Elawyers Elawyers
Washington| Change
Find Similar Cases by Filters
You can browse Case Laws by Courts, or by your need.
Find 49 similar cases
DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES vs. PATRICIA FOUNTAIN, 87-003826 (1987)
Division of Administrative Hearings, Florida Number: 87-003826 Latest Update: Jun. 17, 1988

Findings Of Fact Based on the evidence received at the final hearing, I make the following findings of fact. The Petitioner, Patricia Fountain, was employed by the Department of Health and Rehabilitative Services as a Direct Services Aide working with the District Four Children, Youth, and Families (CYF) Services. For some time prior to July 24, 1987, the Petitioner was under medical treatment and had been absent from work on one form or another of approved leave. On July 24, 1987, the Petitioner's physician released her from medical treatment to return to light duty. The physician's release was subsequently amended to effect the Petitioner's release to return to work on July 27, 1987. The Petitioner's supervisor, in consultation with the Petitioner's physician, arranged a schedule of light duty work for the Petitioner to perform during the week beginning July 27, 1987. On July 27, 1987, the Petitioner reported to work as scheduled and submitted a written statement from a physical therapist to the effect that it would be in the Petitioner's best interest to have a leave of absence from work. The Petitioner was advised that the statement from the physical therapist was insufficient, and that the Petitioner would be expected to perform her duties. On July 28, 1987, the Petitioner resubmitted the statement from the physical therapist with some additional information added to the statement. On that same day, the Petitioner left a written request for leave without pay on the program administrator's desk and, without anyone's knowledge, left work without authorization. The Petitioner did not thereafter return to work. Her request for leave without pay was never approved. The Petitioner's supervisor made several unsuccessful efforts to have the Petitioner attend a conference to discuss her unauthorized absence. On August 4, 1987, the Petitioner was contacted at home and served written notice that her absence was unauthorized and that she was expected to return to work on August 5, 1987. The Petitioner did not report to work on August 5, 6, or 7, 1987, nor did she report thereafter. The Petitioner did not contact her supervisor on August 5, 6, or 7, 1987, to explain her absence. A letter was mailed to the Petitioner advising her that by reason of her failure to report to work on August 5, 6, and 7, 1987, she was deemed to have abandoned her position and to have resigned from the Career Service, effective 5:00 p.m. on August 7, 1987. During August of 1987, the Petitioner did not have any sick leave or annual leave balance.

Recommendation Based on all of the foregoing, I recommend the entry of a Final Order concluding that the Petitioner, Patricia Fountain, was properly terminated for abandonment in accordance with Rule 22A-7.010(2)(a), Florida Administrative Code. DONE AND ENTERED this 17th day of June, 1988, at Tallahassee, Florida. MICHAEL M. PARRISH, 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 17th day of June, 1988. COPIES FURNISHED: Assistant District Legal Counsel Department of Health and Rehabilitative Services 5920 Arlington Expressway Post Office Box 2417 Jacksonville, Florida 32231-0083 Ms. Patricia Fountain 2533 Wilmot Avenue Jacksonville, Florida 32218 Pamela Miles, Esquire Assistant General Counsel Department of Administration 530 Carlton Building Tallahassee, Florida 32399-1550 Adis Vila, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Augustus D. Aikens, Jr., General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550

Florida Laws (1) 120.57
# 1
JOHN R. BLUM vs DEPARTMENT OF MANAGEMENT SERVICES, DIVISION OF RETIREMENT, 14-002808 (2014)
Division of Administrative Hearings, Florida Filed:Tallahassee, Florida Jun. 17, 2014 Number: 14-002808 Latest Update: Mar. 16, 2015

The Issue Whether Respondent, John R. Blum (Mr. Blum), violated the re-employment provisions set forth in section 121.091(13)(c)5.d., Florida Statutes (2013), and, therefore, must repay his Deferred Retirement Option Program (DROP) distribution and subsequent monthly retirement benefits.

Findings Of Fact The Division is the state agency charged with the responsibility of administering the Florida Retirement System (FRS). Mr. Blum was employed as a highway patrol officer with the Department of Highway Safety and Motor Vehicles (DHSMV). He made the decision to enter DROP, and, for the last five years of his employment with DHSMV, he participated in DROP. Prior to ending his DROP participation, Mr. Blum completed a Deferred Retirement Option Program Termination Notification, confirming he would terminate employment on May 31, 2013. The notification was also signed by the retirement coordinator for DHSMV confirming Mr. Blum’s employment termination date, and reads in pertinent part: In order to satisfy your employment termination requirement, you must terminate all employment relationships with all participating FRS employers for the first 6 calendar months after your DROP termination date. Termination requirement means you cannot remain employed or become employed with any FRS covered employer in a position covered or non-covered by retirement for the first 6 calendar months following your DROP termination date. This includes but is not limited to: part-time work, temporary work, other personal services (OPS), substitute teaching, adjunct professor or non-Division approved contractual services. * * * If you fail to meet the termination requirement, you will void (cancel) your retirement and DROP participation and you must repay all retirement benefits received (including accumulated DROP benefits). The form has been incorporated by reference into Florida Administrative Code Rule 60S-11.004(9). Mr. Blum terminated his employment with DHSMV on the agreed termination date of May 31, 2013. In July 2013, Mr. Blum began to work once again with DHSMV. He had applied and was hired to return as a reserve officer to work security at Florida turnpike stations. The Florida Highway Patrol provided Mr. Blum with access to the online system for payroll, and he was paid for his work through direct deposit from DHSMV, an FRS employer. Mr. Blum was under the mistaken impression that, when he worked the security for the turnpike stations, he was working for a private vendor. He had no intention of violating the termination of employment provisions. In September 2013, after working for almost three months, Mr. Blum was notified that he had violated the termination of employment provisions of DROP, and he ceased working as a reserve officer. On May 8, 2014, the Division sent a letter to Mr. Blum, notifying him that his DROP participation and retirement had been voided and that he must repay all retirement benefits, including his DROP accumulation. The total amount paid is $227,755.51, which the Division seeks to recover. He was also informed that his retirement account would be credited to reflect membership from March 2009 through May 2013. Mr. Blum has returned to work as a highway patrol officer, and his DROP application has been approved effective May 1, 2014.

Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Division enter a final order finding that Mr. Blum violated the re-employment provisions of section 121.091(13)(c)5.d., Florida Statutes, and, therefore, must repay retirement payments in the amount of $227,755.51 to the Division. DONE AND ENTERED this 25th day of August, 2014, in Tallahassee, Leon County, Florida. S JESSICA E. VARN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of August, 2014. COPIES FURNISHED: John R. Blum 5050 Southwest Eleventh Place Margate, Florida 33068-4060 Larry D. Scott, Esquire Department of Management Services 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399-0950 Dan Drake, Director Division of Retirement Department of Management Services Post Office Box 9000 Tallahassee, Florida 32315-9000 Bruce Conroy, Interim General Counsel Office of the General Counsel Department of Management Services 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399-0950

Florida Laws (7) 120.569120.57120.68121.021121.025121.031121.091 Florida Administrative Code (1) 28-106.217
# 2
ROBERT DANIELS vs DEPARTMENT OF MANAGEMENT SERVICES, DIVISION OF RETIREMENT, 19-002093 (2019)
Division of Administrative Hearings, Florida Filed:West Palm Beach, Florida Apr. 18, 2019 Number: 19-002093 Latest Update: Dec. 23, 2024
# 3
ALBERT P. BURTNER vs DEPARTMENT OF MANAGEMENT SERVICES, DIVISION OF RETIREMENT, 12-000870 (2012)
Division of Administrative Hearings, Florida Filed:Gainesville, Florida Mar. 09, 2012 Number: 12-000870 Latest Update: Aug. 30, 2012
Florida Laws (2) 120.68121.051
# 4
MICHAEL J. RODGERS vs. DEPARTMENT OF TRANSPORTATION, 87-003104 (1987)
Division of Administrative Hearings, Florida Number: 87-003104 Latest Update: May 27, 1988

The Issue Whether Michael J. Rodgers abandoned his position and resigned from the career service within the contemplation of Rule 22A-7.010(2), Florida Administrative Code?

Findings Of Fact V. G. "Jerry" Collins, a DOT maintenance engineer for 14 years, was Michael Rodgers' supervisor in June of 1987, when DOT employed the latter as a highway maintenance technician II at its Perry yard. While recovering from a job-related injury, Mr. Rodgers had been assigned to pump gas there. After Mr. Rodgers began work for DOT, he was furnished a copy of DOT's employee handbook. DOT's Exhibit No. 6. On page 12, the handbook states: If, for any reason, you are going to be late or absent when prior approval has not been obtained, you must notify your immediate supervisor within one hour of your regular authorized starting time. This will allow the Department to effectively schedule your work assignments on a daily basis. When you call in, you should give the reason(s) for your absence, type of leave requested and date and time you expect to report back to work. If you are unable to report back to work on the date and time given contact your supervisor, again, to explain why and request an extension of leave as needed. If you fail to contact your supervisor or other authorized person, within the first hour of absence, you will be placed on unauthorized leave of absence without pay for the entire period of time absent from work. If there were extenuating circumstances to keep you from making such contact, this will be taken into consideration at a later time. If you do not indicate on the first day of absence that you will be absent more than one day, then call in on each successive day to report your absence. Failure to provide such notice will result in your being charged unauthorized leave without pay for all days absent where proper notification is not given. DOT's Exhibit No. 4. On page 43, the handbook discusses the abandonment rule: JOB ABANDONMENT After an unauthorized leave of absence for three consecutive workdays, the Department will consider you to have abandoned your position and resigned from the Career Service. It is very important that you coordinate any personal absences with your immediate supervisor, in accordance with our current leave policy. DOT's Exhibit No. 3. Mr. Rodgers signed a form acknowledging receipt of the handbook on December 16, 1983. DOT's Exhibit No. 5. At about four on the afternoon of Monday, June 22, 1987, Mr. Collins asked Mr. Rodgers when his next doctor's appointment was. Mr. Rodgers replied, "I need to see him tomorrow." (T. 35) He did not "state that it would be for illness" (T. 53) or specify the reason for the visit. (T. 74) Believing Mr. Rodgers had an appointment to see his doctor the following day, Mr. Collins said, "That's fine, when you come back to work bring a doctor's certificate." (T. 17) But the leave Mr. Collins authorized Mr. Rodgers to take was "not a leave of absence for illness." (T. 53) On Tuesday, June 23, 1987, A DOT employee marked Mr. Rodgers absent for the day on "authorized leave" (T. 18) without pay. Mr. Rodgers, who lives about 60 miles from Perry, travelled to Dr. Hauser's office in Old Town on Tuesday morning "to sit down and talk with him about some information [he] needed," (T. 36-37) concerning an automobile accident's forensic sequelae. He was told to return later that day, because the doctor could not see him immediately. Although he returned at noon, and on four different occasions that afternoon, the doctor gave other patients priority. Mr. Rodgers then telephoned DOT's Perry yard, and "gave the secretary . . . the message that [he] was unable to see the doctor and . . . would still need to be off . . . to attempt to see him again on Wednesday the 24th." (T. 24, 38) When Mr. Collins learned of Mr. Rodgers' conversation with the secretary, he asked William S. Clark to telephone Dr. Hauser's office, at the Tri-County Medical Center. Betty in Dr. Hauser's office told Mr. Clark that, although Mr. Rodgers had in fact visited the office, he had no appointment. On Wednesday morning, DOT's attendance records were marked to reflect that Mr. Rodgers was absent on authorized leave without pay, although Mr. Collins testified that leave never was authorized for that day. (T. 19, 80) Later Wednesday, Mr. Collins, under the impression that Mr. Rodgers "had lied about going to the doctor for a doctor's appointment," (T. 82) ordered that the attendance records for Tuesday and Wednesday be altered to show that Mr. Rodgers' leave was not authorized on those days. (T. 19, 80, 82) On the afternoon of Wednesday the 24th, Mr. Rodgers, who had inquired at the office about Dr. Hauser's availability on two occasions earlier in the day, saw Dr. Hauser, discussed effects of the automobile accident, and made an appointment for the following day to have his back examined. (T. 38) On Thursday, the 25th, he kept the appointment, and obtained a slip of paper attesting the fact. But, in Mr. Collins' view, Mr. Rodgers' employment had ended before he saw the doctor that day: "He was considered to have abandoned his position by 9:00 a.m. Thursday morning since he had not called in [after Tuesday afternoon.]" (T. 79) When Mr. Rodgers returned to work on Friday, June 26, 1987, Mr. Collins read, then returned, the note from the doctor, informed Mr. Rodgers of the changes in the attendance records, and advised him that his employment had terminated.

Recommendation It is, accordingly, RECOMMENDED: That DOT reinstate Michael J. Rodgers as a highway maintenance technician II at its Perry yard, with back pay since June 26, 1987. DONE and ENTERED this 27th day of May, 1988, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 FILED with the Clerk of the Division of Administrative Hearings this 27th day of May, 1988. COPIES FURNISHED: Charles G. Gardner, Esquire Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450 Aaron A. Green, Esquire P. O. Box 1265 Gainesville, Florida 32602 Adis Vila Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550

# 5
CELESTE LYONS vs DEPARTMENT OF MANAGEMENT SERVICES, DIVISION OF RETIREMENT, 21-001362 (2021)
Division of Administrative Hearings, Florida Filed:Naples, Florida Apr. 21, 2021 Number: 21-001362 Latest Update: Dec. 23, 2024

