collecting medical disability payments, Petitioner also filed a worker's compensation claim against his employer in October 1997, and this claim was settled in May 1999 for the sum of $27,000.00. By agreeing to the settlement, Petitioner was no longer eligible for disability payments, and they terminated in May 1999. Until he settled his worker's compensation claim, Petitioner did not look for other employment. After the case was settled, however, he secured a job within a week at a local country club doing maintenance and landscaping work, and he has worked there since that time. There is no evidence as to how his current job duties compare with the duties that he performed for Respondent. Further, the difference in compensation, if any, between the new job and Petitioner's former job is not of record. Although Petitioner contended that Respondent had offered "light duty" to other injured workers in the past, he could only identify one such worker named "Keith," who had lost four fingers in an accident. Unlike Petitioner, however, that worker was able to perform a variety of temporary jobs despite the limitations caused by his injury. Neither the Charge of Discrimination, nor the record evidence, reveals the specific relief that Petitioner is requesting. Rather, the complaint merely lodges allegations of discrimination against Respondent. Respondent suggests that Petitioner's injury was pre-existing, and occurred before January 28, 1997, and that Petitioner may be malingering. This is based on the treating physician's notes which reflected that Petitioner had his symptoms prior to the date of the injury. Even if this were true, however, this fact would appear to bear on the legitimacy of Petitioner's worker's compensation claim, and not the charge of discrimination. Finally, even though the treating physician suspected that Petitioner might be malingering with his injury, this was only a suspicion and was not medically confirmed.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Commission on Human Relations enter a final order dismissing, with prejudice, Petitioner's Charge of Discrimination. DONE AND ENTERED this 31st day of August, 1999, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (850) 488-9675, SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of August, 1999. COPIES FURNISHED: Jeffrey S. Wytrwal Post Office Box 701 Satsuma, Florida 32189-0701 Joseph P. Shelton, Esquire 1500 Resurgens Plaza 945 East Paces Ferry Road Atlanta, Georgia 30326-1125 Sharon Moultry, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Dana A. Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue Whether petitioner should recover $2,335 allegedly disbursed by respondent under Contract No. 3-11-038-005-005 to one Kenneth L. Jenks?
Findings Of Fact Kenneth L. Jenks of Franklin County was enrolled in a CETA program administered by the Bay County School Board at some point during 1983.
Recommendation It is, accordingly, RECOMMENDED that petitioner abandon its efforts to recover from respondent any monies claimed under Contract No. 2-11-038-005-005. DONE AND ENTERED this 8th day of June 1984 in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of June 1984. COPIES FURNISHED: Lizanne Batey, Chief Bureau of Job Training Dept. of Labor & Employment Security Division of Labor, Employment & Training Tallahassee, Florida 32301 Charles Pettis, JTPA Coordinator Bay County School Board 3016 Highway 77 Panama City, Florida 32405 =================================================================
Findings Of Fact Petitioner is seeking licensure as a certified public accountant in Florida. Petitioner is licensed as a certified public accountant in the State of Pennsylvania. He is seeking licensure in Florida by endorsement based upon his Pennsylvania licensure without the necessity for taking an examination. Petitioner was initially licensed in Pennsylvania in 1961. The Board of Accountancy reviewed Petitioner's application and determined that he met all Florida requirements for education and experience, and that he was administered the same examination in Pennsylvania in 1961 that was administered in Florida in 1961. In a non-final order, however, the Board determined that Petitioner did not receive grades on the examination administered in Pennsylvania that would have constituted passing grades in Florida, and denied his application. The non-final order is the subject of a formal administrative proceeding before the Division of Administrative Hearings in Case No. 80-2332. The Board's rules require that an applicant for licensure as a certified public accountant receive a grade of 75 or above on all parts of an examination administered by the American Institute of Certified Public Accountants. Rule 21A-28.05(2), (3), Florida Administrative Code. Rules in effect in 1961 also required that a grade of 75 or above would be required in all four subjects of the examination. Rules of the State Board of Accountancy Relative to Examinations and the Issuance and Revocation of Certificates, Rule 1(f).
The Issue Whether petitioner should recover $735 allegedly disbursed by respondent under Contract 3-14.073-051 to one Kenneth L. Jenks?
