Findings Of Fact The factual allegations contained in the Stop-Work Order and Order of Penalty Assessment, the Amended Order of Penalty Assessment, the 2nd Amended Order of Penalty Assessment, and the 3rd Amended Order of Penalty Assessment attached hereto as "Exhibit A", "Exhibit B", "Exhibit D", and "Exhibit E", respectively, and fully incorporated herein by reference, are hereby adopted as the Department's Findings of Fact in this case.
Conclusions Case No.: 09-148-D3-WC THIS PROCEEDING came on for final agency action and Jeff Atwater, Chief Financial Officer of the State of Florida, or his designee, having considered the record in this case, including the request for administrative hearing received from Carlos Diaz Tile Installations, Inc., the Stop-Work Order and Order of Penalty Assessment, the Amended Order of Penalty Assessment, the 2nd Amended Order of Penalty Assessment, and the 3rd Amended Order of Penalty Assessment, and being otherwise fully advised in the premises, hereby finds that: On June 23, 2009, the Department of Financial Services, Division of Workers' Compensation (hereinafter "Department") issued a Stop-Work Order and Order of Penalty Assessment to Carlos Diaz Tile Installations, Inc. in Case No. 09-148-D3. The Stop-Work Order and Order of Penalty Assessment included a Notice of Rights wherein Carlos Diaz Tile Installations, Inc. was advised that any request for an administrative proceeding to challenge or contest the Stop-Work Order and Order of Penalty Assessment must be filed within twenty-one (21) days of receipt of the Stop-Work Order and Order of Penalty Assessment in accordance with Sections 120.569 and 120.57, Florida Statutes, and must conform to Rule 28-106.2015, Florida Administrative Code. On June 23, 2009, the Stop-Work Order and Order of Penalty Assessment was personally served on Carlos Diaz Tile Installations, Inc. A copy of the Stop-Work Order and Order of Penalty Assessment is attached hereto as "Exhibit A" and incorporated herein by reference. On September 30, 2009, the Department issued an Amended Order of Penalty Assessment to Carlos Diaz Tile Installations, Inc. The Amended Order of Penalty Assessment assessed a total penalty of $19,650.40 against Carlos Diaz Tile Installations, Inc. The Amended Order of Penalty Assessment included a Notice of Rights wherein Carlos Diaz Tile Installations, Inc. was advised that any request for an administrative proceeding to challenge or contest the Amended Order of Penalty Assessment must be filed within twenty-one (21) days of receipt of the Amended Order of Penalty Assessment in accordance with Sections 120.569 and 120.57, Florida Statutes, and must conform to Rule 28-106.2015, Florida Administrative Code. On October 2, 2009, the Amended Order of Penalty Assessment was served on Carlos Diaz Tile Installations, Inc. by certified mail. A copy of the Amended Order of Penalty Assessment is attached hereto as "Exhibit B" and incorporated herein by reference. On October 20, 2009, Carlos Diaz Tile Installations, Inc. filed with the Department a request for an administrative hearing ("Petition") pursuant to section 120.57(1), Florida Statutes, challenging the Stop-Work Order and Order of Penalty Assessment and the Amended Order of Penalty Assessment. The Petition was forwarded to the Division of Administrative Hearings and assigned DOAH Case No. 09-6148. A copy of the Petition is attached hereto as "Exhibit C". On November 6, 2009, the Department issued a 2nd Amended Order of Penalty Assessment to Carlos Diaz Tile Installations, Inc. The 2nd Amended Order of Penalty Assessment assessed a total penalty of $79,456.77 against Carlos Diaz Tile Installations, Inc. On January 12, 2010, the 2nd Amended Order of Penalty Assessment was filed with the Division of Administrative Hearings. A copy of the 2nd Amended Order of Penalty Assessment is attached hereto as "Exhibit D" and incorporated herein by reference. On December 7, 2010, the Department issued a 3rd Amended Order of Penalty Assessment to Carlos Diaz Tile Installations, Inc. The 3rd Amended Order of Penalty Assessment assessed a total penalty of $9,456.91 against Carlos Diaz Tile Installations, Inc. On December 20, 2010, the Department and Carlos Diaz Tile Installations, Inc. filed a Joint Status Report with the Division of Administrative Hearings wherein they reported that Carlos Diaz Tile Installations, Inc. did not wish to proceed to an administrative hearing. On December 21, 2010, Administrative Law Judge R. Bruce McKibben entered an Order Closing File, which relinquished jurisdiction of the matter to the Department. On January 3, 2011, the 3rd Amended Order of Penalty Assessment was served on Carlos Diaz Tile Installations, Inc. by certified mail. A copy of the 3rd Amended Order of Penalty Assessment is attached hereto as "Exhibit E" and incorporated herein by reference. On January 14, 2011, the Department and Carlos Diaz Tile Installations, Inc. entered into a Settlement Agreement wherein Carlos Diaz Tile Installations, Inc. agreed to pay the penalty assessed in the 3rd Amended Order of Penalty Assessment.
