The Issue Is Respondent TPE Structures of Bay County, Inc. (TPE Bay County) an employer as defined in Section 760.02(7), Florida Statutes (2003), conferring jurisdiction on the Florida Commission on Human Relations (the Commission) to consider the complaint filed by Petitioner William D. Hunt (Petitioner Hunt) and Petitioner Charles C. White (Petitioner White) against TPE Bay County?
Findings Of Fact Petitioner Hunt worked for TPE Bay County from August 13, 2003, through October 4, 2003. Petitioner White worked for TPE Bay County from August 11, 2003, through September 6, 2003. These are the relevant time periods in this inquiry. Both Petitioners were terminated from employment. According to the Amended Employment Charges of Discrimination, the Petitioners accuse their supervisor/manager Gary Williams of sexual harassment while employed with TPE Bay County. On August 21, 2000, TPE Bay County filed the necessary documents for incorporation with the Florida Department of State. It was incorporated as a Florida for profit corporation. As of April 11, 2002, the mailing address for the corporation was Post Office Box 18155, Panama City Beach, Florida 32417. Kenneth L. Karr is the registered agent for the corporation. He is the president and only director. Mr. Karr is the only shareholder in the corporation holding 400 shares. Mr. Karr's address is 7109 Lagoon Drive, Panama City Beach, Florida 32408. This information concerning TPE Bay County and Mr. Karr pertained during the relevant time contemplated by the Amended Charges of Discrimination referred to before, with the exception that Mr. Karr had a prior address in Panama City Beach, Florida. Mr. Karr filed with the Florida Secretary of State a year 2004 for profit corporation annual report. That report was filed April 26, 2004. It is one in a series of reports filed with that agency since the inception of the corporation. Earlier a corporation identified as TPE Structures, Inc. (TPE) had been formed. On March 26, 1999, the necessary documents were filed with the Florida Department of State to incorporate TPE. At times relevant, the principal address for TPE was 5970 Peninsula Avenue, No. 3, Key West, Florida 33040. The mailing address was Post Office Box 2066, Key West, Florida 33045. Mr. Karr serves as resident agent for TPE. His address is 7109 Lagoon Drive, Panama City Beach, Florida 32408 for those purposes. The 2004 TPE for profit corporation annual report was filed with the Florida Department of State on April 4, 2004. Before April 14, 2004, other for profit corporation business reports were filed with that agency. Mr. Karr was the president and only director for TPE from the inception and continues in those roles at present. He holds 500 shares in TPE that represents all shares. At times relevant Mr. Karr received a salary from TPE Bay County and from TPE. The Florida General Contracting license pertaining to TPE Bay County and TPE is No. CBC059131. At times relevant TPE Bay County and TPE maintained separate employee telephone numbers or contact lists. Those lists set forth the names and addresses for the employees. Persons whose names and addresses are related in the TPE Bay County list and the TPE list do not overlap. TPE Bay County is engaged in the business of concrete spalling, stucco repair, termite and water damage, waterproofing, caulking, texture coatings and painting. TPE is engaged in the business of concrete spalling, stucco repair, termite and water damage, waterproofing, caulking, texture coatings and painting. TPE Bay County in its breakout of work performed is involved 60 percent in waterproofing, 25 percent in stucco and wood repair and 15 percent in painting and texture coatings. By contrast TPE is involved with 80 percent concrete spalling, and 20 percent painting. TPE Bay County does work in Bay County, Florida. TPE does work in the lower Florida keys in Monroe County, Florida. The work is done through separate company employees assigned to those jobs from the business locations where the jobs are found. The work is not done by exchanging employees who work for TPE Bay County and TPE respectively. TPE Bay County and TPE have separate managers whose job it is to estimate, promote, market, bid, solicit, and obtain contracts. Those managers do not communicate or deal with each other in the regular course of business. Mr. Karr's job duties in relation to his companies is to deal with corporate functions, set goals for profit, set goals for sales, deal with the respective managers of the two companies, deal with cash-flow, oversee accounting, sign checks, and visit job sites routinely. Mr. Karr hired the managers for the two locations and would be responsible for firing those managers. He has a similar role in dealing with a single accounting staff that serves both companies. Gary Williams serves as the manager for TPE Bay County. Stace Valensuelela manages TPE. Those managers are responsible for labor relations and safety activities. The managers are responsible for approving time cards for payroll purposes and establishment of hourly wages