The Issue Whether Petitioner is entitled to participate in the Florida Retirement System Deferred Retirement Option Program (DROP) when she submitted the DROP paperwork to her employer, but that paperwork was not submitted to Respondent within the timeframe set forth by statute or administrative rule. PROCEDURAL HISTORY On March 10, 2021, Respondent, the Department of Management Services, Division of Retirement (the Division), issued a letter to Petitioner, Celeste Lyons (Ms. Lyons or Petitioner), denying her application to participate in DROP because the Division did not receive her application to participate within the required time, pursuant to section 121.091(13)(a)2., Florida Statutes (2020), and no provision in Florida law would allow the Division to approve her for participation in DROP after the eligibility period.1 On April 7, 2021, Ms. Lyons filed an Amended Request for Formal Administrative Hearing with the Division. The Division transferred the matter to DOAH, where it was assigned and set for hearing. On June 28, 2021, Petitioner moved to amend her Request after discovering the Division was also relying on Florida Administrative Code Rule 60S-11.002(2) and (3)(a) to deny her participation in DROP. Petitioner was granted leave to amend her Petition for Formal Administrative Hearing, and this matter proceeded on the Second Amended Request for Formal Hearing submitted July 13, 2021 (Second Am. Req.). After three continuances, the final hearing was held on September 16, 2021. Petitioner presented her own testimony and the testimony of Kathy Gould, Bureau Chief of Retirement Calculations for the Division. Petitioner's Exhibits P1 through P34 and P36 were admitted into evidence. 1 All references to the Florida Administrative Code Rules and Florida Statutes are to the 2020 codifications. The Division presented the testimony of Garry Green, Policy Administrator for the Division. Respondent's Exhibits R2 through R5, R6-1, R6-2, R7, R10 through R13, R15, and R16 were admitted into evidence. At the outset of the hearing, the parties agreed to submit a joint stipulation of facts regarding the timeline of events. The Stipulation of Facts was filed on October 4, 2021, and is incorporated into this Recommended Order when appropriate. The Transcript of the hearing was filed on October 4, 2021. Both parties timely filed proposed recommended orders, which have been considered in the preparation of this Recommended Order.

Findings Of Fact Petitioner, Ms. Lyons, is a Fiscal Administrator for the Office of the State Attorney, Twentieth Judicial Circuit (SAO-20). Respondent, the Division, is a part of the Department of Management Services (Department). The Division is responsible for administering the retirement plans and programs under the Florida Retirement System (FRS). DROP is a retirement benefits program that entitles an eligible member of FRS to defer receipt of retirement benefits while continuing employment with the employer. § 121.091(13), Fla. Stat. The deferred benefits accrue with FRS on behalf of the member, with interest compounded monthly, for the specified period of DROP participation. Id. After the member terminates employment with the employer, the member receives the total DROP benefits and begins to receive the previously determined normal retirement benefits. Id. SAO-20 has been Ms. Lyons' employer for more than thirty years. Employees of SAO-20 participate in FRS and, if eligible, can choose to participate in DROP. SAO-20 obtained administrative services through the Justice Administrative Commission (JAC). JAC is a statutorily created "central state office" that provides "administrative services and assistance when possible to and on behalf of the state attorneys and public defenders of Florida, the capital collateral regional counsel of Florida, the criminal conflict and civil regional counsel, and the Guardian Ad Litem Program." § 43.16(5), Fla. Stat. These services include accounting, payroll, benefits, and retirement assistance to the above cited entities that participate in FRS. Although JAC was not Ms. Lyons' employer, it did have access to employees' personnel files. Moreover, the Division had trained JAC personnel on FRS and DROP, and the Division authorized JAC to accept DROP paperwork from various employers and submit it to the Division. JAC, however, was not part of the Department or the Division. Rather, JAC served as a conduit between SAO-20's human resources office and the Division for the processing of all the retirement benefit paperwork. MS. LYONS' DROP ELIGIBILITY AND PAPERWORK Ms. Lyons' normal retirement date was January 1, 2020. Ms. Lyons' 12-month eligibility window to elect to participate in DROP was between January 1 and December 31, 2020. § 121.091(13)(a)2., Fla. Stat. Before this date, in February and August 2019, Ms. Lyons requested estimates of her retirement benefits from the Division. These estimates were generated by the Division and sent directly to Ms. Lyons' home address. In the "Comments" section of the estimates created by the Division, it explicitly states, "If the DP-ELE is not received in our office by 12/31/2020, your eligibility to participate in DROP is forfeited." The August 2019 estimate projected that after 60 months, Ms. Lyons would have received $113,826.03 if she entered (or began participation in) DROP during her first month of eligibility, January 2020. In January 2020, Ms. Lyons continued to work for SAO-20 but filled out the Division's paperwork for participating in DROP with the help of Rosemarie Mitchell, Director of Human Resources for SAO-20. These forms included the following: Notice of Election to Participate in [DROP] and Resignation of Employment (DP-ELE); Application for Service Retirement and [DROP] (DP-11); Option Selection for FRS Member (FRS-11o); [FRS] Pension Plan Spousal Acknowledgment Form (SA-1); and [FRS] Pension Plan Retired Member and DROP Participant Beneficiary Designation Form. (FST-12). On these forms, Ms. Lyons certified she elected to participate in DROP and would resign her employment on the date she terminated from DROP. Ms. Lyons listed "January 1, 2020," as her DROP start date and "December 31, 2024," as her DROP termination resignation date. Petitioner's employer, SAO-20, also certified that Ms. Lyons would "be enrolled as a DROP Participant" on January 1, 2020, and that Ms. Lyons would "terminate ... her employment" on December 31, 2024. All of the above forms were filled out, signed by Ms. Lyons, and notarized on January 9, 2020. On January 9, 2020, Ms. Lyons submitted the above forms to Ms. Mitchell. On that same day, Ms. Mitchell emailed Ms. Lyons' DROP paperwork to the JAC Retirement Coordinator. Jessica Estes (formerly known as Jessica Liang), a Senior Human Resources Coordinator for JAC, acknowledged JAC's receipt of Ms. Lyons' DROP paperwork and requested two new FST-12 forms and more documentation verifying Ms. Lyons' date of birth. The requested information was not required to be eligible or participate in DROP. Ms. Estes' normal procedure was to forward DROP paperwork to the Division before the end of the month in which it was received. If she had followed this practice, she should have sent in Ms. Lyons' DROP paperwork to the Division on or before January 31, 2020. She did not. In fact, no one in SAO-20 or JAC forwarded Ms. Lyons' DROP paperwork to the Division before December 31, 2020. This mistake was not discovered until more than a year later. On February 25, 2021, JAC discovered it had failed to submit the DROP paperwork for Ms. Lyons to the Division. On February 26, 2021, after JAC contacted the Division, Ms. Estes emailed Petitioner's DROP paperwork, including Forms DP-ELE and DP-11, to Kathy Gould, Chief of the Bureau of Retirement Calculations at the Division. Again, there is no dispute this was outside of Ms. Lyons' 12-month eligibility window. On March 5, 2021, SAO-20 notified Ms. Lyons of JAC's failure to submit her DROP paperwork to the Division within the eligibility period. On March 10, 2021, the Division issued an Administrative Notice to Ms. Lyons denying her participation in DROP and informing her that she was not eligible to participate in DROP because the application and election were received outside her 12-month eligibility window (and past the December 31, 2020, deadline). Relying on sections 121.091(13)(a)2. and 121.021(29)(a), the Division informed Ms. Lyons that a member must "submit a form DP-ELE ... to the Division ... within twelve months of the date you first bec[o]me eligible to participate," and because the Division "received [Ms. Lyons'] DP-ELE after the end of [her] eligibility period, [she was] not eligible to participate in DROP." The denial letter did not reference any administrative rule. The testimony established that the Division has accepted DROP paperwork after the eligibility period when there is a dispute about whether the paperwork has been received by the Division within the 12-month eligibility window. In these cases, the Division has, after an investigation, discovered that there was a technical mistake on the Division's end that prevented submission of the DROP paperwork within the statutory deadline. For example, in the past, the Division has accepted DROP paperwork as timely received when an FRS member submits DROP paperwork via facsimile, but it does not print out on the Division's end because of a technical issue; or where an email with DROP paperwork attached was sent by the member to the Division within the eligibility period, but did not upload or arrive in the Division's inbox until after the end of that period. That is not the case for Ms. Lyons. Her documentation was not sent to the Division within the statutory timeframe, and there was no technical (or human) error on the Division's end of the communication. Any error was on the part of JAC or SAO-20.

