The Issue Whether the Division of Administrative Hearings has jurisdiction to hear this cause alleging that Respondent Employer has committed an unlawful employment practice against Petitioner.
Findings Of Fact 1. Following a May 23, 2003, "Notice of Determination: No Jurisdiction," by the Florida Commission on Human Relations, Petitioner filed a Petition for Relief as more fully described below. On or about July 3, 2003, the matter was referred to the Division of Administrative Hearings and scheduled for a disputed-fact hearing on the merits for August 25, 2003. 2. On July 17, 2003, Respondent served by mail its Motion for a Summary Final Order. 3. On August 12, 2003, Respondent served by mail its Supplemental (Second) Motion for a Summary Final Order. 4. On August 14, 2003, Respondent filed and served its Notice of Filing Supplemental Materials In Support of its (Second) Motion for Summary Final Order. 5. The foregoing pleadings and the exhibits attached thereto, together with the "Determination: No Jurisdiction," which is part of the referral package from the Florida Commission on Human Relations, suggest on their face(s) that the Commission, and derivatively, the Division of Administrative Hearings, is without jurisdiction to determine this case. 6. Petitioner did not timely respond in opposition to the Motion for Summary Final Order as permitted by Rule 28-106.204, Florida Administrative Code, and in a telephonic conference call convened by the undersigned on August 19, 2003, Petitioner represented that she had never received that Motion. Petitioner offered to pick it up at Respondent's attorney's office later on August 19, 2003. 7. Petitioner had received the Supplemental (Second) Motion for Summary Final Order, but from her oral representations in the telephonic conference, it appeared that she did not open the envelope containing it. As of August 19, 2003, Petitioner still had, pursuant to rule, until August 26, 2003, to respond in writing. Also, if Respondent's supplemental materials were to be considered, Petitioner had until August 28, 2003, per rule, to respond. 8. The undersigned is without final order authority in this type of proceeding, and accordingly, the pending Motions have been treated as Motions for a Recommended Order of Dismissal. 9. On August 21, 2003, an Order Canceling Merits Hearing and Permitting Future Filings was entered. That Order provided, in pertinent part: The disputed-fact hearing is now scheduled for August 25, 2003, and all jurisdictional issues could be addressed at the commencement of that hearing, but that hearing is subject to cancellation due to Petitioner's failure to file a unilateral pre-hearing statement. Moreover, it is not cost-effective to require both parties to appear with all their witnesses, prepared for a disputed-fact hearing, when a short delay may obviate the need for such a hearing. If that hearing is cancelled, it will be possible to re-schedule this case for trial within the aspirational time frame established by the legislature, if such re- scheduling is necessary. Accordingly, it is ORDERED: 1. The disputed-fact hearing now scheduled for August 25, 2003, is hereby cancelled. 2. The pending motions will be treated as Motions for Recommended Order of Dismissal. 3. Petitioner is permitted to, and until, September 2, 2003, to file, in writing, any response in opposition to Respondent's Motion for a Summary Final Order, and Respondent's Supplemental (Second) Motion for a Summary Final Order, including the Supplemental Materials Filed August 14, 2003. 4. In her response, Petitioner should address all factual and legal arguments posed by Respondent. She may attach exhibits supporting her position. 5. In the event the undersigned requires any further oral argument or advice from the parties, another telephonic conference call will be scheduled for that purpose, and a formal notice of hearing will be issued. 6. In the event no further oral argument or advice is required, the issues presented in the motions and response will be disposed of, pursuant to Rule 28-106.204, Florida Administrative Code, without hearing; and a disputed-fact hearing on the merits will be re-scheduled only if necessary and appropriate. 10. Petitioner did not file any response to dispute any legal or factual issue raised by Respondent. Petitioner did not file any response attacking the validity of any of Respondent's exhibits. Petitioner did not file any response attacking any portion of the Commission's referral package. Therefore, the filed items may be presumed to be authentic, and the pending Motions may be addressed without an evidentiary hearing. 