for employees, for billing customers and approving invoices for payment. The bookkeeping for the companies is done by Georgianne Davis who is overseen by Mr. Karr's wife. The business records for TPE Bay County Respondent are maintained at 7915 North Lagoon Drive, Panama City Beach, Florida 32408. The mailing address for that company is Post Office Box 18155, Panama City Beach, Florida 32417. The telephone number for TPE Bay County is (850) 235-4811. The fax number for TPE Bay County is (850) 230-3617. The e-mail address is ken@tpestructures.com. The business records for TPE had been maintained at 5970 Peninsula Avenue, No. 3, Key West, Florida 33040. The mailing address for TPE was Post Office Box 2066, Key West, Florida 33045. The telephone number for TPE was (305) 292-4111. The fax number for TPE was (305) 292-4615. The e-mail address for TPE is ken@tpestructures.com. After September 29, 2004, the Key West office closed and the records of TPE were sent to the Panama City Beach address related to TPE Bay County for storage purposes. TPE Bay County has assigned an FEIN number 59-3666286. TPE has assigned an FEIN number 65-0929637. TPE Bay County does business with Peoples Bank in Panama City Beach, Florida. TPE has transacted banking business with First State Bank in Key West, Florida. An occupational license was issued by Panama City Beach for TPE Bay County's operations in Bay County, whereas TPE's operations in Key West for Monroe County was issued a separate occupational license by that local government. According to employee information for TPE Bay County and TPE, at times relevant nine persons were employed by TPE Bay County and 20-plus persons were employed by TPE. At times relevant none of the persons employed by TPE Bay County worked on projects around south Florida. Similarly, none of the TPE employees worked on projects in the Florida panhandle. No funds related to TPE Bay County were used to pay the debts for TPE. No funds for TPE were used to pay debts of TPE Bay County. On advice of counsel Mr. Karr formed TPE Bay County as a separate corporation from TPE to limit debt liability. These arrangements were not intended in their design to avoid employment discrimination claims by employees. A business card presented as evidence bearing Mr. Karr's name sets forth TPE as the company. It provides the post office address for TPE Bay County and TPE in their respective locations at Panama City Beach and Key West. It gives the telephone numbers for TPE Bay County and TPE. It gives the fax number for TPE. It has a website listed which is www.tpestructures.com. A letterhead refers to TPE with a post office address for both the TPE Key West company and the TPE Bay County Panama City Beach company. Advertising in several telephone book listing services refers to "TPE Structures, Inc." and "TPE" while containing the TPE Bay County's 7914 North Lagoon Drive, Panama City Beach, Florida address and telephone number at 235-4811. Those listings bore the website address www.tpestructures.com with the contractors license number CBCO59131. Two separate telephone listings bore the name "TPE Structures, Inc.," with the initials "TPE" the 5970 Peninsula Avenue address for TPE and the telephone number for TPE as (305) 292-4111. A website address in those listings was given as www.tpestructures.com. A contact form soliciting information from outsiders refers to TPE, not TPE Bay County, at the location 7914 North Lagoon Drive, Panama City Beach, Florida 32408, with a telephone number of (850) 235-4811 and the fax number (850) 230-3617. That same form refers to TPE at telephone number (305) 292-4111 and fax number (305) 292-4615. It carries an e-mail addresses for general information as info@tpestructures.com and under the president as ken@tpestructures.com. An information sheet referring to the "TPE" office staff shows photos of Mr. Karr as founder and president, Suzanne Karr, Gary Williams as manager of Panama City Beach, and Georgianne Davis, secretary and accounting at Panama City Beach, Florida. On that same page with photos unavailable is a reference to Stace Valensuelela as manager of Key West and an unnamed secretary at Key West, Florida. A brief employment application form refers to joining the "TPE" team and sending the information to "TPE Structures, Inc." at 7914 North Lagoon Drive, Panama City Beach, Florida 32408. It provides the fax number (850) 230-3617 related to Panama City Beach. At times relevant TPE Bay County had filed with the Florida Department of Revenue its employers quarterly report. TPE Bay County has filed a Form 940-EZ with the Internal Revenue Service related to the Employers' Federal Unemployment (FUTA) tax return for calendar year 2003. TPE Bay County had filed a Form 941 Employers' Quarterly Federal Tax Return for the quarter ending September 30, 2003, with the Internal Revenue Service. In a document prepared that refers to the "TPE history", it is stated that in addition to the Key West office, TPE is proud to announce the opening of the Panama City Beach, Florida office at 7914 North