Recommendation It is, accordingly RECOMMENDED: That petitioner abandon its efforts to recover from respondent any monies claimed under Contract No. 3-14.073-051. DONE and ENTERED this 7th day of June, 1984, in Tallahassee, Florida. ROBERT T. BENTON, II 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 7th day of June, 1984. COPIES FURNISHED: Lizanne Batey, Chief Bureau of Job Training Department of Labor & Employment Security Division of Labor, Employment & Training Tallahassee, Florida 32301 Hiram J. Spurling, Director Job Training Partnership Act Program Department of Education Division of Vocational Education Knott Building Tallahassee, Florida 32301 =================================================================
Findings Of Fact Joshua A. Freedman was issued a certificate in accounting from Temple University in 1945 (Exhibit 3). He attended evening classes at Temple during the periods 1937-1940 and 1944-1946. Transcript of Freedman's scholastic record at Temple University (Exhibit 1) shows he completed 56 semester hours during this period. The testimony of Dr. Laibstain (Exhibit 15) is that he completed 58 hours, includes 2 hours earned in 1965. Of the courses completed 26 semester hours were in accounting and 24 semester hours were classified as business courses. Requirements for a certificate in accounting are shown in Exhibit 23 to be completion of 12 one-year courses, or a total of 48 credits. The courses so outlined meet three evenings a week for four years but the time period may be altered if the student attends more or less classes than three evenings a week. A total of 124 semester hours is required by Temple University for a baccalaureate degree in accounting and the requirement has not been less than 120 semester hours since prior to Petitioner's matriculation. Petitioner was issued CPA Certificate Number 2872 on 4-26-50 after having successfully passed the AICPA examination in Pennsylvania with grades of 75 in Law (1947) and 69 in Practice (1949) Respondent stipulated that the only grounds for denying Petitioner's application for a reciprocal CPA certificate was his failure to complete the requirements for a baccalaureate degree and his failure to make a grade of at least 75 on the AI CPA examination- he took in 1949. With this stipulation the evidence regarding Petitioner's experience, professional qualifications and moral character become irrelevant to these proceedings. In 1949-1950 Florida required its applicants for CPA certification to pass examinations in subjects including Auditing, Commercial Law, Theory of Accounts and Accounting Practices with a minimum grade of 75 in each subject. Florida has always required a passing grade of not less than 75 on CPA examinations given. As a result of difficulties in obtaining information from certain states regarding the examinations and grades obtained for those seeking reciprocal CPA certificates in Florida, the Florida Board of Accountancy stopped accepting applications from applicants from these states for reciprocal CPA certification. This led to a meeting between the Pennsylvania Board and the Florida Board in 1974 at which the former agreed to provide all requested information to Florida and Florida agreed to accept the examination grades in which a mark of at least 75 was received as equivalent to the Florida examination even though the same subjects were not covered by the examination. Prior to 1969 the Florida Board of Accountancy had certain discretions in granting reciprocal CPA certificates. The statute was amended in 1969 by what is now Section 473.201 F.S.
The Issue The issue to be resolved in this proceeding concerns whether the Petitioner qualifies, pursuant to Section 212.08(7)(o)2.d., Florida Statutes, for a consumer's Certificate of Exemption as a state, district, or other governing or administrative office, the function of which is to assist or regulate the customary activities of educational organizations or members.
Findings Of Fact The Petitioner is a "not for profit" corporation that, for all relevant periods of time, has held an exemption from federal income tax as an educational institution pursuant to Section 501(c)(3) of the federal Internal Revenue Code. The purpose of the Society, the Petitioner, is to further the practice of the teaching of photography and to insure high standards in photographic education in the educational institutions in this country and in Florida, particularly post- secondary educational institutions. The Society has been provided facilities at the Daytona Beach Community College, including office space, telephones and facsimile lines. The community college provides publication and marketing services to the Society. There is no formal affiliation between the Society and any higher educational institutions. The community college provides these services to the Society in return for the prestige associated with its being home to the Society. The Society is not accredited as an educational institution in its own right. It is an educational organization consisting primarily of university, college and secondary school educators as members. Its purpose is to advance the field of photographic education and to assist its members in their collective interests and concerns as educators. The Society also assists colleges, universities, and other organizations in achieving their educational mission in terms of education in the field of photography. It therefore functions as an administrative office, " . . the function of which is to assist or regulate the customary activities of educational organizations and members." The Society's national office assists the customary activities of the regional organizations under its umbrella through management of their data bases in support of their regional publications and conferences. The dominant function of those conferences is to promote educational standards in photography and related fields. They are typically attended by graduate students and educators in the field of photographic education. Moreover, the Society's national office examines and approves regional budget funding proposals and disburses funds to regional organizations that are in accord with its national by-laws and policies, so as to provide appropriate control and regulation with regard to its educational mission. The treasurer of the Society for photographic education requires uniform accounting procedures for each of the regional treasury accounts. The Society is thus an umbrella organization for eight regional societies located throughout the country. The Society provides money to these regional organizations and the regions are required to prepare and submit financial statements to the Society. These regional societies operate pursuant to the national by-laws and their officers serve at the pleasure of the national organization. Annual national conferences are held as are regional conferences by the regional societies. Participants at these conferences are offered seminar level courses and workshops in different areas of photography, such as digital imaging. There is also typically a trade show at these conferences where corporations demonstrate new products in the field of photography. Most of the persons attending these conferences are either graduate students or faculty members of various educational institutions. While the Society does not provide educational credit to attend these, the programs at these conferences are educational in nature, designed to further the education of the attendees in the aspects of the field of photographic education. The Society does not regularly provide educational curricula to other organizations.