Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Petitioner be issued a Class "F" Unarmed Guard License. Upon certification of his employer that his duties require him to be armed, the Hearing Officer recommends that the agency issue the Petitioner a Class "G" Armed Guard License. The Hearing Officer further recommends that the agency adopt a rule restricting all guard agencies from utilizing armed guards where the nature of their assigned duties does not warrant the use of a firearm to carry out their assignment. DONE and ENTERED this 24th day of August, 1979, in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of August, 1979. COPIES FURNISHED: W.J. Galdwin, Jr., Esquire Assistant General Counsel Department of State The Capitol Tallahassee, FL 32301 John F. Cuddy, Esquire 333 East Bay Street Jacksonville, FL 32202
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: Through RFP-DOT-94/95-4009, entitled "Rest Area Security Services- District Four" (hereinafter referred to as the "RFP"), the Department requested the submission of proposals from "consultants" interested in providing the Department with security services at rest areas on Interstate Highways in St. Lucie, Martin and Broward Counties in the Department's District IV. The "objective" of the RFP was explained as follows in Section 1.0 of Exhibit "A," which was attached to, and incorporated in, the main body of the RFP: To provide appropriately equipped and security personnel at Rest Areas along the Interstate Highways, and to provide protection for the General Public, Department personnel, and all property at locations specified in this Contract (see Exhibit "D," for locations). It is the intent of the Department to protect its personnel, property, and the Public by means of well-trained, alert, interested, and concerned Security Officers. The Contractor must ensure that their Security Officers properly carry out their primary duty to safeguard the General Public, the Department's personnel, and all property. The "services to be provided" to the Department were described as follows in Section 2.0 of Exhibit "A:" The Contractor shall provide qualified, competent, uniformed, and armed Security Officers to provide security services to protect the health, safety, and welfare of all the citizens of and visitors to the State of Florida. The Contractor will be responsible for verifying that the scope of its operations are sufficiently broad and well defined to ensure the maximum protection of property and life and are also consistently managed in an efficient and profes- sional manner. It shall be the responsibility of the Contractor to provide security services as stated herein, within the physical limits of the rest areas and/or welcome stations. Those limits shall begin at the approach taper of the deceleration lane, extend through the rest area and/or welcome station from the edge of the paved shoulder of the main roadway, and terminate at the end of the acceleration taper. The Security Officers will be responsible for monitoring the grounds surround- ing the facility, including, but not limited to: all parking lots, picnic areas, and restroom build- ings. The Contractor shall insure that all employees comply with all applicable laws, ordinances, rules, and regulations set forth by the Department. The security services shall be provided on a continuous 24-hours-per-day and 7-days-a-week (including all holidays) basis. The Contractor shall have sufficient back-up personnel and equip- ment available to immediately replace personnel and/ or equipment that may fail. The Department may modify the type of service, number of hours, or number of employees upon 24-hours-notice in writing. The Contractor shall furnish one or more Security Officer(s) per each Rest Area unit and/or Welcome Station. There are five (5) units in District IV (see exhibit "D" for locations). The Contractor, and every employee of the Contractor assigned to the project, shall comply with the security industry standards referenced in Chapter 493, Florida Statutes. The Contractor shall provide materials and equipment as specified herein. At all times, Security Officers will be courteous and display a professional and friendly manner. The "special requirements" of the contract into which the Department would enter with the winning "consultant" were set forth in Section 3.0 of Exhibit "A," which provided, in pertinent part, as follows: The Department reserves the right to require the Contractor to relieve an employee from duty assignments and/or bar an employee from further service under this Contract. No reason need be given by the Contract Manager. 1/ The Contractor shall obtain and pay for any and all licenses, permits, registrations, and inspections, etc. required for this project's proposal and performance. The Contractor shall comply with all laws, ordinances, regulations, and code requirements applicable to the work contemplated herein. Damages, penalties, and/or fines imposed on the Department or the Contractor for failure to obtain any and all required licenses and/or permits shall be borne by the Contractor. Prior to any employee beginning work pursuant to this Contract, the Contractor's Project Manager shall provide sworn certification to the Department's Contract Manager that each employee (Security Officers and Contract Supervisors) 2/ meets the eligibility criteria as specified herein. The "eligibility criteria" for these "Security Officers and Contract Supervisors" were set forth in Section 18.0 of Exhibit "A," which provided, in pertinent part, as follows: All Security Officers and Contract Supervisors employed by the Contractor under this Contract are required to meet the minimum qualifications and standards regarding background, experience, and health. The suitability of Security Officers and Contract Supervisors for employment pursuant to this Contract must be determined by the Contractor; however, the Department reserves the right to disapprove of the employment of Security Officers and Contract Supervisors due to unsuitability. Minimum Requirements for Security Officers: . . . 8) Must acquire, keep active, and possess on their persons at all times while on duty all personal, professional, and technical licenses or certificates specified in this Contract, or otherwise required for performance of the work required pursuant to this Contract. . . . Minimum Requirements for Contract Security Supervisors Contract Supervisors must meet the eligibility criteria established for the Security Officer classification. . . . Required Documentation: All of the Contractor's personnel (e.g. Security Officers and Contract Supervisors) performing work under this Contract must possess on their person at all times while on duty, and keep current all appropriate cards, certificates, and licenses, as follows (unless the Contractor's personnel is certified and employed as a law enforcement officer or correctional officer and exempted from such licensure requirements pursuant to Section 493.6102(1), Florida Statutes): State of Florida Class "D" License (security guard license) State of Florida Class "G" License (license authorizing individual to bear a firearm) NOTE: The use or possession of a concealed firearm in connection with this Contract is prohibited. State of Florida Driver's License or other State Driver's License which permits the individual to operate a vehicle in the State of Florida. Section 1.7 of the main body of the RFP addressed the subject of the "consultant's" qualifications to provide the services to be performed under the contract. It read as follows: Qualifications for Consultant Services General The Department will determine whether the proposed 3/ is qualified to perform the services being contracted based upon the Consultant demonstrating in its proposal satisfactory experience and capability in the work area. The proposer shall include the necessary experienced personnel and facilities to support the activities associated with this contract. Qualifications of Key Personnel Those individuals who will be directly involved in the project must have demonstrated experience in the areas delineated in the scope of services. Individuals whose qualifications are presented will be committed to the project for its duration unless otherwise excepted by the Project Manager. Authorizations and Licenses The Consultant must be authorized to do business in the State of Florida. Such authorization and/or licenses should be obtained by the proposal due date and time, but in any case, will be required prior to award of the contract. For corporate authorization, contact: Florida Department of State Division of Corporations The Capitol Building Tallahassee, Florida 32399 (904)487-6052 Review of Facilities After the proposal due date and prior to contract award, the Department reserves the right to perform or have performed, an on-site review of the proposer's facilities. This review will serve to verify data and representations submitted by the Proposer and to determine whether the proposer has an adequate, qualified, and experienced staff, and can provide overall management facilities. The review will also serve to verify whether the Proposer has financial capability adequate to meet the contract requirements. In the event the Department determines that the size or nature of the proposer's facilities or the number of exper- ienced personnel (including technical staff) are not reasonably adequate to ensure satisfactory contract performance, the Department has the right to reject the proposal. 