The Issue Whether Respondent, Arlene Schwartz, willfully violated Subsection 104.31(1)(a), Florida Statutes, which prohibits an officer or employee of the state, or of any county or municipality, from using his or her official authority or influence for the purpose of interfering with an election or a nomination of office, or coercing or influencing another person's vote or affecting the results thereof.
Findings Of Fact Based on the testimony and demeanor of the witnesses, documentary evidence, entire Transcript of Proceedings, and the facts admitted in the Joint Pre-hearing Stipulation, the following findings of fact are made: Respondent, Arlene Schwartz, as Mayor of the City of Margate, Florida, was a municipal officer on October 27, 2000, when she wrote a letter signed by her as Mayor, Margate, Florida, on official City of Margate stationery, endorsing Howard Forman for Clerk of Court, Broward County, Florida. Respondent has 10 years of experience as a candidate, elected official or member of municipal boards. Eugene Steinfeld was City Attorney, City of Margate, for 24 years; as such he gave advice to the Mayor and Commissioners of the City of Margate about their responsibilities under the Florida Ethics Code and Elections Laws. In 1994, in his capacity as City Attorney, Mr. Steinfeld authored a City of Margate Resolution which authorized the Mayor, Vice Mayor and City Commissioners "to use a facsimile of the official seal of the City of Margate in correspondence, promotion, or advertising when they are promoting the City of Margate. " On January 24, 2000, in his capacity as City Attorney, Mr. Steinfeld sent an inter-office memorandum to Respondent and others advising "there is no prohibition for endorsing a candidate for City Commission by another candidate for City Commission . . . ; it is only where a candidate expends money for another candidate or contributes things of value to another candidate that is prohibited, pursuant to FS. 104.071." In September 2000, Mr. Steinfeld had a conversation with Respondent wherein she asked if she would be permitted to endorse a candidate for a board position in a development district. In advising her that she could, he recalled saying, "You do not lose your freedom of speech when you become an elected official." On October 23, 2000, Respondent attended a meeting of the Margate Democratic Club where Howard Forman, a candidate for Clerk of Court, Broward County, spoke. As a State Senator, Mr. Forman had assisted the City of Margate even though Margate was not in his Senate District. Respondent orally endorsed Mr. Forman at the meeting and offered her assistance. On October 25, 2000, Respondent's office received a telephone call from Iris Siple who worked in Mr. Forman's campaign. Respondent returned the call on October 26, 2000, and was asked to write a letter endorsing Mr. Forman on city stationery. The letter was written on October 27, 2000, and later faxed to Mr. Forman's campaign headquarters. Mr. Forman's campaign reproduced the letter and mailed approximately 700 copies to potential voters. Respondent received no remuneration or benefit for writing the endorsement letter. Respondent acknowledged that she had no specific discussion with the City Attorney regarding the appropriateness of using city stationery in the endorsement letter. Nevertheless, she believed that writing the endorsement letter was something that she could do without violating the law. Based on the evidence presented, including the resolution allowing the use of the seal in correspondence promoting the city, the memorandum and advice given by the City Attorney, and her reliance on the request made by Mr. Forman's campaign office for a letter on city stationery, the undersigned finds that Respondent's belief that she had done nothing inappropriate in writing the endorsement letter to be credible.
Recommendation Based upon the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Florida Elections Commission enter a final order finding that Respondent, Arlene Schwartz, did not violate Subsection 104.31(1)(a), Florida Statutes, as alleged and dismissing the Order of Probable Cause. DONE AND ENTERED this 31st day of January, 2002, in Tallahassee, Leon County, Florida. JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of January, 2002. COPIES FURNISHED: J. David Bogenschutz, Esquire Bogenschutz & Dutko 600 South Andrews Avenue Suite 500 Fort Lauderdale, Florida 33301-2802 Eric M. Lipman, Esquire Florida Elections Commission 107 West Gaines Street Collins Building, Suite 224 Tallahassee, Florida 32399-1050 Barbara M. Linthicum, Executive Director Florida Elections Commission 107 West Gaines Street Collins Building, Suite 224 Tallahassee, Florida 32399-1050 Patsy Rushing, Clerk Florida Elections Commission 107 West Gaines Street Collins Building, Suite 224 Tallahassee, Florida 32399-1050
The Issue The issue presented is whether Florida Administrative Code Rule 2B-1.002 is an "invalid exercise of delegated legislative authority."