Findings Of Fact Petitioners, High Point of Orlando/Calton Homes (High Point) and Breedlove, Dennis and Associates, Inc. (BDA) were among named Respondents in a petition for formal hearing filed by Central Florida Wetlands Society, Inc. (CFWS) in DOAH Case number 91-8339. High Point was a Respondent in DOAH Case number 92-0364, also initiated by a CFWS petition. BDA was retained as consultant for High Point for a project in Orange County involving wetlands and requiring the evaluation of impact and the mitigation of that impact on the wetlands. A permit for the project was granted by the St. Johns River Water Management District (SJRWMD). In late 1991 High Point requested a permit modification when it was determined that mitigation could not be accomplished within the deadlines in the permit conditions. There had been delays in planting caused in part by delays in construction of the project's stormwater management system and it was apparent that the required plantings could not grow fast enough to comply with the mitigation conditions. The technical staff report recommending approval describes the modification as extensions of the deadlines for successful establishment of forested and herbaceous mitigation. CFWS is a Florida nonprofit corporation according to its articles of incorporation filed with the Secretary of State on August 3, 1990. Article III provides these purposes for the corporation: To educate on the roll [sic] of wetlands with emphasis on the values of preservation of wetlands and the prevention of destruction of same. To implement the national policy of no loss of wetlands. To coordinate with other environmental groups to focus attention on wetland preservation. All other things that are lawful under the charter of this corporation and under the laws of the State of Florida. (Exhibit filed at DOAH 8/21/92) On October 7, 1991, CFWS filed a petition for administrative hearing with the SJRWMD in opposition to the district's proposed grant of permit modification to High Point. The petition was verified and signed by Michael W. Mingea as President of CFWS. The petition did not identify CFWS as a corporation, but rather "a not-for-profit private organization under the laws of the State of Florida". The petition named as Respondents, High Point, SJRWMD, DBA and another alleged consultant for High Point, Dyer, Riddle, Mills and Precourt, Inc., (DRMP). The petition was forwarded by SJRWMD to the DOAH for hearing on December 30, 1991, and was assigned DOAH Case number 91-8339. On January 8, 1992, CFWS filed a petition for formal administrative hearing with the SJRWMD disputing a proposed consent order between High Point and SJRWMD assessing $2,463.60 penalty and costs for violation of the mitigation conditions and requiring a mitigation survey. Like the petition described in paragraph 4, above, this petition was signed and sworn by Michael Mingea and did not identify CFWS as a corporation. The Respondent named in the petition was SJRWMD. This petition was forwarded to the DOAH by the district and was received at DOAH on January 21, 1992. It was assigned DOAH Case number 92-0364. A motion in opposition to the petition was filed on January 28, 1992 by counsel for SJRWMD requesting dismissal based on Petitioner's lack of standing, as the consent order does not authorize any activity subject to the district's permitting authority. Further, the motion argued, any issues regarding the proposed permit modification would be addressed in pending case number 91-8339. In an order dated January 28, 1992, the two cases, 91-8339 and 92-0364 were consolidated and set for hearing in Orlando, Florida on June 16 and 17, 1992. On March 5, 1992 a telephone conference hearing was conducted on various pending motions and an order was entered on March 6, 1992 granting motions to dismiss the two consultant parties, BDA and DRMP. The order denied BDA's and DRMP's motions for fees and costs pursuant to Section 120.57(1)(b)5., F.S., based on a finding that the error in including the consultants as Respondents did not rise to the level of bad faith required for an award under 120.57(1)(b)5, F.S. The order granted SJRWMD's motion in opposition to the petition in number 92-0364 and closed the file in that case with remand of the petition to the agency. And finally, the order granted High Point's motion for a more definite statement in Case number 91-8339. The order required CFWS to file its amended petition within thirty days stating how the proposed permit modifications would adversely affect the waters of the state or otherwise violate statutes and rules governing management and storage of surface waters (MSSW) permits. On April 14, 1992 Karen West, Esquire, filed her notice of appearance on behalf of CFWS and a motion for extension of time of fourteen days to file a more definite statement. On April 21, 1992 Ms. West filed the Petitioner's notice of voluntary dismissal of the petition in number 91-8339, and an order closing file was entered. On April 28, 1992, High Point and BDA filed with the SJRWMD their motion for remand which resulted in the district's order of remand discussed in the preliminary statement, above. The sole issue for remand was these Respondents' entitlement to attorneys fees and costs. High Point and BDA also filed separate motions for sanctions dated May 21, 1992 requesting fees and costs of $6,766.88 for High Point and $1,096.49 for BDA. A telephone conference was conducted on June 11, 1992 on Karen West, Esquire's, motion to withdraw as counsel for CFWS. Michael Mingea, President of CFWS participated and stated that the society had no opposition to the motion. The Hearing Officer and parties then discussed procedural matters related to resolution of the fees case, DOAH Case number 92-3010F. Mr. Mingea asked for, and was given, two weeks to obtain substitute counsel prior to Petitioners commencing discovery. The parties agreed to conduct the final hearing by telephone on August 10, 1992. An order and notice of hearing was entered confirming these matters on June 17, 1992. Notwithstanding the parties' agreement, the August 10th hearing was continued because Petitioners were unable to effectuate discovery or serve subpoenas on Michael Mingea or Todd Swearingen, another CFWS board member. Despite frequent filings of well-drafted requests for extensions, responses to Petitioners' pleadings and similar documents, Michael Mingea never appeared at any of the several hearings scheduled in this case after his initial appearance on June 11th. Despite several explicit orders Mr. Mingea never appeared for deposition by Petitioners, either in person or by telephone. Yet, according to the testimony of other board members, Todd Swearingen and Marty Sharpe, only Michael Mingea initiated the petitions involving High Point and he, alone, was cognizant of the specific basis for those petitions. Marty Sharpe who appeared consistently on behalf of CFWS in this proceeding became a board member in February 1992, several months after the petitions were filed. Petitioners were wholly frustrated in their effort to obtain the discovery to which they were entitled with regard to the bases for the CFWS petition in Case number 92-8339 and its abrupt dismissal. In various written documents and attempts to provide evidence through affidavit CFWS argues that its motives were not bad faith; however, throughout this proceeding CFWS has effectively prevented Petitioners from testing those bare assertions through discovery or cross examination. Mr. Mingea apparently travels extensively with his regular employment and the organization's mail goes to a post office box where it is picked up by volunteers. Contact with the organization was most effectively made through Marty Sharpe who attempted, in turn, to reach Mr. Mingea and convey messages. In the absence of competent evidence to the contrary, the record in this and in the underlying cases, number 91-8339 and 92-0364 support a reasonable inference that the petition in number 91-8339 was filed for a frivolous purpose. The order granting CFWS leave to amend its petition acknowledged that the original petition was legally insufficient. The petition was not amended within the allotted period; but rather was voluntarily dismissed shortly after legal counsel appeared on behalf of the organization. This dismissal reduces, but does not eliminate exposure to liability for filing the initial petition. The fees and costs requested by the Petitioners here are reasonable. Those fees are supported by billing logs attached to the motions for sanctions and reflect an hourly rate of $100.00 for BDA and $160.00 for High Point. Douglas Rillstone testified to the reasonableness of a total of $9,592.00 for High Point, and $2,495.00 for BDA. Those totals are not supported by billing logs and it is not possible to determine the basis for those amounts beyond the original amounts requested.
The Issue The issue in the case is whether a statement made by a representative of Respondent Department of Community Affairs in a letter to legal counsel for Petitioners, and statements made in a Final Order of Dismissal entered by Respondent, constitute unpromulgated rules in violation of applicable Florida law.
