Findings Of Fact Petitioner has been an employee of HRS for more than seven years. She has cerebral palsy and uses a motorized wheelchair. During her tenure with HRS, she worked initially as a CETA employee under the supervision of Timothy Myers. She was a Social Work Assistant in a para-professional position requiring minimal paperwork. She did very well and had no problems with her supervisor or cc-workers. She received a promotion to the position of AFDC worker under the supervision of Ann Hauckes in October, 1979, and worked in the HRS Suncoast office in St. Petersburg for approximately six months. During that six-month period, she had problems completing the "on-call" and workload responsibilities of an AFDC worker and was placed on conditional status. Due to her unhappiness with her supervisor and her conditional evaluation, she was transferred from the HRS Suncoast office in St. Petersburg to Pinellas Park under the supervision of Theresa Ruppel. Ruppel supervised Petitioner from March, 1980 to January, 1982. Ruppel was instructed by her superiors to give Petitioner a limited caseload so that Petitioner could perform her job duties as an AFDC counselor, and Petitioner was given a specialized caseload of AFDC foster care cases which required limited client contact and the use of small, lightweight files. Petitioner continues to be assigned a minimal workload of substantially less than other AFDC workers. She is evaluated just within her special work assignment and not within the responsibilities of an AFDC worker. When Petitioner first came to Ruppel's unit, she brought with her unfinished "on-call" work which Ruppel had to transcribe for her. During Petitioner's tenure under Ruppel, she served only as a backup "on-call" worker. Ruppel found Petitioner to be a very difficult employee to supervise. Petitioner had emotional outbursts as a worker in Ruppel's unit but received no disciplinary action, even when on one occasion she left the work site after having an emotional outburst and refused to advise the supervisor as to why she was leaving or when she would return to work. After Ruppel transferred out of the Pinellas Park Service Center, Susan Gilbert became Petitioner's supervisor from January, 1982, until January, 1984. The initial working relationship was good. Gilbert rearranged her office so Petitioner's wheelchair moved easily within it. Gilbert assisted Petitioner by updating Petitioner's policy manual, by making an easy reference chart for Petitioner so that every time Petitioner needed something, she did not have to pull out the HRS manual and read it but could just refer to the chart. Gilbert even assisted Petitioner with a case in which the written narrative had been accomplished by Petitioner, by taking the computer document apart, stapling it, and organizing it so it could be put in the filing cabinet. Gilbert also assisted Petitioner in preparing for the recertification test that all AFDC counselors must take. Gilbert made up some exercises to help Petitioner take the test. She allowed Petitioner 8 hours in which to take the 4 hour test. When Petitioner failed the test, Gilbert gave her 12 hours in which to take it again. The relationship between Gilbert and Petitioner deteriorated when, in March or April of 1982, Petitioner invited Gilbert, her supervisor, to take two days of annual leave and a weekend to accompany Petitioner to a Miss Wheelchair pageant, an invitation which Gilbert declined because she did not want to have a personal relationship with any person she supervised. The relationship then deteriorated, with Petitioner calling Gilbert a snob for refusing to go to the Miss Wheelchair pageant and accusing Gilbert of not liking her due to her handicap. Thereafter, there were emotional outbursts by Petitioner over minor matters. Petitioner served as a backup "on-call" person under Gilbert until December of 1982, when she was removed because she had complained about the amount of paperwork and she did not want to be "on-call" on Fridays. Petitioner was put back on "on-call" duty in June, 1983, due to Petitioner's complaints, and she worked "on-call" with her friend Frances Whittle who was willing to help Petitioner with those duties until Petitioner was moved out of Gilbert's AFDC Unit in January, 1984. Between January, 1983, and December 5, 1983, Petitioner would not accept authority or supervision from Gilbert. Petitioner questioned every decision Gilbert made. She would leave Gilbert's office upset and come back in a matter of minutes, arguing with her supervisor. The problem in the working relationship between Petitioner and Gilbert resulted in high-level District Administration meetings to determine how to resolve the problem. Initially, in early 1983, the high-level District officials met to determine how they could resolve the conflict, and the Deputy District Administrator suggested transferring Petitioner to the Clearwater AFDC Unit under a new supervisor. Petitioner opposed being moved to the Clearwater office, and so the Department did not move her from Pinellas Park to Clearwater. Both Gilbert and Petitioner agreed to try to resolve any problems on their own. As 1983 went on, the work relationship again deteriorated which again resulted in the District Administrator, Deputy District Administrator, Personnel Officer, Gilbert, Petitioner and the Human Services Program Administrator meeting to see if they could resolve the deteriorated relationship. There was a meeting on December 5, 1983, with those persons and another meeting on December 12, 1983. On December 5, 1983, four options were presented to Petitioner: (1), transferring Gilbert to another unit if HRS could find another supervisor willing to trade positions with her; (2), transferring Petitioner to a position in St. Petersburg under a different AFDC supervisor; (3), allowing Petitioner to work at home and equipping her office at home with all the rehabilitation equipment necessary to do her work, under which option she would only have to be involved with Gilbert once a week to have her work reviewed; and (4) having Petitioner stay at the Pinellas Park office but transferring her supervision away from Gilbert, with Petitioner being supervised long distance by Karen Raym Girard who would then drive, initially from Suncoast in St. Petersburg and, when the Wildwood Service Center opened, from the Wildwood office in St. Petersburg once a week or as often as was needed by Petitioner. Option 4 was the option chosen by Petitioner at the December 12 meeting. 2O. The effective date for the transfer of supervision from Gilbert to Karen Raym Girard was to be effective January 3, 1984. Subsequent to December 12, 1983, but before January 3, 1984, Petitioner changed her mind and did not want option 4. Petitioner requested a third meeting with the District Administrator after she had changed her mind about the option she had selected. The District Administrator declined a third meeting and told Petitioner that she could institute an internal grievance if that is what she wanted to do. When the District Administrator did not have yet another meeting, Petitioner filed an internal HRS grievance. Before the grievance committee met, the transfer of supervision did take place on January 3, 1984. During the period January 3, 1984 until February 10, 1984, Petitioner decided she was being segregated because she was working in the Pinellas Park office but was being supervised by Girard who was located in the Suncoast office in St. Petersburg. Petitioner's feelings of segregation were based upon the fact that she was taken off "on-call" duties in Gilbert's office because she was no longer a member of that unit; her name was removed from Gilbert's bulletin board showing the names of the persons in Gilbert's unit; and there was a sign placed on a vacant office in the building reserving it for Girard to use when her supervision of Petitioner required. While Petitioner was under the supervision of Girard from January 3, 1984, until February 10, 1984, Girard had weekly conferences with Petitioner where Girard would come from St. Petersburg to Pinellas Park to the office assigned to her in the Pinellas Park Service Center. Petitioner told Girard that she wanted Gilbert to be a personal friend with her and associate with her after working hours, and that she felt that Gilbert did not like her because Gilbert did not pursue being a personal friend of hers. During the time that Girard