Lagoon Drive on February 1, 2001. The phone numbers are (850) 235-4800 and fax (850) 230-3617 or toll free at 877-660-4811. A truck used in the business related to TPE Bay County had signs displayed referring to "TPE." One sign on the truck indicated the telephone number for TPE Bay County's business, which is (850) 235-4811. At times relevant employees working for TPE Bay County wore painter whites referring to "TPE Structures" that displayed the telephone numbers for Key West and Panama City Beach with a common 1-800 number. When Petitioner White was hired, Mr. Karr told him that he has trying to keep Key West going and was having monetary trouble in that location. From the hearing record nothing additional was said to Petitioner White on the subject. Mr. Karr told Petitioner Hunt that there was a Key West branch of his business. Notwithstanding this remark, Petitioner Hunt did not become personally familiar with the Key West operation.
Recommendation Upon the consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered by the Commission finding that it is without jurisdiction to proceed in these cases based upon Petitioners' failure to show that the Respondent is "an employer" as defined in Section 760.02(7), Florida Statutes (2003). DONE AND ENTERED this 22nd day of December, 2004, in Tallahassee, Leon County, Florida. S CHARLES C. ADAMS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of December, 2004. COPIES FURNISHED: Daniel A. Perez, Esquire Allen & Trent, P.A. 700 North Wickham Road, Suite 107 Melbourne, Florida 32935 Kenneth L. Karr, President TPE Structures of Bay County, Inc. Post Office Box 18155 Panama City Beach, Florida 32417 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 The issue in this case is whether the Respondent, Florida Department of Insurance and Treasurer, committed an unlawful employment practice by denying Petitioner certification as a permanent firefighter in the state of Florida.
Findings Of Fact Petitioner is 39 years old and is employed by the City of Margate, Florida as a police officer. He is currently assigned as a detective. When Petitioner was four years old, he had portions of his right index and right middle fingers amputated in a grinding machine. Petitioner's "handicap" condition has not changed since his boyhood accident and his condition will not deteriorate any further. Because of his determination and his young age at the time of the accident, Petitioner has learned to deal amazingly well with his handicap. He has demonstrated an ability to function without limitation in a variety of job settings, including stints as a mailroom courier where he sorted and handled mail, as a construction worker where he used heavy equipment and performed manual labor such as carpentry and electrical work, and several other positions which required manual dexterity. Throughout his life, Petitioner has experienced discrimination and skepticism as a result of his handicap. While he has been denied employment opportunities in the past because of doubts about his ability to handle jobs requiring manual dexterity, there is no indication that his handicap has ever prevented him from performing any job. Indeed, the evidence affirmatively established that his handicap has never hindered his job performance, even in jobs requiring a great deal of manual dexterity. During the mid-1970's, Petitioner applied for several jobs as a police officer with several police departments in South Florida. Because of his handicap, he was turned down for a number of these positions. In 1977, the City of Margate hired Petitioner for a position as a police officer and sent him to the Police Academy. Before the City of Margate hired him, Petitioner was required to demonstrate to certain police department supervisors that, despite his handicap, he possessed the strength, dexterity, eye-to-hand coordination and motor control necessary to be a police officer. As part of this process, he demonstrated an ability to expertly handle firearms with either hand. When he entered the Police Academy, the instructors were aware of Petitioner's handicap and paid particular attention to his ability to perform. Petitioner had no difficulty completing any of the required tasks at the Academy. As a police officer with the City of Margate since 1977, Petitioner has been required to utilize a wide variety of skills and has never had a problem because of his handicap. Petitioner has used handcuffs, firearms, flares, night sticks, numchukas and other such devices without any limitation. He has responded to hundreds of emergency calls and has assisted in extinguishing fires and removing people from fires. On one occasion, he rescued an unconscious boy from the back seat of a car which had crashed into a canal. Petitioner is qualified as an expert marksman with both hands and teaches marksmanship. In 1985, the City of Margate initiated a program to cross-train police officers in firefighting skills. In connection with this program, Petitioner successfully completed an enhanced basic volunteer course in firefighting consisting