Findings Of Fact Petitioner Alachua Leadership Alliance-Citizens Helping Us All, Inc. (ALA-CHUA), is a corporation created to represent the interests of certain citizens within the community, to "share information with the community," and to be "a citizen's watchdog group overlooking the expenditures" of funds. ALA-CHUA holds regular meetings, attends public meetings, and initiates litigation. ALA-CHUA president Tamara Kay Robbins and ALA-CHUA member Eileen McCoy testified at the hearing. Petitioners Robert A. Perez, Thalia Gentzel, and Madalene Rhyland, did not testify at the hearing. Respondent is the state agency charged with administration of the Local Government Comprehensive Planning and Land Development Regulation Act ("Act"), Chapter 163, Part II, Florida Statutes. As stated at Subsection 163.3161(2), Florida Statutes (2004), the purpose of the Act is to "utilize and strengthen the existing role, processes, and powers of local governments in the establishment and implementation of comprehensive planning programs to guide and control future development." The Act requires local governments to adopt comprehensive plans that address numerous areas of responsibility. As set forth at Subsection 163.3191(1), Florida Statutes (2004), each local government is required to adopt an evaluation and appraisal report ("EAR") to assess "the progress in implementing the local government's comprehensive plan" and identifying portions of the plan that require updating. Subsection 163.3191(9), Florida Statutes (2004), requires that Respondent establish a schedule for adoption of EARs that provides "each local government at least 7 years from plan adoption or last established adoption date for a report. " After the EAR is completed, it is submitted to Respondent for a "sufficiency determination" as required at Subsection 163.3191(6), Florida Statutes (2004). Once Respondent determines an EAR to be sufficient, the local government is required to adopt within 18 months from the sufficiency determination, EAR-related comprehensive plan amendments. Subsection 163.3191(10), Florida Statutes (2004), provides that the 18-month deadline may be extended for six months by Respondent for "good and sufficient cause" and may again be extended if the additional extension would "result in greater coordination between transportation and land use, for the purposes of improving Florida's transportation system." Subsection 163.3191(11), Florida Statutes (2004), provides as follows: The Administration Commission may impose the sanctions provided by s. 163.3184(11) against any local government that fails to adopt and submit a report, or that fails to implement its report through timely and sufficient amendments to its local plan, except for reasons of excusable delay or valid planning reasons agreed to by the state land planning agency or found present by the Administration Commission. Sanctions for untimely or insufficient plan amendments shall be prospective only and shall begin after a final order has been issued by the Administration Commission and a reasonable period of time has been allowed for the local government to comply with an adverse determination by the Administration Commission through adoption of plan amendments that are in compliance. The state land planning agency may initiate, and an affected person may intervene in, such a proceeding by filing a petition with the Division of Administrative Hearings, which shall appoint an administrative law judge and conduct a hearing pursuant to ss. 120.569 and 120.57(1) and shall submit a recommended order to the Administration Commission. The affected local government shall be a party to any such proceeding. The commission may implement this subsection by rule. Section 14.202, Florida Statutes (2004), identifies that the Administration Commission is the Governor and the Cabinet. The sanctions available to the Administration Commission include various restrictions on the eligibility for and provision of certain state funds to non-complying local governments. The City of Alachua (City) is a local government with responsibility for adoption of a comprehensive plan. According to the Respondent's letter to City Mayor James A. Lewis dated December 29, 1998, the City's EAR was determined to be sufficient by the Respondent. The 18-month deadline for the City to adopt EAR- related comprehensive plan amendments expired at the end of June 2000. There were no deadline extensions granted by Respondent to the City. The City failed to meet the 18-month deadline for the adoption of EAR-related comprehensive plan amendments. By letter dated June 30, 2004, to Thaddeus Cohen, Secretary of the Department of Community Affairs, David Jon Russ (counsel for Petitioners) asked Respondent to initiate proceedings against the City of Alachua under the provisions of Subsection 163.3191(11), Florida Statutes (2004), by no later than July 8, 2004. By letter dated July 20, 2004, David L. Jordan, Deputy General Counsel for Respondent, advised Mr. Russ that Respondent "respectfully declines your request to seek sanctions against the City." The letter further states as follows: The City transmitted proposed EAR-based amendments on May 12, 2004, and the Department issued its Objections, Recommendations, and Comments ("ORC") report on July 16, 2004. Although the ORC report raises some objections to the proposed EAR- based amendments, the Department believes that the City can revise the amendments to resolve those objections. Therefore, the City is on course to adopt sufficient plan amendments to implement the EAR. The Department will not commence litigation to force the City to perform a duty that the City is already performing. Subsection 163.3184(7), Florida Statutes (2004), provides that a local government has 120 days from the date of the ORC report to adopt (or adopt with changes) the EAR-based amendments. Accordingly, the deadline for the City to adopt the amendments was November 15, 2004. The City adopted the EAR- based amendments on September 13, 2004. In response to the Jordan letter dated July 20, 2004, on August 16, 2004, Petitioners filed with Respondent a Petition for Hearing on Decision Affecting Substantial Interests and for Rulemaking, stating that Petitioners "demand a hearing before DOAH, a recommended order finding the action illegal, a final order adopting it, and rule-making by the Department." The Petition indicates that Petitioners desire a hearing on Respondent's decision not to initiate administrative proceedings against the City and to require Respondent to initiate rulemaking related to Subsection 163.3191(11), Florida Statutes (2004). On August 31, 2004, Respondent entered a Final Order Dismissing Petition, in which Petitioners' requests were dismissed with prejudice. The Final Order was not appealed. As grounds for the dismissal of the request for hearing, the Final Order of Dismissal stated that Petitioners failed to "identify any interest protected by pertinent substantive law that will suffer injury by virtue of the Department's decision not to seek sanctions against the City" and that Petitioners failed to identify any substantive right protected under Section 163.3191, Florida Statutes (2004). As grounds for dismissal of the request for rulemaking, the Final Order noted that Subsection 163.3191(11), Florida Statutes (2004), vests authority for adoption of rules related to implementation of the subsection in the Administration Commission, and that Respondent had no authority to initiate rulemaking. The evidence presented at the hearing established that Respondent's general policy is to encourage and negotiate with non-complying local governments, and that various types of technical and financial assistance is available to local governments, depending on the circumstances, to enable such compliance. The evidence further established that Respondent would initiate Subsection 163.3191(11) proceedings against a non- complying local government if the local government failed to proceed into compliance after receiving appropriate technical and financial assistance from Respondent. As of the date of the hearing, Respondent has not initiated Subsection 163.3191(11) proceedings against a local government for failing to timely adopt EAR-based comprehensive plan amendments. There is no evidence that any local government has failed to come into compliance with applicable comprehensive plan requirements after receiving assistance from Respondent. There is no evidence that Respondent has made any statement indicating that it would never initiate proceedings against any local government under the provisions of Subsection 163.3191(11), Florida Statutes (2004).
The Issue Whether Respondent committed the offenses alleged in the Administrative Complaint and the penalties, if any, that should be imposed.
