Findings Of Fact Upon consideration of the oral argument adduced at the hearing, the following relevant facts: In November of 1983, the Captiva Erosion Prevention District (CEPD) submitted an application from the DER to construct an experimental "on-site stabilization system along 650 feet of Captiva Erosion Prevention District. The application listed Petitioner Arthur Learned, president, Learned Engineering and Development, Inc. as authorized agent. Drawings attached to the application show a location plan, a site plan and a plat. Each drawing is on Learned Engineering and Development, Inc. letterhead and is signed by Arthur Learned. The application noted that the project was "ex* NOTE: The continuation of words on this paragraph line are unreadable as viewed in the original document on file in the Clerk's Office and therefore not available in this ACCESS document. judged harmful, can be undone." 3. A Joint U. S. Army Corps of Engineers Permit Application Appraisal was performed* NOTE: The continuation of this paragraph along with pages 3 and 4 of the original document on file in the Clerk's Office are not available therefore not included in this ACCESS document. limitations of authority of resident project representative." Petitioner notes in a letter to the CEPD that said duties are in addition to those normally provided by the Engineer as Owner's representative during construction. Among the listing of the duties of a Resident Project Representative (RPR) is a provision which states that through more extensive on-site observations of the Work in progress and field checks of materials and equipment by the RPR and assistants, ENGINEER shall endeavor to provide further protection for OWNER against defects and deficiencies in the Work; but the furnishing of such services will not make ENGINEER responsible for or give ENGINEER control over construction means, methods, techniques, sequences or procedures or for safety precautions or programs, or responsibility for CONTRACT0R's failure to perform the Work in accordance with the Contract Documents. At some point in February of 1986, the DER discovered that concrete had been used in a portion of the stabilizers. Petitioner met with the DER staff concerning this permit violation, and explained that concrete, rather than sand, was placed in the bags due to changed conditions. Petitioner was told that any change in design needed approval from the DER. By letter dated February 28, 1986, Petitioner requested a modification of the permit to include the substitution of concrete intersection as stabilizer tie-in and filler. The after-the-fact permit modification was granted by letter dated May 26, 1986, addressed to the petitioner. The modification allowed the use of concrete-filled bags to construct the most landward portion of the six permitted groins to a maximum length of 13 feet from the landward connection. It did not permit concrete bags beyond the 13 foot distance. On or about March 6, 1986, petitioner completed a Certificate of Substantial Completion for the Sand Core Filter Beach Stabilizers, indicating the date of substantial completion to be February 16, 1986. Prior to the modification authorized on May 26, 1986, the petitioner received a letter from DER dated March 24, 1986. This letter notified Mr. Learned that the permit did not authorize placement of concrete within the permitted sand bags, and that, in order to correct the outstanding violations, the concrete material must be removed from the sand bags. Petitioner was request to remove all sand bags that contained cement within fourteen days. Based upon DER's prior correspondence with petitioner Learned during the permitting process, as well as its investigation, on-site inspections, meetings, telephone conversations and a sworn affidavit from the Chairman of the CEPD regarding the CEPD's lack of knowledge of noncompliance with the conditions of a similar Department of Natural Resources' permit, DER staff believed that petitioner Learned (along with the contractor) was the responsible party in the decision to use concrete in the sand bags and that the CEPD relied upon the petitioner and the contractor to adhere to permit conditions. The DER did not review the contract documents regarding petitioner's services to the CEPD prior to instituting proceedings against the petitioner. On August 5, 1986, the DER issued a Notice of Violation and Orders for Corrective Action against Erosion Control Systems, Inc. and Learned Engineering and Development, Inc. The Findings of Fact contained therein recite that Learned Engineering and Development, Inc. and Erosion Control Systems, Inc. are the agent and contractor respectively for the CEPD. Violations of Chapter 403 were found and specific corrective actions were proposed. The corrective action to be taken was the removal of all concrete bags waterward of the 13 foot mark, the refilling of said bags with sand, the removal of any bags containing asphalt and the return of all disturbed areas to pre-removal conditions. Learned Engineering and Erosion Control Systems were also to make payment to the DER in the amount of $392.60 