The Issue At issue in this proceeding is whether the decision of the respondent, Department of Administration (Department), to reject, as untimely, the proposals submitted by petitioner, Medco Containment Services, Inc. (Medco), and intervenor, Preferred Employee Pharmaceutical, Inc. (Preferred), comported with the essential requirements of law, and whether the Department should exercise its discretion to reject all proposals and extend a new request for proposals.
Findings Of Fact Background On June 14, 1991, the Department of Administration, Division of State Employees' Insurance (Department), issued Request for Proposal No. 91-15 for a mail order prescription drug program (hereafter the "RFP"). The deadline for submitting sealed proposals in response to the RFP, as amended, was established as 2:00 p.m., August 2, 1991, and the time for opening proposals was established as 2:01 p.m., August 2, 1991. Pertinent to the deadline for submitting proposals established by the RFP, the RFP provided, at General Condition 3 (DGS Form PUR 7033): PROPOSAL OPENING: Shall be public on the date, location and the time specified on the acknowledgment form. It is the proposers responsibility to assure that his proposal is delivered at the proper time and place of the proposal opening. Proposals which for any reason are not so delivered will not be considered. . . . The RFP further provided at Section III, subsection L: Proposals must be mailed or hand delivered to arrive at the time, date and address as shown in the Schedule of Events. ALL PROPOSALS WILL BE PUBLICLY OPENED ON THE TIME, DATE AND ADDRESS SHOWN IN THE SCHEDULE OF EVENTS. ANY PROPOSALS RECEIVED AFTER THIS SPECIFIED TIME AND DATE WILL BE RETURNED UNOPENED. At the time of the deadline, the Department had received a number of proposals, including that of intervenor, Revco D.S., Inc. (Revco). Thereafter, at 2:02 p.m. on the bid opening date, the Department received proposals from petitioner, Medco Containment Services, Inc. (Medco), and intervenor, Preferred Employee Pharmaceuticals, Inc. (Preferred). These late submittals were rejected by the Department as untimely. Medco and Preferred contest the propriety of the Department's rejection of their proposals as untimely, and contend that the late submission of their proposals was a minor irregularity that should be waived by the Department or, alternatively, that the Department should exercise its discretion to reject all proposals and extend a new request for proposal. Pertinent to the position advocated by Medco and Preferred, the RFP provided, at General Condition 6: AWARDS: As the best interest of the State may require, the right is reserved to reject any and all proposals or waive any irregularity or technicality in proposals received. . . . However, no persuasive proof was offered that it was in the best interest of the state to waive the late filing of such proposals or reject all proposals. 2/ The Department, contrary to the contentions of Medco and Preferred, has evidenced no intention during the course of these proceedings to waive, as a minor irregularity, the late submission of their proposals in light of the mandatory language of the RFP regarding the rejection of such late submittals, and has evidenced no intent or advanced any reason to exercise its discretion to reject all bids. The circumstances surrounding the late submittal of the Medco and Preferred proposals In response to the RFP, Medco prepared a proposal at its Montvale, New Jersey, offices. 3/ The proposal was enclosed in a box which was entrusted, along with a second box containing Medco's response to the Department's RFP No. 91-14 for a prescription drug card program, to a courier service in Montvale on the afternoon of August 1, 1991, for delivery to the Department prior to 2:00 p.m., August 2, 1991. While both boxes apparently arrived in Tallahassee, Florida, the morning of August 2, 1991, the local courier service only picked up one box, that containing Medco's proposal in response to RFP No. 91-14. Not until 1:00 p.m. that day was such oversight discovered by a second courier service, which then took possession of Medco's response to the subject RFP (RFP No. 91-15) and delivered it to the Department at 2:02 p.m. that day. Preferred, located in Davie, Florida, also prepared a response to the subject RFP. On the morning of August 2, 1991, Preferred entrusted its proposal to US Air's PDQ courier service for delivery to the Department prior to 2:00 p.m. that date. The courier service did not, however, deliver Preferred's proposal to the Department until 2:02 p.m. Following the receipt of the Medco and Preferred proposals, they were taken to the bid opening room, where the bid opening for the RFP had already commenced. At that time, only envelopes which contained "no bids" (a notice that the respondent did not wish to submit a proposal) had actually been opened. Notwithstanding, based on the untimeliness of their submittal, the Department rejected the Medco and Preferred proposals. 4/ During the course of the public opening of the proposals that had been timely submitted, the cost proposals of such potential vendors were announced and posted. However, the award process has been stopped pending resolution of this protest and all proposals that were timely submitted are currently in the custody of the Department's evaluation team. 5/ By letters of August 7, 1991, addressed to Medco and Preferred, the Department advised such parties that, under separate cover, it was returning their proposals since they had not been received until after the opening of proposals had commenced. Medco refused to accept delivery of its proposal from the United States Post Office and it was returned to the Department, where it currently remains. Regarding the integrity of such proposal, the proof demonstrates that at no time since it was originally entrusted to the courier service by Medco on August 1, 1991, until the present has such proposal been opened or in any other manner been tampered with. Regarding the Preferred proposal, the proof demonstrates that upon the return of such proposal it was opened, and remains in Preferred's possession.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that a final order be entered which dismisses the protests of Medco and Preferred. RECOMMENDED in Tallahassee, Leon County, Florida, this 23rd day of October, 1991. WILLIAM J. KENDRICK, 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 23rd day of October, 1991.