4/ Section 1.8 of the main body of the RFP addressed the subjects of "Department reservations and responsiveness of proposals." It read as follows: General The Department reserves the right to accept or reject any or all proposals received and reserves the right to make an award without further discussion of the proposals submitted. Therefore, the proposals should be submitted initially in the most favorable manner. It is understood that the proposal will become a part of the official file on this matter without obligation to the Department. Responsiveness of Proposals All proposals must be in writing. A responsive proposal is an offer to perform the scope of services called for in this Request for Proposal. Proposals found to be non-responsive shall not be considered. Proposals may be rejected if found to be irregular or not in conformance with the requirements and instructions herein contained. A proposal may be found to be irregular or non-responsive by reasons, including, but not limited to, failure to utilize or complete prescribed forms, conditional proposals, incomplete proposals, indefinite or ambiguous proposals, improper or undated signatures. Multiple Proposals Proposals may be rejected if more than one proposal is received from an individual, firm, partnership, or corporation, or combination thereof, under the same or different names. Such duplicate interest may cause the rejection of all proposals in which such proposer has participated. Other Conditions Other conditions which may cause rejection of proposals include evidence of collusion among proposers, obvious lack of experience or expertise to perform the required work, or failure to perform or meet financial obligations on previous contracts, or in the event an individual, firm, partnership, or corporation is on the United States Comptroller General's List of Ineligible Contractors for Federally Financed or Assisted Projects. Waivers The Department may waive minor informalities or irregularities in proposals received where such is merely a matter of form and not substance, and the correction or waiver of which is not prejudicial to other proposers. Minor irregularities are defined as those that will not have an adverse effect on the Department's interest and will not affect the price of the Proposals by giving a proposer an advantage or benefit not enjoyed by other proposers. Section 1.10 of the main body of the RFP provided that "[t]he general terms and conditions of any agreement between the Department and the selected proposer will be guided by State procedures" and that "[e]ach individual, partnership, firm or corporation that is part of the proposer's team, either by joint venture, or subcontract, will be subject to, and comply with, the contractual requirements." Subsection 1.14.2 of the main body of the RFP established 12:00 noon on Friday, May 12, 1995, as the deadline for the submission of proposals in response to the RFP. Pursuant to Section 1.16 of the main body of the RFP, each proposal was to consist of a management plan (worth a maximum of 20 points), a technical plan (worth a maximum of 15 points) and a price proposal (worth a maximum of 65 points). Section 1.19 of the main body of the RFP addressed the subject of "award of contract." It provided as follows: The Department intends to award ONE (1) contract to the responsible and responsive proposer whose proposal is determined to be the most advantageous to the Department. NOTE: CONTRACTOR SHALL EXECUTE AND RETURN AGREEMENT WITHIN TEN (10) CALENDAR DAYS AFTER "NOTICE OF AWARD." IN THIS TIME PERIOD THE CONTRACTOR SHALL DEMONSTRATE COMPLIANCE WITH CONTRACT REQUIREMENTS. FAILURE TO MEET THE REQUIREMENTS WITHIN THIS SPECIFIED TIME WILL SHOW EVIDENCE OF CONTRACTOR'S LACK OF ABILITY TO MEET THE REQUIREMENTS AND THE DEPARTMENT MAY REWARD TO THE PROPOSER WITH THE NEXT HIGHEST SCORE. Proposers seeking Disadvantaged Business Enterprise (DBE) preference points were also required to complete and submit a DBE Preference Certification form, as explained in subsection 1.16.5 of the main body of RFP, which provided as follows: For the purposes of this RFP, a certified DBE shall be certified by the Florida Department of Transportation pursuant to Florida Administrative Code, Rule Chapter 14-78. The Proposer shall address Florida CDBE partici- pation by either themselves or subcontractors. 5/ The Department will add 30 points to the scores of Certified Disadvantaged Business Enterprises (CDBE) proposing as the prime consultant on this project. The Department will add up to 30 points to the scores of firms (Non-CDBE) utilizing Certified DBE's as subcontractors for services or commodities as follows: 30 percent or more of the total project costs- 30 points 25 percent but less than 29.99 percent of the total project costs- 20 points 20 percent but less than 24.99 percent of the total project costs- 10 points 15 percent but less than 19.99 percent of the total project costs- 05 points 0 percent to 14.99 percent of the total project costs- 0 points Complete and submit the DBE Preference Points Certification Form (Form "D") in the Price Proposal, if CDBE preference points are to be considered. On Form "D," proposers had to indicate the following: I, (Name), (Title), of (Name of Firm), herby certify that our firm (is) (is not) a Department of Transportation (Department) certified Dis- advantaged Business Enterprise (DBE). I also certify that our firm's intention regarding subcontracting on the above referenced project(s) to Department certified Disadvantaged Business Enterprises is as follows: (Check One) Intends to subcontract at least 30 percent or more= 30 points Intends to subcontract at least 25 percent but less than 29.99 percent= 20 points Intends to subcontract at least 20 percent but less than 24.99 percent= 10 points Intends to subcontract at least 15 percent but less than 19.99 percent= 05 points Intend[s] to subcontract less than 15 percent work to DBE(s)= 0 points Since I have indicated above that a percentage of total project costs will be subcontracted to certified DBE(s), the firms considered as proposed DBE subconsultant/vendors and the types of services/commodities to be subcontracted are as follows: DBE SUBCONSULTANTS/VENDORS: TYPE OF WORK/ COMMODITIES I understand that the Department will give preference in selection of DBE(S) and to other firms who propose to subcontract at least 15 percent or more of the total project costs to DBE(s). I further understand that five (5) preference points will be added to my proposal score if my firm indicates its intent to sub- contract at least 15 percent but less than 19.99 percent of the services/commodities to DBE(s); and that ten (10) preference points will be added to my proposal score if my firm indicates its intent to subcontract at least 20 percent but less than 24.99 percent of the services/commodities to DBE(s); that twenty (20) preference points will be added to my proposal score if my firm indicates its intent to subcontract at least 25 percent but less than 29.99 percent of the services/commodities to DBE(s); and a maximum of thirty (30) preference points will be added to my proposal score if my firm indicates its intent to subcontract 30 percent or more of the services/commodities to DBE(s) or is a Department certified DBE. On or about May 5, 1995, the Department issued the following addendum to the RFP "to answer and clarify questions presented by a potential proposer:" 6/ Reference the above project in which you have an interest. Please add this letter and enclosed pages into your Request for Proposal. Will DOT permit subcontracting of security services to DBE's? (The DBE would have to comply with all requirements of the RFP regarding security officer qualifications, etc.). 7/ Response: Yes Will the DOT permit proposals which include a "pending" DBE certification for a business applying for DBE certification? Response: To receive performance points a DBE prime contractor must be certified by the May 23, 1995 posting. Will points be awarded to DBE subconsultants/ vendors with a "pending" certification status during the evaluation process? Response: To receive performance points a DBE Subconsultant/Vendor must be certified by the May 23, 1995 posting. 8/ Can DOT provide a list of certified Disadvantaged Business Enterprises? Response: An FDOT DBE Directory is available for review at any District Office or a copy can be obtained from the FDOT Minority Programs Office in Tallahassee by calling 904-921-7370. We have listed below three (3) Certified DBE firms who have shown an interest in providing security services[.] 9/ [T]hey are: American Alarms, Inc. 305-653-7708 Tunjos Trading Company, Inc. 305-621-2668 Universal Private Investigative & Guard Agency, Inc. 407-636-7270 The following ten (10) firms have "Pending" applications as of May 5, 1995, for FDOT-DBE Certification: Alanis Security, Inc. 305-595-8171 Barkley Security Agency 904-856-5646 Delad Security, Inc. 305-691-5772 Ford Patrol & Security 305-836-5544 Jake Ross Detective & Security Agency 904-258-8709 Pacific Security Service, Inc. 305-989-0369 Small Rehab Services & Small Security Agency 813-237-2689 Special Tech Security Agency 904-723-0115 Supreme Intelligence Agency 305-777-3134 Walter Investigative Services 305-653-1144 Pleas remember that you must SIGN AND RETURN THIS ADDENDUM WITH YOUR BID PROPOSAL. FAILURE TO SUBMIT WITH BID PROPOSAL AND ACKNOWLEDGE THIS ADDENDUM WILL DISQUALIFY YOUR PROPOSAL. If you have any questions, please call me at (305)777-4611. Petitioner and Intervenor, both Florida-licensed security guard agencies, submitted proposals in response to the RFP, which included completed and signed Form "D"s. Petitioner's and Intervenor's price proposals (on a monthly basis) were $60,720.00 and $53,458.80, respectively. On its completed and signed Form "D," Petitioner indicated that it was not a Department-certified DBE, but that it intended to subcontract "at least 30 percent or more" of the total project costs to a certified DBE. Petitioner further indicated on the form that its "proposed DBE subconsultant/vendor" was Dadeline Corporation and that the "services/commodities to be subcontracted" were "security guard services." Dadeline was a Department-certified DBE that possessed a Class "B" Security Agency license issued by the Department of State, Division of Licensing pursuant to Chapter 493, Florida Statutes. On its completed and signed Form "D," Intervenor, like Petitioner, indicated that it was not a Department-certified