Findings Of Fact At all times pertinent to the matters in issue herein, the Respondent operated the Mayo Correctional Facility, (Mayo), and employed the Petitioner, William M. Dunwoody, (Dunwoody), there as a Corrections Officer 1, (CO1). He was hired by the Respondent on December 3, 1983 and served at Cross City Correctional Institution until his reassignment to Mayo in 1985. He served at Mayo from that point until his employment with the Department was terminated on August 30, 1991. Wayne Winburn has been the recreational therapy director at Mayo since December, 1984. In that capacity, he provides recreational activities, including basketball, football, soccer and board games, some supervised and some not, to the facility's inmates. Petitioner worked for him for two years in 1990 and 1991, and in Winburn's opinion, did a good job despite his asthma condition which got progressively worse during the period of employment. At first, Petitioner worked in the office, but as his condition worsened, Mr. Winburn assigned him to outside work, because numerous people who were smokers, including Winburn, who is a chain smoker, would come into the office during the day, and their smoking made breathing difficult for Petitioner. At the time Petitioner worked there, the recreation office was a small room, much of which was used for the storage of supplies. There was a window, which was blocked, as well as an air conditioner in addition to a dutch door. However, it was difficult at best to keep smoke out of the area. As a result, Mr. Winburn attempted to impose the no-smoking rule for that area and bar any smoking there at all. He suggested that to his supervisors but they did not readily endorse his proposal. At one point, when Petitioner was working for Mr. Winburn, he brought in a doctor's certificate which indicated he should be in a smoke-free environment. When Winburn received the note, he took it to his supervisor, the personnel director, Mr. Witt. At the same time, he wrote a memorandum to Mr. Davis, the Assistant Superintendent, indicating his desire to provide Petitioner with a smoke-free environment. To accomplish that end, he suggested that smoking not be permitted in either the recreation office or the storage room. Shortly thereafter, Petitioner was notified by a letter from Mr. Mathis, the Superintendent, stating that he had given instructions to place Petitioner in a position which would limit his chances of coming into contact with tobacco smoke. This was assignment to a perimeter position, outdoors, on the midnight shift. Shortly thereafter, Petitioner requested a shift change which was denied, and on November 5, 1990, he filed a grievance citing the institution's failure to approve his shift change. Mr. Locke, the Corrections Officer Supervisor, denied Petitioner's request for shift change because he was attempting to keep Petitioner away from cigarette smoke. Before putting Petitioner on perimeter duty, Locke and his staff looked at all 156 security positions that could be filled by a CO1 and found that none would keep Petitioner away from smoke as well as a perimeter post. Most COI positions are dormitory officer positions and smoking is permitted in the dormitories. When the vacant day position for which Petitioner had applied was filled, it was filled with someone with more seniority that Petitioner. Perimeter posts are located at each of the four corners of the facility. There is a truck parked at each for the guard to use, but during foggy weather, the guard is required to stand outside the truck in order to see and hear better. This procedure was established after Petitioner was assigned perimeter duty. Mr. Locke did not feel it was his responsibility to evaluate whether the change from recreation to perimeter duty was helping or hurting Petitioner's asthma condition. He only knew he had to find Petitioner a job which reduced his exposure to smoke and he did that. He did not believe it was his determination to make whether it worked or not was not. As chief correctional officer at Mayo, Mr. Locke considers the perimeter posts as among the most important positions in the institution. They are the last line of defense between the convicted inmate and the public. Perimeter guards are the only armed guards at the facility. Guards are not routinely rotated to and from that position. Instead, changes come about as the result of a request for shift change. Some CO's have been on perimeter duty for a long time and don't want to change. Petitioner's request for change was not only of shift but of post as well. He wanted to change from a job which had Tuesday and Wednesday off to one which had Saturday and Sunday off. Until he was advised Petitioner could not enter a smoke filled environment, Mr. Locke had no reason to feel Petitioner could not perform any job. Only when he learned of Petitioner's problem with smoke were any restraints on his assignments considered. DOC rule 22A-8.011 concerning medical excuses requires a doctor's excuse after the third day of an absence, but in the case of an employee who has a preexisting tendency to call in sick, local policy, provided for in the rule, calls for a doctor's excuse right away. This provision was applied not only to the Petitioner but also to several other officers who took a lot of time off. There was some suspicion among his supervisors that Petitioner might have been taking sick leave to get long weekends. Mr. Locke felt Petitioner was taking excessive time off, some of which, it appears, was not related to his illness. To determine if this was true, in September, 1990, Mr. Davis asked Mr. Witt, the personnel manager at Mayo, to prepare a ledger of Petitioner's days off. The tally showed a disproportionate number of leave days were used immediately before and after Petitioner's scheduled days off of Monday and Tuesday over the preceding year. Including holiday leave, Petitioner had taken 37.25 days off. Just after Witt put this information together, but before he had an opportunity to show it to Mr. Davis, Mr. Winburn brought up the issue of Petitioner's asthma and the doctor's note. Sometime later, Mr. Witt also defined Petitioner's time off during that portion of 1991 which he worked. Institutional records show he took 241 hours of authorized leave without pay and 406.5 hours of unauthorized leave without pay. According to Witt, that is an exceptional amount of time off - more than Witt has seen taken by any other employee during his 9 years experience at Mayo. Mr. Mathis, the institution Superintendent, cannot recall the exact date he became aware of Petitioner's asthmatic condition, The information was given to him by Mr. Witt who presented him with the doctor's note. As he recalls it, that note said Petitioner should be placed on 100 percent medical disability or in a smoke-free environment, and that further excessive exposure to cigarette smoke could cause permanent damage. When he got this information, Mr. Mathis directed Mr. Davis, his assistant, to come up with an appropriate assignment for Petitioner to get him out of harm's way. Davis, after consultation with Locke and others, recommended the perimeter post. Mathis also contacted Department officials in Tallahassee about the situation but did not contact the doctor for further input nor did he call in Petitioner to discuss the matter with him. Because he could not define the term "reasonably smoke free" as used by the doctor, Mathis chose to put Petitioner in a "smoke free" environment concluding this is what was called for by the terms of the medical note. Before making this decision, Mathis had received the memorandum from Mr. Winburn to Mr. Witt which recommended making the recreation office a nonsmoking area. For several reasons, including the fact that the recreation office was just next to the canteen where cigarettes were sold, was too far removed from the office for adequate enforcement, was frequently visited by staff and inmates who were smoking, and because Winburn was a chain smoker, Mathis declined to follow Winburn's recommendation and agreed with that of Locke and Davis to place Petitioner on midnight shift perimeter duty. Petitioner was specifically told this was not to accommodate a medical disability but only to get him away from cigarette smoke until further information was received from his doctor. Though he did not speak directly with Petitioner, Mathis stated this in his letter to Petitioner advising him of the change. Mr. Mathis did ultimately communicate with Petitioner's doctor. In one contact, Dr. Rawls noted that Petitioner "... has no specific limitations." Mathis did not interpret the doctor's comments about damage from exposure to smoke as being limited to only in an enclosed area. He considered there to be a contraindication to smoke exposure at all, and this is not an unreasonable interpretation, especially in light of the doctor's comments recommending 100 percent medical disability. On January 1, 1991, Petitioner again called in sick. On January 24, 1991 he was instructed to bring a medical excuse from his physician but did not do so even after a second request on February 1, 1991. As a result, disciplinary action was taken. In February, 1991, Mr. Mathis again contacted the doctor after the issue of cold night air came up. This happened after Petitioner filed his grievance about not getting a shift change. Petitioner's request to be assigned to the day shift with Saturdays and Sundays off was neither a request for reassignment nor transfer which are covered by Article 9 of the union contract. Instead, he was seeking a shift change and there is a separate procedure for that which he either was or should have been aware of. Shift changes are covered by Article 23 of the contract, but both Articles make reference to the needs of the agency, to seniority, and to employee preference, in that order. In May, 1991, Petitioner was directed by the Superintendent to have a medical examination by a physician in Gainesville, Dr. Wynne, at the Department's expense to determine the nature and extent of his illness because Petitioner was not coming to work regularly. Doctor Wynne rendered his opinion that Petitioner suffered from "mild asthmatic bronchitis" which was well controlled by medications but that he could perform all the duties of a Corrections Officer, so long as exposure to cigarette smoke could be minimized. That same month, Petitioner again failed to report for duty and failed to notify his immediate supervisor prior to the intended absence. On July 18, 1991, Mr. Witt sent a certified letter to Petitioner, who had been away from work since sometime in June, 1991, advising him to return to his duties or provide a certification of a medical reason to remain away. Petitioner had called in on July 16, 1991, indicating his attorney had recommended he ask for leave until his discrimination complaint was settled, but that he would be in on July 18, 1991 at the suggestion of Mr. Witt. Petitioner did not appear as indicated. With again wrote to him instructing him to come to work immediately and provide medical certification for his absences subsequent to June 27, 1991. On August 9, 1991, Mr. Mathis notified Petitioner by certified mail that disciplinary charges had been prepared alleging excessive absences, absence without authority, and failure to follow written and verbal instructions, and that these charges could result in his being dismissed as of August 26, 1991. This action was based on repeated prior notifications in writing by management to Petitioner concerning the absentee problem as evidenced by the memorandum prepared in June and July, 1991. On August 19, 1991, Petitioner, through counsel, formally requested leave without pay until resolution of his charge of discrimination filed with the Commission. This was supported by a letter from Petitioner's physician dated August 13, 1991 citing stress at work resulting in depression coupled with asthma. Nonetheless, by letter dated August 30, 1991, Petitioner was dismissed from employment with the Department as of that date. The bases for dismissal were those matters cited in Mr. Mathis' letter to Petitioner of August 9, 1991. Department Rule 33-20.001 makes all indoor areas used for common purposes nonsmoking areas unless otherwise designated. In September, 1990, dorms, common inmate areas (except CO work stations), and offices used by