The Issue Whether the respondent discriminated against the petitioner on the basis of
Findings Of Fact In the summer of 1981, petitioner took emergency medical technician (EMT) training and in the fall of 1981, attended Orange-Orlando Fire Training Academy. She received her emergency medical technician certification from the State of Florida in the fall of 1981, and on November 13, 1981, received a certificate of completion from the fire training academy. Thereafter, petitioner submitted applications for employment with several fire departments throughout Central Florida. On December 16, 1981, petitioner submitted an application for employment with Orange County which reflected that petitioner was "studying paramedics." On January 6, 1982, petitioner supplemented her written application to the county with a Fire Fighter Data Questionnaire which indicated that she was "presently taking paramedics." On the questionnaire, the petitioner explained her reasons for wanting to become a fire fighter as follows: "I want to be a paramedic firefighter because I enjoy being trained to help people & save lives. I want to work emergency care in the streets rather than in the hospital." In June, 1982, petitioner's name came to the top of the eligibility list, and she was contacted by Mr. John Jung, Administrative Assistant, Orange County Fire Department (OCFD or Department). By that time, petitioner had moved from Orlando to Medeira Beach, Florida, and was enrolled in a paramedic course offered by St. Petersburg Junior College. Mr. Jung offered petitioner the fire fighter position that was open and explained that the position would have to be filled by the middle of July. Petitioner indicated to Mr. Jung that she was currently enrolled in paramedic school, and therefore could not accept the position. Mr. Jung was aware that there was a critical shortage of paramedics within the Orange County Fire Department 2/, and therefore he asked petitioner if she would be willing to accept the position if it were possible to hold the position open until she graduated from school. The petitioner asked Mr. Jung if the Department would be in a position to reimburse her for her paramedic schooling. Mr. Jung discussed the telephone call with his superior, Chief Cragan. Mr. Jung explained that he had an applicant that was completing paramedic training and asked if it would be possible to hold an opening for that candidate. Mr. Jung also asked if the Department could reimburse the candidate for her paramedic educational training. Mr. Jung was told that the Department could not legally reimburse a non-employee, but that it would be permissible to hold an opening for the candidate contingent upon the person practicing as a paramedic. Thereafter, Mr. Jung called petitioner and informed her that, although she could not be reimbursed for her paramedic training, a position would be held open for her until completion of her paramedic training if she would agree to function as a paramedic. Petitioner accepted the position, and Mr. Jung informed her that the OCFD would contact her at the time she was completing school and make arrangements for her processing. 3/ On August 20, 1982, after successfully completing her paramedic training, the petitioner moved to Orlando. The petitioner's employment with the Orlando County Fire Department began on September 13, 1982. Petitioner's first working assignment was Station 30 under Lieutenant Hurd. Chief Dryburgh was the Battalion Chief for Station 30, but during most of the time that petitioner was assigned to that station, Norman Scholar was Acting Battalion Chief. On or about October 11, 1982, petitioner was transferred to Station 66 where she worked under Lieutenant Robert Danks. Shortly after her transfer, Chief Dryburgh delivered petitioner's 30 day evaluation to her. On the evaluation form the category "quality of work" had been changed from "needs improvement" to "acceptable", and "physical condition" had been changed from "acceptable" to "needs improvement". The petitioner testified that the changes were made after she had signed the evaluation and that Chief Dryburgh stated to her that he had made the changes. Chief Dryburgh testified that he saw Lieutenant Hurd make the changes on the form and that he then delivered the employment evaluation to petitioner and she signed it at that time. The dates next to the signatures of Lieutenant Hurd and petitioner show that both signed the evaluation on October 17, 1982. Petitioner was not assigned to the same station as Lieutenant Hurd at that time, and the only reasonable conclusion that can be made is that Lieutenant Hurd signed the form, gave it to Chief Dryburgh for delivery to petitioner, and then petitioner signed the form. However, the questions of whether the alterations were made prior to petitioner's signature and who made them are irrelevant. The evaluation was not related to the decision to terminate petitioner's employment. Further, the changes were not negative, petitioner's overall evaluation was good and the form indicates that petitioner was meeting probationary requirements. While at Station 66, an unpleasant incident occurred between petitioner and Lieutenant Danks, her supervisor. When the incident occurred, the fire truck had just returned to the station. Petitioner, as the fire fighter in the jump seat, had the job of getting off the truck, going to the rear, and directing the driver in backing the truck into the garage. Petitioner did not get off the truck when she should have because she heard a radio call coming in and thought that the crew might be going out on another call. When Lieutenant Danks saw that the petitioner was still sitting on the truck, rather than being in position to direct the truck into the garage, he started yelling at her to get off the truck and back it in. He was shouting so loudly that the fire fighters inside the station could hear him. He then went into the station, and a few minutes later the petitioner approached him and asked if she could talk to him because she felt that he had reprimanded her in an inappropriate manner. Lieutenant Danks stated that he was busy at the moment and would talk to her later. About 15 minutes later Lieutenant Danks told petitioner that he was ready to talk to her and they went to the Chief's office. The focus of this conversation was petitioner's concern about the manner in which Lieutenant Danks reprimanded her rather than petitioner's failure to get off the truck as quickly as she should have. Again Lieutenant Danks raised his voice to the level where the other fire fighters could hear him even though the door to the Chief's office was closed. Lieutenant Danks had never before reprimanded a fire fighter under his command in the manner in which he reprimanded the petitioner. A few hours after the meeting in the Chief's office, Lieutenant Danks informed the petitioner that she was being suspended because she had taken sick leave on an earlier shift. The petitioner had taken sick leave because she had injured her hand while on a prior shift and had not had the time to go to the doctor and obtain a medical release. However, the suspension was cancel led due to the Intervention of Chief Moody. Although Lieutenant Danks' behavior on the day in question may have been inappropriate, there is nothing that would suggest that he reacted in the manner that he did due to petitioner's sex. The shouting incident was an isolated occurrence. Lieutenant Danks had never before reprimanded petitioner or any other fire fighter, male or female, in that manner. Further, petitioner's treatment at Station 66 was totally unrelated to the later events which led to petitioner's termination and is, therefore, irrelevant. Subsequently, and in accordance with petitioner's request, petitioner was transferred to Station 80 where she worked under the immediate supervision of Lieutenant Brus. Lieutenant Brus had an interview with petitioner, as he did with all new personnel assigned to his shift, to advise her as to what would be expected of her and as to what she should expect from him. During the course of the interview, petitioner told Lieutenant Brus that she