Findings Of Fact On May 30, 2008, FEC entered an Order of Probable Cause charging Respondent with the following violations: Count 1: On or about January 10, 2007, Respondent violated Section 106.07(1), Florida Statutes, when he failed to file with the filing office his 2006 Q4 CTR due on that date, listing all contributions received and all expenditures made, by or on behalf of the candidate. Count 2: On or about May 7, 2007, Respondent violated Section 106.141(1), Florida Statutes, by failing to properly dispose of surplus campaign funds within 90 days after he was eliminated and to file a report reflecting the disposition of those funds, when Respondent failed to qualify between January 30, 2007 and February 6, 2007, and failed to dispose of funds in his campaign account and file a report reflecting the disposition of the funds on or before May 7, 2007. On or about December 16, 2008, Respondent was personally served with the Order of Probable Cause by process server. Because Respondent neither elected to have a formal or informal hearing conducted before FEC nor elected to resolve the complaint by consent order within 30 days after the date of the filing of FEC's allegations, on January 30, 2009, FEC referred the case to the Division of Administrative Hearings (DOAH), pursuant to Section 106.25(5), Florida Statutes (2007). The case was filed at DOAH on February 2, 2009. On February 6, 2009, Petitioner filed and served its First Requests for Admission upon Respondent. Respondent had 35 days, including time for mailing, to either admit or deny each of the Requests for Admission. Rule 1.370(a), Florida Rules of Civil Procedure provides: Each matter of which an admission is requested shall be separately set forth. The matter is admitted unless the party to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matter within 30 days after service of the request . . Thirty-five days from February 6, 2009, was March 13, 2009. Respondent failed to file a response to FEC's Requests for Admission by March 13, 2009. Additionally, Rule 1.370(b), Florida Rules of Civil Procedure, provides: Any matter admitted under this rule is conclusively established unless the court on motion permits withdrawal or amendment of the admission. On March 17, 2009, Petitioner filed its Motion for Summary Final Order, based on the unanswered Requests for Admission, and, therefore, based upon the conclusively established admissions of fact. Respondent filed no response in opposition to the Motion for Summary Final Order, as permitted by Florida Administrative Code Rule 28-106.204. On April 3, 2009, an Order to Show Cause was entered, requiring Respondent to show cause by April 10, 2009, why a Summary Final Order should not be entered against Respondent. Respondent did not file any response. The April 3, 2009, Order to Show Cause gave Respondent a final opportunity to dispute any or all facts, to set aside the Requests for Admission, or to otherwise show cause why the Motion for Summary Final Order should not be granted. Respondent has not shown good cause. Respondent's failure to provide a written answer or objection to FEC's Requests for Admission conclusively establishes the following determinative facts, which prove the charges herein:1/ Respondent signed a Statement of Candidate form for Jacksonville City Council, District 7, on June 8, 2005. Respondent filed an Appointment of Campaign Treasurer and Designation of Campaign Depository for Candidates (DS-DE-9) on or about June 8, 2005, designating himself as the treasurer of his campaign. Respondent did not file his 2006 Q4 Campaign Treasurer's report by January 10, 2007. Respondent received a Memorandum from Beth Fleet, Director of Candidate Administration, dated January 12, 2007, notifying him that he failed to file his 2006 Q4 Campaign Treasurer's Report that was due on January 10, 2007. Respondent received an April 27, 2007, Memorandum from Jerry Holland, Duval County Supervisor of Elections, notifying Respondent that he failed to file his 2006 Q4 Campaign Treasurer's Report that was due on January 10, 2007. Respondent's failure to file his 2006 Q4 Campaign Treasurer's Report is a violation of Section 106.07(1), Florida Statutes. Respondent's Termination Report (TR) was due on May 7, 2007. Respondent received a letter dated April 27, 2007, from Jerry Holland, Duval County Supervisor of Elections, notifying him that his TR was due on May 7, 2007. Respondent did not file his TR with the Duval County Supervisor of Elections by May 7, 2007. Respondent's failure to file his TR by May 7, 2007, is a violation of Section 106.141(1), Florida Statutes.
The Issue The issue is whether Respondent violated Section 475.25(1)(e) and (1)(m), Florida Statutes (2003),1 and Florida Administrative Code Rule 61J2-2.027(2), and if so, what discipline should be imposed.