supervised Petitioner, she found Petitioner very difficult to supervise. Petitioner would lose her temper, raise her voice, or lose emotional control. The main issue Petitioner always wanted to discuss with Girard was that she wanted Gilbert to be friends with her. Petitioner did not want to discuss work-related issues with Girard. From February 10, 1984 until August 31, 1984, Petitioner was on extended leave -- annual leave, sick leave, and leave without pay. She never physically transferred to Wildwood in St. Petersburg, although her office furniture was moved there while she was on leave. The HRS internal grievance committee consisted of one member of Petitioner's choosing, one of HRS' choosing, and one agreed upon by both HRS and Petitioner. The internal grievance committee found: that an irreconcilable personality conflict existed between Gilbert and Petitioner; that the conflict was based on Petitioner's desire for a relationship that was personal as well as professional and Gilbert's inability to provide that relationship; that Petitioner did not have any problems with performing her job duties and was rated above satisfactory (it did not mention that Petitioner was only evaluated against her own performance) that considerable efforts were made to try to improve and clarify the relationship between Gilbert and Petitioner; that those efforts were not successful and the situation deteriorated rather than improved; that four options or solutions were discussed with Petitioner; that Petitioner participated in the selection of the option to remain in Pinellas Park but transfer her supervision, and that she agreed to that option; that subsequently she experienced a feeling of segregation and decided that the option was not in her best interest; that due to her physical location and supervision, she was segregated from her unit; that the committee was unable to substantiate any instance of discrimination due to Petitioner's handicap on the part of management; that she had been afforded special accommodations due to her handicap not normally given employees; that Petitioner's proposed solution was to return to her previous unit for a 90-day trial period during which all parties should work to improve the relationship. On February 9, 1984, the internal grievance committee recommended that: Both Petitioner and Gilbert be referred to EAP, Petitioner for counseling and more realistic expectations in dealing with management/employee relationships and Gilbert for sensitivity training in dealing with employees with special needs. Petitioner be physically transferred to Girard's unit when the HRS move to the Wildwood Service Center was made for the following reasons: Petitioner was experiencing segregation which could only be alleviated by physically locating her with the unit of which she was a member. The personality conflict between Gilbert and Petitioner could not be solved. The situation was detrimental to Petitioner's emotional and physical well being. By waiting to relocate Petitioner at the time of the HRS move to Wildwood, she would not be singled out as being moved because of a problem. Moving her when others were also being moved would afford her the opportunity to naturally interrelate with staff experiencing the same action. It was hoped that would facilitate her adjustment to her new service center. The Wildwood facility could easily be made accessible for her and a room could be adapted to her needs. Wildwood is on the Interstate and, therefore could be reached from Petitioner's home within a reasonable time frame. In the future, District Management should make every effort to afford Petitioner treatment consistent with treatment afforded all other employees. Special considerations given in the past had exceeded reasonable accommodation and had led Petitioner to have unrealistic expectations and difficulty in adjusting to the normal work setting. The many special considerations had not been to her benefit and, in fact, had been a disservice to her. On February 23, 1984, Petitioner's position was transferred from Pinellas Park to St. Petersburg. The District Administrator accepted the recommendation of the internal grievance committee and agreed to transfer Petitioner from Pinellas Park to Wildwood in St. Petersburg when Wildwood opened in the spring of 1984. The District Administrator was satisfied that Petitioner could drive from Pinellas Park to St. Petersburg where she had previously worked. Petitioner was very unhappy with the HRS internal grievance committee recommendation because she did not want to be transferred from Pinellas Park to St. Petersburg where she had formerly worked. Her preference at that Point was that the District place her back under the supervision of Gilbert and that they attempt to work out any relationship problems. When Gilbert transferred away from her supervisory position in Pinellas Park to a counseling position in the Central Licensing Unit in June, 1984, HRS offered Petitioner the opportunity of coming back to Pinellas Park with a new supervisor, Lawrence R. Raym. Raym supervised Petitioner from July 1, 1984, until February, 1985. During that time, Petitioner's temper tantrums continued. It was estimated that her caseload only took from 2 to 7 days to accomplish each month. Susan McPhee supervised Petitioner from March of 1985 until September of 1986 and also had problems with Petitioner's general acceptance of supervisory authority. During McPhee's supervision of her there were times when Petitioner would not like what McPhee told her and would abruptly terminate the conference by simply wheeling out of the room in anger. Martin Ademy became Petitioner's supervisor in October of 1986 when this case was initially scheduled for final hearing. Ademy has not had any difficulty in supervising her. Ademy estimates that it should take her between 10 to 12 days a month to do the work assigned to her. Any work she does not complete is assigned to another AFDC counselor. Ademy does not have Petitioner do "on-call" work because, in his opinion, she cannot handle those duties. Although Petitioner has applied for some unidentified promotions which she has not received, there is no evidence that Petitioner is able to perform the duties of those unidentified positions with reasonable accommodations being afforded her. Additionally, some of those positions were at locations to which Petitioner had refused to be transferred. Respondent has not discriminated against Petitioner based upon her handicap and has not retaliated against her in any way. HRS has provided Petitioner with much more than reasonable accommodation. To the extent that HRS has treated Petitioner differently than other employees, it has been through pampering rather than discrimination or retaliation. Petitioner has not suffered any physical or emotional illness as a result of any conduct on the part of Respondent. Although Petitioner testified that her absence from work from February until August, 1984, was due to illness brought on by Respondent's discrimination and retaliation, her testimony is simply untrue. Petitioner became ill while she was on annual leave. The minimal medical attention she received was for long- standing medical problems. Although Petitioner had provided HRS with reports from her doctor indicating her medical problems were work-related, those opinions were not those of her doctor. Rather, those reports were "doctored" by Petitioner herself before she gave them to HRS.
Recommendation Based upon the foregoing Findings of Fact and conclusions of Law, it is, therefore RECOMMENDED that a Final Order be entered finding that Respondent has not discriminated or retaliated against Petitioner and dismissing Petitioner's Petition for Relief from an Unlawful Employment Practice. DONE and RECOMMENDED this 9th day of July, 1987, in Tallahassee, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of July, 1987. COPIES FURNISHED: Beverly L. Lassor 6333 81st Avenue North Pinellas Park, Florida 34665 Barbara Ann Dell McPherson, Esquire Department of Health and Rehabilitative Services 2255 East Bay Drive Clearwater, Florida 33546 Donald A. Griffin, Executive Director Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925 Dana Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925
The Issue The issue is whether Respondent is guilty of discriminating against Petitioner in employment based on his age, in violation of Section 760.10(1)(a), Florida Statutes.