had gone to school to get her paramedic certification and that she had been hired by the OCFD with the understanding that she would function as a paramedic as soon as she got notification from the state that she had passed the state examination. Petitioner was proud of the fact that when the OCFD had contacted her instructor to find out how she was performing in school, the instructor told them that she was expected to graduate in the top of her class. On December 4, 1982, while assigned to Station 80, petitioner received notification from the state that she had passed the paramedic exam and was state certified to practice. The next shift day Battalion Chief Brock asked petitioner if she had heard from the state regarding her exam, and she informed Chief Brock that she had passed. On December 7, 1982, Battalion Chief Hall, second-in- command of the Emergency Medical Services unit under Chief Montes de Oca, called petitioner to find out when she would get her Orange County paramedic card. 4/ Petitioner informed Chief Hall that she did not intend to get her Orange County card because she did not want to work for the Orange County Fire Department as a paramedic. Chief Hall agreed to meet with petitioner later that day to discuss the situation. On the afternoon of December 7, 1982, petitioner met with Chief Hall, Chief Montes de Oca, and Lieutenant Brus. Once again petitioner stated that she did not intend to get her Orange County card at anytime in the near future and stated that if she did obtain the card, it would not be to work as a paramedic for the OCFD but to work on her days off for a private ambulance service. She stated that since the OCFD had not paid for her paramedic education, she could not be required to function as a paramedic unless the OCFD reimbursed her for the cost of her schooling. She also stated that she did not want to work as a paramedic for the OCFD because she did not want to be transferred due to problems she had previously had. Chief Montes de Oca explained that the meeting was not to discuss a potential transfer but to discuss petitioner's obtaining an Orange County card. Chief Montes de Oca concluded the meeting by ordering the petitioner to obtain her county certification by Monday morning, December 13th, or face disciplinary action. Petitioner was told to show Lt. Brus proof of county certification on Friday, December 10th. After Chief Montes de Oca and Chief Hall left the meeting, Lt. Brus talked with petitioner about her attitude toward ranking officers of the OCFD. Throughout the meeting petitioner had been disrespectful, outspoken, and argumentative. Lt. Brus advised petitioner that she would have to get the card on the following two days, which she had off, because Friday, December 10th, she would be on duty; the bureau that handles the cards would be closed on Saturday and Sunday; and she had to have the card when she reported to work at 7:30 a.m., Monday morning. Petitioner again stated that the OCFD should reimburse her for her schooling if they expected her to work as a paramedic. Lt. Brus told her that she was given an order and was expected to carry it out. Petitioner stated that she would get the card. On December 10, 1982, petitioner reported to work without the Orange County card. She told Lt. Brus that she did not have the time to get the card because she was taking or studying for final exams in school on December 8th and 9th. Lt. Brus contacted Chief Hall and informed him that petitioner did not have her card and Chief Hall notified Chief Rivers, head of personnel, whose initial reaction was to suspend petitioner immediately. However, since petitioner was officially given until December 13th to get her card, it was decided that petitioner would be given time off from duty on December 10th in order to get the card. Chief Montes de Oca instructed Lieutenant Brus that petitioner could have time off, without pay, to get the card, and Lieutenant Brus relayed that information to petitioner. Later in the discussion with petitioner, Lieutenant Brus exercised his authority as petitioner's immediate supervisor and offered her time off with pay. Petitioner explained that she did not have transportation available because her boyfriend, now her husband, had driven her to work. Lieutenant Brus then offered petitioner the use of his personal car, which she refused. She was not offered transportation by the OCFD, which petitioner felt she was entitled to. Petitioner testified as to her demand for transportation from the Department as follows: I said to them, if it is that important and it really does have to do with my job and you want to transport me down there, I'll get my card, and I'll go down there. * * * So that's why I figured if it was really that important for them to have it, then they could certainly -- if they had to have it that day and couldn't wait and wanted to do it on my work day, then they could provide the trans- portation. (T-117, 118) Because the Department did not provide transportation, the petitioner did not get her card. 5/ On Monday morning petitioner attended a meeting with Chief Rivers, Chief Montes de Oca, Chief Hall, and Lieutenant Brus. The petitioner was asked if she had obtained her Orange County card as she had been ordered to do. She said she had not. She was asked if she intended to get it, and she said no. Chief Rivers then informed the petitioner that he had no alternative but to discharge her for failing to obey a direct order of a superior officer and for insubordination. The petitioner was notified of her termination by certified letter dated the same day. Evidence was presented that certain male fire fighter/paramedics had been allowed to stop functioning as paramedics. However, the evidence also showed that the reassignments of those fire fighters from paramedic duties to other duties were sound management decisions and were not unilateral decisions of the fire fighters. In two of the cases the individuals showed signs of stress which demonstrated itself in the form of inadequate decision making and inadequate skills. In one case the individual lost his certification due to incompetency. In another case the individual was promoted to inspector, and the last case involved a situation where all the engineer/paramedics had to commit to either paramedic or engineer so that the county could determine whether they had engineer slots open or paramedic slots. 6/ Obviously, not one of the situations involving the male fire fighter/paramedics is similar to petitioner's situation. 7/ Petitioner's termination from her employment had nothing to do with her sex. A position on the Orange County Fire Department was held open for the petitioner solely because of her paramedic training and her expressed desire to serve as a paramedic. The Orange County Fire Department had a desperate need for paramedics and had every reason to expect that the petitioner would take all the steps necessary to become certified to function as a paramedic in Orange County. Prior to her hiring, the petitioner was told that she could not be reimbursed for her paramedic training. Yet when her superior officers inquired about her county certification, the petitioner informed them that she would not obtain it without the county paying her $4,000 to reimburse her for her schooling. When, as a last resort, she was ordered to get her Orange County card, she refused to obey the order. Petitioner's continued insubordination and her refusal to comply with a direct order of her superior officer, justifiably caused her to be dismissed from her position with the Orange County Fire Department.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered dismissing the petition for relief filed by the petitioner. DONE and ENTERED this 30th day of August, 1985, in Tallahassee, Leon County, Florida. DIANE A. GRUBBS 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 30th day of August, 1985.
The Issue The issue in this case is whether Respondent, Ricardo Cabrera, committed the offenses alleged in an Administrative Complaint issued by Petitioner, the Department of Financial Services, on March 9, 2005, and, if so, what penalty should be imposed.