for expenses incurred in investigating the matter. On March 16, 1987, DER issued an Amended Notice of Violation and Orders for Corrective Action. This document named the Captiva Erosion Prevention District, Erosion Control Systems, Inc. and Learned Engineering and Development, Inc. as respondents, and noted that CEPD was the permittee, that petitioner Learned was the authorized agent on the project for CEPD and that Erosion Control Systems was the project contractor employed by CEPD. The Amended Notice is substantially similar to the initial Notice, but adds a further violation regarding the use of turbidity curtains during construction. It also adds a Count charging that Respondents Learned and Erosion Control conducted dredging and filling activities without a valid DER permit. The Orders for Corrective Action are identical to the initial Notice. DER subsequently resolved its dispute with the CEPD and, on March 11, 1988, filed a Notice of Voluntary Dismissal as to Erosion Control Systems and petitioner Learned Engineering. At the time of the initial Notice Of Violation and Orders for Corrective Action, petitioner was a for-profit corporation under the laws of Florida with its principal place of business in Venice, Florida. Due to financial difficulties caused, at least in part, by the DER's actions in the enforcement proceeding described above, Arthur Learned, President of Learned Engineering, closed the Florida office, semi-retired and moved to Georgia. Learned Engineering relocated to Georgia on January 1, 1987, and now has its principal place of business in Blairsville, Georgia. It does still maintain contacts in Florida and has recently performed other work in Florida. At all relevant times, Petitioner has had less than 25 employees and a net worth of less than $2,000,000.00. Petitioner incurred attorney's fees and costs in the amount of $5,127.07 in defense of the administrative proceedings described above.
The Issue The issue for disposition in this case is whether Respondents have implemented agency statements that meet the definition of a rule, but which have not been adopted pursuant to section 120.54.
Findings Of Fact Petitioner, Robert Wood, P.E., is a Florida-licensed professional engineer, holding license No. PE 31542. A large part of Petitioner?s work involves the design of aluminum-framed structures. Respondents, DBPR and FBPE, are charged with regulating the practice of professional engineering in the State of Florida, pursuant to chapters 455 and 471, Florida Statutes, and the rules promulgated thereunder, Florida Administrative Code Chapter 61G15. The FEMC is a public-private partnership established by the legislature to provide administrative, investigative, and prosecutorial services to the FBPE. By statute, the FEMC operates under a written contract (Contract) with the DBPR, which Contract is approved by the FBPE. Term of the Contract From the creation of FEMC in 1997 until 2000, the legislature provided that the required written contract was to be “renewed annually.” In 2000, the legislature amended section 471.38 to require that the written contract be an “annual contract.” In 2003, the legislature again amended section 471.38 to repeal the requirement that the contract be an annual contract. There is currently no specified term or time for renewal for the required written contract. The DBPR and the FEMC have elected to continue to enter written contracts with a term of one year. Determination of Legal Sufficiency Since its creation in 1997, section 471.038 has provided that “[t]he corporation may not exercise any authority specifically assigned to the board under chapter 455 or this chapter, including determining probable cause to pursue disciplinary action against a licensee, taking final action on license applications or in disciplinary cases, or adopting administrative rules under chapter 120.” The only change to that restriction was made in 2000, when the term “corporation” was changed to “management corporation.” In 2000, the legislature also enacted the Management Privatization Act, section 455.32, Florida Statutes. That Act was intended to establish a model for the creation of non-profit corporations with which the DBPR could contract for “administrative, examination, licensing, investigative and prosecutorial services to any board created within the department.” The similarities between section 471.38 and section 455.32 make it obvious that the latter was largely patterned after the former. Among the duties to be performed by a “corporation” under section 455.32(10) is to: . . . make a determination of legal sufficiency to begin the investigative process as provided in s. 455.225. However, the department or the board may not delegate to the corporation, by contract or otherwise, the authority for determining probable cause to pursue disciplinary action against a licensee, taking final action on license actions or on disciplinary cases, or adopting administrative rules under chapter 120. In previous years, at least through 2001, the written contract between the DBPR and the FEMC provided that “FEMC shall not exercise the