The Issue The issue in this case is whether the Construction Industry Licensing Board should discipline the Respondent, Ysidro Cid Fernandez, on the basis of the charges alleged in the Administrative Complaint which the Petitioner, the Department of Professional Regulation, filed against him on November 30, 1987.
Findings Of Fact The Respondent, Ysidro Cid Fernandez, is licensed as a certified roofing contractor in the State of Florida, holding license number CC-C029602. The Respondent's license was in effect at all times referred to in these Findings of Fact. On or about March 15, 1986, an employee of Sunshine Solar and Roofing, a roofing company for which the Respondent acted as qualifying agent, entered into a contract with Fred Chambers to re-roof a house Chambers owned at 5871 64th Terrace North, Pinellas Park, Florida. The house was a small house, with not more than 1000 square feet of living area, and the contract was to re-roof the entire house for $600 plus tax ($31.50). The shingles to be used were to be 20-year shingles. The contract also provided: "Install on front F/S [far side] 8' long 5" wide T/G [tongue in groove] board." The Respondent's company did the work in April, 1986. Chambers paid the full amount of the contract, $200 down and the balance on or about May 1, 1986. Despite the re-roof, the roof still leaked where it did before the work was done. When Chambers called for warranty repair work, the Respondent refused until Chambers paid what the Respondent said was the cost of extra work the Respondent claimed Chambers had had the Respondent's workers do. The Respondent first came to the opinion that extra work had been done after he received invoices from his supplier indicating that his employees had ordered 1600 square feet of shingles for the job. The Respondent asserted that the contract called for only the front far side of the roof to be replaced. He bases this interpretation of the contract on the language quoted in the last sentence of Finding 2, above. The Respondent claimed that 1600 square feet was twice as much shingle as would be needed to re-roof half of the existing roof. Regardless whether the Respondent's employees ordered too much shingle for the Chambers job, or where the extra shingle might have gone, if not on the Chambers roof, the contract provided for the entire Chambers roof to be replaced for the contract price. The Respondent was not justified in demanding additional money before doing warranty work. The City of Pinellas Park, Florida, the governmental entity with jurisdiction over the Chambers job, required that a building permit be obtained before commencing the Chambers re-roofing construction. The City of Pinellas Park also required inspections of the Chambers re-roofing job. The Respondent claimed to have timely obtained a building permit for the Chambers job and, in testimony at final hearing, detailed an elaborate story about how he went about getting one. But the Respondent's own evidence, in the form of late-filed Respondent's Exhibit 2, establishes that he did not apply for the building permit until December 17, 1987, after receiving notice through the November 30, 1987, Administrative Complaint in this case, that the Department was charging him with failure to obtain a building permit for the job. Not having obtained a building permit, the Respondent did not call for the required inspections for the job. The evidence did not prove that the Respondent was grossly negligent or incompetent in estimating the cost of the Chambers job. First, the evidence did not prove that the job was seriously underestimated; to the contrary, the evidence tended to show that the Respondent's employees ordered more material than needed for the job. (When this came to the Respondent's attention, he unfairly blamed Chambers for having his employees do extra work not called for by the contract.) Second, the Respondent had nothing to do with the cost estimate on the job. The Respondent's price per square foot of roof area was fixed; he depended on his employees to accurately measure the size of the roof being priced. There is no evidence how the Respondent went about training his employees to measure a roof for purposes of a cost estimate. The Respondent has been disciplined by the Construction Industry Licensing Board once before. He received a reprimand in August, 1987, for failure to obtain a building permit.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Construction Industry Licensing Board enter a final order suspending the Respondent's license for one year and fining the Respondent $2,500. RECOMMENDED this 25th day of July, 1989, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 25th day of July, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-0570 To comply with the requirements of Section 120.59(2), Florida Statutes (1987), the following rulings are made on the Petitioner's proposed findings of fact (the Respondent not having filed any): Rejected in part (the Respondent's name is not Thomas L. Jackson); otherwise, accepted and incorporated. Accepted and incorporated. Rejected in part; the evidence did not prove that the roof was unfinished or that the roof was done correctly or that the work was done incorrectly, only that it leaked after the work was done. 4.-6. Accepted and incorporated. Rejected as not proven by the evidence. (See 3., above.) Accepted and incorporated. COPIES FURNISHED: David Bryant, Esquire 13014 North Dale Mabry Suite 315 Tampa, Florida 33618 Ysidro Cid Fernandez 2700 North McDill Avenue Suite 204 Post Office Box 4726 Tampa, Florida 33607 Ysidro Cid Fernandez 8109 Rivershore Drive Tampa, Florida 33604 Fred Seely, Executive Director Department of Professional Regulation Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201 Kenneth Easley, Esquire General Counsel Department of Professional Regulation Northwood Centre 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0729
The Issue The issue in this case is whether Petitioner was the subject of an unlawful employment practice by Respondent.