Conclusions For Petitioner: George T. Levesque, Esquire James Timothy Moore, Esquire Patrick Hagen, Esquire GrayRobinson, P.A. 301 South Bronough Street, Suite 600 Tallahassee, Florida 32301 For Respondent: Gayla Grant, Esquire Thomas E. Wright, Esquire Whitney Rebecca Hays, Esquire Department of Management Services Office of the General Counsel 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399-0950

Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Management Services, Division of Retirement, enter a final order denying Celeste Lyons from participation in DROP. DONE AND ENTERED this 2nd day of November, 2021, in Tallahassee, Leon County, Florida. S HETAL DESAI Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of November, 2021. COPIES FURNISHED: George T. Levesque, Esquire GrayRobinson, P.A. 301 South Bronough Street, Suite 600 Tallahassee, Florida 32301 Gayla Grant, Esquire Department of Management Services 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399-0950 Patrick Hagen, Esquire GrayRobinson, P.A. 301 South Bronough Street, Suite 600 Tallahassee, Florida 32301 David DiSalvo, Director Division of Retirement Department of Management Services Post Office Box 9000 Tallahassee, Florida 32315-9000 Thomas E. Wright, Esquire Department of Management Services Office of the General Counsel 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399-0950 James Timothy Moore, Esquire GrayRobinson, P.A 301 South Bronough Street, Suite 600 Tallahassee, Florida 32301 Whitney Rebecca Hays, Esquire Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-0950 Kristen Larson, Interim General Counsel Department of Management Services Office of the General Counsel 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399-0950

# 6
DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES vs. VICTORIA VANNEST, 87-003893 (1987)
Division of Administrative Hearings, Florida Number: 87-003893 Latest Update: May 25, 1988

The Issue Whether or not Respondent has abandoned her position as a Career Service employee. BACKGROUND AND PROCEDURE Petitioner presented the oral testimony of Terry Brown, Jo Ann Register, and Tony DeJosias, identified eight exhibits, and had seven exhibits admitted in evidence. Respondent testified on her own behalf and had admitted one exhibit. No transcript was provided. HRS' proposed findings of fact have been ruled upon in the Appendix to this Recommended Order, pursuant to Section 120.59(2), Florida Statutes. Respondent did not file any proposals.