DBE, but that it intended to subcontract "at least 30 percent or more" of the total project costs to a certified DBE. 10/ Intervenor further indicated on the form that its "proposed DBE subconsultant/vendor" was American Alarms, Inc., and that the "services/commodities to be subcontracted" were "security services." American Alarms, Inc., was one of the three Department-certified DBE firms mentioned in the addendum to the RFP as having "an interest in providing security services." Unlike Dadeline Corporation, however, it did not possess a Class "B" Security Agency license issued by the Department of State, Division of Licensing, nor did it have any experience in providing security guard services. Both Petitioner and Intervenor received 30 DBE preference points. Intervenor was awarded these DBE preference points, notwithstanding that its "proposed DBE subconsultant/vendor," American Alarms, Inc., did not possess a Class "B" Security Agency license authorizing it to conduct business as a security guard agency in the State of Florida or have any experience in the provision of security guard services. There is no indication, however, that the Department was aware, at the time it awarded these preference points to Intervenor, that American Alarms, Inc., was unlicensed and inexperienced. The RFP did not direct proposers to provide the Department with any information regarding the current licensure status and experience of its "proposed DBE subconsultant/vendor" and Intervenor did not volunteer such information in its response to the RFP. 11/ Petitioner's total score was 109.25, the second highest of all proposers. Intervenor's total score was 119.92, the highest of all proposers. The scores were posted on May 23, 1995. The posted proposal tabulation reflected that the contract award was made to Intervenor as "the responsive and responsible offeror whose proposal [was] determined to be the most advantageous to the State taking into consideration price and other criteria." Thereafter, Petitioner filed the protest that is the subject of the instant proceeding.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department of Transportation enter a final order rejecting Petitioner's protest of the decision to award State Job No. 99906-9520 to Intervenor. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 21st day of November, 1995. STUART M. LERNER 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 21st day of November, 1995.
The Issue Whether Respondent engaged in an unlawful employment practice by discriminating against Petitioner in violation of the Florida Civil Rights Act of 1992 (Sections 760.01 through 760.11, Florida Statutes.)1
Findings Of Fact Respondent is a political subdivision of the State of Florida with over 50 departments and 30,000 employees. GSA is the Respondent’s department responsible for providing security to other county departments and facilities. GSA provides security services by contracting with private vendors. At the times relevant to this proceeding, GSA had contracts with approximately seven separate vendors to provide security guards where needed. One of the vendors is Security Alliance, which is a private company that provides security guards to both public and private entities. In 2004, GSA, on behalf of Respondent, entered into a contract with Security Alliance. The “General Terms and Conditions” of the bid document, which were incorporated into the contract between Respondent and Security Alliance, pertained to the responsibility of the vendor as an employer and provided as follows in Section 1.16: The employee(s) of the successful Bidder shall be considered at all times its employee(s) and not employee(s) or agent(s) of the County or any of its departments. . . . The County may require the successful bidder to remove any employee it deems unacceptable. . . . Security Alliance hired the security guards that were assigned to County posts. Only Security Alliance had the authority to terminate one of its employees. Respondent had no authority to terminate the employment of any Security Alliance employee. Security Alliance paid the salaries and the employment taxes of the security guards it employed to work on County posts. Security Alliance administered their annual and sick leave. Security Alliance supervisors monitored the daily activities of the Security Alliance security guards assigned to the various County facilities. Security Alliance employed approximately 250 security guards to service the contract it had with Respondent. As noted above, the contract between Respondent and Security Alliance gave Respondent the authority to require Security Alliance to remove a security guard from a County post if Respondent deemed the security guard’s performance to be unacceptable. Respondent could require that a particular security guard not be assigned to specific County posts. Respondent could also require that a particular security guard not be assigned to any County post. Security Alliance could assign the security guard to other duties with Respondent (depending on the Respondent’s instructions to Security Alliance) or with other clients. Petitioner is a black male whose national origin is Haitian. In 2003, Security Alliance hired Petitioner as a security guard and assigned him to work at facilities operated by Respondent’s Water and Sewer Authority (WASA). Petitioner was one of between 30-to-50 security guards assigned by Security Alliance to WASA facilities. The Preston Water Treatment Plant (Preston Plant) is a water purification and distribution facility operated by WASA. The Preston Plant runs around the clock and is considered by Respondent to be critical infrastructure. Security must be maintained at the Preston Plant at all times because of the need for a safe water supply and because dangerous chemicals are maintained there. On October 16, 2006, Michael Breaux, a white male, was employed by WASA as a Security Supervisor. His duties included monitoring the performance of guards assigned to security posts at WASA facilities. On October 16, 2006, Mr. Breaux conducted a routine check of the security posts at the Preston Plant. Mr. Breaux observed the security guard at the front gate slumped over his chair with his back to the gate. That security guard was subsequently identified as Petitioner. Mr. Breaux observed that Petitioner was inattentive. Mr. Breaux testified, credibly, that Petitioner’s lack of attention to duty posed a security risk. Nick Chernichco, Mr. Breaux’s supervisor, told Mr. Breaux to report his observations to Mr. Wolfe, who was the GSA security manager. Mr. Breaux reported his observations to Mr. Wolfe orally and in writing. Mr. Wolfe is a white male. When he reported his observations to Mr. Wolfe, Mr. Breaux did not know Petitioner’s national origin. Petitioner failed to establish that Mr. Breaux's actions following his observations of Petitioner at the guard station were motivated by Petitioner’s race or national origin.5 Mr. Wolfe did not meet with or talk to Petitioner in October 2006. After speaking to Mr. Breaux and reviewing the written report Mr. Breaux generated, Mr. Wolfe instructed the Security Alliance manager (Al Martin) not to assign Petitioner to a WASA facility. Mr. Wolfe took that action based on Mr. Breaux’s opinion that Petitioner’s lack of attention created a security risk. Petitioner failed to establish that Mr. Wolfe’s action was motivated by Petitioner’s race or national origin.6 After Mr. Wolf’s instruction to Mr. Martin, Security Alliance could have assigned Petitioner to any County facility other than a WASA facility or to another Security Alliance client. On May 17, 2007, Mr. Wolfe conducted rounds to check on security personnel at various County facilities. He came upon a security guard at the pump station located at 911 Northwest 67th Avenue, Miami, which is a WASA facility. The greater weight of the credible evidence established that Mr. Wolfe did not remember Petitioner, who was the security guard he met. Mr. Wolfe observed that Petitioner was in violation of the uniform policy and had unauthorized reading material at his post. Mr. Wolfe returned to his office and proceeded to reduce to writing what he had observed. While preparing his memorandum Mr. Wolfe realized that Respondent had instructed Security Alliance not to use Petitioner at any WASA facility. Because of that prior order, with which Security Alliance had failed to comply, Mr. Wolfe informed Security Alliance of his observations, instructed Security Alliance not to use Petitioner as a security guard for any County post, and imposed a fine against Security Alliance in the amount of $1,800.00. Mr. Wolfe had no interest whether Petitioner retained his employment with Security Alliance and he did not intend to interfere with that employment, as long as Security Alliance did not assign Petitioner to a County post. Petitioner failed to establish that Mr. Wolfe’s actions following his observations on May 17, 2007, were motivated by Petitioner’s race or national origin. On or shortly after May 17, 2007, Security Alliance terminated Petitioner’s employment for failing to adhere to its policies. Brunelle Dangerville filed a Charge of Discrimination against Respondent. That complaint, together with Mr. Dangerville’s testimony, established that Mr. Dangerville and Petitioner were not similarly situated employees. Consequently, the claims raised by Mr. Dangerville’s Charge of Discrimination are irrelevant to this proceeding. Taken as a whole, the evidence in this case is insufficient to establish that Respondent was Petitioner’s employer or that it, acting through Mr. Wolfe or otherwise, unlawfully discriminated against Petitioner on the basis of his race or national origin.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the FCHR enter a final order finding Respondent not liable to Petitioner for the alleged discriminatory employment practice(s). DONE AND ENTERED this 17th day of March, 2009, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of March, 2009.