Findings Of Fact Petitioner is a Black male. Respondent is a grocery supply company that operates several large warehouses. It supplies groceries to military commissaries. On November 26, 2002, Petitioner was hired by Respondent as a selector/stock picker. At some point, Petitioner became a stockchecker/loader. As such, Petitioner’s duties included gathering merchandise from Respondent’s warehouses, loading pallets and loading trucks. Petitioner’s primary work area was the front docks in the main warehouse; his direct supervisor was David Malloy. The main warehouse had two break rooms. Petitioner’s scheduled start time was 6:30 a.m. During the work day, Petitioner had scheduled breaks in the morning and afternoon. Each break was for 10 minutes. No breaks were scheduled between 6:00 a.m.-6:30 a.m. Additionally, Petitioner had a scheduled lunch period. Employees were notified of a break or lunch period through the PA system. There was no evidence that Mr. Malloy permitted unscheduled breaks. Prior to the end of January, 2008, GSC discovered that Hormel dinners and Capri Sun products were disappearing from the warehouse. Management and supervisors strongly suspected that these products were being stolen by employees. At some point, GSC supervisors found a hidden stash of food products in the break room of Building 11, one of Respondent’s warehouses also known as the repack area. This warehouse was located about 3-4 minutes’ walk away from the front loading docks in the main warehouse. In an effort to discover who had hidden the products, GSC supervisors were periodically checking the break room of Building 11. Between 6:00 a.m. and 6:30 a.m., on January 28, 2008, Kim Howell, a warehouse supervisor, entered the break room of Building 11 and saw Petitioner and Anthony Smith, also a loader, standing at a counter in the break room. Petitioner was drinking coffee and Mr. Smith was eating one of the Hormel products from the hidden stash. Ms. Howell asked what the two men were doing. Petitioner stated that he had come to Building 11 to get some coffee. He did not state that he had come to the warehouse to select any products. Mr. Smith did not explain his presence in Building 11 because he was eating. When Ms. Howell asked about the food he was eating, Mr. Smith admitted that the food was not his and that he did not know who it belonged to. Eventually, Ms. Howell instructed both men to “get back to work.” Both men returned to the front docks in the main warehouse. Eventually, Mr. Smith was sent home with instructions to return at 10:00 a.m. the next day. Petitioner remained at work. Ms. Howell retrieved the Hormel box from the trash and immediately reported the incident to her supervisor, Harry Madden. The product code on the Hormel box matched the product code of the hidden Hormel meals. Later, Ms. Howell told Petitioner the incident was being investigated. She indicated that he would be interviewed about the incident by Mr. Madden and that he should tell the truth. On January 29, 2008, Petitioner was interviewed by Mr. Madden. Ms. Howell was present. During the interview, Petitioner stated that he had gone to Building 11 to get a cup of coffee and that he saw Mr. Smith eating a Hormel meal in the break room when Ms. Howell entered the room. Mr. Madden and Ms. Howell thought Petitioner was more intent on asserting that GSC could not prove that Mr. Smith had stolen the product he was eating because the Hormel product could have been purchased anywhere in the Pensacola area. Mr. Madden asked Petitioner several times if he knew where Mr. Smith had gotten the Hormel product. Petitioner stated that he didn’t know because he saw the same thing that Ms. Howell saw, i.e., Mr. Smith eating the food. Mr. Madden felt Petitioner was being uncooperative based on the fact that he was in the break room with Mr. Smith and Petitioner’s attitude during the meeting. There was no evidence to show that Mr. Madden’s perception was unreasonable or a pretext for discrimination. Mr. Madden forwarded the issue of discipline to the Human Resources department, in part due to the perceived lack of cooperation by Respondent and, in part, due to the fact that Respondent was in a break room taking a break when it was not break time. The Human Resources department reviewed Petitioner’s work and discipline history. The records showed that Mr. Lindsey had been repeatedly warned and disciplined for tardiness. As testified to by Mr. Lindsey’s supervisor, Dave Malloy, the disciplinary write-ups included only those instances which warranted disciplinary action during a rolling six-month period. Because of his repeated tardiness, Petitioner had received a final warning. The records also showed that Mr. Lindsey had been disciplined for failure to adequately perform the duties of his position. Based on Petitioner’s disciplinary history and final warning, his presence in the break room during non-break hours, and his perceived refusal to cooperate during the company’s investigation of Mr. Smith’s activities, Mr. Lindsey was terminated on January 29, 2008. There was no evidence that Respondent’s reason for termination was unreasonable or a pretext to cover discrimination. Eventually, Mr. Smith admitted to the theft and was terminated for theft. Mr. Smith did not implicate Petitioner in the theft. Petitioner identified Kim Howell as the only non- minority employee who had allegedly been treated differently than him. He based his assertion on the fact that Ms. Howell was not terminated as he was over the events of January 28, 2008. However, Ms. Howell is clearly not similarly situated to Petitioner. She was authorized to be in Building 11 and was performing her investigative duties. She also was not on an unscheduled break. There was no evidence presented regarding Ms. Howell’s disciplinary history. In comparison, Petitioner was primarily terminated for being on an unscheduled break and for his past disciplinary history. Even though incorrect, Mr. Madden, based on the circumstances, reasonably believed that Petitioner was not cooperating in the investigation. Given these facts, the Petition for Relief should be dismissed.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a Final Order dismissing the Petition for Relief with prejudice. DONE AND ENTERED this 24th day of June, 2009, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER 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 24th day of June, 2009. COPIES FURNISHED: Fred Lindsey 5908 Princeton Drive Pensacola, Florida 32526 Michael S. Mitchell, Esquire Fisher & Phillips, LLP 201 St. Charles Avenue Suite 3710 New Orleans, Louisiana 70170 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issues to be resolved in this proceeding concern whether the Respondent imposed an unlawful employment practice upon the Petitioner, whether the Petitioner has a disability and was subjected to disability discrimination in the course of the purported unlawful employment practice or event.
Findings Of Fact The Respondent Willstaff Crystal, Inc., (Willstaff) is engaged in the business of employee staffing for client companies who need employees. The process essentially concerts of prospective employees submitting employment applications for job placement to Willstaff. Willstaff then seeks to place that person as a hired employee with a firm or company which is one of its clients, (i.e., has requested that Willstaff assist it in finding employees for its business). On or about August 18, 2003, the Petitioner, Janet Shaffer, made application with Willstaff for employment placement. The application was not for employment as an employee of Willstaff, but rather for placement in a job with a company which might be a client of Willstaff. After placing Ms. Shaffer in two temporary job assignments with two different employers, she was assigned a job placement with Moldex Inc., on about October 27, 2003. Her duties at Moldex consisted of performing assembly line-type duties including cutting rubber hoses using an "air Knife." The placement and job assignments that Willstaff had secured for Ms. Shaffer during 2003 were designed to be temporary employment assignments. At some point during her shift, while employed with Moldex, Ms. Shaffer was required to place a box on a shelf above her head. She had some difficulty doing so, she says, because of her arm or shoulder injury, and requested assistance from a co-worker. Ms. Shaffer testified at hearing that due to a previous shoulder injury she is unable to lift her right arm above shoulder level. Her shoulder causes her pain, but she was not currently under a doctors care and her injury did not limit any major life activities. In any event after working only two days with Moldex, Inc., she was released from employment at Moldex, Inc.'s request due to low job productivity. Ms. Shaffer believes according to her testimony, that Moldex, Inc., terminated her as a proximate result of her requesting assistance from a co-worker due to her inability to reach above shoulder level because of her pre- existing shoulder injury. Her testimony establishes that if she an unlawful employment practice it was at the hands of Moldex, Inc.; not Willstaff. She indicated quite clearly in her testimony that she had no intent to pursue a claim against Willstaff, but only against Moldex, Inc.; because she believed that Moldex, Inc.; had terminated her, due to her limitation because of her shoulder injury. She stated that she named Willstaff as the Respondent in this case by her Petition for Relief because she was instructed to do so by some unknown individual who helped her prepare the Petition for Relief. Ursula Maurice testified as a representative of Willstaff. Her testimony establishes that Willstaff had no knowledge that Ms. Shaffer suffered from a disability. No adverse employment action was ever taken by Willstaff against the Petitioner. In fact, the Petitioner was never an employee of Willstaff. Moreover, Willstaff has an "EEO policy" in place and properly noticed its employees and Ms. Shaffer had never availed herself of it or made any formal complaint to anyone at Willstaff regarding discrimination, whether by Moldex, Inc. or any other entity. In any event, the Petitioner's own testimony establishes that she has no physical or mental impairment that substantially limits one or more of her major life activities. She also failed to established that she was qualified for the job in question with or without reasonable accommodations, that is, the job she briefly occupied at Moldex, Inc. She did establish that she suffered an adverse employment action or decision because she was "let go" from her employment at Moldex, Inc. She did not establish clearly that Moldex, Inc., had any knowledge of her disability. Finally, and most to the point, the Petitioner has not established, and freely admits, that she was not an employee of Willstaff. Therefore, she did not suffer an adverse employment action or decision made by Willstaff. She clearly stated in her testimony that her complaint is properly against Moldex, Inc. Nonetheless, Moldex, Inc., has not been served with a petition, has not been made a party respondent, and has not been noticed of this proceeding, including the hearing. Therefore it is not legally charged with having to defend itself at this juncture, as to any employment decision it may have made regarding the Petitioner in this proceeding.