Findings Of Fact Respondent is a licensed real estate sales associate. She was licensed in 2003. Her license number is 3061179. Respondent was working for Weichert Realty in the Orlando area at the time of the final hearing. She started working for that firm in October 2006, and prior to that, she “did not do a whole lot with [her] license as far as practicing real estate.” Respondent filled out and submitted her license application over the Internet. She submitted a signed notarized statement dated January 15, 2003, attesting that she answered the questions in the application “completely and truthfully to the best of [her] knowledge.” She also submitted a fingerprint card. The evidence clearly and convincingly establishes that there were at least three material misstatements and omissions in Respondent’s license application. First, Respondent did not provide a Social Security number (SSN) in her license application. The SSN that she subsequently provided to the Division, 378-72-0704, was incorrect. Respondent testified that her SSN is 378-62-0704. That is the SSN listed for Respondent in the driver’s license records maintained by the Florida Department of Highway Safety and Motor Vehicles (DHSMV). There is evidence suggesting that Respondent’s SSN may actually be 380-80-3178, but the evidence is not clear and convincing on that point.3 The document on which Respondent provided the incorrect SSN was not offered into evidence by the Division. Respondent denied providing an incorrect SSN, and she testified that if she did provide an incorrect SSN, it must have been typographical error. Second, the only name listed for Respondent in her license application was Yolanda Orr, which was Respondent’s married name and her legal name at the time she submitted her application. Respondent answered “no” to the question that asked whether she has ever “used, been known as or called by another name (example - maiden name . . .) or alias other than the name singed to the application.” (Emphasis supplied.) Respondent’s maiden name is Yolanda Small. She used that name until July 1998, when she was married. She was divorced in February 2006, and she is again using her maiden name. Respondent currently has two valid forms of identification issued by DHSMV: a Florida driver’s license in the name of Yolanda D. Small (No. S540-964-67-7491) and a Florida identification card in the name of Yolanda D. Orr (No. O600-964-57-7490). The driver’s license was issued in March 2006,4 and expires in July 2010; the identification card was issued in August 2002, and expires in July 2007. The birth date listed on the driver’s license is July 9, 1967, whereas the birth date listed on the identification card is July 9, 1957. Respondent testified that her middle name is Daniella, not Denise. She further testified that she has never used the name Yolanda Denise Orr. In response to a request to the state court in Michigan for records relating to Respondent, the Division was provided documentation of multiple traffic offenses committed in Flint, Michigan in 1999 and 2001 by Yolanda Denise Orr, as well as documentation of criminal offenses committed in Michigan by Yolanda Daniella Orr and Yolanda Danielle Orr. The traffic records do not list the defendant’s Social Security number, but the birth date listed in the records matches Respondent’s birth date. Respondent’s testimony that the traffic offenses did not involve her was not persuasive, nor was her claim there must be multiple Yolanda Orr’s in Flint, Michigan, with the same birth date as hers. Respondent admitted to being in Flint, Michigan at the time of the traffic offenses, and she admitted that she drove a Ford vehicle at the time of the ticket that was issued to Yolanda Denise Orr in October 2001 while driving a Ford. Moreover, the Michigan driver’s license number of Yolanda Denise Orr contained in the traffic records -- O600961139544 -- is identical (except for one number) to the Michigan driver’s license number -- O600961135544 -- that Respondent surrendered to DHSMV when she first applied for a Florida driver’s license. The evidence is clear and convincing that the Yolanda Denise Orr referred to in the traffic records is Respondent, and that Respondent failed to disclose that name (and her maiden name, Yolanda Small) in her license application. Third, Respondent only disclosed one criminal offense in response to the question in the application that asked whether she had “ever been convicted of a crime, found guilty, or entered a plea of guilty or nolo contendere (no contest) . . . .” The criminal offense that Respondent disclosed was, according to the application, a 1987 offense in Louisiana which Respondent “used the wrong social security number” when “filling out [her] financial aid papers for the first time.” There is no evidence that Respondent was prosecuted for such an offense in Louisiana. Respondent was, however, prosecuted in federal court in Michigan in 1993 for using a false SSN on two separate student loan applications. Those offenses were prosecuted as part of an indictment that also included four counts of filing fraudulent tax returns with the Internal Revenue Service and two counts of using a false SSN on tax returns. In February 1995, Respondent pled guilty to one count of filing a fraudulent tax return, one count of using a false SSN on a tax return, and one count of using a false SSN on student loan applications. The other counts of the indictment were dismissed as part of her plea agreement. In September 1995, Respondent was adjudicated guilty of the offenses to which she pled guilty and was sentenced to six months in federal prison, followed by three years of probation. She was also required to pay restitution in the amount of $8,177 to the Internal Revenue Service and restitution in the amount of $2,761 to the U.S. Department of Education. Respondent testified that “the whole reason the [federal] case came about” was that she filed a tax return not knowing that one had already been filed on her behalf by H&R Block; that the investigation into the “double” filing of the tax return led to the charge involving the “student loan application that had the wrong social security number on it”; and that it was her understanding that the offenses related to the student