Findings Of Fact The following facts have been stipulated by the parties: Petitioner, Brian L. Blair, is a Respondent in a case before DOAH styled, Florida Elections Commission v. Brian L. Blair, Case No. 09-2069, wherein the Florida Elections Commission ("Commission") has charged Mr. Blair with two counts of willfully accepting campaign contributions in excess of $500.00 in violation of Subsection 106.19(1)(a), Florida Statutes. Petitioner filed a Petition to Determine Invalidity of Existing Rule on August 28, 2009, wherein he alleges that the Commission Rule, Florida Administrative Code Rule 2B-1.002, constitutes an invalid exercise of delegated legislative authority. As a person subject to Chapter 106, Florida Statutes, and accused of willfully violating one of its prohibitions, Mr. Blair is substantially affected by the Commission's application of Florida Administrative Code Rule 2B-1.002 to his case and, therefore, has the requisite standing to bring this action. In 2007, the Florida Legislature repealed Section 106.37, Florida Statutes (2006), which contained a definition of "willfulness" for purposes of Chapter 106, Florida Statutes. That section was repealed by CS/HB 537 (Section 51, Chapter 2007-30, Laws of Florida), effective January 1, 2008. Contemporaneous with the repeal of Section 106.37, Florida Statutes, the same legislation amended Subsection 106.25(3), Florida Statutes, to provide that willfulness is "a determination of fact." (§ 48, Chap. 2007-30, Laws of Florida, effective January 1, 2008). Subsection 106.25(3), Florida Statutes, currently provides: (3) For the purposes of commission jurisdiction, a violation shall mean the willful performance of an act prohibited by this chapter or chapter 104 or the willful failure to perform an act required by this chapter or chapter 104. Willfulness is a determination of fact; however, at the request of the respondent, willfulness may be considered and determined in an informal hearing before the commission. (Emphasis added.) The 2007 Legislative Session ended on May 4, 2007; CS/HB 537 was signed and approved by the Governor on May 22, 2007. On May 24 and 25, 2007, Barbara Linthicum, executive director of the Commission at the time, engaged in the following exchange via email with the Commission's attorney, Edward A. Tellechea, counsel of record in this case, regarding Florida Administrative Code Rule 2B-1.002: Ms. Linthicum: "Do you think we have authority to add chapter 106 to the willfulness rule?" Mr. Tellechea: ". . . Someone will challenge it[,] but what the heck[,] I'm game." Ms. Linthicum: "But, if you are game, I think we should definitely go ahead before January 1 comes along. You certainly do have a good track record defending our rules" The amendment of Florida Administrative Code Rule 2B-1.002 was effective December 25, 2007. The repeal of the definition of "willfulness" in Section 106.37, Florida Statutes, became effective January 1, 2008. The proposed rule amendment to Florida Administrative Code Rule 2B-1.002 that is the subject of this proceeding was reviewed in 2007 by the Joint Administrative Procedures Committee of the Florida Legislature, pursuant to Section 120.545, Florida Statutes, prior to its adoption, and the Committee made no written comments or filed any written objections. In order to determine whether willful violations of Chapter 106, Florida Statutes, have occurred, the Commission employs the definition of "willful" contained in Florida Administrative Code Rule 2B-1.002, when making the factual determination of willfulness.
The Issue Whether Respondent, when he voted April 18, 2002, as a member of the Palm Beach Gardens City Commission, on Resolution 54, 2002 and Resolution 57, 2002, relating to Parcel 6 and Parcel 24, respectively, of the Mirasol development project, knew that these measures would inure to the special private gain or loss of a principal by whom he was retained and thereby violated Section 112. 3143(3), Florida Statutes, as alleged in the Order Finding Probable Cause, and, if so, what is the appropriate penalty.