Recommendation Having considered the foregoing findings of fact, conclusions of law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED: That a final order be entered by the Florida Commission on Human Relations denying the Petition its entirety. DONE AND ENTERED this 17th day of June, 2005, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF 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 17th day of June, 2005. COPIES FURNISHED: Janet Shaffer 6401 Da Lisa Road Milton, Florida 32583 John T. Bender, Esquire McFadden, Lyon & Rouse, L.L.C. 718 Downtowner Boulevard Mobile, Alabama 36609 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether respondents are guilty of an unlawful employment practice as alleged by petitioner.
Findings Of Fact Based upon the entire record, including the pleadings and argument of counsel, the following findings of fact are determined: Petitioner, Carolyn E. Simmons, is a black female. In 1990, she began employment as a cook with respondent, Inverness Inn (Inn), an employer allegedly subject to the Florida Human Rights Act, as amended. At that time, the Inn was owned by respondent, Cvetko Blazevski. On March 25, 1992, petitioner filed a charge of discrimination with the Commission on Human Relations (Commission) alleging that she was "harassed and subjected to racial terms by Mr. Cretko (sic) Blazevski, Owner, from the beginning of (her) employment until the present time." For the purpose of ruling on this motion only, the undersigned has accepted this allegation as being true. The charge of discrimination, and the petition for relief subsequently filed, did not specify the relief being sought. In April 1992, Blazevski's ownership in the Inn was terminated by a court, and the Inn later closed and went out of business. Petitioner continued to work in her position as a cook after Blazevski left the Inn and until it closed. According to petitioner's counsel, Simmons seeks only compensatory damages against respondents for their conduct.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Commission enter a final order dismissing with prejudice the petition for relief. DONE AND ENTERED this 27th day of October, 1993, in Tallahassee, Florida. DONALD R. ALEXANDER 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 27th day of October, 1993. COPIES FURNISHED: Sharon Moultry, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Dana C. Baird, Esquire General Counsel Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Kenneth S. Stepp, Esquire 305 North Apopka Avenue Inverness, Florida 34450 David L. Wilcox, Esquire 452 Pleasant Grove Road Inverness, Florida 34452
The Issue Whether the Petitioner, Stephanie Walker, timely filed a Petition for Relief regarding her charge of discrimination against the Respondent, Bennett Auto Supply, Inc.
Findings Of Fact The Petitioner, Stephanie Walker, applied for and received employment with the Respondent, Bennett Auto Supply, Inc. The Petitioner's initial employment with the company ended on March 8, 2001, as she resigned her job on or about February 26, 2001. Thereafter, the Petitioner returned to employment with the Respondent. Again, the Petitioner resigned her job and left employment on April 27, 2002. The exact reasons the Petitioner began employment, left employment, returned to employment, and again left employment with the Respondent are immaterial to the findings dispositive of this case. Suffice it to say the Petitioner ultimately filed a claim of discrimination with the FCHR against the Respondent. The Petitioner's Charge of Discrimination naming the Respondent was dated March 21, 2003, and noted April 27, 2002, as the date the most recent discrimination had taken place. Based upon its investigation of the allegations, the FCHR issued a Determination: No Cause on September 23, 2003. The Determination: No Cause provided, in pertinent part, ". . . it is my determination that there is no reasonable cause to believe that an unlawful employment practice has occurred." The Notice of Determination: No Cause, provided: Complainant may request an administrative hearing by filing a PETITION FOR RELIEF within 35 days of the date of this NOTICE OF DETERMINATION: NO CAUSE. A Petition for Relief form is enclosed with Complainant's notice. It may be beneficial for Complainant to seek legal counsel prior to filing the petition. If the Complainant fails to request an administrative hearing with [sic] 35 days of the date of this notice, the administrative claim under the Florida Civil Rights Act of 1992, Chapter 760, will be dismissed pursuant to section 760.11, Florida Statutes (1992). The Petition for Relief was filed approximately 159 days after the FCHR issued its determination in this case.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a Final Order dismissing the Petitioner's Petition for Relief as it was not timely filed and is, therefore, barred as a matter of law. DONE AND ENTERED this 29th day of April, 2004, in Tallahassee, Leon County, Florida. S J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of April, 2004. COPIES FURNISHED: Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Aplachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Richard A. Giardino, Esquire Davis & Giardino, P.A. 201 Arkona Court West Palm Beach, Florida 33401 Stephanie Walker 1808 Northwest 52nd Avenue Lauderhill, Florida 33313
The Issue Whether Petitioner was discriminated against by the Respondent based on race and/or subjected to a hostile work environment based on race in violation of Chapter 760, Florida Statutes.