loan application submitted to Grambling State University, not any colleges in Michigan. Respondent’s testimony regarding the circumstances giving rise to the federal offenses was not credible because, among other things, she was charged with filing false tax returns on three separate occasions -- in 1990, 1991, and 1992 - - not just one time. The background check conducted on Respondent based upon the fingerprint card that she submitted as part of her license application identified two additional criminal offenses that Respondent did not disclose in her application. The first undisclosed offense was a 1990 felony retail fraud offense prosecuted in state court in Michigan. Respondent pled guilty to the offense and was sentenced to one year of probation. The record does not reflect the circumstances surrounding the retail fraud offense, but Respondent described it as “basically a petty theft.” The second undisclosed offense was a 1991 bad check charge, which was also prosecuted in state court in Michigan. The case was not resolved until February 2001 because, according to Respondent, it involved a check she wrote prior to leaving for college and she was unaware that that a case was pending against her until she returned to Michigan after college. Respondent was required to disclose criminal traffic offenses in her license applications; she was not required to disclose traffic offenses such as “parking, speeding, inspection, or traffic signal violations.” The traffic records suggest that several of the offenses may have been criminal in nature (e.g., driving with a suspended license), but the evidence was not clear and convincing on that issue.5 Respondent testified that she did not disclose the state court offenses because she did not remember them at the time she submitted her license application. She testified that she considered the federal offenses to be related and that she thought that disclosing one of the offenses was adequate since the other offenses were related and prosecuted together. Respondent’s explanation as to why she did not disclose all of her federal offenses is not entirely unreasonable under the circumstances. The offenses were all prosecuted in a single criminal proceeding and, even though they involved offenses committed in Michigan between 1990 and 1992 (rather than in Louisiana in 1987), they did involve use of an incorrect SSN on a student loan application. Respondent’s explanation as to why she did not disclose the offenses prosecuted in state court was not plausible. It is understandable that Respondent might not recall all of the details of the retail fraud offense since it occurred more than 10 years before the date of her application, but her testimony that she did not even remember the existence of the offense at the time she filled out her application was not credible or reasonable. Respondent’s testimony that she did not remember the bad check offense at the time she filled out her license application was even less credible because the court records related to that offense reflect that the case was not finally resolved until February 2001, which only two years prior to the date of Respondent’s license application. Respondent testified that she was told by a Division employee that she did not need to disclose all of the counts of the federal case because the related offenses would be discovered as part of the background screening based upon the fingerprint card submitted by Respondent. Respondent offered no evidence to corroborate her unpersuasive, self-serving testimony on this point. Respondent testified that she was directed by the same Division employee to provide a supplemental letter to the Division explaining the federal offenses, and that she did so. However, there is no record of what, if anything, Respondent submitted to the Division. Respondent’s application did not go to the Florida Real Estate Commission (Commission) for approval even though a criminal history was disclosed in the application. The Commission policy in effect at the time authorized the Division to approve such applications on a case-by-case basis. The policy did not require an applicant such as Respondent to appear before the Commission, as is the case under current Commission policy. Respondent did not present any evidence of mitigation at the final hearing. However, in her post-hearing filing, she stated, “I am a single mother, and as such, I rely on my real estate business as my only source of income.”
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Commission issue a final order that: finds Respondent guilty of violating Section 475.25(1)(m), Florida Statutes (Count I of the Administrative Complaint); finds Respondent guilty of violating Florida Administrative Code Rule 61J2-2.027(2) and, hence, Section 475.25(1)(e), Florida Statutes (Count II of the Administrative Complaint); revokes Respondent’s license; and imposes an administrative fine of $1,000 or the Division’s investigative costs, whichever is less. DONE AND ENTERED this 19th day of February, 2007, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II 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 19th day of February, 2007.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the Administrative Complaint filed against the respondent on September 9, 1981 be DISMISSED. Respectfully submitted and entered this 11th day of May, 1982, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of May, 1982. COPIES FURNISHED: Robert F. Jordan, Esquire CONRAD, SCHERER & JAMES 707 Southeast Third Avenue Post Office Box 14723 Ft. Lauderdale, Florida 33302 Philip Jansen, Esquire JANSEN & DE GANCE, P.A. Post Office Box 7375 Ft. Lauderdale, Florida 33304 Mr. C. B. Stafford Executive Director Florida Real Estate Commission Post Office Box 1900 Orlando, Florida 32801 Frederick H. Wilsen, Esquire Assistant General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue The issue is whether the Respondent discriminated against the Petitioner on the basis of his disability, and whether the Respondent’s discharge of the Petitioner from employment was unlawfully based upon his disability, in contravention of Section 760.10, Florida Statutes (2003), and the Americans with Disabilities Act of 1990, as amended, 42 U.S.C. Section 1201 et seq.