smokers at Mayo were designated as smoking areas. Nonsmoking areas included medical and food preparation areas, transfer vehicles, and some others. The choice of designating an area as either smoking or nonsmoking is up to the head of the department using it. Therefore, if Mr. Winburn wanted to make the recreation office a nonsmoking area, he could have done it. The Department has a policy that all COs must be able to perform all CO assignments. Mr. Mathis wrote to Dr. Rawls asking when he felt Petitioner could be assigned other work without reference to a smoking restriction. It was not Mathis' intention to keep Petitioner on perimeter post indefinitely. Petitioner could have been assigned to other areas away from smoke such as the medical section, the control room, or medical escort duties, but he never applied for any of those positions when they were open. At the time of the doctor's note, only the perimeter post was open and as a result, Petitioner was assigned there. Had he applied for another post when one came open, he would have been considered for it. Petitioner's request for transfer to a different shift on perimeter was denied because under the contract the Department had with the union, the opening had to go to Mr. Hawkins who was senior to Petitioner. There are several other reasons listed in the contract for restricting the duty assignment of COs. Included are nepotism, the prohibition against female officers working alone in dormitories, and illness, and there is also a provision for alternate duty for COs who have been injured in the line of duty. All are legitimate. One of the considerations in assigning Petitioner to perimeter duty was the potential liability to the state if he were not moved, in light of the doctor's comments about his condition. Petitioner relates he was first diagnosed as having asthma when he was 9 years old. Nonetheless, he played all sports without difficulty as a youth. He indicates his attacks now are brought on by tobacco smoke and other materials such as dust, chemicals, and vehicle fumes. When an attack comes on, he uses an inhaler and takes prescription medications. With it all, he does not voluntarily restrict his activities because of his condition and periodically enters buildings where smoking is allowed. Sometimes it triggers an asthma attack and sometimes it doesn't. Mr. Dunwoody started working at Mayo in 1985 as a dormitory relief officer with Sundays and Mondays off. Smoking was permitted in the dormitories and it was sometimes irritating to his condition. Nevertheless, he stayed in that job until, at his own request, he was transferred to the recreation section so he could be away from the smoke. His early ratings showed he either achieved or exceeded standards, but in 1987 he received a rating which referred to excess leave due to family illness. In that regard, he indicates, his daughter has cystic fibrosis. While at recreation, Petitioner worked both the 8 - 4 and the 12 - 8 shifts. He was outdoors most of the time when the weather was good. He worked with 2 officers and at least 3 inmate clerks. Nobody would smoke when he was around in deference to his condition. He claims to have gotten along "great" with Mr. Winburn. He was also trained for the institution's confrontation team but was taken off that duty because of the potential conflict his asthma might cause. He did not file a handicap discrimination complaint because of that action. In September, 1990, after a bout with asthma, he went to see Dr. Rawls, by whom he has been treated since childhood, who told him he should either get a job in a smoke-free environment or a 100 percent disability. At first, Petitioner did not report this to Mr. Winburn for fear he would be removed from recreation because of it. When he did give the note to Winburn, about a week later, Winburn took it to Mr. Davis with the recommendation for a smoke free status in recreation. Petitioner was happy about that. However, on October 10, 1990, he got the letter from Mr. Mathis stating he was being moved to a perimeter post. At first, he didn't know which post it would be. Only when he went to work on the follow Saturday, October 13th, was he told to come back that night as he was to be on the night shift. On his way out of the building, he saw Mr. Mathis who at first said he was too busy to talk. However, when he saw Mathis again shortly thereafter, Petitioner asked him about the letter and Mathis replied there should be no smoking "out there" without further explanation. Petitioner did not report for duty that night because he was "mentally not functioning." When he did come in at midnight on October 18, 1990, he was told where he was going to be posted. On October 29, 1990, because he had noticed an opening on a day shift, Petitioner submitted a request for a shift change from the midnight shift to the day shift to his immediate supervisor, Lt. Fales. Fales indicated he would approve it only if he got a replacement for Petitioner. When the response came through several days later, Petitioner found his request had been denied for "medical reasons" but he was never given any further explanation. On November 5, 1990, he filed a grievance for the failure to approve his request for shift change. During the meeting on the grievance Petitioner had with Mr. Davis, he was told the shift he had applied for was not available because the slot was to be filled by another CO with more seniority. This was true. Petitioner objected to the assignment to perimeter duty for several reasons. First, he felt it was an entry level position and his five years of experience as a CO merited a higher level position. Second, it was isolated. Compounding that was the fact he was prohibited from even entering the compound while on duty except to go to the security building and the medical facility. To his knowledge, he was the only CO on whom these limitations were imposed and when he asked a supervisor why this was done, he got no answer. He felt this placement diminished his status and reputation among his fellow COs, limited his promotion potential, and, though he never was reduced in pay, he considered it as a demotion. He also discussed with Lt. Fales, one cold night when Petitioner was not feeling well, the problem he was having regarding the cold night air. Fales sent him to the clinic but would not let him go home because he was operating on minimum compliment. Fales called the nurse who indicated Petitioner's temperature, pulse and respiration were all within normal limits, and when Petitioner got back and Fales told him what the nurse had said, he began to argue and had to be ordered back to work. The verbal altercation which transpired was memorialized by Fales in an incident report dated January 3, 1991. The following day, Mr. Locke gave Petitioner a memorandum noting his frequent absences and outlining the req uirements imposed to monitor his further absences. At that time he had an opportunity to discuss the matter with Mr. Locke but did not do so because Locke "looked to be very busy." Petitioner was hospitalized during December, 1990 for 5 days. Between December 14, 1990 and January 2, 1991, he was on leave without pay for 108 hours, and on January 2, 1991, he was released for return to duty by Dr. Martin at the Tallahassee Neurological Clinic. On January 21, 1991, he called in sick. On January 24, 1991, he was instructed by Lt. Funderburk to bring in a medical certificate from his doctor outlining his condition and the reason for his absence. On February 1, 1991, when he had failed to bring it, he was again requested to bring in the certificate but as of February 5, 1991, had not done so. At that time, Funderburk filed an incident report pertaining to the matter. Petitioner claims that at no time did Mr. Mathis, Mr. Davis or Mr. Locke speak with him about his medical condition and neither did Mr. Witt until he requested a leave of absence in the summer of 1991. On June 24, 1991, Petitioner failed to report for duty on to call in in advance as required. When he finally called, almost 1 1/2 hours late, he indicated he did not know when he could report and explained his tardiness as well as his absence on June 23, 1991 as being because he "did not feel good." This incident resulted in the filing of an incident report. Petitioner also contends that the perimeter post afforded him no relief since factors other than smoke were equally as devastating to his condition. The cold night air, heat depending on season, the smell of insect repellant, the engine fumes from the vehicle he had to sit in, all negatively impacted him. He claims it was worse than being in the recreation area from which he would periodically enter the dormitories to use the bathroom. While the smoke in the recreation office bothered him, at no time did the smoke in the dormitory do so. Therefore, Petitioner does not accept the agency excuse that he could not be given a post inside the perimeter because he might have to go into smoking areas at times. He further asserts his belief that his attendance record could have improved if his disability had been reasonably accommodated. Petitioner resented being prohibited from entering the compound except for the security and medical buildings. He knows of only two other COs who faced the same restrictions, and both were under a disciplinary cloud at the time. He disagrees with the contention it would be hard to make the recreation office nonsmoking. The inmates knew of his reaction to cigarette smoke, he claims, and, historically, would extinguish their cigarettes when they saw him coming. Petitioner attributes his attendance problems to the change in his posting from the recreation center to the perimeter and the loss of his grandmother at just about the same time. He could not get used to working nights, and the conditions on the perimeter post combined to create a problem for him. Nonetheless, in February and March, 1991, his attendance improved, but in April his problems got the best of him and he admitted himself to the Tallahassee Psychiatric Clinic. He was drinking and, at one point, using cocaine. However, at no time did he ever ask to participate in the institution's Employees' Assistance Program designed to assist troubled employees with getting help for their problems. This program is designed to deal with alcohol, drug, family and work problems, not disabilities. While claiming his posting to the perimeter and the conditions there caused his deterioration, he admits he was not required to do anything more than was required of any other CO on perimeter duty. When Petitioner was first hired at Mayo, he listed his asthma condition on his application but did not claim it as a disabling handicap condition. Notwithstanding his claims that his attendance problems commenced with his posting to the perimeter, at least one earlier performance report during the periods 1983 to 1984, and 1986 to 1987 reflected he was counselled about attendance and leave problems. Petitioner denies that his sick days on Saturdays and Sundays were timed to get long weekends. He claims his repeated absences were due not only to asthma but also to the depression he was experiencing because of his working conditions. He admitted himself to the Tallahassee Psychiatric Clinic for 10 days or so in April, 1991 where he was treated by Dr. Chockhwala and Mr. Edwards, a psychiatrist and psychiatric social worker, respectively. Doctor's notes for that time reveal Petitioner felt his work problems were racially motivated and his assignments were punishment for being assertive about his asthma condition. In August, 1991, Dr. Chockhwala, in his report to Mr. Mathis, noted the combination of stress, asthma and depression and recommended Petitioner be placed on indefinite leave," until his stamina returns, he is reassigned to a less stressful situation, when the weather changes, or he can be placed at another facility." On August 9, 1991, by certified mail, Mr. Mathis advised Petitioner of his right to attend a predetermination conference relative to his absences and the proposed agency action. Though the Mathis letter indicated disciplinary action would be taken on August 26, 1991 if Petitioner did not request a conference, at hearing Petitioner treated the matter as though he had been directed to attend a conference on a day certain and failed to attend because he was sick that day. At