11. Petitioner filed with the Commission a charge of discrimination against Respondent Employer. That charge was assigned FCHR Case No. 2003342, and was dismissed by the Commission on or about December 6, 2002. 12. On October 18, 2002, Petitioner filed with the Commission a second charge of discrimination, the charge of discrimination underlying the instant case. The Commission assigned the instant charge FCHR Case No. 23-00222. 13. This instant charge of discrimination herein states that Petitioner was notified on October 14, 2001, that she would be terminated by the Employer on October 18, 2001. This charge of discrimination was signed by Petitioner on October 18, 2002. Therefore, it could not have been filed with the Commission before October 18, 2002. The date of October 18, 2002, is more than 365 days after October 14, 2001. See Section 760.11(1), Florida Statutes. 14. By a "Determination: No Jurisdiction" entered May 23, 2003, the Commission's Executive Director found and concluded that all jurisdictional requirements for coverage had not been met, to wit: : The Complainant was notified on October 12, 2001, that she would be terminated effective October 18, 2001, and she received a termination letter on October 14, 2001. Thus the 365-day period for filing a claim with the Commission commenced on October 12, 2001. Complainant, however, filed her complaint on October 18, 2002, which is 370 days from the date she first received notice. 6. The Commission does not have jurisdiction over the complaint because it was filed more than 365 days from the date the Complainant received notice that she would be terminated. 15. While the Director's foregoing findings/conclusions do not bind this forum's de novo proceeding, the Commission's acknowledgement that the instant charge of discrimination was not filed with it until October 18, 2002, constitutes competent evidence of that filing date and is relevant in this proceeding. 16. Attached to Respondent's first Motion for Summary Final Order is a copy of the instant charge of discrimination which shows the Commission's "October 18, 2002," date stamp. Also attached thereto is a Disciplinary Action Report dated October 12, 2001, which shows that Petitioner saw the report but refused to sign it on the same date of October 12, 2001. This report is, in effect, a notice of termination to take effect on October 18, 2001. Another exhibit to this pleading is Petitioner's October 12, 2001, written request to the Employer for a pre-termination hearing. All of these items indicate that Petitioner had notice on October 12, 2001, that she would be terminated, effective October 18, 2001. 17. No one has explained what effect a pre-termination hearing would have had on the planned termination date. No evidence that a pre-termination hearing was ever held has been presented. 18. Petitioner was effectively terminated by Respondent on October 18, 2001. 19. A "Notice of Determination: No Jurisdiction," entered by the Clerk of the Commission on May 23, 2003, provided: The parties are advised that the Complainant may request that a formal, post- investigative proceeding be conducted. The Request for Hearing/Petition for Relief must be filed within 35 days of the date of mailing of this Notice and should be in compliance with the provision of Rule 60Y- 5.008 and Chapter 60Y-4, Florida Administrative Code. A Petition for Relief form in enclosed. If you elect to file a Petition for Relief, it may be beneficial to seek legal counsel prior to filing the Petition. This action will not become final until time has expired for Complainant to file a Request for Petition for Relief. Failure of Complainant to timely file a petition for relief will result in dismissal of the complaint pursuant to Rule 60Y-5.006, Florida Administrative Code. 20. Accordingly, the last date for filing a Petiton for Relief on the instant charge was June 27, 2003, per Section 760.11(7), Florida Statutes, and 60Y-5.008, Florida Administrative Code. 21. Petitioner FAXED her Petition for Relief to the Commission. Petitioner's FAX cover sheet indicated that, Ms. Razavi, I am faxing this again, since I'm not aware that you have rec'd it yet. I first sent it on Thurs. 26th to a different fax #. The young lady sitting in for Barbar gave me this one. Thanks. 22. On July 1, 2003, the Commission date-stamped receipt of the foregoing cover letter and the Petition for Relief, which it transmitted to the Division of Administrative Hearings on the same date. 23. An Affidavit of Violet D. Crawford, Clerk of the Florida Commission on Human Relations, states that Petitioner's Petition for Relief was received by way of facsimile to the Commission on June 30, 2003, but that it was clocked-in on July 1, 2003.