Findings Of Fact The Petitioner worked for the Respondent from September 17, 1999 through July 9, 2002. At the time of his termination from employment on July 9, 2002, the Petitioner worked in the Respondent’s Pensacola, Florida, Store No. 1605 under the supervision of Front End Assistant Manager Jackie Lewis and Store Co-Manager Rodney Snyder. The Petitioner’s last position with Wal-Mart was as a “People Greeter,” working eight-hour shifts. The Petitioner suffers from diabetes. On his employment application, the Petitioner indicated that he was able to work any scheduled hours and was seeking full-time employment. The Petitioner’s diabetes did not interfere with his ability to secure full-time employment. The Petitioner began his employment with the Respondent in Pensacola, Florida, Store No. 1222 as a maintenance associate, handling janitorial tasks. During the time he worked as a maintenance associate the Petitioner had his diabetes “under control.” The Petitioner completed an ADA “Job Matrix” form provided by the Respondent, on which he represented that he was able to perform all essential functions of his position without the need for any accommodation. No mention was made by the Petitioner at that time of his diabetic condition or resulting need for an accommodation. The Petitioner had “run-ins” with store management during his tenure as an employee of the Respondent. The Petitioner had a “run-in” with a Meat Department Manager over an assignment to mop-up a sugar spill, which the Petitioner refused to do. The Petitioner complained about supplies, or the lack thereof, at the store. The Petitioner admitted that there were tasks he simply refused to perform. The Petitioner had several problems with his co- workers and managers. On August 28, 2001, the Petitioner’s poor work attitude was cited on his annual performance appraisal, which was termed “below expectations.” During the course of his employment with the Respondent, the Petitioner was disciplined on several occasions through Wal-Mart’s “coaching” process. On February 17, 2001, the Petitioner received a “written coaching” for his failure to perform assigned job tasks, and he was informed that he needed to improve his job performance. Neither the annual performance rating nor the “coaching” session was caused by the Petitioner’s medical condition. On July 31, 2001, the Petitioner received a more severe form of coaching, a “Decision-Making-Day.” The coaching indicated that the Petitioner failed to complete jobs in a timely manner, questioned the authority of his managers, and had trouble following the directions of supervisors. The Petitioner was informed that if his performance did not improve he would be terminated. The Petitioner was given a day off to consider whether he wanted to continue to work for the Respondent and to prepare a performance action plan. In his performance action plan, the Petitioner indicated he would be more productive and approach his work with a more positive attitude. Following his performance action plan, the Petitioner requested and was granted a transfer to the position of "People Greeter," who works at the front of the store and welcomes customers as they enter the store. A "People Greeter" also performs certain tasks related to security. The Petitioner claimed to have given the Respondent’s personnel office a doctor’s note on June 27, 2002, indicating that the Petitioner needed a break every two hours in order to properly regulate his medication. The note made no mention of the Petitioner’s diabetic condition. The Respondent disavows any knowledge of receipt of a note concerning the Petitioner’s medical condition and need for frequent breaks. The Petitioner claimed that he was not always given the breaks he needed to regulate his medication. Given the nature of retail operations, in terms of the ebb and flow of shoppers entering the store, regular breaks are not always possible. Prior to the alleged submission of the doctor’s note on June 27, 2002, the Petitioner received coaching from his supervisors. On June 22, 2002, the Petitioner received verbal coaching from Ms. Jacqueline Lewis concerning his lack of respect for Customer Service Managers and other store management. Ms. Lewis received a statement from the Petitioner’s trainer indicating he refused to follow Wal-Mart policies for the "People Greeter" position. Ms. Lewis received written complaints from other co- workers of the Petitioner concerning his performance as a "People Greeter." All of these statements were factors in Ms. Lewis’ evaluation of the Petitioner’s performance as a "People Greeter." On the day of his termination, the Petitioner shouted 75-feet across the front of the store to the Customer Service Manager, requesting that she contact Ms. Lewis about issues taking place in the front of the store. He called a second time when his first request went unheeded. This behavior took place in front of store customers. Based upon the shouting incident, the Petitioner’s violation of policies, and the written complaints from co- workers, the Respondent