The Issue (1) Whether Respondent's sign is located on a state maintained right-of-way and therefore in violation of Subsection 479.11(5), Florida Statutes. (2) Whether Respondent's sign is in violation of the setback requirements of Subsection 479.11(1). (3) whether Respondent's sign is in violation of the permit requirement of Subsection 479.07(1).
Findings Of Fact The Respondent owns a sign located at the junction of U.S. Highway 90 and 319 in Wakulla County, Florida. The sign is within the boundaries of the state maintained right-of-way as presently situated. The sign was erected at the direction of Mr. Val Tuck upon the good faith belief, based on the representations of third parties, that this site was outside the right-of-way. Subsequent information has convenienced Mr. Tuck that the sign is within the right-of-way. DONE AND ORDERED this 28th day of July, 1975, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Jay Hendrickson
Findings Of Fact On April 5, 1985, the Department issued its Request for Proposal (RFP) for "Community Care for Disabled Adults - Home Delivered Meals/Homemaker Services." By May 16, 1985, the deadline established in the RFP, four proposals had been filed with the Department. A review committee consisting of three Department employees, James Gibson, Betty Gunter, and Aimee Lurkins, reviewed the proposals and rated each response, numerically, in accordance with the rating sheet which had been included in the RFP. The combined scores of the reviewers resulted in the bidders being ranked as follows: Visiting Nurse Association - 259 points Health Force of Broward - 212 points Professional Care, Inc. - 170 points Accredited Medical Services - 137 points Cathy D'Heron, contract manager for the program, reviewed the four proposals, as well as the committee's evaluations, and concurred that VNA was the most responsible bidder. Accordingly, the Department posted its recommended award of the bid to VNA. Petitioner filed a timely protest to the award. Petitioner contends that VNA's proposal was not responsive to the RFP and that the Department acted arbitrarily and capriciously in evaluating and awarding the bid. Petitioner's first contention is without merit. The evidence establishes that VNA's proposal was responsive to the RFP. Petitioner's second contention is equally without merit. The gravamen of Petitioner's charge is its disagreement with the points awarded by two members of the review committee. However, the record is devoid of any proof that the committee's evaluation was anything short of well reasoned and appropriate. Significantly, Petitioner concurs with Mr. Gibson's evaluation. Mr. Gibson awarded VNA 82 points and Petitioner 64 points.
The Issue The issue to be resolved in this proceeding concerns whether the Petitioner is entitled to an exemption from disqualification from employment in a position of special trust and responsibility as a "direct care provider." More specifically, it must be determined whether appropriate circumstances and adequate rehabilitation have occurred since the criminal offense which engendered this proceeding so as to justify qualification by exemption of the Petitioner for such an employment position.
Findings Of Fact The Petitioner, S.M., was charged with possession and sale of cannabis some four years prior to the hearing in this matter. He pled guilty to that charge and adjudication of guilt was withheld, as was the case concerning a charge of possession of drug paraphernalia, apparently lodged against him some two years previously. Because of his youth and the overall circumstances of those criminal cases and, inferentially, because the Petitioner had already embarked on a program of drug rehabilitation counseling before the criminal incidents occurred and was attempting to better his lifestyle, the court elected not to enter a conviction but withheld adjudication of guilt as to both charges. Nevertheless, the matters came to the attention of the Respondent and on August 8, 1995, the Respondent informed his employer, the Sunland Center, of the charges. It was determined that they were grounds for disqualification from his employment position, which ultimately engendered this proceeding. The Petitioner, before and after the criminal incidents, was undergoing counseling concerning drug use and manic depression, or bipolar disorder. His disorder is under control through counseling and medication and, indeed, medication has been unnecessary for the last two years. Thus, the Petitioner exhibited a desire and initiated active steps designed to improve his emotional condition and his lifestyle, even before he was involved in the criminal incidents in question and since that time, as well. The Petitioner moved from the St. Petersburg area to Jackson County, Florida, after the criminal incidents occurred and secured employment at the Sunland Center, as a direct caregiver for developmentally-disabled persons. He has had an exemplary record in that employment, until he was forced to leave because of the disqualification referenced above. Uniformly, his co-workers and supervisors have praised his performance and his attitude, including his emotional stability and interest in and care for the patients under his charge. His supervisors desire him to come back to work in that capacity once again. Additionally, since the criminal incidents in question, he has experienced a strong religious conversion and has returned to a Christian-oriented way of life. He has, thus, done mission work in Honduras and has been involved in Christian youth ministries and radio ministries for his church. The Reverend Jack Hollis of Marianna, Florida, is the Petitioner's minister. He supervises the Petitioner in the Petitioner's work as a youth and radio ministry leader in their church. The undersigned notes that Reverend Hollis gave testimony which was of a very positive and thoughtful nature and was not merely that of a partisan character reference. He described the Petitioner's positive, mature attitude about the loss of his job due to the subject disqualification. He states that the Petitioner immediately underwent training and obtained a new job in a new field, although the Petitioner still earnestly desires to go back to his job at the Sunland Center. Reverend Hollis described the various ministries of his church which the Petitioner is involved with. The Petitioner's church supervisors all love and respect him, as do the youth who were placed in his charge. Reverend Hollis and the supervisors of the Petitioner in the Petitioner's church work all uniformly trust him, based upon the performance and good character example he has shown them. The Petitioner's father, John Mitchell, testified on the Petitioner's behalf. Mr. Mitchell is a Baptist deacon and has long been an active church member and worker. He, in essence, corroborated Reverend Hollis' testimony and that of the Petitioner, his son. He candidly recounted the fact that the Petitioner, while a teenager, was something of a rebel for a time but since, has come back to a Christian way of life. His family relationship has been excellent, with both of his parents, for the last two years. In summary, the Petitioner has established, through his candid testimony in which he acknowledged his past mistakes, immaturity and poor judgment, that since the unfortunate incidents on his record occurred, which were isolated ones, he has constantly striven to improve his character. The Hearing Officer is impressed with the genuineness of his religious conversion and his keen interest in and love for his work with disabled persons and with the youth in his church ministry program. The Petitioner's testimony is solidly corroborated by that of Reverend Hollis, who did not merely describe the Petitioner as "perfect in every way", but described occasions where the Petitioner required small corrections in his behavior in the course of his church work, but also that none of his experience with the Petitioner throughout his tenure with the ministry of the church has caused him to have any doubt as to the genuineness of the Petitioner's religious conversion, the rehabilitation of his character, his morality and maturity of judgment. In response to that testimony, the Respondent put on the testimony of Ms. Hanson, who, in essence, acknowledged all of the recent exemplary instances of the Petitioner's character rehabilitation, but stated that the Respondent merely was of the view that insufficient time to firmly establish his rehabilitation had occurred. The Hearing Officer is mindful of that position expressed by the Respondent. Under other circumstances, such precaution would be indicated. However, based upon the totality of the evidence and observation of the candor and demeanor and the thoughtful manner in which both the Petitioner, Reverend Hollis, and the Petitioner's father testified concerning their view of the present state of the Petitioner's character, judgment and emotional stability, it is found that sufficient time for rehabilitation under the circumstances has elapsed. The Petitioner has established circumstances which show that his character, emotional stability and maturity of judgment have been sufficiently rehabilitated to justify him occupying a position as a direct care provider in a position of special trust.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the candor and demeanor of the witnesses, the evidence of record, and the pleadings and arguments of the parties, it is RECOMMENDED that a Final Order be entered by the Respondent granting the Petitioner's request for exemption. DONE AND ENTERED this 29th day of March, 1996, in Tallahassee, Florida. P. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of March, 1996. APPENDIX TO RECOMMENDED ORDER CASE NO. 95-5617 Petitioner's Proposed Findings of Fact The Petitioner, in reality, did not present separately stated findings of fact but, rather, argument concerning the justification for the grant of the exemption in question. Consequently, specific rulings on findings of fact cannot be made as to the Petitioner's post-hearing pleading. Respondent's Proposed Findings of Fact 1-7. Accepted, but not necessarily as to their purported material import. 8. Accepted, to the extent that this shows the basis for the Department's original free-form decision, although rejected for its purported material import in this proceeding. There is no presumption of correctness concerning the Department's committee's decision and the Department's decision in the free-form stage of this controversy. COPIES FURNISHED: S.M. (Address of Record) John R. Perry, Esquire Department of Health and Rehabilitative Services 2639 North Monroe Street, Suite 252-A Tallahassee, FL 32399-2949 Sandy Coulter, Acting Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Richard Doran, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700
The Issue The issue to be resolved in this proceeding concerns whether the Respondent is guilty of obtaining a real estate license by means of misrepresentation or concealment by failing to disclose a plea to a charged crime in her past, in alleged violation of Section 475.25(1)(m), Florida Statutes.
