The Issue Should the application to organize a new cemetery company submitted by Trinity Memorial Gardens of Lakeland, Inc. (Trinity), be granted.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made:
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department enter a Final Order granting Trinity's application to establish a new cemetery in Polk County, Florida. DONE AND ENTERED this 2nd day of September, 1997, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6947 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of September, 1997. COPIES FURNISHED: Theresa G. Walsh, Esquire Office of the Comptroller 101 East Gaines Street, Suite 526 Tallahassee, Florida 32399-0350 Bruce Culpepper, Esquire AKERMAN, SENTERFITT and EIDSON, P.A. 216 South Monroe Street, Suite 200 Post Office Box 10555 Tallahassee, Florida 32302-2555 Chris H. Bentley, Esquire Diane D. Tremor, P.A. John L. Wharton, Esquire Rose, Sundstrom and Bentley 2548 Blairstone Pines Drive Tallahassee, Florida 32301 William E. Williams, Esquire HUEY, GUILDAY AND TUCKER, P.A. 106 College Avenue Highpoint Center, Suite 900 Tallahassee, Florida 32302 Harry Hooper, General Counsel Department of Banking and Finance The Capitol, Room 1302 Tallahassee, Florida 32399-0350
Findings Of Fact By application not presented at this hearing, Garden of Memories, Ltd., Petitioner, seeks a license to establish a perpetual care cemetery in Springfield, Florida, a community with a population of approximately 7,500 located just east of Panama City, Florida. Intervenors are owned by Cem-A-Care of Panama City, Florida, are operated as one cemetery with one manager, and services are offered at the same price at both cemeteries (Exhibit 2.) These are the only private, perpetual care cemeteries in Bay County. Several cities in Bay County have cemeteries but in almost all of these cemeteries no spaces are available for sale. In others, the lots available are restricted to the residents of the community where the lot is located, while one city charges non-resident 150% of the fee for lots charged to residents. In the city-owned cemeteries east of Panama City, no additional lots are available. The population of Bay County is growing and, although specific demographic projections were not submitted, the county planners estimate a 100% increase in residential acreage in unincorporated areas by 1990, with most of this growth to the east of Panama City. The evidence of need for an additional private cemetery in the proposed location, which was attested to be at least six witnesses, was unrebutted. Likewise, the testimony that the introduction of another perpetual care cemetery in Bay County will create needed competition, and thereby improve service, was not rebutted. People generally prefer to bury their loved ones reasonably close to their homes. For those residents in the eastern part of Bay County, there is no cemetery available to allow this preference. Opening the proposed cemetery will alleviate this problem.
The Issue The issue in this case is whether Respondent, the Department of Environmental Protection, violated the Florida Civil Rights Act of 1992 as alleged in a Petition for Relief filed by Petitioner, Edwin R. Bollinger, with the Florida Commission on Human Relations.
Findings Of Fact Petitioner, Edwin R. Bollinger, is a Caucasian male, born March 18, 1936. At the time of the alleged unlawful employment practice at issue in this case, Mr. Bollinger was 58 to 59 years of age. Mr. Bollinger was employed by the State of Florida from at least 1982 until his termination in May 1995. At all times relevant to this matter, Mr. Bollinger was employed by Respondent, the Department of Environmental Protection (hereinafter referred to as the "Department"), or, prior to its absorption into the Department, the Department of Natural Resources. Prior to July 1994 Mr. Bollinger served as a park officer in the Florida Park Service of the Department. Mr. Bollinger was stationed at Bill Baggs Cape Florida State Recreation Area located in Dade County, Florida. Two other park officers were working with Mr. Bollinger in July 1994: Antonio Sanchez and Kathy Martinez. Effective July 1, 1994, all Florida Park Service officers were reclassified as law enforcement officers and were transferred to the Department's Division of Law Enforcement (hereinafter referred to as the "Division"). The position of park officer was abolished. Colonel Mickey Watson was the Director of the Division at all times relevant to this matter. Captain Carl Nielsen, Mr. Bollinger's immediate supervisor, met with Mr. Bollinger, Ms. Martinez, and Mr. Sanchez on July 1, 1994, to swear them in as law enforcement officers within the Division. Captain Nielsen explained the nature of the new positions to the three officers, gave them a copy of the position description for the positions, and gave them new manuals. In particular, Captain Nielsen explained that the new positions would require the enforcement of the laws and rules that governed the parks on a full-time basis and the devotion of their efforts to full-time law enforcement. On February 3, 