The Issue The issue in this case is whether Respondent discriminated against Petitioner based on Petitioner's race.
Findings Of Fact Ms. Bagley, an African-American, was employed by the City from 1987 until her termination on July 9, 2004. At the time of her termination, she was employed as a Code Enforcement Officer II. On Monday, March 15, 2004,1 Ms. Bagley called her supervisor, Larry Canelejo (Mr. Canelejo), and advised him that she would be late to work because she had to assist her mother. Mr. Canelejo approved her absence. Ms. Bagley's normal work hours on March 15, 2004, were 8 a.m. to 5 p.m., Monday through Friday. On March 15, 2004, she arrived to work at 11 a.m. She did not work through her lunch on that day or stay later to make up the time that she was late. On Thursday, March 18, 2004, Ms. Bagley turned in a time and attendance sheet showing that she had worked from 8 a.m. to 5 p.m. on March 15, 2004. Mr. Canelejo verbally asked Ms. Bagley to turn in a leave slip for the time that she was absent on March 15, 2004. Ms. Bagley did not turn in a leave slip, and Mr. Canelejo sent an e-mail to Ms. Bagley on March 18, 2004, requesting that she do so and indicating that disciplinary action would result for her failure to do so. Instead of turning in a leave slip for her three-hour absence, Ms. Bagley wrote a memorandum to Darrell Smith, Chief of Staff, complaining that she had been requested to submit a leave request for time she was absent from work when other workers who were absent were not required to submit a leave request for their absence. On the morning of Friday, March 19, 2004, Mr. Canelejo sent another e-mail to Ms. Bagley requesting that she submit her time card and leave slip by 11:30 a.m. Ms. Bagley retrieved the time card that she had previously submitted and covered her signature with white-out. She did not submit a leave slip as requested by her supervisor. Mr. Canelejo marked on Ms. Bagley's time sheet that she was absent without leave for three hours on March 15, 2004, and submitted a leave slip for Ms. Bagley showing that she was absent without leave for that time. The time card and leave slip was later changed by the City's personnel office to sick leave for others. On March 17, 2004, Mr. Canelejo received a complaint from the general manager of Wendy's Restaurant located on North 15th Street in Tampa, Florida. The general manager advised Mr. Canelejo that Ms. Bagley had come into the restaurant on three separate occasions demanding that she be given free food for food that she had purchased which she felt was bad. Ms. Bagley did not have receipts for the previously-purchased food, and indicated that other managers in the store had told her that she could get free replacements for the bad food. The general manager advised Mr. Canelejo that other managers at Wendy had not given authorization for Ms. Bagley to receive free food. A co-manager at Wendy's also wrote to the City confirming Ms. Bagley's actions in getting free food. The City's Department of Code Enforcement received a letter dated March 31, 2004, from Hazel Hill, who was the sales floor supervisor at Martin's Uniforms Retail Store (Martin's Uniforms). The City had a contract with Martin's Uniforms to supply uniforms and related items to City employees, including code enforcement employees. Ms. Hill related an incident involving Ms. Bagley on March 12, 2004. Ms. Bagley came to the store, requesting to return some shirts and pants, which she claimed to have received from Martin's Uniforms as part of the 2004 uniform allotment. Ms. Hill inspected the garments and determined that the uniforms could not have been received as part of the 2004 order because the shirts were not the same style as those that had been sent. The 2004 shirts were made of gabardine with two new-style patches, one on each arm. The shirts that Ms. Bagley was attempting to return were made of poplin with only one patch, which had been discontinued. The shirts also appeared to have a yellow tint, which could be attributed to age. The pants which Ms. Bagley was attempting to return had been altered in the waist. The pants which had been sent with Ms. Bagley's 2004 uniform order were not altered in the waist. Ms. Hill also advised that the incident concerning the 2004 uniform order was not the first time that Ms. Bagley had attempted to exchange old merchandise. About four months earlier, Ms. Bagley had tried to return an old jacket for a new one, but Ms. Hill refused to make the exchange. The previous year, Ms. Bagley came to exchange a pair of shoes for which she had no receipt and for which no record of the purchase could be found at the store. On July 9, 2004, the City dismissed Ms. Bagley from her employment. The final decision to terminate Ms. Bagley's employment was made by the Director of Code Enforcement, Curtis Lane, who is an African-American. Mr. Lane based his decision on Ms. Bagley's failure to submit a leave request for the three hours that she was absent on March 15, 2004; submission of a time sheet showing that she worked eight hours on March 15, 2004; the complaints from the employees at a Wendy's restaurant that Ms. Bagley had requested free food while she was in a City code enforcement uniform; and the complaint from Martin's Uniforms that Ms. Bagley tried to get new uniforms by falsely claiming that she was not sent the correct uniforms in her 2004 uniform order. The allegations against Ms. Bagley were investigated by City staff, and, based on the results of the investigations, Mr. Lane believed the allegations against Ms. Bagley and felt that Ms. Bagley's actions demonstrated a lack of honesty and integrity, two traits which are essential for a code enforcement officer. At the time of her termination, Ms. Bagley's employment with the City was subject to a collective bargaining agreement between the City and Amalgamated Transit Union. The collective bargaining agreement provided a grievance and arbitration procedure. Ms. Bagley filed a grievance contesting her termination, which she submitted to final arbitration. On February 15, 2005, an evidentiary hearing was held on Ms. Bagley's grievance before arbitrator Genellen Kelly Pike. On June 15, 2005, Ms. Pike denied Ms. Bagley's grievance. On July 26, 2005, Ms. Bagley filed a charge of discrimination with the Commission, claiming that she was terminated from her employment with the City on account of her race. Ms. Bagley claims that she was discriminated against based on her race because other employees of the Code Enforcement Department were allowed to come in late and either to make up the time on their lunch hours or after work or to not have to make up the time at all. Mr. Canelejo did have a practice of allowing employees to make up their time if they were 15 to 30 minutes late for work. The time could be made up during the employee's lunch hour or at the end of the employee's regularly scheduled work day. There was no practice or policy allowing employees to make up absences as long as three hours rather than requiring them to submit leave slips for the missed time. Ms. Bagley claims that both African-American and Caucasian employees were allowed to make up missed work. Not all employees in the Code Enforcement Department had the same work schedule. Some employees worked ten-hour shifts, Sunday through Wednesday; some employees worked 7:30 a.m. to 4:30 p.m., Monday through Friday; and some employees worked 8 a.m. to 5 p.m., Monday through Friday. Some employees were required to attend neighborhood meetings at night after their regularly scheduled hours, and were allowed to adjust their work schedule to avoid overtime as a result of the meetings at night. The code inspectors used City-owned vehicles in making their inspections. The vehicles were parked in a central location, and the employees picked up the City vehicles each day. Sometimes an inspector would schedule an inspection at the beginning of the inspector's shift. The inspector was not required to report into the office prior to making the inspection, but could pick up the City vehicle and leave from the parking lot. Ms. Bagley took it upon herself to begin keeping notes on when the inspectors would arrive at the office. She noted that some of the inspectors, both African-American and Caucasian, did not arrive at the office at the beginning of their regularly scheduled shift. However, Ms. Bagley had no knowledge if these inspectors had attended a night meeting during that week, if the inspectors had gone to an inspection prior to coming to the office, or if the inspectors had made up their tardiness by either working during their lunch hours or after the end of their regularly scheduled shift. Ms. Bagley just assumed that these employees were not putting in 40 hours per week. She produced no evidence at the final hearing that there were other employees who claimed they worked 40 hours per week, when they did not and were allowed to do so without taking leave. She presented no evidence at the final hearing that African-American employees were treated differently than Caucasian employees. In fact, she claims that both African- American and Caucasian employees were allowed to come in late without having to submit a leave slip for the missed time.