police powers inherent in the Department and the FBPE including a determination of legal sufficiency or insufficiency of a disciplinary complaint.” At some time after the passage of the Management Privatization Act, the contractual “police powers” restriction was changed, and now reads, as reflected in the current Contract, as follows: Except when providing those prosecutorial and investigative services set forth in this Agreement, FEMC shall not exercise the police powers inherent in the Department and the FBPE under Chapters 455 or 471, Florida Statutes, including determining probable cause to pursue disciplinary action against a licensee, other than failure to comply with final orders of the Board as set forth in Rule 61015-18.005(2), Florida Administrative Code, taking final action on license applications or in disciplinary cases, or adopting administrative rules under Chapter 120, Florida Statutes. Prosecutorial servicing shall only be executed in the name of FBPE. That contractual restriction is consistent with the statutory limitation on the powers of the FEMC set forth in section 471.38. In its current form, the Contract establishes the services that are to be provided by FEMC to the DBPR and the FBPE. The list of prosecutorial services to be provided by FEMC include coordinating with investigators, reviewing and taking “appropriate action” on complaints, and preparing cases for presentation to the FBPE probable cause panel. The list of investigative services to be provided by FEMC include receiving complaints, interviewing complainants, witnesses, and subjects of complaints, issuing subpoenas, preparing investigative reports, and taking other actions leading to the prosecution of a case. The Contract does not specifically address the issue of determining legal sufficiency. The typical procedures of the FEMC in performing its investigatory functions are initiated when the FEMC receives a complaint by various means, including telephone, e-mail, or submission of a written complaint. Written complaints are normally directed to the FEMC chief prosecutor, who assigns them to an investigator for initial review. If the complaint is verbal, the investigator fielding the call will ask the complainant to file a written complaint. If a complaint is unaccompanied by information to substantiate the claims, the investigator typically requests supporting documentation, which may be a set of engineering plans, a report, or similar evidence of the facts underlying the complaint. In a procedure implemented by the FEMC in 2012, after receipt of the complaint and supporting documentation, the investigator forwards the complaint to an engineering expert retained by FEMC for a pre-review. The expert prepares a preliminary report which is then considered in the determination of legal sufficiency. Prior to implementation of the 2012 pre- review procedure, the determination of legal sufficiency was made without the benefit of a pre-review report in the manner otherwise described below. After receipt of the complaint, the supporting documentation, and, since 2012, the pre-review report, the investigator presents the complaint to the FEMC chief prosecutor. If the chief prosecutor determines that the complaint is not legally sufficient, the investigator is instructed to draft a memorandum for the chief prosecutor to review, which is in turn submitted to the FBPE Executive Director for signature. If the chief prosecutor determines that the complaint is legally sufficient, he or she verbally authorizes the investigator to place the engineer on notice of the investigation. At that point, the complaint is investigated using the investigative tools available to FEMC as set forth in the Contract. If sufficient evidence that a violation has occurred is found, the investigation culminates in a recommendation to the FBPE probable cause panel for a decision as to whether the panel believes there to be probable cause to proceed with disciplinary action. The decision to proceed with a disciplinary proceeding requiring a point of entry to challenge the action is entirely that of the FBPE probable cause panel. Probationary Project Review On November 4, 2009, FBPE entered a disciplinary final order regarding Petitioner that incorporated a stipulated settlement agreement, and imposed sanctions on Petitioner, including probation. By his entry of the settlement stipulation, Petitioner agreed to a “project review” at six and eighteen-month intervals. The project review consisted of the submission by Petitioner of a list of all completed projects. That list was provided to an engineering expert, who then selected two of the projects for a more comprehensive review. The steps to be performed by Petitioner and the FBPE are generally described in Project Review Process Guidelines that were provided to Petitioner by FBPE as an attachment to the notice of the two projects selected for comprehensive review. As a result of the project review, the two projects were determined to violate engineering standards, which resulted in the FEMC making a recommendation of probable cause to the FBPE probable cause panel. The