of eighty eight hours of training with practical experience. Petitioner was able to complete the entire course without any difficulty, including using various ladders, "taking down" a breathing apparatus and utilizing tools for forcible entry. Petitioner also demonstrated the ability to handle ropes and tie all necessary knots and to handle and connect hoses and similar equipment. Petitioner's overall performance in the course was deemed to be above average. In the later part of 1986, Petitioner successfully completed a more intensive training course for permanent firefighters at the Broward Fire Academy. The Respondent has promulgated standards setting forth certain requirements that all fire academies must provide as part of their training. Included in these standards is a requirement for "psychomotor skills development which indicates the demonstrated ability to perform individually and as a member of a crew or group all tasks and operations associated with training. If, in the professional opinion of an instructor, a student does not possess the qualities necessary to satisfactorily perform psychomotor skills, a student may be dropped from the training program." The Broward Fire Academy is one of thirty-one training centers certified by the Respondent to conduct minimum standards training for permanent firefighters. The curriculum at the Broward Fire Academy meets the minimum criteria established by the Respondent, including the standards established by N.F.P.A. 1001, Firefighter Professional Qualifications. All performance objectives for firefighters are covered as part of the training course. Satisfactory completion of the training according to state specifications must be certified by designated instructors of the Academy in order for an applicant to pass the course. Petitioner completed two hundred and fifty hours of training at the Broward Fire Academy even though the Respondent only requires two hundred and forty hours of training to certify permanent firefighters. He passed all written and practical examinations at the Broward Fire Academy with a grade of 89 or higher. The instructors at the Broward Fire Academy were aware of Petitioner's handicap and scrutinized his performance more closely than they did the other students. He was frequently chosen as the student to perform practical demonstrations. The Respondent administers a test to all individuals who have graduated from state fire academies as part of its certification process. In order to obtain a certification as a permanent firefighter from the Respondent, an applicant must pass both a written and a practical examination with a grade of 70 percent or higher. An employee of the Respondent administered the state examination at the Broward Fire Academy on March 4 and 5, 1987. The individual administering the examination indicated to Petitioner that he did not believe Petitioner should be registered as a firefighter. Petitioner was singled out to perform more tasks than the other students who were taking the test. Nonetheless, Petitioner passed the state written examination administered by Respondent with a grade of 80.6 and the practical examination with a grade of 88. After he passed the examinations, Petitioner was denied certification by Respondent as a paid permanent firefighter by a letter dated September 24, 1987. The sole basis for denying Petitioner certification was that he was missing portions of two of his fingers as described above. The evidence established that Petitioner is fully capable of performing all necessary tasks expected of a firefighter, including all of the functions described in the City of Margate's job description for a firefighter. The highest pay grade level for a public safety officer in Margate requires an officer to be eligible to serve as a firefighter. Because Petitioner has not been able to obtain his certification as a permanent firefighter from Respondent, he has not been able to advance to the next pay grade and job classification level to which he would otherwise be entitled based upon his experience and training. The City of Margate has indicated its willingness to hire Petitioner in such a position if he obtains a firefighter certification from Respondent. The job description for a firefighter position in the City of Margate does not specifically require that an applicant be certified as a firefighter pursuant to Chapter 633, Florida Statutes. However, the applicable statute does not permit a municipality to employ an individual as a permanent firefighter for more than one year unless he has obtained a certification from Respondent. Respondent has notified the City that Petitioner cannot serve as a firefighter in "combat" status pending the outcome of this administrative process.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Human Relations Commission enter a Final Order granting Petitioner Nicholas Leischen's Petition for Relief. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 7th day of November, 1990. J. STEPHEN MENTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of November, 1990.