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered dismissing the petition because the charge of discrimination was not filed timely and because Ms. Bagley failed to establish that the City discriminated against her based on her race. DONE AND ENTERED this 15th day of August, 2006, 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 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of August, 2006.
The Issue Whether Respondent committed the violation alleged in the Administrative Complaint? If so, what disciplinary action should be taken against him?
Findings Of Fact Based upon the evidence adduced at hearing, the parties' stipulations, and the record as a whole, the following Findings of Fact are made: The Department is a state government licensing and regulatory agency. Respondent is now, and has been at all times material to the instant case, the holder of a Class "D" security guard license and a Class "G" statewide firearms license. He has held the former license since May of 1990 and the latter license since September of that year. He has never before been disciplined by the Department. From October of 1991, until June 23, 1993, Respondent was employed by Certified Security Services, Incorporated (hereinafter referred to as "Certified"), a business which provides armed and unarmed security services. Among Certified's clients during the period of Respondent's employment was Winn-Dixie Store No. 343 (hereinafter referred to as "Store 343"), located at 14900 Northwest 6th Avenue in Miami, Florida. Respondent was assigned by Certified to work as a uniformed security guard at Store 343. He regularly drove a cashier at the store named Maria home from work in his car. On the afternoon of June 23, 1993, at around 1:00 or 2:00 p.m., Respondent was standing in the store parking lot conversing with a patron of the store, Sylvia Malgarejo, when he was approached by Maria, who was carrying a package containing a box of Pampers and a bottle of cooking oil. Respondent had no reason to, nor did he, believe that Maria had misappropriated these items from the store. Maria asked Respondent to put the package in his car. Respondent complied with Maria's request. He then continued his conversation with Malgarejo. The conversation did not last long. Olga Campos-Campbell, the store's general merchandise manager, had reported to the store manager that Respondent had shoplifted merchandise from the store. Campos-Campbell and Respondent had an ongoing feud concerning the scope of Respondent's job responsibilities. Campos-Campbell frequently asked Respondent to do things that he believed were outside the scope of his duties as a security guard, and an argument between the two invariably ensued. Based upon Campos-Campbell's erroneous report, the store manager had Respondent detained. Kent Jurney, who assisted the owner of Certified, his wife, in running the business, was contacted and advised of the situation. Jurney responded by going to the store with Certified's general manager, Bill Banco, and confronting Respondent. Respondent's native language is Spanish. Jurney, on the other hand, does not speak or understand Spanish. He communicates in English. Respondent's ability to communicate in English, however, is limited. Respondent tried to explain to Jurney in English how he had come into possession of the Pampers and cooking oil, but Jurney misunderstood him and mistakenly thought that Respondent was admitting that he had stolen the items from the store. Accordingly, he advised Respondent that Respondent's employment with Certified was being terminated effective immediately. The police were also contacted. The police officer who responded to the scene cited Respondent for shoplifting.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that the Department enter a final order finding the evidence insufficient to establish that Respondent committed the violation of Section 493.6118(1)(f), Florida Statutes, alleged in the instant Administrative Complaint and dismissing the instant Administrative Complaint in its entirety. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 14th day of March, 1994. STUART M. LERNER 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 14th day of March, 1994. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 93-6941 The following are the Hearing Officer's specific rulings on the "findings of facts" proposed by Respondent in his post-hearing submittal: 1. Accepted as true and incorporated in substance, although not necessarily repeated verbatim, in this Recommended Order. 2-5. Rejected as findings of fact because they are more in the nature of summaries of testimony elicited at hearing than findings of fact based upon such testimony. COPIES FURNISHED: Henri C. Cawthon, Esquire Department of State, Division of Licensing The Capitol, MS #4 Tallahassee, Florida 32399-0250 C. Ernest Rennella, Esquire 2524 Northwest 7th Street Miami, Florida 33125 Honorable Jim Smith Secretary of State The Capitol Tallahassee, Florida 32399-0250 Phyllis Slater, Esquire General Counsel Department of State The Capitol, PL-02 Tallahassee, Florida 32399-0250
The Issue At issue is whether the respondent violated section 493.6118(1)(n), Florida Statutes, as alleged in the Administrative Complaint, and, if so, the penalty which should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and the entire record of this proceeding, the following findings of fact are made: During the period of time specified in the Administrative Complaint, May 19, 1994, through October 10, 1994, 24-Hour Security held a Class "B" Security Agency License, number B91-00117. From May 19, 1994, through October 10, 1994, Richard R. Cullen was president of 24-Hour Security and held, among other licenses, a Class "M" Manager License, number M86-00152. 24-Hour Security, whose only office is located at 1515 South Federal Highway, Boca Raton, Florida, is in the business of providing security guards to businesses and condominiums. It employs licensed security guards and trains and supervises them to ensure that they adequately perform their duties and carry out the instructions of 24-Hour Security's clients. From May 19, 1994, through October 10, 1994, Michelle T. Reilly was employed by 24-Hour Security and worked as assistant to Mr. Cullen. She began working for 24-Hour Security in September 1992 and has always been highly regarded as an employee by Mr. Cullen. He has trained her in all aspects of the private security service business in order for her to get the experience necessary to qualify for a chapter 493 manager's license. Prior to February 16, 1995, she had never held any type of license authorized by chapter 493 of the Florida Statutes. Mr. Cullen was aware that she was not licensed. Since the agency's inception, Mr. Cullen has designated himself manager of 24-Hour Security and has considered himself ultimately responsible for the operation of the agency. During the period of time at issue in this proceeding, Ms. Reilly's business cards identified her as "Branch Manager," and she was identified as such by licensed employees of 24-Hour Security. On one occasion during the Department's investigation, Ms. Reilly expressly identified herself to an investigator of