Findings Of Fact The Petitioner is an agency of the state of Florida charged with licensing and regulating the entry into practice and the practice of real estate sales. Including within its responsibility is the duty to prosecute administrative complaints for alleged violations by licenses of Chapter 475, Florida Statutes, and related rules. Respondent, Patricia D. Mackovic, at all times pertinent hereto, has been a licensed Florida real estate salesperson. She was issued license number 0640501 in accordance with Chapter 475, Florida Statutes, in the later part of 1996. On or about January 25, 1984, the Respondent plead nolo contendre to a charge involving welfare fraud (failure to disclose a material fact). She was ordered to pay restitution and placed on probation for two years by the circuit court of Escambia County, Florida, but adjudication was withheld. As a result of her discussions with the prosecution in that case and the welfare case worker involved, she was of the belief that she had mistakenly obtained welfare benefits that she was not entitled to (apparently because her income was higher than the relevant limit). She was of the belief that the matter was ultimately dismissed and that, upon paying restitution nothing else remained of the charges. She had a genuine, good faith belief that there was not actually a conviction. She also believed at the time, based upon her reading of the judge's order and discussing the matter with her attorney and the prosecutor, that the record involved in the matter would be under seal in any event. On or about July 18, 1996, the Respondent submitted an application for licensure as a real estate salesperson to the Petitioner agency. When she applied for that license she was asked on the application form whether she had ever been convicted of a crime, found guilty or entered a plea of nolo contendre, even if adjudication was withheld. If she answered in the affirmative, she was required to attach an explanation of the circumstances and facts. The question applies to any violation of law without regard to whether the applicant for licensure had been placed on probation, had adjudication withheld, was paroled or pardoned. The Respondent responded "no" to this question. She signed the certification at the end of the application, swearing that all answers and information contained in the application were true, correct and complete. Respondent remembered being arrested at 6:30 a.m., by two sheriff's deputies, finger-printed concerning the above charge and going to court. She remembers entering a discussion with the judge and ultimately pleading nolo contendre and being given two years of probation, making restitution of the disputed amount of money concerning the subject welfare payments. The Respondent believed the matter had been dismissed and that it did not constitute a conviction on her record at the time she answered the subject question on the application for licensure. The Respondent believed at the time she answered the question that the charge against her had been dismissed as a consequence of her serving probation (which was shortened by the judge to less than two years), and as a consequence of her making restitution of the moneys involved. The language of the judge's order supports her in that belief to the extent that the judge recites that the "ends of justice and the welfare of society, do not require that you should presently be adjudged guilty and suffer the penalty authorized by law. . .". The Respondent testified that she now understood that question nine required disclosure of a conviction, an "adjudication withheld" or a plea, including a plea of nolo contendre. She had answered in the negative, however, because, at the time she answered the question, she believed, based upon the language in the judge's order, her discussion with the judge and her efforts to have the matter resolved after the initial hearing, which resulted in the probation time being reduced, that the matter had been dismissed on the basis of her restitution and serving the reduced probationary period. Thus she had an honest belief at the time she answered the question that she had not been convicted. Because she had an honest belief at the time, even if mistaken, that she had answered the question accurately, she cannot be determined to have committed a fraudulent act or representation, or an act of misrepresentation or concealment in order to obtain her real estate license. In making this factual finding, the undersigned has observed the Respondent's candor, demeanor, and apparent contrition in describing the incident and circumstances involved. The undersigned determines her version of events to be credible and that she never intended to falsely answer the subject question.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses it is, therefore, RECOMMENDED: That the Respondent be found not guilty of violating Section 475.25(1)(m), Florida Statutes, as charged in the Administrative Complaint, and that that Administrative Complaint be dismissed in its entirety. DONE AND ENTERED this 3rd day of February, 1999, in Tallahassee, Leon County, Florida. COPIES FURNISHED: Patricia Mackovic 5796 Utica Avenue Pensacola, Florida 32507 Ghunise Coaxum, Esquire Department of Business and Professional Regulation Suite N-308 400 West Robinson Street Orlando, Florida 32801-1772 Lynda L. Goodgame, Esquire Department of Business and Professional Regulation 1940 North Monroe Street P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 www.doah.state.fl Filed with the Clerk of the Division of Administrative Hearings this 3rd day of February, 1999. Tallahassee, Florida 32399-0792 James Kimbler, Acting Division Director Division of Real Estate Department of Business and Professional Regulation 400 West Robinson Street Orlando, Florida 32302-1900
The Issue Whether Petitioner’s application for a consumer certificate of exemption as a religious institution should be approved.