Findings Of Fact Petitioner was born on September 13, 1955. He was initially employed by Respondent in 1996. He remained employed with Respondent until he was terminated in late November 2000. At the time of his termination, Petitioner served as the Assistant Director of Parks. His immediate supervisor was Julio Martinez, who was the Director of Parks. On July 18, 2000, Yioset de la Cruz was elected Mayor of Respondent. Mayor de la Cruz had been employed by Respondent during the administrations of Mayors Oliveros, Fatima, and Morejon. However, Mayor Morejon terminated the employment of Mr. de la Cruz, as well as several other employees who had served under Mayor Fatima. Running on the promise to clean up the city, Mr. de la Cruz won 57 percent of the vote and defeated then-Mayor Morejon. When he assumed office, Mayor de la Cruz had to address several pressing financial issues, including a projected deficit of $540,000 for the fiscal year and the cancellation of Respondent's insurance by The Florida League of Cities. At the same time, the people of Hialeah Gardens had become dissatisfied with the maintenance and operation of their city parks, which are the most visible reflection of the quality of their city government. Appointing Arturo Ruiz to oversee the parks and their maintenance and operation, Mayor de la Cruz nonetheless remained directly involved in parks administration by imposing new discipline upon parks workers to ensure public satisfaction with the maintenance and operation of city parks. Shortly after disciplining Petitioner for improper use of his city telephone, Mayor de la Cruz visited Respondent's office, which was located in one of the major city parks, to assure that city park employees had completed their preparations for the long holiday weekend of Thanksgiving 2000. Unable to find Petitioner at his office, Mayor de la Cruz asked to see Petitioner's time card and found that he had not punched out for the day. After driving through nearby parks in search of Petitioner, Mayor de la Cruz returned to the office, where the secretary belatedly informed him that Petitioner had called in to say that he had fallen ill and asked that another employee punch him out for the day. After Mayor de la Cruz and the secretary finished speaking, Mayor de la Cruz spoke with Petitioner by telephone. When Mayor de la Cruz attempted to discuss the matter with Petitioner, Petitioner became disrespectful and insubordinate. Petitioner began screaming and swearing at the Mayor, who responded by promptly firing Petitioner. The evidence in this case is clear that Mayor de la Cruz fired Petitioner due to his insubordination, not due to his age.
Recommendation It is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Petitioner's Request for Administrative Hearing. DONE AND ENTERED this 7th day of February, 2002, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 7th day of February, 2002. COPIES FURNISHED: Gary A. Costales Law Office of Gary A. Costales, P.A. 2151 LeJeune Road, Suite 200 Coral Gables, Florida 33134 J. Frost Walker, III, Esquire Law Office of J. Frost Walker, III 100 West Sunrise Avenue Coral Gables, Florida 33133 Derick Daniel, Executive Director Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Cecil Howard, General Counsel Florida Commission on Human Relation 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Violet D. Crawford, Agency Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue At issue in this proceeding is whether the Department of Environmental Protection (Department), Division of Recreation and Parks' (Division) existing Rule 62D-2.014(18), Florida Administrative Code (Rule), is an invalid exercise of delegated legislative authority. Specifically, the issues are whether the Division has exceeded its grant of rulemaking authority and whether the Rule is vague, fails to establish standards for Division decisions, and vests unbridled discretion in the Division.
Findings Of Fact Frandsen Frandsen is a citizen of the state of Florida who is interested in free speech activities in state parks that advance the cause of naturist activities, including recreation. Frandsen is a physicist and works for the United States Air Force, essentially as a defense scientist. Frandsen's original challenge in this proceeding was directed, in part, to the Division's application of the Rule and the validity of agency statements as rules and as applied to him. Frandsen has deleted these from his challenge. This Final Order does not decide whether the Division has properly applied the Rule to Frandsen nor whether any agency statements are invalid, nor whether the Rule is constitutionally infirm either on its face or as applied. Frandsen's cause, with respect to the state park system, is to see limited, designated areas within state parks open to "clothing optional recreation, particularly beachfront recreation, where someone can sunbathe," "socialize," and "swim nude in the ocean and on the beaches as the human race has for eternity." Frandsen is aware of the anti-nudity rule, Rule 62D- 2.014(7)(b), but is challenging the right to be able to advocate changing the rule which prohibits nudity. For Frandsen, "[t]he issue [here] is [his] ability to exercise free speech to communicate with the public to advocate for [his] cause," in a state park. Conversely, "[t]his action does not deal with the issue of whether [Frandsen has] a constitutional right to incorporate nudity into a communication." His main concern is the absence of standards in Rule 62D-2.014(18) to channel the Division's exercise of discretion relating to time, place, and manner restrictions placed on free speech activities and also the threat of arrest if the restrictions are not complied with. The Department stipulated that Frandsen has standing to challenge Rule 62D-2.014(18) as an invalid exercise of delegated legislative authority. Department and Division The Department is an agency of the state of Florida, which manages and operates state parks under its jurisdiction, pursuant to Chapter 258, Part I, Florida Statutes, through its Division of Recreation and Parks. The Division has the duty "to supervise, administer, regulate, and control the operation of all public parks " Section 258.004(1), Florida Statutes. Additionally, the Division "shall preserve, manage, regulate, and protect all parks and recreational areas held by the state . . .." Section 258.004(2), Florida Statutes. It is the policy of the Division "[t]o promote the state park system for the use, enjoyment, and benefit of the people of Florida and visitors . . . administer the development, use and maintenance of these lands and render such public service in so doing, in such a manner as to enable the people of Florida and visitors to enjoy these values without depleting them . . .." Section 258.037, Florida Statutes. "The division has authority to adopt rules pursuant to ss. 120.536(1) and 120.54 to implement provisions of law conferring duties on it, and the violation of any rule authorized by this section shall be a misdemeanor and punishable accordingly." Section 258.007(2), Florida Statutes. State Parks The Division manages 155 state parks, which comprise over a half a million acres. The term "state parks" is generic and includes historic sites, beach areas, river parks, parks with swimming pools, geological sites, archeological sites, and recreation areas. The parks are very diverse and offer different opportunities for visitors. The parks can range in size from just a few acres to over 25,000 acres. Florida's state park system is the fourth largest in the nation. Over 16 million people visited the parks last year, which was an increase of 13 1/2 percent from the previous year. The state park system is divided into five districts, each of which includes 20 to 30 parks. The Division employs over 1,000 full-time employees and approximately 300 to 500 part-time, OPS help. Each district is under the supervision of a district bureau chief who is responsible for that district's employees, visitors, volunteers, and parks. Individual parks or groups of parks are under the direct supervision of a park manager. Honeymoon Island State Park, which is located on the west coast of Florida in Pinellas County, is one of six main parks all managed by the same park manager. It is part of a GEO (Geographically Efficient Operation) park, which includes 15 properties, both submerged lands and uplands, and extends through 3 counties. Not every park is staffed with Division personnel at all times. For example, District 4 has approximately 