1995, Captain Nielsen placed Mr. Bollinger, Ms. Martinez, and Mr. Sanchez on performance improvement plans (hereinafter referred to as "PIPs") because of deficiencies in their performance since their reclassification. Ms. Martinez and Mr. Sanchez successfully completed their PIPs. On May 10, 1995, Mr. Bollinger was dismissed from his position with the Department for failure to perform his duties satisfactorily. The dismissal was recommended by Captain Nielsen and approved by Colonel Watson. Mr. Bollinger was 59 years of age at the time of his dismissal. Colonel Watson, Captain Nielsen, and Mr. Sanchez were in excess of 40 years of age at the time of Mr. Bollinger's dismissal. Ms. Martinez was less than 40 years of age at the time of Mr. Bollinger's dismissal. Mr. Bollinger challenged his dismissal before the Public Employees Relations Commission (hereinafter referred to as "PERC"). On June 22 and 23, 1995, and July 5, 1995, a hearing was conducted by a PERC Hearing Officer. A Recommended Order was entered on August 2, 1995, finding that just cause existed for Mr. Bollinger's dismissal. The Recommended Order included the following conclusion: In conclusion, the Agency has proven by a preponderance of the evidence that Bollinger did not meet his performance standards, after he was informed of the deficiencies, given assistance in improving the deficiencies, and had an amply opportunity to improve his deficiencies. See Croce v. Department of Corrections, 3 FCSR 239 (1988), affirmed, 553 So.2d 1181 (Fla. 4th DCA 1989)(unsatisfactory performance on one or few job duties which are critical factors for the effective functioning of an agency can support discipline for unsatisfactory performance). Thus, Bollinger's unsatisfactory performance of his duties supports just cause for discipline. Page 19, Respondent's Exhibit 1. The Recommended Order was subsequently adopted by PERC by Final Order entered on or about January 23, 1996. The evidence failed to prove that Mr. Bollinger's age played any role in his dismissal by the Department. In June of 1990 Mr. Bollinger underwent extensive surgery on his right shoulder, chest, and neck due to squamous cell carcinoma right parotid gland. Mr. Bollinger returned to work on November 12, 1990. Although the following description of the results of Mr. Bollinger's initial and subsequent surgery was written after Mr. Bollinger's termination from employment with the Department, it adequately describes his condition during the times relevant to this proceeding: This produced a deformity of the chest wall as well as more deformity of the supraclavicular area of the right side of his neck as well as a large scar in that area. The surgery included dissection of the facial nerve which was not completely successful because of the entanglement of the tumor around the nerve. [Mr. Bollinger] was left with a facial nerve palsy. He also complains of some loss of hearing, loss of motion of the shoulder and loss of motion of his neck. Petitioner's Exhibit 11. After returning to work after his surgery, Mr. Bollinger informed his immediate supervisor that he could perform his responsibilities without limitation but requested that he be permitted time to switch his firearm qualification from his right hand to his left hand. He also made informal requests for reduced beach patrol, foot patrol, and water patrol so that he could minimize his exposure to the sun. The evidence failed to prove that these informal requests were not granted. Mr. Bollinger did not inform Captain Nielsen that his physical condition would in any way prevent him from satisfying the PIP imposed on him by Captain Nielsen prior to his dismissal. Mr. Bollinger also did not make any request to the Department for any accommodation for his physical condition other than noted, supra. Despite the consequences of the surgery performed on Mr. Bollinger, he continued to carry out his duties with the Department from 1990 to 1994 when he was discharged for reasons unrelated to his medical condition. The evidence failed to prove that Mr. Bollinger's disability played any role in his dismissal by the Department. The evidence failed to prove that the Department's actions were a pretext for discrimination based upon Mr. Bollinger's age or disability. There was no evidence that the Department's dismissal of Mr. Bollinger was grounded on discriminatory animus or that discriminatory reason motivated the Department in its actions toward Mr. Bollinger.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Commission on Human Relations finding that Edwin R. Bollinger failed to prove that the Department of Environmental Protection committed an unlawful employment practice in violation of Section 760.10(1)(a), Florida Statutes (1995), and dismissing, with prejudice, Mr. Bollinger's Petition for Relief. DONE AND ENTERED this 15 day of June, 2000, in Tallahassee, Leon County, Florida. LARRY J. SARTIN 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 15th day of June, 2000. COPIES FURNISHED: Edwin R. Bollinger 6372 Alderwood Plaza Woodbury, Minnesota 55125 Marshall G. Wiseheart, Assistant General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000 Sharon Moultry, Agency Clerk Florida Commission on Human Relations 325 John Knox Road, Building F Tallahassee, Florida 32303-4149 Dana A. Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road, Building F Tallahassee, Florida 32303-4149