Findings Of Fact Beginning at least on August 19, 1985 Respondent was a Career Service employee of the Department of Health and Rehabilitative Services (HRS) in West Palm Beach, Florida. On April 21, 1987, Respondent was operating a complicated telephone system for HRS when she tripped and fell flat on her face, injuring her head and back. She was taken to a hospital, and after a series of referrals, remained under the care of Dr. Charles Curtis, D.O., due to residual concussion and back problems. Her employer was aware of all the foregoing facts and initially paid Respondent workers' compensation and medical benefits, pursuant to Chapter 440, Florida Statutes. On July 1, 1987, employees of the State of Florida, Department of Insurance, Division of Risk Management (HRS' workers' compensation administrator located in Tallahassee, Florida) terminated Respondent's benefits under Chapter 440, Florida Statutes, because they believed Respondent was then able to return to work. The notification form for this termination was not completed by Risk Nanagement until July 15, 1987, and was not received by Respondent or her West Palm Beach HRS supervisors until some time after that date. Initially, Dr. Curtis had been an "authorized" physician as that term is understood under Chapter 440, Florida Statutes, and its case progeny. There is no evidence in this record that he was ever specifial1y "de-authorized," although evidence was presented to show that Risk Management's rehabilitation associate wanted Respondent released by Dr. Curtis to return to work at the West Palm Beach HRS office. Indeed, local HRS and Tallahassee Risk Management consistently treated Dr. Curtis as the attending or treating physician. Prior to her April 21, 1987 accident, and while employed full-time with HRS, Respondent had worked part-time for her husband, a jeweler, at five dollars per hour. The regularity or duration of this work was never established, but the pre- accident nature of her part-time work was mostly setting up displays and occasional retail selling of jewelry. After the April 21, 1987 accident at HRS, and at least as early as July 2, 1987 (the day after workers' compensation benefits were terminated), Tony DeJosias, an insurance investigator hired by Risk Management, observed Respondent driving a car and at work again waiting on DeJosias and other customers in her husband's jewelry store. Mr. DeJosias' observations of Respondent were periodic throughout July and August, 1987, but did not specifically cover August 5, 6, and 7, 1987, which are the dates HRS ultimately required that Respondent appear for her regular employment with them. Respondent's work in the jewelry store as observed by Mr. DeJosias involved bending, lifting a thick, heavy jewelry catalogue, and brief operation of an engraving machine, while seated. Mr. DeJosias observed that the Respondent showed no visible signs of pain or discomfort, but Mr. DeJosias has no medical background. Respondent admits that in July and August of 1987, she was in her husband's store to take advantage of the store's air conditioning because air conditioning helps her headaches and air conditioning was not available to her at her home. Her HRS office in West Palm Beach was also air conditioned. Respondent represented that she also wished not to be alone and wished to be in the presence of her husband because she suffered dizzy spells and would occasionally lose her balance. Respondent was not paid wages by her husband during July and August, 1987. Terry Brown, Respondent's highest ranking local supervisor, wrote Respondent a letter dated July 20, 1987, that stated, We have been advised by the Division of Risk Management that your Worker's [sicj Compensation benefits have been suspended effective July 1, 1987. *This letter is to advise you that you must report to work immediately, but no later than 8:00 a.m. Monday, July 27, 1987.* If you do not report to work on July 27, 1987, it may appear that you have abandoned your position. (Emphasis supplied between *) Respondent received the July 20, 1987 letter on July 22, 1987. She sought out Dr. Curtis who was then unavailable. In his absence, she was referred by personnel in Dr. Curtis' office to a Dr. Robert C. Greer IV, D.O., who was "covering for Dr. Curtis." Dr. Greer wrote a July 23, 1987 letter to Terry Brown which, referring to Respondent, stated in pertinent part, At the present she presents with syptoms [sic] consistent with lost concussion syndrome. She continues in therapy with another physician. She is not yet able to return to work. On July 31, 1987, Terry Brown caused Respondent to be sent a certified letter which she received on August 1, 1987. That second letter read in pertinent part: On July 20, 1987, you were advised to report to work no later than Monday, July 27, 1987 and that failure to report may constitute abandonment. You contacted this office and stated that due to medical reasons, you could not return to work. Subsequent to your telephone call, we received your doctor's statement which also stated you could not return to work. Our personnel office contacted the Division of Risk Management regarding your doctor's statement and they informed us that this statement was not acceptable. In view of the above, this is to advise you that you must report to work on Wednesday, August 5, 1987 at 8:00 a.m. Failure to report to work on this date will constitute abandonment of your position. Respondent recalls that she had a telephone conversation with someone at the local HRS office but could not say when. This phone conversation probably was the unspecified "contact" referred to in the first paragraph of the July 31, 1987 letter. Terry Brown recalls personally speaking with Respondent one time on the telephone, but whether he did so before or after the July 31, 1987 letter is not clear. It is more probable from the evidence of record as a whole that Mr. Brown spoke with the Respondent after she had received his July 31, 1987 letter, because Brown recalls telling Respondent that she needed to go to the physician authorized by Risk Management (Dr. Curtis) and that she needed to talk to one of the local HRS personnel specialists, and because Respondent stated that she called an HRS supervisor (probably Terry Brown) within a week after receiving the July 31, 1987 letter. Respondent testified that she told whoever she talked to on the phone in the period after the July 31, 1987 letter, that she was not abandoning her job but that whoever she spoke to on the phone at the local HRS office at that time never informed her that Dr. Greer's letter was insufficient. This latter representation of Respondent is directly refuted by her admitted receipt of the July 31, 1987 letter, which clearly states that HRS found Dr. Greer's letter unacceptable. After observing the candor and demeanor of the respective witnesses, after considering all the evidence, and after giving Respondent the benefit of the doubt with regard to her alleged memory problems resulting from the April 21, 1987 fall, I find credible Mr. Brown's testimony that he orally explained to Respondent that she must have an excuse from Dr. Curtis in order to avoid a presumption of abandonment. Terry Brown and Jo Ann Register, a local HRS personnel officer, testified credibly and consistently that Dr. Greer's letter would not have been considered sufficient by them as a doctor's excuse for absence from work for sick leave even if Risk Management in Tallahassee had not raised the workers' compensation issue of Dr. Greer being a physician unauthorized by the employer pursuant to Chapter 440, Florida Statutes. Dr. Greer's letter would have been deemed by Brown and Register to be insufficient to grant extended sick leave because it did not specify that Dr. Greer was treating (attending) Respondent and because it did not specify a date when Respondent would be able to return to work. The failure of Brown and Register to ever verify Dr. Greer's relationship with Dr. Curtis or to initiate contact with Dr. Curtis to see if Dr. Curtis had, in fact, released Respondent to return to work may be significant in terms of workers' compensation benefit entitlement but in light of the law to be applied in this case, it is not. (See the following Conclusions of Law.) Brown and Register agree they would have accepted an excuse from Dr. Curtis, who was still understood to be the authorized/ treating/attending physician, if the note had said when the Respondent could return for work. Such a note was not presented by the Respondent prior to the ultimatum date of August 5, 1987. Respondent had accumulated annual and sick leave available for her use on August 5, 6, and 7, 1987, but she admittedly did not request to use any leave of any kind for those dates. Respondent also did not report for work on any of those days. By letter of August 10, 1987, in reliance on Rule 22A-7.010(2), Florida Administrative Code, HRS separated Respondent from the Career Service, upon the following terms: You were scheduled to work August 5, 1987, as advised in our letter to you dated July 31, 1987. You failed to report for work and you did not have approved leave for your absence. For purposes of abandonment, the three consecutive workdays are August 5, 6, and 7, 1987. Based on the above information, we must now reasonably assume that you are no longer interested in your position and therefore we are processing your resignation. Risk Management employees had informed Jo Ann Register by phone prior to August 10, 1987 that there was reason to believe Respondent was working full- time. Risk Management confirmed these oral representations in a letter to the West Palm Beach HRS office mailed from Tallahassee on August 10, 1987. This letter is an admissible business record. However, even if it could be considered hearsay for purposes of the facts asserted therein, it would still be admissible to show the state of mind of local HRS personnel with regard to the issue of abandonment. Although Mr. Brown and Ms. Register apparently did not know about Mr. DeJosias' ongoing surveillance of Respondent until shortly before formal hearing, they had some knowledge that Respondent was working before August 10, 1987 and this knowledge constituted an element in their decision to interpret Respondent's nonappearance on August 5, 6, and 7 as "abandonment" or as evidence that Respondent was "no longer interested in her position" as set forth in HRS' August 10, 1987 letter to Respondent. Respondent testified that she has never yet been released for work by Dr. Curtis, whom she represents that she continues to see professionally every two weeks, and that she has not been released for work by an unnamed clinical psychologist who apparently only performed a one time evaluation. Although not admitted as an exhibit at hearing, the undersigned is entitled to take official recognition of all pleadings within the file of the Division of Administrative Hearings, i.e., the Respondent's petition, dated August 19, 1987, has attached to it what purports to be an unsigned but stamped excuse from a Charles E. Curtis, D.O., P.A., stating, As of this date Mrs. Van Nest has been unable to work 4-30-87/8-19-87 due to a work related injury. Whether or not that note can be interpreted to refute or support Respondent's testimony that she has never been released by Dr. Curtis is subject to debate, but it clearly may be inferred that the earliest date Respondent's supervisors could have received this excuse was August 19, 1987, two weeks after their ultimatum date of August 5, 1987 when Respondent failed to report to work and further that Respondent clearly had knowledge that a note of this kind was required from Dr. Curtis. Respondent put on no evidence that Dr. Curtis was unavailable to provide such a note between August 1 (the date she received the second ultimatum) and August 5, 1987. There is no evidence that Dr. Curtis knew about Respondent's work at her husband's store. Respondent testified that at all times relevant and even at the time of formal hearing, she had both residual headaches and balance problems. The balance problems were partially refuted by the credible observations of Tony DeJosias.

Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that HRS enter a Final Order that ratifies Respondent's termination effective August 10, 1987, and DONE AND ENTERED this 25th day of May, 1988, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS 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 25th day of May, 1988. Appendix to Recommended Order DOAH Case No. 87-3893 The following ccnstitute specific rulings upon Petitioner's propod findings of fact (PFOF) pursuant to Section 120.59(2), Florida Statutes. 1-2. Covered in FOF 1. Covered in FOF 2. Covered in FOF 5-6. Covered in FOF 6, 8, and 9. Covered in FOF 4 as the undersigned recalls the stipulation. Covered in FOF 10. Covered in FOF 11. Accepted but subordinate and unnecessary. COPIES FURNISHED: Peggy G. Miller, Esquire 111 Georgia Avenue West Palm Beach, Florida 33401 Joseph D. Lee, Esquire Servico Centre East Suite 300-400 1601 Belvedere Road West Palm Beach, Florida 33408 Adis M. Vila, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Augustus D. Aikens, Jr., Esquire General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Gregory Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700