Findings Of Fact Petitioner is an agency of the State of Florida charged with the responsibility and duty to administer Chapter 517, Florida Statutes, which is known as the Florida Securities and Investor Protection Act. On August 15, 1997 and September 9, 1997, Petitioner conducted an audit of the branch office of Merit Capital Associates, Inc., located in Boca Raton, Florida, and known as the H. K. Laurence Branch (the branch office). The branch office was an office of supervisory jurisdiction that required the presence of a branch manager. On April 28, 1997, Merit Capital executed a form entitled "Branch Registration Form" that registered the branch office with Petitioner and designated Respondent as the branch manager. Respondent accepted that designation on April 29, 1997. On April 30, 1997, the form was filed with Petitioner. In August and September 1997, Petitioner conducted an examination of the branch office. Michael Ward, whose job title is Senior Financial Investigator, was in charge of the examination. Annette Beresford, whose job title is Financial Specialist, assisted Mr. Ward. Both Mr. Ward and Ms. Beresford are full-time employees of Petitioner with appropriate training and experience. Respondent failed to properly register with the National Association of Securities Dealers (NASD) to act as a branch manager. Respondent was required by NASD rules to register as a principal because he had supervisory responsibilities. His only registration was as a salesperson. NASD Conduct Rule 3010, a rule adopted by NASD, sets forth standards for the supervision of branch offices. Pursuant to Rule 3E-600.013, Florida Administrative Code, Respondent, as the designated branch manager, was required to comply with the minimum supervisory standards set forth in NASD Conduct Rule 3010. Respondent did not meet those minimum supervisory standards while serving as the manager of the branch office. The following establish Respondent’s failure to supervise. Respondent did not provide NASD manuals to the registered representatives (salespersons) at the branch, he did not maintain Merit Capital's supervisory manuals at the branch, and he did not require that salespersons comply with Merit Capital's written policies and procedures. Respondent failed to maintain NASD and Florida registrations of salespersons at his branch. During the period April 29 through July 9, 1997, representatives of Merit Capital under Respondent's supervision at the branch office sold to members of the public shares of stock in a company known as Certified Diabetic Services, Inc., and shares of stock in a company known as Arcoplate Corporation. Respondent had supervisory responsibility for these transactions involving the sale of these two stocks. At the times pertinent to this proceeding, the stock of Certified Diabetic Services, Inc., and the stock of Arcoplate Corporation were not registered as required by Section 517.07(1), Florida Statutes, and they were not exempt from registration. Respondent should not have permitted the salespersons under his supervisory jurisdiction to sell unregistered stock During the period March 11 through July 9, 1997, Respondent was personally responsible for three transactions involving the sale of stock in Certified Diabetic Services, Inc., at a time when the stock was not registered as required by Section 517.07(1), Florida Statutes, and was not exempt from registration.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order finding Respondent guilty of failing to supervise the branch office and of selling unregistered securities. The final order should revoke Respondent’s registration under Section 517.12, Florida Statutes, and order him to cease and desist violations of Chapter 517, and the rules promulgated thereunder. The final order should also impose an Administrative Fine against Respondent in the amount of $5,000 for the failure to supervise. The final order should also impose an Administrative Fine against Respondent in the amount of $1,500 for the three transactions involving the sale of shares of unregistered stock. DONE AND ORDERED this 22nd day of January, 2002, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 22nd day of January, 2002.
Findings Of Fact At all times material hereto, Petitioners were inmates incarcerated at Union Correctional Institution under the custody and control of the Department of Corrections. Respondent stipulated at final hearing that Petitioners have "standing" to maintain this rule challenge proceeding. During 1982 Respondent amended its Rule 33-3.045, Florida Administrative Code, entitled Package Permits. The final version of the amended rule was filed with the office of the Secretary of State on December 23, 1982, and became effective January 12, 1983. The text of the proposed rule was published in the October 22, 1982, issue of the Florida Administrative Weekly. Subsequent thereto, changes were made in the text of the proposed rule which had the effect of deleting from the list of items which inmates could receive in Christmas packages the following: apples, candies, chewing gum, cookies, and nuts. No person affected by the proposed rule requested a public hearing pursuant to Section 120.54(3) Florida Statutes. Respondent filed with the office of the Secretary of State a Statement of Changes and a Notice of Changes indicating the above-referenced deletions apparently at the time the rule was filed for adoption. In addition, Respondent filed with the proposed rule an economic impact statement which estimated that there would be no cost or economic benefit to persons affected by the rule as a result of the proposed amendments. Although the record in this cause establishes, and common sense confirms, that some cost saving might result to persons wishing to send the deleted items to inmates, there is no evidence of record in this cause to establish how Respondent's failure to take this factor into account affected the fairness of the rule adoption proceeding. At the time of final hearing in this cause there were approximately 2,500 inmates incarcerated at Union Correctional Institution. Each of these inmates is entitled to two Christmas package permits during the months of November and December. As a result as many as 5,000 Christmas packages could be received by the institution during that time period. Respondent's experience with Christmas packages has shown that apples, candies, chewing gum, cookies, fruit cakes, and nuts lend themselves to the introduction of contraband into correctional facilities. Because of the volume and character of Christmas packages, Respondent experienced both staffing and liability problems, particularly in the area of food stuffs. Respondent found that it was particularly difficult to examine food stuffs for contraband because it often would require chemical analysis to determine whether contraband items, such as drugs or alcohol, were baked or otherwise placed into the food stuff themselves. In addition, because of the volume of packages received Respondent often had to transfer employees from other areas of operation into the mailroom in order to process the packages, thus creating additional problems because employees had to be taken from their assigned tasks. Further, Respondent received notification from the Division of Risk Management indicating a precipitous rise in claims for damages from inmates whose food stuffs had been necessarily damaged in checking for contraband items. Finally, Respondent determined that most, if not all, of the items deleted from the Christmas package permit list were available to inmates through institution canteens.