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: The Department is the administrative agency of the State of Florida charged with the responsibility and duty to prosecute administrative complaints pursuant to the laws of the State of Florida, in particular Chapter 470, Florida Statutes. At all times material to this proceeding, Respondent was a licensed funeral establishment in the State of Florida known as Marion Community Funeral Chapel (Community Chapel), located at 917 South Delaney Avenue, Avon Park, Florida, and issued license number FH 0001398. At all times material to this proceeding, Eloise Marion (Marion) was the sole owner of Community Chapel. Eddie J. Wyche, a 60 year old male, died while a patient in the care of Florida Hospital, Avon Park, Florida. A death certificate issued on March 29, 1995, shows the time of death to be 2:00 p.m. on March 23, 1995. Jannie L. Wyche, wife of Eddie J. Wyche (deceased), was present at the hospital at the time of Eddie Wyche's death. Jannie L. Wyche (wife) was the "legally authorized person" to direct the disposition of the decedent's body. Hospital officials advised the wife that the hospital did not have the necessary refrigeration facility to hold the dead body and that the body had to be removed immediately. Thereafter, the hospital furnished a release form for the wife to sign which legally allowed Community Chapel to remove the body of the deceased from the hospital and to transport the body to Community Chapel's place of business. Later on that same day, March 23, 1995, Marion, along with Leroy Brown, transported the body to Community Chapel. In the early evening of March 23, 1995, Marion went to the deceased mother's home to inquire about making funeral arrangements but was advised that the wife would be handling the funeral arrangements. Later on that same evening, Marion went to the wife's home to make an appointment to discuss the funeral arrangements. After Marion advised the wife that she had picked up the body, the wife told Marion "do what you have to do" or words to that effect. In response to the wife's inquiry of getting together to "make arrangements", Marion advised the wife that Marion did not have time at the moment to discuss the funeral arrangements due to a prior appointment, and because of a "viewing", which was scheduled for Friday, March 24, 1995, and a "burial" scheduled for Saturday, March 25, 1995, she would not be available until sometime between 3:00 p.m. and 6:00 p.m. on Saturday, March 25, 1995. No specific time for an appointment to discuss the "arrangements" was agreed upon at this time. Because there was nothing further, other than embalming, which needed to be done to the body, Marion interpreted the wife's response of "do what you have to do" as the wife's verbal permission to proceed with embalming the body. Marion proceeded with having the body embalmed. Although the wife and Cheryl Johnson testified that the wife did not make such a statement, I find Marion's testimony to be more credible in this regard. Previously, Marion had previously handled the arrangements for the funerals of the wife's mother and sister, and it does not seem logical that Marion would have moved forward with the embalming body without some indication from the wife to do so. Not completely satisfied with Marion's response about a time for making "arrangements", the wife, on the advice of her sister, decided to engage another funeral establishment to handle the funeral. Several hours later, the wife contacted Marion and advised Marion that she had decided to engage another funeral establishment to handle the funeral arrangements. At this time, the wife neither advised Marion as to the name of the other funeral establishment that was to handle the funeral arrangements nor give Marion any express order for the release of the body. Later on in the evening of March 23, 1995, the wife telephoned Ed Harrell in regards to his funeral establishment handling the funeral arrangements for her late husband. Harrell advised the wife to contact and advise Marion of her decision, and that he would come by Marion Community the next day to pick up the body. After talking with the wife, sometime around 10:00 p.m. on March 23, 1995, Ed Harrell telephoned Marion to advise her of the wife's decision to engage his establishment in handling the funeral arrangements. Harrell also told Marion that he had a release form to pick up the body and would be around on Friday, March 24, 1995, to pick-up the body. Upon inquiry by Harrell, Marion advised Harrell that the family owed for transporting and embalming the body. There is no evidence that a release form was presented to Marion at any time before, or at the time, the body was released to Harrell by Marion. Sometime on Friday, March 24, 1995, the wife advised