Florida Laws (1) 120.57
# 7
HUGH G. PURKEY vs. DEPARTMENT OF TRANSPORTATION, 89-001186 (1989)
Division of Administrative Hearings, Florida Number: 89-001186 Latest Update: Dec. 07, 1989

Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at tee hearing, the following findings of fact are made: On or about December 5, 1969, the Petitioner, Hugh G. Purkey became employed by the State of Florida, Department of Transportation. In 1984, Petitioner held the position of Engineer II, Area Engineer and was assigned to the North Dade Maintenance Yard (NDMY). In 1983, Petitioner executed a form which acknowledged he had received a complete copy of the DOT employee handbook. The acknowledgement specified that enployees are responsible to review the handbook in detail and to request any clarification needed from a supervisor. The handbook provided the following regarding job abandonnent: After an unauthorized leave of absence for three consecutive workdays, the Department will consider you to have abandoned your position and resigned from the Career Service. It is very important that you coordinate any personal absences with your immediate supervisor, in accordance with our current leave policy. On or about October 23, 1984, Petitioner filed a request for a medical leave of absence. This request was based upon Petitioner's pulmonary disorder which prevented him from performing his duties with the NDMY. Petitioner was to receive pay based upon his accrued annual and/or sick leave through Novenber 6, 1984, thereafter, he was to be on leave without pay for a period of four months. This leave request was approved by the Petitioner's supervisor, Clive Taylor. Mr. Taylor was the only supervisor or employee at the NDMY who was authorized to grant a leave of absence for Petitioner. On January 28, 1985, an extension of Petitioner's leave of absence was granted by Mr. Taylor. This extension authorized two additional months of leave and specified that Petitioner would return to work no later than May 6, 1985. Prior to the leave of absence described above, Petitioner had performed his duties with the NDMY in an above satisfactory manner. Prior to May 6, 1985, Petitioner had complied with the rules and regulations regarding requests for leave. Petitioner did not return to work on May 6, 1985. Petitioner did not file a request for a leave extension. Mr. Taylor did not approve an extension of the leave beyond May 6, 1985. Petitioner was absent without authorized leave on May 6, 7, and 8, 1985. On May 10, 1985, Mr. Taylor executed a form entitled "Resignation and Exit Interview Form." This form provided, in part: "Mr. Purkey is not available for signature" and "Mr. Purkey is pursuing regular disability retirement." Petitioner did not execute the form but was advised of its content by telephone. Sometime prior to April 30, 1985, Petitioner had applied for disability retirement benefits. That request was filed with the Department of Administration, Division of Retirement and was denied based upon a determination that Petitioner was not totally and permanently disabled from rendering useful and efficient service. When that determination was made, Petitioner elected to file for regular retirement since he had accrued over ten years with the State. Thereafter, Petitioner received retirement benefits which were granted and paid retroactively from February 1, 1985. On July 9, 1986, Petitioner received a physician's statement which provided: It is my professional opinion that this patient may return to work requiring no strenuous physical activity providing that the patient continue on his medication and return for regular checkups in any office. Upon receipt of the physician's statement, Petitioner contacted the NDMY to request that he be allowed to return to work. Petitioner was advised that he had been terminated from employment in May, 1985, based upon his failure to return to work following his leave of absence. On July 29, 1986, Petitioner wrote to John C. Gocdnight, Assistant Secretary of Transportation, and requested Mr. Goodnight's assistance to allow Petitioner to return to DOT. That letter admitted that Petitioner knew his position had been filled but claimed he had been on leave. Petitioner maintained that he was "much too young to retire." The letter failed to mention that Petitioner had already been receiving retirement benefits. Petitioner listed his address subsequent to November, 1984, as Dunnellon, Florida. There is no record in Petitioner's personnel file which confirms DOT sent, and Petitioner received, a notice of his termination from employment in May, 1985. Petitioner did not request a hearing to review that termination until January, 1989.

Recommendation Based on the foregoing, it is RECOMMENDED: That the Department of Administration enter a final order finding that the Petitioner, Hugh G. Purkey, abandoned his position and resigned from the Career Service. DONE and ENTERED this 7th day of December, 1989, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of December, 1989. APPENDIX RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE PETITIONER: Paragraph 1 is accepted. The first portion of paragraph 2 is accepted; the designation of his last actual day of employment is in error and is rejected as contrary to the weight of the evidence. The date indicated, January 20, 1984, was not his last day of actual employment. According to DOT exhibit 8 (the referenced citation) that date was the last date worked. Petitioner's last date of employment would have been calculated from May 5, 1985 (the last date of his authorized leave). With regard to paragraphs 3 and 4, it is accepted that Petitioner used his accrued sick and annual leave until they were exhausted. After the paid leave was used, Petitioner applied for and received, by filing the appropriate form, an authorized leave without pay. Paragraph 5 is accepted. Paragraph 6 is accepted. Paragraph 7 is accepted. Paragraph 8 is accepted. Paragraph 9 is accepted. Paragraph 10 is rejected as comment, argument, or recitation of testimony which does not constitute a finding of specific fact. Paragraph 11 is rejected as incomplete or contrary to the weight of the evidence. Paragraph 12 is rejected as contrary to the weight of the evidence. Paragraph 13 is rejected as contrary to the weight of the credible evidence. Paragraph 14 is rejected as vague and ambiguous. It is accepted that Petitioner filed his original leave request and that Ms. Sellers assisted him. Paragraph 15 is rejected as incomplete and contrary to the weight of the evidence. Paragraph 16 is accepted to the extent that it provides that clerks would assist persons who requested such assistance. The first three sentences of paragraph 17 are accepted; the balance of the paragraph is rejected as argument or contrary to the weight of the evidence. The first sentence of paragraph 18 is accepted. The remainder of the paragraph is rejected as irrelevant or unknown. DOT did not establish that the form was sent and received by Petitioner. Paragraph 19 is accepted. Paragraph 20 is rejected as a provision of law. The parties have not disputed that the notice is required. Paragraph 21 is accepted to the extent that DOT cannot prove that such notice was provided to Petitioner. Paragraph 22 is rejected as incomplete or contrary to the weight of the evidence. Paragraph 23 is rejected as irrelevant since Petitioner did not request that his medical leave be continued as required by the rule. Paragraph 24 is rejected as irrelevant. Further, the authorization to return was not without limitation. Paragraph 25 is rejected as contrary to the weight of the credible evidence. Paragraph 26 is rejected as irrelevant. Paragraph 27 is rejected as irrelevant. With regard to the letter to Goodnight, Petitioner admitted in that letter that he knew his position had been filled. Paragraph 28 is rejected as irrelevant. Paragraph 29 is accepted but is irrelevant. Paragraph 30 is accepted. Paragraph 31 is rejected as irrelevant or not covered by the record. With regard to paragraph 32, it is accepted that Petitioner's request for disability retirement was denied and that he ultimately elected to seek early retirement; otherwise, it is rejected as hearsay uncorroborated by direct evidence. Paragraph 33 is accepted. Paragraph 34 is rejected as irrelevant or contrary to the credible evidence. Paragraph 35 is rejected as irrelevant. Paragraph 36 is rejected as irrelevant or contrary to the weight of credible evidence. Paragraph 37 is rejected as irrelevant. Paragraph 38 is rejected as comment, argument, or recitation of testimony. Paragraph 39 is accepted but is irrelevant. Paragraph 40 is rejected as contrary to the weight of the credible evidence. Petitioner's section described as "Analysis" has not been considered findings of fact. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY DOT: 1. Paragraphs 1, 3, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 21, 22, 24, and 25 are accepted. Paragraph 2 is rejected as Irrelevant. Paragraph 4 is rejected as irrelevant. Paragraph 19 is rejected as irrelevant. Paragraph 20 is accepted but is unnecessary. Paragraph 23 is rejected as unsupported by the record. DOT's section described as "Analysis" has not been considered findings of fact COPIES FURNISHED: Paul H. Field WICKER, SMITH, BLOMQVIST, TUTAN, O'HARA, McCOY, GRAHAM & LANE Grove Plaza Building, 5th Floor 2900 Middle Street Miami, Florida 33133 Charles Gardner Department of Transportation 605 Suwannee Street, M.S. 58 Tallahassee, Florida 32399-0458 Ben G. Watts, Acting Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450 Thomas H. Bateman, III General Counsel Department of Transportation 562 Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450