25 parks with 17 park managers. In parks which are not staffed, the telephone numbers of the park manager and assistant manager are posted within the park at various locations including near the restrooms, pay phones, concessions, or camp grounds. Various activities are enjoyed in state parks including: swimming, camping, hiking, boating, biking, horseback riding, wildlife viewing, snorkeling, guided tours, and picnicking. Each park offers a different number and combination of these activities. The Division's primary mission is to enable the public to enjoy outdoor-based resource recreation. Through its rules, the Division regulates many activities in state parks to ensure the safety of visitors and to protect park resources, including the speed of vehicles, parking, boating, fishing, the consumption of alcoholic beverages, bathing and swimming, domestic animals, hunting, merchandising, aircraft, and commercial photography. See Rule 62D-2.014(4), (6), (7), (8), (9), (10), (12), (13), (14), (15), and (17), Florida Administrative Code. The Rule Rule 62D-2.014(18), Florida Administrative Code, provides: Free Speech Activities. Free speech activities include, but are not limited to, public speaking, performances, distribution of printed material, displays, and signs. Free speech activities do not include activities for commercial purposes. Any persons engaging in such activities can determine what restrictions as to time, place, and manner may apply, in any particular situation, by contacting the park manager. Free speech activities shall not create a safety hazard or interfere with any other park visitor's enjoyment of the park's natural or cultural experience. The park manager will determine the suitability of place and manner based on park visitor use patterns and other visitor activities occurring at the time of the free speech activity. Rule 62D-2.014 pertains to "activities and recreation." Section 258.007(2), Florida Statutes, is cited as the specific authority for Rule 62D-2.014, including Subsection (18). Rule 62D-2.014, including Subsection (18), implements Sections 258.004, 258.007(1)-(3), 258.014, 258.016, 258.017, and 258.037, Florida Statutes. The Rule was adopted in 1996 to inform the public that free speech activities are welcome in state parks. It sets broad guidelines and standards for park managers to ensure that the public's First Amendment rights are respected and not infringed. The Division felt the need for a rule "to put park staff on notice that [First Amendment activity] is okay and it is allowable and it is acceptable." No permits have been issued for free speech activities since the mid-1990's as a result of a federal court order. See The Naturist Society, Inc. v. Fillyaw, 858 F. Supp. 1559 (S.D. 1994). The Rule was not intended to be all encompassing because of the diversity of the parks. Most activities in the parks include some form of free speech activity. The term "include, but are not limited to" means anything that is covered by the First Amendment, whether it be oral, written, or symbolic conduct. The Rule applies to even a single individual wishing to engage in free speech activities as defined by the Rule, including, but not limited to the activity of "displays" and "signs." The Rule states that free speech activities shall not interfere with any other park visitor's enjoyment of the park's natural or cultural experience. This means that people are free to conduct any activity they choose so long as the manner in which they do it does not infringe on other park visitors' purpose for coming to the park. For example, if an area of a particular park were known for bird watching, it would be inappropriate for someone to walk through that area playing loud music or shouting. The Rule contemplates that the Division will be diligent in protecting visitor enjoyment and safety. The Rule states that free speech activities shall not create a "safety hazard." Safety hazards vary depending on the activity, area, and park involved. They can range from the dangers inherent to a large assembly of people, which would be the same in any park, to the dangers of holding a particular activity in a specific area of a specific park. The types of safety hazards a manager must consider will vary significantly with the type of activity and the park in which it takes place. Park managers also consider "visitor use patterns" when determining the suitability of the time, place, and manner of a particular activity. Visitor use patterns are the different activities, which typically occur in a particular park. They vary by time of the day and the season and are therefore different day-by-day and park-by-park. For example, a visitor may tour the Gamble Plantation as a historic site, but not swim. At Honeymoon Park, people use the beach and swim. Moreover, during the summer, the use patterns at Wakulla Springs State Park for swimming are heavy, whereas the pattern for swimming decreases rapidly during the winter. Different safety concerns arise given the nature and use(s) of each park. A person or group wishing to engage in free speech activities are not always able to access a park manager to determine applicable time, place, and manner restrictions because the park manager may not be on duty during all hours and days when the park is open. The Division does not decide in advance and publicly post or otherwise publicly provide generic time, place, and manner restrictions. Beyond the Rule, there are no written documents, handbooks, guidelines, and policies of general application to provide guidance to the Division park managers to determine what time, place, and manner restrictions may be applied. Each determination of time, place, and manner restrictions by the Division, including the resources, which may be needed to be expended to accommodate a free speech activity, is made on a case-by-case basis based upon the criteria in the Rule. Because of the number of parks, their diversity, staffing issues, and the varying attendance on particular days or in particular seasons, it would be impracticable to develop a set of standard time, place, and manner restrictions for every possible activity, which may occur in every park. The Rule contemplates that a park manager may consult with other personnel with the Department and the Division regarding the application of the Rule. Park managers have consulted with legal counsel prior to responding to a request or, in some cases, request legal counsel to respond directly to the requesting person. This procedure is the norm regarding requests for "clothing optional demonstration[s]." The Department's "Office of General Counsel is consulted on all nudity issues that may involve free speech to ensure compliance with all current laws" and responses are given on a case-by-case basis in light of counsel's interpretation of the Rule, reached in conjunction with First Amendment case law. The Rule does not require contact with a park manager prior to engaging in a free speech activity. The Rule contemplates that the public may contact a park manager to ensure that a planned activity will not create a safety hazard or conflict with other planned activities. For example, weddings are welcomed in the state parks, although prior notification is not required. But, notification can be helpful to the park manager to determine the number of people involved and the time of day to ensure, for example, that parking is available. Although the Rule does not state a time in which park managers must respond to a request for any applicable time, place, and manner restrictions, the Rule contemplates that these decisions will be made within a reasonable time. The Division expects their park managers to respond in an expeditious manner. The Division's typical practice is to respond within a 2 or 3 week period. There have been exceptions to this expectation. The level of complexity of the inquiry may lengthen the time to respond. Generally, any person dissatisfied with a response from the park manager may contact various levels of responsibility throughout the Division and Department. This process is not referred to as "an official administrative appeal." Nevertheless, any decision regarding an interpretation of a park rule or a response to an inquiry results in the formulation of agency action. Any person substantially affected by the agency action should be given a point of entry to challenge the agency action pursuant to and consistent with the procedural requirements of the APA. See Department's Proposed Final Order, page 10, paragraph 46.