Findings Of Fact Petitioner is a not-for-profit corporation organized under the laws of the State of Texas and qualifies as a tax- exempt organization pursuant to Section 501(c)(3) of the United States Internal Revenue Code. Petitioner maintains an office in Dunedin, Florida. The articles of incorporation and by-laws adopted by Petitioner do not specify the purpose of EDM, nor do they indicate that EDM is formally related to any other organization(s). However, in separately published documents, Petitioner has stated that its purpose is to promote the Gospel message of Jesus Christ through evangelistic and missionary activities. EDM accomplishes its objective or purpose by conducting discussion groups, forums, panels, lectures, or other educational programs in the area of resource management and development. The seminars and educational programs sponsored and provided by Petitioner are offered in cities across the United States and serve evangelical groups and individuals. Evangelical groups participating in EDM seminars include various mission organizations, Christian colleges, and Christian schools. Participation and attendance at EDM sponsored programs are contingent on payment of the required fee to Petitioner. Although EDM provides services to a large number of organizations and individuals, Petitioner is not related to any of those organizations or individuals through a formal affiliation or as a larger hierarchy. The primary focus of EDM seminars is to assist evangelical organizations by providing such groups and individuals with training in financial and fundraising strategies. EDM believes that by effectively developing and implementing such strategies, individuals and organizations can better support and fund the work of the church. In addition to offering seminars and training institutions, EDM also develops and disseminates religious materials and training materials. Examples of topics addressed in EDM one-day seminars include: (1) “Redefining Planned Giving”; (2) “Improving Your Development Department”; “Successful Foundation Grants and Proposal Writing”; “Developing Major Donors for Major Support”; “Writing Effective Newsletters”; and “Strategic Planning for Success.” Petitioner presented testimony that it is related to an organization in California known as Little Church International, Inc. (Little Church). When EDM was first organized, Little Church made a loan to Petitioner; also, Little Church sometimes offers counsel to EDM. Beyond that, it is unclear what, if any, relationship exists between Petitioner and Little Church; what the function or purpose of Little Church is; and who the members or member organizations of Little Church are. Finally, EDM presented no competent and substantial evidence regarding the administrative functions performed by Little Church for or on behalf of Petitioner or any other organizations. Petitioner is in no way obligated to submit to the dictates of Little Church. Moreover, Little Church, is under no legal or other obligation to comply with any requirements of EDM. Although Petitioner claims that it is a member organization of Little Church, and pays a membership fee, Petitioner is unsure of the amount of that membership fee. Moreover, Petitioner established that Little Church: (1) does not direct the day-to- day activities of Petitioner and (2) has no control over Petitioner’s board of directors, officers, or budget. Petitioner acts as a fundraising conduit for an organization known as Living Ministries of South Africa (Living Ministries). There is no formal affiliation between Living Ministries and EDM. However, because Living Ministries consists only of an independent missionary and his wife, Petitioner has agreed to serve as its fiscal agent. In this capacity, EDM processes materials sent to and contributions made to Living Ministries. Petitioner charges Living Ministries a fee for providing these services. There is no formal affiliation between Petitioner and Living Ministries within a larger religious hierarchy. Petitioner has no regulatory authority over Living Ministries; does not control any of the day-to-day activities of Living Ministries; has no control over where the Living Ministries missionaries are placed; or of the contents of the services that Living Ministries provides. EDM does not regularly conduct and carry on religious services and activities. Petitioner holds religious services a few times a year. These services are conducted in conjunction with EDM sponsored seminars and training sessions and are for the exclusive benefit of individuals attending the seminars. Petitioner does not have any ownership or lease interest in any physical facility where weekly services are held for members of any faith or the general public. Rather, Petitioner’s services are held in various hotels or other facilities around the country in which its training programs and seminars are conducted. Several years ago, Petitioner set up a sub-organization called the Association of Christian Development Professionals (ACDP). Petitioner, through ACDP, currently accredits individuals who desire to have a certification from Petitioner. Individuals qualifying for such accreditation or certification are those who have completed certain courses provided by Petitioner. ACDP is not a qualified religious institution and is not within a hierarchy of institutions connected with Petitioner. Moreover, EDM does not control or otherwise participate in the day-to-day activities of the members of ACDP. Petitioner previously held a consumer certificate of exemption which expired as of October 18, 1996. In the process of reviewing the application for renewal, the Department determined that it had previously misapplied the law and that EDM did not qualify as a “religious institution” as defined in Section 212.08(7)(o)2.a., Florida Statutes. The Department determined that Petitioner: (1) was not a state, district, or other administrative office and (2) did not assist, regulate or control other organizations which were formally related to EDM within a specific larger hierarchy. The Department also determined that Petitioner does not qualify under any other category for a consumer certificate of exemption. To qualify as a religious institution, an entity must be: (a) a church, synagogue, or established physical place for worship at which nonprofit religious services and activities are regularly conducted and carried on; (b) a nonprofit corporation the sole purpose of which is to provide free transportation services to church members and attendees; (c) a state, district or other governing or administrative office whose function is to assist or regulate the customary activities of religious organizations or members within the state or district organization; or (d) a corporation qualified as nonprofit under Section 501(c)(3) of the Internal Revenue Code, that owns or operates a Florida television station. In the instant case, Petitioner has no established physical place for worship; its sole purpose is not to provide free transportation services to church members and attendees, and it does not operate a television station. Thus, it cannot qualify under the first, second and fourth parts of the definition. Notwithstanding the Department’s determination to the contrary, Petitioner contends that it qualifies as a religious institution because it is a state, district, or other governing or administrative office whose function is to assist or regulate the customary activities of religious organizations or members within a state or district office. Under the Department’s policy, in order to qualify as a state, district or administrative office, EDM must be a part of a larger organization and, within the hierarchy of that larger organization, assist or regulate the activities of those beneath it in the organizational hierarchy. This interpretation is consistent with prior agency orders and is reasonable. Petitioner is not a part of a larger organization within a hierarchy. Even assuming that Petitioner is part of a hierarchy, there are no identifiable members or organizations beneath Petitioner in the hierarchy which it assists or regulates. While EDM is engaged in laudable and worthwhile activities, it does not qualify as a religious institution for tax purposes and, therefore, is not entitled a consumer certificate of exemption.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Revenue enter a final order denying a consumer certificate of tax exemption to Petitioner, Evangelical Development Ministries, Inc. DONE AND ENTERED this 4th day of March, 1998, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIED Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUMCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 4th day of March, 1998. COPIES FURNISHED: Rex D. Ware, Esquire Department of Revenue Post Office Box 6668 Tallahassee, Florida 32314-6668 H. Andrew Read, President Evangelical Development Ministry, Inc. 5232 Forest Lane, Number 106 Dallas, Texas 75244 Linda Lettera General Counsel 204 Carlton Building Tallahassee, Florida 32399-0100 Larry Fuchs Executive Director 104 Carlton Building Tallahassee, Florida 32399-0100