the Department as manager of 24-Hour Security. During the period of time at issue in this proceeding, in addition to performing secretarial and bookkeeping duties, Ms. Reilly assisted Mr. Cullen in (1) hiring and training licensed security guards; (2) preparing daily work schedules for the guards; (3) preparing post orders outlining the duties a guard is to carry out at a particular post, including the client's special instructions or requirements; (4) supervising the operation of the agency's dispatch center; (5) addressing clients' problems; (6) consulting with clients regarding proper security precautions; (7) conducting post inspections to ensure that the guards are at their posts, properly uniformed and carrying out their responsibilities; and (8) writing security proposals for clients and in developing new accounts. In assisting Mr. Cullen with these duties, Ms. Reilly at times was allowed by Mr. Cullen to direct and control the activities of licensed security officers and to operate the agency. When Mr. Cullen was advised by the Department that Ms. Reilly could not function as or be designated as "manager" of 24-Hour Security, he immediately removed her business cards from the office. Ms. Reilly applied for a Class "MB" manager's license on November 9, 1994. Her application was denied by the Department by letter dated January 17, 1995, because she had "not demonstrated the lawfully gained experience or appropriate training" required for licensure. Ms. Reilly was issued a Class "D" Security Officer license on February 16, 1995.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of State, Division of Licensing, enter a Final Order finding 24-Hour Security, Incorporated, and Richard R. Cullen guilty of the violation alleged in the Administrative Complaint and imposing a fine of $500 for this violation. DONE AND ENTERED this 25th day of April 1995, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO 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 April 1995. APPENDIX The following are my specific rulings on petitioner_s Proposed Findings of Fact. Paragraphs 1 through 9: Adopted in substance in Findings of Fact numbered 1 through 8. The following are my specific rulings on respondent_s Proposed Findings of Fact. Paragraph 1: Adopted in substance in Findings of Fact numbered 2 and 5. Paragraph 2: The proposed finding of fact in the first portion of the first sentence is rejected as not supported by the evidence. The proposed findings of fact set out in the second portion of the first sentence and in the second, third, fourth, and fifth sentences are rejected as merely summaries of testimony. The proposed finding of fact in the final sentence is rejected as not supported by the evidence. Paragraph 3: The proposed finding of fact in the first sentence was adopted in substance in Finding of Fact numbered 6. The remaining proposed findings of fact are rejected as argument. Paragraph 4: The proposed finding of fact in the first portion of the sentence is rejected as merely a summary of testimony; the proposed finding of fact in the second portion of the sentence is rejected as argument. Paragraph 5: Rejected as unnecessary. Paragraph 6: Rejected as unnecessary. Paragraph 7: The proposed finding of fact in the first portion of the sentence is rejected as unnecessary; the proposed finding of fact in the second portion of the sentence is rejected as not supported by the evidence. Paragraph 8: The proposed findings of fact in the first two sentences are rejected as legal argument. The proposed finding of fact in the last sentence is adopted in substance in Finding of Fact numbered 5. Paragraph 9: The proposed finding of fact in the first two sentences are rejected as unnecessary. The proposed findings of fact in the last two sentences are rejected as argument. Paragraph 10: Rejected as argument. Paragraph 11: Rejected as argument. Paragraph 12: Rejected as argument. COPIES FURNISHED: Kristi Reid Bronson Assistant General Counsel Department of State Division of Licensing The Capitol, M.S. #4 Tallahassee, Florida 32399-0250 Richard R. Cullen, President 24-Hour Security, Incorporated 1515 South Federal Highway Suite 109 Boca Raton, Florida 33432 Don Bell General Counsel Department of State The Capitol Tallahassee, Florida 32300-0250 The Honorable Sandra B. Mortham Secretary of State The Capitol Tallahassee, Florida 32399-0250
The Issue Whether the Respondent committed an unlawful employment practice by discriminating against the Petitioner on the basis of age and/or disability, in violation of the Florida Civil Rights Act of 1992, as amended, Section 760.10 et seq., Florida Statutes (2008).1
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: Mr. Brown was born on November 26, 1932. At the times material to this proceeding, he was licensed in Florida as a security guard. Mr. Brown was hired as a security guard by SSA Security in November 1998, when he was 65 years of age, by Robert Chambers. At the times material to this proceeding, Mr. Chambers was SSA Security's district manager for Broward County and Miami-Dade County, Florida. Mr. Brown resigned his employment with SSA Security in December 2000 and began working for Avis Rent-A-Car. He left his position with SSA Security because it did not pay any benefits; he received full benefits as an employee of Avis Rent- A-Car. In or around December 2000, Mr. Brown was fitted with a pacemaker because of a heart condition.4 When Mr. Brown lost his job with Avis Rent-A-Car, he applied to SSA Security for employment, and Mr. Chambers re-hired him as a security guard in January 2003. At the time, of his re-employment by SSA Security, Mr. Brown was 70 years of age. Even though Mr. Brown had a pacemaker to regulate his heartbeat in 2003, he was at all times capable of performing all of the essential functions of a security guard and, in fact, wanted to return to employment as a security guard because he could do the job notwithstanding his heart condition. At the times pertinent to this proceeding, Mr. Brown's direct supervisor was Owen James, the area manager with SSA Security, who reported to Mr. Chambers. Mr. Brown also was supervised by SSA Security's on-duty road supervisors during the time he was actually working. On October 3, 2004, Mr. Brown signed an Application for Employment with SSA Security, and he was provided with a copy of the SSA Security Employee Rules and Regulations. He acknowledged receipt of the rules and regulations and of the Security Officers Handbook with his signature, dated October 3, 2004.5 The introductory paragraph of the Employee Rules and Regulations stated that SSA Security employees were to carry a copy of the Security Officers Handbook with him or her when on duty and advised the employees that they "could be subject to discipline, suspension or discharge" if he or she violated any of the employee rules.6 The first rule included in the Employee Rules and Regulations prohibited "[l]eaving a posted duty prior to being properly relieved." It is Mr. Chambers's policy to terminate the employment of persons who abandon their posts, that is, who leave their posts without being properly relieved, and he terminated at least 10 employees for abandoning their posts between 2007 and 2009. At the times material to this proceeding, SSA Security provided security services at several United Parcel Service facilities, including the United Parcel Service Sheridan ("UPS Sheridan") facility and at the United Parcel Service Davie ("UPS Davie") facility. At the times material to this proceeding, the UPS Sheridan facility was a "UPS hub" that operated 24 hours a day, and SSA Security provided security for the facility 24 hours per day. The UPS Sheridan facility is categorized as a "soft target" because, if anyone got into the facility, he or she could steal UPS uniforms and trucks and could, thereby, gain access to many businesses and residences. The UPS Davie facility housed employees working in customer service and administration, and the facility closed every day. At one time, Mr. Brown was assigned to both the UPS Sheridan facility and the UPS Davie facility. He worked at the UPS Sheridan facility from 10:00 p.m. until 3:30 a.m., when he left and went to the UPS Davie