Findings Of Fact The Parties. Petitioner, the Department of Financial Services (hereinafter referred to as the "Department"), is the agency of the State of Florida charged with the responsibility for, among other things, the licensure of individuals who wish to install and maintain fire suppression equipment and the investigation and prosecution of complaints against individuals who have been licensed in Florida. See Ch. 633, Fla. Stat. Respondent, Ricardo Cabrera, is and has been at all times material hereto a licensed Fire Equipment Dealer, Class C, in the State of Florida. Mr. Cabrera, who first applied for licensure as a Fire Equipment Dealer, Class C, on or about October 10, 1989, was issued license number 70219300011990 on January 17, 1990. The Department has jurisdiction over Mr. Cabrera’s licenses. Criminal Case. On or about October 20, 1989, after Mr. Cabrera had first applied for licensure by the Department, a criminal Information was filed in case number 89-38498, in the Circuit Court of the Eleventh Judicial Circuit in and for Dade County, Florida, charging that on September 30, 1989, Mr. Cabrera, unlawfully and feloniously had in his actual or constructive possession cocaine, a controlled substance. On or about December 12, 1989, Mr. Cabrera pled nolo contendere to possession of cocaine, a third degree felony, in the Circuit Court of the Eleventh Judicial Circuit in and for Dade County, Florida. Adjudication was withheld on the charge, and Mr. Cabrera was sentenced to probation for a period of one year and was ordered to successfully complete the T.A.S.C. drug program, a narcotics treatment program. As a result of the fact that the court withheld adjudication of guilt, Mr. Cabrera did not lose any civil rights. Mr. Cabrera's 1998 License Renewal Application; Count I. Mr. Cabrera applied for renewal of his license as a Fire Equipment Dealer, Class C, on or about December 5, 1998. Mr. Cabrera was asked and answered in the negative the following question on the application for renewal he filed with the Department: “Have you ever been convicted or pled nolo contendere to a felony?” The question, "[h]ave you ever been convicted or pled nolo contendere to a felony” is clear and understandable. Given Mr. Cabrera's plea of nolo contendere to the felony of possession of cocaine on December 12, 1989, the only reasonable response to this question Mr. Cabrera should have given was "yes." Mr. Cabrera has given no explanation as to why he failed to answer the question truthfully. Mr. Cabrera's license renewal application was received by the Department on or about December 21, 1998, and the renewal of his Fire Equipment Dealer, Class C, license was granted on June 14, 1999. Mr. Cabrera's 1999 License Renewal Application; Count II. Mr. Cabrera again applied for renewal of his license as a Fire Equipment Dealer, Class C, on or about December 6, 1999. Mr. Cabrera was asked and answered in the negative the following question on the application for renewal he filed with the Department: “Have you ever been convicted or pled nolo contendere to a felony?” The question, "[h]ave you ever been convicted or pled nolo contendere to a felony” is clear and understandable. Given Mr. Cabrera's plea of nolo contendere to the felony of possession of cocaine on December 12, 1989, the only reasonable response to this question Mr. Cabrera should have given was "yes." Mr. Cabrera has given no explanation as to why he failed to answer the question truthfully. Mr. Cabrera's license renewal application was received by the Department on or about December 13, 1999, and the renewal of his Fire Equipment Dealer, Class C, license was granted on December 15, 1999. Mitigating/Aggravating Factors. An Administrative Complaint was filed against Mr. Cabrera on or about December 30, 1994, as Qualifier for BC & ABC Fire Extinguisher Maintenance, alleging that he maintained two places of business without separate Fire Equipment Dealer licenses and qualifiers for each, and that he allowed an unlicensed person to conduct the business of a Fire Equipment Dealer. On or about August 8, 1995, Mr. Cabrera was placed on probation for two years and ordered to pay a fine of $1,000.00. An Administrative Complaint was filed against Mr. Cabrera on or about June 29, 2004, as Qualifier for BC & ABC Fire Extinguisher Maintenance, alleging that he allowed the insurance required to be carried by Section 633.061, Florida Statutes, for the business to lapse. On or about February 11, 2005, Mr. Cabrera was placed on probation for one year and ordered to pay a fine of $1,000.00.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department: Finding that Mr. Cabrera, did not violate Section 633.162(4)(f), Florida Statutes, as alleged in Counts I & II of the Administrative Complaint; Finding that Mr. Cabrera, violated Section 633.162(4)(g), Florida Statutes, as alleged in Counts I & II of the Administrative Complaint; and Revoking Mr. Cabrera's license for a period of four years from the date of the final order. DONE AND ENTERED this 21st day of July, 2005, in Tallahassee, Leon County, Florida. S 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 21st day of July, 2005.
The Issue The issue presented is whether the Department committed an unlawful employment practice by terminating Petitioner's employment due to her age or her sex or by retaliating against Petitioner.
Findings Of Fact Fred Chaplin supervises the fire protection specialists (fire inspectors) for the southeast region of the Bureau of Fire Prevention, Division of State Fire Marshal, Department of Financial Services. The headquarters for the southeast region is in West Palm Beach, with a field office in Plantation. For approximately five months there had been a vacant fire inspector position in the southeast region, and Ashley Caron, a fire protection specialist, was covering all of the counties in the southeast region during that time. She worked out of the Plantation field office where Amy Peebles was the administrative assistant. Michael Long, another fire protection specialist, worked out of the West Palm Beach office. He, like Ashley Caron, was responsible for inspecting state-owned and state-leased buildings and new construction. He was also responsible for all fire alarms in the southeast region whether they were in new construction or in existing buildings. He investigated fire alarm systems when he received complaints from outside contractors or other fire inspectors. When Petitioner Andrea Spainhour interviewed for the vacant position in the southeast region, she was interviewed by Caron, Long, and Joe Furiatto from the Department's Tallahassee personnel office. Prior to her interview, Long had talked with Peebles about whether they should re-post the vacancy since there were only two candidates. He erroneously thought there had to be a minimum of three applicants for a vacancy in order to fill it. Long, Caron, and Furiatto were impressed with Petitioner during her interview. She had an excellent background and extensive experience. The three interviewers rated Petitioner, a 50-year-old female, as superior to the other applicant, a younger male, and recommended that she be hired. When Petitioner accepted the offer of employment, Long, Caron, Peebles, and Chaplin were all excited that Petitioner would be working with them. Petitioner's first day of work was May 7, 2001. She reported to the Plantation office where Chaplin spent time with her in orientation over the next several days. He advised Petitioner that Caron would train her during May and June and that Petitioner would become responsible for the inspections in Miami-Dade County. He further advised Petitioner, as he had before she began work, that she was a probationary employee and that the Legislature was considering "privatizing" fire protection specialists. He further advised Petitioner that hers was a job "out in the field," but that she was expected to come into the office to pick up phone messages and mail, turn in inspection reports, and sign documents. He told Petitioner the guideline was that it would take approximately eight hours a week to take care of duties in the office. Amy Peebles assisted Petitioner by answering her questions, showing her how to use her Nextel telephone and the computer, and creating forms on the computer so that Petitioner could fill them out and e-mail them to her when Petitioner was out of the office. Caron also assisted Petitioner by answering questions and showing her how to fill out forms. Long told Petitioner to call on him if she had any questions. Everyone tried to make Petitioner feel part of "the team." On May 10 Petitioner sent Chaplin an e-mail saying that Caron and Peebles had given her a plant for her office and that she already felt like part of the family. Although not mentioned in the e-mail, Caron also gave Petitioner some shirts like Caron and Long wore when they made inspections identifying Petitioner as a fire inspector so she would be recognized as a member of the fire inspectors team. Caron also gave Petitioner a mapping program of Miami-Dade County that Caron had purchased to assist Petitioner in becoming familiar with the locations of facilities she would be inspecting. When Chaplin advised Long and Caron