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED: That the Department of Revenue enter a Final Order granting the consumer Certificate of Exemption applied for by the Petitioner. DONE AND ENTERED this 7th day of July, 1998, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 7th day of July, 1998. COPIES FURNISHED: Kevin O'Donnell, Esquire Department of Revenue Post Office Box 6668 Tallahassee, Florida 32314-6668 James J. Murphy, Executive Director Society for Photographic Education Post Office Box 2811 Daytona Beach, Florida 32120-2811 Linda Lettera, Esquire Department of Revenue 204 Carson Building Tallahassee, Florida 32399-0100 Larry Fuchs, Executive Director Department of Revenue 104 Carlton Building Tallahassee, Florida 32399-0100
The Issue Whether Respondent, Uceda School of Orlando, Inc. (Uceda Orlando), discriminated against Petitioner, Matalyn Johnson (Ms. Johnson), based on her race and disability when it failed to hire her. The specific issue to be determined is whether Uceda Orlando was an “employer” under the Florida Civil Rights Act of 1992, chapter 760, Florida Statutes (2020) (FCRA).1
Findings Of Fact Ms. Johnson is an African-American female who has a speech impediment caused by a stroke and/or cancer. She applied for an ESL teaching position at a school located on Kirkman Road in Orlando, Florida.3 Uceda Orlando operates a school located at 5425 South Semoran Boulevard in Orlando, Florida. Uceda Orlando was incorporated in 2003. Juan Uceda (Mr. Uceda) is the registered agent and at all relevant times was the president and director of Uceda Orlando. Uceda OBT operates at least two schools located in Orlando, Florida: (1) at 12934 Deertrace Avenue, Suite B; and (2) at 4586 South Kirkman Road (Uceda Kirkman). Uceda OBT was incorporated in 2010. Charo Uceda (Ms. Uceda) is the registered agent and president of Uceda OBT. ESL TEACHER POSITION Angel Rodriguez was a teacher who worked at Uceda Kirkman from April 2019 to February 2020. For the time relevant to these proceedings, Mr. Rodriguez was supervised by Ricardo Sanchez. According to Mr. Sanchez's W-2 forms, he was paid by "Uceda School of Orlando – OBT, Inc." Mr. Sanchez, who interviewed Ms. Johnson and made the decision not to hire her, was employed by Uceda OBT. In November 2019, Mr. Rodriguez submitted his resignation letter to Uceda Kirkman.4 Mr. Sanchez asked Mr. Rodriguez if he knew of anyone who could teach ESL in his place. Mr. Rodriguez suggested Ms. Johnson for the position. 3 "ESL" stands for "English as a second language." 4 Mr. Rodriguez continued to work as a substitute teacher at Uceda Kirkman after he resigned. Mr. Rodriguez worked with Ms. Johnson at an Orange County public middle school. He told Ms. Johnson about the ESL position he was vacating at Uceda Kirkman and encouraged her to apply. Ms. Johnson applied for the ESL position. Based on the overwhelming evidence at the hearing, it is clear that Ms. Johnson applied for Mr. Rodriguez's vacant position with Uceda Kirkman (operated by Uceda OBT) and not for a position with a school operated by Uceda Orlando. Ms. Johnson is a public middle school teacher in Orange County. She has a bachelor's degree in English with a minor in Spanish. She is certified to teach ESL classes to students in sixth through twelfth grades. Although Ms. Johnson's application was not entered into evidence, her unrebutted testimony and the testimony from Mr. Rodriguez established that she was qualified for the ESL position. Ms. Johnson interviewed for the position with Mr. Sanchez. She later heard from Mr. Sanchez that she did not get the position. On January 13, 2020, Ms. Johnson received an official notification that she had not been selected for the ESL position. The email was from "Uceda School of Orlando-Kirkman," and stated in relevant part: Subject: Application for ESL Teacher at Uceda School of Orlando-Kirkman Thank you for applying to the ESL Teacher position at Uceda School of Orlando-Kirkman. Unfortunately, Uceda School of Orlando-Kirkman has moved to the next step in their hiring process, and your application was not selected at this time. INTERRELATION OF INDIVIDUAL UCEDA SCHOOLS Mr. Uceda is the father of Ms. Uceda and Doris Uceda. Together the three co-founded the Uceda English Institute (UEI) in the 1980s, which is a chain of federally-accredited ESL schools. There are numerous locations or branches of UEI in Florida, Nevada, New Jersey, and New York. Each UEI school is separately owned and incorporated, and each is overseen by different administrators. The schools that were discussed at the hearing were owned by Mr. Uceda's family members, including his daughters and grandchildren. Ms. Uceda testified that she currently owns and operates Uceda OBT, which has two campuses: the Deertrace campus and Uceda Kirkman. Ms. Uceda also either has a financial interest or is on the board of UEI schools located in Boca Raton, Florida; Westin, Florida; and Elizabeth, New Jersey. Ms. Uceda has 100% ownership interest in Uceda OBT and is the only officer of Uceda OBT. She does not have any ownership interest nor does she serve in any capacity with Uceda Orlando. Mr. Uceda has no ownership interest in and does not serve in any capacity with Uceda OBT. Although Mr. Rodriguez believed that all "Uceda schools" were owned "by the same people," there was no evidence of this at the hearing. When asked what entity paid his salary, Mr. Rodriguez did not know. He testified that he thought all "Uceda schools" shared employees and students. However, he could not provide any examples and admitted that he only worked at Uceda Kirkman. Ms. Uceda convincingly testified that employees who work at one Uceda school can apply to work at another Uceda school, but they are paid separately and not allowed to just move back and forth. She also explained that Uceda OBT and Uceda Orlando have separate accounting records, bank accounts, lines of credit, payroll preparation, telephones, and offices. They do not share employees or administrators. According to the corporate documents introduced at the hearing, Uceda OBT and Uceda Orlando have different operating addresses, different registered agents, and different officers and directors. Although Ms. Uceda was listed as an officer of Uceda Orlando in the past, she has not served in any capacity at Uceda Orlando since 2013.