some point in that period, Petitioner contacted Mr. Witt who advised him the agency planned to proceed with action based on the record available. Petitioner claims that though he wants to be reinstated as a CO, he would not want to work at Mayo even though he felt support from his fellow COs. According to Hal Johnson, General Counsel to the Florida Police Benevolent Association and chief negotiator for the union in its collective bargaining with the Department of Corrections, reassignments are covered by Articles 9 and 23 of the contract. Article 9 defines a reassignment as moving an employee from one position in a class to another position in the same class or to a different position in a different class. Article 23 indicates that where practicable, shift transfers and days off will be assigned with due regard to the needs of the agency, seniority, and employee preference. Article 9 also provides that a vacancy should be filled with the employee who has the most seniority in the class and who has a request for that vacancy on file. Other factors, such as work history, affirmative action goals, and employee preference can also be considered. While the agency has a great deal of discretion in assignments it must articulate a legitimate reason to fail to honor a request for transfer or to involuntarily reassign a person to another position. According to Dr. Randolph A. Malone, IV, a Board certified allergist and immunologist, cold air will flare, (trigger), asthma attacks but will not worsen the condition over a long period. In mild cases of asthma, the patient usually has a mild shortness of breath and a cough. The symptoms are self- limiting. Symptoms tend to be worse at night. As the condition gets more severe, the symptoms appear more frequently and the patient may get an upper respiratory infection. The patient then suffers symptoms on a daily basis to include inflammation and obstruction of the air passage. At this point, after a time, the patient feels terrible and experiences chest tightness, decreased energy and increased fatigue, and has more severe reactions to colds and other respiratory ailments. An asthmatic is hypersensitive to various irritants and should not be continually exposed to them. However, asthmatics are not respiratory cripples who need to be completely sheltered from exposure to such irritants as cigarette smoke; though they should not stay for prolonged periods with smokers in a room that did not have adequate ventilation. Asthma can also be triggered by emotions. Review of Petitioner's medical records generated by Dr. Wynne in Gainesville indicate to Dr. Malone that Petitioner has chronic, moderate asthma with a tendency to severe flares. In his opinion, the old recreation office, where Petitioner was working, with a chain smoker present, would not be an appropriate place for an asthmatic. The perimeter post, as described by counsel in his hypothetical, however, would be a reasonable work environment, if not optimal. The cold or dust encountered could flare Petitioner's asthma, and at those times he would have to take additional medication, but it would probably not make his condition chronically worse as cigarette smoke would. Cold dry air is the worst combination for an asthmatic. Normally, the higher the humidity is, the better it is for the asthmatic. Cigarette smoke is the worst trigger. The psychiatric social worker who saw Petitioner in conjunction with Dr. Chockhwala, Gerald Edwards, took over the therapy sessions after the initial visit with the doctor on January 22, 1991, and saw Petitioner four times thereafter. He determined that Petitioner suffered from dysthymia, a form of chronic depression, the onset of which extends over a period of several years. In his therapy with Petitioner, Mr. Edwards identified the problems in Petitioner's life and tried to set goals with him to allow Petitioner to get through this period. Petitioner's problems included family matters and job related stress and a lack of self esteem. Working together, they tried to get Petitioner into another line of work and back into school. After the fourth visit, Petitioner chose not to continue the therapy. However, Mr. Edwards saw Petitioner again in October, 1992 at which time he was completely different than he had been previously. Petitioner was energetic, animated, smiling, and free to express himself much better. He was enrolled in school, had another part time job, was planning to move from his prior home town, and had custody of one of his children. He felt good about life and could, in Mr. Edwards' opinion, successfully hold down a full time job. Mr. Edwards concluded that much of Petitioner's original work problem was that he could not get a job in a smoke free environment inside the compound where he preferred to be. Petitioner felt he had been denied promotion and discriminated against because of his race. The issue of racial discrimination in employment practices at Mayo subsequently was treated in a study conducted by Dr. Edgar A. Fresen, an economist with a concentration in labor economics. This study of CO employment terminations at Mayo from January, 1985 through September, 1992, was based on employment records submitted by the Respondent and was conducted on behalf of the Petitioner. Dr. Fresen concluded in his study that terminations during the referenced period were not neutral with respect to race. He asserts his tests indicated, beyond a 99 percent level of confidence, that terminations of minority employees far exceeded a racially unbiased incidence projection. In his study, Dr. Fresen examined the racial composition of Corrections Officers I and II utilizing both a 13 percent and 14 percent benchmark. The 14 percent benchmark resulted in a 99.79 percent level of confidence and the 13 percent benchmark increased the level of confidence to 99.87 percent. The analyzed data, he concluded, strongly supported the inference that race is a factor which influenced Respondent's decisions on discharges. Another study was conducted thereafter regarding the same subject matter, on behalf of the Department, by Dr. Michael J. Piette, also an economist and Senior Vice President/Economist with Economic Research Services, Inc. He specializes in labor, industrial organization and antitrust, and economics of the financial services industry. Dr. Piette found several problems with the methodology employed by Dr. Fresen in his study, objecting specifically to Fresen's combining COIs and COIIs in a binomial analysis on the basis that the two groups are different in responsibility and in terms of time in the system which affects the likelihood of their termination. He also objected to the method of selecting and using benchmarks, indicating the levels used by Fresen were artificially low, which increased the chance of finding a significant difference in terminations between white and "minority" employees. A third problem found by Dr. Piette relates to the data utilized by Dr. Fresen in his analysis. Piette claims this data did not include all involuntary resignations during the relevant period, while this type of resignation is often used in lieu of termination as the result of investigation into misconduct. Dr. Piette's analysis of the available material contends that once the process includes all involuntary resignations, examines COIs only, and uses an appropriate comprehensive benchmark, the same statistical test used by Dr. Fresen indicates there are no statistically significant differences in the termination rate at Mayo with regard to race. He found no evidence of racial patterns in Mayo's termination decisions and concluded race was not a factor. Dr. Fresen then submitted an affidavit in opposition to Dr. Piette's analysis, in which he cites numerous grounds for discrediting it. This dispute could be carried on indefinitely with neither expert conclusively proving his point. While neither analysis is considered to be determinative of the factual issue of whether Petitioner was improperly discharged on the basis of his race or handicap, Dr. Piette's analysis is found to be more probative of the issue treated. Subsequent to the hearing and the filing of the above materials, Petitioner filed a Motion in Limine to exclude the report of Dr. Piette on the basis that Piette relied in his analysis on basically unreliable and improperly obtained evidence. Petitioner is correct in his legal position that an expert may not rely on unreliable and improperly obtained evidence. However, the original opinion evidence and the supporting affidavits thereto and to the Motion and Response, clearly indicate that both experts used basically the same material obtained from basically the same source. Taken as a whole, little valid objection can be found to Dr. Piette's presentation and the Motion in Limine is denied.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Petitioner's Petition for Relief from a discriminatory employment practice alleging discrimination on the basis of race and handicap, and retaliation by the Department of Corrections be denied. RECOMMENDED this 24th day of February, 1994, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of February, 1994. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 92-2475 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: Accepted and incorporated herein. - 6. Accepted and incorporated herein. 7. - 17. Accepted and incorporated herein. 18. - 22. Accepted and incorporated herein. 23. - 33. Accepted and incorporated herein. 34. & 35. Accepted and incorporated herein. Accepted but modified by the additional recommendation that if this could not be done, Petitioner be given a 100 percent disability. Accepted and incorporated herein. -& 39. Accepted. 40. - 44. Accepted. 45. - 49. Accepted and incorporated herein. Accepted. - 56. Accepted and incorporated herein. 57. & 58. Accepted. 59. - 64. Accepted. 65. & 66. Accepted. 67. - 69. Accepted and incorporated herein. 70. - 72. Accepted. 73. - 76. Accepted. 77. Accepted and incorporated herein. 78. - 84. Accepted. 85. Accepted and incorporated herein. 86. & 87. Accepted and incorporated herein. 88. & 90. Accepted and incorporated herein. 91. & 92. Accepted. 93. - 98. Accepted. 99. - 103. Accepted and, in the main, incorporated herein. 104. - 111. Accepted and incorporated herein. 112. - 116. Accepted and, in the main, incorporated herein. 117. - 119. Accepted and incorporated herein. 120. & 121. Accepted. 122. Accepted. 123. - 126. Accepted. 127. - 133. Accepted and incorporated herein. 134. Accepted. 135. - 137. Accepted. 138. - 143. Accepted and incorporated herein except for the allegation in #142 that Petitioner failed to attend the conference because he had an asthma attack not proven. 144. - 148. Accepted. 149. - 152. Accepted except for the last sentence in #150. 153. - 156. Not a Finding of Fact but a characterization of the evidence. Accepted. - 189. Not Findings of Fact but comments on the testimony. 190. Not a proper Finding of Fact but a comment on the quality of the evidence. The ultimate conclusion regarding the establishment of discrimination is not supported by a preponderance of the evidence. FOR THE RESPONDENT: 1. - 3. Accepted and incorporated herein. 4. - 6. Accepted and incorporated herein. 7. - 9. Accepted and incorporated herein. 10. & 11. Accepted and incorporated herein. 12. - 14. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. & 18. Accepted and incorporated herein. 19. & 20. Accepted. Accepted and incorporated herein. & 23. Accepted and incorporated herein. Accepted. Accepted and incorporated herein. & 27. Accepted. Accepted and incorporated herein. & 30. Accepted and incorporated herein. Accepted. - 38. Accepted and incorporated herein. Accepted and incorporated herein. & 41. Accepted. 42. - 48. Accepted and incorporated herein. 49. & 50. Accepted. COPIES FURNISHED: Mary C. O'Rourke, Esquire W. College Avenue Tallahassee, Florida 32301 Ernest L. Reddick, Esquire Department of Corrections 2601 Blairstone Road Tallahassee, Florida 32301 Dana Baird General Counsel John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Sharon Moultry, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue Whether the decision to reject all bids for Lease No. 800:0187 is illegal, arbitrary, dishonest, or fraudulent under the provisions of Section 120.57(3), Florida Statutes, or violates the terms of the Request for Proposal.