Findings Of Fact Based on the evidence adduced at the public hearing and the record as a whole, the following findings of fact are made to supplement and clarify the factual stipulations set forth in the parties' Joint Prehearing Stipulation2: Each of the "Sabatello construction companies" referred to in the parties' Stipulations of Fact 3 and 4 was wholly owned by Carl Sabatello and his brothers Paul, Theodore, and Michael Sabatello (Sabatello Brothers), with each brother owning an equal (25%) share of the company. Of these companies, only one, Sabatello Development Corporation IV (SD IV) was involved in the Mirasol Project. SD IV has been in continuous existence since its formation in or around the 1980's. Carl Sabatello serves as its president, "oversee[ing] all [of its] functions." SD IV is a Subchapter S corporation. As such, its profits are passed through to the Sabatello Brothers, its four shareholders, in equal amounts. Respondent is a certified public accountant. Since 1989, through his accounting firm, he has provided tax preparation services to SD IV and the Sabatello Brothers. His firm has derived "anywhere from 15 to 25%" of its total income from the monies received for providing these services. Before establishing his accounting firm in 1989, Respondent was SD IV's chief financial officer and one of its shareholders. Taylor Woodrow Communities (Taylor Woodrow) was the master developer of the Mirasol Project. Taylor Woodrow's Craig Perna had "overall responsibility for every aspect of the [Mirasol] development" project, including the "selection of builders." The builder selection process started with Mr. Perna getting the names of "prominent builders in the Palm Beach Gardens market" having "excellent reputation[s]" and then contacting them to inquire as to their interest in participating in the Mirasol Project. Carl Sabatello was among those Mr. Perna contacted. He was contacted (by telephone) in mid-May of 2000, and advised Mr. Perna he was "very interested" in having his company, SD IV, considered for selection as a builder in Mirasol. SD IV, was one of at least ten or 12 builders vying to be selected to participate in the Mirasol Project. Over a period of approximately eight months (from mid-May 2000, to mid-January 2001), Taylor Woodrow requested and obtained from SD IV and from the other would-be participants in the project (Other Builders) information and documents in order to evaluate these builders' qualifications for selection. In the latter part of 2000, prior to any selection having been made, Carl Sabatello requested the Palm Beach Gardens City Attorney, Leonard Rubin, Esquire, "to provide a [written] legal opinion as to [Mr. Sabatello's] obligation to abstain from voting in [his] official capacity on matters relating to Mirasol that come before the [Palm Beach Gardens] City Council." In response to Mr. Sabatello's request, Mr. Rubin prepared a written memorandum, dated December 5, 2000, which was provided, not only to Mr. Sabatello, but to all members of the Palm Beach Gardens City Council, including Respondent, as well as to the Interim City Manager. The memorandum read as follows: You have indicated that the Sabatello Companies, of which you are a principal, is currently in negotiations with the developers of the Mirasol Planned Community District ("PCD") to become a builder of homes within that community. Your activities as a builder would be limited to specific parcels or pods within the PCD. You asked this office to provide a legal opinion as to your obligation to abstain from voting in your official capacity on matters relating to Mirasol that come before the City Council. Voting conflicts for members of the City Council are governed by section 112.3143, Florida Statutes. Subsection (3)(a) provides that a municipal officer shall not vote in an official capacity on any measure that "would inure to the special gain" of the officer, a principal by whom the officer is retained, or a relative or business associate of the officer. According to the state Ethics Commission, the determination of whether the officer receives a special private gain is based upon the size of the class of persons affected by the vote at issue. The Mirasol PCD encompasses a variety of residential, commercial, recreational and community uses. The residential uses range from low density single family homes to high density multi-family apartments. It is anticipated that your company's activities will be limited to the construction of single family dwellings within a specific, identifiable parcel for which a site plan has already been approved. Because of this limited involvement, there does not appear to be any requirement that you abstain from every vote relating to the approval of