Conclusions For Petitioner: Michelle Burt, pro se 2121 West Pensacola Street, PMB 538 Tallahassee, Florida 32304 For Respondent: William Haselden, Esquire City of Tallahassee 300 South Adams Street, Box A-5 Tallahassee, Florida 32301-1731
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 this cause for lack of jurisdiction. DONE AND ENTERED this 23rd day of September, 2003, in Tallahassee, Leon County, Florida. Lahn alan ELLA JANE P. DAVIS 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 23rd day of September, 2003. 12 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 Michelle Burt 2121 West Pensacola Street, PMB 538 Tallahassee, Florida 32304 William Haselden, Esquire City of Tallahassee 300 South Adams Street, Box A-5 Tallahassee, Florida 32301-1731
Findings Of Fact Petitioners are all inmates at the Florida State Prison (FSP) and are subject to the terms of DOC Rule 33- 3.04(9), which requires that the return address of all outgoing mail must contain the inmate's name, identification number and institutional name and address with abbreviations. Petitioner Herzog, in March, 1985 failed to receive directly a letter sent to him from a correspondent in Beacon, N.Y., which was addressed to "Mr. Frederick Herzog, 081003, P. 0. Box 747, Starke, Florida 32091" because, as is indicated by stamp on the front of the envelope, the inmate's number and cell location must be included in the address. As will be seen below from the testimony of Ms. Seally, an inmate's cell number is no longer required. On two other occasions Mr. Herzog attempted to send letters to Beacon, N.Y., utilizing envelopes which reflected his return address merely as P. O. Box 747, Starke, Florida, 32091. These letters were not put into U.S. mail channels by prison mail room personnel because of the failure to reflect the institution's name and address in the return address. Petitioner Abdul Hakgem Jahmal N. Shabazz, also known as Owen D. Denson, on at least two occasions attempted to send letters to various individuals, one in Ft. Pierce, Florida, and one in Nokomosis, Florida, in envelopes bearing the return address, Post Office Box 747, A-013625, either Florida State Prison, Starke, Florida or merely Starke, Florida without identification of the prison. Both were returned to him for failure to have the institution's full name in the return address. Allen Penoyer, representative for Petitioners herein, was denied receipt of mail sent to him which included nude photographs. Neither Petitioner Milton nor Mummakil testified at the hearing or presented any evidence in their behalf. According to Mr. Dugger, Superintendent of FSP, the full identification without abbreviation of the prison name is required in inmate return addresses because of experience in the past which has indicated that inmates often misrepresent their location in correspondence to outsiders which sometimes results in extorting or gaining by fraud, money or other favors. The inclusion of the full prison return address would, it was hoped, give the outside addressees information as to where the letters originate. In one instance, a woman sent an inmate correspondent $10,000.00. The checks were intercepted and when questioned by prison officials, the woman indicated that from the mail she had received, she had no knowledge or indication that she was sending money to an inmate. Another reason for the rule was that some prisoners were subscribing to stock market publications and other periodicals and not paying for them when billed. Without the full return address, the publisher had no idea its publication was coming to a prison. In several instances, the publishers contacted prison officials requesting something be done about the situation. Mr. Dugger further indicated that some correspondents, even those who know an inmate is incarcerated, think the facility is a jail rather than the state prison and that the inmate's sentence is shorter than it actually is. Some correspondents have even shown up on a misrepresented discharge date expecting to see an inmate to whom they have sent money when in reality, the discharge date has been far in the future. Brenda Sealey, the supervisor of the mail room at FSP insures all mail comes in and goes out in proper fashion and that DOC rules for mail are followed. At one point, prison officials interpreted the rule which requires complete address to include the cell number but this policy is no longer followed. Currently, mail will be delivered to prisoners if mail room personnel can in any way find the prisoner somewhere within the DOC. Even though the rule requires an inmate number as a part of the address, as a courtesy, mail room personnel will deliver mail that does not contain this if they can find the prisoner. They will send the mail to another institution if the inmate has been moved. The rule requiring the use of the complete, unabbreviated name of the institution is still being implemented and applies to all routine mail but not to legal mail. Christmas cards, graduation and birthday cards, and the like are all routine mail and must have full return address. Identified legal mail is not held up because of technicalities.