Findings Of Fact Prior to May 17, 1999, the Department issued a RFP for office space seeking to lease approximately 14,420 contiguous square feet of space located in Broward County, Florida. This lease, designated 800:0187 in this record, was to run for a basic term of seven years with three two-year renewal options. The RFP specified the lessor was to provide full services and 60 parking spaces. In response to the RFP, the Petitioner, Sunrise, and Intervenor timely submitted proposals. The space proposed by Petitioner complied with the requirements of the RFP. Additionally, the Petitioner's submittal was well within the Department's acceptable rate range. On May 17, 1999, the Department issued an intended award to Sunrise for lease 800:0187. Sunrise was deemed the lowest responsive bidder. All objections to the award to Sunrise were resolved or withdrawn. For reasons not clearly documented in this record, the Department withdrew its decision to award the lease to Sunrise. The agency action, posted on June 12, 2000, some 13 months after the initial posting, stated Sunrise had not performed and recommended Lauderdale as the second-ranked entity that had responded to the RFP. Both Sunrise and the Intervenor timely filed protests to the proposed award to Lauderdale. The Petitioner filed motions with the Department to dismiss and intervene in those protests. As of the date of the final hearing in the instant case, the Department had not resolved or referred those protests to the Division of Administrative Hearings. Instead, on July 24, 2000, the Department issued a notice stating it would reject all bids for lease 800:0187 and rescind the award to Lauderdale. In reaching this decision, the Department stated it "cannot determine its space needs until after the pending Department reorganization is complete." If the Department was being "reorganized" such reorganization would have been known to the Department on June 12, 2000. No legislative or administrative action was taken to require reorganization between June 12, 2000 and July 24, 2000. The Department determined that its decision of July 24, 2000, rendered the June 12 award to Lauderdale moot. The Petitioner, Sunrise, and Intervenor challenged the agency's decision to reject all bids. Section M of the RFP provides, in pertinent part: The Department reserves the right to reject any and all proposals when such rejection is in the best interest of the State of Florida. Such rejection shall not be arbitrary, but be based on strong justification. (Emphasis in original omitted.) Subsequent to the protests of the rejection of all proposals, Perry Anderson, a regional administrator for the Department whose region encompasses Broward County, drafted a memorandum dated September 22, 2000, to address the number of leases and unit requirements for service areas of Broward County. The proposals set forth in the memorandum have not been resolved. As of the date of the hearing, the Department did not present any definitive statement as to its leasing needs for Broward County or how and why the submittals for lease 800:0187 could not address the agency's need. The Department has not presented documentation for any agency plan or statutory mandate to reorganize or decentralize the office space encompassed by lease 800:0187. If decentralization is required, the Department has presented no studies to determine the location, service areas, or numbers of clients for such offices. Studies for demographics, travel times, accessibility to public transportation, client case loads, or how reorganization would better address such issues have not been presented. Moreover, the Department has not demonstrated how decentralization would be inconsistent with the award of lease space as designated by lease 800:0187. The only justification for the rejection of all proposals for lease 800:0187 was the alleged reorganization of the Department. The Department presented no factual information as to how the "reorganization" related to an emerging philosophy supporting decentralization or improved services to the client population.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Juvenile Justice enter a final order rescinding its decision to reject all proposals for lease 800:0187. DONE AND ENTERED this 27th day of July, 2001, in Tallahassee, Leon County, Florida. ___________________________________ J. D. Parrish 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 27th day of July, 2001. COPIES FURNISHED: Brian D. Berkowitz, Esquire Scott Wright, Esquire Office of General Counsel Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-3100 Robert A. Sweetapple, Esquire Sweetapple, Broeker & Varkas 165 East Boca Raton Road Boca Raton, Florida 33432 Daniel H. Thompson, Esquire Berger, Davis & Singerman 215 South Monroe Street Suite 705 Tallahassee, Florida 32301 A. Margaret Hesford, Esquire 5648 West Atlantic Boulevard Margate, Florida 33063 William G. Bankhead, Secretary Department of Juvenile Justice Knight Building 2737 Centerview Drive Tallahassee, Florida 32399-3100 Robert N. Sechen, General Counsel Department of Juvenile Justice Knight Building 2737 Centerview Drive Tallahassee, Florida 32399-3100
Findings Of Fact In April, 1975 Mrs. Wright, an inspector assigned to the District Office in Panama City inquired of her supervisor regarding outside employment and was told she had to obtain permission from Tallahassee. She subsequently telephone Jack Pelham in Tallahassee who advised her the department would have no objection if it did not interfere with her state duties, but she would have to send a request in writing stating the details of her outside employment. On April 25, 1975 she submitted a letter (Exhibit 4) stating she had accepted outside employment on weekends at an amusement park starting at 6:00 P.M. on Friday afternoon, and requested she be advised if the employment constituted a conflict of interest. No response was received indicating objection on behalf of the Department. Some time in early June Petitioner commenced working on week days in addition to weekends. No request for authority to so work was submitted by Petitioner. Department regulations and policy require prior approval for outside employment. During the period from June 6, 1975 through June 27, 1975 time sheets certified by Mrs. Wright showed she worked from 8:00 to 12:00 and 1:00 to 5:00 Mondays through Friday. Time sheets on June 30 and July 1st showed work hours from 8:00 to 12:00 and 12:30 to 4:30. On July 2 and 3 time sheets showed work from 8:00 to 12:30 and annual leave for 3 hours on July 2 and 8 hours on July 3rd. From July 7 through 10 time sheets showed hours worked from 7:15 to 12:15 and 12:45 to 3:45. From July 14 through 17 time sheets showed hours worked from 7:30 to 12:00 and 12:30 to 4:00. Time sheets from Miracle Strip Amusement Park showed that on June 6, 9, 12, 18, 20, 23, 25, 26 and 30 Mrs. Wright commenced work at 4:30 and on July 7, 8, 9, 10, 11, 16, and 17 she commenced work at 2:45 P.M. Copies of Department policy manual and personnel rules and regulations are available in the District Office out of which Mrs. Wright worked, but she was not furnished a copy of the policy manual until October, 1975 after the incidents herein involved. Testifying in her own behalf Petitioner contends that she signs most of the time sheets in blank and the secretary filled in the hours for her the same as she did for the other inspectors. She further contends that she was unaware that she needed approval for changing the hours of outside employment from the weekend to include weekdays; that she had worked overtime on many occasions for which she had not made a claim; that her supervisor told her he had no objection to her working outside so long as she put in 8 hours for the state; and that she could work early hours if she desired. Except for about 4 days in July she contended that each day she worked the full 8 hours required by the Department. With respect to those 4 days in July for which attendance sheets show less than 8 hours per day worked, she contends she asked if she could take leave and was told it wasn't necessary. Her supervisor has no recollection of such a request and no leave slips were presented to him for approval.
The Issue The issues to be resolved in this proceeding concerns whether the Petitioner should be deemed to have abandoned his career service employment position with the Department of Natural Resources and, therefore, whether the Department of Administration should issue a final order to that effect. The parties presented Proposed Findings of Fact and Conclusions of Law which are dealt with in this Recommended Order and, additionally, are addressed in the Appendix attached hereto and incorporated by reference herein.