by e-mail that they had been complimented for their professionalism by the construction administrator at the Department of Juvenile Justice (DJJ), Long immediately advised Chaplin by e-mail that Petitioner was also present at the referenced meeting and had acted professionally and been an asset to the inspection team. Chaplin forwarded those e-mails to Petitioner to let her know that Long had included her in the compliment. When Petitioner began making inspections, she did not always submit the proper forms to Peebles or fill them out properly so that Peebles could send the required letters to those responsible for the inspected facilities. Peebles reported this problem to Chaplin. Petitioner also made mistakes on her vehicle logs that Chaplin corrected for her before forwarding them to Tallahassee. On June 12, Caron and Long car-pooled down to Miami- Dade County to attend a meeting at Florida International University (FIU). After the meeting, Long, who was responsible for fire alarm systems in the region, took the opportunity of being in Miami-Dade to evaluate the fire alarm system at the DJJ, which was located close to FIU, in order to ascertain how long his final inspection of the system would take. Their visit to DJJ was not an official visit and did not include an inspection. When Petitioner learned that they had gone to one of "her buildings" without her, she thought they intentionally excluded her from official business. She concluded they did not want her in her position due to her experience. At about that same time, Caron asked Long for assistance at one of her facilities in Broward. Prior to Petitioner's employment, Caron had told Long she had some concerns regarding a fire alarm system at the Coconut Grove Playhouse. When they finished in Broward, Long reminded Caron he needed to look at the Playhouse; so, they car-pooled down to Miami-Dade. This was an informal visit, and no official inspection took place. Again, when Petitioner learned they had gone to the Playhouse without her, she assumed they were intentionally excluding her from official business meetings. On July 25, 2001, Petitioner asked Chaplin to come to the DJJ in Miami-Dade because she had some questions about the Code. After they went through the facility and were in the parking lot, Petitioner began making allegations that gave Chaplin concern. She said that Long and Caron were trying to make her quit because they did not like her. She said she resented their making courtesy visits without her. She told him that Long and Caron were intentionally excluding her from meetings. Chaplin told her that she was misinterpreting their behavior and that he was sure there was a reasonable explanation for their attending meetings without Petitioner. She also told Chaplin that she had had a problem in the past working with other females. The following morning Chaplin directed Long and Caron to cancel their appointments and come to his office. He told them what Petitioner had said. They told him that the courtesy visits were not scheduled meetings but spur-of-the-moment visits when Long was in Miami-Dade. They were shocked at Petitioner's accusations because they had selected her for her position and had thought their relationships with Petitioner were good. Chaplin directed them to make Petitioner feel part of the team. That same day Petitioner sent Chaplin an e-mail that included a reminder that she was concerned about the matters she had discussed with him the previous day. On the following day, Chaplin received a call from Caron, who advised him that Peebles was quite upset and he should call her. When Chaplin called, Peebles sounded distraught and on the verge of tears. She told him that Petitioner had been in the office and was really mad at Chaplin, Long, and Caron. Peebles told him the negative things Petitioner had said about her co-workers and her supervisor. Peebles said she was somewhat afraid for her safety due to Petitioner's behavior. Chaplin told her to write a report, and she did. Based upon the description of the incident between Petitioner and Peebles, his own concerns from his meeting with Petitioner two days earlier, and Petitioner's failure to consistently submit accurate and timely vehicle logs and inspection reports, Chaplin made the decision to terminate Petitioner. He was concerned that Petitioner was creating a hostile atmosphere among her co-workers and with him. Chaplin contacted his supervisor and then sent a memo regarding Petitioner's behavior. A few days later he sent a follow-up memo detailing other concerns he had regarding Petitioner's job performance: inspection reports turned in late or not at all, vehicle logs with errors, and failure to follow standard office procedures. Petitioner's age and her sex were not considered when Chaplin made his decision. Chaplin's recommendation that Petitioner be terminated was processed and approved through his chain of command. Petitioner's employment by the Department was terminated August 23. Since she was terminated during her probationary period, she did not have any career service appeal rights. Petitioner was replaced by a 50-year-old male who was even more qualified for the position than was Petitioner. Only administrative assistants had access to the TMIC computer program. Although Petitioner wanted access, no fire protection specialists could access that program. Petitioner was told several times that she did not need to access TMIC and that no inspector had access. The "red book" contains information about the various facilities in a geographic area that are inspected. It is only a guide for inspectors to track when they last inspected a facility. It is not a necessary tool for an inspector to perform his or her job duties and only contains information also available in the office files. Petitioner was not discriminated against by not being given an updated red book until the end of July since the information in it exists elsewhere in the office. Petitioner believes that Chaplin discriminated against her because he did not like her, did not want to hire her, and provided her with a faulty vehicle. Prior to assigning the car to Petitioner, he drove that vehicle for a few days, had it cleaned, and had it serviced and inspected. He knew of no problems with that vehicle. When Petitioner later questioned the condition of the tires, he told her to get the car checked and bring him something in writing. He never received anything in writing from her regarding the condition of the tires.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Petitioner failed in her burden of proof and dismissing the petition filed in this cause. DONE AND ENTERED this 15th day of December, 2004, in Tallahassee, Leon County, Florida. S LINDA M. RIGOT 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 December, 2004. COPIES FURNISHED: Andrea Spainhour 400 North Main Avenue Clermont, Florida 34712 Mechele R. McBride, Esquire Division of Legal Services Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399-0333 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 23201 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 23201
The Issue Whether the Department of Insurance, Division of State Fire Marshal, should revoke Respondent's Firefighter Certificate because of Respondent's conviction of a felony.
Findings Of Fact Respondent is currently certified as a firefighter in the State of Florida by the Department of Insurance, Division of State Fire Marshal. Respondent was initially certified as a firefighter in the State of Florida while employed by the Palatka Fire Department. On or about January 12, 1991, Respondent resigned from the Palatka Fire Department and went to work for the Gainesville, Florida Fire Department. On August 29, 2000, Respondent was convicted by a jury of the felony of aggravated fleeing and attempting to elude in violation of Section 316.193(5), Florida Statutes. Adjudication was withheld. The conviction occurred in the Circuit Court of the Eighth Judicial Circuit in and for Bradford County, Florida. Respondent was placed on community control for two years, to be followed by probation for a period of three years.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Insurance Commissioner and Treasurer enter a Final Order revoking Respondent's Certificate as a Firefighter until such time as his probation is completed. DONE AND ENTERED this 18th day of April, 2001, in Tallahassee, Leon County, Florida. HARRY L. HOOPER 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 18th day of April, 2001. COPIES FURNISHED: Walter Gwiazda Route 1, Box 163 Florahome, Florida 32140 William Fred Whitson, Esquire Department of Insurance Division of Legal Services 200 East Gaines Street 612 Larson Building Tallahassee, Florida 32399-0333 Honorable Tom Gallagher State Treasurer/Insurance Commissioner Department of Insurance The Capitol, Plaza Level 02 Tallahassee, Florida 32399-0300 Mark Casteel, General Counsel Department of Insurance The Capitol, Lower Level 26 Tallahassee, Florida 32399-0307
The Issue The issue for consideration in this case is whether Respondent's certification as a fire fighter in Florida should be disciplined because of the matters alleged in the Administrative Complaint filed herein.