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the stipulation of facts entered into among the parties, the documentary evidence received and the entire record compiled herein, I hereby make the following Findings of Fact: The name and address of the Petitioner is Golden Eagle Engineering Construction, Inc. (Golden Eagle) 1302 Northwest 33rd Street, Pompano Beach, Florida. The name and address of the Respondent is State of Florida, Department of Transportation, 605 Suwannee Street, Haydon Burns Bldg., Tallahassee, Florida. The name and address of the Intervenor is Toppino's, Inc. (Toppino's) Post Office Box 787, Key West, Florida. The Petitioner timely submitted a bid with regard to state project SR-5 (U.S-1), from the North end of State Bridge No. 900001 to Kennedy Drive in Key West, Budget Item No. 6116637, State Job No. 90010-3519 in Monroe County. The Petitioner was the apparent low bidder with a bid in the amount of $386,017.43. The Intervenor timely submitted a bid in regard to the same state road project (State Job No. 90010-3519). The Intervenor was the second low bidder with a bid in the amount of $398,132.10. The bid specifications required that bids submitted by contractors were to include a designation of at least fifteen percent (15 percent) of work to be performed by certified disadvantaged business enterprises (D.B.E.'s). The bid documents provided a separate form entitled "D.B.E./W.B.E. Utilization Form No. 1" on which the designation of work to the chosen D.B.E. was to be listed. The Respondent "certifies" DBE's in accordance with the standards and procedures set forth in Rule 14-78, Florida Administrative Code. Along with project specifications and other information concerning the proposed job, the Respondent provides hopeful contractors with a D/WBE Directory which lists qualified DBE and WBE businesses. The latest directory prior to the bid opening on the contract at issue here was published by D-O-T in October of 1986. Respondent's Bureau of Minority Programs maintains a current register and will advise any bidder so requesting whether or not a firm qualifies as a DSE or WBE. The invitation to bid provided that the contractor's bid submission must include the following information: The names and addresses of certified DBE and WBE firms that will partici- pate in the contract. Only DBEs and WSEs certified by the Department at the time the bid is submitted may be counted toward DBE and WBE goals. * * * (4) If the DBE or WBE goal is not met sufficient information to demonstrate that the contractor made good faith efforts to meet the goals. The DBE's utilized by the Petitioner to satisfy the requirements of the bid were as follows: (a) Millit $8,972.60 Highway Concrete Corporation $45,330.60 A. Falero Trucking, Inc. $21,500.00 The Petitioner's Bidder's Utilization Form disclosed an apparent 19.5 percent DBE participation. The Petitioner honestly believed that its bid proposal met and exceeded the DBE participation goals specified for the contract. The sealed bids were opened on October 29, 1986. The Respondent, in its initial review of Petitioner's bid, discovered that A. Falero Trucking, Inc., (Falero) was not a certified DBE. On October 31, 1986, Ms. Heather Calligan, majority shareholder of Golden Eagle, wrote Respondent a letter in which she stated that the owners of Falero had assured Golden Eagle that Falero was a certified DBE firm, that they had a current DBE certification letter and that their exclusion from the D/WBE Directory was an oversight on the part of Respondent. Ms. Calligan further advised Respondent that she believed Falero's assertion that the firm was DBE certified because her company is W.B.E. certified and had been omitted from the D/WBE Directory in error in the recent past. Further, Ms. Calligan stated that she had been acquainted with the owners of Falero on a personal and business basis for several years and did not believe that they would mislead her. On November 3, 1986, Ms. Calligan wrote another letter to Respondent wherein she stated that she had contacted Falero concerning their certification and that Falero could not locate their certification letter. Ms. Calligan requested that Golden Eagle be allowed to substitute F.R.E. Construction Company (F.R.E.), a DBE certified company for Falero, should Falero not substantiate its claim of being currently DBE certified. At all times material hereto, Amable Falero and Jose M. Rodriquez owned 100 percent (50 percent each) of the stock of Falero and 70 percent (35 percent each) of the stock of FRE. Falero and FRE, although independent companies, operate from the same business location, have the same management and office staff and use some of the same employees interchangeably. On November 5, 1986, the Respondent received a letter from Mr. Rodriquez, co-owner of Falero. Mr. Rodriquez stated that he personally advised Golden Eagle that Falero was a certified DBE firm and that he had a letter in his files substantiating his claim. Mr. Rodriquez advised Respondent that he had made this representation to Golden Eagle in error. When Respondent discovered that Falero was not a certified DBE, the bid documents were forwarded to its Good Faith Efforts Review Committee for a determination of Petitioner's good faith efforts. The Good Faith Efforts Committee was formed in 1984 and its primary responsibility is to make an objective evaluation of good faith efforts of prime contractors who submit bids to D-O-T. Rule 14-78.03(2)(b)4, F.A.C. lists several factors that the Respondent is required to consider in evaluating a contractor's good faith efforts. (Those factors are enumerated in detail in the Conclusions of law Section herein). The Respondent's practice and procedure is that it will conduct a limited review of the good faith evaluative criteria listed in the Rule even where the contractor has not included a "good faith efforts package" in its bid submission demonstrating good faith efforts. In such cases, the Respondent usually finds the bid non-responsive because of failure to provide documentation of good faith efforts. However, circumstances could exist where the Good Faith Efforts Committee may find good faith in the absence of any good faith efforts documentation specifically submitted by the contractor in its bid proposal. Thus, pursuant to the practice of the Good Faith Efforts Committee, the absence of information demonstrating good faith efforts within the bid proposal does not preclude its evaluation of the contractors' good faith efforts to achieve the goals. The Good Faith Efforts Committee completed a report form entitled "Good Faith Efforts Evaluation" in regard to Petitioner's bid. All of the required statutory criteria was listed on the form. In response to criteria IV ("whether the DBE or WBE goal was met by other bidders") the Respondent entered: "Goal met by other bidder." In response to criteria VII ("whether the contractor elected to sub-contract types of work that match the capabilities of solicited DBE's of WBE's"), the Respondent entered: "Bidder used quotes from three (3) areas." In response to criteria IX ("whether the contractor has on other contracts within the past six (6) months utilized DBE's and WBE's") the Respondent entered: "No projects in the last six (6) months." In response to all of the other criteria, the Respondent entered: "bidder did not submit any documentation", "no documentations", "did not provide documentation" or simply "none submitted". During the Good Faith Efforts Committee review of the Petitioner's bid, the committee was aware that Falero had been a certified DBE in the past, that the Petitioner's bid included an apparent 19.5 percent DBE participation with Falero and that without Falero the Petitioner achieved over 90 percent of the DBE participation goals. Based on the information which it had, the Good Faith Efforts Committee was apparently satisfied that such information did not establish good faith efforts and recommended that