Findings Of Fact For approximately two years and ten months the Petitioner, Jack W. Simmons was employed by the Department of Natural Resources at the Maclay Gardens State Park in Tallahassee, Florida. On January 7, 8, 9, 10 and 11, 1985, Simmons was scheduled to work at his position at Maclay Gardens. Simmons did not appear for work on those days and did not seek prior authorization to be absent from work on those days. Simmons did not notify the Department of Natural Resources of his absence or the reasons there for on those days. Jack Simmons had been absent in the past for various reasons including a severe back problem associated with severe back pain. Simmons was largely immobilized during the week of January 7, 1985 and was unable to report to work because of severe back pain. He was unable to stand erect and unable to walk without great difficulty. As established by Joyce Jones, his neighbor, he was able to very slowly and painfully go to the door to let her in his apartment while dressed in a housecoat. He lived on the second floor in an apartment at the top of approximately twenty stairs. He was unable to cook for himself or to dress himself to the extent that he could not put on shoes and rested primarily in a reclining chair. Mr. Simmons at the time in question did not have a telephone and testified that he felt the nearest telephone was approximately three quarters of a mile away. He did not inquire of any of his neighbors as to whether they had a telephone and could report the reason for his absence to his employer, however. His neighbor, Joyce Jones, who assisted in feeding him and caring for him during this week when he was suffering severe back pain, established that she had asked him on January 9th whether he wished her to call his employer to report his absence. He declined her offer, intimating that he would call his employer later himself. Neither Simmons nor anyone else ever called his employer to report his absence or the reasons for his absence. There is no doubt that Mr. Simmons was severely incapacitated on the day in question and required the assistance of Ms. Jones to clean his house, do his laundry, cook for him and purchase medicine for his Lack pain. On one occasion she observed him crawling on the floor in an effort to get back in his reclining chair and on another occasion she observed his inability to get out of the bathtub. There is no dispute concerning the immobilizing nature of Mr. Simmons' illness. Mr. Simmons did not have a telephone and, although his employer previously suggested that he get a telephone, his employer did not require that he do so, merely requiring that he inform them of any absences and the reason therefor. Mr. Simmons maintained that on January 9th, the third day of Mr. Simmons' unreported absence, he was on his way to a telephone to call his employer and report his absence and its reasons when Major Johnston, his employer and supervisor, stopped outside his home and verbally informed him he was fired. That testimony is belied by that of Major Johnston, however, who established that he went to Simmons' house January 11th, a Friday, and not January 9th, a Wednesday. Major Johnston's testimony is accepted over that of Mr. Simmons and Joyce Jones, neither of whom could remember with certainty whether it was January 9th or not when this episode purportedly occurred and because, throughout his testimony, Mr. Simmons candidly admitted he was not able to recall dates and times very well. Major Johnston's version of his whereabouts on January 9th was corroborated by his co-workers, who, together with Johnston, established that Johnston was at a meeting all day with his employers and supervisors on January 9th and only left that meeting during that entire work day to attend a lunch gathering with the same personnel. They immediately returned together from the restaurant to the remainder of the meeting. Indeed, Major Johnston established that he was at a park district manager's meeting all day on both January 9th and 10th, except for the lunch breaks when he lunched in the company of other co-workers who were also in attendance at the meeting, some of whom testified in corroboration of his testimony. Accordingly, Major Johnston's version of the events in question on January 9th and 11th, is accepted over that of Mr. Simmons and Ms. Jones. Major Johnston had intended to go on annual leave from his position on January 11th, but because he was directed by his superior to visit Simmons for the purpose of terminating him from employment, he worked that morning and only took annual leave on that afternoon. His testimony as to his whereabouts on January 9th was corroborated by C. W. Hartsfield, Chief of the Bureau of Park Management, by Joseph Knoll, Assistant Chief, and by James A. Cook, a former deputy director of park operations, all of whom were in Johnston's presence all that day. Joseph Knoll discussed Simmons' unauthorized absence situation with Major Johnston on January 9th and 10th and on January 10th instructed Major Johnston to wait until the next day, Friday, January 11th, and on that day go to Simmons' home to make sure he was not hospitalized before the Department of Natural Resources took any action against Mr. Simmons' employment status. Late on the morning of January 11th, Major Johnston reported to Joseph Knoll that he had visited Mr. Simmons that morning and had notified him of his termination from employment that morning, January 11th. Mr. Simmons was then removed from the payroll and other benefit entitlements effective at 5:00 P.M., January 9th, the third day of the unauthorized absence in question. In the face of the testimony of Major Johnston concerning the termination on January 11th, Mr. Simmons opined only that "I believe it was January the 9th", or words to that effect. His neighbor who cared for him during his illness, Joyce Jones, simply could not remember on what date Simmons told her he had been terminated. Major Johnston had earlier signed and delivered to Simmons a letter warning him that if he had one more unauthorized absence it could result in the loss of his job. During 1984 Mr. Simmons had received a written reprimand for unauthorized absence and tardiness and for similar infractions later in that year had received a three-day suspension from employment. It was at this point that Major Johnston signed and gave him the letter warning him that any more unauthorized absences could result in the loss of his employment. Simmons maintained that he was totally bedridden, without telephone and that he lived at the corner of Park and Franklin Streets in Tallahassee, approximately three-quarters of a mile from the nearest telephone. His own witness, however, his neighbor, Joyce Jones, established that she visited him and he was able to painfully and laboriously come to the door and let her in and tell her of his back problems. On those and succeeding days she cared for and cooked, fetched him medicine and the like and Simmons never asked her to call his employer on his behalf although she offered to call. Simmons had other neighbors, but never asked any of them to call for him to report his absence, either. Although Mr. Simmons was undisputedly gravely ill and unable to walk any distance to use a telephone, there is no doubt that he had an opportunity to report his absence and its reasons to his employer through neighbors, one of whom had even offered to do so, but he had declined that opportunity after being previously warned on two occasions about the importance of reporting his absence to his employer. The Petitioner was given written notice of Respondent's initial determination that he had abandoned his position for in excess of three days and notice of his right to a hearing to contest that determination, as shown by Respondent's Exhibit One, in evidence.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore RECOMMENDED that a final Order be entered by the Department of Administration finding that Jack W. Simmons abandoned his position of employment for three consecutive unauthorized days of absence, from January 7th through January 9, 1985, as envisioned by Rule 22A-7.10(2), Florida Administrative Code. DONE and ORDERED this 27th day of December, 1985, in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer ~ Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkwav Tallahassee, Florida 323C1 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of December, 1985. COPIES FURNISHED: Steven A. Been, Esq. Assistant General Counsel Department of Natural Resources 3900 Commonwealth Boulvard Tallahassee, Florida 32303 Richard L. Kopel, Esq. Deputy General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32301 Paolo G. Annino, Esq. Legal Services of North Florida, Inc. 822 North Monroe Street Tallahassee, Florida 32303 Kevin Crowley, Esq. General Counsel Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, Florida 32302 APPENDIX - CASE NO. 85-0740 Rulings on Petitioner's Proposed Findings or Fact: The Petitioner's Proposed Findings of Fact are in unnumbered paragraphs and We ruled upon by paragraphs in the sequence they appear in the Petitioner's Proposed Findings of Fact and Conclusions of Law. In large part the Proposed Findings of Fact consist of discussion of testimony and argument of counsel, but to the extent they assert Proposed Findings of Fact they are ruled upon as follows: Accepted.| Accepted in part but rejected inasmuch as this paragraph depicts that the nearest telephone was three-quarters of a mile away, which Proposed Finding is rejected as not in accordance with the competent, substantial, credible evidence of record. Accepted to the extent that it depicts Simmons intent to contact his employer, but rejected insofar as it has already been found that Simmons failed to actually contact his employer. Accepted, but this paragraph of Proposed Findings is subordinate to and unnecessary to the Findings of Fact reached in the Recommended Order on the malarial issues presented and is not dispositive of the material issues of fact raised in this case. Accepted in that there is no dispute as to the severity of Jack Simmons' illness, but this Proposed Finding of Fact concerning the severe nature and immobilizing nature of his illness is subordinate to, and unnecessary to the Findings of Fact reached in the Recommended Order concerning Simmons' failure to take advantage of opportunities to notify his employer of the reasons for his absence and is therefore not dispositive of the material issues of fact presented in this proceeding. This Finding is rejected to the extent that it asserts that Simmons had no opportunity to contact his employer which Proposed Finding does not comport with the competent, substantial, credible evidence of record, although it is true that it is undisputed that Simmons lacked a telephone and his neighbor, Joyce Jones, lacked a telephone. This Proposed Finding of Fact is rejected a., not in accordance with the competent, substantial, credible evidence of record in that it has been found that Simmons did not attempt to contact his employer, although it is true that his neighbor, Joyce Jones, offered to call his employer and at that time. Simmons rejected the offer stating that he intended to call the employer himself. He simply never did so when he had the opportunity. This Proposed Finding is accepted as in accordance with the competent, substantial credible evidence of record, but is subordinate to and immaterial to the Findings of Fact made disposing the material issues presented. The Department of Natural Resources did indeed not require him to obtain a telephone, but its procedure for reporting lateness or absence did envision the use of a telephone and his superiors were aware that he did not have a telephone, however, this Proposed Finding is subordinate to the Finding made to the effect that although Simmons had no telephone he did not avail himself of ample opportunity to use a neighbor's phone in his own apartment building or have Ms. Jones phone his employer for him, which she had offered to do and which he refused. This Finding is rejected as not in accordance with the competent, substantial, credible evidence of record in that the testimony and evidence of record in the above Findings of Fact made in the Recommended Order show that Simmons had the ability to contact his employer and failed to avail himself of it. This Proposed Finding is rejected as not in accordance with the competent, substantial, credible evidence of record. This Proposed Finding of Fact is rejected as not in accordance with the competent, substantial, credible evidence of record to the extent that it indicates that Simmons was fired on January 9th instead of January 11th.I Accepted. Rejected as not in accordance with the competent, substantial, credible evidence of record. Rejected as not in accordance with the competent, substantial, credible evidence of record. This Finding is accepted to the extent that it depicts that Simmons was removed from all employee benefits including payroll effective 5:00 P.M. January 9, 1985, however that is subordinate to and not dispositive of the issue resolved in the Finding of Fact in the Recommended Order which establishes that based upon the competent, substantial, credible testimony and evidence of record, Simmons was indeed terminated by his employer on January 11, 1985, not January 9th. Rejected as not in accordance with the competent, substantial, credible evidence of record. Rejected as not in accordance with the competent, substantial, credible evidence of record. Accepted to the extent that the Notice of Termination indicated that Simmons was on unauthorized leave from January 2nd through January 6, 1985. The Respondent has admitted that is an error, but is an immaterial error since the actual disputed dates in question begin Monday, January 7, 1985. The mere fact that the termination notice contained more depicted dates of unexcused absences than were admittedly the case is an immaterial error and this last Proposed Finding of Fact is subordinate to and immaterial to disposition of the material issues of fact presented. Respondent's Proposed Findings of Fact: Accepted. Accepted. Accepted. Accepted Accepted. Accepted. Accepted. Accepted. (It should be noted that the Respondent has not numbered all of its Proposed Findings of Fact paragraphs. The Hearing Officer in making 8 specific Rulings on Proposed Findings of Fact of Respondent has numbered those paragraphs 1 through 8 in making these specific Rulings).