Findings Of Fact Petitioner, Alphonso Williams, Jr., is an African- American male (Petitioner). Respondent, L. Pugh & Associates (Respondent), is a closely held company in the business of designing, constructing and maintaining fire safety equipment and systems. The company is owned by Larry Pugh and his wife Sharon Pugh. Andy Pugh, the brother of Larry Pugh, is employed by the company as a construction supervisor and spends most the day in the field away from the company’s shop and warehouse. Soni Sully is the company’s office manager and bookkeeper. In 1997, Petitioner was hired by Larry Pugh to run errands for him and to maintain the shop. Petitioner had learned of the job opening from Johnny James, an African-American employee of Respondent’s. Prior to being hired, the employee warned Petitioner about Andy Pugh. The employee intended to communicate that Andy Pugh was a hard, irascible person to work for who did not tolerate mistakes, did not cut anyone any slack, and did not speak in socially polite terms. At hearing, Andy Pugh was described as an ex-marine sergeant. The employee did not intend to communicate that Andy Pugh was a racist. However, Petitioner interpreted the employee’s remarks as such. Throughout this process, Petitioner’s allegations regarding Andy Pugh’s racial slurs towards him have grown initially from three incidents of Mr. Pugh calling Petitioner a "nigger" to, by the time of the hearing, daily racial disparagement. Other than Petitioner’s testimony, there was no evidence of such name calling or such racial disparagement being reported by Petitioner. Contrary to Petitioner’s allegations, there was no evidence from either Petitioner or Respondent that Soni Sully ever issued any racial slurs against Petitioner. Given the lack of corroborative evidence regarding racial slurs and their increasing frequency, Petitioner has failed to establish that he was subjected to such racial slurs while he was employed by Respondent. Petitioner also charged that Andy Pugh would deliberately take the company vehicle assigned to him and assign it to someone on one of the construction crews Mr. Pugh supervised. However, the evidence demonstrated that none of the company’s fleet of vehicles were assigned to any one employee. The company’s vehicles were for use as needed by the company and could be assigned by Andy Pugh as he needed. This policy was explained to Petitioner many times. However, he never seemed to understand the explanation or accept it. Indeed, Petitioner continued to complain to Ms. Sully and Andy Pugh about "his" vehicle being taken. Petitioner’s constant complaints on the subject irritated Andy Pugh who did not always respond politely to Petitioner’s complaints. Petitioner received an hourly wage and mileage for the number of miles he drove. Initially, his hourly wage was $7.00. Over time, his hourly wage was increased to $8.50. By his choice, he received mileage even though he usually drove a company vehicle because it benefited him financially to claim mileage. No employee, including Petitioner, received both mileage and a vehicle allowance. At some point, Respondent instituted a company-wide policy limiting the amount of overtime an employee could work. Larry Pugh felt overtime billing was out-of-control and therefore created the policy. All employees, including Petitioner, were affected by the limitation. When Petitioner complained of the reduction the limitation of overtime caused in his pay, Petitioner was treated more beneficially than other employees and was permitted to work five hours of overtime per week. There was no evidence that Petitioner did not receive the mileage or the hourly pay he was entitled to receive. Likewise, there was no evidence that Petitioner was the only employee required to sign in and out. On June 7, 2001, Petitioner again complained to Andy Pugh about "his" vehicle being taken. At some point, words were exchanged between Andy Pugh and Petitioner. Petitioner alleged that Andy Pugh grabbed him by throat, called him a "nigger" and threatened to kill him. However, the details of this exchange are unclear due to the changing story of Petitioner about those details, the irreconcilable testimony and statements of Petitioner and Mr. Pugh, witnesses to the altercation and the surveillance tape of the premises during the altercation. Other than words being exchanged, there was insufficient evidence to show that this altercation was based on Petitioner’s race or occurred in the physical manner alleged by Petitioner. After talking with Sharon Pugh, Petitioner filed a criminal complaint with the Sheriff’s Department. The details of Petitioner's conversation with Ms. Pugh are unclear. After an investigation, including interviewing witnesses and reviewing the surveillance tape, no arrest or criminal charges were filed against Andy Pugh. Petitioner was placed on paid administrative leave until Larry Pugh, who was away, could investigate the incident. Upon his return, Larry Pugh looked into the matter and decided to terminate Petitioner mostly for filing criminal charges against his brother, but also, in part, for other more minor personality conflicts Petitioner had had in dealing with others while on company business. The evidence did not show that Larry Pugh’s reasons for terminating Petitioner were pretextual, retaliatory for Petitioner engaging in a protected activity or based on race. Therefore, the Petition for Relief should be dismissed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 3rd day of July, 2003, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of July, 2003. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Frederick J. Gant, Esquire Allbritton & Gant 322 West Cervantes Street Pensacola, Florida 32501 Michael J. Stebbins, Esquire Michael J. Stebbins, P.L. 504 North Baylen Street Pensacola, Florida 32501 Alphonso Williams, Jr. 2415 North "E" Street Pensacola, Florida 32501
The Issue Whether, under the facts and circumstances of this case, Respondent is guilty of the violations alleged in the Amended Notice To Show Cause issued November 9, 1989 by the Division of Hotels and Restaurants, Department of Business Regulation.
Findings Of Fact Upon consideration of the evidence adduced at the hearing, the following relevant facts are found: At all times material to this case, the Respondent, Barkap, Inc., d/b/a Flamingo Inn (Flamingo) held a valid public lodging establishment license located at 2011 South Atlantic Avenue, Daytona Beach, Volusia County, Florida, license number 74-03605H. Flamingo is operated by Peter Kappelman, President of Barkap Inc., and his wife who is also a corporate officer of Barkap, Inc. Flamingo has only 24 rental units. Prior to June 1988, George Houllis, Environmental Health Inspector, with the Division of Hotels and Restaurants (Division), was assigned to inspect Flamingo's establishment. While attempting to inspect a fire extinguisher Houllis broke the glass in the door of a cabinet containing a fire extinguisher. Houllis contends that the glass door was already cracked, while Kappelman contends that it was not cracked, and that Houllis attempted to "cover it up". At Kappelman's insistence, the Division paid for the repair at a cost of approximately $35.00. However, as a result of this incident, Charles Casper, another Environmental Health Inspector with the Division, was assigned to inspect the Flamingo establishment beginning June 1988. The Division's policy is to inspect licensed public lodging establishments on a quarterly basis and, in accordance with that policy, Charles Casper inspected the Flamingo on at least a quarterly basis beginning in June 1988. Shortly after Casper began inspecting the Flamingo, the relationship between Casper and Kappelman deteriorated and reached a point where each party became personal with their remarks, with Kappelman refusing to sign the inspection report, describing Casper's behavior as "Gestapo methods", and alleging that the Flamingo was being treated differently than other establishments along the "strip" on Daytona Beach. While Casper may have been strict with his inspections of the Flamingo, there is insufficient evidence