the bid be declared non-responsive based on the Petitioner's failure to include good faith efforts documentation with its bid proposal. On November 12, 1986, the report of the Good Faith Efforts Committee was forwarded to the Technical Awards Committee, and based on that report, the Technical Awards Committee voted unanimously to reject the Petitioner's bid as non-responsive and to recommend awarding the contract to Intervenor. Respondent's Final Review Committee, the Contract Awards Committee then decided to declare Petitioner's bid non- responsive and to award the contract to Intervenor. On November 18, 1986, the Respondent mailed a Notice of Switch in Apparent Low Bidder to all parties indicating that Golden Eagle, the apparent low bidder, had been declared non-responsive due to failure to meet DBE requirements and proposing to award the contract to Intervenor, the second low bidder. GOLDEN EAGLE'S HONEST MISTAKE While compiling its bid, one of Petitioner's employees noted that Falero was not listed in the D/WSE Directory. The Petitioner contacted Falero and was informed by one of Falero's owners that Falero was a certified DBE and had a current certification letter. Ms. Heather Calligan, the Petitioner's majority stock holder, was satisfied in her belief that Falero was a certified DBE for several reasons. First, Ms. Calligan was personally acquainted with the owners and knew them to have been DBE certified by Respondent in the past. In addition, Golden Eagle has been a WBE since 1979 and Ms. Calligan was aware that her company's name had been occasionally left off of the D/WBE Directory during times it was certified and should have been included. Based on those factors, the Petitioner honestly believed that Falero was DBE certified and did not call the Department's Minority Programs office to verify Falero's DBE status nor request that Falero produce its letter of certification. FALERO'S STATUS Falero was certified by the Respondent on April 4, 1983, as a minority business enterprise for a period of one year. On May 14, 1984, the company was re-certified for another one year period. On November 20, 1985, the Respondent received an application for re- certification as a disadvantaged business enterprise from Falero. After an initial review of the application, the Respondent wrote Falero a letter dated December 3, 1985 requesting that the company provide: The current financial statement or a breakdown of current assets and liabilities and, Copies of the registration of all vehicles owned by the company. The policy of the Respondent with regard to incorrect or incomplete information submitted by DBE's is to acknowledge receipt of the information and to advise the DBE as to what information should be submitted. The file is then placed in an "abeyance" status pending receipt of the requested information. In October of 1986, Falero had still not fully responded to the Respondent's letter of December 3, 1985 with the complete information requested. After its initial request for additional information, the Respondent made no further request for additional information from Falero with regard to the November 20, 1985 application for re-certification. Falero finally supplied all of the information requested in the December 3, 1985 letter to Respondent in December 1986 in conjunction with a new application for certification. Thereafter, Falero was certified as a DBE in January 1987. Between May 1985 and January 1987 Falero was not a certified DBE and was not included on any of the D/WBE directories prepared by the Respondent during that period.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that: The bid of Golden Eagle Contractors, Inc. on State Project No. 90010- 3519 be declared non-responsive; The contract for State Project No. 90010-3519 be awarded to Intervenor; and The protest of Golden Eagle Contractors, Inc. be DISMISSED. DONE and ORDERED this 18th day of March, 1987 in Tallahassee, Leon County, Florida. W. MATTHEW STEVENSON 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 18th day of March, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-0250BID The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner Adopted in Finding of Fact 2. Adopted in Finding of Fact 1. Adapted in Finding of Fact 3. Adopted in Finding of Fact 4. Adopted in Finding of Fact 6. Adopted in Findings of Fact 7 and 10. Adopted in Finding of Fact 10. Adopted in Finding of Fact 5. Adopted in Finding of Fact 11. Adopted in Finding of Fact 24. Addressed in Procedural Background Section. Addressed in Procedural Background Section. Addressed in Procedural Background Section. Addressed in Procedural Background Section. Addressed in Procedural Background Section. Adopted in Finding of Fact 14. Adopted in Finding of Fact 25. Adopted in Finding of Fact 26. Adopted in Finding of Fact 26. Adopted in Finding of Fact 29. Adopted in Finding of Fact 31. Adopted in Finding of Fact 14. Rejected as subordinate. Adopted in Finding of Fact 13. Rejected as not supported by the weight of the evidence. Adopted in Finding of Fact 14. Adopted in Finding of Fact 27. Rejected as subordinate. Rejected as subordinate. Adopted in substance in Findings of Fact 26 and 27. Rejected as subordinate. Adopted in Finding of Fact 19. Rejected as subordinate. Rulings on Proposed Findings of Fact Submitted by the Respondent Adopted in Findings of Fact 4 and 7. Adopted in Findings of Fact 5, 10 and 11. Addressed in Procedural Background Section. Adopted in substance in Findings of Fact 19, 20 and 21. Adopted in substance in Findings of Fact 9 and 24. Adopted in substance in Findings of Fact 20 and 21. Adopted in substances in Finding of Fact 19. Adopted in substance in Findings of Fact 17, 18, 19 and 20. Adopted in substance in Finding of Fact 21. Adopted in substances in Finding of Fact 21. Adopted in substance in Findings of Fact 13 and 14. Rejected as a recitation of testimony. Rulings on Proposed Findings of Fact Submitted by the Intervenor Adopted in substance in Findings of Fact 7, 9 and 24. Adopted in substance in Finding of Fact 7. Adopted in substance in Findings of Fact 7 and 9. Addressed in Conclusions of Law Section. Adopted in substance in Findings of Fact 10, 11 and 14. Adopted in substance in Findings of Fact 25 and 31. Adopted in substance in Findings of Fact 24 and 31. Adopted in substance in Finding of Fact 26. Partially adopted in Finding of Fact 30. Matters not included therein are rejected as argument and/or subordinate. Addressed in Conclusions of Law Section. Adopted in substance in Findings of Fact 11, 12, 20 and 21. Adopted in substance in Finding of Fact 21. Rejected as argument. Partially adopted in Finding of Fact 24. Matters not contained therein are rejected as argument. Partially adopted in Findings of Fact 13 and 14. Matters not contained therein are rejected as argument. Rejected as argument. COPIES FURNISHED: Melissa Fletcher Allaman, Esquire Post Office Box 1170 Tallahassee, Florida 32302-1170 Jay O. Barber, Esquire Department of Transportation 605 Suwannee Street Tallahassee, Florida 32301 John O. Williams, Esquire 1343 E. Tennessee Street Tallahassee, Florida 32308 Kaye N. Henderson Secretary Department of Transportation Haydon Burns Bldg. Tallahassee, Florida 32301 A. J. Spalla, Esquire Department of Transportation Haydon Burns Bldg. Tallahassee, Florida 32301