The Issue The issue in this case is whether Petitioner should be terminated from employment with Respondent.
Findings Of Fact At all times material to this case, Mr. Davis was employed by the Sheriff's Office as a deputy sheriff. He had been employed by the Sheriff's Office for 11 years. On July 26, 2010, Mr. Davis was assigned to work a post in the healthcare facility of the Pinellas County jail, beginning at 7:00 a.m. This facility houses inmates who have medical problems. The inmates are placed in pods, and the pods are monitored by using direct supervision, meaning a deputy is stationed inside the pod with the inmates and is able to directly monitor and interact with the inmates. Additionally, the deputy supervising the inmates is able to summon medical assistance within the building for the inmates. On July 26, 2010, Inmate Kyle Howard (Mr. Howard) was housed in the pod that Mr. Davis was supervising. On that same day, Mr. Howard came to Mr. Davis and told Mr. Davis that he was ill. Sometime during the day, two inmates came to Mr. Davis and told him that Mr. Howard was sick and throwing up a lot. Standing about 30 feet away from Mr. Howard, Mr. Davis witnessed Mr. Howard "over the toilet in a vomiting mode." Around 9:00 a.m. on July 26, 2010, the nurse, who gave medications to the inmates, gave Mr. Howard a suppository for the nausea. Sometime between 3:08 p.m. and 3:47 p.m., an inmate came to Mr. Davis and told him that Mr. Howard was not responsive. Mr. Davis went to Mr. Howard's cell, discovered that Mr. Howard was not responsive, and called for emergency medical assistance. Mr. Howard was taken to the hospital, where he was pronounced dead. One of the responsibilities of Mr. Davis was to interact with inmates to determine what problems may exist and to summon medical assistance if necessary. On July 26, 2010, Mr. Davis did not attempt to speak to Mr. Howard to determine what was wrong with him and did not call for medical assistance until Mr. Howard was found unresponsive. Mr. Davis was required to check on the inmates in the pod every 30 minutes to monitor the wellness and security of the inmates in the pod. Mr. Davis is required to check each cell and inmate during these checks. After each 30-minute check, Mr. Davis is required to record on a Daily Log Report that he performed the check. The Daily Log Reports are part of the official records of the Sheriff's Office. Mr. Davis admitted that he did not make a complete check every 30 minutes as he was required to do. He walked part of the way down the hall and observed some but not all the inmates. He entered in the Daily Log Report that he had made the checks as required. During some of Mr. Davis's shift on July 26, 2010, Mr. Davis was playing Hearts on the computer and was checking Yahoo and MSN. Prior to the incident at issue, Mr. Davis had been disciplined two times for inappropriate use of computers while on duty. Mr. Davis has admitted that he committed the violations that are charged, but contends that he should be suspended rather than terminated from his employment. The Sheriff Office's General Order 10-2 sets forth the guidelines to be used in the application of discipline. The range of penalties is based on the severity of the violation, from Level One, which is the least severe, to Level Five, which is the most severe. Failing to monitor Mr. Howard and to call for medical assistance for Mr. Howard are severe violations and are Level Five violations. Failing to accurately record his 30-minute checks, because he was not checking each of the inmates during his rounds, is also a severe violation and is a Level Five violation. General Order 10-2 provides that two Level Five violations are assigned 60 points. The disciplinary range for 60 points is a seven-day suspension to termination.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered terminating Mr. Davis's employment with the Sheriff's Office. DONE AND ENTERED this 16th day of May, 2011, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL 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 16th day of May, 2011. COPIES FURNISHED: Sherwood S. Coleman, Esquire Pinellas County Sheriff's Office 10750 Ulmerton Road Largo, Florida 33778 Jimmie Davis 2086 Pine Ridge Drive Clearwater, Florida 33763 James L. Bennett, County Attorney Pinellas County Attorney's Office 315 Court Street Clearwater, Florida 33756