to show that his behavior could be described as arbitrary or that he treated the Flamingo differently than any other licensed establishment. Violations of a minor nature are normally cited on the inspection report to document, warn or educate the licensee of corrections that need to be made, usually by the next routine inspection date. However, where corrections of minor violations are not made by the date indicated on the inspection report, a minor violation can become a major violation, usually at the discretion of the inspector. The Flamingo had been warned on the September 12, 1988 inspection report by Casper for having exit doors propped open on all floors and listed the violation as a minor violation. There was no date for making the correction on the report, but two subsequent inspection reports dated December 15, 1988 and January 12, 1989 did not show exit doors being propped open as a violation on those dates. The record is not clear as to why another inspection was made within a month of the December 15, 1988 inspection, but apparently it was a follow-up inspection concerning a major violation listed on the September 12, 1988 inspection report concerning locking devices on doors wherein a Notice To Show Cause was issued. However, this matter was settled without the necessity of a hearing and the case dismissed. Flamingo was cited again on June 5, 1989 for having exit doors propped open with wooden wedges and advised to remove all props from the exit doors and given until the next routine inspection date to make the correction. The next routine inspection of the Flamingo was on September 25, 1989, and at that time Flamingo was cited again for having exit doors propped open with wooden wedges on the first second and third floors. Since the same violation had been cited on June 5, 1989 and not corrected by the time of the next routine inspection on September 25, 1989, Casper considered this violation as a major violation and requested that a Notice To Show Cause be issued. In addition to the major violation cited on September 25, 1989, Casper cited six minor violations on the inspection report issued on September 25, 1989. These violations were as follows: (1) Failure to provide exit sign for stairway exit door; (2) Failure to maintain walkway emergency light in good repair; (3) Failure to maintain fiberglass shower liners, building exteriors, stairways, inside cabinet under sink and walls in good repair and failure to maintain proper cleanliness of back panel and wall behind trash can; (4) Failure to maintain proper cleanliness of tub and bathroom walls in good repair (walls need paint); (5) Failure to provide covers for exterior trash cans and; (6) Failure to provide room rate for door in unit number 204. A Notice To Show Cause was issued by the Division on November 9, 1989 charging Flamingo with the major and minor violations discussed above. Casper conducted a pre-conference re-inspection of Flamingo on November 28, 1989 to determine compliance with the September 25, 1989 inspection report. While Flamingo did not totally comply by correcting all cf the violations cited in the September 25, 1989 inspection report, it did correct several of the violations. For convenience, Kappelman leaves the wooden wedges in the vicinity of the exit doors for use by the guest in propping open doors while carrying luggage in and out of their rooms and the cleaning staff while carrying linen and other items in and out of the rooms and other areas of the motel. Kappelman did not remove the wooden wedges from the vicinity of the exit doors after Flamingo was cited for this violation on June 5, 1989. Casper did not observe any persons, including maids or guest, in the vicinity of the exit doors that were propped open on September 25, 1989. Although not every inspection report shows the time of day the inspection was made, those reports that do show the time indicate the inspection was made during the time of day when the maids would be cleaning and guests would be checking out of their rooms. Flamingo is aware that the doors are being propped open for short periods of time for the purposes previously stated but does not feel that this is a violation. The minor violation cited in the September 25, 1989 inspection report concerning the missing exit sign on second floor west was not cited in the November 28, 1989 inspection report as a violation. Apparently it had been corrected, because the exit sign was missing on September 25, 1989 as admitted to by Kappelman. However, there is insufficient evidence to show that there was not another approved exit sign that clearly marked the exit and visible from any direction of the exit access. Likewise, there was insufficient evidence to show that low level exit signs were specifically required in the Flamingo. The minor violation cited in the September 25, 1989 inspection report for failure to maintain the walkway emergency light by Room 106 in good repair in violation of Rule 7C-1.004(3), Florida Administrative Code, was also cited in the November 28, 1989 inspection report as a violation. However, there was insufficient evidence to show that the area of Flamingo serviced by this emergency light would not be well-lighted during the day and night in the event the regular light was not functioning. On September 25, 1989 Casper inspected Rooms 204 and 303 as suggested by Kappelman because these rooms were unoccupied and available for rent. In both rooms (204 and 303) Casper cited Flamingo for bathtub liners having loose caulking resulting in the liner separating from the wall. The violation had not been corrected at the time of the re-inspection on November 28, 1989. Casper cited cleanliness violations on September 25, 1989 as follows: (1) in room 204 a substance on back portion of cabinet; (2) hair on tub in room 303; (3) splatter on wall behind trash can in room 303; and (4) exterior trash can lid missing by rooms 103 and 106. The re-inspection report indicates the splatter on wall behind trash can to be in room 204 rather than room 303 as indicated in September 25, 1989 inspection report. Kappelman admits that a splatter the size of a quarter was present. The remaining cleanliness citations in the September 25, 1989 inspection report appear to have been corrected at the time of re-inspection. Numerous cracks were noted on the exterior of stairwell and outer walls on September 25, 1989. Casper assumed these cracks to be maintenance cracks and not structural in nature (settling cracks) because, with one exception, the cracks did not have any monitoring devices (measuring gauges). These cracks were still evident at the re-inspection. However, the cracks previously had measuring gauges to determine if there was settling, but had been removed without Kappelman's knowledge. The record is not clear whether the cracks were eventually determined to be structural or maintenance cracks. However, all of the cracks were monitored for a period of time. In any event, the cracks had not been repaired at the time of re-inspection, but are now repaired. Casper determined that the "paint job" on the bathroom walls in Room 303 was poor because it appeared that there was only one coat of paint resulting in the dry wall bleeding through. There was no mention of the bathroom walls needing paint in Room 204. However, in the re-inspection report Casper noticed that the bathroom walls in Room 204 needed painting. It is not clear whether Casper made an error in room numbers or if both rooms needed painting and Room 303 had been corrected on November 28, 1989. However, it is clear that the bathroom walls in all rooms were not painted as such but the drywall was impregnated with paint to give the appearance of being painted. There is insufficient evidence to show that painting would be applicable in either room due to the type of wall. Flamingo was cited on September 25, 1989 for failure to have room rates posted in room 204. Based upon Casper's thorough job of inspecting that day, as testified to by Rappelman, it has been shown that that the room rates were neither posted on the door nor in the room, notwithstanding Kappelman's testimony to the contrary.