# 8
OLWEN B. KHAN vs. DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, 88-002577 (1988)
Division of Administrative Hearings, Florida Number: 88-002577 Latest Update: Aug. 08, 1988

The Issue The issue is whether Ms. Khan abandoned her career service position by failing to report for work, or to apply for and obtain leave for three consecutive days.

Findings Of Fact Olwen B. Khan was employed by the Department of Health and Rehabilitative Services as a Public Assistance Specialist in the medically needed program in Broward County, Florida. Ms. Khan is Jamaican, and cares for her elderly father. In order to provide for his care, she arranged to go to Jamaica to sell some property there. On March 1, 1988, Ms. Khan requested, and was granted, 32 hours of leave for March 7 through the close of business on March 10, 1988. Ms. Khan had accumulated annual leave and sick leave so that the annual leave requested did not exhaust the leave available to her. Ms. Khan purchased an airline ticket to Jamaica which would have resulted in her return the evening of March 10, 1988. On March 9, 1988, it became clear that Ms. Khan's business could not be concluded by March 10 and she would have to remain in Jamaica a few more days. She was then in Maninbay, Jamaica, where telephone service is not sophisticated. She had to go to the local telephone company office to make an overseas call when a line was available. She did so at approximately 2:45 p.m. on March 9 but when she reached the HRS office, she was placed on hold for an extended period of time. She then terminated the call and attempted to place another call on March 10 but was not able to get through to the HRS office. The evening of the 10th she made a collect call to her home in Fort Lauderdale at about 5:45 p.m., Eastern Standard Time. The purpose of the call was to have her daughter request additional leave so she could conclude her business in Jamaica. Ms. Khan's ex-husband answered the phone, which surprised her. He agreed to make the request to the Department for additional leave. The following Tuesday Ms. Khan spoke with her ex- husband again, and he said that the message had been given and the additional leave had been taken care of. In fact, no one ever contacted the Department on Ms. Khan's behalf to explain her failure to report to work on Friday, March 11; Monday, March 14; or Tuesday, March 15, 1988. Ms. Khan's supervisor, Norma Levine, did ask one of Ms. Khan's coworkers if she knew where Ms. Khan was. The coworker, Judy Fiche, did not know. After three days had passed with no word from Ms. Khan, Ms. Levine discussed the matter with her supervisor, Mr. Moran. Mr. Moran recommended termination for abandonment of position because no one had heard from Ms. Khan since her approved leave had ended on Thursday, March 10, 1988. A memorandum setting out the facts was prepared for the personnel office, and through the personnel office a certified letter was sent to Ms. Khan on March 17, 1988, informing her that as of the close of business on March 15, 1988, her employment had been terminated for abandonment of her position. When Ms. Khan did return on March 16, she was informed that her position had been terminated. She attempted to see Mr. Moran that day but he was unavailable. She eventually did speak with him but was unsatisfied with his response and ultimately spoke with the personnel officer for HRS District X, Mr. Durrett, on March 30, 1988. Mr. Durrett maintained HRS's position that Mr. Khan had abandoned her job and was unmoved by her explanation that she had been out of the country to take care of a family problem and had thought that her message about needing additional leave had been relayed to the Department. When Ms. Khan was first employed by the Department, she signed a receipt for an employee handbook setting out its policies. The policy on absences requires that an employee who does not report to work notify the employee's supervisor by 8:30 a.m., and if that supervisor is not available, the employee is to notify another supervisor that the employee will not be in to work and state why. The employee performance appraisal for Ms. Khan completed in November 1988, was the last appraisal before her termination. It shows that she was regarded as achieving prescribed performance standards.

Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered finding that under Rule 22A- 7.010(2)(a), Florida Administrative Code, Olwen B. Khan abandoned her position by being absent without authorized leave for three consecutive workdays. DONE AND RECOMMENDED in Tallahassee, Leon County, Florida, this 8th day of August, 1988. WILLIAM R. DORSEY, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1050 (904) 488-9765 Filed with the Clerk of the Division of Administrative Hearings this 8th day of August, 1988. APPENDIX The burden of all proposed facts contained in Ms. Khan's proposed finding of fact have been adopted. COPIES FURNISHED: Larry Kranert, Jr., Esquire Department of Health and Rehabilitative Services 201 West Broward Boulevard Fort Lauderdale, Florida 33301-1885 Lawrence D. Zietz, Esquire 8181 West Broward Boulevard #380 Plantation, Florida 33324 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407 Tallahassee, Florida 32399-0700 John Miller, Esquire Acting General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407 Tallahassee, Florida 32399-0700 Adis Vila, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Augustus D. Aikens, Jr., Esquire General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550

Florida Laws (1) 120.57
# 9
HERNANDEZ ENTERPRISES vs DEPARTMENT OF FINANCIAL SERVICES, DIVISION OF WORKERS' COMPENSATION, 06-001078F (2006)
Division of Administrative Hearings, Florida Filed:Jacksonville, Florida Mar. 23, 2006 Number: 06-001078F Latest Update: Jan. 24, 2007

The Issue The issue is whether Respondent should reimburse Petitioner for the attorneys' fees and costs Petitioner expended in its successful defense of Respondent's Stop-Work Order.