Findings Of Fact At all times pertinent to the allegations herein, Petitioner, Department of Insurance and Treasurer, (Department), was the state Fire Marshal and the agency responsible for the certification of fire fighters in Florida. Respondent was either an applicant for certification or a certified fire fighter in this state. On or about January 22, 1991, Respondent, James M. Yingling, submitted an application for certification as a fire fighter to the Division of State Fire Marshal, Florida State Fire College, Bureau of Fire Standards and Training, on which he indicated he had not used tobacco or tobacco products for at least one (1) year immediately preceding the filing of the application. Along with the application, Mr. Yingling submitted certain documentation including his high school diploma, his driver's license, a personal inquiry waiver, fingerprints, a report of medical examination, and an affidavit of even date in which he affirmed he had not been a user of tobacco or tobacco products for at least one year immediately preceding his application for certification as a fire fighter. Provisions of Section 633.345, Florida Statutes, set out the requirements for certification as a fire fighter in Florida. One of these criteria calls for the applicant not to have used tobacco for one year prior to the filing of the application for certification. Had Respondent used tobacco or tobacco products within that year, he would not have been certified. John R. Scott, a full time employee of Grumman Aircraft in Ft.Pierce, was a part-time volunteer fire fighter at the Jensen Beach Volunteer Fire Department when the Respondent became a member in August, 1990. Mr. Scott saw Respondent at the station house on several occasions and they went out on calls together. Mr. Scott executed a sworn statement on April 11, 1991, indicating that since he has known Respondent, Respondent has been a smoker. Scott claims he has seen Respondent smoking at the station on several occasions and on one occasion at a test site in Orlando when both were there to take the test for Emergency Medical Technician, in January, 1991. He claims to have seen Respondent borrow cigarettes from several fire fighters at the station and return a pack later on. Mr. Scott is a smoker and claims to have been approached by Respondent frequently to give him cigarettes. In April, 1991, Mr. Scott requested that his daughter, Rebecca Brown, type several copies similar to that statement signed by him to be given to and signed by others who had agreed to do so. Only Mr. Schwarz and Ms. Brown actually signed such statements, however, and the others refused to do so. These signed statements, along with Mr. Scott's statement, were forwarded to the Fire Marshal's office. According to Mr. Scott, the others, who backed out, did so because they were afraid of repercussions, but none of these individuals were present to testify and the hearsay testimony of Mr. Scott on that point is insufficient to support a Finding of Fact to that effect. Both Mr. Schwarz and Ms. Brown also indicated they had seen Respondent smoking either at the station or elsewhere from the time he was hired in August, 1990, until the time he applied for certification in January, 1991. No other fire fighter from whom Respondent is supposed to have borrowed cigarettes presented evidence to that effect, however. Mr. Schwarz was recognized as a troublemaker at the fire department and was allowed to retire in lieu of disciplinary action. Ms. Brown is Mr. Scott's daughter and the wife of another fire fighter in the Department. The credibility of both is somewhat suspect. Evidence regarding Mr. Scott also detracts from his credibility. He was known in the department to be a practical joker whose pranks from time to time got out of hand or were excessive. His honesty and integrity were seriously suspect due to his tendency to bring items taken, with or without permission, from his employer, Grumman, to work projects at the department. These were not always minor items, either, and Scott frequently remarked that he had gotten them from "G-Mart" under such circumstances as to give rise to the suspicion they were stolen. On the other hand, Respondent, recognized as a hard driving, somewhat brash and bragging young man, is nonetheless well though of by the majority of his peers and superior in the Department. He categorically denies the allegations against him. Neither former Chief Yurillo nor Capt. Recta, both of whom worked with Respondent, recall having ever seen him smoke and neither was approached by Respondent for a cigarette. When the allegations involved here came up, an internal investigation was begun at the Department, a part of which included a voluntary urinalysis examination of the Respondent. The results of that test, done by an independent laboratory, reflected no evidence of the use of tobacco at the time the test was taken. Mr. Scott and Mr. Schwarz both indicate that subsequent to the filing of their affidavits, Respondent came to them and suggested that if they were not sure of the facts they had alleged, they could withdraw them. In fact, neither did so voluntarily. Scott, in April, 1991, after a meeting with Yurillo and Respondent, executed a statement typed for him by Mr. Recca in which he claims he was mistaken in his original allegations regarding Respondent's tobacco use. Scott claims he was pressured into recanting. Yurillo, Recca and Respondent claim Scott's action was voluntary. Whatever the facts regarding the withdrawal of Scott's original statement, analysis of the evidence of record indicates there is insufficient evidence to establish that Respondent used tobacco or tobacco products within a year immediately preceding his application for certification or that he falsified his application and the supporting affidavit, and it is so found.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore recommended that a Final Order be entered dismissing the Administrative Complaint in this matter which seeks to discipline Respondent, James M. Yingling's certification as a fire fighter. RECOMMENDED in Tallahassee, Florida this 9th day of April, 1992. ARNOLD H. POLLOCK 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 9th day of April, 1992. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-4458 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 parties to this case. For the Petitioner: - 3. Accepted and incorporated herein. Accepted as the testimony of the witnesses. Not necessarily accepted as true. Rejected as testimony of Mr. Scott not considered credible. Accepted. For the Respondent: None received. COPIES FURNISHED: Elizabeth J. Gregovits, Esquire Office of Legal Services 412 Larson Building Tallahassee, Florida 32399-0300 Michael J. Mortell, Esquire 2801 E. Ocean Blvd., Suite 2A Stuart, Florida 34996 Tom Gallagher State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Bill O'Neill General Counsel Department of Insurance The Capitol, Plaza Level - 11 Tallahassee, Florida 32399-0300
The Issue Should Petitioner's application for Class 0701 and Class 0704 Fire Equipment Dealer license and Class 0901 and Class 0904 Fire Equipment permit 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: The Department is the agency of the State of Florida charged with the responsibility of issuing licenses and permits under Chapter 633, Florida Statutes, and enforcing the provisions of Chapter 633, Florida Statutes. By Final Order dated September 8, 1993, the Department revoked all licenses and permits previously issued to Petitioner under Chapter 633, Florida Statutes, for a period of five years. During this revocation period Petitioner was prohibited from engaging in any type of business requiring a license or permit under Chapter 633, Florida Statutes. After the revocation period expired, Petitioner filed an application with the Department for the issuance of a Class 0701 and Class 0704 Fire Equipment Dealer License and a Class 0901 and Class 0904 Fire Equipment Permit. By letter of denial dated December 30, 1998, the Department advised Petitioner that the Department was denying Petitioner's application for licensure on the basis that Petitioner had conducted business contrary to the provisions of the Department's Final Order dated September 8, 1999. Subsequently, the Department moved to amend its initial letter of denial dated December 30, 1998. The motion was granted and this matter proceeded forward on the amended letter of denial. The amended denial letter provided in pertinent part as follows: Investigation of your activities during the period of revocation resulted in a determination that you have conducted business contrary to the provisions of the Department's Final Order issued September 1993, therefore your request for licensure has been reviewed and must be denied. You continued to engage in the business of servicing, repairing and inspecting preengineered systems without being licensed by soliciting companies for the purposes of servicing their preengineered systems and by making arrangements with Rogers Fire Protection of Dade City, Florida for the performance of these services, and then by receiving a payment or "kickback" for the servicing of these extinguishers and systems. You also continued to engage in the business of servicing, repairing and inspecting fire extinguishers and preengineered systems without being licensed by supervising and training employees who service, repair, inspect and/or install fire extinguishers and/or preengineered systems. The amended denial letter also advised Petitioner that such activity was in violation of Section 633.061(1), Florida Statutes. At all times pertinent to this proceeding, Petitioner was co-owner of Canady CO2 Gas Co. and Canady Fire Equipment Co.