Findings Of Fact During its 1980 Session, the Florida Legislature adopted the Florida Energy Efficiency and Conservation Act, Sections 366.80 through 366.85, Florida Statutes. The Act, which became effective July 1, 1980, mandated that the Florida Public Service Commission develop and adopt goals and plans related to the conservation of electric energy and natural gas usage. The Act required that initial goals be adopted no later than September 1, 1980. In order to comply with these legislative mandates, the Public Service Commission adopted Emergency Rules 25 ER 80-9 through 25 ER 80-14 through its Order No. 9512 issued September 2, 1980 (September 1, 1980, was an official state holiday). The emergency rules set general and specific goals to be met by electric and natural gas utility systems. General goals were set out in Rule 25 ER 80-9(2) as follows: Generating Utilities Review and revise utility operat- ing practices such as maintenance sched- uling, daily and longer term unit com- mitment practices through the power broker system to facilitate economic dispatch on both a daily and extended basis and to reduce oil consumption to the extent cost effective. Plan development of the bulk power system over time so that the most cost effective combination of generating units, associated facil- ities and other technologies is developed for meeting generation requirements. Increase the efficiency of each generating unit and associated prac- tices to the extent cost effective. All Utilities Aggressively integrate nontradi- tional sources of power generation into the various utility service areas to the extent cost effective, including planning site development to facili- tate development of potential cogen- erators near generation units. Increase the end use efficiency of energy consumption and power demand to the extent cost effective. Increase the efficiency of trans- mission and distribution systems to the extent cost effective. Aggressively pursue research, development and demonstration pro- jects jointly with others as well as individual projects in individual service areas. In this context, the Commission anticipates that an aggres- sive research program would include both technological research, research on load behavior and related problems and market related research. General Authority: 366.05(1), 366.82(1)-(4), F.S. Law Implemented: 366.82(1)-(4), F.S. Specific goals were set in Rule 25 ER 80-10 to reduce the growth rates of "weather-sensitive peak demand" of total electric consumption and of oil consumption. These goals were stated as follows: To reduce the average annual growth rate of kilowatt demand to less than the average annual growth rate of kilo- watthour consumption and to reduce the average annual growth rate of kilowatt- hour consumption to less than the aver- age annual growth rate in number of customers. The specific goals for the 1980-85 period are to reduce growth rates so that the total KW demand in 1985 does not exceed that of 1984 by more than 2.212 percent and the total KWH consumption in 1985 does not exceed that of 1984 by more than 2.6 percent. Peak demand in 1985 shall not exceed 23,188 MW and total consumption in 1985 shall not exceed 116,733 gigawatthours To reduce the use of oil as gen- erating fuel to the greatest practi- cable and cost effective extent. The overall goal for the 1980-85 period is to develop or implement programs to reduce the use of oil by 25 percent by 1990. In order to meet this goal, generation capacity in excess of that allowed by the first goal may be installed to the extent cost effective. Utilities were required to submit plans and programs desk to address the general goals, and to meet the specific goals. The emergency rule did not mandate any specific plans programs to be used by utilities in meeting the goals, but rather left the nature of programs that would be utilized to the discretion of the individual utilities. Following the adoption of the emergency rules, the Public Service Commission initiated permanent rule making proceedings. By its Order No. 9552 entered September 17, 1980, the Commission proposed to adopt Rules 25-17.01 though 25-17.06 as permanent rules. Notice of these proposed rules was published in the September 19, 1980, edition of the Florida Administrative Weekly. The proposed rules were substantively, identical to the emergency rules which had already been adopted. The Commission thereafter conducted public hearings on the proposed rules. Many interested persons, including the City of Gainesville, presented testimony and documentary evidence which was considered by the Commission. The Commission adopted Rules 25-17.01 through 25-17.05 through its Order No. 9634 issued November 13, 1980. The rules were filed with the Secretary of State. The rules as adopted were not identical to the rules that had been proposed for adoption. Specific differences between the adopted and proposed rules will be discussed hereafter. A statement reflecting that the rules as adopted were not identical to those proposed was published in the November 14, 1980, issue of the Florida Administrative Weekly. A description of the changes in the proposed rules was filed with the Joint Administrative Procedures Committee of the Florida Legislature. No person formally requested a detailed statement of the changes in response to the Order adopting rules, or in response to the publication in the Florida Administrative Weekly. A copy of the Order was distributed to all utilities affected by the rules, including Petitioner. The Public Service Commission prepared an Economic Impact Statement in support of the permanent rules as they were originally proposed. The Economic Impact Statement was available for inspection at the time the rules were formally proposed. Additional or modified statements of the economic impact of the rules were not prepared during the course of the rule making proceeding. The only specific cost to the Public Service Commission of implementing the rules set out in the economic impact statement is salaries of new employees who would be required. It is estimated in the statement that one-fourth of the time of a new supervisor, one-fourth of the time of a new marketing specialist, and one-half of the time of a utility systems engineer would be required. The salaries of these personnel for the 1980-81 through 1984-85 fiscal years are estimated in the statement. The estimated salaries of the marketing specialist and of the utility systems engineer were reversed in the statement, but the overall sum of the salaries appears accurate. The statement does not include an estimate of costs other than salaries of hiring these personnel, nor does the statement contain any estimate of the cost of paper work that would be required to implement the rules. Clearly, there would be some costs other than salaries involved in hiring new employees, including cost of retirement benefits and the like. Also clearly, there would be paper work costs connected with implementing the rules. No evidence was presented at the hearing to demonstrate that these costs would be significant, nor that the failure to include them in the Economic Impact Statement in any manner prejudices the Petitioner, City of Gainesville. The economic impact statement does not include any specific estimates of costs that would be incurred by utilities in implementing the rules. The statement includes a recognition that there would be such costs, that costs could be rather significant, and includes only conjecture that benefits that would accrue to the utilities would outweigh the costs. There are valid reasons for this lack of specificity. First, the rules leave to the individual utilities broad discretion in determining what plans or programs would be utilized to meet the goals established under the rules. There are many possibilities. Indeed, one purpose of allowing the utilities broad discretion in determining what plans and programs to utilize is to develop information as to how to best accomplish the conservation goals of the rules and of the Florida Energy Efficiency and Conservation Act. Since the utilities have broad discretion in determining plans and programs, it is not possible to give any accurate forecast of what costs utilities might accrue. Second, there is very little data available from which any useful forecast of cost of implementing plans and programs can be developed. This lack of information is recognized in the Act and in the rules, and it is a goal of both to develop the information. It has been estimated that in order to make any specific statement of the economic impact of the proposed rules in relation to plans and programs that might be anticipated would require the expenditure of hundreds of thousands of dollars simply to develop data. Such an expenditure would not be justifiable. The Economic Impact Statement does not include any specific estimate of the cost to electrical consumers of implementing the rules. It can be anticipated that plans