Recommendation In making the following recommendation I am mindful of the Division's "guidelines" of increasing the penalty five times for a major violation and doubling the penalty of a minor violation when the violation is not corrected at the time of the Informal Conference Call-Back Inspection. However, these guidelines would appear to have a "chilling effect" on a licensee's decision to challenge the Division in the administrative forum, and also conclusively presume that the penalty should be the same regardless of the facts and circumstances surrounding the violation. Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the circumstances surrounding the violations, it is, therefore, RECOMMENDED that the Petitioner enter a Final Order finding Respondent guilty of: (1) the major violation of securing exit doors in an open position in violation of Section 17-2.2.1(a) and 5.2.2.8 of the Code as adopted by Rule 4A-43.006, Florida Administrative Code; (2) the minor violation of failing to properly maintain the fiberglass liner and the cleanliness of the inside of the cabinet and the area behind the trash can in violation of Section 7C-1.003(1), Florida Administrative Code; (3) the minor violation of failing to keep the lid on an exterior trash can in violation of Section 7C-1.003(5), Florida Administrative Code, and (4) the minor violation of failing to post room rates in room 204 in violation of Section 7C-3.002(2), Florida Administrative Code, and for such violations assess an administrative fine of $100.00 for the major violation and $50.00 for each of the three minor violation for a total fine of $250.00. It is further recommended that all other violations cited in the Amended Notice to Show Cause be DISMISSED. DONE AND ENTERED this 3rd day of April, 1990, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of April, 1990. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 90-0183 Specific Rulings on Proposed Findings of Fact Submitted by the Petitioner 1-4. Adopted in Findings of Fact 1, 2, 3 and 3, respectively. 5-7. Adopted in Findings of Fact 4, 5 and 5, respectively as modified. Adopted in Findings of Fact 10 and 16. Adopted in Finding of Fact 15. Adopted in Findings of Fact 7 and 9. 11-12. Adopted in Findings of Fact 17, and 10, respectively. 13-16. Adopted in Findings of Fact (4,6), (7,9), 18, 19, and (20,21), respectively. Adopted in Findings of Fact 22 and 23 with the exception of the room number which should be 303. Rejected as not being supported by substantial competent evidence in the record. 19-21. Adopted in Findings of Fact 22, 5, and 25, respectively. 22. Not material or relevant to this proceeding. Specific Rulings on Proposed Findings of Fact Submitted by the Respondent The Respondent did not file any proposed findings of fact with the Division of Administrative Hearings. COPIES FURNISHED: Elizabeth C. Masters, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007 Paul J. Dubbeld, Esquire First Union Bank Building Suite 815 444 Seabreeze Boulevard Daytona Beach, Florida 32118 Fred Fluty, Director Division of Hotels and Restaurants Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007 Joseph A. Sole, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007 Stephen R. MacNamara Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007
The Issue Whether Respondent subjected Petitioner to an unlawful employment practice on the basis of religion; or in retaliation to his engagement in a lawful employment activity, in violation of section 760.10, Florida Statutes.
Findings Of Fact Respondent, Escambia County, is a political subdivision of the state of Florida that is authorized to carry out county government, pursuant to section 125.01, Florida Statutes (2016). Escambia County is an employer as that term is defined by the Florida Civil Rights Act 1992. Petitioner, Mr. Love, was employed by Blue Arbor, Inc., a staffing agency. Blue Arbor had a contract with Escambia County for temporary labor services. Blue Arbor assigned Mr. Love to a temporary job with Escambia County, Public Works Department, Office of Engineering and Construction, as an engineering project coordinator. The assignment was for one year. Petitioner was assigned to the job from May 26, 2014, until his termination. On January 26, 2015, Escambia County terminated Petitioner’s temporary employment contract. Petitioner was an employee of Escambia County as that term is defined by the Florida Civil Rights Act of 1992. Mr. Love is a Christian. Petitioner timely filed a complaint with the Commission alleging Respondent engaged in an unlawful employment practice by terminating Petitioner on the basis of his religion. As an engineering project coordinator, Petitioner’s job responsibilities included: management of complex projects, ability to prioritize work, and ability to exercise good interpersonal skills with co-workers, supervisors, and the public. Mr. Love earned a Bachelor of Science in Engineering Technology and Construction degree in December 2013. Mr. Love had no prior drainage or roadway experience before working for Escambia County. Mr. Love began working for Escambia County following a storm that was declared a disaster. Due to the disaster, staff was expected to be flexible and able to perform job duties without refusal or hesitation. Respondent asserts that it terminated Petitioner’s contract due to his inability to perform job responsibilities without objection or hesitation, work performance, and disruptive behavior. Mr. Love had multiple supervisors during his eight month tenure at Escambia County. While working at Escambia County, Mr. Love’s supervisors had issues with his work performance and his behavior. Mary Bush, a construction manager, supervised Mr. Love in 2014. Ms. Bush had issues with Mr. Love’s file storage practices and behavior. Ms. Bush testified that Mr. Love saved all his work on a personal computer and was told several times to save his work in the shared folder. Mr. Love refused to save his work on the shared drive on the basis that the documents were his work. During the time Ms. Bush supervised Mr. Love, she experienced two incidents with Mr. Love involving outbursts. On one occasion, Mr. Love was in Ms. Bush’s office seeking review of Mr. Love’s work. Mr. Love stated in a raised voice, “you need to review the report so I can do my job.” On another occasion, Ms. Bush directed Mr. Love to identify his documents using a certain description and explained the importance of the practice. Mr. Love objected on the basis that the practice was an asinine process. Mr. Love was reassigned to another supervisor due to the outbursts involving Ms. Bush. At no point did Mr. Love state that his objection to following directions was based on his religion. Chris Curb, an engineering manager for stormwater, also supervised Mr. Love during his tenure at Escambia County. Despite the direction from Ms. Bush, the file-sharing issue continued. On December 30, 2014, Chris Curb notified Mr. Love by email that his file saving was a “problem.” Mr. Curb advised Mr. Love that his file folder was not a standard subfolder and he needed to save all files in the proper shared subfolders. He explained that file sharing is important so Escambia County could comply with state regulations and records requests. He further explained that Mr. Love was not the sole owner of a project record because other employees would need access to the work. He concluded his email with instructions for Mr. Love to use designated file folders. A third supervisor, Jim Duncan, also had issues with Mr. Love’s work performance and behavior. Similar to his practice under prior supervisors, Mr. Love refused to save his files to the shared file folder. Mr. Love also repeatedly refused to attend mandatory meetings without a direct