(Canady Co.) located in Lakeland, Florida. Richard Dawley was co-owner of Canady Co. with Petitioner from October 1996 through 1997. During the years 1996 and 1997, Daniel Dawley, Billy Benton, and Todd Gardner were employed by Canady Co. During the years of 1996 and 1997, all of the employees of Canady Co. and Richard Dawley were licensed by the office of the State Fire Marshall pursuant to Chapter 633, Florida Statutes which allowed all of them to engage in the business of servicing portable fire extinguishers. During the years 1996 and 1997, neither the owners nor any of the employees of Canady Co. were licensed to service, test, inspect, repair, and install preengineered fire systems. During the years 1996 and 1997, Canady Co. sold and delivered C02 cartridges. Before Petitioner's licenses and permits were revoked by Final Order dated September 8, 1993, Petitioner engaged in the business of testing, servicing, inspecting, and repairing preengineered fire systems. During this period of time, Petitioner established customers with whom he maintained contact with after his licenses and permits were revoked. During the years 1996 and 1997, Canady Co. ran an advertisement in the yellow pages which advertised "Automatic Kitchen Hood Fire Systems, Kitchen Hoods Installed W/Exhaust Fans, Kitchen Hoods & Exhaust Ducts Cleaned, and Kitchen Hood Filters." Petitioner sold this type fire equipment but was not licensed to test, install, repair, service, or inspect such equipment. There is nothing in the advertisement to indicate that Petitioner was licensed to test, install, repair, service, or inspect such fire equipment. There was no evidence that any potential customer or former customer of Petitioner would assume, based on the language of the advertisement, that Petitioner was licensed to test, install, inspect, service, or repair such equipment. Likewise, during the period of revocation, Petitioner did not advise any former customer or potential customer that he was licensed to test, install, repair, service, or inspect fire systems. During 1997, Roy Rogers, owner of Rogers Fire Protection, was licensed to test, install, repair, service, and inspect fire systems. During 1997, Roy Rogers and Petitioner entered into an agreement whereby Petitioner would refer customers to Rogers whose fire systems needed testing, repairing, servicing, or inspection. Roy Rogers would perform this work under his license and bill Petitioner for his regular fee. Petitioner would then bill his customer for the amount charged by Roy Rogers plus a referral fee. The invoice submitted by Petitioner to the customer did not indicate that Roy Rogers had performed the work or that the customer was being charged a referral fee by Petitioner. Upon being paid by the customer. Petitioner would pay Roy Rogers and retain the referral fee. By invoice number 10288 dated May 22, 1997, Rogers Fire Protection billed Canady Fire Equipment $55.00 for testing and inspecting a Range Guard 2.5 gallon Fire Suppression System for Dockside Lounge, Lakeland, Florida. By invoice number 00260 dated June 2, 1997, Canady Fire Equipment Co. billed Dockside Lounge, Lakeland, Florida $80.00 for services rendered by Rogers which included Petitioner's referral fee of $25.00. Petitioner's referral fee was not stated separately on the invoice. By invoice number 10286 dated May 22, 1997, Rogers Fire Protection billed Canady Fire Equipment $55.00 for testing and inspecting a Kiddle HDR-25 Fire Suppression System for Lakeside Baptist Church, Lakeland, Florida. By invoice number 00258 dated June 2, 1997, Canady Fire Equipment Co. billed Lakeside Baptist Church, Lakeland, Florida $80.00 for services rendered by Rogers which included Petitioner's referral fee of $25.00. Petitioner's referral fee was not stated separately on the invoice. By invoice number 10287 dated May 22, 1997, Rogers Fire Protection billed Canady Fire Equipment $55.00 for testing and inspecting a Safety First ARS-15C Fire Suppression System for Dove's Nest, Lakeland, Florida. By invoice number 10285 dated May 22, 1997, Rogers Fire Protection billed Canady Fire Equipment $55.00 for testing and inspecting a Ansul R-102 3-gallon Suppression System for Brothers Bar-B-Q, Lakeland, Florida. On May 27, 1997, Petitioner issued a check in the amount of $220.00 to Rogers Fire Equipment. Although the check does not state which invoice(s) are being paid, the amount equals the total of invoices numbers 10285 through 10288. By invoice number 10294 dated May 27, 1997, Rogers Fire Protection billed Canady Fire Equipment $55.00 for testing and inspecting a Ansul R-101 Fire Suppression System for Silver Ring Cafe, Lakeland, Florida. By invoice number 10319 dated June 13, 1997, Rogers Fire Protection billed Canady Fire Equipment $55.00 for testing and inspecting a Range Guard 6-gallon Fire Suppression System for the Elks Lodge, Lakeland, Florida. By invoice number 10320 dated June 13, 1997, Rogers Fire Protection billed Canady Fire Equipment $55.00 for testing and inspecting a Range Guard 2.5-gallon Fire Suppression System for the Plantation Café, Lakeland, Florida. By invoice number 10343 dated June 27, 1997, Rogers Fire Protection billed Canady Fire Equipment $55.00 for testing and inspecting a Range Guard 2.5-gallon Fire Suppression System for Grace Lutheran Church, Lakeland, Florida. On June 2, 1997, Canady Fire Equipment issued a check to Rogers Fire Protection in the amount of $155.00. On June 17, 1997, Canady Fire Equipment issued a check to Rogers Fire Protection in the amount of $122.50. By invoice number 10327 dated June 20, 1997, Rogers Fire Protection billed Canady Fire Equipment $105.00 for inspecting and servicing a Range Guard 2.5-gallon Fire Suppression System and for labor and material for Jackie's Caribbean Cuisine, Auburndale, Florida. By invoice number 10328 dated June 21, 1997, Rogers Fire Protection billed Canady Fire Equipment $140.00 for inspecting and servicing a Range Guard 2.5-gallon Fire Suppression System and other labor for other worked performed for Citrus Woods Property Owner's Association, Lakeland, Florida. By invoice number 00400 dated June 21, 1997, Canady Fire Equipment billed Citrus Woods Property Owner's Association $359.90 for services rendered by Rogers Fire Protection which apparently included Petitioner's referral fee. By check dated June 24, 1997, Canady Fire Equipment paid Rogers Fire Protection $245.00 which covered invoice numbers 10327 and 10328. By Fax dated May 15, 1997, Petitioner advised Rogers Fire Protection that Star Foods, Winter Haven, Florida; Chings Place, Lakeland, Florida; Touchdown Eddie's, Lakeland, Florida; Silver Ring Café, Lakeland, Florida; Dove's Nest, Lakeland, Florida; Brothers Bar-B-Q. Lakeland, Florida; and Dockside Lounge, Lakeland, Florida were systems to be serviced and invoiced to Canady Fire Equipment Co. Additionally, Petitioner advised Rogers that each of the above customers had been advised that Petitioner was sending someone to service their systems and that Rogers was to remind the customer that he was doing the work for Petitioner. Petitioner also advised Rogers that Petitioner would invoice the customers for the work. There is insufficient evidence to show that Petitioner supervised or trained employees or Richard Dawley on the servicing or repair of portable fire extinguishers during the time that he was not licensed by the Department, notwithstanding the testimony of Richard Dawley and Daniel Dawley to the contrary of which I find lacks credibility. There is insufficient evidence to show that Petitioner allowed the unlicensed employees of Canady Co to tag fire extinguishers or used another company to certify fire extinguishers, notwithstanding the testimony of Richard Dawley and Daniel Dawley to the contrary of which I find lacks credibility.