and programs adopted by individual utilities would require the expenditure of money on the part of consumers to obtain energy efficient appliances. It is not possible to make any useful prediction of what these costs might be for the same reason that it is not possible to predict what the cost of implementing the rules might be for individual utilities. In the first pace, the utilities have broad latitude in determining what plans and programs to utilize. The nature of the program adopted by the utility would govern what costs consumers would need to incur. Furthermore, there is a lack of data in this area. While the costs of individual appliances could be accurately estimated, the amount of savings in utility costs cannot be utilizing present data and given the broad variables that exist in utility charges. Public Service Commission Rules 25-17.01 through 25-17.05, Florida Administrative Code, as adopted by Commission Order No. 9634 are not identical to the rules as proposed under Commission Order No. 9552. Most of the changes are of a non-substantive sort, serving to clarify the intent of the rules and the responsibilities of electrical and gas utilities in meeting the goals set out in the rules. For example, under adopted Rule 25-17.02, the responsibility of electric utilities to develop five-year goals and plans is clearly delineated, and the method for calculating consumption and growth rates is set out with a precision that was lacking in the rules as originally proposed. Some of the changes do, however, impose different substantive requirements upon utilities. The first of these is the goal for reducing consumption of electrical power. Under the proposed rules, a consumption goal was set in order to provide an allowable growth rate of consumption of 85 percent of projected growth rates for kilowatt-hour demand. The starting point for projections under the rule as adopted is the projected growth rate in residential customers. The 85 percent goal under the proposed rules was changed to require that electrical utilities reduce the growth rate of end use weather-sensitive peak kilowatt demand and of kilowatt-hour consumption to an average of 72.25 percent and 75 percent, respectively, of the average annual growth rate in the number of residential customers for the 1980-89 period. While the percentage is reduced, what the percentage relates to is changed, and the period of the projection is changed. The result is that the rules as proposed and as adopted impose very nearly the same criteria, but the criteria are more easily identified under the rules as adopted. While the goals are nearly equivalent, they are not identical. The rules as adopted do impose a slightly more stringent requirement. As to the City of Gainesville, specifically, the requirement is more stringent, but not to the extent that the City cannot meet the goals with reasonable efforts. Under the rules as originally proposed, a goal was specified for reducing annual peak demand loads for summer or winter. Under the rules as adopted, goals are set for summer and winter peak demands. While this is a substantively different goal which imposes different responsibilities upon utilities, the evidence does not reveal that the goal is more onerous or stringent that provided in the rules as proposed. The rules as proposed set the same percentage oil reduction goal as in the rules as adopted. The rules require however, that the goals be met by 1989 rather than by 1990 as in the proposed rules. It would appear that this is a more stringent requirement; however, the rules do not require any actual oil reduction during the period 1981-85. The emergency rules adopted by the Commission (Rules 25 ER 80-9 through 25 ER 80-14) are substantively identical to the permanent rules as originally proposed by the Commission. All of the differences between the rules as adopted and the rules as originally proposed discussed in the foregoing paragraph pertain equally to differences between the emergency rules and the permanent rules. Through its Order No. 9923 issued April 2, 1981, the Public Service Commission proposed to adopt amendments to its Rule 25-17.02 and a new Rule 25- 17.041. With modifications not here pertinent, the rules were adopted through Commission Order No. 10069 issued June 17, 1981. The rules were not properly filed with the office of the Secretary of State, and they were accordingly withdrawn and reproposed under commission Order No. 10234 issued August 26, 1981. These proposed rules are the subject of the Petitioner's challenge in Case No. 81-2161RP before the Division of Administrative Hearings. The proposed revision to Commission Rule 25-17.02 modifies the goals for reduction of growth rates of end use weather-sensitive peak kilowatt demand and of kilowatt-hour consumption to relate to the average annual growth rate in the number of residential customers for the 1981-89 period rather than for the 1980-89 period. The percentage growth rates remain the same as originally provided. Other dates are modified to reflect the passing of another year. Proposed Rule 25-17.041 sets transitional goals for utilities that have not yet had plans and programs approved by the Commission. It appears that these proposed rules impose slightly more stringent goals upon electrical utilities. It does not appear that the changes are so onerous, however, as to be unreasonable. The Public Service Commission has interpreted both the emergency rules and the permanent rules as requiring that electric utilities adopt "end use" plans and programs to meet the specific goals set out in the rules, rather than "supply side" plans and programs. "End use" refers to power uses on the customer side of the meter which lies between the utility's lines and the customer's home or business. Thus, "end use programs" would be designed to reduce consumption of electrical power by ultimate consumers. "supply side" refers to things that occur on the utility's side of the meter. "Supply side programs" would be programs designed to eliminate inefficiencies in the utility's generating system. The Public Service Commission consistently interpreted the emergency rules as requiring that utilities propose end use programs to meet the specific goals. While this interpretation is not readily obvious from a reading of the rules, it is neither inconsistent with them, nor a strained interpretation. General goals set out in the emergency rules include goals which would encourage electric utilities to improve supply side efficiencies. For example, Rules 25 ER 80-9 (2)(a), and (c), which relate to electric generating utilities, all require increased supply side efficiencies. The specific goals, however, relate to reduction of the growth rates of weather- sensitive peak demand and of total electric consumption. While "total electric consumption" could be interpreted as including supply side efficiencies, it would be inappropriate to interpret it in that manner because the goals are to reduce growth rates. Since generating utilities are specifically mandated under the general goals to improve supply side efficiencies, it would be inconsistent to interpret the specific goals as encouraging the same programs. Whatever ambiguity there is in the emergency rules as to whether supply side programs could be used to meet the specific goals, there is no ambiguity under the permanent rules adopted by the Commission. Rule 25-17.02 sets specific goals for "end use KW [kilowatt] demand" and "KWH [kilowatt-hour] consumption." End use solutions are clearly required under the permanent rules. The City of Gainesville operates an electric utility. The City submitted a plan to the Public Service Commission to meet the energy efficiency goals. The Commission disapproved the City's proposal and directed that a revised conservation plan be submitted. The City's plan was rejected because it proposed primarily supply side programs to meet the Commission's specific conservation goals. The Commission found in its Order No. 9906 issued March 31, 1981, that if the supply side programs proposed by the City were excluded, the City's plan would not fleet the specific goals. The City appears to concede that such end use programs as it has proposed would not meet the specific goals. Meeting the Commission's goals through end use programs would involve some additional expense by the City over what it would need to have expended to meet the goals through supply side programs. Whether the additional expense would ultimately prove cost effective because it would result in the City needing to spend less for new facilities in the future is a matter of conjecture, and cannot be determined from the evidence.
The Issue The issues in this case are: (1) whether Petitioner has been rehabilitated from her disqualifying offense(s); and, if so, whether the intended action to deny Petitioner's exemption request pursuant to section 435.07(3), Florida Statutes (2015),1/ would constitute an abuse of discretion by Respondent.