probable cause panel found probable cause, leading to the issuance of an Administrative Complaint against Petitioner. Petitioner introduced evidence of one other case in which a project review was required as a condition of probation. In that case, an administrative law judge, after having determined that the professional engineer committed violations of section 471.033 and Florida Administrative Code Rule 61G15- 19.001, recommended imposition of “probation for two years with appropriate conditions for this case.” The Final Order, entered on March 12, 2008, imposed the recommended probation “with a plans review at 6 months and 18 months from the date of this Order.” The basis for the imposition of that sanction was not explained. There was no evidence introduced at the final hearing as to any other specific case in which a project review was required, other than the case involving Petitioner. The 2012 FEMC Annual Report, which is a business record of the FEMC, indicated that between July 1, 2011 and June 30, 2012, the FEMC was involved in the investigation and/or prosecution of 32 cases in which Administrative Complaints were filed against engineers. Disciplinary sanctions imposed against engineers during that one-year period included, among others, twenty-five reprimands, six license suspensions, eight probations, seven license restrictions, two voluntary license relinquishments, and four license revocations. Also included among the sanctions imposed during that period were three project reviews. The sanction of project review is one that is, statistically, used sparingly by the FBPE. There was no evidence introduced to establish the criteria, if any, for the imposition of a project review as a condition of probation, or to demonstrate that it was generally applied in any specific circumstances.
The Issue Whether Respondent has committed the acts alleged in the Stop Work Order and Order of Penalty Assessment and if so, what penalty should be imposed.
Findings Of Fact The Department is the state agency responsible for enforcing the statutory requirement that employers secure workers' compensation insurance for the benefit of their employees. § 440.107, Fla. Stat. On August 11, 2006, Robert Lambert, the Jacksonville District Supervisor for the Division of Workers' Compensation, Bureau of Compliance, was contacted by Katina Johnson, an investigator for the Division.1/ Based on the information provided to him by Ms. Johnson, Mr. Lambert approved the issuance of a Stop Work Order against Capella Ventures, Inc. The investigator served a Stop Work Order and Order of Penalty Assessment, both by posting at the worksite and by hand delivery, on Capella Ventures. The Department investigator also issued a Request for Production of Business Records for Penalty Assessment, requesting records for a period of three years, from July 31, 2003. These records were requested in order to calculate the penalty required pursuant to Section 440.107, Florida Statutes, for not having workers' compensation insurance. The records were to be used in conjunction with the classification codes contained in the Basic Manual (Scopes Manual) published by the National Council on Compensation Insurance. Records were provided by Capella Ventures' counsel. Based on the records provided, an Amended Order of Penalty Assessment was prepared, assessing a penalty of $8,769.16. Mr. Peter King was, at all times material to this case, an officer of Capella Ventures, along with his father. His father is now deceased. Mr. King admitted that workers from Capella Ventures were assisting his father with a construction project on a home next to the home where they lived. He did not dispute that the workers were performing construction work and that the company had no workers' compensation coverage for them at the time. Nor did he dispute the amount of the penalty reflected in the Amended Order of Penalty Assessment. He contended that while his father performed the framing on the property, one of the two other employees did not have the skill to actually perform framing. The class code used by the Department to determine the appropriate penalty was 5645, which is used for carpentry operations on residential structures. Use of this code was appropriate. Capella Ventures filed for an address change in August of 2006, and voluntarily dissolved in January of 2008. No evidence was presented regarding what actions were taken by Capella Ventures with respect to the dissolution of the corporation. No evidence was presented regarding what, if any, distribution of assets was undertaken at the time of dissolution. No evidence was presented to indicate that any successor corporation or entity was formed upon the dissolution of Capella Ventures.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered finding that Respondent, Capella Ventures, Inc., violated Section 440.107, Florida Statutes, by failing to secure workers' compensation for its employees, and assessing a penalty of $8,769.16. DONE AND ENTERED this 10th day of September, 2008, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 10th day of September, 2008.