The Issue Whether the Petitioner's application for licensure as a resident customer representative insurance agent should be approved.
Findings Of Fact The Petitioner is an applicant seeking to be licensed as a resident customer representative insurance agent. The Respondent is the state agency charged with the responsibility of reviewing and issuing licenses governed by Chapter 626, Florida Statutes. On or about May 29, 2003, the Petitioner filed an internet application that required responses to questions regarding the Petitioner's fitness to be licensed. Among the screening questions listed on the application was the following inquiry: Have you ever been charged, convicted, found guilty, or pled guilty or nolo contendere (no contest) to a crime under the laws of any municipality, county, state, territory or country, whether or not adjudication was withheld or a judgment of conviction was entered? The options to the question noted above required the Petitioner to choose "Y" for affirmative or "N" for a negative response. The Petitioner selected "N." Thus, the Petitioner represented to the Respondent that she had not ever been charged, convicted, found guilty, or pled guilty to a crime. In fact, the Petitioner was charged with a crime and did enter a plea to a crime. On May 25, 1984, the Petitioner filed a Plea Agreement wherein she agreed to plead guilty to the offense of unlawful use of a communication facility. Judge Orrick in the United States District Court, Northern District of California, then accepted the plea and found the Petitioner guilty of a violation of 21 U.S.C. Section 843(b). The Petitioner was placed on probation for a period of three years. With regard to the instant case, the Petitioner admitted she failed to disclose the conviction. The Petitioner maintained her grandchildren distracted her when she was completing the form and checked the wrong response by mistake. The Petitioner did not review the error and advise the Department of the erroneous entry. Additionally, the Petitioner claimed that she did not realize the screening question related to activities in all jurisdictions and thought it meant only criminal conduct in the State of Florida. Again, the Petitioner did not seek any clarification as to the question's meaning prior to submitting an incorrect answer. Moreover, it is determined that the question is unambiguously stated to include jurisdictions beyond the State of Florida. The Petitioner believes that because she was able to successfully achieve citizenship after the criminal incident noted above she should similarly be favorably considered for the instant license. There is no evidence that supports a conclusion that the naturalization and immigration regulations for citizenship comport with the Florida laws regulating the licensure of insurance agents. Moreover, the Petitioner acknowledged that she disclosed the criminal history on her application for citizenship. The omission of pertinent facts regarding her criminal history was therefore not an issue in whether or not she should achieve citizen status.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Financial Services enter a Final Order denying the Petitioner's application for licensure. DONE AND ENTERED this 27th 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 27th day of April 2004. COPIES FURNISHED: Honorable Tom Gallagher Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Mark Casteel, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Ladasiah Jackson, Esquire Department of Financial Services 612 Larson Building 200 East Gaines Street Tallahassee, Florida 32399-0333 Nora Delgadillo 11432 Southwest 75th Terrace Miami, Florida 33173
The Issue In an order dated January 29, 1992, the State of Florida, Commission on Ethics found probable cause that the Respondent, as a city commissioner of the City of Cottondale, violated Section 112.313(7)(a), Florida Statutes, by having a contractual relationship with a business entity which was doing business with the city. The issue in this proceeding is whether the violation occurred and, if so, what penalty should be recommended.