command. For example, on multiple occasions Mr. Love’s supervisor had to locate and direct him to attend the weekly department meetings. Mr. Love testified that he was reluctant to attend the meetings because he believed they “were unproductive and take up too much time.” Similar to other supervisors, Mr. Love engaged in an outburst with Mr. Duncan. Mr. Duncan was a construction manager when he supervised Mr. Love and thus, was responsible for directing Mr. Love to advance projects from conception to completion. One such project was ENG Flood 414-85, which was also referred to as the Beulah Road at Helms Intersection project (“Beulah-Helms project”). Mr. Love was the project coordinator for the project. In October 2014, Roads, Inc., a construction company, submitted a bid for the Beulah-Helms project. Brett Moylan is the vice-president and chief operating officer of Roads, Inc. The project was a pricing agreement contract. Pricing agreement contracts are contracts where prices are established for a period of one year and are adopted by the Escambia County prior to the award of any specific pricing agreement contract. Pricing agreements have a blackout period and bidding process that also takes place prior to acceptance of the pricing agreement. In December 2015, Mr. Love was in the final stages of the procurement process for the Beulah-Helms project. Roads, Inc. was the lowest bidder on the project. Mr. Love corresponded with Mr. Moylan regarding the documents necessary to approve the project. Mr. Love requested a construction schedule and MOT plan for the project before the work order could be approved. Mr. Moylan asserted in an email that the construction schedule would begin after the purchase order is issued. Mr. Moylan later submitted the MOT plan and signed the work order. On January 22, 2015, Mr. Love sent an email to Mr. Moylan requesting the construction schedule and another signed work order with the appropriate dates. Mr. Love advised Mr. Moylan that he would not begin the project until Mr. Moylan submitted the construction schedule. Although Mr. Moylan explained that he usually did not submit a construction schedule, he ultimately provided the construction schedule to Mr. Love indicating that the project would begin the following Monday and “be substantially complete within 60 days of commencement, and have a completion date within 90 days.” The construction schedule provided by Mr. Moylan was an acceptable schedule. For a reason that was not addressed at hearing, Mr. Love asked Mr. Moylan for the construction schedule again, despite receiving it. Mr. Moylan advised Mr. Love to accept the next lowest bidder. As a result of the email exchange with Mr. Moylan, Mr. Love planned to send Mr. Moylan a follow-up email about accepting the next highest bidder, which would purportedly cost Escambia County an additional $20,000 for the project. Before Mr. Love drafted the email, he called Mr. Moylan to discuss the issues referenced in the email. Mr. Love testified that before he called Mr. Moylan he “drove around the block a couple of times, before he could call Mr. Moylan because [he] knew that the conversation was going to get heated.” Mr. Love described the conversation as heated, and they “cut each other off” during the conversation. Mr. Moylan contacted Mr. Duncan to complain about Mr. Love’s behavior related to the Beulah-Helms project. Mr. Duncan approached Mr. Love to discuss the exchange between Mr. Love and Mr. Moylan. Mr. Duncan directed Mr. Love to award the Beulah-Helms project to Roads, Inc. Mr. Love objected to awarding the contract to Roads, Inc. He testified that his objection was based on his religion because “[he] had an obligation to utilize his moral and ethical judgment which is inherent to [his] religion.” Mr. Love stated that the religious accommodation was based on his request for additional information before he could feel comfortable awarding the project to Roads, Inc. Mr. Love testified that he told Mr. Duncan that he refused to award Roads, Inc., without the construction schedule “based on a matter of principal.” Mr. Love did not say he refused to approve the project based on his religion. He did not say he needed an accommodation for his religion. Mr. Duncan directed Mr. Love not to take any further action until they discussed Mr. Love’s objection with the department manager, Joy Jones. During the conversation, Mr. Love became angry and yelled at Mr. Duncan. Sharon Johnson, a project coordinator, witnessed the exchange between Mr. Love and Mr. Duncan. Specifically, Ms. Johnson observed Mr. Love and Mr. Duncan having the discussion about the Beulah-Helms project. Ms. Johnson described Mr. Love’s demeanor as unhappy and upset. She testified that he raised his voice and yelled at Mr. Duncan. At the same time, Mr. Duncan attempted to calm Mr. Love. Ms. Johnson could not recall the substance of the discussion, but she testified without hesitation that Mr. Love did not mention anything about his religion. Ms. Johnson’s testimony is found to be credible. On January 26, 2015, Escambia County terminated Petitioner’s contract. Joy Jones, the Engineering Department manager, made the final decision to terminate Mr. Love’s contract. Although Ms. Jones did not directly supervise Mr. Love, she was aware of the issues concerning his work performance and behavior through complaints from her staff who directly supervised Mr. Love. After several complaints of angry outbursts, difficulty meeting deadlines, failure to save critical documents to the shared drive, inability to move projects in the process without reluctance, and inability to work with several supervisors, Ms. Jones made the decision to terminate Mr. Love’s contract. Based on the evidence, Respondent has demonstrated that Mr. Love’s termination was based on a legitimate business decision due to poor work performance and disruptive behavior. Approximately one year after his termination, Mr. Love sent an email to the Escambia County Administrator, Jack Brown. The email complained of perceived damage to Mr. Love’s reputation, credibility, and career. Mr. Love did not mention any complaint of religious discrimination or retaliation. In his response to Mr. Love, Mr. Brown explained that “in the project coordinator position staff must examine and thoroughly understand applicable process. Refusal and hesitation to perform job duties affect production, grant reimbursement deadlines, and citizen expectations.” Mr. Love did not explicitly mention anything about his religion or religious discrimination to any of his supervisors before he was terminated from Escambia County.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order dismissing Petitioner’s discrimination complaint and Petition for Relief consistent with the Findings of Fact and Conclusions of Law of this Recommended Order. DONE AND ENTERED this 24th day of May, 2017, in Tallahassee, Leon County, Florida. S YOLONDA Y. GREEN 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 24th day of May, 2017. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399 (eServed) Benjamin David Love Post Office Box 1132 Gonzalez, Florida 32560 (eServed) Meredith D. Crawford, Esquire Escambia County Board of County Commissioners Suite 430 221 Palafox Place Pensacola, Florida 32502 (eServed) Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 (eServed)
The Issue The issue in this case is whether the Department of Health and Rehabilitative Services (Department) should impose an administrative fine on Joel S. Perez, certified operator of Allied Exterminating of Palm Beach County (Respondent), based upon allegations of violations of Chapter 482, Florida Statutes, and Chapter 10D-55, Florida Administrative Code, set forth in the administrative complaint entered herein.