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
The Issue The issue in this case is whether the Respondent, the Department of Insurance, should pay reasonable attorney fees and costs to Crudele under Section 57.111, Florida Statutes (1997), the Florida Equal Access to Justice Act, after Crudele appealed and reversed the Department's Emergency Order of Suspension.
Findings Of Fact On July 15, 1996, the Department issued an Emergency Order of Suspension of Crudele's eligibility for licensure and license as a Florida life insurance agent and life and health insurance agent. The Emergency Order of Suspension was based on alleged violations of the insurance code in connection with the surrender of insurance annuities for purchase of a startup company's unsecured promissory notes. It stated: Based on the foregoing specific facts and for the reasons of protecting the insurance-buying public and insurers from further harm, preventing further abuses of fiduciary relationships, and preventing further defrauding of insureds and insurance companies by the [Petitioner], the Insurance Commissioner finds that [Crudele] constitutes and is an immediate and serious danger to public health, safety, or welfare necessitating and justifying the Emergency Suspension of all licenses and eligibility for licensure and registrations heretofore issued to [Crudele] under the purview of the Department of Insurance. The danger, more specifically, is to the insurance-buying public which must place its trust in the honesty and competence of insurance agents. The trust involves the responsibility that insurance agents have for fiduciary funds accepted by them and insurance matters entrusted to them. The danger is clear and present that failure to properly handle such funds and matters may cause serious losses and damage to the insurance-buying public. Prior to issuance of the Emergency Order of Suspension, the Department received two verified complaints--one by the alleged victim, and the other by her adult daughter. The complaints alleged essentially: Crudele was introduced to Mary Clem, an 84 year-old widow of a tenant farmer, by Charles Perks, Clem's insurance agent, in 1992. In 1992, Crudele and Perks solicited and sold Clem two annuities for a total of $50,000, representing Clem's life savings from working in sick people's homes as a nurses aide. A year after selling the annuities, Crudele and Perks returned to Clem and convinced her to invest the money she had in her annuities into a new company called Zuma that was to recycle automobile tires into useful products. Crudele and Perks represented that Zuma was a "sure fire business." They said they were offering Clem the opportunity to get "in on the ground floor" and that the stock would then go on the open market and double in value. Clem did not have a great deal of education and had no experience investing in stocks or bonds. Her sole source of income was Social Security plus her modest savings. She conceded that when she was offered a 12% interest rate, she found the offer too irresistible to refuse. Neither Crudele nor Perks gave Clem a prospectus or any other descriptive brochure about Zuma. Clem purchased a total of three Zuma promissory notes at three separate times for a total of $60,000. This represented the bulk of her retirement savings. Clem acted based on her trust and confidence in Crudele and Perks. Clem later went to a lawyer to draft a will. The lawyer became very concerned about Clem's purchases of the Zuma promissory notes and her inability to understand the nature of the transaction. Clem was not getting any of her payments from Zuma as promised. Clem was "going out of her mind" with worry. She summoned her daughter, Roberta Anderson, to come down to Florida from Indiana to investigate the matter. Anderson was unable to contact Crudele, and he did not contact her. Anderson and Clem were not aware of any efforts on Crudele's part to recover the funds or otherwise remedy the situation. After a great deal of effort, Anderson was able to recover approximately $23,000 of her mother's money. Crudele apparently played no part in helping Anderson recover the $23,000. The Zuma notes went into default, and apparently the remainder of the money was lost. Clem suffered a very serious financial loss that, given her circumstances, she could ill afford. It may be inferred from the evidence that the Department based its Emergency Order of Suspension on the Clem and Anderson verified complaints. There was no evidence of any other basis for the Emergency Order of Suspension. There was no evidence as to whether the