Findings Of Fact Leonard Norsworthy served two two-year terms as a city commissioner for the City of Cottondale, a small community in the Florida panhandle. His tenure spanned from 1987 until July 1991. Mr. Norsworthy is sole proprietor of J. & L. Housepainting and Remodeling (J & L), a roofing and remodeling business. He has a State of Florida contractor's license. Sometime in 1990, the City of Cottondale, through its grants coordinator in Tallahassee, sought and obtained Community Development Block Grant (CDBG) funds for various needed public works. The project was advertised, and a bid was awarded to T & A Utilities Contractors, Inc. (T & A), a Lynn Haven, Florida, firm owned by Charles Williams. The total contracted amount of $244,282 included resurfacing two streets, a parking lot, a children's park, 8-inch water lines, and renovations to the city hall. Not all of the work was done immediately, as the city needed to get various permits. Due to changes in the scope of work, additional money became available for other projects, including renovating a public bathroom to make it accessible for handicapped persons. Some of the work was subcontracted by T & A to other firms. Charles Williams did not advertise for bids for the subcontracted work, but obtained proposals. He had obtained proposals from some Panama City firms for the bathroom and city hall renovations because he was not aware of firms closer to Cottondale. "Pete" Hilton was Cottondale's Public Works Director for eight years until he left in October 1992 for medical reasons. He told Charles Williams that he knew someone who could do the work for a good price, and shortly thereafter Leonard Norsworthy called Williams. Mr. Norsworthy's proposal was less than the prices quoted by the Panama City firms, and on June 5, 1991, T & A subcontracted with J & L for the renovation work for a total amount of $8,460. The sum was paid in three releases. The jobs performed by Mr. Norsworthy under the subcontract included redoing the bathroom and a handicap ramp entrance, installing rain gutters, removing a wall and plastering and finishing a wall. At no charge for his labor, Mr. Norsworthy also painted the building. Leonard Norsworthy knew about the city's revitalization contract with T & A because he was a city commissioner at the time. While the city was a party to the contract, the specifications and the background work were handled by the city engineer, who recommended the award to T & A. Leonard Norsworthy admits that he did the work and says, "You live and learn." He concedes that there are others in the area who could have done the work, but believes he gave a good price for the job. He says that work is scarce in the area and you have to take it where you find it. He knew that the law prohibited doing business with one's own agency, but he had no idea that the prohibition extended to subcontracts as well.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED: That the Commission enter its final order and public report finding that Leonard Norsworthy violated Section 112.313(7), Florida Statutes, and recommending a penalty of $300.00. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 12th day of April 1993. MARY CLARK 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 12th day of April 1993. COPIES FURNISHED: Craig Willis, Esquire Michael Ingraham, Esquire Department of Legal Affairs The Capitol, Suite 1502 Tallahassee, Florida 32399 Leonard Norsworthy Post Office Box 299 Cottondale, Florida 32431 Bonnie Williams, Executive Director Ethics Commission Post Office Box 6 Tallahassee, Florida 32302-0006 Phil Claypool, General Counsel Ethics Commission Post Office Box 6 Tallahassee, Florida 32302-0006
The Issue The issue is whether this case should be dismissed based on Petitioner's failure to appear at the scheduled final hearing.
Findings Of Fact Upon receipt of the Petition for Relief at DOAH, an Initial Order was issued on October 8, 2010, requiring Petitioner to coordinate a joint response to provide certain information within seven days or to file a unilateral response, if a joint response was not possible. Petitioner did not respond to the Initial Order. On October 15, 2010, Respondent submitted a unilateral response indicating that Petitioner had not contacted Respondent to coordinate a response. The undersigned issued a Notice of Hearing on November 5, 2010, scheduling the final hearing for December 8, 2010, at the Martin Luther King, Jr., Administrative Center in Naples, Florida. The notice included citations to the procedural statutes and rules governing the hearing and information about the parties' obligation to appear at the hearing with their witnesses and evidence. With the Notice of Hearing, the undersigned issued an Order of Pre-hearing Instructions, which required the parties to exchange witness lists and copies of their proposed exhibits at least seven days before the final hearing and to file their witness lists with DOAH. The Order warned that failure to comply with these requirements "may result in the exclusion at the final hearing of witnesses or exhibits not previously disclosed." The