Findings Of Fact Respondent is the state agency responsible for regulation and control of vehicular access, including connections for ingress and egress, to the State Highway System. Respondent has adopted, pursuant to Rule 14-15.013, Florida Administrative Code, the publication entitled Policy and Guidelines for Vehicular Connections to Roads on the State Highway System, as a rule. The parties stipulated at final hearing that the validity of this rule, inclusive of Respondent's policy as codified in the publication, is not at issue in these proceedings. Petitioner is the owner of certain real property abutting State Road 5, Phillips Highway, in Duval County, Florida. Petitioner proposes to construct a commercial establishment on the property consisting of a gasoline station, inclusive of a 700 square foot area for the sale of foodstuffs, and a "drive through" car wash for gasoline customers. The current posted speed limit on State Road 5 in the area where Petitioner's property abuts that highway is 55 miles per hour (mph). On March 19, 1990, Petitioner applied to Respondent for a permit for driveway access to State Road 5, a part of the state highway system, from Petitioner's property. By letter dated June 5, 1990, Respondent's representative denied Petitioner's application for a singular direct access driveway and required that all ingress and egress between Petitioner's property and State Road 5 be accomplished through the joint use of another proposed driveway of an adjacent property owner. The adjacent property driveway borders Petitioner's property. In the letter, Respondent's representative stated: This special requirement is due to the Department's [Respondent's) policy that the spacing of access drives on a state road should be based on the operating posted speed (i.e. for 50 mph, the spacing is 275 feet from P.T. to P.C.). Currently a maximum speed of 55 mph is posted on State Road 5 in this area. The current version of the publication, Policy and Guidelines for Vehicular Connections to Roads on the state Highway System, adopted by Respondent in Rule 14-15.013, Florida Administrative Code, provides on page 33 of the publication that "the desireable recommended spacing along arterial highways between driveways" should be based upon speed limits where feasible. This statement is followed by a listing of recommended distances between access driveways based upon speed limits, ranging from 20 mph to 50 mph, for vehicular traffic. As speed limits increase, the spacing between driveways also increases. The recommended spacing for access driveways, where the arterial highway speed limit is 50 mph, is 275 feet. The text of the publication adopted by Respondent also acknowledges on page 33 that "it may be difficult or impossible to achieve desireable recommended spacing" for access driveways. In this regard, the publication establishes minimal distances between driveways based upon classification of the connection being sought. On page 29, a minimum distance of 150 feet, and a standard of 275 feet, is required between driveways meeting the classification of the roadway connection sought by Petitioner, a class 3 rural connection. While Respondent's formal rule policy establishes minimum required distances between driveways, those minimums are qualified to include greater distances, based upon established speed limits, where feasible. In Petitioner's case, that greater distance, based on the existing speed limit, amounts to a requirement of 275 feet between access driveways. The application by Respondent's representative of this requirement of the rule effectively denies the permitting of the access driveway sought by Petitioner. Respondent's formally promulgated rule policy for the approval of applications seeking access driveways to the state highway system does not conflict with the stated basis for denying Petitioner's application, i.e., existing vehicular speed limits. Nevertheless, Respondent's policy or approval or denial of such applications is not based solely on existing speed limits and the rule contemplates consideration of other factors, e.q., the type of project for which access is sought; the estimated number of vehicles which will use the project; possible access alternatives; and whether the project is located on an urban or rural road. The spacing table, based on existing speed limits and incorporated in the rule, is not a contradiction to other parts of the validly adopted rule's minimal spacing requirements. Further, utilization of that one criterion by Respondent's lay representative and his failure to remark on other criteria, in a less than artfully drawn denial letter, fails to demonstrate that the agency has decided to apply one criterion to the exclusion of others; at least to the extent of establishing that the new policy is being substituted, un-promulgated, for the existing criteria. The stated grounds for denial of the requested access does constitute an isolated incident which, in a proceeding pursuant to Section 120.57, Florida Statutes, could be challenged as a misapplication of criteria through failure to examine the application in the context of all the rule's criteria.
The Issue The issue in this case is whether Petitioner, Charles M. Childers, is entitled to an award of attorney's fees and costs from Respondent, the Department of Environmental Protection, pursuant to Section 57.111, Florida Statutes (1997).
Findings Of Fact Petitioner, Charles M. Childers, has been at all time material to this proceeding a commercial shrimp fisherman in the State of Florida. Mr. Childers has held, and continues to hold, a Saltwater Products License (hereinafter referred to as the "License") issued by the State of Florida. Respondent, the Department of Environmental Protection (hereinafter referred to as the "Department") is an agency of the State of Florida. The Department is charged with the responsibility for, among other things, the administration of Chapter 370, Florida Statutes. On or about September 27, 1995, Mr. Childers, was cited for alleged violations of Article X, Section 16(b)(2), Florida Constitution. In particular, Mr. Childers was charged with using shrimp trawl nets greater in size than 500 square feet in the nearshore and inshore waters (within three nautical miles of the shore) of the State of Florida. On February 9, 1996, following a non-jury trial, the County Court for Franklin County, Florida, determined that Mr. Childers was guilty of a second degree misdemeanor as a result of the activities that gave rise to the September 27, 1995, citation. Adjudication of guilt was withheld by the County Court. Mr. Childers was required to pay $125.00 in court costs. By letter dated July 5, 1996, the Department notified Mr. Childers that it intended to suspend his 1996/1997 License for a period of ninety days. The Department gave the following reason for its proposed action: This suspension is based upon your failure to comply with Saltwater Fisheries statutes for a conviction of a violation of Section 16, Article X of the State Constitution. Specifically, this concerns your September 27, 1995 arrest and subsequent conviction of using a gill net in Florida waters. The Department's decision to suspend Mr. Childers' License was predicated upon the following provision of Section 370.092(8)(b), Florida Statutes (1995), which provided: (b) In addition to being subject to any other penalties provided in this chapter, any violation of s. 16, Art. X of the State Constitution or any rules of the Marine Fisheries Commission which implement the gear prohibitions and restrictions specified therein shall be considered a major violation; and any person, firm, or corporation convicted of such violation shall be subject to the following additional penalties: 1. For a first major violation within a 7-year period, suspension of the saltwater products license for 90 days. [Emphasis added]. The Department informed Mr. Childers of his right to contest the proposed suspension of his License by requesting administrative proceedings pursuant to Section 120.57, Florida Statutes. On July 11, 1996, Mr. Childers requested an informal hearing to contest the Department's proposed action. Mr. Childers argued that the Department's proposed suspension of his License was inappropriate because he had not been "convicted" of any offense for which the Department could suspend his license. On or about August 8, 1996, the office of the Department's General Counsel issued a Memorandum discussing the issue of whether Mr. Childers had been "convicted" within the meaning of Section 370.092(8)(b), Florida, Statutes (1995). General Counsel's office opined that the Florida Legislature's use of the word "convicted" in Section 370.092(8)(b), Florida Statutes (1995), was intended to mean: any disposition by the court in a criminal proceeding, other than dismissal, acquittal, or entry of a finding of not guilty. "Conviction" includes a disposition based on a guilty or nolo contendere plea that incorporates adjudication withheld [sic] as part of the disposition or the charges. On August 23, 1996, an informal administrative hearing was held by the Department. At the informal hearing, Mr. Childers admitted that he had violated Article X, Section 16(b)(2), Florida Constitution. Mr. Childers argued, however, that no suspension of his license should be imposed because he had not been "convicted" of such violation. On September 30, 1996, a Notice of Final Order was entered by the Department rejecting Mr. Childers' argument that he had not been "convicted" of any offense as required by Section 370.092(8)(b), Florida Statutes (1995), and suspending his License for ninety days. In entering its Notice of Final Order, the Department gave the following rationale for rejecting Mr. Childers' assertion that he had not been "convicted" of any violation for which his License could be suspended under Section 370.092(8)(b), Florida Statutes (1995): C. The withholding of adjudication of guilt fails to alter the clear and unequivocal sanctions imposed by Section 370.092(8)(b), Florida Statutes. Any person, firm or corporation "convicted" of violation Article X, Section 16(b)(1), Florida Constitution, shall be (emphasis added) subjected to additional administrative and civil penalties listed in Section 370.092(8)9b), Florida Statutes. The intended meaning of the term "convicted" used by the Legislature in Section 370.092(8)(b), Florida Statutes, is clear. In the context of 370.092(8)(b), Florida Statutes, the word "convicted" was selected by the Legislature to indicate a judicial determination of sanctionable behavior, not necessarily the final resolution of any and all criminal proceedings. Mr. Childers appealed the Department's Notice of Final Order to the District Court of Appeal, First District (hereinafter referred