facility, where he worked from 4:00 a.m. until approximately 5:30 a.m. During his time at the UPS Davie facility, Mr. Brown escorted the employees working at the facility to their vehicles, and, when the last employee was escorted to his or her vehicle, Mr. Brown was free to go home. Mr. Brown was not relieved by another security guard at the UPS Davie facility. In or about January 2007, the UPS Davie facility was closed, and Mr. Brown was assigned to work at the UPS Sheridan facility from 12:00 a.m. until 4:00 a.m.7 His duties at the UPS Sheridan facility after his work hours changed, and specifically in June 2008, were to patrol the perimeter of the facility and ensure that the facility was not breached. Mr. Brown did not enter the building as part of his duties because, prior to 4:00 a.m., the building was locked. At 4:00 a.m., a UPS supervisor would unlock the building and another SSA Security security guard was scheduled to come on duty. This security guard’s duties were to secure an entryway into the building and scan employees coming in and out of the facility as they passed through a metal detector. SSA Security’s procedure at the UPS Sheridan facility required Mr. Brown to wait at his post at the facility until the security guard assigned the 4:00 a.m.-to-8:00 a.m. shift arrived. According to procedure, if this security guard was late, Mr. Brown was to call either SSA Security's 24-hour dispatch, which was reached by calling the local SSA Security office, or the local on-duty road supervisor and a relief officer would be sent to the UPS Sheridan facility to take over the post. Mr. Brown was trained in this procedure by the road supervisor on duty at the time Mr. Brown began working the 12:00 a.m.-to-4:00 a.m. shift at the UPS Sheridan facility. On May 27, 2008, Mr. Brown had a routine doctor's appointment. The doctor told Mr. Brown after the examination that he needed to go to the hospital that night because of his heart condition. Mr. Brown called the SSA Security office at approximately 4:50 p.m. on May 27, 2008, and spoke with Jeanine Williams, who was a receptionist. Mr. Brown explained to Ms. Williams that he was being hospitalized and could not report to work because of his "regular heart condition."8 This telephone conversation lasted approximately three minutes. Mr. Brown did not speak with Mr. Chambers or with his direct supervisor, Mr. James, on May 27, 2008, and he did not inform either of them of his heart condition in June 2008. He did not do so because he believed he had advised Mr. Chambers of his heart condition in 2000, when he was fitted with the pacemaker. Mr. Chambers has no recollection of Mr. Brown having told him of a heart condition in 2000, and Mr. Chambers was not able to locate anything in Mr. Brown's personnel file related to such a medical condition. Mr. Brown was discharged from the hospital on June 2, 2008. He did not submit any documentation of his hospitalization to SSA Security or provide Mr. Chambers with any explanation of the reason for his absence from work. Upon his discharge from the hospital, Mr. Brown had minimal temporary restrictions on his activities as a result of his heart condition. The primary restriction, as described by Mr. Brown, was that he was unable to do any lifting. He was, however, able to perform the essential functions of his job as a security guard. Mr. Brown reported to his post at the UPS Sheridan facility on the morning of June 4, 2008, at his normal time of 12:00 a.m. His shift ended at 4:00 a.m., at which time the SSA Security security guard who manned the post inside the facility was to report for work. Mr. Brown knew that another security guard was to begin work at the UPS Sheridan facility at 4:00 a.m., but, when the security guard had not arrived by approximately 4:10 a.m., Mr. Brown left the facility and went home. Mr. Brown had the telephone numbers of both the SSA Security 24-hour dispatch service and the SSA Security on-duty road supervisor, but he did not notify anyone at SSA Security that he was leaving or that the new security guard had not reported for duty at the UPS Sheridan facility. Mr. Brown also did not notify anyone at the UPS Sheridan facility that he was leaving the facility unguarded because the security guard assigned to work the 4:00 a.m. shift had not yet arrived. At approximately 7:30 a.m., Mr. Brown received a call from Captain Linda Webb, the SSA Security road supervisor responsible for the UPS Sheridan facility on the morning of June 4, 2008, and Mr. Brown's immediate supervisor during his shift on June 4, 2008. Captain Webb asked Mr. Brown where he was, and he replied that he was at home. Captain Webb asked Mr. Brown if he left his post before the other security guard had arrived,9 and Mr. Brown responded that it was his understanding that he did not need to be relieved at his post at the UPS Sheridan facility and that had never been relieved at that post. Although Mr. Brown had been told by a supervisor that he could leave his post at the UPS Davie facility without being relieved, no one in a supervisory position with SSA Security told Mr. Brown that he could leave his post at the UPS Sheridan facility at 4:00 a.m., regardless of whether the security guard assigned to work the 4:00 a.m. shift had arrived at the facility.10 Captain Webb wrote a Personnel Action Form summarizing the incident, which was categorized as Mr. Brown's having "abandoning the post." At approximately 2:30 p.m. on June 4, 2008, Mr. James called Mr. Brown and asked why he had left his post at the UPS Sheridan facility without being relieved by the guard who was assigned to the post inside the building. Mr. Brown stated that he was never relieved at his post at the UPS Sheridan facility. Mr. James told Mr. Brown not to return to the post at the UPS Sheridan facility but to come into the SSA Security office. Mr. Brown believed that Mr. James wanted to "get rid" of him.11 Mr. Brown spoke with Mr. Chambers on the telephone on June 4, 2008, and Mr. Chambers told him that, in directing Mr. Brown not to return to his post at the UPS Sheridan facility, Mr. James was following the instructions given to him by Mr. Chambers. Mr. Chambers met with Mr. Brown on June 5, 2008, at his office, and they discussed the incident that occurred on June 4, 2008. Mr. Chambers asked him why he left his post at the UPS Sheridan facility, and Mr. Brown answered that he had a doctor's appointment at 9:00 a.m. on June 4, 2008. Mr. Chambers asked if Mr. Brown had called a supervisor or the dispatch number before he left, and Mr. Brown stated that he had not. Mr. Chambers then advised Mr. Brown that he was terminating his employment with SSA Security. Mr. Chambers's decision to terminate Mr. Brown is memorialized on the Personnel Action Form prepared on June 4, 2008, by Captain Webb, which Mr. Chambers signed and dated June 5, 2008. When Mr. Brown turned in his uniform, Mr. James gave him a copy of the Personnel Action Report prepared by Captain Webb, and Mr. James asked Mr. Brown if he had anything to add. Mr. Brown responded that he did not, and he left the SSA Security office. Mr. Brown was replaced by a person who was 53 years of age. Summary The evidence presented by Mr. Brown is not sufficient to establish that he was the subject of discrimination on the basis of age when he was terminated from his employment at SSA Security. Not only did the evidence fail to establish that age was the motivating factor in his termination, the evidence failed to establish that age was even a consideration when he was terminated. The evidence presented by Mr. Brown is likewise not sufficient to establish that he was the subject of discrimination on the basis of disability. The evidence presented by Mr. Brown did not establish that he was disabled because the evidence failed to establish that he was substantially impaired in any major activity of daily life, that he had a record of an impairment, or that he was regarded by Mr. Chambers as having an impairment.
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 filed by Alfred S. Brown. DONE AND ENTERED this 27th day of May, 2010, in Tallahassee, Leon County, Florida. PATRICIA M. HART 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 May, 2010.