terminated the Petitioner’s employment on July 9, 2002. The specific reasons given for the Petitioner’s termination were his inability to perform his job and for his not being respectful of other associates. The Petitioner believes that his co-workers and supervisors were aware of his diabetes. No co-workers or supervisors of the Petitioner testified at hearing that they were aware of the Petitioner’s diabetes. Ms. Lewis, the Front End Assistant Manager in the store, was not aware of the Petitioner’s diabetes. Ms. Carolyn Miller, the head Customer Service Manager for the store, was not aware of the Petitioner’s diabetes. Mr. Snyder, the store co-manager, was not aware of the Petitioner’s diabetes. Upon termination from employment with Wal-Mart, the Petitioner secured a Florida security guard license on his first try and obtained work as a security guard. The Petitioner was able to work a full eight-hour shift while employed by the Respondent. The Petitioner was able to perform the duties of his maintenance position when he held that job. At the time of his termination, the Petitioner was actively seeking a new position with Wal-Mart in the heating and ventilation area. When the Petitioner was unable to perform tasks associated with his employment, he attributed this to “old age,” and not his diabetes. The Petitioner planned to open his own steam cleaning and air conditioning repair business while he worked at Wal-Mart and felt physically able to do so. Since his termination from Wal-Mart, the Petitioner has secured gainful employment as a security guard at various factories, involving activities such as walking and driving trucks. The Petitioner has plans to rewire his house by himself. The Petitioner’s diabetes is kept in control by medication, and he does not require insulin.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a final order finding that the Respondent did not discriminate against the Petitioner and dismissing the Petition for Relief. DONE AND ENTERED this 20th day of April, 2004, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN 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 20th day of April, 2004. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 John M. Dickson 7870 Castlegate Drive Pensacola, Florida 32534-4555 Richard L. Ruth, Esquire Ford & Harrison LLP 225 Water Street, Suite 710 Jacksonville, Florida 32202 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: Petitioner Jack Mitchell is a native-born Floridian, now forty-seven years old and is married with one child. He has a degree in sociology from the University of Central Florida and presently works for a nonprofit community organization called Young Blacks in Action. Be has been doing work in the areas of civil rights and social justice for some twenty years, and was formerly an ordained minister and a district executive for the National Boy Scouts of America. He has also worked for Martin Marietta in the area of quality control. On December 24, 1983, petitioner was in Albertson's Food Store doing some last-minute Christmas shopping for his wife. He picked up two bottles of cologne. He claims that, after shopping for a while, he became concerned that he did not have his wallet and that, with the cologne in his hand, he began checking the inside pockets of his coat to look for his wallet. At that point, he was placed under arrest for shoplifting. He further testified that he had no intent to leave the store without paying for the merchandise. Without an attorney, petitioner pled nolo contendere to retail theft. He asserts that he entered this plea in order to avoid the publicity and embarrassment of a trial, since he is considered a public leader in his community. By Judgment and Sentence recorded on January 23, 1984, the Orange County Court adjudged petitioner guilty of retail theft and ordered him to pay a fine of $100.00, and other fees and costs in the amount of $34.00. Petitioner has never before been convicted of a crime. In March of 1984, petitioner applied for licensure as a limited surety agent. The respondent denied his application, citing as grounds therefore Section 648.45(2)(e) and (k) , Florida Statutes.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that petitioner's application for licensure as a limited surety agent be DENIED, without prejudice to petitioner to reapply for such licensure after the expiration of one (1) year from the date of the Final Order entered in this proceeding. Respectfully submitted and entered this 8th day of May, 1985, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of May, 1985. COPIES FURNISHED: Clark Jennings, Esquire Department of Insurance 413-B Larson Building Tallahassee, Fla. 32301 Scott Sterling, Esquire 311 N. Rosalind Avenue Orlando, Fla. 32801 Bill Gunter Insurance Commissioner The Capitol Tallahassee, Fla. 32301
The Issue Whether Respondents committed the unlawful employment practices alleged in the Charges of Discrimination filed with the Florida Commission on Human Relations ("FCHR") and, if so, what relief should Petitioner be granted.