foregoing Orders and notice were mailed to Petitioner at his address of record in New York, New York, and none of these envelopes was returned as undeliverable. Petitioner resides in New York, but as specified in the FCHR Determination of No Cause, Petitioner is a frequent visitor to Naples, Florida, where his mother lives in a condominium she owns at Park Shore Landings. Indeed, it was Petitioner's rental of a unit at Park Shore Landings, on multiple occasions spanning multiple weeks that gave rise to Petitioner's complaint filed with FCHR. On November 23, 2010, Respondent filed a Motion for Continuance because of difficulties coordinating Petitioner's deposition to accommodate Petitioner's holiday travel plans and scheduling conflicts. A continuance was granted for good cause shown, and the final hearing was rescheduled for February 15, 2011, at 9:00 a.m., in Naples, at a location to be determined at a later date. The Order stated that the previous Order of Pre-hearing Instructions remained in full force and effect. An Amended Notice of Hearing was issued on December 9, 2010, to specify the hearing location: Martin Luther King, Jr., Administrative Center, 5775 Osceola Trail, Naples, Florida. This notice repeated the hearing date (February 15, 2011) and time (9:00 a.m.). The notice also reiterated that the parties were required to appear at the time and place of the hearing with their witnesses and evidence and that failure to appear may result in dismissal. The notice listed the name, address, and telephone number for the hearing room contact person at the hearing site. The notice was mailed to Petitioner at his address of record and was not returned undeliverable. On December 15, 2010, Respondent filed a notice of taking Petitioner's deposition in Naples on December 22, 2010, at a court reporter's office near the scheduled location for the final hearing. On February 2, 2011, the undersigned issued another Amended Notice of Hearing to advise that any party desiring a court reporter had to make arrangements at the party's own expense, with notice to the other party and to the undersigned. This notice repeated the final hearing date (February 15, 2011), time (9:00 a.m.), and location (Martin Luther King, Jr., Administrative Center, 5775 Osceola Trail, Naples). The notice also repeated the name, address, and telephone number for the hearing room confirmation contact person. Like all previous notices of hearing, the notice reiterated that parties were required to appear at the time and place of the hearing with their witnesses and evidence and that "[f]ailure to appear at this hearing may be grounds for entry of an order of dismissal." On February 8, 2011, in accordance with the Order of Pre-Hearing Instructions, Respondent filed its witness list, with names and addresses for five witnesses and a certification that Respondent's exhibits had been provided to Petitioner. No witness list was filed by Petitioner. On February 10, 2011, Respondent gave notice to the undersigned and to Petitioner that Respondent had retained a court reporter to record the February 15, 2011, final hearing. The undersigned traveled from Tallahassee to Naples on Monday, February 14, 2011, and stayed overnight at a hotel in Naples, in order to convene the hearing scheduled for 9:00 a.m., the next morning. On February 15, 2011, the undersigned arrived at the noticed hearing location at approximately 8:30 a.m. Counsel for Respondent (from Tampa) and four of Respondent's witnesses were already present. Arriving at the same time as the undersigned was Respondent's fifth witness and the court reporter. At 9:00 a.m., the undersigned went on the record to convene the scheduled hearing to allow counsel for Respondent to enter his appearance for the record and to announce that Petitioner had not appeared or contacted anyone to explain his absence. The undersigned then recessed the hearing for 20 minutes in case Petitioner was running late. At 9:12 a.m. (as time-recorded by the undersigned's mobile phone), the undersigned called her assistant at DOAH to determine whether Petitioner had called DOAH or submitted anything in writing that would explain his failure to appear for the scheduled hearing. The undersigned's assistant stated that no calls or filings had been received and that she would call the undersigned on her mobile phone immediately, if Petitioner contacted her. Meanwhile, to make sure that Petitioner was not on the premises unable to find the hearing room, one of Respondent's representatives checked at the front desk, where anyone entering the building would have to check in and go through the security procedures, and verified that Petitioner had not arrived. Shortly after 9:20 a.m., the undersigned went back on the record to state that Petitioner had still not appeared, nor had Petitioner contacted DOAH or someone at the hearing site. The undersigned recited the steps taken to verify the absence of contact by Petitioner; reviewed the file, noting the multiple notices and Orders mailed to Petitioner; and confirmed Petitioner's address of record to which the notices and Orders were