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Insurance enter a final order denying Petitioner's application for the issuance of Class 0701 and Class 0704 Fire Equipment Dealer license and Class 0901 and Class 0904 Fire Equipment permit. DONE AND ENTERED this 30th day of September, 1999, 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 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of September, 1999. COPIES FURNISHED: Bill Nelson State Treasurer and Insurance Commissioner The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Daniel Y. Sumner, General Counsel Department of Insurance and Treasurer The Capitol, Lower Level 26 Tallahassee, Florida 32399-00300 Robert Paine, Esquire 914 South Florida Avenue Lakeland, Florida 33803 Mechele R. McBride, Esquire Department of Insurance and Treasurer 200 East Gaines Street Tallahassee, Florida 32399-0333
Findings Of Fact At all times pertinent to this proceeding Respondent, Robert Hoffman, was a member of the Deltona Fire District Commission. He was elected to his office in the Deltona Fire District in November, 1992. At all times pertinent to this proceeding Theresa Cresswell was a dispatcher at the Deltona Fire District. She served as dispatcher for approximately eight years, leaving in January, 1995. On April 30, 1993, Ms. Cresswell filed Complaint No. 93-56 with the Florida Commission on Ethics, alleging that Mr. Hoffman had touched and kissed her on January 20, 1993, and on March 20, 1993. Ms. Cresswell also alleges that in March, 1993, after she had spilled water on her blouse while drinking from the water fountain that Mr. Hoffman said that he liked watching her brush the water off her blouse. JANUARY 20, 1993 INCIDENT In December, 1992, Ms. Cresswell organized a Santa Clause workshop for needy children. Mr. Hoffman had promised to provide candy canes and build the workshop for the event. He failed to keep his promise. As a result, Ms. Cresswell had to purchase the candy. On January 20, 1993, Ms. Cresswell came to the Deltona Fire Station around 9:30 p.m. to pick up some papers relating to her schoolwork. She was not on duty. Mr. Hoffman was at the fire station when she arrived. Ms. Cresswell was upset with Mr. Hoffman for his failure to provide the candy and build the workshop. She approached Mr. Hoffman in the reception area while he was talking to Robert Bell and told Hoffman that she was "pissed off at him." Mr. Hoffman acknowledged that he knew that she was upset and that he was sorry that he did not do what he had promised. Ms. Cresswell alleges that during the conversation Mr. Hoffman came to her, put his hand on her shoulder, leaned against her, kissed her on her cheek and whispered in her ear, "I'm sorry. Do your forgive me?" Ms. Cresswell's allegation that he whispered in her ear was made known for the first time at the formal hearing. Mr. Hoffman asserts that he never touched or kissed Ms. Cresswell on January 20, 1993. Robert Bell, the dispatcher who was on duty when the discussion between Ms. Cresswell and Mr. Hoffman took place, observed the discussion and described Ms. Cresswell as being upset. He did not see Mr. Hoffman kiss Ms. Cresswell on the evening of January 20, 1993. Ms. Cresswell did not tell Mr. Bell that Mr. Hoffman had kissed her. Ms. Cresswell did not make a complaint to anyone about the January 20 incident until March, 1993. Fire Chief Holland had been keeping notes about Mr. Hoffman's activities and he sent those notes to the attorney for the fire district. In those notes, he details a conversation that he had with Ms. Cresswell concerning the January 20, 1993 incident. There is no mention that Mr. Hoffman kissed Ms. Cresswell. Having observed the demeanor of the witnesses and having judged the credibility of the witnesses, I find that Mr. Hoffman did not touch or kiss Ms. Cresswell on January 20, 1993. THE WATER FOUNTAIN INCIDENT On March 20, 1993, Mr. Hoffman was attending an all day CPR class at the fire station. Ms. Cresswell was working dispatch on the 8:00 a.m. to 4 p.m. shift on that day. Ms. Cresswell alleges that she was drinking at the water fountain located in the hall of the fire station down from the room in which the CPR class was being conducted. She spilled water on her blouse and was brushing the water from her blouse when Mr. Hoffman came up to her and said, "Can I watch you do that? I like to watch you do that." Mr. Hoffman contends that the incident never occurred. There were no witnesses to the alleged incident. Timothy Brown was teaching the CPR class. He remembered Mr. Hoffman as being the only male student in the class on that day. Mr. Brown does not recall Mr. Hoffman leaving the classroom other than at the assigned breaks and at lunchtime. Mr. Brown was near the water fountain several times during the day while he used a nearby copy machine and when he drank from the fountain, but he did not see Mr. Hoffman and Ms. Cresswell together at the water fountain. When Ms. Cresswell complained to Assistant Chief Rogers on March 22, 1993 about the alleged incident of kissing which occurred either on the evening of March 20 or early morning of March 21, she did not mention the water fountain incident which allegedly occurred on March 20, 1993. When Ms. Cresswell's deposition was taken on April 12, 1993, three weeks after the alleged incident, Ms. Cresswell could not recall when the water fountain incident took place. Having observed the demeanor of the witnesses and having judged the credibility of the witnesses, I find that the water fountain incident did not occur and that Mr. Hoffman did not say, "Can I watch you do that? I like to watch you do that." THE MARCH 20-21, 1993 INCIDENT On the evening of March 20, 1993, Ms. Cresswell traded shifts with another dispatcher and reported to work at approximately 11:50 p.m. to work the midnight to 8:00 a.m. shift. Robert Bell was working the dispatch when she arrived. Mr. Hoffman was also at the fire station. Ms. Cresswell put away her purse and made coffee. As part of her duties on the midnight shift, she was responsible for erasing and rewinding the 911 dictaphone tapes. She went to the communications center, which is located adjacent to the reception area, and began to erase the tapes soon after her arrival at the fire station. While she was erasing the tapes, she, Mr. Bell, and Mr. Hoffman began talking about a storm that evening which caused a fire, destroying a local funeral home. During the discussion about the fire, they started to talk about cremation. Ms. Cresswell stated that she did not want to be cremated. Ms. Cresswell alleges that after she made the remark about cremation that Mr. Hoffman came over to her, put his hand on her shoulder, laughed, kissed her on the cheek, and said, "I hear you." At the formal hearing she could not recall whether Mr. Hoffman allegedly kissed her before or after midnight. According to Ms. Cresswell, Mr. Hoffman and Mr. Bell continued to talk about the funeral home after Mr. Hoffman kissed her. Additionally, Ms. Cresswell asserts that after Mr. Bell left the fire station that Mr. Hoffman stayed for approximately one and one half hours. Mr. Hoffman contends that he never touched or kissed Ms. Cresswell as she alleged and that he left the fire station the same time as Mr. Bell. During the conversation concerning the funeral home, Mr. Bell was in and out of the communications center. Mr. Bell did not see Mr. Hoffman kiss Ms. Cresswell as she alleged. Ms. Cresswell did not tell Mr. Bell that Mr. Hoffman had kissed her. Ms. Cresswell did not confront Mr. Hoffman concerning the alleged kiss. Donald Allen Helberg, a firefighter/EMT was present in the dispatch side of the fire station during the late evening and early morning hours of March 20 and 21, 1993, respectively. He saw Ms. Cresswell pull into the parking lot when she came to work the midnight shift. Mr. Helberg recalled Ms. Cresswell joining in the conversation that