Findings Of Fact At all times pertinent to the issues involved herein, Petitioner, Gaylord L. Kinsey, was employed by the State of Florida, Department of Natural Resources, as a laborer at HRSP. Respondent, Department, is an employer within the meaning of the Human Rights Act. Petitioner's Complaint and subsequent Petition for Formal Hearing, are timely and the Division of Administrative Hearings, as well as the Commission, has jurisdiction over the matter at issue. Mr. Kinsey came to work with the Department as a laborer at HRSP on March 1, 1985. At that time, he was furnished with a copy of the Department's Employee Handbook which outlines all pertinent personnel rules regarding leave, time off, absenteeism, grievances, and other matters incident to the routine terms of employment. He was hired as a result of the application he filed in response to a Departmental vacancy announcement. On July 7, 1986, Petitioner was orally reprimanded by his supervisor, Stephen A. Yoczik, then Assistant Park Manager, for being absent without leave on July 6, 1986. At that time he was warned that any further failure to comply with the provisions of the Department's directive on absenteeism might result in further disciplinary action. The oral reprimand was confirmed in an interoffice memorandum dated July 12, 1986, a copy of which was placed in the Petitioner's master personnel file. On February 5, 1987, Mr. Kinsey was given an official written reprimand for loafing, defined as continued and deliberate idleness during work hours which results in the employee's failure to perform assigned tasks. Background information provided to the Petitioner at that time indicated that he was observed to be wasting time in idle talk with two other employees at the shop area for a 25 minute period past his lunch hour. Petitioner was advised again in writing that his lunch hour was to be taken between noon and 1 PM unless he received permission from a supervisor to do otherwise. This follows on the heels of another official reprimand which was imposed on Petitioner on January 16, 1987 for loafing the prior day when, at 7:30 PM he was observed watching television at the shop and not being out performing his job duties. Petitioner contends that while he may have taken his lunch hour at the inappropriate time, this was a practice approved by management which permitted employees to finish particular tasks in which they were engaged at the lunch hour and to eat thereafter. Petitioner also contends that in many cases, especially during the period of short days, he would prefer to get his work done early before it got dark by working straight through the duty day and taking his lunch hour at the end of the day. Regardless of how well intentioned or well reasoned Petitioner's approach may be, it is, nonetheless, inconsistent with and in violation of the directives he received which were applicable not only to him, but to other employees as well. Consequently, the reprimands for loafing, as identified, are neither in error nor inappropriate. Petitioner was interviewed by his supervisors about his disciplinary problems on both February 5 and 6, 1987 during which time he became extremely excited and angry and, on one occasion, broke a chair when he got up precipitously. Because of this demonstrated instability and hostility, he was, on February 19, 1987, directed by Mr. Johnson, the District Manager, to use accrued leave with pay during the period February 21 through March 10, 1987. Also on February 19, 1987, Mr. Johnson notified Petitioner by letter of the Department's intent to suspend him without pay for a period of three working days, (March 11 - 13, 1987), for the two incidents of belligerence and one unauthorized absence which took place on February 7 and 8, 1987. Petitioner responds to these allegations by contending at the hearing that he in no way threatened the supervisors either physically or verbally and was merely responding to the stress situation in which he found himself. The unauthorized absence took place when Petitioner experienced automobile difficulties and was unable to get to work on time. When he called in, he was advised it was necessary for him to talk to his supervisor about the problem. This was consistent with the long-standing Department procedure regarding requesting time off. Approximately one-half hour later, Petitioner again called the park office looking for his supervisor and was again advised to get in touch with his supervisor because the park manager, Mr. Smith, just the previous week, had stressed that coordination with a supervisor prior to absence was mandatory. Petitioner indicated he was at a pay phone calling long distance and, according to Ms. Garrison, to whom he spoke, asserted his opinion that the manager's policy was stupid and he did not agree with it. Approximately 45 minutes later, Mr. Smith came in to the park office and Ms. Garrison advised him of Petitioner's calls and auto troubles. At that point, Mr. Smith attempted to call Petitioner back but could not get him. The procedure for requesting leave is contained in a Department interoffice memorandum dated July 21, 1986 and was stressed at various personnel meetings which were attended by the Petitioner. Personnel were notified that either the park manager or his assistant were the only ones who could authorize leave. Memos memorializing the subjects covered at the meetings specifically emphasize that employees are not to call the office to leave work but to call the approval authorities at home if need be. It would appear, therefore, that while Petitioner's basis for his absence may well have been valid, he failed to conform to the publicized requirements regarding the method of obtaining the leave he needed and, therefore, the disciplinary action, the last in a series, was appropriate. During this period, officials became concerned over what appeared to be Petitioner's abnormal behavior. On one occasion, he threatened to put poison in his lunch sandwiches in an effort to punish those individuals responsible for stealing his lunch out of the refrigerator in the camp's work area. Petitioner alleges, and it is accepted, that on several occasions, his lunch was stolen. His response, however, was excessive and though he well may not have intended to follow through on his threat, the fact that it was made was inappropriate. In addition, on at least one occasion, while commenting about a series of news articles concerning a gunman who had shot and killed several people in a fast food restaurant, Petitioner stated that he had a gun and that, "While Gaylord Kinsey, the preacher, would not hurt anyone, Gaylord Kinsey, the man, might shoot someone" but that his friends would be safe. Mr. Kinsey denies having threatened to shoot anyone but admits having indicated he had a gun. This incident took place about the time Mr. Kinsey was having domestic difficulties involving suspected infidelity on the part of his wife and that stress, coupled with the disciplinary difficulties in which he found himself, created a pressure situation he was incapable of handling. When Mr. Kinsey was approached by park officials concerning the weapon, he permitted a search of his vehicle. No weapon was found. He voluntarily agreed to accompany a sheriff's deputy to the local crisis intervention center but declined to voluntarily admit himself and turned up at the Assistant Park Manager's house that evening. At that time, he advised the Assistant Manager he did not have a weapon and at no time, it might be added, did Mr. Kinsey either directly or indirectly threaten any park employee. His comments now appear to be no more than attempts to frighten his associates and there is no indication he would have committed any violence against any employee or park patron. In any event, park authorities requested he be evaluated by a psychiatrist at Department expense to which he agreed. The doctor concluded that though Petitioner is overly sensitive and appears to react to adversity in an hysterical fashion, he does not appear to have any abnormal thought processes and his judgement is not impaired. He suffers from a poor self concept and reacts to rejection in a violent fashion. He appears to have poor impulse control when under stress. The doctor concluded that Petitioner should continue to seek ongoing psychiatric help. An additional psychiatric evaluation rendered on Petitioner several months later by another psychiatrist was totally consistent with the former diagnosis. The