Findings Of Fact Hernandez, Inc., was a contractor based in the Jacksonville, Florida area, and was in the business of installing dry wall, among other construction-related activities. Its principal owner, Jorge Hernandez, founded the company in 1981. The Department of Financial Services is the state agency responsible for enforcing the Workers' Compensation Law. This duty is delegated to the Division of Workers' Compensation. The Division is a state agency. It is not a nominal party. On February 5, 2004, Hernandez, Inc., was engaged in installing drywall in the Bennett Federal Building in Jacksonville, Florida, using its own personnel, who were leased from Matrix, Inc., an employee leasing company, and two subcontractors, GIO & Sons (GIO), of Norfolk, Virginia, and U&M Contractors, Inc., (U&M), of Charlotte, North Carolina. The leased employees were properly covered by workers' compensation insurance provided by the lessor. Prior to contracting with GIO and U&M, Hernandez, Inc., asked for and received ACORD certificates of insurance, which on their face indicated that the subcontractors had both liability coverage and workers' compensation coverage. It is the practice of Hernandez, Inc., to ensure that certificates of insurance are provided by subcontractors. The office staff of Hernandez, Inc., at all times prior to going out of business, tracked the certificates and ensured that they were kept current. Hernandez, Inc. had relied on hundreds of these ACORD certificates in the past. During times pertinent, neither GIO or U&M maintained workers' compensation insurance on their employees that complied with the requirements of Section 440.38(7), Florida Statutes. On February 5, 2004, Katina Johnson, an investigator with the Division's Jacksonville office, made a routine visit to the Bennett Federal Building with another investigator. She observed personnel from Hernandez, Inc., and its subcontractors GIO and U&M, installing dry wall. She also determined that Hernandez, Inc., had a contract to install dry wall as a subcontractor participating in the construction of the Mayport Naval Station BEQ. U&M worked at both the Bennett Federal Building site and the Mayport BEQ site as a subcontractor of Hernandez, Inc. Ms. Johnson discovered that neither U&M nor GIO had workers' compensation coverage for its employers. Ms. Johnson asked for and received the certificates of insurance that Hernandez, Inc., had obtained from GIO and U&M, which facially suggested that Hernandez, Inc., had determined that its subcontractors had appropriate coverage. Nevertheless, she issued a SWO on February 26, 2004, to Hernandez, Inc., as well as GIO, and U&M. By the SWO, Hernandez, Inc., was charged with failure to ensure that workers' compensation meeting the requirements of Chapter 440, Florida Statutes, and the Florida Insurance Code, was in place for GIO and U&M. She also issued an Order of Penalty Assessment that eventually became an Amended Order of Penalty Assessment dated March 19, 2004. The SWO stated, in bold print, that Hernandez, Inc., was, "Ordered to Stop Work and Cease All Business Operations in the State." Hernandez, Inc., was, at the time, also engaged in construction at the new Jacksonville Library and at the Carlington Apartments, both of which were located in Florida. By the terms of the SWO, Hernandez was required to stop work in those sites also. The Division had no evidence that might cause it to believe that Hernandez, Inc., was operating in violation of the law at those sites. The SWO contained with it a Notice of Rights advising that a formal or informal administrative hearing might be had and required that a petition for a hearing be filed within 21 days of receipt of the SWO, if a hearing was desired. Hernandez, Inc., was not informed that it had the right to an immediate hearing. Hernandez, Inc., timely filed a petition demanding a formal hearing. In an effort to get back to work, Hernandez, Inc., entered into an agreement with the Division, whereby it paid a partial penalty of $46,694.03, but admitted no liability. The formal hearing did not take place until August 16, 2005. Ms. Johnson had the power to issue a stop-work order. She did not have to get approval from a neutral magistrate or from the Division. Because she was a recent employee of the Division, she conferred with her supervisor Robert Lambert before taking action, and he approved her action in writing. In February 2004, it was the policy of the Division to issue SWO's for all work sites even though it concluded that a violation had occurred in only the site or sites visited. The Division policy did not require an investigation into all worksites as a prerequisite to shutting down all worksites. The policy requiring a contractor to cease work at all worksites was not adopted as a rule. In February 2004, the Division asserted that compliance with Section 440.10(1)(c), Florida Statutes, required a general contractor to look beyond an ACORD certificate of insurance to determine if subcontractors had complied with the requirement to maintain the required workers' compensation coverage ". . . under a Florida endorsement using Florida rates and rules pursuant to payroll reporting that accurately reflects the work performed in this state by such employees." This policy was not adopted as a rule and was subsequently abandoned. The Division, in implementing this policy, asserted that a general contractor must actually review the policy of a subcontractor presenting an ACORD certificate and determine if it was in effect and if it complied with Florida law. This policy was not adopted as a rule and the policy was subsequently abandoned. The Division further asserted that the employees of the subcontractor of a general contractor were to be viewed as if they were employees of the general contractor, when contemplating workers' compensation coverage. This policy was not adopted as a rule. Ms. Johnson acted in conformance with the Division's policies in effect at the time the SWO was issued. The net worth of Hernandez, Inc., was a negative $1,821,599, on December 31, 2003. Hernandez, Inc., was struggling financially in February 2004, but was on the way to recovery until the SWO was issued. On November 30, 2004, the net worth of Hernandez, Inc., was a negative $1,161,865, and this figure included the sum of $978,000 that Mr. Hernandez put into the business. Accordingly, Hernandez, Inc., was a small business party for purposes of Subsection 57.111(4)(a), Florida Statutes, during times pertinent. The SWO, which terminated work at all Hernandez work sites, torpedoed any chance the company had to continue in business. Mr. Hernandez mortgaged his house, which he subsequently lost to creditors, in an effort to keep Hernandez, Inc., in business. All of his efforts failed. The failure was a direct result of the actions of the Division. The Division's interpretations of the law that precipitated their policies, and thus the failure of the business, were both wrong and unreasonable. Subsequent to the hearing and Recommended Order in Department of Financial Services, Division of Workers' Compensation v. Hernandez, Inc., Case No. 04-1174 (DOAH October 3, 2005), the Chief Financial Officer entered a Final Order styled, In the Matter of: Hernandez, Enterprises, Inc., Case No. 75492-05-WC (Florida Department of Financial Services, January 25, 2006). The Final Order noted that the contractor, Hernandez, Inc., complied with the extant law when it, ". . . demanded and received proof of insurance. . . . " The Final Order also noted that there was no authority produced by the Division that would permit the imposition of a fine on Hernandez, Inc. The Final Order further recited that there was no statutory duty on the part of a contractor to ensure (emphasis supplied) that its subcontractors had secured workers' compensation coverage for its employees. It noted that, ". . . without some formal delineation of the specific obligations of a contractor in ascertaining proof of insurance from a subcontractor, the Department cannot impose a penalty upon the facts presented in the instant case." The Division was ordered to rescind the SWO issued February 26, 2004, and the Amended Order of Penalty Assessment dated March 19, 2004, and was further ordered to repay the amount of $46,694.03, which had been paid to persuade the Division to abate the SWO. The action was initiated by the Division, which is a state agency. At the time the SWO was initiated, there was no reasonable basis in law and fact to do so. The actions of the Division were not "substantially justified." Hernandez, Inc., prevailed in the hearing because the Chief Financial Officer entered a Final Order in its favor and the Order has not been reversed on appeal and the time for seeking judicial review of the Final Order has expired. Hernandez, Inc., is, therefore, a "prevailing small business party." Hernandez, Inc., paid its law firm, Holbrook, Akel, Cold, Stiefel & Ray, P.A., $51,815.50 in attorneys' fees, and paid $8,837.00 in costs, in its successful defense of the Division's actions.

USC (1) 5 U.S.C 504 Florida Laws (8) 120.52120.57120.68440.10440.107440.3857.111694.03
# 10

Can't find what you're looking for?

Post a free question on our public forum.
Ask a Question
Search for lawyers by practice areas.
Find a Lawyer