he, Mr. Hoffman and Mr. Bell were having. He also recalls seeing Mr. Bell head toward the double doors leading to the outside followed by Mr. Hoffman. Mr. Helberg was also leaving at that time to return to the firefighter section of the building. While he was present, Mr. Helberg did not see or hear anything unusual involving Mr. Hoffman and Ms. Cresswell. Sometime after March 21, 1993, Ms. Cresswell called Mr. Helberg and asked him if he remembered being present at the fire station on the night of the alleged incident. Mr. Bell left the fire station approximately ten minutes after midnight. Mr. Hoffman was walking behind Mr. Bell as he walked out the door. Mr. Hoffman was driving a red Jimmy vehicle that night. As Mr. Bell was driving out of the fire station parking lot, he observed a reddish vehicle behind him. The reddish vehicle left the parking lot after Mr. Bell, headed in the opposite direction. Mr. Hoffman lived approximately a mile and a half from the fire station. He arrived home at approximately fifteen minutes after midnight. His wife was up waiting for him when he got home. Having observed the demeanor of the witnesses and having judged the credibility of the witnesses, I find that Mr. Hoffman did not touch or kiss Ms. Cresswell either on the evening of March 20, 1993 or the morning of March 21, 1993.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered dismissing Complaint No. 93-56 against Robert Hoffman. DONE AND ENTERED this 12th day of September, 1995, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of September, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-5835EC To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on the parties' proposed findings of fact: Advocate's Proposed Findings of Fact. Stipulated Facts 1. Paragraphs 1-2: Accepted. Findings of Fact Paragraphs 1-3: Accepted in substance. Paragraph 4: The first two sentences are accepted in substance. The last sentence is rejected as not supported by the greater weight of the evidence. Paragraph 5: Accepted in substance. Paragraphs 6-7: Rejected as not supported by the evidence. Paragraph 8: Accepted in substance except as to the occurrence of the water fountain incident. Paragraph 9: Accepted in substance. Paragraph 10: The last sentence is rejected as not supported by credible evidence. The remainder is accepted in substance. Paragraph 11: Accepted that it is what Ms. Cresswell alleges but rejected as to that is what happened based on the credible evidence. Paragraph 12: The first part of the first sentence is accepted in substance. The last part of the first sentence is rejected as not supported by the evidence. Mr. Bell did not see Mr. Hoffman and Ms. Cresswell the entire time but that does not mean that he wasn't paying attention to them during the time that he did see them. The remainder is rejected as unnecessary. Paragraph 13: Rejected as not supported by credible evidence. Paragraphs 14-15: Rejected as subordinate to the facts found. Paragraph 16: Rejected as subordinate to the facts found as to what Ms. Cresswell believed. Rejected as not supported by the evidence as to what Mr. Hoffman believed. Paragraph 17: The first two sentences are rejected as subordinate to the facts found. The last sentence is rejected as not supported by the evidence. Respondent's Proposed Findings of Fact. Paragraphs 1-2: Accepted. Paragraphs 3-5: Rejected as unnecessary. Paragraphs 6-7: Accepted in substance. Paragraph 8: Accepted in substance as that is what Ms. Cresswell contended. Paragraphs 9-10: Rejected as unnecessary. Paragraph 11: Accepted in substance. Paragraph 12: Rejected as unnecessary. Paragraph 13: Accepted in substance. Paragraph 14: The first sentence is accepted in substance. The second sentence is rejected as unnecessary. Paragraphs 15-17: Accepted in substance. Paragraphs 18-19: Accepted that it was what Ms. Cresswell contended but rejected as not supported by credible evidence that it was what happened. Paragraph 20: Accepted in substance. Paragraph 21: Accepted to the extent that it is Ms. Cresswell's testimony. Paragraphs 22-25: Rejected as subordinate to the facts found. Paragraph 26: Accepted in substance. Paragraph 27: Rejected as unnecessary. Paragraphs 28-30: Accepted in substance. Paragraphs 31-33: Rejected as subordinate to the facts found. Paragraphs 34-37: Accepted in substance. Paragraph 38: The first sentence is rejected as unnecessary. The last sentence is accepted in substance. Paragraph 39: The first sentence is accepted in substance as that was what was alleged. The second sentence is accepted in substance. Paragraphs 40-43: Accepted in substance as that is what was alleged. Paragraph 44: Accepted in substance. Paragraph 45: Accepted in substance as that is what was alleged. Paragraphs 46-47: Accepted in substance. Paragraphs 48-49: Rejected as subordinate to the facts found. Paragraphs 50-51: Accepted in substance. Paragraph 52: Rejected as unnecessary. Paragraphs 53-56: Accepted in substance. Paragraph 57: Rejected as unnecessary. Paragraph 58-60: Accepted in substance. Paragraph 61: The first sentence is accepted in substance. The remainder is rejected as unnecessary. Paragraph 62: Rejected as unnecessary. Paragraph 63: Accepted in substance. Paragraph 64: Accepted in substance as that was what was alleged. Paragraph 65: Rejected as constituting argument. Paragraphs 66-67: Accepted in substance. Paragraph 68: Accepted in substance. Paragraphs 69-7O: Accepted in substance that the dictaphone equipment is located in the communications center. The remainder is rejected as unnecessary. Paragraph 71: Accepted in substance that she made those allegations. Paragraphs 72-74: Accepted in substance. Paragraphs 75-76: Rejected as not supported by credible evidence as that was what happened. Paragraph 77: Accepted in substance to the extent that Mr. Bell was not watching Mr. Hoffman and Ms. Cresswell the entire time of the conversation. Paragraphs 78-79: Rejected as unnecessary. Paragraphs 80-81: Accepted in substance. Paragraph 82: Accepted to the extent that she did not tell Mr. Bell of the kissing incident; otherwise rejected as not supported by the greater weight of the evidence or unnecessary. Paragraphs 83-84: Rejected as unnecessary. Paragraph 85: The first sentence is accepted to the extent that it is Ms. Cresswell's testimony. The last sentence is rejected as subordinate to the facts found. Paragraph 86: Accepted in substance that it was her testimony. Paragraph 87: Rejected as unnecessary. Paragraph 88: The first sentence is accepted in substance. The remainder is rejected as unnecessary. Paragraph 89: Accepted in substance. Paragraphs 90-99: Rejected as unnecessary. Paragraph 100: Accepted to the extent that he saw Bell heading toward the outside door, followed by Hoffman as Helberg was leaving to go to the firefighter side of the building. Paragraphs 101-104: Accepted in substance. Paragraph 105: Rejected as subordinate to the facts found. Paragraphs 106-107: Accepted in substance. Paragraph 108: Rejected as unnecessary. Paragraphs 109-111: Accepted in substance. Paragraphs 112-116: Rejected as unnecessary. Paragraph 117: Rejected as constituting argument. Paragraphs 118-125: Accepted in substance. Paragraphs 126-127: Rejected as unnecessary. Paragraphs 128-130: Rejected as constituting argument. Paragraphs 131-133: Rejected as unnecessary. Paragraph 134: Rejected as constituting argument. Paragraphs 135-137: Rejected as unnecessary. Paragraphs 138-155: Rejected as constituting argument. Paragraphs 156-262: Rejected as unnecessary. Paragraph 263: Rejected to the extent that it implies that there was a conspiracy. The evidence does not support a conclusion of conspiracy among Mr. Holland, Mr. Rogers, and Ms. Cresswell. Paragraphs 264-288: Rejected as unnecessary. Paragraphs 289-290: Rejected as not supported by the evidence. COPIES FURNISHED: Carrie Stillman Complaint Coordinator Commission on Ethics Post Office Box 15709 Tallahassee, Florida 32317-5709 Virlindia Doss, Esquire Advocate For the Florida Commission on Ethics Department of Legal Affairs PL-01, The Capitol Tallahassee, Florida 32399-1050 Stephen D. Milbrath, Esquire Alan, Dyer, Doppelt, Franjola & Milbrath Post Office Box 3791 Orlando, Florida 32802-3791 Bonnie Williams Executive Director Florida Commission On Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Phil Claypool, Esquire General Counsel Ethics Commission 2822 Remington Green Circle, Suite 101 Post Office Drawer 15709 Tallahassee, Florida 32317-5709