plats, parcels and site plans within the entire Mirasol PCD. See CEO 85-62 (city council member not prohibited from voting on rezoning of property within a large redevelopment area where member's corporation owns a parcel of land within the same area). By way of example, the City Council's approval of the site plan for the fire station or the plat for Jog Road in no way inures to your or your company's special private gain. You would, however, be required to abstain from any additional votes relating to the specific parcels or pods within the community in which your company possesses or acquires an interest by virtue of a contractual relationship with the master developer. Where a conflict of interest exists, you are required to state the nature of your interest prior to the vote and file a voting conflict memorandum with the City Clerk, within 15 days. The existence of a voting conflict does not necessarily require you to abstain from all discussion relating to the matter (although you are free to do so). If you plan to participate in discussion of a matter in which you know you have a conflict, you must file a written conflict memorandum before the public meeting. You have also expressed concern that upon learning that your company will be building homes within Mirasol, members of the public may perceive a conflict of interest in all matters relating to Mirasol. To avoid the appearance of impropriety, it would be appropriate to make the following disclos[ure] prior to any vote: "While it is anticipated that the Sabatello Companies will be building homes within Mirasol, the matter before the City Council does not concern the areas in which such construction will take place and is wholly unrelated to any interest held by me or my corporations." Should you have any questions or be in need of additional information, please do not hesitate to contact this office. In January of 2001, Taylor Woodrow selected SD IV to build on Mirasol Parcel 4.3 It sent Carl Sabatello a letter dated January 22, 2001, advising him of the selection, along with a Parcel Builder Agreement and Exclusive Agency Brokerage Agreement for Mirasol Parcel 4. These agreements were fully executed in February of 2001. Sometime thereafter SD IV began building on Mirasol Parcel 4. SD IV was one of first builders to start construction in Mirasol. SD IV eventually purchased all 46 lots in Mirasol Parcel 4, constructing homes on each. All of the homes it built were sold. On or about October 18, 2001, at Respondent's request, Mr. Rubin prepared and distributed to Respondent and the other members of Palm Beach Gardens City Council a written memorandum designed to provide "clarification and confirmation from [the City Attorney's] office regarding a Council Member's obligation to vote on an item before the City Council." In this memorandum, Mr. Rubin made the following points: A council member must vote in the absence of a voting conflict or conflict of interest. Section 28[6].012, Florida Statutes, requires a member of the City Council, who is present at a meeting, to vote on an item before the Council unless there is, or appears to be, a conflict of interest or voting conflict pursuant to the Code of Ethics for Public Officers and Employees. * * * A voting conflict arises when the vote inures the Council member's own special private gain or loss of the special private gain or loss of the Council member's principal, family member or business associate. * * * The special private gain to the Council member depends on the size of the class of persons affected and is fact-specific. * * * The special private gain to the Council member must be direct and proximate. * * * In the event of a voting conflict, a Council member must disclose the nature of the conflict and abstain from voting. Mr. Rubin's memorandum "reinforced what [Respondent] already knew about the law." On April 18, 2002, the Palm Beach Gardens City Council voted on and passed two measures concerning the Mirasol Project, one, Resolution 54, 2002, dealing with Mirasol Parcel 6 (a 10.11 acre site within the development), and the other, Resolution 57, 2002, dealing with Mirasol Parcel 10 (a 14.6-acre site within the development). As the summary statement on its first page reflects, Resolution 54, 2002 was: A resolution of the City Council of the City of Palm Beach Gardens, Florida, providing for the approval of a site plan to allow for the development of 41 semi-custom homes, known as Mirasol Parcel 6, located within the Mirasol Planned Community District (PCD), as more particularly described herein; providing for conditions of approval; providing for waivers; providing for severability; providing for conflicts; and providing for an effective date. Section 5 of the resolution granted the