mailed and not returned as undeliverable. Respondent represented that Petitioner did not show up for the first deposition scheduled in coordination with Petitioner's calendar, but that Petitioner did appear the second time his deposition was set. Respondent also represented that Petitioner did not provide Respondent with a witness list or copies of any proposed exhibits. Respondent had no other information about Petitioner's whereabouts or intentions. Based on Petitioner's failure to appear and present a prima facie case to meet his burden of proof, the convened hearing was adjourned shortly before 9:30 a.m. Those present took some time to pack up computers and files and move furniture to restore the room to its prior configuration. Thus, it was after 9:30 a.m., when the undersigned exited the building, after checking again at the front desk to verify there was still no sign of, or word from, Petitioner. The undersigned drove to a hotel located eight minutes from the hearing site. Upon arrival, the undersigned's mobile phone rang, but could not be answered before the call went to voice mail. A voice mail message was left by the undersigned's assistant, time-recorded at 9:51 a.m. The message was that the undersigned's assistant had just spoken with Mr. Ziolkowski, who had called to say that he was at the hearing site, but no one was there. Petitioner told the assistant that he had been at the emergency room until an hour earlier (i.e., until 8:45 a.m.), and he went straight to the hearing site. The undersigned's assistant asked Petitioner why he had not called sooner, and his only response was that he did not have his mobile phone; but when asked how he was calling her then, he said he was calling from his mobile phone, and he gave the assistant his mobile phone number, which had not been provided previously. Petitioner then asked the undersigned's assistant about rescheduling the hearing. She explained that she had no authority to address his request; if Petitioner wanted the undersigned to consider a request for relief, it had to be submitted in writing and should provide any explanation and documentation he had as to why he could not be at the hearing and why he could not call. A memorandum from Mr. Ziolkowski was filed at DOAH by fax on February 16, 2011, at 2:40 p.m. The one-page memorandum, with no attachments and no certificate of service indicating service on Respondent, stated in pertinent part: Please accept my apologies for not being able to communicate with you yesterday regarding my delayed appearance to your courtroom. I was in the emergency room at Naples Community Hospital until 8:11 am Tuesday (2/15/11). I went straight from the hospital to the Administrative center and I didn't have my mobile phone or directions to the Administrative center and finally I reached the Administrative center at approximately 9:30 a.m. Petitioner ended the memorandum with a request to reschedule the final hearing. Copied onto the bottom of the page was a small label, perhaps a hospital-issued identification bracelet bearing Petitioner's name and date of birth, a reference number and several other numbers, "NCH 02/15/11," and a bar code. The undersigned issued a Notice of Ex-Parte Communication with the memorandum attached, which was mailed to both parties. On February 28, 2011, Respondent filed its Objection to Petitioner's Request for Re-Hearing. Respondent's objection asserted that the documentation offered by Petitioner was insufficient to prove that Petitioner was at Naples Community Hospital until 8:11 a.m. on February 15, 2011, because the identification label only showed a date, February 15, 2011, which could be as early as 12:01 a.m., or as late as many hours after the scheduled hearing. Petitioner chose not to provide the documentation that he apparently had to show the precise time that he left the emergency room--8:11 a.m. (more than 30 minutes earlier than he told the undersigned's assistant on the telephone). Such documentation would also likely reveal such information as the time of day or night when Petitioner was clocked in at the emergency room; why Petitioner presented at the emergency room; what, if anything, was wrong with Petitioner; and whether he received any treatment or whether treatment was deemed unnecessary. Respondent's objection went on to note that even assuming the accuracy of Petitioner's stated departure time of 8:11 a.m., from Naples Community Hospital, that hospital has only two campuses, "one of which is six minutes and the other is fifteen minutes away from the location of the hearing." Respondent's objection concluded, "At bottom, Petitioner was not in the emergency room at the time of the hearing, had ample time to attend the hearing, and has provided no evidence to support his request to re-schedule the duly-noticed February 15, 2011 hearing."
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 Petitioner, John Ziolkowski's, Petition for Relief. DONE AND ENTERED this 8th day of March, 2011, in Tallahassee, Leon County, Florida. S ELIZABETH W. MCARTHUR Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of March, 2011.