Conclusions For Petitioner: Ka'Juel Washington, Esquire The Washington Trial Group, PLLC 37 North Orange Avenue, Suite 500 Orlando, Florida 32801 For Respondent: Chris Kleppin, Esquire The Kleppin Law Firm 8751 West Broward Boulevard, Suite 105 Plantation, Florida 33324
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 dismissing the Petition for Relief filed by Matalyn Johnson against Uceda School of Orlando, Inc. DONE AND ENTERED this 2nd day of September, 2021, in Tallahassee, Leon County, Florida. COPIES FURNISHED: S HETAL DESAI Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of September, 2021. Tammy S. Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 Ka'Juel Washington, Esquire The Washington Trial Group, PLLC 37 North Orange Avenue, Suite 500 Orlando, Florida 32801 Chris Kleppin, Esquire The Kleppin Law Firm 8751 West Broward Boulevard, Suite 105 Plantation, Florida 33324 Stanley Gorsica, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020
The Issue Whether the dismissal of Respondent for exceeding her authority, as delineated in the May 13, 2005, Notice of Dismissal from Employment, was proper and should be upheld.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following findings of fact are made: Respondent, Janice Costin, was an employee of Florida A and M University (FAMU) at the College of Law in Orlando from December 2002 until discharged in May 2005. She is an administrative and professional employee with the title of coordinator of computer applications (director information technology). She is a ten-year university employee. Immediately prior to accepting the position in Orlando, Respondent had worked in Planning and Analysis, part of the Information Technology Services Department at FAMU's Tallahassee campus, where she was responsible for procurement of hardware and software. As a result of her job responsibilities, she was intimately aware of the specific procedural requirements for the procurement of technology-related hardware and software. FAMU has a "secure" computer network among its main campus in Tallahassee and six remote campuses, including the College of Law in Orlando. The "secure" link between campuses utilizes "firewalls" at each end and encryption to ensure that valid information is transmitted. Internet communications are encrypted or "scrambled" at the firewall of the originating location and then "unscrambled" at the receiving location firewall, utilizing mathematical algorithms. For security reasons, only three FAMU employees have access to the encryption model. Respondent did not have access to the encryption model. Petitioner, FAMU Board of Trustees, has published specific policies and procedures for the effective operation of the university. Since 1994, it has been university policy that . . . written approval must be secured from the Florida A&M University Information Resource Manager before expenditure of any campus resource toward the planning of a computer network. In addition to the written authorization to plan a network, all planning, acquisitions, installations, implementations or revisions must be done in conjunction with the Information Resource Manager. (Emphasis is in original document.) Respondent was aware that (as delineated in her job description) she "received direction on technology systems planning from the FAMU Chief Information Officer and all plans for technology systems at the College of Law are subject to the approval of that officer." Dr. Kenneth Perry, a FAMU employee, is chief information officer and information resource manager and is officed in Tallahassee. Respondent reports to Dr. Perry for her technology duties. Administratively, her job description advises that Respondent "reports directly to the Associate Dean for Administration and Student Services [Dr. Ruth Witherspoon]." In September 2004, incidental to hurricane-related internet service disruptions, the College of Law experienced internet access problems between the College of Law and the Tallahassee campus. "Trouble-shooting" attributed this to the firewall at the College of Law. At the direction of Percy Luney, dean of the College of Law, Petitioner implemented the replacement of the existing Nokia firewall with an Enterasys firewall at the College of Law. Dr. Perry did not approve changing the firewall as required by published university policy. Dr. Witherspoon, Respondent's administrative supervisor at the College of Law, did not testify, but she authored a Memorandum dated October 17, 2005, admitted into evidence as Petitioner's Exhibit 11, which states: "I was not the one who directed Ms. Costin to host a website, install a firewall, or post advertisements on the website." The same exhibit/letter states: Dean Luney directed Ms. Costin to acquire a separate server for the law school and to make certain that the server was protected and secure from outside "hackers." At the direction of Dean Luney, I did make arrangements, . . . , for Ms. Costin to purchase equipment to install a firewall on the new server. . . . Respondent's Exhibit 1-A, a memorandum dated September 14, 2004, from Respondent to the Enterasys vendor, via Dean Luney (whose initials are handwritten on the document), states, in pertinent part: "we would like to move forward with the 60 day evaluation of firewall equipment that will allow us to test for performance and security measures in our current facility." Sometime after the "60 day evaluation period" referenced in paragraph 13, supra, in May 2005, when it became apparent that the Enterasys firewall was at risk of being removed by the vendor for lack of payment, Dr. Perry approved payment after receiving a request to do so from Dean Luney. Had he not, and the firewall been removed, the security of the internet system would have been compromised. No evidence was presented to the effect that the university internet system had been compromised or breached, or that the university suffered any actual damage as a result of the installation of the Enterasys firewall. When Respondent assumed her duties at the College of