Department conducted any investigation of any kind prior to entry of the Emergency Order of Suspension. Nor is there any evidence as to the Department's decision-making process. The Emergency Order of Suspension stated: (1) that it was being issued pursuant to "sections 120.59(3) [and] 120.60(8) [now Section 120.60(6), Florida Statutes (1997)], Florida Statutes [1995]; (2) that Crudele had "the right to request a hearing in accordance with the provisions of Section 120.59(4), Florida Statutes [1995]"; and (3) that Crudele "was entitled to seek review of this Order pursuant to Section 120.68, Florida Statutes [1995], and Rule 9.110, Florida Rules of Appellate Procedure." The Emergency Order of Suspension also stated that an Administrative Complaint seeking final disciplinary action would be filed within 20 days. On July 15, 1996, the Department filed an Administrative Complaint on essentially the same allegations as those in the Emergency Order of Suspension. Crudele sought judicial review of the Emergency Order of Suspension in the District Court of Appeal, First District. On August 19, 1997, the court issued an Opinion reversing the Emergency Order of Suspension because it did not "set forth particularized facts which demonstrate sufficient immediacy or likelihood of continuing harm to the public health, safety, and welfare to support a suspension of his license without notice and hearing." The court's Mandate issued on September 4, 1997; it referred to the court's Opinion and commanded that "further proceedings, if required, be had in accordance with said opinion, the rules of Court, and the laws of the State of Florida." The Administrative Complaint filed against Crudele was given Division of Administrative Hearings (DOAH) Case No. 97-2603. On February 17, 1998, a Final Order sustaining some of the charges and suspending Crudele's license and eligibility for licensure for six months was entered in Case No. 97-2603.
The Issue Whether Petitioner, a member of a protected class, was denied promotion to the position of Secretary III with the Respondent in the Environmental Services Department on or about June 10, 1992, on the basis of her race (African- American), in violation of Section 760.10(1)(a), Florida Statutes (1991).
Findings Of Fact The Respondent is a constitutionally created school district charged with the duty to operate, control, and supervise all free public schools in Brevard County, Florida, and is an employer under the Florida Human Relations Act of 1977, as amended. Petitioner was employed by the Brevard County School District as a Clerk-Typist in the Environmental Services Department during the relevant period of time including April 1992. Petitioner is an African-American, and a member of a protected class. She is the only African-American who is assigned to work in the Environmental Services Department. During April of 1992, Petitioner worked as a Clerk Typist in the Environmental Services Department, and the Secretary III position was held by Sylvana Wall. Subsequent to April of 1992, Sylvana Wall resigned, creating a vacancy in the Secretary III position in the Department. In the interim period from the time Sylvana Wall resigned, and the date the position was filled in July of 1992, Petitioner undertook to perform the duties of the Secretary III position, and in accordance with the applicable collective bargaining agreement, was paid for said period of time in the higher classification. Following creation of the vacancy, a job vacancy announcement was posted and advertised. Applications were received and reviewed by a selection committee composed of Irma Reinpoldt, Department Director, and Michael Rogers, Environmental Engineer. Petitioner submitted application for the vacant position. Subsequently, applicants except Petitioner, were interviewed by the committee, and a decision was made to employ applicant Rhonda Steward, a white female, for the Secretary III position in the Environmental Services Department. Petitioner was not personally interviewed for the Secretary III position by the committee. They based their decision on the fact that Petitioner had been working for the department as a clerk typist for a number of months, and she had also filled in as the Secretary III for several months when the vacancy was created until the position was filled. Both members of the committee knew the Petitioner, her capabilities and qualifications, and considered it "redundant" to interview her. There was no School Board policy, custom, or practice that required the employer to personally interview all applicants for vacancies. The candidate