Findings Of Fact State Project Job No. 87000-3696 calls for the construction of the Sixth District Office Building in Miami, Florida, at the intersection of State Road 836 and State Road 821. On October 30, 1985, DOT accepted and opened five sealed bids on State Project No. 87000-3696. At the bid opening, Wilson's bid of $2,021,573.80 was the apparent low bid. Archer Western's bid of $2,055,491 was the next lowest bid. The amount of both of these bids were within the estimate of DOT. The apparent low bidders determined solely by the lowest dollar amount bid, was Wilson, whose bid was the apparent low bid by $33,917.20. Pursuant to Rule 14-78.03, Florida Administrative Code, DOT set Disadvantaged Business Enterprise (DBE) and WBE participation requirements in the bid documents for this project with a contract goal that 10% of the contract be performed by DOT certified DBEs and that 2% of the contract be performed by DOT certified WBEs. Subarticle 2-5.3.2; as amended of the bid documents provides: For all contracts for which DBE and/or WBE contract goals have been established each contractor shall meet or exceed or demonstrate that it could not meet, despite its good faith efforts, the contract goals set by the Department. The DBE and WBE participation information shall be submitted with the Contractor's bid proposal. Award of the Contract shall be conditioned upon submission of the DBE and WBE participation information with the bid proposal and upon satisfaction of the contract goals or, if the goals are not met, upon demonstrating that good faith efforts were made to meet the goals. It also states that only DOT certified WBEs may be counted toward WBE goals. Subarticle 205.3.3, as amended, of the bid documents provides: In evaluating a Contractor's good faith efforts the Department will consider: Whether the Contractor at least seven days prior to the letting, provided written notice by certified mail return receipt requested or hand delivery with receipt, to all certified DBEs and WBEs which perform the type of work which the Contractor intends to subcontract, advising the DBEs and WBEs (a) of the specific work the Contractor intends to subcontract; (b) that their interest in the contract is being solicited; and (c) how to obtain information about and review and inspect the contract plans and specifications. Whether the Contractor selected economically feasible portions of the work to be performed by DBEs and WBEs including where appropriate, breaking down contracts or combining elements of work into economically feasible units. The ability of a contractor to perform the work with its own work force will not in itself excuse a contractor's failure to meet contract goals. Whether the Contractor provided interested DBEs or WBEs assistance in reviewing the contract plans and specifications. Whether the DBE or WBE goal was met by other bidders. Whether the Contractor submits all quotations received from DBEs or WBEs, and for those quotations not accepted, an explanation of why the DBE or WBE will not be used during the course of the contract. Receipt of a lower quotation from a non-DBE or non-WBE will not in itself excuse a contractor's failure to meet contract goals. Whether the Contractor assisted interested DBEs and WBEs in obtaining any required bonding, lines of credit, or insurance. Whether the Contractor elected to subcontract types of work that match the capabilities of solicited DBEs or WBEs. Whether the Contractor's efforts were merely pro forma and given all relevant circumstances, could not reasonably be expected to produce sufficient DBE and WBE participation to meet the goals. Whether the Contractor has on other contracts within the past six months utilized DBEs and WBEs. The above list is not intended to be exclusive or exhaustive and the Department will look not only at the different kinds of efforts that the Contractor has made but also the quality, quantity and intensity of these efforts. Wilson indicated on the D.B.E./W.B.E. Utilization Form No. 1, which form was part of the bidding documents, that it intended to use a WBE contractor to perform 2% of the contract amount and DBE contractors to perform 20% of the contract amount. Wilson did not indicate on the Form whether the DBEs and WBE were DOT certified. In actuality, only 1.6% of the contract amount was to be performed by the WBE. Additionally, the WBE contractor and two of the DBE contractors were not certified by DOT and therefore did not count toward the contract goals. Fifteen percent of the contract amount was to be performed by DOT certified DBEs and 0% was to be performed by WBEs in the bid proposal of Wilson. The D.B.E./W.B.E. Utilization Form No. 1 directs the bidder that "If full compliance with the contract goals for this project are not met; submit sufficient documentation with the bid proposal to demonstrate that good faith efforts were made to meet the goals. This form also instructs the bidder that failure to submit sufficient documentation to demonstrate good faith efforts will be just cause to consider the bid nonresponsive and to reject the bid. The good faith efforts evaluation of a bid proposal is undertaken by DOT when a potential contractor has not met the WBE of DBE goals for a particular project. Failure to submit sufficient documentation of good faith efforts when a DBE/WBE goal is not met is just cause for DOT to consider a bid to be non-responsive. Wilson knew that if it did not follow the bid specifications that its bid would be deemed by DOT to be non-responsive. Wilson submitted a good faith efforts package with its bid to establish its attempt to meet the DBE and WBE goals. This package contained a letter dated October 28, 1985, in which Herbert Jaffess Wilson's Chief Estimator explained Wilson's efforts to obtain bids from DBE and WBE subcontractors. These efforts were to: 1) advertise in the Miami Herald for three days regarding a desire for these bids; 2) telephone DBEs and WBEs to request bids and to advise them that Wilson would help them; 3) mail letters to 32 DBEs regarding bids; and 4) list its name in the Dodge reports on a number of days as one of the interested bidders on this project. Mr. Jaffess further stated that it is the policy of Wilson "to employ the lowest bidder on a project; provided they are sufficiently experienced and are financially responsible, regardless of any other consideration." DOT personnel evaluated Wilson's bid and good faith efforts documentation in accordance with the bid documents. That evaluation found that the subcontractor listed in Wilson's bid as a WBE would only perform 1.6 percent of the work and that it was not DOT certified. Additionally; Wilson's good faith efforts documentation was insufficient to establish Wilson's good faith efforts for the following reasons: 1) only three of the DBEs and A WBEs to whom letters were mailed were DOT certified; 2) Wilson did not indicate when the letters were mailed; 3) Wilson did not solicit all DOT certified WBEs in the areas of work available for this project; 4) two of the five bidders met the DBE and WBE goals on this project; and 5) Wilson's failure to submit information concerning the other inquiries delineated in the bid documents in this regard. DOT also found that Wilson did not have a history revealing that it had on other contracts within the past six months utilized DBEs and WBEs. Consequently, Wilson's bid was deemed nonresponsive and was rejected. Wilson's bid submission did identify all DBE and WBE firms, whether or not certified by the DOT; that were to participate in the contract; did describe work each named DBE and WBE would perform with request to the contract; and did specify the dollar amount of participation by each named DBE and WBE firm participating in the contract. However the bid did not achieve the WBE goals even if the non-DOT certified WBE was included. Wilson's good faith efforts submission included a letter from Herb Jaffess dated October 28, 1985, to the DOT detailing Wilson's efforts to obtain DBE and WBE subcontractors, including the placement of ads in The Miami Herald, calling or writing to 40 DBE or WBE firms (few of which were DOT certified), seeking their participation in the contract; and notice of the contract bidding in the Dodge Reports. The Dodge Reports is an industry report which includes a daily listing of contracts out for bid that allows subcontractors to know what projects are being bid and which contractor is preparing a proposal for any particular project. Wilson's good faith submission indicated that it wrote letters to DBEs and WBEs soliciting their participation as subcontractors on the bid for the construction of the Sixth District Office Building, however, Wilson did not send the letters certified mail, return receipt requested, and did not submit receipts to show the letters were mailed. Wilson's good faith submission indicated that the solicited DBEs and WBEs were informed how to obtain information about and how to review and inspect the contract plans and documents. However potential DBE and WBE bidders were merely told that the plans and documents were available for inspection at Wilson's office. Wilson's bid submission indicated that it selected economically feasible portions of the work to be performed by the DBE and WBE firms, however, Wilson did not submit all quotations received from DBEs and WBEs and for those quotations not accepted, did not submit an explanation of why the DBE or WBE was not used. Wilson did not meet the goal for the project, but two contractors did. Archer Westerns the second low bidders met the goals with 10.6% participation for DBEs and 4.2% participation for WBEs. Wilson's bid submissions including the good faith submission did not comport with the requirements of the bid specifications. Therefore DOT could not deem Wilson's bid to be responsive. DOT notified Wilson by letter dated November 18, 1985, that Wilson's bid had been declared nonresponsive due to its failure to meet WBE requirements. On December 9, 1985, DOT, posted in Tallahassee an intent to award the contract for this project to Archer Western. No federal funds are involved in this project. On December 31, 1985, the Final Order in Capeletti Brothers, Inc. v. DOT, DOAH Case No. 85-3340R, was rendered, declaring Rule 14-78, Florida Administrative Code, invalid as to projects in which no federal funds would be expanded. On January 15, 1986, DOT filed timely Notice of Appeal from this Final Order.