to as the "First District Court"). On July 16, 1997, the First District Court entered an opinion reversing the Department's Notice of Final Order. Childers v. Department of Environmental Protection, 696 So. 2d 962 (Fla. 1st DCA 1997). The First District Court concluded that Mr. Childers had not been "convicted" within the "unambiguous meaning," of Section 370.092, Florida Statutes (1995). On October 9, 1997, pursuant to the Mandate of the First District Court, the Department entered an Order adopting the decision of the First District Court and dismissing its complaint letter against Mr. Childers. On October 30, 1997, Mr. Childers filed an Application for Attorney's Fees seeking an award pursuant to Section 57.111, Florida Statutes (1997). At the time Mr. Childers was cited for the violations of Article X, Section 16(b)(2), Florida Constitution, Section 370.092(8)(b), Florida Statutes, required a "conviction" for the Department to take action against a license. This provision, however, had been amended during the 1996 Legislative Session by substituting for the word "convicted" the phrase "receiving any judicial disposition other than acquittal or dismissal." Chapter 96-300, Laws of Florida 1996. This amendment to Section 370.092(8)(b), Florida Statutes, was not effective until January 1, 1997. The First District described the following pertinent history concerning the amendment to Section 370.092(8)(b), Florida Statutes: The Natural Resources Committee of the House of Representatives produced a Final Bill Analysis dated May 16, 1996. Under the heading "Substantive Analysis," it addressed the "Present Situation," reporting that, within months of the passage of the 1995 laws implementing the net ban, "F[lorida]M[arine]P[atrol] officers began to realize there were loopholes in the law." Fla. HR Comm. on Nat. Res., CS for HB817 (1996) Final Staff Analysis (May 16, 1996)(on file with comm.) at 3. One of the "loopholes" identified was that "DEP has encountered certain circuit court judges who, more often than not, have adjudicated without guilt [sic] alleged net-ban violators." Id. In the "Section-By-Section Analysis," the effect of the amendment proposed to section 370.092, Florida Statutes (1995) was described: "Imposes penalties on people . . . who have received any judicial disposition other than acquittal or dismissal, rather than only on those entities which have been convicted of violating the constitutional net ban." Id. At 6 (emphasis supplied). . . . Childers at 965-966. The foregoing legislative history and the amendment to Section 370.092(8)(b), Florida Statutes (1995), were available prior to the date that the Department first proposed to suspend Mr. Childers' License. The Department should have been aware of the foregoing legislative history at all times pertinent to this case. In support of its actions in this matter, the Department has asserted that it had a reasonable basis in fact to suspend Mr. Childers' License because: Mr. Childers admitted that he violated Article X, Section 16(b)(2), Florida Constitution; The disposition sheet from the County Court indicated that the "verdict" was "guilty"; The General Counsel's Office of the Department had opined that the Department's action was appropriate; and The action of the Legislature in amending Section 370.092, Florida Statutes, made the Legislature's intent clear that licenses be suspended even if adjudication is withheld. The Department has asserted that it had a reasonable basis in law to take the action it took with regard to Mr. Childers because: The term "convicted" was not defined by Section 370.l092(8)(b), Florida Statutes (1995), any other provision in Chapter 370, Florida Statutes (1995), or the constitutional amendment it was intended to implement; and Where definitions of "convicted" are provided, whether in other statutes, the Florida Rules of Criminal Procedure, or in Florida appellate court decisions, the definitions conflict. Therefore, the Department was justified in following one line of authority which supported its action.
The Issue The issue is whether Respondent should exclude four entries in quota drawings for alcohol beverage licenses (license quota drawings) pursuant to Subsection 561.19(2)(d), Florida Statutes (2007),1 and Florida Administrative Code Rules 61A-1.006(8) and 61A-5.0105(8).2
Findings Of Fact Respondent is the agency responsible for regulating alcoholic beverage licenses (beverage licenses) in the state. Each year, on or after October 1, 2000, Subsection 561.20(1) authorizes Respondent to issue an additional beverage license for each population increase of 7,500 persons in each county in the state. Applicants typically outnumber available beverage licenses. A beverage license that becomes available by reason of a population increase is a so-called "full liquor license." A full liquor license entitles the licensee to sell alcoholic beverages on the premises and as a package store. Full liquor licenses are highly valued in the industry. When applicants outnumber available beverage licenses, Subsection 561.19(2) authorizes Respondent to advertise the availability of a beverage license and to conduct a license quota drawing. The statute requires the drawing to be public and to be a "double random selection drawing." The statute requires that the "double random selection drawing" shall: llow each applicant whose application is complete and does not disclose on its face any matter rendering the applicant ineligible an equal opportunity of obtaining an available license. After all applications are filed with the director, the director shall then determine by random selection drawing the order in which each applicant's name shall be matched with a number selected by random drawing, and the number shall determine the order in which the applicant will be considered for a license. . . . § 561.19(2)(a). A license quota drawing determines only the order in which Respondent will consider applications for a beverage license. An applicant selected in the drawing does not automatically receive a beverage license. The qualifications of a selected applicant must be vetted in the same manner as any other applicant before the selected applicant can obtain a beverage license. In 2007, Respondent scheduled a license quota drawing for beverage licenses that became available by reason of population increases in Lake, Orange, and Polk Counties. The precise date of the drawing in each county is not clear in the record. On October 1, 2007, Mr. Sam C. Meiner, Esquire, filed separate entries for the quota license drawings in Lake, Orange, and Polk Counties. Respondent accepted Mr. Meiner's three entries. Petitioner, Latino Grande, Inc. (Latino), submitted an entry for the drawing in Orange County. Petitioner, Big Pig, Inc. (Big Pig), submitted separate applications for the drawings in Orange, Polk, and Lake Counties. By letter dated November 7, 2007, entitled "Notice of Disapproval," Respondent rejected the entry from Latino. The ground stated in the Notice of Disapproval is "[B]ecause you have filed more than one application" for Orange County. In three separate Notices of Disapproval, each of which is dated November 7, 2007, Respondent rejected the entries from Big Pig for the drawings in Lake, Orange, and Polk Counties. The ground stated in each Notice of Disapproval is "[B]ecause you have filed more than one application" in each county. Latino and Big Pig each filed a petition for an administrative hearing, pursuant to Subsection 120.57(1), to challenge each of the four Notices of Disapproval. Latino's request for hearing became DOAH Case No. 08-0495. Big Pig's request for hearing in the drawings for Orange, Polk, and Lake Counties became DOAH Case Nos. 08-0496, 08-0497, and 08-0498, respectively. Pursuant to the parties' joint request, DOAH consolidated the four cases into DOAH Case No. 08-0495. Latino and Big Pig are closely held Florida corporations. Mr. Meiner is the sole shareholder, director, and officer of each corporation.3 Subsection 561.19(2)(d) prohibits Respondent from considering "more than one application from any one person, firm, or corporation"4 in a drawing for one county. Chapter 561 does not define "more than one application from the same person, firm, or corporation" and does not define the term "person." Some insight into the meaning of the term "person" can be gleaned from Florida Administrative Code Rule 61A-1.006(8). The term "person" shall not mean a corporation that owns part or all of the stock of an applicant corporation or licensed corporation; however, it does include officers, directors, and shareholders of each shareholder corporation. The definition of a "person" in Rule 61A-1.006(8) does not reach the facts in this case. This case does not involve a shareholder corporation. Latino is not a shareholder of Big Pig, and Big Pig is not a shareholder of Latino. Nor does this case involve an officer, director, or shareholder in a shareholder corporation. Mr. Meiner is not an officer, director, or shareholder of a corporation that is a shareholder of either Latino or Big Pig.5 Latino, Big Pig, and Mr. Meiner are each a person within the meaning of Subsection 1.01(3). Latino and Big Pig are corporations, and Mr. Meiner is an individual. Latino, Big Pig, and Mr. Meiner comprise a "group or combination" that is a "person" defined in Subsection 1.01(3). Mr. Meiner owns all of the stock of each corporation, and the three persons form a "group" or "combination" that is statutorily defined as a "person" in Subsection 1.01(3). Respondent is statutorily prohibited from accepting more than one application from any one person. Respondent correctly accepted the application of Mr. Meiner and correctly rejected the applications of the other members of the "group" or "combination" defined as one "person" in Subsection 1.01(3). Apart from Subsection 1.01(3), Respondent correctly applied Florida Administrative Code Rule 61A-5.0105(8) to reject the applications from Latino and Big Pig. Florida Administrative Code Rule 61A-5.0105(8) provides: For the purposes of this section, "more than one applicant" shall mean that an applicant may have a direct or indirect interest in only one application in each county or city for which a license is available, but may file separate entry forms for licenses in different counties or cities for an opportunity to obtain an available license.