following waivers: From Section 78-498 of the LDRs, to permit a 45-foot wide right-of-way. The code requires a minimum right-of-way width of 50 feet. From Section 78-141 of the LDRs, to permit a minimum lot width of 60 feet. The code requires a minimum width of 65 feet. From Section 78-141 of the LDRs, to permit lot coverage of 50%. The code requires a maximum lot coverage of 35%. From Section 78-141 of the LDRs, to permit a building side setback of 3 feet 1 inch on a "zero" side and 6 feet 11 inches on a "non-zero" side. The code requires a minimum side setback of 7.5 feet. From Section 78-141 of the LDRs, to permit a screen/accessory side setback of 3 feet 1 inch on a "zero" side and 5 feet on a "non-zero" side. The code requires a minimum side setback of 7.5 feet. From Section 78-141 of the LDRs, to permit a screen/accessory rear setback of 3 feet. The code requires a minimum setback of 10 feet. As the summary statement on its first page reflects, Resolution 57, 2002 was: A resolution of the City Council of the City of Palm Beach Gardens, Florida, providing for the approval of a site plan to allow for the development of 26 custom homes, known as Mirasol Parcel 10, located within the Mirasol Planned Community District (PCD), as more particularly described herein; providing for conditions of approval; providing for waivers; providing for severability; providing for conflicts; and providing for an effective date. Section 5 of the resolution granted the following waivers: From Section 78-498 of the LDRs, to permit a 45-foot wide right-of-way. The code requires a minimum right-of-way width of 50 feet. From Section 78-141 of the LDRs, to permit lot coverage of 45%. The code requires a maximum lot coverage of 35%. From Section 78-141 of the LDRs, to permit a building/screen side setback of 10 feet. The code requires a minimum side setback of 12 feet. From Section 78-141 of the LDRs, to permit an accessory structure setback of 5 feet. The code requires a minimum side setback of 12 feet. From Section 78-141 of the LDRs, to permit a screen/accessory rear setback of 3 feet. The code requires a minimum setback of 10 feet. The "waivers" that were granted by Resolution 54, 2002 and Resolution 57, 2002 were from the requirements of the Palm Beach Gardens Code that Taylor Woodrow, or whichever builder(s) it subsequently selected to build on the affected parcels, would otherwise have to meet. At the April 18, 2002, Palm Beach Gardens City Council meeting, Carl Sabatello orally announced to those in attendance, including Respondent, that he was going to abstain from voting on Resolution 54, 2002 and Resolution 57, 2002, explaining that he was involved in discussions regarding the possible purchase of the two parcels that were the subject of these measures. At the time of the vote on Resolution 54, 2002 and Resolution 57, 2002, although he may have been aware of the investment Mr. Sabatello's company had made in Mirasol Parcel 4, Respondent had no knowledge of any connection that Mr. Sabatello or his company may have had with Mirasol Parcel 6 and Mirasol Parcel 10 other than what Mr. Sabatello had told the audience at the meeting about the matter. As far as Respondent knew, neither Mr. Sabatello nor his company owned or had a contract to purchase Mirasol Parcel 6 or Mirasol Parcel 10. Respondent did not attempt to engage Mr. Sabatello in conversation or otherwise seek to find out more about the discussions Mr. Sabatello had referred to in his abstention announcement. Respondent did, however, consult with the Palm Beach Gardens City Attorney to determine whether or not he should vote on the resolutions. Respondent "knew [that the law required him] not to vote [on] things that a client had an interest in," but, based on what Mr. Sabatello had said at the meeting, he believed that Mr. Sabatello was merely "in a discussion phase" regarding the acquisition of an interest in Mirasol Parcel 6 and Mirasol Parcel 10 and that there had not been any agreement reached on the matter. He therefore voted on Resolution 54, 2002 and Resolution 57, 2002, consistent with the advice that the Palm Beach Gardens City Attorney had given. Approval of the site plans for Mirasol Parcel 6 and Mirasol Parcel 10 (which the passage of Resolution 54, 2002 and Resolution 57, 2002, respectively, accomplished) was needed before any permits for building on those two parcels could be obtained. Mr. Sabatello, on April 18, 2002, filled out a voting conflict form (Form 88, Memorandum of Voting Conflict) explaining why he did not vote on Resolution 54, 2002 and Resolution 57, 2002. On the form, he indicated that these votes "inured to the special gain of Sabatello Development Corp, IV, Inc, by whom I am retained," and then added that this "company," of which he was "an officer and owner[,] [was] in the process of negotiating [the] purchasing of Pod 6 & Pod 10." At the time he cast his votes for Resolution 54, 2002 and Resolution 57, 2002, Respondent was "not privy" to the contents of Mr. Sabatello's completed voting conflict form. On April 30, 2002, 12 days after the votes on Resolution 54, 2002 and Resolution 57, 2002, SD IV entered into an agreement with Taylor Woodrow to purchase all of the lots in Mirasol Parcel 6. It closed on lots 10, 11, 32, and 33 on September 25, 2002, and on the remaining lots in the parcel on January 3, 2003. SD IV built a home on every lot it purchased in Mirasol Parcel 6, and it sold every home it built. SD IV received a contract to purchase Mirasol Parcel 10, but it never executed the contract and therefore never acquired an interest in the parcel.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Commission issue a public report finding the evidence presented at the public hearing in this case insufficient to clearly and convincingly establish that Respondent violated Section 112.3143(3), Florida Statutes, by voting at the April 18, 2002, Palm Beach Gardens City Council meeting on Resolution 54, 2002 and Resolution 57, 2002, and dismissing the complaint filed against Respondent. DONE AND ENTERED this 4th day of March, 2009, in Tallahassee, Leon County, Florida. S STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of March, 2009.
The Issue The issue addressed in this proceeding is whether Petitioner was the subject of an unlawful employment practice.
Findings Of Fact Baypoint Hotel Associates operates a hotel at Marriott's Bay Point Resort in Panama City, Florida. Petitioner, Jerry D. Hicks, was employed by Respondent, Baypoint Hotel Associates, for approximately five and one Petitioner worked as a bell captain at Respondent's Panama City Beach, Florida, hotel for approximately two and one termination of his employment with Respondent. The bell captain's job required some heavy lifting. There was no dispute regarding the fact that Respondent is an employer within the meaning of the Florida Human Rights Act, and that all jurisdictional requirements have been met. Petitioner requested, and was granted, a leave of absence from his job effective December 17, 1991, in order to have back surgery to repair a herniated disc. By electing to take a leave of absence, Petitioner understood that he was not guaranteed his bell captain's job upon his return. In fact, he was not guaranteed any job upon his return, but would be given preference should there be an opening in any employment position for which he was qualified. There was no evidence that Respondent's leave of absence policy was not consistently applied or applied in a discriminatory manner. As a result of his surgery, Petitioner was unable to work from December 17, 1991, until April 9, 1992, when he was released by his doctor to return to work. No medical evidence was presented that Petitioner's "back problem" constituted a handicap or was perceived as a handicap by his employer. During Petitioner's absence from work, his job duties were reassigned to two assistant bell captains. After being released by his doctor to return to work, Petitioner informed Respondent's Human Resources Department, on or about the week of April 13, 1992, that he was ready to return to work, but that he would temporarily not be able to perform all of the duties, namely heavy lifting, of his former job as bell captain because of his surgery. After Petitioner requested to return to his job as a bell captain, Respondent's Director of Human Resources informed Petitioner that his former job was no longer available because Respondent's management had reassigned the bell captain's duties to two assistant bell captains and that Respondent did not plan to refill the job of bell captain under a reorganization of that service area. In lieu of returning Petitioner to his former job as bell captain, Respondent's human resource director informed Petitioner that he could interview for several available jobs at Respondent's hotel, including the jobs of telephone operator/supervisor, front desk clerk or reservation sales agent. Petitioner testified that he was unwilling to consider any job that paid less money than he was paid in his former job as a bell captain. By the time Petitioner informed Respondent's human resource director on April 28, 1992, that he was ready to interview for the reservation job; however, the reservations job had already been filled. Petitioner had waited an inordinate amount of time in advising Respondent of his interest in the reservations job and therefore lost his opportunity to apply. There was no evidence of any discrimination on the part of Respondent.