Law, it had an existing ".edu" (FAMU.edu/law) website or webpage. The College of Law experienced difficulty having timely information posted on the ".edu" website. New information had to be routed through the Tallahassee webmaster. In some instances, it took several months for "new" information the be posted on the ".edu" website. In February 2005, Respondent created a ".com" (FAMUlaw.com) website with the assistance of others in the Information Technology Services Department. She did not have the approval of Dr. Perry as required by published university policy. The website designation ".edu" is reserved for educational institutions; the website designation ".com" is typically for entities pursuing commercial endeavors. The FAMU Department of Athletics has a ".com" website; the FAMU Department of Architecture has a ".net" website. The FAMUlaw.com website had a section that consisted of Dell and Gateway logos and "links" to vendor websites that featured "Dell Computer Student Specials," "Gateway Desktop Student Specials," and "Gateway Laptop Student Specials." The same or similar commercial "links" had appeared on the ".edu" website. Dr. Perry believed that Respondent's unauthorized firewall installation placed the security of the FAMU web network at risk; he believed that Respondent's unauthorized creation of a ".com" website reflected poorly on the university as an educational institution. While Dr. Perry expressed concern regarding the security of the FAMU internet network, there is no evidence that anyone "hacked" into the network while the Enterasys firewall was in place, and the change in firewalls was not known by Information Technology Services Department in Tallahassee. No evidence was presented that Respondent had ever received a negative job-performance evaluation during her tenure with the university. Respondent did not receive a performance evaluation of any kind while she was employed at the College of Law. Respondent's first documented indication of dissatisfaction with her job performance came in the form of an e-mail from Dr. Perry date/timed "5/9/2005 5:15 PM," raising the following questions: Why have you created a .com website for the FAMU Law School? Why did you go around me and the Office of Information Technology Services to get the links to that website from the FAMU homepage? (I have removed the links to that website). Why are you spending state money for a .com website? Why does the www.famu-law.com Information Technology web page contain commercials for Dell and Gateway? Why are you spending state money to advertise for Dell and Gateway? Respondent provided a courteous, reasoned reply to Dr. Perry's e-mail inquiry the following day (5/10/2005). Respondent's dismissal letter was dated May 13, 2005. Respondent's job description succinctly states that her "primary function" is to "interact with the College of Law administrative and academic personnel in developing, maintaining, and updating computer application/systems that will enhance the productivity of the College of Law end-user." In addition, she was "responsible for planning for the security of the College of Law technology systems along with the Chief Information Officer [Dr. Perry] . . ." Respondent's job description further states: while reporting "directly to the Associate Dean for Administration and Student Services [Dr. Witherspoon]," in Orlando, Respondent was to "receive direction on technology systems planning from the FAMU Chief Information Officer [Dr. Perry]," in Tallahassee. She was to "be self-directed, and . . . work independently, following general policy discussions." Notwithstanding Respondent's job description, Dean Luney directed Respondent's assignments and activities on projects related to the development of technology at the law school. According to her job description, her "performance will be evaluated on a periodic review of results obtained." As mentioned hereinabove, Respondent did not receive a performance evaluation during the three years she was employed at the College of Law. While tasked with the responsibility of seeking direction and approval for technology systems and systems planning from Dr. Perry, Respondent did not. On those occasions when she did seek support, she received little support from him or others in the Information Technology Services Department in Tallahassee.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent's dismissal from employment with the university was not supported by the evidence and that she should be reinstated with full pay. DONE AND ENTERED this 14th day of September, 2006, in Tallahassee, Leon County, Florida. S JEFF B. CLARK 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 14th day of September, 2006. COPIES FURNISHED: David C. Self, II, Esquire Shira R. Thomas, Esquire Florida Agricultural and Mechanical University Office of the General Counsel Lee Hall, Suite 300 Tallahassee, Florida 32307 Thomas Peter Hockman, Esquire Hockman, Hockman & Hockman 2670 West Fairbanks Avenue Winter Park, Florida 32789 Daniel J. Woodring, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Honorable John Winn Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue The issue in this case is whether Respondent, Department of Business and Professional Regulation, Board of Accountancy (the "Board" or the "Florida Board"), is liable to Petitioner, David C. Hastings, for attorney's fees and costs pursuant to Section 57.111, Florida Statutes, and, if so, the amount of attorney's fees and costs Petitioner should be awarded.