Findings Of Fact The parties stipulated that Petitioner, Gary N. Piccirillo, was afforded a presumptive parole release date interview on May 14, 1982. Thereafter, on June 9, 1982, Respondent, Florida Parole and Probation Commission (FPPC), considered Petitioner's presumptive parole release date (PPRD) and set it for September 30, 1986. On June 28, 1982, Petitioner sought review of his established PPRD pursuant to Rule 23-21.12, Florida Administrative Code, and Section 947.173, Florida Statutes. In November 1983, a special parole interview was granted Petitioner, but the Commission at that hearing declined to change or modify Petitioner's PPRD. Petitioner's next biennial interview for review of his PPRD is scheduled for September 1984. However, Petitioner is currently scheduled to be released from confinement in either September or October 1984, if he is given credit for all earned gain time. Petitioner questions that portion of the rule which provides for only one review of the Commission action establishing or changing the PPRD, but apparently fails to recognize that portion which also provides for subsequent (biennial, special, or effective) establishments of PPRD, which tend to ensure at least periodic reviews of the PPRD. Petitioner attacks the validity of the rule, as amended on October 1, 1982, as it pertains to Sections (1)(e) and (2). He contends that (1)(e), which calls for verification of written or printed evidence provided directly by the inmate and notification to the proper state attorney if any of this evidence is invalid because it constitutes a threat of a penalty, which tends to inhibit the average inmate from presenting evidence he might otherwise present. Petitioner does not question the propriety of reporting false information, only the inclusion of a basis for doing so within the rule. Petitioner also contends that that portion of Paragraph (2) of the rule which provides that the Respondent will not address matters within certain categories, unless new factual information came into existence after the initial interview, is unfair, unduly restrictive, and places an unreasonable burden on prisoners who would be unprepared psychologically to present all their information at the initial interview in its best light. Petitioner contends that after the newness of incarceration wears off and the individual is more comfortable with the system, he would be better prepared to present this information again.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: Petitioner Ronald Winkfield was employed as a detention care worker with the Hillsborough Regional Juvenile Detention Center in February of 1982, and was assigned to work the midnight to 8:00 A.M. shift. On or about June 8, 1981, Mr. Winkfield was involved in an automobile accident, received injuries and returned to work on or about August 17, 1981. He claims that he still suffers severe headaches as a result of the accident and that his work with delinquents caused him mental strain. The logs of the Detention Center illustrate that Mr. Winkfield missed four days of work during the first week of February, and called in sick on the first two of those four days. On February 7, 8, 9 and 10, 1982, Mr. Winkfield again did not appear for duty and did not call in sick on any of those days. Employees of the Detention Center working the midnight to 8:00 A.M. shift were instructed to call in before 6:00 P.M. if they were not going to report for work that night. Petitioner admits that he did not report for work on February 7, 8, 9 or 10, 1982, and that he did not call in on those dates to report his absence. He explains that he did not call in because an employee told him during the first week of February that she would not accept his calls unless he brought in a doctor's certificate stating that he was unable to work. About 11:45 P.M. on February 10, 1982, Mr. Winkfield was seen at a doughnut shop getting out of a Tampa Tribune truck. Petitioner was employed by the Tampa Tribune to deliver papers in February of 1982. A week or two before February 7, 1982, a personnel officer discussed with Mr. Winkfield the procedure for obtaining time off without pay. Mr. Winkfield never formally applied for leave without pay. By letter dated February 12, 1982, the Assistant Supervisor of the Hillsborough Regional Juvenile Detention Center advised Mr. Winkfield that he was deemed to have abandoned his position and to have resigned from the Career Service because of his failure to report to work for four consecutive workdays without authorized leave.