Findings Of Fact On or about January 17, 1990, Joseph Parker, an expert in fumigation operations and inspection, inspected a residence located at 318 Hemlock Drive in West Palm Beach, Florida. The residence at this location was under a fumigation tent, and Parker conducted a routine inspection of this location which he noticed as he was driving by. There was no complaint which initiated this inspection. Parker's inspection of this residence identified the fact that warning signs were not located on all four sides of the structure, the business address shown on these signs of the fumigation company performing this work, Allied Exterminating of Palm Beach County, was unfamiliar to Parker, the tenting placed over this structure was not properly sealed in several places, fans were running under the tent, and hoses for injecting fumigation gas under the tent were in place. Using commonly accepted gas detection procedures, Parker also could not detect the presence of any gas under the tent. The evidence produced at hearing establishes that the tenting of this residence at 318 Hemlock Drive was deficient when observed by Parker on January 17, 1990. Specifically, a continuous ground seal was not maintained and there were significant separations in the tenting materials. The Respondent does not dispute this fact, but maintains that all tenting was secure and properly in place when the tenting was put in place the day before and the fumigation gas was injected under the tent. Respondent also maintains that fumigation gases were properly injected under this tent during the afternoon of January 16, 1990. In order to explain the deficiencies observed by Parker during his inspection, the Respondent produced credible evidence of vandalism and intentional damage done to other fumigation jobs performed by the Respondent in early 1990. This damage included cuts and slashes in tenting, as well as the removal and destruction of warning signs placed on these other premises. Because of this damage, the Respondent requested police surveillance of some of his fumigation jobs during 1990, and began a process of inspecting his jobs at night to prevent vandalism. Since mid-1990, this vandalism has ceased. Based upon the Respondent's demeanor while testifying at hearing, and the fact that he has been licensed as a certified operator for almost four years without any prior disciplinary action, it is found that Respondent's explanation of vandalism and intentional damage to his fumigation job at 318 Hemlock is credible, and that therefore, he did not negligently or improperly tent, fumigate and place warning signs on these premises. It is found, however, that the Respondent's warning signs placed on these premises included an incorrect business address. The Respondent admitted that the signs he posted on this job did not contain his company's business address, but rather, included his residence address. The Department had no record of any 24-hour notice from the Respondent concerning this fumigation job at 318 Hemlock Drive. However, the Respondent offered a credible explanation of this failure. The Respondent maintains that notice was delivered to the Department's office on the Friday prior to this job. The Monday prior to this job was a state holiday, and this job was performed on Tuesday, January 16, 1990. Credible testimony from Miguel Romero, termite inspector with Respondent, established that he hand delivered this notice to the Department's office on the Friday prior to January 16, 1990, but that it was apparently not properly filed by the Department. Due to the fact that the Department admits that at the time material to this proceeding, there were other instances of notices being lost or misfiled, and that in order to avoid such occurrences the Department has instituted a procedure of allowing notices to be filed by "fax", it is found that Respondent did not fail to provide the Department with 24-hour notice of this fumigation job. There is no dispute between the parties concerning Respondent's certification by the Department. At all times material hereto, Respondent has been the certified operator of Allied Exterminating of Palm Beach County in West Palm Beach, Florida.
Recommendation Based upon the foregoing, it is recommended that the Department enter a written warning against the Respondent by Final Order for his failure to include his business address on signs posted on the job at issue on this case. DONE AND ENTERED this 25th day of February, 1991 in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Filed with the Clerk of the Division of Administrative Hearings this 25th day of February, 1991. APPENDIX TO RECOMMENDED ORDER The Department did not timely file Proposed Findings of Fact. Rulings on the Respondent's Proposed Findings of Fact: 1. This is a conclusion of law rather than a proposed finding of fact. 2-3. These are preliminary and introductory matters. 4. This is a statement of position rather than a proposed finding of fact. 5-6. Rejected based upon Findings of Fact 4 and 5. Rejected based on Finding of Fact 6. Adopted in Finding of Fact 7. COPIES FURNISHED: Karen Miller, Esquire District Legal Office 111 Georgia Avenue, #317 West Palm Beach, FL 33401 Leonel R. Plasencia, Esquire 1400 Centrepark Blvd. Suite 1000 West Palm Beach, FL 33401 R. S. Power, Agency Clerk 1323 Winewood Blvd. Tallahassee, FL 32399-0700 Linda K. Harris, Acting General Counsel 1323 Winewood Blvd. Tallahassee, FL 32399-0700
Findings Of Fact At all times relevant hereto, Respondent, Linn Bazemore, owned a four- unit dwelling located at 37 N.W. 60th Street, Miami, Florida. The units were rented by Haitian refugees who bad recently come to the United States, and included a number of children. On or about February 26, 1981, inspectors employed by Petitioner, Department of Health and Rehabilitative Services, visited the property in question. The exterior inspection revealed no garbage cans on the premises; exposed garbage was also observed in the yard. On the inside of the building they found plumbing defects, holes in the walls and ceilings, rub marks from rodents and rat holes in various parts of the structure. (Petitioner's Exhibit 1). A second inspection of the premises "as made by Inspector Dean on March 6, 1981. At that time essentially the same conditions were found as were present on the previous visit. A letter was written by certified mail to Respondent that date ordering him within 15 days to "provide sufficient approved garbage containers, remove all trash and rubbish from property, provide for extermination of rodent infestation, and provide for effective rat proofing of property." (Petitioner's Exhibit 3). Respondent acknowledged receiving the letter (Petitioner's Exhibit 4). A formal administrative complaint was Aft issued by Petitioner on April 17, 1981. Thereafter, Respondent requested a formal hearing to dispute the charges. Subsequent inspections of the property were made by Department inspectors on March 18, March 24, April 2, April 7, May 28, June 4 and August 3, 1981. On the first six visits the inspectors found that the same types of conditions as were found on February 26 were still present. ( Petitioner's Exhibits 5, 6, 7, 8, 9 and 13). On the August 3 visit, the inspector acknowledged that approximately 60 percent of the holes in the walls and ceiling had been closed, but still found an accumulation of exposed garbage in the front yard, and lumber stacked in the rear. Additional unsanitary conditions such as rub marks, holes in the wall and rat droppings were also found. (Petitioner's Exhibits 10 and 12). Respondent owns a number of rental properties in Dade County. He is a registered real estate broker whose income is derived solely from property management. He is currently attempting to sell the property at 37 N.W. 60th Street. The property lies in an area whose residents are primarily refugees and from the lower-income strata. It is also plagued by a high rate of crime. The tenant in Bazemore a units are Haitian refugees who de not speak English. Both parties acknowledge that the refugees are unfamiliar with sanitary practices of the United States, end are difficult communicate with due to the language barrier and their lack of education. Bazemore testified that attempts to teach the tenants conventional sanitary practices for dumping garbage and trash and bow to maintain the premises had been unsuccessful. He also stated that a constant turnover of tenants exacerbated the problems, and that many of the exterior violations were caused by neighbors who dumped rash and garbage on his property. Respondent has spent approximately $9,000 for repairs to the structure since receiving the Department's letter of March 6, 1981, including $6,000 for plumbing repairs alone. Because of the large number of properties that it must inspect, the Department does not contact a property owner personally. Instead, such contact is limited to mail. However, Respondent met with a Department inspector on his own volition in April, 1981, in an effort to resolve the problem. He obtained an oral assurance that an extension of time would be granted to make necessary repairs, but this agreement was subsequently rescinded by the Department.
Recommendation NOW THEREFORE, in consideration of the above findings of fact and conclusions of law, it is RECOMMENDED that Respondent be found guilty of the charges as set forth in the Administrative Complaint dated April 17, 1981, and that a $200 fine be imposed pursuant to Section 381.112, Florida Statutes. DONE and ENTERED this 10th day of August, 1981, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of August, 1981. COPIES FURNISHED: Morton Laitner, Esquire 1350 N. W. 14th Street Miami, Florida 33125 Linn Bazemore 1959 S. W. 27th Avenue Miami, Florida 33145