selected, Rhonda Stewart, was fully qualified to fill the Secretary III position. The evidence showed that during the relevant period there were certain conflicts in the Department, not related to race. There was evidence of personality disputes, such as name calling, and unwillingness by Petitioner to do secretarial functions for certain members of the Environmental Services Department, particularly an Environmental Specialist who was dyslexic. In addition, certain co-employees did not get along with the Petitioner and vice versa. However, there was no indication from the sworn testimony that race played a part in the decision made by the Respondent to hire someone else for the position. It was the practice of Respondent that the immediate supervisor and department head determine who was the best qualified for a job vacancy, subject to any review by the Personnel Division. The Petitioner presented no testimony including her own, that she did not get promoted to the Secretary III position because of her race, or that there was disparate treatment of African-Americans by the Respondent in the hiring or promotion of minorities.
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 which DENIES the Petition for Relief. DONE AND ENTERED this 20th day of October, 1993, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of October, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-2650 The following constitute my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner did not submit proposed findings of fact. Proposed findings of fact submitted by Respondent: Accepted in substance: paragraphs 1, 2, 3, 4, 5, 6, 7, 8(in part), 9, 10(in part), 11 Rejected as irrelevant, immaterial or as comment on the evidence: paragraphs 8(in part), 10(in part) COPIES FURNISHED: Cislyn Stephenson Emil Stephenson Qualified Representative 2298 September Street Melbourne, Florida 32935 Bill Walker, Esquire School Board of Brevard County 2700 St. Johns Street Melbourne, Florida 32940 Dana Baird General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Sharon Moultry, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Honorable Betty Castor Commissioner of Education Department of Education The Capitol Tallahassee, Florida 32399-0400 Sydney H. McKenzie General Counsel Department of Education The Capitol, PL-08 Tallahassee, Florida 32399-0400
Findings Of Fact Florida law requires that persons employed to serve in instructional capacities in the public schools hold valid certificates to teach. The Respondent, Florida Department of Education, is charged by statute with the responsibility of issuing such teaching certificates, and with the concomitant responsibility to suspend or revoke teaching certificates under appropriate circumstances. Sections 231.14 - 231.28, Florida Statutes. Purporting to act under authority of this statutory framework, the Respondent has adopted Rules 6A-4.37, and 6B-2.01 through 6B-2.17, Florida Administrative Code, as its rules establishing practices to be followed in suspending or revoking teaching certificates. The Respondent's rules establish a procedure whereby a teacher charged with conduct that would justify suspension or revocation of a teaching certificate is presented with the options of taking no action, which results in informal procedures at which the appropriate penalty is the only issue; or of requesting a hearing. If a hearing is requested, the teacher is permitted to choose between a hearing conducted by a Hearing Officer of the Division of Administrative Hearings as provided in Section 120.57(1), Florida Statutes, or a hearing conducted by a panel of the Professional Practices Council ("PPC" hereafter). Rule 6A-4.37(2) provides in pertinent part as follows: When the commissioner of education finds that probable cause exists, he shall direct a filing of a formal petition against the certificate holder for the revocation or suspension of a teacher's certificate, together with a form permitting waiver of a hearing officer pursuant to section 120.57(1), Florida Statutes, as hereinafter provided. If section 120.57(1), Florida Statutes, shall be waived by both the respondent and the chairman of the professional practices council by executing and filing the waiver form with the commissioner of education within twenty (20) days from service of the petition upon the respondent, the commissioner of education shall direct the chairman of the professional practices council to prosecute the matter before a hearing panel of three members of the professional practices council each of whom has not participated in nor was an informed party in any