Recommendation It is accordingly, RECOMMENDED: Based on the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that the Florida Commission on Human Relations issue a Final Order dismissing Petitioner's complaint. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 29th day of October, 1993. DIANE CLEAVINGER 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 29th day of October 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-1504 The facts contained in paragraphs 1, 2 and 3 of Respondent's Proposed Findings of Fact are adopted in substance, insofar as material. COPIES FURNISHED: Jerry D. Hicks 1202 Parker Drive Panama City, Florida 32401 Michael D. Giles, Esquire 1410 AmSouth Harbert Plaza 1901 Sixth Avenue North Birmingham, Alabama 35203-2602 Dana Baird, General Counsel Commission on Human Relations 325 John Knox Road, Building F (Suite 240) Tallahassee, Florida 32399-1570 Ms. Sharon Moultry Clerk Florida Commission on Human Relations Building F Suite 240 325 John Knox Road Tallahassee Florida 32303-4149
Recommendation This case cane before the undersigned Hearing Officer, Division of Administrative Hearings on the Administrative Complaint by the Florida Real Estate Commission against the Respondent, Joyce H. Clemenz, charging her with being guilty of dishonest dealing, trick, scheme, device or breach of trust in a business transaction in violation of Subsection 475.25(1)(a), Florida Statutes. The charges in the Complaint stem out of allegations that the Respondent made personal long distance phone calls while employed as a real estate salesman. This case was noticed for hearing at the Offices of the Florida Real Estate Conssion, Coral Gables, Florida, and was heard on May 26, 1976. At that hearing the Respondent appeared and stated that she had not received Notice of Hearing, however, she waived the objection she might have had to that and agreed to proceed with the hearing. At that hearing the Real Estate Commission failed to present competent evidence which would support the statement of facts contained in the Information filed by the Real Estate Commission. One witness testified, Rose Marie George, an employee of the Magnuson Corporation, with whom the Respondent had been employee and to whom she is alleged to have charged these personal phone calls. Mrs. George stated that she receives the accounts payable for the Magnusom Corporation and that on several occasions makes note of unusually high telephone charges. She stated that she had been told that the Respondent had made some personal phone calls which were charged to the Magnusom Corporation. Mrs. George did not testify as to whether the Respondent made these telephone calls without permission or whether she had reimbursed the corporation for those calls. Furthermore, Mrs. George's testimony, except for that part which relates to her own responsibilities, was pure, unsubstantiated hearsay and cannot be the basis for any findings of fact relative thereto. See Subsection 120.58(1)(a), Florida Statutes. The only other item of evidence which the Real Estate Commission attempted to submit was a certified copy of the Judgment of the County Court for Dade County relating to the same transactions as described in the Administrative Complaint. The above exhibit was marked Petitioner's Exhibit No. 2 and was not admitted by this Hearing Officer for the reason that a Judgment in a civil action is not admissible in another proceeding to establish the truth of the allegations therein inasmuch as the Real Estate Commission produced no other evidence relative to this matter, it is the finding of this Hearing Officer that there was a complete absence of any substantial evidence which might support the truth of the allegations in the information filed by the Real Estate Commission and it is, therefore, RECOMMENDED that the Complaint issued in this matter be dismissed. DONE and ORDERED this 14th day of June, 1976, in Tallahassee, Florida. KENNETH G. OERTEL, Director Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Manuel E. Oliver, Esquire Florida Real Estate Commission 717 Ponce de Leon Boulevard Coral Gables, Florida 33134 Joyce H. Clemenz Post Office Box 431539 South Miami, Florida 33143