Findings Of Fact Petitioner is an African-American male. Randstad is an employment services provider that assists clients with the placement of qualified candidates for available employment positions. BOA is a national financial institution. Randstad Petitioner applied for a Mortgage Customer Service Position that Randstad posted in August 2012. Petitioner was not hired for the position. Minda Hampel, an assistant branch manager for Randstad, testified that Randstad does not place candidates in every job that it posts. Ranstad's business records show a Mortgage Customer Service position was posted in August 2012; however, there are no facts or information contained in Randstad's business records to demonstrate that it assisted the hiring employer in filling or placing a candidate in that position. Ms. Hampel credibly testified that she had never met or spoken with Petitioner, and, therefore, was unaware of his race when the Mortgage Customer Service position was posted in August 2012. In October 2012, Randstad assisted one of its clients, MDVIP, with filling an available Purchasing Specialist Position. Petitioner applied for the position. Josh Rabine, a Randstad employee, credibly testified that, when Petitioner applied for the position, Mr. Rabine was unaware of Petitioner's race. Mr. Rabine further testified credibly that Petitioner did not meet the minimum qualifications for the position and that another applicant, who possessed over ten years of experience in purchasing management, was qualified for the position. Mr. Rabine did not decide which candidate would be awarded the position, and, ultimately, the position was filled by one of MDVIP's internal candidates. In November 2012, Ranstad assisted one of its clients, CWB Home Solutions, with filling an available position as an Outside Sales Manager. The position required prior experience with sales of audiovisual equipment and home systems. Petitioner applied for the position. Chelsea Arnold, a staffing manager for Randstad, credibly testified that Petitioner did not meet the minimum qualifications for the position. Ms. Arnold further testified that of the 12 applicants for the position, another individual was chosen who possessed over ten years' experience selling audiovisual and video equipment and home integrating security systems. Ms. Arnold credibly testified that she was unaware of Petitioner's race and that the client, CWB Home Solutions, ultimately made the decision to hire the alternative candidate. Bank of America On November 2, 2012, and January 4, 2013, Petitioner submitted online applications for Mortgage Loan Specialist ("MLS") positions with BOA in Boca Raton and Palm Beach Gardens. BOA's online application system is race-neutral. Petitioner did not identify his race on his online applications. Jorge Trujillo, the BOA corporate recruiter for the above-referenced positions, credibly testified that he has never met nor spoken with Petitioner. Mr. Trujillo testified that BOA was seeking candidates with sales experience, mortgage sales experience, and relational ties to the respective communities. Additionally, as the positions were located in South Florida, it was desirable for the candidate to be bilingual. The 2012 position was not filled because BOA cancelled the requisition.1/ Concerning the remaining MLS position, 31 candidates applied. Petitioner was not hired for the position. Petitioner had never worked in the Boca Raton or Palm Beach area and did not possess any mortgage sales experience. Mr. Trujillo testified that the candidate who was hired was an internal BOA candidate who had progressed from teller to personal banker and possessed relational connections with existing customers, as well as in the surrounding market. The hired candidate was bilingual (Creole), and African- American. Mr. Trujillo credibly testified that neither he nor anyone else involved in the hiring process was aware of Petitioner's race or that Petitioner had previously asserted a discrimination claim against BOA. Petitioner Petitioner failed to present any persuasive evidence that Respondents were aware of his race during the application process for any of the above-referenced positions. Petitioner failed to present any evidence regarding his employment qualifications in general or as specifically related to the above-referenced positions. Indeed, Petitioner's only evidence in this regard is his bald assertion that he was qualified for the positions to which he applied. Petitioner failed to present any evidence that he was equally or more qualified than the candidates hired for the above-referenced positions. Petitioner also failed to present any evidence that the above-referenced positions that he applied for remained open or were filled with individuals outside his protected class. The entirety of Petitioner's evidence in support of a retaliatory motive is set forth below: . . . it's been two years since I've been unemployed, seeking employment, and every position that I applied for or that I'm qualified for for different companies have pretty much sent automated response stating that we filled the position, and, for one person to apply for that many jobs for a long period of time, I feel that I'm being retaliated against, and I also was abused. Randstad and Bank of America refused to hire me and denied me of a job opportunity for positions that I'm qualified for. Ranstad also stated that there are other qualified applicants more qualified and they hired them instead of me, which is the statement that I'm making that I'm being retaliated against for full-time jobs that I'm qualified for. And, again, like I said before, a two-year gap in my employment is a sign of retaliation. The undersigned finds that Petitioner failed to present any credible evidence of a causal connection between BOA's failure-to-hire Petitioner and his previously asserted claim of discrimination.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order adopting the Findings of Fact and Conclusions of Law contained in this Recommended Order. Further, it is RECOMMENDED that the final order dismiss the respective Petitions for Relief against Respondents. DONE AND ENTERED this 12th day of December, 2013, in Tallahassee, Leon County, Florida. S TODD P. RESAVAGE 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 12th day of December, 2013.
The Issue The issues in this matter are whether Respondent poses an immediate, serious danger to the public health, safety, or welfare, and, if so, whether Petitioner has cause to immediately suspend Respondent's loan originator license.