preliminary investigation of the cause. If section 120.57(1) Florida Statutes, is not waived by the parties, the matter shall be prosecuted before a hearing officer of the division of administrative hearings. The professional practices council may retain an attorney to prosecute the cause. The professional practices council may retain a different attorney to advise the hearing committee and act as a law officer for said committee. On completion of the hearing as hereinafter set forth, the hearing panel or officer, shall transmit through the commissioner of education to the state board of education a transcript of the proceedings and a report, which shall contain specific findings of fact, conclusions of law, interpretations of rules and a recommended order. The state board of education shall review the transcript of testimony and the report. The waiver form utilized is as follows: WAIVER OF RIGHT TO A HEARING BEFORE A HEARING OFFICER OF THE DIVISION OF ADMINISTRATIVE HEARINGS IN PREFERENCE TO A HEARING BEFORE A PANEL OF THE PROFESSIONAL PRACTICES COUNCIL In the matter of the revocation of the teaching certificate of and pursuant to the provisions of 120.57, Florida Statutes, I hereby waive my right to a hearing before a hearing officer of the Division of Administrative Hearings. In the alternative I do hereby request that this matter be heard before a panel of professional educators from the membership of the Professional Practices Council as provided in 6A-4.37, Rules of the State Board of Education. DATE RESPONDENT The remaining paragraphs of 6A-4.37 delineate specific procedures to be followed whether the hearing is conducted by a Hearing Officer, or by a PPC panel. The rule was adopted at a May, 1977 meeting of the State Board of Education. Prior to its adoption, public hearings were conducted, and members of the public, including the Petitioner, were allowed an opportunity to comment. The Joint Administrative Procedures Committee of the Florida Legislature reviewed the rule. The rules set out at Chapter 6B-2.01 through 6B-2.16, Florida Administrative Code, establish additional procedures for public hearings conducted by the PPC. These rules pertain to teaching certificate suspension or revocation proceedings and to other matters. They are in large part inconsistent with the provisions of Rule 6A-4.37, and with the Administrative Procedure Act (Ch. 120, Florida Statutes). The rules are no longer followed by the PPC except those provisions which relate to the appointment of a law officer to aid a PPC panel in conducting hearings. The Respondent has been in the process of revising these rules for more than one year. Rule 6B-2.17 relates to probable cause hearings to be conducted by an executive committee. The rule is somewhat vague, but it appears to relate to proceedings under Section 231.57, Florida Statutes, rather than teaching certificate suspension or revocation proceedings. The rule does not relate to the issue of whether a final hearing will be conducted by a Hearing Officer of the Division of Administrative Hearings, or a panel of the PPC. During 1977, three-member PPC panels conducted thirteen hearings in teaching certificate suspension or revocation proceedings. Fourteen such hearings were conducted by Hearing Officers. During 1978, eighteen were conducted by PPC panels, and eleven by Hearing Officers. The Petitioner, Florida Education Association/United AFT-AFL-CIO, is a statewide organization composed of persons involved in the field of education. The members are primarily teachers. The Petitioner is a confederation of local affiliates. Its local affiliates serve as collective bargaining representatives for teachers in approximately half of the local school districts in Florida. Among the Petitioner's functions are to protect its members, and members of the teaching profession with respect to the terms and conditions of their employment as teachers. The Petitioner provides services which local affiliates are largely unable to perform, including legal assistance and lobbying assistance. In many instances the Petitioner provides legal counsel to its members in connection with teaching certificate suspension or revocation proceedings. At the Petitioner's October, 1978 convention, its members authorized Petitioner's executive council to examine the status of the PPC, and to take steps to clarify the role of the PPC. The instant rule challenge was authorized by the executive council in accordance with that mandate of the membership. There are approximately 90,000 teachers in Florida. The Petitioner represents approximately 30,000 of them.