second doctor indicated there was no suicidal or homicidal ideation but that Petitioner had a low ability to handle stress, rules, and regulations. After considering all the above information, Mr. Smith, the Park Manager, communicated with the District Manager, Mr. Johnson, regarding his concerns about Mr. Kinsey's stability and his further concerns for the safety of park employees and patrons. Mr. Johnson in turn communicated with Park Service officials in Tallahassee and a collective decision was made to reassign Mr. Kinsey from HRSP to another Park Service facility several miles away. Notwithstanding Petitioner's allegations, there is no evidence this action was taken in an attempt to discipline or in any way punish him. To the contrary, a thorough evaluation of all the communication relating to this decision, which appears in the Petitioner's personnel filed, clearly indicates that the action was taken in a sincere effort to rehabilitate Petitioner's situation and give him an opportunity for a fresh start at another installation where he was not known and from which his problems were somewhat removed. Recognizing, however, that Petitioner would most likely misconstrue the departmental actions and feeling that the best way to handle the situation would be to immediately remove the Petitioner from the park pending resolution, and in light of the fact that Petitioner had at that point failed to provide his supervisor with documentation confirming his continuing psychiatric care, Mr. Johnson, on February 19, 1987, placed Petitioner on the aforementioned administrative leave which required him to use accrued paid leave for a period of 18 days. Petitioner acknowledged receipt of this directive on February 20, 1987. This is an authorized and approved personnel action in an appropriate case. It was followed up by the three day suspension without pay also previously mentioned. On March 16, 1987, Petitioner was permanently reassigned to Honeymoon Island as a park attendant. Under Department rules a "reassignment" is considered to be a move from one location to another less than fifty miles away. A "transfer" is a move of over fifty miles. Under the rules of the Department and the collective bargaining agreement covering Park Service employees, reassignments cannot be the subject of a grievance procedure or appeal. Honeymoon Island is exactly forty-two miles, gate to gate, from HRSP, by the most direct route. Petitioner claims that all or most of the actions taken against him by park management in this case are the result of a pervasive prejudice against black people in general and against him in particular and that the actions were the result of racial prejudice and discrimination rather than sound management. There is evidence that the former Assistant Park Manager, Mr. Yoczik, made disparaging remarks about blacks in general and about Petitioner in particular. However, only the first disciplinary action taken against Petitioner involved that individual. Departmental policies regarding disciplinary punishment are designed to allow employees to correct a problem at an early stage. They are progressive in nature, and call for a reprimand for the first offense and successively more severe punishments leading up to dismissal as early as the third. It is clear that Petitioner was afforded more than ample opportunity to correct his performance. His first incident resulted in an oral reprimand. The second and third, which could have resulted in suspension without pay and dismissal respectively, resulted in written reprimands. It was only when his conduct gave cause for concern for employee and patron safety, that a suspension without pay was implemented and efforts undertaken to reassign him from the facility, not dismiss him as could have been done. Consequently, it is clear that by no reasonable characterization, could the Department's actions here be considered discriminatory based on his race.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the Florida Commission on Human Relations enter a Final Order denying Gaylord L. Kinsey the relief sought and dismissing the Petition for Relief. RECOMMENDED this 10th day of January, 1989, at Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The Oakland Building 2900 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of February, 1989. COPIES FURNISHED: Gaylord L. Kinsey Ken Plante, General Counsel Post Office Box 222 Dept. of Natural Resources Dade City, FL 34279-0222 3900 Commonwealth Blvd. Tallahassee, FL 32399-3000 Laura S. Leve, Esquire Assistant General Counsel Department of Natural Resources 3900 Commonwealth Blvd. Tallahassee, FL 32399-3000 Tom Gardner, Executive Director Department of Natural Resources 3900 Commonwealth Blvd. Tallahassee, FL 32399-3000
Conclusions After receiving notice from Petitioner that she no longer wished to pursue this cause, the Division of Administrative Hearings relinquished jurisdiction to the Department for the entry of a Final Order.
Other Judicial Opinions Unless expressly waived by a party such as in a stipulation or in other similar forms of settlement, any party substantially affected by this final order may seek judicial review by filing an original Notice of Appeal with the Agency Clerk of the Department of Management Services, and a copy, accompanied by filing fees prescribed by law, with the Clerk of the appropriate District Court of Appeal. The Notice of Appeal must be filed within thirty (30) days of rendition of this order, in accordance with Rule 9.110, Fla. R. App. P., and section 120.68, Florida Statutes. CERTIFICATE OF SERVICE I HEREBY CERTIFY that this Final Order was filed in the official records of the Department of Management Services, and copies distributed by U.S. Mail to the parties below, on the g day of _\ Wy); Cem he ~~, 2011. fe : ebbie Shoup k Department of Management Services Copies furnished to: Judy A. Wright 1611 Second St. S.E. Winter Haven, Florida 33880 Jddge R. Bruce KcKibben ivision of Administrative Hearings 1230 Apalachee Parkway Tallahassee, FL 32399-3060 Thomas E. Wright Asst. General Counsel Department of Management Services 4050 Esplanade Way, Suite 160 Tallahassee, FL 32399-0950
Findings Of Fact The remaining alleged non-conforming sign on Exhibit 2 is located within the city limits of Lakeland, Florida at Lake Parker Drive and Main Street. Petitioner acknowledged that if the sign was erected prior to 1972 and meets the requirements of the city of Lake land it is permittable. This sign was purchased by Respondent some two years ago from Outdoor Media who had obtained a permit for the sign on 3 January 1972. The sign was erected shortly thereafter. Accordingly the sign is permittable in its present location. The two signs on Exhibit 1 present a different situation. These signs were purchased by Respondent from Lawrence Company approximately one year ago and the signs were up when Lawrence was purchased. These two signs are located on US 92, 9.50 and 9.60 miles west of US 17. US 92 is a federal-aid primary highway. The zoning in the area is Rural Conservation, however, the owner of the property has applied for and obtained concept approval for a Planned Urban Development (PUD) project. Applications submitted by Lawrence to DOT for a permit to erect these signs (Exhibits 3 and 4) showed the property on which the signs were to be erected to be zoned Commercial or Industrial. A telephone call to the county zoning section by the DOT approving officer confirmed that the zoning was Commercial and a permit was issued. Actually the owner of the property had submitted a PUD application which received concept approval for a country store, boat rental and sales, and other businesses to cater to the users of Saddle Creek Park (Exhibit 7). Extensions of this concept approval have been granted by Polk County through January 24, 1979. Concept approval does not change the zoning or authorize any construction on the property inconsistent with the original zoning. Application for a zoning change to that requested in the application for which concept approval was granted is necessary before the County can or will change the zoning. Such application will be treated as all other applications for zoning changes and the fact that concept approval has been granted does not assure the application for zoning change will be approved. Accordingly the signs shown on Exhibit 1 to be in violation are erected on property presently zoned Rural Conservation and the property was so zoned when the signs were erected.