The Issue The issue in the case is whether Respondent entered a store, not in connection with his duties as a security guard, while openly wearing a firearm, in violation of Sections 493.315(2) and (3) and 493.319(1)(p), Florida Statutes.
Findings Of Fact At all material times, Respondent held the following licenses: Class "B" Watchman, Guard, or Patrolman Agency license number B-88-00055; Class "MB"' Watchman, Guard or Patrolman Agency Manager license number MB-88-00083; Class "D" Watchman, Guard, or Patrolman license number D-89-01736; and Class "G" Statewide Gun Permit number G-89-00216. In September, 1989, Respondent provided security services to about six of the approximately 41 merchants located at a small "L"-shaped strip mall located on Saxon Boulevard in Orange City, Florida. These services were provided pursuant to contracts between the individual merchants and Respondent. The security services supplied by Respondent required him to patrol common areas, such as sidewalks and parking areas. Entrances to all of the stores faced the unenclosed mall's parking lot. One of the merchants at the strip mall with whom Respondent had no contract was Lauri Black, who owned and operated a store known as "Florida Scene." This store, which opened for business on or shortly after September 22, 1989, is located at the end of a long line of stores and faces directly into the parking lot serving all of the stores. The closest store that Respondent protects is relatively close to Florida Scene, about five stores away. Ms. Black also operated a similar store in nearby Deland. Respondent had previously visited her to solicit security business. Based on prior conversations, Respondent reasonably believed that he might successfully obtain the business for the new store in Orange City. On Monday, September 19, 1989, at about 3:25 p.m., Respondent, who had just gone on duty, entered Ms. Black's store for the purpose of soliciting security business. At the time, he was in his normal security guard uniform and was wearing a handgun, which remained holstered at all relevant times. Ms. Black did not ask Respondent to leave or to remove his gun. In fact, she was not intimidated by the fact that he was armed. However, upon his entrance into her store, Ms. Black, without warning or prior objection, excused herself and contacted the police. At the hearing, Ms. Black testified that she had been "roped into this." "This" apparently refers to her participation that day in an ongoing dispute between Respondent, on the one hand, and, on the other hand, the management and certain mall merchants that is not otherwise relevant to the present case.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of State, Division of Licensing, enter a Final Order dismissing the Administrative Complaint. RECOMMENDED this 16th day of March, 1990, in Tallahassee, Florida. ROBERT D. MEALE 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 16th day of March, 1990. APPENDIX Treatment Accorded Petitioner's Proposed Findings: adopted. rejected as irrelevant. adopted except that Florida Scene was not open for business until after September 22, 1989. adopted in substance. adopted. Treatment Accorded Respondent's Proposed Findings: 1-3. adopted. adopted in substance. adopted in substance. adopted as to Respondent being on duty. Whether he was in proper performance of his duties is rejected as conclusion of law. COPIES FURNISHED: Hon. Jim Smith Secretary of State The Capitol Tallahassee, FL 32399-0250 Ken Rouse General Counsel Department of State The Capitol, LL-10 Tallahassee, FL 32399-0250 Henri C. Cawthon Assistant General Counsel Division of Licensing Department of State The Capitol, Mail Station 4 Tallahassee, FL 32399-0250 T. Hulen Ray, Attorney 118 WeSt. New York Ave. Deland, FL 32720
The Issue At issue in this proceeding is whether Respondent committed the offenses set forth in the Administrative Complaint, as amended,1 and, if so, what penalty should be imposed.
Findings Of Fact Petitioner, Department of State, Division of Licensing (Department), is a state agency charged, inter alia, with the duty and responsibility to license and regulate private security, investigative, and repossession services pursuant to Chapter 493, Florida Statutes. Respondent, Jonas Mercier, is now, and was at all times material to this case, licensed by the Department as a Class "D" Security Officer, having been issued license number D97-00533. From January 9, 1997, until March 3, 1997, Respondent was employed as a security officer by Borg-Warner Protective Services (Borg-Warner), a business which provides security services. Among Borg-Warner's clients during the period of Respondent's employment were Hertz Rent-A-Car (Hertz) and Shaw Trucking. On February 1, 1997, Respondent's assignment was to provide security services at the Hertz maintenance facility in Broward County, Florida. At 7:30 a.m., during the course of his shift, Respondent was found sleeping on duty by the client's director of security. For this offense, Respondent received an "official reprimand" from his employer. On Sunday, March 2, 1997, Respondent's assignment was to provide security services at Shaw Trucking in Broward County, Florida. His shift was to begin at 9:00 p.m. Respondent telephoned the Borg-Warner dispatcher, and reported for duty at the appointed time. During the course of that conversation, the dispatcher apprised Respondent that the road supervisor, Moses Osgood (Osgood), would not arrive until approximately 11:00 p.m. to open the padlocks. Osgood arrived at Shaw Trucking at 10:28 p.m. on March 2, 1997, and found that Respondent had left his assigned post without notice to, or permission from, Borg-Warner. Osgood remained at the post until Respondent returned at 11:08 p.m., and resumed his post. Respondent's explanation for his absence was that, since Osgood was not scheduled to arrive until 11:00 p.m., he had gone to get something to eat. In his absence, however, the client's premises were without security. Respondent was discharged by his employer on March 3, 1997, for having left his post without notice or authorization.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent guilty of Counts I and II of the Administrative Complaint and that, as a penalty for such offenses, Respondent's Class "D" Security Officer License be revoked. DONE AND ENTERED this 23rd day of March, 1998, in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK 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 March, 1998.
The Issue Whether Respondent committed the violation alleged in the Administrative Complaint. If so, what disciplinary action should be taken against him.
Findings Of Fact Based upon the evidence adduced at hearing and the record as a whole, the following findings of fact are made: The Department is a state government licensing and regulatory agency. Respondent is now, and has been at all times material to the instant case, the holder of a Class "D" security guard license (license number D94-13786). He has been licensed since November 16, 1994. From April 3, 1996, through and including November 24, 1996, Respondent was employed as security guard by Delta Force Security (Delta), a business which provides security services. Ermelindo Onativia is now, and was at all times material to the instant case, the owner and manager of Delta. Among Delta's clients during the period of Respondent's employment was Motor World, an automobile dealership in Plantation, Florida. On the weekend of November 23 and 24, 1996, Respondent's assignment was to provide security services at Motor World. His shift was to begin at 7:00 p.m. on Saturday, November 23, 1996, and end at 5:00 a.m. on Sunday, November 24, 1996. Onativia met Respondent at Motor World at the beginning of Respondent's shift on November 23, 1996, and reminded Respondent to "punch the time clock" when he made his rounds at the dealership. After conversing with Respondent, Onativia left the dealership. Onativia returned to Motor World at 2:00 a.m. on November 24, 1996, to check on Respondent. Respondent, however, was not there. He had left his assigned post without obtaining Onativia's permission to do so. Onativia remained at the dealership until 5:00 a.m. At no time during the period that he was at the dealership did he see or hear from Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order finding Respondent guilty of the violation of Section 493.6118(1)(f), Florida Statutes, alleged in the Administrative Complaint and disciplining him therefor by fining him in the amount of $1,000.00 and placing him on probation for a period of one year, subject to such conditions as the Department may specify. DONE AND ENTERED this 18th day of February, 1998, in Tallahassee, Leon County, Florida. STUART M. LERNER 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 18th day of February, 1998.