Findings Of Fact At all times relevant to this case, Respondent was licensed with the Office to conduct business as a loan originator in the State of Florida. Respondent holds certificate of licensure NMLS No. LO19773. As a loan originator in Florida, Respondent is governed by chapter 494. The Office is the state agency charged with licensing, regulating, and supervising loan originators in Florida pursuant to chapter 494. On March 24, 2015, Respondent was arrested for the following crimes by the Sarasota County Sheriff's Office: Occupied Burglary--pursuant to section 810.02(2)(a), Florida Statutes,3/ a first-degree felony; Battery on a person 65 years or older-- pursuant to section 784.08(2)(c), Florida Statutes,4/ a third-degree felony; and Simple Battery (two counts)--pursuant to section 784.03(1)(a)1.,5/ first-degree misdemeanors. On May 12, 2015, Respondent was charged with these crimes in Sarasota County, Florida, in Case No. 2015-CF-004817-NC. Respondent's criminal case is currently pending disposition in Sarasota County. At the final hearing, Respondent described her actions which led to her arrest on March 24, 2015.6/ The incident began with a dispute over money. According to Respondent, an individual allegedly stole $258.00 from Respondent's friend who was staying at her house. Respondent, together with the friend and three other individuals, drove to the suspected thief's house to demand the money's return. Upon arrival at the house, Respondent walked up to and knocked on the front door. Two individuals, the suspected thief and the suspected thief's mother, answered. The confrontation quickly became physical. Respondent claims that the suspected thief's mother started the fight by jumping on her from out of the front door. Rapidly, upwards of five individuals were involved in hitting, pushing, tackling, and wrestling. The scrum ranged from the front door to the house's garage. Respondent recounted that she was battered, punched, slammed to the ground, and beaten with a cane. (The cane-wielder was the suspected thief's grandfather, who is over 65 years old, which apparently led to Respondent's felony charge of battery on a person 65 years or older.) Respondent claimed she suffered injuries to her chin, neck, heart, and scalp. At the final hearing, Respondent testified that she did not enter the suspected thief's home. However, Respondent did admit that at some point during the encounter, she entered the open garage with the intent to access the house through the side door. (This action evidently led to Respondent's felony charge of burglary.) Eventually, the Sarasota County Sheriff's Office was called and responded. The fight broke up. No serious injuries were reported. No information was presented regarding the fate of the $258.00. Respondent testified that she did not start the fight. She claimed that because of her small frame, she was never a serious danger to anyone. Nevertheless, the Sarasota County Sheriff indisputably arrested Respondent for her alleged role in the altercation. As of the date of the final hearing, Respondent understood that she will have a court date in August 2015 for the pending criminal case. Based on Respondent's arrest, on April 8, 2015, the Office issued the Emergency Order. The Office issued the Emergency Order pursuant to sections 120.60(6) and 494.00255(8). The Emergency Order states that the Office found Respondent's activities posed an immediate and serious danger to the public welfare. The Emergency Order ordered Respondent to immediately cease and desist from engaging in the business of loans and any activities in violation of chapter 494 and Office rules. Through the Emergency Order, the Office suspended Respondent's loan originator's license, effective April 13, 2015. Respondent's loan originator license is suspended "until such time as [Respondent] complies with the terms of this order." As described in the Emergency Order, the Office determined that Respondent's actions that led to her arrest posed an immediate, serious danger to the public based on several factors. The Emergency Order declares that the Office found that an emergency suspension and a cease and desist order was necessary to protect Florida consumers from Respondent's "apparent unpredictable and irrational behavior." Furthermore, Respondent's "apparent volatility, unpredictability, and lack of impulse control" calls into question her "trustworthiness and character." The Emergency Order also states that "[c]ommitting felony battery over a financial matter demonstrates that Respondent lacks the character or general fitness necessary to command the confidence of the community." To emphasize the seriousness of the alleged crimes, the Office points to the fact that the felony burglary charge carries a possible maximum penalty of life in prison. The Office included provisions and terms in the Emergency Order to meet the fairness requirement of section 120.60(6). The Emergency Order contained detailed factual findings in order to adequately notify Respondent of the basis for the Office's intended action. The Emergency Order included a Notice of Rights which provided Respondent the point of entry to request an expedited administrative hearing pursuant to chapter 120 to contest the Emergency Order (which Respondent pursued in the present matter). The Emergency Order also informed Respondent of her opportunity to seek to stay the Office's action through an appellate proceeding under section 120.68. Further, the Emergency Order stated that Respondent's loan originator's license is subject to reinstatement, if the criminal charges are ultimately dismissed or not prosecuted. At the final hearing, Respondent conceded that she made the wrong decision to confront the suspected thief. She expressed that she was not thinking clearly at the time. Nevertheless, Respondent asserts that she is falsely accused and has done nothing wrong. She pleads to keep her license during the time it takes Sarasota County to process her criminal case. Respondent proclaims that she should be considered and treated as innocent of all charges up to and until such time as the allegations against her are proven. Respondent asserts that her loan origination business is her sole source of financial support. Based on the facts produced at the final hearing and further discussed below, the undersigned finds that the Office has not met its burden of demonstrating by clear and convincing evidence that immediately suspending Respondent's license to conduct business as a loan originator is an action "necessary to protect the public interest," as required by section 120.60(6)(b).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Office of Financial Regulation, enter a final order rescinding the Emergency Order to Cease and Desist and Suspending License issued to Respondent, Frankie Damiano, on April 8, 2015. DONE AND ENTERED this 21st day of July, 2015, in Tallahassee, Leon County, Florida. S J. BRUCE CULPEPPER 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 21st day of July, 2015.