Findings Of Fact Based on the evidence adduced at the hearing, and the record as a whole, the following material Findings of Fact are made: Petitioner was a 52-year-old female who sought to qualify, pursuant to section 435.07, for employment in a position of trust as a direct service provider for physically or mentally disabled adults or children. This position requires the successful completion of a Level 2 background screening. See § 435.04, Fla. Stat. APD is the state agency responsible for licensing and regulating the employment of persons in positions of trust. Specifically, the mission of the Agency includes serving and protecting the vulnerable population, including children or adults with developmental disabilities. In conformance with the statute, Petitioner was screened by APD since she applied for a position of special trust as a direct service provider of APD. The screening revealed, and the parties stipulated at the hearing, that Petitioner was convicted of the following disqualifying offenses: Theft by Shoplifting--Felony--1987 Theft by Shoplifting--Felony--1987 Forgery (4 counts)--Felonies--1993 Theft by Shoplifting--Felony--1993 Battery-Family Violence--Misdemeanor-- 1996 Forgery--Felony--1998 The stipulation also included the fact that 17 years have elapsed since the last disqualifying offense was committed. The screening revealed, and the parties also stipulated at the hearing, that Petitioner was arrested or convicted of the following non-disqualifying offenses: Simple Battery--Misdemeanor--arrested-- dismissed--1987 Theft by Conversion--convicted--1993 Driving Under the Influence--convicted-- 1994 Criminal Trespass--Misdemeanor-- convicted--2000 The stipulation also included the fact that 15 years have elapsed since the last non-disqualifying arrest or conviction was committed. Rosita Martin At the time of the hearing, Petitioner was unemployed. She had last been employed at Martin's Group Home as a caregiver of vulnerable children who had disabilities or behavioral problems. Her duties included giving out medicines, assisting clients with bathing, and taking kids on outings and to church. She also helped to cook. She explained that most of her convictions occurred during a period of her life when she was in an abusive marriage and suffered from depression. She acknowledged that, during that time period, she was abusing drugs (cocaine) and alcohol. During that same period of time, she admitted that she had purchased and also possessed marijuana. She explained that her battery conviction in 1996 related to a domestic dispute with her husband. She called the police, and they took them both to jail. Although she said she was defending herself, she admitted that she had been convicted and found guilty of battery. Petitioner testified that she is a "good girl now." She attends church every Sunday and "left her problems with drugs." She got sick and tired and "told God to take it away from me and he did." Petitioner testified that she has not used any type of illegal drugs for 20 years. Her sister operates four group homes for children with disabilities. Petitioner worked at one of the homes, and her sister wrote her a letter of support in this case. The evidence was undisputed that she received "excellent" evaluations while at Martin Group Home. Currently, she lives with her daughter, and a granddaughter who is two years old. As a result of one of Petitioner's various felony convictions, she testified that she was ordered to attend in- house drug treatment at the Willingway Hospital in Statesboro, Georgia. Upon questioning by the undersigned, Petitioner stated that she was in rehabilitation at the hospital for "like 6 months" back in the 1990's.2/ The various letters of support and reference provided by Petitioner came from her relatives. These included her sister and father. The record reflects that Petitioner attended and successfully completed numerous training courses (e.g. medicine administration, CPR training, blood borne pathogens, HIV safeguards, etc.) that related to the caretaker work she performs.3/ Other than two certificates for domestic violence training in 2011 and 2012, the other training and educational completion certificates did not relate to treatment or counseling programs related to her drug use, alcohol use, psychological counseling, or financial training-–the personal issues she struggled with in her past when the disqualifying events took place. The evidence reflected that she had numerous and chronic driving violations, pertaining primarily to failing to pay road tolls. She claimed that all of these toll violations occurred when her daughter was driving her car.4/ On cross-examination, Petitioner conceded that she failed to provide a detailed version of the facts or a full explanation for each criminal offense listed on her exemption form.5/ Petitioner claimed that she was "new at this" and did not understand the details she was supposed to provide. For the criminal offenses involving theft of property, she claimed on the form, and testified, that there was "no harm" to the victim. Again, she claimed some confusion and stated that she thought that they were talking about harm in the "violent" sense. She was also cross-examined about the six-month drug treatment program that she testified she had attended at Willingway Hospital. She was asked why she did not provide that information to the Agency in the exemption form or provide the agency with a copy of a completion certificate. Inexplicably, she was unable to provide a satisfactory explanation during the hearing for why she did not disclose the drug treatment program on the exemption questionnaire. She claimed that since the court had ordered her into treatment, she did not think it was necessary to specifically list or describe it. She was asked why she was not able to provide a letter of recommendation from her church pastor. She did not provide an adequate explanation and simply stated that she attends church but is not a church member, that she just goes to church there every Sunday. She worked briefly at a company called Best Walks of Life. Her supervisor was her son, Mr. Walker. No details were provided concerning what she did there. She acknowledged that much of her criminal activity arose from or was related to problems with monetary or financial issues; yet, she conceded that she had not taken any financial courses or other classes to obtain financial or budgeting training or counseling. After working for her sister at Martin Group Home, she has not made any attempts to work in any other places or group homes since leaving. Darnisha Johnson Petitioner is her mother. The witness is 24 years old and lives with her daughter at her mother's house. She testified that her mother is "a great person today. She's great." She also stated that her mother is a "much better person" then when she was involved in criminal activity.6/ She also felt that her mother is not using any drugs now. She acknowledged that she has a car, but that it is in her mother's name. In the context of who pays the bills today and supports her financially, she characterized her mother's role as being her "support system." She also admitted that any failures to pay tolls while driving the vehicle registered in her mother's name were her responsibility. Molita Cunningham She is a friend of Petitioner's. She works as a certified nursing assistant and is certified as such with the State of Florida. She has known Petitioner for a little over three years and met her at a Family Dollar store. She wrote a letter of support for Petitioner. She was not aware of any facts to suggest that Petitioner was engaged in criminal activity, drug abuse, or abuse of her clients in any manner. She acknowledged she had a background similar to Petitioner's. She was "out there in the streets" and is a convicted felon. Other than being a general character witness, the witness offered no substantive evidence touching upon Petitioner's rehabilitation from the disqualifying offenses. Evelyn Alvarez Ms. Alvarez is employed with the Agency as the regional operations manager for the Southern Region.7/ She obtained a master's degree in public administration from Florida International University in 2000. APD serves individuals that have specific developmental disabilities. The disabilities include intellectual disabilities, autism, cerebral palsy, spina bifida, and the like. Her role in this case was to review the background