[6] Neither Florida Administrative Code Rule 61A-5.0105 nor Chapter 561 defines the phrase "direct or indirect interest." Neither party explicated any reasons in the record that require agency expertise to define a "direct or indirect interest." The issue of whether Mr. Meiner's 100 percent stock ownership of Latino and Big Pig is a "direct or indirect interest" in the corporate applications is an issue of fact to be determined by the fact-finder. The fact-finder finds that complete ownership and control of an applicant corporation is a direct or indirect interest within the meaning of Respondent's adopted rule. Mr. Meiner has a "direct or indirect interest" in the application submitted by Latino for the license quota drawing in Orange County. Mr. Meiner owns all of the stock of the applicant corporation. Respondent correctly rejected the application of Latino, in which Mr. Meiner has a direct or indirect interest, as more than one application from Mr. Meiner. Mr. Meiner has a "direct or indirect interest" in the applications submitted by Big Pig for the license quota drawings in Lake, Polk, and Orange Counties. Mr. Meiner owns all of the stock of the applicant corporation. Respondent correctly rejected the applications of Big Pig, in which Mr. Meiner has a direct or indirect interest, as more than one application from Mr. Meiner. Latino and Big Pig assert two final arguments, each of which involves mixed issues of fact and law. During the hearing, counsel for Latino and Big Pig referred to the two arguments as rule challenges, but counsel did not file a separate rule-challenge petition pursuant to Subsection 120.56 (a 120.56 proceeding), and Respondent has not objected to the consideration of the rule challenges in this proceeding, which is conducted pursuant to Subsection 120.57(1) (a 120.57 proceeding).7 The complete arguments concerning the two rule challenges appear in pages 10 through 12 of the PRO filed by Latino and Big Pig. The first argument, in substance, challenges as an unadopted rule an agency statement in a printed provision on the back of each entry form from Latino and Big Pig. The substance of the second argument challenges an adopted rule in Florida Administrative Code Rule 61A-5.0105(8). The factual aspects of the two arguments are addressed in the remaining findings. The alleged unadopted rule is stated in a provision common to each entry form submitted by Latino and Big Pig. In relevant part, the provision states: The name of each individual entrant, corporate officer, directly interested person, etc. is required to be entered in Part B [labeled "List All Interested Persons"]. A person "interested" in the license or licensed business includes, but is not limited to, a person who agrees to do any of the following: enter into any financial arrangement through joint funds, investing funds, cosigning or guaranteeing a note or lease, or any action that creates funds for a transaction or the ability of the business to operate [hereinafter, "financial interest"]. This may include Spouse, Officer(s), Director(s), Stockholder(s), Chief Executive, Limited and General Partners(s), Corporation(s), or any other entity connected with the business . . . . It is undisputed that neither Mr. Meiner, Latino nor Big Pig has any financial interest in the other except Mr. Meiner's 100 percent stock ownership of each corporation.8 However, a "financial interest" is not the factual ground alleged in the Notices of Denial issued to Latino and Big Pig. Rather, the Notices of Denial state that the ground for denial is "[B]ecause you have filed more than one (1) application for the above referenced county." The pertinent provision common to the back of each entry form is not a stated ground for rejecting the entries of Latino and Big Pig, the challenge to that provision is not material to this proceeding, and the challenge is deemed to be moot because it does not affect the substantial interests of Latino and Big Pig in this proceeding. Latino and Big Pig challenge an adopted rule in Florida Administrative Code Rule 61A-5.0105(8) (the challenged rule). The substance of the challenge may be fairly summarized as alleging that legislative changes in 2000 deprive the challenged rule of any statutory authority and that the challenged rule conflicts with the terms of the current statute. Latino and Big Pig begin their collective argument with former Subsection 561.01(14), Florida Statutes (1981). That statute defined the terms "licensee," "applicant" or "person" to mean: [A]n individual, corporation, firm, partnership . . . or any such entity having a financial interest, directly or indirectly, in another such entity. (Emphasis supplied) Latino and Big Pig acknowledge that the decision in Peterson v. Department of Business Regulation, 451 So. 2d 983 (Fla. 1st DCA 1984), supports Respondent's proposed rejection of the applications of Latino and Big Pig. In relevant part, the court construed Subsections 561.19(2) and 561.01(14), Florida Statutes (1981), by reading the two statutes together and holding that it was improper to include in a drawing pool separate applications of persons who, directly or indirectly, are financially interested in other applications. Peterson, 451 So. 2d at 985. Latino and Big Pig argue that legislative authority for the challenged rule has been repealed. The adopted rule was last amended in 1998, and Subsection 561.01(14), Florida Statutes (2000), deleted any definition of the terms "applicant" or "person," deleted any reference to a "financial interest," and deleted any reference to a "direct or indirect interest." The statute now reads: "Licensee" means a legal or business entity, person, or persons that hold a license issued by the division and meet the qualifications set forth in s. 561.15. Petitioner's rule challenge is rejected for two factual reasons. First, the legislative changes in 2000 do not affect either the law implemented in the challenged rule or the specific authority for the challenged rule. Second, the facts at issue in Peterson are different from those at issue in this proceeding. The challenged rule implements Section 561.19 pursuant to the specific authority in Section 561.11. Although the decision in Peterson relied on Subsection 561.01(14), Florida Statutes (1981), to guide the court's interpretation of Subsection 561.19(2), the changes in Subsection 561.01(14), Florida Statutes (2000), affected neither the law implemented in the challenged rule nor the specific authority for the rule. Deletion of the definition of a "person" from Subsection 561.01(14) leaves only the general definition of a "person" in Subsection 1.01(3). Reliance in the challenged rule on a "direct or indirect interest" in an application is consistent with the statutory definition in Subsection 1.01(3) of a "person" to include a "group" or "combination." The decision in Peterson did not resolve the issue of whether a 100 percent shareholder and his wholly-owned corporation are the same person within the meaning of Subsection 561.19(2)(d). Rather, Peterson dealt with the factual issue of whether certain individuals, each of whom was clearly a person, had a financial interest in the applications of other individuals.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order excluding the entries of Latino and Big Pig and finding the adopted rule to be a valid exercise of delegated legislative authority. DONE AND ENTERED this 3rd day of July, 2008, in Tallahassee, Leon County, Florida. S DANIEL MANRY 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 3rd day of July, 2008.
The Issue Whether the Petitioner, Macia Poole, was subject to an unlawful employment practice by Respondent, Westminster Village of Pensacola, on account of her sex or due to retaliation for her opposition to an unlawful employment practice in violation of section 760.10, Florida Statutes.
Findings Of Fact On April 3, 2015, Petitioner’s Employment Complaint of Discrimination and Petition for Relief were transmitted to the Division of Administrative Hearings by the Florida Commission on Human Relations for a formal administrative hearing to be held in accordance with section 120.57, Florida Statutes. On April 10, 2015, a Notice of Hearing by Video Teleconference was entered which set the final hearing for June 1, 2015, at 9:00 a.m., Central Time, (10:00 a.m., Eastern Time), at video teleconference sites in Pensacola, at the Office of the Judges of Compensation Claims, Video Teleconferencing Room, 700 South Palafox Street, Suite 305, Pensacola, Florida, and in Tallahassee, at the Division of Administrative Hearings, the DeSoto Building, 1230 Apalachee Parkway, Tallahassee, Florida. On May 4, 2015, one Subpoena Duces Tecum and four Subpoenas Ad Testificandum were issued at the request of Petitioner. On May 14, 2015, Petitioner electronically filed her Notice of Appearance in this proceeding. On May 26, 2015, Petitioner filed a Request to Reschedule Video Hearing. The Request made no allegation of an inability to attend the hearing, only that her attendance would be an “inconvenience.” The Request was denied. The filing of the Request is convincing evidence that Petitioner knew that the final hearing was scheduled to be heard in accordance with the Notice of Hearing by Video Teleconference. On June 1, 2015, at the scheduled date, time, and place, the final hearing was convened. Mr. Moran, representing Respondent, Westminster Village of Pensacola, made his appearance. Petitioner did not appear. The final hearing was recessed for twenty minutes to allow Petitioner to appear. During the recess, the undersigned confirmed that the Division had not received any communication from Petitioner of exigent circumstances that may have interfered with her appearance at the final hearing. After twenty minutes had passed, the final hearing was re-convened. Petitioner was not in attendance. Respondent was prepared to proceed, and had its witnesses in attendance at the Pensacola video location. Mr. Moran confirmed that he had received no emails from Petitioner, that being their normal form of communication. At 9:25 a.m., Central Time, (10:25 a.m., Eastern Time), the final hearing was adjourned. There was no evidence presented at the final hearing in support of Petitioner’s Employment Complaint of Discrimination and Petition for Relief.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding that Respondent, Westminster Village of Pensacola, did not commit an unlawful employment practice as to Petitioner, Macia Poole, and dismissing the Petition for Relief filed in FCHR No. 2014-01235. DONE AND ENTERED this 3rd day of June, 2015, in Tallahassee, Leon County, Florida. S E. GARY EARLY 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 3rd day of June, 2015. COPIES FURNISHED: Tammy Scott Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 Brian J. Moran, Esquire Moran Kidd Lyons Johnson, P.A. 111 North Orange Avenue, Suite 900 Orlando, Florida 32801 (eServed) Macia Deanne Poole Apartment 176 6901A North 9th Avenue Pensacola, Florida 32504 (eServed) Christopher R. Parkinson, Esquire Moran, Kidd, Lyons, and Johnson, P.A. 111 North Orange Avenue Orlando, Florida 32801 (eServed) Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399