Findings Of Fact We find the Administrative Law Judge’s findings of fact to be supported by competent substantial evidence. FCHR Order No. 06-058 Page 2 We adopt the Administrative Law Judge’s findings of fact. Conclusions of Law We find the Administrative Law Judge’s application of the law to the facts to result in a correct disposition of the matter. We adopt the Administrative Law Judge’s conclusions of law. Exceptions Petitioner filed four numbered exceptions to the Administrative Law Judge’s Recommended Order in a document entitled “Petitioner’s Exceptions to Filed Recommended Order.” There is no indication on Petitioner’s exception document that it was served on Respondent by Petitioner as is required by Fla, Admin. Code R. 28-106.110. The exceptions docurnent was received after the expiration of the 15-day period from the date of the Recommended Order for filing exceptions. See, Recommended Order, Notice of Right to Submit Exceptions; Section 120.57(1)(k), Florida Statutes (2005); and Fla. Admin. Code R. 28-106.217(1). The Recommended Order is dated March 23, 2006, the cover letter accompanying the exceptions document is dated April 10, 2006, and the exceptions document was received by the Commission on April 17, 2006. All exceptions relate to the elements for establishing a prima facie case of discrimination. Exceptions 1 and 4 deal with issues surrounding whether Petitioner was handicapped within the meaning of the law. Exception 2 deals with the issue of whether Petitioner was qualified for the position in question. Exception 3 deals with the issue of whether Petitioner was treated less favorably than other employees. In our view, if all these exceptions were granted, the outcome of the case would not change, since the Administrative Law. Judge concluded that, even if a prima facie case had been established, Respondent established legitimate, nondiscriminatory reasons for terminating Petitioner from her position as a bus driver, namely Petitioner’s taking of the indicated prescription drugs and her inability to meet the lifting requirements of the position (Recommended Order, [42 and J 49), and that there was no showing that these reasons were a pretext for discrimination (Recommended Order, { 49). Further, the Commission has stated, “It is well settled that it is the Administrative Law Judge’s function ‘to consider all of the evidence presented and reach ultimate conclusions of fact based on competent substantial evidence by resolving conflicts, judging the credibility of witnesses and drawing permissible inferences therefrom. If the evidence presented supports two inconsistent findings, it is the Administrative Law Judge’s role to decide between them.’ Beckton v. Department of Children and Family Services, 21 F.A.L.R. 1735, at 1736 (FCHR 1998), citing Maggio v. Martin Marietta Aerospace, 9 F.A.L.R. 2168, at 2171 (FCHR 1986).” Barr v. Columbia Ocala Regional FCHR Order No. 06-058 Page 3 Medical Center, 22 F.A.L.R. 1729, at 1730 (FCHR 1999). Accord, Bowles v. Jackson County Hospital Corporation, FCHR Order No. 05-135 (December 6, 2005). Petitioner’s exceptions are rejected. Dismissal The Petition for Relief and Complaint of Discrimination are DISMISSED with prejudice. The parties have the right to seek judicial review of this Order. The Commission and the appropriate District Court of Appeal must receive notice of appeal within 30 days of the date this Order is filed with the Clerk of the Commission. Explanation of the right to appeal is found in Section 120.68, Florida Statutes, and in the Florida Rules of Appellate Procedure 9.110. DONE AND ORDERED this__20th _ day of June 2006. FOR THE FLORIDA COMMISSION ON HUMAN RELATIONS: Commissioner Donna Elam, Panel Chairperson; Commissioner Onelia A. Fajardo; and Commissioner Mario M. Valle Filed this__20th day of June _, 2006, in Tallahassee, Florida. . eld baed iolet Crawford, Cler! Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, FL 32301 (850) 488-708 Copies furnished to: Lorraine C. Morris c/o Warren K. Anderson, Jr., Esq. c/o Michael L. Howle, Esq. Anderson & Howell, P.A. 2029 North Third Street Jacksonville Beach, FL 32250-7429 FCHR Order No. 06-058 Page 4 Lee County Government c/o Andrea R. Fraser, Esq. c/o Jack Peterson, Esq. Post Office Box 398 Fort Myers, FL 33902-0398 William F. Quattlebaum, Administrative Law Judge, DOAH James Mallue, Legal Advisor for Commission Panel IHEREBY CERTIFY that a copy of the foregoing has been mailed to the above listed addressees this__20th _ day of June 2006. we Yat Can Clerk of the Commission Florida Commission on Human Relations