information gathered by both the Department of Children and Families and APD on Petitioner. After her review, the package of information was sent to an exemption committee. That committee then independently reviewed the exemption package and made its own recommendation to the Director of APD. Before deciding on the exemption request, the Director reviewed both Ms. Alvarez's recommendation and the recommendation of the exemption committee. She correctly acknowledged that the applicant for an exemption from disqualification must prove rehabilitation by clear and convincing evidence. She also correctly noted that the Agency should consider the circumstances of the disqualifying offense(s), the nature of the harm caused to any victims involved, the history of the employee since the incident and any other evidence indicating that the employee will not present a danger to the vulnerable or disabled adults or children they serve. APD was concerned that Petitioner failed to follow directions and provide the details for each disqualifying criminal event.8/ Also, Ms. Alvarez was concerned that Petitioner's failure to acknowledge that someone was "harmed" by the theft or forgery crimes ignores that there were victims involved, and the response fails to show an acceptance of responsibility for the crime(s). Ms. Alvarez testified that the Agency has no idea what happened with each of the disqualifying events, or of any circumstances that were happening at the time that would allow APD to understand why Petitioner would commit the offenses, and that there was no acknowledgment of any harm to any victims. In the opinion of Ms. Alvarez, the training certificates provided by Petitioner were not persuasive evidence of rehabilitation. More specifically, they were only indicative of employment training and did not include anything in terms of addressing Petitioner's substance abuse issues, her inability to manage her finances, or her involvement in acts of domestic violence. In APD's opinion, the lack of any treatment or professional counseling for those issues militated against a finding of rehabilitation. Likewise, Petitioner did not describe her alleged six- month, in-house drug rehabilitation program in the exemption application, nor was there any certificate of completion of drug treatment provided. APD concluded that Petitioner used poor judgment during an incident when she invited her friend, Ms. Cunningham, to spend a day on the job at Martin Group Home with Petitioner's disabled and vulnerable children. APD felt that this was a breach of client confidentiality, HIPAA rights, and may have put some of the children at risk around a visitor who did not have a background check or clearance to be at the facility. There were no professional references or letters of support offered by Petitioner from past employers (other than from group homes involving her relative). Likewise, there were no letters attesting to her good moral character from her church or other faith-based relationships she may have established. Ms. Alvarez testified that the reason the Agency wants letters of reference from individuals who do not have a conflict of interest is to show her character. Examples of letters of reference would be from a pastor or from an organization where someone had volunteered. The letters provided by Petitioner, while useful, did not reflect an impartial view of her character.9/ The Agency determined that it had no basis of reference for the character of Petitioner due to her failure to provide more impartial references.10/ In Ms. Alvarez's opinion, after reviewing the completed application, Petitioner had not provided any evidence, and APD had no knowledge, to support a finding of rehabilitation. Furthermore, APD did not have any knowledge of any financial planning or budgeting courses that Petitioner may have taken to show rehabilitation in the area of her finances. APD considered it significant during its review that Petitioner had been charged with driving while license suspended ("DWLS") (a criminal traffic offense) in 2012 and again in 2013, less than two years before the application. (Both DWLS offenses were subsequently dismissed.) Respondent's Exhibit 9, Petitioner's Florida Comprehensive Case Information System driving record, reflects in excess of 20 failures to pay required highway tolls in a two-year period from 2012 to 2013.11/ Petitioner did not provide any explanation for her driver's license problems to the Agency at the time of her Exemption Application. The Agency had no knowledge of the facts and circumstances surrounding the DWLS citations. Ms. Alvarez testified that traffic offenses and driving habits are important considerations, since direct service providers are often required to transport persons with developmental disabilities In essence, APD concluded that Petitioner had fallen short of her burden of showing rehabilitation by clear and convincing evidence.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Persons with Disabilities confirm its previous intended denial and enter a final order denying Petitioner's application for an exemption from disqualification. DONE AND ENTERED this 27th day of July, 2016, in Tallahassee, Leon County, Florida. S ROBERT L. KILBRIDE 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 27th day of July, 2016.
The Issue Whether Respondent engaged in unlawful employment practices with regard to Petitioner.
Findings Of Fact Graham is a black male. He filed an employment application with Pier 1, a "chain retailer," on August 23, 1999. The application indicated that he applied for a position as a sales associate but in fact he was to be employed as a stockroom assistant. His employment application included a block denominated, "Work Availability." Graham completed this block indicating that he was available to work between 6:00 a.m., and 12 p.m., Monday through Saturday. The employment application stated in the block denominated, "Work Availability," the following: "Although an effort will be made to accommodate individual work schedule preferences and availability, work schedules such as start time, number of daily or weekly hours and assigned work days are subject to change at any time. Availability to work on weekends is required. Number of hours may vary based on business necessity and could change an individual's employment status." Graham was hired on August 30, 1999, as a full-time employee. He worked primarily in the back stockroom. A meeting of store personnel was scheduled at the store on Sunday, November 17, 1999, at 6:30 p.m. Graham was aware of the meeting. He was 20 minutes late because he was participating in a church service at Macedonia Primitive Baptist Church. As a result of his tardiness he was presented with an Associate Corrective Action Documentation, which is a confidential Pier 1 form. The form noted that this was his first "tardy." The form as completed took no action such as suspension or loss of pay. It merely informed him that further instances of tardiness could lead to disciplinary action. Graham testified that he was treated differently from a white woman employee, one Christy Musselwhite, who did not attend the meeting, because Musselwhite did not receive a counseling form. However, Graham's personal knowledge of Musselwhite's situation was insufficient to demonstrate that Musselwhite was treated differently from Graham because of race or gender. Graham felt humiliated because he received the Associate Corrective Action Documentation form. Graham resigned from Pier 1 effective November 12, 1999, so that he could begin employment with the Florida Department of Children and Family Services at a rate of pay in excess of that which he received at Pier 1.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Florida Commission Human Relations enter a final dismissing Petitioner's claim of discrimination. DONE AND ENTERED this 15th day of November, 2001, in Tallahassee, Leon County, Florida. HARRY L. HOOPER 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 15th day of November, 2001. COPIES FURNISHED: Russell D. Cawyer, Esquire Kelly, Hart & Hallman 201 Main Street, Suite 2500 Fort Worth, Texas 76102 Kenneth Terrell Graham 2811 Herring Drive Tallahassee, Florida 32303-2511 Cecil Howard, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Denise Crawford, Agency Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Ronni Morrison Pier 1 Imports Post Office Box 961020 Fort Worth, Texas 76161-0020