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: Respondent, the Board of Accountancy, is the state agency charged with the responsibility to regulate the practice of certified public accountants licensed within the state. Chapter 473, Florida Statutes. One of the Board's duties is to certify applicants for licensure to the Department of Business and Professional Regulation. An applicant may seek licensure by passing the Florida examination prescribed by Section 473.306, Florida Statutes, or may seek licensure by endorsement as prescribed by Section 473.308(3), Florida Statutes. Section 473.308(3), Florida Statutes, provides (emphasis added): The board shall certify as qualified for a license by endorsement an applicant who: 1. Is not licensed and has not been licensed in another state or territory and who qualifies to take the examination as set forth in s. 473.306 and has passed a national, regional, state, or territorial licensing examination which is substantially equivalent to the examination required by s. 473.306; and 2. Has completed such continuing education courses as the board deems appropriate, within the limits for each applicable 2-year period as set forth in s. 473.312, but at least such courses as are equivalent to the continuing education requirements for a licensee in this state during the 2 years immediately preceding her or his application for licensure by endorsement; or 1. a. Holds a valid license to practice public accounting issued by another state or territory of the United States, if the criteria for issuance of such license were substantially equivalent to the licensure criteria which existed in this state at the time the license was issued; or b. Holds a valid license to practice public accounting issued by another state or territory of the United States but the criteria for issuance of such license did not meet the requirements of subparagraph a., who qualifies to take the examination as set forth in s. 473.306 and has passed a national, regional, state, or territorial licensing examination which is substantially equivalent to the examination required by s. 473.306; and 2. Has completed continuing education courses which are equivalent to the continuing education requirements for a licensee in this state during the 2 years immediately preceding her or his application for licensure by endorsement. The Uniform CPA Examination, prepared by the Board of Examiners of the American Institute of Certified Public Accountants, is administered throughout the United States and constitutes the primary means by which state boards of accountancy determine the competence of CPA candidates. The "substantially equivalent" language of Section 473.308(3)(b)1.a, Florida Statutes, underscored above, has been interpreted since at least 1981 as requiring a candidate for licensure by endorsement to demonstrate that his grade on the Uniform CPA Examination would have been a passing score in Florida at the time he sat for the examination. See Cohen v. State Board of Accountancy, DOAH Case No. 80-2332 (Recommended Order, June 22, 1981). The Uniform CPA Examination consists of four sections. Since at least 1949, Florida has required that a candidate pass each section of the examination with a score of 75 or better. Cohen involved a candidate for licensure by endorsement who was a CPA licensed in the State of Pennsylvania. The evidence established that the Pennsylvania Board of Accountancy had determined to accept Mr. Cohen's score on the Uniform CPA Examination as passing, though he had failed to reach a score of 75 on two of the four sections. The Florida Board of Accountancy preliminarily denied Mr. Cohen's application because the criteria applied by the Pennsylvania board were not "substantially equivalent" to the Florida licensure criteria. The DOAH Hearing Officer recommended that the denial be upheld, and the agency's final order adopted that recommendation. Martha P. Willis, the director of the Division of Certified Public Accountants, testified that the Board had also become aware that the State of Illinois had a practice of averaging the four sections of the examination to arrive at a passing score, rather than requiring a score of 75 or better on each section. Ms. Willis testified that, from at least the early 1980's until 1996, the Board required any candidate for licensure by endorsement to submit his or her actual scores from the Uniform CPA Examination, to provide assurances that the candidate's score would have constituted a passing grade in Florida at the time the exam was administered. Candidates who could not provide evidence of their exam scores would have their applications denied. No evidence was presented to establish that this practice was ever codified by rulemaking. In 1996, the Board decided that outright denial was too onerous an outcome for a candidate who is licensed as a CPA in another state but who is unable to provide evidence of his actual examination scores. Since 1996, the Board has issued a license to such a candidate, but placed the candidate on probation for a period of one year, pending a practice review to ensure that the candidate possesses the technical ability and ethical attributes expected of a Florida CPA. Upon successful completion of the practice review, the probation is lifted and the candidate is fully licensed. The Board has not codified this practice through rulemaking. Mr. Hastings is a Virginia-licensed CPA. At all times relevant to this proceeding, he has owned and operated Hastings & Associates, P.A. in Pinellas County. Aside from a secretary, Mr. Hastings constitutes the entire workforce of Hastings & Associates, which has historically performed uncomplicated bookkeeping for individuals and small businesses. At all times relevant to this proceeding, Mr. Hastings' combined business and personal assets were less than $2 million. Seeking licensure by endorsement, Mr. Hastings wrote a letter dated May 10, 2001, authorizing the State Board of Accountancy of the Commonwealth of Virginia (the "Virginia Board") to release his regulatory records and test scores to the Florida Board. On May 25, 2001, the Virginia Board sent a letter to the Florida Board. The letter verified that Mr. Hastings had passed each section of the Uniform CPA Examination with a score of 75 or better, but also stated: "due to Virginia file retention schedule no other information available." The letter verified that Mr. Hastings had passed the Ethics Examination with a score of 90 percent or better, and that no record existed that Mr. Hastings had been found guilty of any violation by the Virginia