The Issue Whether just cause exists for Petitioner to suspend Respondent for 10 days without pay.
Findings Of Fact The School Board is a duly-constituted school board charged with the duty to operate, control, and supervise the public schools within Broward County, Florida. At all times material to this case, Respondent was employed by the School Board as a kindergarten teacher at Park Lakes Elementary School (“Park Lakes”), a public school in Broward County, Florida. The proposed discipline is based upon conduct occurring on Thursday, May 15, 2014, during the 2013-2014 school year. During the 2013-2014 school year, Kerlaine Louis was a paraprofessional assigned to Respondent’s class. On May 15, 2014, Respondent and Ms. Louis took thirteen of Respondent’s kindergarten students to the City of Lauderhill Mullins Park Pool Facility (“pool facility”) to participate in a water-safety class.1/ To get to the pool facility on May 15, 2014, Respondent, Ms. Louis, and the thirteen students rode together on a standard Broward County school bus. The bus picked up Respondent, Ms. Louis, and the thirteen students from Park Lakes at approximately 11:00 a.m. Respondent and Ms. Louis loaded the students onto the school bus at that time. Approximately 10-15 minutes later, the bus arrived at the pool facility with all of the thirteen students present. The bus drove directly from the school to the pool facility, and dropped Respondent, Ms. Louis, and the thirteen students off in front of the building where the pool facility is located. The pool is located behind the building. The thirteen students were scheduled to start their water-safety class at 11:30 a.m. The class was scheduled to end at 12:00 p.m. However, due to bad weather, the class was canceled. Respondent learned of the cancellation of the class after arriving at the pool and exiting the school bus with the children. Because the class was canceled, Respondent, Ms. Louis, and the thirteen students gathered in the patio area located in the back of the pool facility (behind the building and near the pool), where they waited under a covered patio area for the school bus to return to pick them up and bring them back to the school. Respondent brought some paperwork with her to work on at the pool facility. While waiting on the bus to return, the students interacted with each other. During this time, Ms. Louis spent most of her time pre-occupied with an exceptional student in the class who is autistic.2/ No lifeguards were on duty or in close proximity to the students and nobody was in the pool. While waiting for the bus to return to the pool facility, Respondent left the patio area and went inside the building. Respondent returned to the patio area in the back of the pool facility after being gone approximately five minutes. As she returned to the patio area, Respondent saw the bus coming around the front of the building. The bus returned to the pool facility at approximately 12:00 p.m. to pick up Respondent, Ms. Louis, and the thirteen students. Respondent gathered the children to walk them to the area where they would board the bus. Because it was raining, Respondent, Ms. Louis, and many of the children quickly boarded the bus. Shortly thereafter, the bus departed for the return trip to Park Lakes. However, by the time the school bus returned to the school at approximately 12:30 p.m., only Respondent, Ms. Louis, and eleven of Respondent’s students were on the bus. Two of Respondent’s students were left behind at the pool facility, unsupervised after Respondent and Ms. Louis left the pool facility without checking to see that all of the students were accounted for. Respondent did not realize that two of her students had been left behind at the pool facility until sometime after returning with the other students to her classroom at Park Lakes.3/ The two students that were left behind at the pool facility had gone to the bathroom. The bathroom is located along an exterior corridor of the building. Taking attendance and conducting a “head-count” of kindergarten students is an essential duty of a kindergarten teacher. Taking attendance and conducting a “head-count” of kindergarten students is required of all kindergarten teachers at Park Lakes at every transition point during a field-trip. A transition point occurs whenever there is movement of the children. Taking attendance and conducting a “head-count” of Respondents’ students who were participating in the water-safety class at every transition point was necessary to insure that all of Respondents’ students who were participating were accounted for and remained safe. The responsibility for that task fell on Respondent. Respondent was expected to take attendance and conduct a “head-count” of the students taking the water-safety class as they were leaving the classroom; as they were exiting the school; as they were boarding the bus; and while they were in route to the pool facility. Respondent was also expected to take attendance and conduct a “head-count” of the students taking the water-safety class when they exited the pool facility; as they boarded the bus to return to the school; while they were on the bus in route back to the school; and upon the students’ return to the school after departing the bus. At hearing, Respondent acknowledged that she failed to take attendance or conduct a “head-count” of her students prior to boarding the bus at the pool facility to return to the school. Furthermore, Respondent acknowledged at hearing that she failed to take attendance or conduct a “head-count” of her students while on the bus during the return trip to the school, or at the school after returning to the school. At hearing, Respondent conceded that she “dropped the ball” by failing to take attendance and conduct a “head-count” of her students before getting on the bus at the pool to return to the school, on the bus during the return trip to the school, and when she returned to the school. Had Respondent taken attendance and a “head-count” of her students while at the pool facility just prior to boarding the bus to return to the school, or while on the bus before leaving the pool facility, she would have discovered that two of the students were missing, and the children would not have been left behind at the pool facility. Respondent was visibly upset and remorseful of her conduct at the hearing. Within five minutes after the school bus departed to return to the school, April Nixon, a lifeguard at the pool facility who was inside the building, encountered the two children standing in an interior hallway of the pool facility. Ms. Nixon immediately called Park Lakes to report that the two students had been left behind; she locked all of the doors, and she remained with the students from the point she discovered them until two Park Lakes employees came to pick them up at approximately 1:25 p.m., and return them to the school. Significantly, for several minutes after the bus departed to return to the school, the two students were unsupervised, and their physical health and safety were in jeopardy. They could have easily wandered into the pool and drowned; walked further outside of the facility where they could have been kidnapped; or walked into a large lake, which is located very close to the perimeter of the pool facility-- accessible through a short walk through an unlocked door. Respondent failed to make reasonable effort to protect the two students from conditions harmful to their physical health and safety by failing to take attendance and conduct a “head- count” of the students in her class on multiple occasions on May 15, 2014, including: 1) when the students exited the pool facility to return to the bus; 2) as they boarded the bus at the pool facility to return to the school; 3) while they were on the bus in route back to the school; and 4) upon the students’ return to the school after departing the bus. Respondent’s conduct on May 15, 2014, also demonstrates incompetency due to inefficiency.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Broward County School Board enter a final order suspending Respondent without pay for 10 days. DONE AND ENTERED this 8th day of January, 2015, in Tallahassee, Leon County, Florida. S DARREN A. SCHWARTZ 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 8th day of January, 2015.