Marion that Ed Harrell would be handing the arrangements for the funeral and would be by to pick up the body. At this time, Marion advised the wife that the wife owed Marion for transporting and embalming the body, and that "someone got to pay me for transporting and embalming." The amount owed was not discussed at this time. Marion did not tell the wife that the body would not be released unless, and until, the amount owed was paid. After the wife talked with Marion, on Friday, March 24, 1995, Ed Harrell attempted to visit Marion in regards to picking up the body, but Community Chapel was closed. Ed Harrell then went to the wife's home. Later that day, Harrell contacted Marion by telephone, and was informed that there was a charge of $90.00 for transporting the body and $375.00 for embalming the body which had to be paid. Marion did not tell Ed Harrell the body would not be released unless, and until, the amount was paid. On each occasion (at least three) when Harrell called Marion about picking up the body, Marion insisted that she must be paid for the embalming (there was no dispute about the transport fee), and each time Marion was told by Harrell that the wife would not pay the embalming fee. And each time that Marion was told that the wife would not pay the embalming fee, Marion would hang up the telephone. However, the more credible testimony is that Marion did not tell Harrell that the body would not be released unless, and until, the amount owed was paid. Apparently, Harrell considered Marion's hanging up the telephone as a refusal to release the body without first being paid. Although it may have been frustrating, Marion's hanging up the telephone when told she was not going to be paid, does not rise to the level of refusing an express order to release the body. On Saturday, March 24, 1995, Marion released the body to Ed Harrell, and at the same time, Respondent was paid $465.00 for services rendered. Marion assumed, based on the wife instructing Marion to "do what you have to do", that she had oral permission from the wife to embalm the body of the deceased, However, Marion neither attempted, nor was she given, written permission or authority from the wife to embalm the body of the deceased. Other than advising Marion that Ed Harrell would be by to pick up the body, there is no evidence that the wife gave Marion an express order, requiring Respondent to promptly surrender the body to Ed Harrell. Likewise, there is insufficient evidence to show that Marion refused to release the body unless, and until paid, after being given an express order by Harrell, on instructions from the wife, to release the body, notwithstanding the testimony of Ed Harrell which I find lacks credibility
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law and the disciplinary guidelines set out in Rule 61G8-30.001(4), Florida Administrative Code, it is recommended that the Board enter a final order finding that Respondent did not violate Section 470.036(1)(p), Florida Statutes (1993), and dismissing Count I of the Administrative Complaint. It is further recommended that the Board finds that Respondent violated Section 470.036(12)(t), Florida Statutes (1993), and that such violation was a "technical violation" requiring only a written reprimand and an assessment of an administrative fine in the amount of Five Hundred Dollars. RECOMMENDED this 26th day of June, 1996, at Tallahassee, Florida. WILLIAM R. CAVE, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of June, 1996. APPENDIX TO RECOMMENDED ORDER CASE NO. 95-5940 The following constitutes my specific rulings, pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the Department in this case. Department's Proposed Findings of Fact. Proposed findings of fact 1-8, 10-14, 16 and 18 are adopted in substance as modified in Findings of Fact 1 through 22. Proposed finding of fact 9, as stated, is not a finding of fact but a conclusion of law. Proposed findings of fact 15 and 17 are not supported by evidence in the record. As to proposed finding of fact 19, Respondent was paid $465.00 which was calculated as $375.00 for embalming and 90.00 for transporting. There is an error in calculating the total amount due on Department's exhibit 4 since $375.00 plus $95.00 equals $470.00, not $465.00 as indicated on exhibit 4. The evidence shows that Respondent was paid $465.00 at the time the body was released but the release of the body was not condition upon the payment. Proposed findings of fact 20 and 21 are neither material nor relevant. Respondent's Proposed Findings of Fact. Respondent elected not to file any proposed findings of fact and conclusions of law. COPIES FURNISHED: Gregory D. Venz, Agency Clerk Department of Health and Rehabilitative Services Building 7, Suite 728 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Richard Doran, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building 7, Suite 728 Tallahassee, Florida 32399-0700 Jack Emory Farley, Esquire Department of Health and Rehabilitative Services District 14 270 Bartow Municipal Airport Bartow, Florida 33830 R. E. D. (Address of Record)