Board. On June 22, 2001, Mr. Hastings submitted to the Florida Board an application for licensure by endorsement. On his application, Mr. Hastings answered affirmatively that he had unlawfully held himself out as a CPA in Florida prior to licensure. The Division of Certified Public Accountants investigated and found instances of Mr. Hastings having been disciplined in 1995 and 1998 for holding himself out as a CPA in Florida. No evidence was presented that Mr. Hastings' prior discipline caused the Board to treat him any differently than it did other candidates unable to verify their exact scores on the Uniform CPA Examination, and therefore no detailed findings are necessary on these incidents, which involved use of a business card stating that Mr. Hastings was a CPA. Some time passed after filing the application, and Mr. Hastings became concerned as to its status. He communicated with Board staff, who told him the delay was due to the fact that his exact examination scores had not been provided by the Virginia Board. At Mr. Hastings’ behest, the Virginia Board sent a second letter to the Florida Board, dated August 15, 2001. This letter restates that Mr. Hastings passed the Virginia Uniform CPA Examination, and adds: A search of the Board's records reveals that Mr. Hastings was selected for renewal in 1984, so he was initially licensed in 1983 or earlier. In order to qualify for licensure in Virginia before 1984, the Board's 1981 regulation 5.01.03.05 states that "a grade of at least seventy-five shall be necessary for passing" the CPA examination. On September 7, 2001, the Board adopted a staff recommendation that Mr. Hastings be granted a Florida CPA license with a one-year probationary period and practice review. Mr. Hastings received no prior notice of the Board's action. By letter dated September 21, 2001, Ms. Willis informed Mr. Hastings of the Board's action. The letter stated, in relevant part: One of the requirements for licensure is providing evidence of successful passage of the AICPA Uniform CPA Exam. According to the Virginia Board of Accountancy, due to the retention schedule, the exact exam dates and scores are not available, only that the applicant passed all four parts of the Uniform CPA exam with a score of 75% or above. The Board, at the September 7, 2001 meeting, reviewed your application for CPA licensure and determined you would be issued a license with stipulations. The Board's stipulations are listed in the Order. Accordingly, the stipulations outlined in the Order must be adhered to. The referenced Final Order, dated September 27, 2001, set forth the following conditions: . . . Respondent must notify the Board when employment in Florida commences, at which time he will be placed on one-year probation. A review must be done prior to the end of the probation period. The review shall include five (5) tax returns, three (3) compilations including any work papers and any audits or reviews if they have been performed. If the review has not been completed and presented to the Board, probation will be extended until the review is presented to the Board, at which time the Board may remove the probation or take such further action, as it deems necessary. This review will be conducted by a CPA/Consultant assigned by the Board and will be at Respondent's expense. Mr. Hastings again contacted the Virginia Board concerning his score, and received a letter dated October 24, 2001, from Nancy Taylor Feldman, the executive director of the Virginia Board. Ms. Feldman's letter stated, in relevant part: I have on several occasions in the past two months provided information to the Florida Board of Accountancy regarding your licensure status and Uniform CPA examination scores in the Commonwealth of Virginia. In my latest effort to explain that the Virginia Board of Accountancy had provided written documentation to the Florida Board of Accountancy that you passed the Uniform CPA examination for Virginia with a grade on each of the four parts of at least 75, I was provided some insight into the action by the Florida Board of Accountancy. A staff member stated that because of the fire in New Jersey Department of Professional Regulation about ten years ago that destroyed all regulant [sic] records, the Florida Board of Accountancy had established a policy that if actual examination grades could not be provided from another state, there would be a probationary period established for those who wanted to be obtain [sic] a CPA license there. I explained that if a candidate could not show proof that they had completed the Uniform CPA examination with a grade of at least 75 that a license could not be issued in Virginia, either. However, I explained that the Virginia Board had provided certification of your licensure status to the Florida Board of Accountancy and that our Board records substantiated that you received a grade of at least 75 on each of the four parts of the examination. As I indicated to you, the Board does not have your examination record card from the mid-1970s when you successfully completed the Uniform CPA examination and became licensed in Virginia. This morning, I personally reviewed the official minutes of the Board of Accountancy that are housed at the Virginia State Library. The minutes of the Board's meeting in April 1974 indicated by name, David C. Hastings, that your license application was approved by the Board, and you were granted Certificate Number 3883. It stated that you were a resident of Richmond, Virginia. Further in support of the statement by the Virginia Board of Accountancy that you passed each of the four parts of the Uniform CPA examination with a grade of at least 75, Board Regulations 54-92-5 effective October 15, 1970, 54-92-5 effective November 15, 1972 and POR 3-28 effective February 15, 1975 require a grade of at least 75 to pass the Uniform CPA examination. The Board did not make adjustments in examination grades as the regulations did not provide any discretion to the Board to raise or lower the grade required to pass the examination . . . . As you are aware, last week, I contacted the American Institute of Certified Public Accountants (AICPA) in an effort to locate your grades. The AICPA owns the Uniform CPA examination and that organization has the grades for all candidates. The AICPA is not permitted to retain the grades with the name and social security number of the examination candidate. A candidate ID number is issued at the time of registration to take the examination. AICPA can locate the grades for you with the ID number. Unfortunately, the Virginia Board does not have your candidate ID number and it is understandable that after nearly thirty years, you do not have that information . . . . (emphasis in original) On October 26, 2001, counsel for Mr. Hastings filed a petition for formal administrative hearing contesting the Board's decision to impose probationary status on Mr. Hastings' license. The petition asserted that the Board's rules made no provision for placing a licensee on probation for the reasons stated in Ms. Willis' letter of September 21, 2001, and that the Board's action was therefore based on an invalid non-rule statement or policy. The petition also claimed entitlement to reasonable costs and attorney’s fees under Section 57.111, Florida Statutes. Upon advice of the Board's counsel, Ms. Willis did not forward the petition to the Division of Administrative Hearings. Rather, she placed it on the agenda for the next regularly scheduled public meeting of the Board on December 17, 2001. Mr. Hastings was notified of this action by letter from Board staff dated November 6, 2001. On or about December 7, 2001, Ms. Willis approved a staff recommendation to the Board that Mr. Hastings' petition be denied and that the Board decline to remove his probationary status. However, at some point prior to the Board meeting, Ms. Willis had a telephone conversation with Ms. Feldman of the Virginia Board. Ms. Feldman conveyed to Ms. Willis essentially the same information contained in her October 24 letter to Mr. Hastings: that she had reviewed the minutes from the Virginia Board meeting at which Mr. Hastings was licensed, and that Mr. Hastings was approved for license pursuant to standards substantially equivalent to the contemporaneous Florida standards, but that she could not locate Mr. Hastings' exact scores on the Uniform CPA Examination. Ms. Willis testified that her conversation with Ms. Feldman served to distinguish this case from the blanket practice of requiring a probationary period for candidates unable to produce exact scores. The distinguishing factor was Ms. Feldman's assurance that Virginia's loss of Mr. Hastings' scores was a unique case, not a statewide problem or practice. At the December 17, 2001, Board meeting, Ms. Willis stated: . . . One thing I would like to clarify that in the correspondence that is in here is some point where I make reference to the Virginia Board of Accountancy-- their problem in this instance is that apparently they just lost that information relating only to Mr. Hastings. As you know we have instances in the past where some states have lost lots of information relating to lots of licensees because of floods and fires and whatever that does not appear to be the problem with Virginia. It doesn't appear that it would affect a lot of other people just in Mr. Hastings [sic] instance they have been unable to find out although they have given us assurances that their requirements are-- you have to have a grade of at least 75 or above in order to be licensed in Virginia. No explanation was offered for the apparent contradiction between this explanation and the Virginia Board’s initial statement that Mr. Hastings’ scores were unavailable “due to Virginia file retention schedule,” which appeared to imply a general practice of discarding old test scores. Moments later, the Board's counsel reiterated the widespread alteration and averaging of scores received from Pennsylvania and Illinois, pointing out that "there was history of not just losing information but also substantive problems." Counsel stated, "To my knowledge there has not been an issue in Virginia. I don't think we've ever seen where Virginia lost the grades in the first place. There has been no history in Virginia that there has been any changing of grades or modification of grades " After this discussion, the Board adopted a motion "to remove the requirement for probation due to the fact that the loss of [Mr. Hastings'] grades by Virginia appears to be an isolated instance." On January 15, 2002, a Board order was entered rescinding the stipulations previously placed on Mr. Hastings' Florida CPA license. The Board is an "agency" as defined in Section 57.111, Florida Statutes; the Board initiated an administrative proceeding against Mr. Hastings in that it was required by law or rule to advise Mr. Hastings of a clear point of entry after it issued his probationary license, a "recognizable event in the investigatory or other free-form proceeding of the agency," as set forth in Section 57.111(3)(b)3, Florida Statutes; and the Board was not a nominal party. On March 14, 2002, Mr. Hastings filed the Petition in the instant case. An Affidavit of Fees and Costs Expended was attached to the Petition in which it is represented that attorney's fees in the amount of $1,459.00 and costs of $270.00 were reasonably incurred in the underlying case between October 18, 2001 and January 28, 2002. Also attached to the Petition was a Supplemental Affidavit of Fees and Costs Expended in which it is represented that attorney's fees in the amount of $462.00 were reasonably incurred between January 29, 2002 and February 28, 2002. On May 8, 2002, Mr. Hastings filed a Second Supplemental Affidavit of Fees and Costs Expended in which it is represented that attorney's fees in the amount of $2,142.00 and costs of $176.00 were reasonably incurred between March 7, 2002 and April 30, 2002. The affidavits and expert testimony offered at the hearing establish that the claimed fees totaling $4,063.00 and costs totaling $908.00 were reasonably incurred.