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Lawn it is RECOMMENDED that a Final Order be entered rejecting the bid submitted by Robert F. Wilson Inc., as being nonresponsive and awarding the contract on State Project No. 87000-3696 to Archer Western Contractors, Ltd. DONE and ENTERED this 19 day of February 1986, in Tallahassee. Florida. DIANE K. KIESLING 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 19th day of February 1986. APPENDIX TO RECOMMENDED ORDER, CASE NO. 65-4352BID The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the parties to this case. Rulings on Proposed Findings of Fact of Petitioner Adopted in substance in Finding of Fact 1. Rejected as irrelevant. Rejected as irrelevant. Rejected as irrelevant. Rejected as irrelevant. Rejected as irrelevant. Adopted in substance in Finding of Fact 1. Rejected as not supported by the competent substantial evidence. Adopted in substance in Finding of Fact 11. Adopted in substance in Finding of Fact 11. Adopted in substance in Finding of Fact 11. Rejected as not supported by the competent substantial evidence. Adopted in substance in Finding of Fact 12. Adopted in substance in Finding of Fact 13. Adopted in substance in Finding of Fact 14. Adopted in substance in Finding of Fact 15. Adopted in substance in Finding of Fact 16 Rejected as not supported by the competent substantial evidence. Rejected as not supported by the competent substantial evidence. Rejected as not supported by the competent substantial evidence. Adopted in substance in Findings of Fact 5 and 17. Adopted in substance in Finding of Fact 2. Ruling on Proposed Findings of Fact of Respondent 1. Adopted in substance in Finding of Fact 1. 2. Adopted in substance in Finding of Fact 1. 3. Adopted in substance in Finding of Fact 7. 4. Adopted in substance in Finding of Fact 2. 5. Adopted in substance in Finding of Fact 5. 6. Adopted in substance in Finding of Fact 8. 7. Adopted in substance in Finding of Fact 4. Adopted in substance in Findings of Fact 14, 16, 17 and 18. Adopted in substance in Finding of Fact 10. Adopted in substance in Finding of Fact 19. Adopted in substance in Finding of Fact 20. Rulings on Proposed Findings of Fact of Intervenor 1. Adopted in substance in Finding of Fact 1. 2. Adopted in substance in Finding of Fact 2. 3. Adopted in substance in Finding of Fact 3. 4. Adopted in substance in Finding of Fact 4. 5. Adopted in substance in Finding of Fact 5. 6. Adopted in substance in Finding of Fact 17. 7. Adopted in substance in Finding of Fact 6. 8. Adopted in substance in Finding of Fact 9. 9. Adopted in substance in Finding of Fact 10. Adopted in substance in Finding of Fact 19. Adopted in substance in Finding of Fact 20. Adopted in substance in Finding of Fact 21. Adopted in substance in Finding of Fact 22. COPIES FURNISHED: Mark Herron Esquire Suite 415, First Florida Bank 215 S. Monroe Street Tallahassee, Florida 32301 Brant Hargrove, Esquire Larry D. Scott, Esquire Department of Transportation Burns Building 605 Suwannee Street Tallahassee, Florida 32301-8064 John C. 0'Rourke, Esquire 0'Brien 0'Rourke, Hogan and McNulty One North LaSalle Street Chicago, Illinois 60602 Paul A. Pappas, Secretary Haydon Burns Building Tallahassee, Florida 32301
The Issue Whether or not Respondent Employer committed an unlawful employment practice by discrimination against Petitioner on the basis of her religion.
Findings Of Fact Petitioner is a practicing Christian. Her Christian denomination either is not of record or could be "Child of God." In any case, Petitioner believes that she is a child of God and that He resides within her as a life-changing force. She considers Jesus to be her Saviour; she does not consider herself a "religious person," but does consider herself to be a Christian. On June 26, 2000, Petitioner was hired by Respondent Surrey Place Nursing Home in Live Oak, Florida, as a Licensed Practical Nurse (L.P.N.) Her immediate superiors certainly knew that Petitioner was "strong in her faith" and would not violate what she perceived to be Christian doctrines in order to take the job. By inference, it is found that the Surrey Place chain of command also knew this as of Petitioner's date of hire. On the date of hire, Petitioner informed Respondent of specific accommodations that she would require if she were to accept employment with Respondent. At that time, her requested accommodations only involved scheduling. To the end of accommodating Petitioner's religious beliefs and her specific requests at the time of hire, Respondent gave Petitioner every Sunday and every Wednesday night off so that she could attend church services or activities. One other Christian employee was also not required to work on Sundays for religious reasons. On Friday, July 27, 2001, in Petitioner's presence, the Unit Director, Lucille Gwinn, informed a Staff Nurse, Theresa Croft, that Resident P.C. liked a toddy (in this case, a jigger of Jack Daniels whiskey) before she went to bed each night and again upon arising each morning, to "relax." P.C. is a 95-year-old female who, prior to admission to Surrey Place, had a drink of Jack Daniels in the morning and sometimes in the evening for several years. Respondent considers it a duty, pursuant to federal guidelines for long-term care nursing homes, to provide a "homelike environment" and provide, as closely as possible, the customary routines of its residents. On July 27, 2001, P.C. was Petitioner's patient, due to Petitioner's assignment to the East Wing of Surrey Place. Petitioner immediately informed the Unit Director that she did not give out alcohol under any circumstances because it violated her Godly beliefs. The Unit Director told Petitioner that if it were a doctor's order, Petitioner must give the Jack Daniels to her patient, "period." That night, the Unit Director instructed Ms. Croft to write the order for P.C.'s toddy. Ms. Croft did so. Upon check-out for her shift, that night, Petitioner explained her position to the Director of Nursing (DON). The DON told Petitioner that if it were a doctor's order, Petitioner must follow it "no matter what." Petitioner told the DON that, as a Christian, Petitioner could not administer drinking alcohol to another person and would not administer drinking alcohol to another person. A discussion then ensued wherein the DON stated that she was a Christian too, but that religion had to "stay out the door," and "Well, I guess that's your two weeks' resignation." Petitioner asked if she were to report for work the next day, Saturday, as scheduled. The DON stated that Petitioner should not report, because Petitioner had refused to follow the doctor's order and that constituted Petitioner's resignation. Later that Friday night, the DON telephoned Petitioner at home and told Petitioner that she had not asked for Petitioner's resignation and Petitioner was to report for work as scheduled the next day, Saturday. Petitioner agreed to report for her Saturday shift, but stated that she still refused to give the toddy on religious grounds. The DON had the last word in the telephone conversation, though, stating, "You must follow the physician's order." Petitioner reported to work on Saturday, as usual. At that time, Petitioner observed that beside the Staff Nurse's notes to administer the toddy to P.C., morning and night, the Unit Director had since written "for medicinal purposes." Petitioner does not, however, suggest that this was other than a valid physician's order, which had been received by telephone. It is therefore found that there was a valid physician's order in P.C.'s chart for "one-half ounce alcohol each morning and each evening." Later on the same Saturday, P.C.'s daughter delivered to the nursing station a bottle of Jack Daniels, wrapped in a paper towel with only the neck of the bottle and top exposed. This was placed in the refrigerator in the medications room. Petitioner