The Issue The issues are whether Respondent, Country Club Village MHP, Inc. (CCV Park), discriminated against Petitioner, Miguel A. Cotrich (Mr. Cotrich), based on his national origin in violation of the Florida Fair Housing Act (the Act), and, if so, the relief to which Mr. Cotrich is entitled.
Findings Of Fact Mr. Cotrich is a Hispanic male,8/ who resided in CCV Park for approximately 29 months. Mr. Cotrich did not own the mobile home or the lot (number 56) on which it was placed; thus, he owed monthly rent to CCV Park and to the owner of the mobile home. Mr. Cotrich moved out of CCV Park in late May or early June 2011.9/ Rocio Harris, an Hispanic woman, who spoke Spanish, was CCV Park's manager during the majority of the time that Mr. Cotrich resided in CCV Park. Ms. Harris was well thought of and did her best as manager, but she did not collect monthly rent payments or enforce park rules uniformly. On June 5, 2009, Mr. Cotrich and Anna Maria Cotrich, his wife, executed a $10,000.00 Promissory Note (Note) to buy the mobile home located at lot 56 in CCV Park. The Note was between the Cotriches and Maria Gonzalez. The Note called for a $1,400.00 down payment and monthly installments of $500.00 beginning on July 1, 2009. Mr. Cotrich created a ledger to record the monthly Note payments he made on the mobile home (Petitioner's Exhibit 2). This ledger reflects he paid the $1,400.00 down payment and a $500.00 payment on January 3, 2009, five months before the Note was executed. Likewise, it also reflects five $500.00 payments for the trailer before the Note was executed. Simply by adding up the figures on Mr. Cotrich's ledger, the total comes to $10,600.00. This is $600.00 in over-payments. Mr. Cotrich did not disclose this overpayment during his testimony. Mr. Cotrich did not possess the title to the mobile home, nor did he produce any credible evidence that he was entitled to it. Mr. Cotrich's testimony contradicts the executed Note and his own written record of the amounts of payments. Neither Mr. Cotrich's testimony nor his ledger is credible. Mr. Cotrich allegedly paid Ms. Harris the monthly Note payments because he did not trust Ms. Gonzalez. Mr. Cotrich did not receive a receipt from Ms. Harris or Ms. Gonzalez for any payments made on the Note. His claim that he was working away from the mobile home and could not get to the office during its office hours to obtain such a receipt is not credible. Further, Mr. Cotrich's testimony that he paid someone other than the Note lender without obtaining a receipt from that recipient is not credible. In January 2011, Debra Hunter became CCV Park's manager following Ms. Harris' death. Ms. Hunter started collecting the rent payments on time and enforcing CCV Park rules. Her actions caused tension among those who were delinquent with their rent and/or not abiding by other park rules. Mr. Cotrich was always in arrears for his lot rent payment while Ms. Hunter was the manager. At some point Mr. Cotrich had one or two dogs (at least one of which was a pit bull dog) in his rented mobile home. CCV Park rules allow for one small (under 20 pounds) dog. Apparently Ms. Harris knew of the dogs, but did not charge Mr. Cotrich for having them. However, beginning in January 2011, when Ms. Hunter became the manager and was aware of the dogs, Mr. Cotrich was charged $16.00 monthly for having the two dogs ($8.00 per pet, per month). Charles Stevens, one of CCV Park's owners, credibly testified that he had a conversation with Mr. Cotrich about the pit bull dog(s). In that conversation, Mr. Stevens advised Mr. Cotrich that mean dogs (including pit bull dogs) were not (and are not) allowed in CCV Park. This was because there were children present, and there were insurance concerns. Mr. Stevens felt he was unable to make Mr. Cotrich understand the need to remove the dog(s). At some point, Mr. Cotrich approached Ms. Hunter and told her he wanted to sell or rent his trailer to his brother, who is Puerto Rican. Ms. Hunter objected to that proposal on the grounds that Mr. Cotrich owed past-due rent. Mr. Cotrich became loud and apparently yelled that Ms. Hunter did not want Puerto Ricans in CCV Park. Ms. Hunter's position to deny Mr. Cotrich's proposed tenant was based on the outstanding balance that Mr. Cotrich had with CCV Park. Following this verbal confrontation, Mr. Cotrich claimed he felt harassed by CCV Park management. Although Mr. Cotrich produced his medical records for hospitalization dates of January 8, January 10, and March 30, 2011,10/ there is nothing therein to substantiate that CCV Park or its management caused his physical circumstances. Mr. Cotrich, upon being discharged from the last hospitalization, went to a rehabilitation/nursing home facility. Mr. Cotrich testified he was not evicted from CCV Park, but he voluntarily left CCV Park in May 2011, because he felt his health was in jeopardy. Mrs. Cotrich completed her move out of CCV Park sometime in June 2011. CCV Park issued monthly receipts for payments it received. For the 29-month period that Mr. Cotrich claimed to reside at CCV Park, only 13 dated receipts were produced. (There were a total of 20 pages of receipts, but some were duplicative.) The receipts offered and accepted in evidence began in July 2009. All but one receipt had a monetary figure in the section "REMINDER OF OUTSTANDING CHARGES" at the bottom of each receipt. Ms. Hunter and Mr. Stevens both testified that CCV Park is 70 percent Hispanic. Mr. Stevens knows the rental market in Kissimmee, and he understands the Hispanic population has a very real presence in Kissimmee. CCV Park is a multi-cultural mobile home park. Since becoming the manager (while Mr. Cotrich lived there and after), Ms. Hunter has increased rental collections, enforced the park rules, and made CCV Park a nice place to live. CCV Park has instituted several after-school programs and activities that have apparently helped raise the children's grade-point averages in school. Mr. Cotrich presented Jess Jusino, his son-in-law, and Ernest Cotrich, his son and care-giver, as witnesses. The undersigned evaluated the testimony presented by these two witnesses and found it to be unpersuasive. Mr. Cotrich did not substantiate his claim of discrimination based on his national origin. The testimony and evidence demonstrate that Mr. Cotrich left CCV Park on his own volition and that he failed to pay rent in a timely manner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief filed by Miguel A. Cotrich. DONE AND ENTERED this 28th day of August, 2012, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK 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 28th day of August, 2012.