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that a Final Order be entered concluding that petitioner Ronald Winkfield has abandoned his position of employment and resigned from the Career Service. Respectfully submitted and entered this 7th day of October, 1982, in Tallahassee, Florida. DIANE D. TREMOR, 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 7th day of October, 1982. COPIES FURNISHED: Ronald Winkfield 5914 82nd Street Tampa, Florida 33619 Amelia M. Park, Esquire District VI Legal Counsel Department of HRS 4000 West Buffalo Avenue Tampa, Florida 33614 David Pingree, Secretary Department of HRS 1323 Winewood Boulevard Tallahassee, Florida 32301 Nevin G. Smith, Secretary Department of Administration Carlton Building Tallahassee, Florida 32301
The Issue Whether a contract exists for the lease of office space in Shalimar, Florida, between the Department of Corrections (DOC) and International Investment Counsel, Inc. (IIC).
Findings Of Fact On or about May 18, 1998, DOC issued a Request for Proposal (RFP) for Lease No. 700:0792, Shalimar Probation and Parole Office (the Lease). IIC, DOC’s current landlord for the Shalimar Probation and Parole Office, and another bidder, Bonafied Business Associates, Inc. (Bonafied), timely filed responses to the RFP. DOC opened and initially determined both proposals to be responsive to the RFP. Following evaluation of the bids by an evaluation committee, DOC posted its decision to award the lease to IIC. Bonafied timely filed a notice of protest. After Bonafied filed its notice of protest, Bonafied met with DOC and pointed out that IIC’s proposal did not clearly specify 40 exclusive parking spaces required by the RFP. Before the expiration of the 10-day period within which Bonafied was required by statute to file its formal written protest, DOC informally notified Bonafied that it intended to withdraw its award to IIC and repost its intent to award the lease to Bonafied. For logistical reasons, DOC did not communicate to IIC its intent to withdraw its award of the lease on or before July 17, 1998, the deadline for Bonafied to file its formal written protest. Notwithstanding that failure of notice to IIC of DOC’s intent to withdraw the lease award, Bonafied failed to perfect its protest and file a formal written protest by the deadline of July 17, 1998, as required by Section 120.57(3)(b), Florida Statutes. Subsequently, Bonafied rented the office space offered in its bid to another tenant.
Recommendation Based on the foregoing, it is RECOMMENDED: That a Final Order be entered directing Department of Corrections to execute a lease with IIC for the Shalimar Probation and Parole Office consistent with the contract now in force between IIC and the DOC. DONE AND ENTERED this 23rd day of November, 1998, in Tallahassee, Leon County, Florida. COPIES FURNISHED: Carolyn S. Raepple, Esquire Cheryl G. Stuart, Esquire Hopping, Green, Sams and Smith, P.A. STEPHEN F. DEAN 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 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of November, 1998. Post Office Box 6526 Tallahassee, Florida 32314 Scott E. Clodfelter, Esquire Obed Dorceus, Esquire Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399-2500 David Theriaque, Esquire 909 East Park Avenue Tallahassee, Florida 32301-2646 Harry K. Singletary, Jr., Secretary Department of Corrections 2601 Blairstone Road Tallahassee, Florida 32399-2500 Louis A. Vargas, General Counsel Department of Corrections 2601 Blairstone Road Tallahassee, Florida 32399-2500
The Issue Whether proposed amendments to Rule 33-3.018(10) and (11), Florida Administrative Code, constitutes an invalid exercise of delegated authority?