testified, without refutation, that Lily Tillie Hass, her Saturday shift's Charge Nurse, agreed to give the toddy to P.C. that day. It is also unrefuted that this was not an unusual occurrence, because whenever there was a problem with the administration of a new medication or the performance of a new procedure, the several nurses on shift would tackle it as a "team approach." On Monday, July 30, 2001, the DON told Petitioner that she had contacted the Board of Nursing, which had told her to write up a complaint against Petitioner if Petitioner refused to follow a doctor's order. The DON stated that "for medicinal purposes" means that it is a doctor's order and that a resident's rights came before Petitioner's rights. Petitioner continued to refuse to administer the Jack Daniels to P.C. The DON requested that Petitioner give her reasons in writing for refusing to follow the doctor's order. On Tuesday, July 31, 2001, Petitioner did not have the requested written reasons finished and told the DON so. The DON loudly demanded that Petitioner give her something in writing that day. The women's conversation then attracted the attention of other staff members passing by. Petitioner said that she could not rush something so important and demanded to know if she would be written-up for this delay in providing her reasons for refusing to serve the toddy of Jack Daniels. The DON left the conversation in order to attend a Department Head Meeting. After the Department Head Meeting, the DON asked Petitioner to meet her in the solarium. On the way to the solarium, Petitioner asked the DON if the DON would help someone get an abortion, and the DON answered that she would not. Petitioner told the DON that Petitioner's refusal to personally administer Jack Daniels to P.C. was "the same thing with myself." In the solarium, Respondent's Administrator, DON, and Risk Management Coordinator met with Petitioner. They pointed out that when she was first hired, Petitioner had signed an agreement that her duties would include "medication administration as ordered by physician." Petitioner acknowledged that she had. Petitioner then stated to them that alcohol administration was against her religious beliefs and she would not offend her "Godly values," by administering Jack Daniels whiskey. At no time material did Petitioner object to the portion of her job description requiring her to give out or administer medications ordered by a physician. Petitioner, herself, uses cough syrups she knows contain alcohol, without regard to the percentage of alcohol contained in them. Petitioner has administered other medications containing alcohol to her patients in Respondent's facility, pursuant to a physician's order. Petitioner also does not object to rubbing alcohol externally on herself or her patients. Her complaint is that she believes a commercial alcoholic beverage, such as Jack Daniels whiskey, which is sold over the counter and which normally is used for recreational drinking, is forbidden by her personal moral beliefs arising out of her Christian denomination's interpretation of the Christian Bible. Without commenting on the "rightness" or "wrongness" of Petitioner's belief system, the undersigned is convinced that Petitioner is sincere in her beliefs. The discussion in the solarium on July 31, 2001, between Petitioner and Respondent's management team, started upon the premise that Petitioner was bound to follow any order of a doctor, but digressed into differing concepts of scriptural interpretation. The Administrator referred Petitioner to portions of the Christian Bible which he believed permit the giving and drinking of wine. The DON suggested angrily that no one was capable of persuading Petitioner. There was a retort by one or more of the three management representatives that Petitioner was not a better Christian than other Christians employed by Respondent who were willing to administer Jack Daniels to P.C. It was repeatedly suggested that if other Christians had to "leave their religion outside the door," so did Petitioner. Petitioner continued to refuse to administer the Jack Daniels based upon her personally selected Bible passages. Ultimately, the Administrator stated that by refusing to serve the Jack Daniels to P.C., Petitioner would be resigning. A dispute arose over the difference between involuntary and voluntary resignations. The management employees insisted that Petitioner was "voluntarily resigning" by her refusal to follow a doctor's order. Petitioner denied that she was resigning. Upon the Administrator's instructions, Petitioner completed only her immediate duties and signed out of the building. Petitioner considered herself involuntarily terminated as of July 31, 2001. Respondent's management team considered Petitioner voluntarily resigned as of July 31, 2001. Petitioner submitted the requested reasons for refusing to serve P.C. the Jack Daniels in a letter prepared August 19, 2001. In this letter, Petitioner cites multiple Bible quotations on the point of not getting drunk. Without commenting on the accuracy or inaccuracy of Petitioner's scriptural interpretation, it is found that Petitioner's interpretation is one possible interpretation of the scriptures cited. Respondent's Risk Management Coordinator filed a Complaint with the Agency for Health Care Administration. Petitioner responded, citing selected parts of the Christian Bible. The case was closed without a determination of probable cause, and a Letter of Guidance was issued which specifically indicated that it was not "discipline," under the Nurse Practice Act, Chapter 456, Florida Statutes. Petitioner sought unemployment compensation (UC) and was initially granted benefits on the basis that Petitioner had "voluntarily quit rather than perform a task which went against her religious beliefs. The Claimant has shown good cause for quitting." Respondent Surrey Place protested the initial UC ruling. Petitioner defended on the basis of The Civil Rights Act of 1964 or Title VII, and Habakkuk 2:15 (Old Testament Prophet) which reads: Woe unto him that giveth his neighbor drink, that puttest thy bottle to him, and makest him drunken also, that thou mayest look on their nakedness! Petitioner also advised the UC officials that: Although I did not give the alcohol to the resident, other nurses voluntarily gave it as ordered. Though other nurses give the alcohol willingly my superiors adamantly insisted it be given by the writer because I was assigned to that resident and that I must follow the doctor's order. I was also told that I have to leave my religion out the door. Ultimately, the UC Appeals Referee found that, pursuant to Chapter 443, Florida Statutes, Petitioner had committed "misconduct connected with work," constituting "a willful or wanton act or course of conduct in violation of the worker's duties and obligations to the employer." The initial UC Award was reversed. Petitioner testified that for a little while after July 31, 2001, she had attempted to find work as an L.P.N. However, she also testified that she has been employed as a babysitter for one or two small children since August 9, 2001. Accordingly, any back pay that Petitioner may be awarded after August 9, 2001, should be offset by the amount she has made in her employment as a babysitter. Because those respective amounts are not in evidence, no calculation can be made. Petitioner never specifically testified that she was one of 15 employees of Respondent. However, the undersigned has considered the evidence as a whole. It is unclear whether each "Wing" of Respondent's Live Oak facility also constituted a single "Unit." It is clear, however, that there was at least one Unit Director (Lucille Gwinn) on the East Wing, where Petitioner was assigned as of July 27, 2001, and that if there was an East Wing there had to be a West Wing, if not more wings in Respondent's facility. It is also clear that there were a minimum of three nurses (including Petitioner) per shift (a Charge Nurse and two Staff Nurses), per wing. Assuming eight hour shifts and three shifts per day, with at least an East and West Wing, plus an Administrator (Al Robbins), Risk Management Coordinator (Kelly Hensley), DON (Sherrill Hines), and other "Department Heads," it is found that Respondent, a Florida- licensed nursing home in Live Oak, Florida, with corporate offices in Palm Beach, Florida, employs in excess of 15 regular employees. Therefore, Respondent is an "employer," as defined in Chapter 760, Florida Statutes.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is
