Findings Of Fact At all times pertinent to the issues herein, the Florida Department of Management Services, succeeded by the Governor's Commission on Minority Economic and Business Development, was the state agency responsible for the certification of minority or women owned businesses for various state agencies in Florida. Test Lab, Inc. was started in 1972 by Mrs. Cornwell and her husband with another couple, the Orofinos. Initially, Mrs. Cornwell was the treasurer of the corporation. Her duties included opening the office and laboratory, maintaining all files, billing, typing reports and doing some of the actual tests. In short, she did anything which needed to be done. Over the years, the Cornwells bought out the Orofinos. From the date of the formation of the corporation in 1972, the 400 shares of stock owned by the Cornwells were in Mr. Cornwell's name as agent for Mrs. Cornwell and himself. In 1976, the Cornwells purchased an additional 350 shares of the corporation which gave them a 750 share interest - equal to that of the Orofinos. The money for this purchase came from an inheritance Mrs. Cornwell received from a longtime friend. When the Orofinos retired in 1986, the corporation purchased their 750 shares which are currently held in the corporation treasury. Before that time, however, in 1990, Mr. Cornwell became seriously ill and could no longer effectively operate the company. Because of her technical experience, knowledge of the business and her administrative abilities, Mrs. Cornwell was elected President and Chief Operating Officer of the corporation and manages it. At the present time Mrs. Cornwell owns 1159 shares of the stock of Test Lab, Inc., which constitutes 93 percent of the outstanding shares. Her daughter, Lori Giese, owns 91 shares of stock, which represents a 7 percent interest. The lease on the building currently occupied by the company, and all prior leases for the property, were signed by Mrs. Cornwell. The occupational licenses issued by the City of Tampa and Hillsborough County show Mrs. Cornwell as owner of the business. On April 24, 1991, the Cornwells loaned Test Lab $8,000 from their joint account. The source of this money, however, came from real estate commissions earned by Mrs. Cornwell and from rental income from the house she received in the estate which was left to her in the inheritance mentioned previously. Mrs. Cornwell, is the individual who purchased most of the equipment utilized by the company. Her daughter, Lori, has authorization to buy some computer eq uipment. Mrs. Cornwell makes all the insurance purchases now, but is teaching her daughter how to do it and ultimately intends to turn this aspect of the business over to her. Only Mrs. Cornwell or Lori have authorization to sign checks. Mrs. Cornwell has taken numerous courses in construction and construction management. She has reviewed all the same educational tapes that were bought to teach technicians from the laboratory, and she believes she can do most of the same tests as well as her people. One of the courses she took taught her to do estimating, and she is also certified as a concrete field testing technician by the American Concrete Institute. Test Lab, Inc., under Mrs. Cornwell, has been approved by the Florida Department of Transportation, by Hillsborough County, by the City of Tampa, by the Hillsborough County Aviation Authority, by the Hillsborough County School Board, by Orange County and by the City of Orlando as a disadvantaged business enterprise. The evidence presented at the hearing indicates that Mrs. Cornwell runs the business. She is the individual who sets the salaries for all employees. She does all the hiring and firing, and determines those among the employees who will be promoted. Only 10 percent of the work done by Test Lab requires licensed engineers. Most of the work done by the company is the preparation of reports of facts: technical results which do not require the signature of a professional engineer. Approximately 80 percent of the business is repeat business. Most of the work done for these companies does not require the preparation of a contract or the submittal of a proposal. The business is secured by a phone call from a customer soliciting Test Lab, Inc., and the work is done, or a purchase order is telefaxed to Test Lab by the soliciting company. Mrs. Cornwell handles the major clients and makes the final decision as to what bids are submitted. She often turns work down because of its distance from their location or for reasons based on her concern that Test Lab doesn't have the equipment to do the job properly. She is the individual who prepared all the manuals which are used by employees in the conduct of the company's business. Tech Lab, Inc. is licensed as a registered engineering firm by the Florida Department of Business and Professional Regulation. In order for this to occur, a professional engineer is required to be on staff to sign that documentation which requires the certification and signature of a professional engineer. Admittedly, Mrs. Cornwell is not an engineer. At this time, she has two registered engineers employed, Mr. Rose and Mr. Knauss. Over the years, on several occasions, Tech Lab has had to borrow money. Ms. Harrelson, the Vice President and Branch Manager of the Central Bank of Tampa, has known Mrs. Cornwell since August 1982, when Mrs. Cornwell was looking for a line of credit for her business. Mrs. Cornwell at that time indicated she was owner and financial officer of the corporation, and was seeking $75,000 which she and Mr. Cornwell, as an individual, guaranteed. Mrs. Cornwell guaranteed as president of the company and as an individual. The line of credit was issued in the amount requested and since that time has been increased to $100,000. In setting up the line of credit, Ms. Harrelson dealt only with Mrs. Cornwell. Documents on file at the bank, and offered into evidence at the hearing, show Mrs. Cornwell as President, principal stockholder, and one of the founders of the corporation. Mrs. Cornwell also purchased vehicles for Test Lab valued at $84,000, in 1994, which she financed at Central Bank. On this loan, she signed as President of the corporation and guaranteed the loan individually as well. On this occasion, she was the only guarantor. As of the date of the hearing, the loan commitments signed by Mrs. Cornwell on behalf of Test Lab stand at $180,000. Mr. Cornwell was never involved in any of the negotiations for this credit. Ms. Harrelson has no doubt that Mrs. Cornwell is chief operating officer of the company based on the dealings she has had with her. Mr. Rodriguez, a CPA, has worked for the company for approximately 4 to 5 years. He was initially retained by Mrs. Cornwell and does the quarterly financial statements, the year- end tax returns and is a consultant to the company on financial matters. He has, at times, represented the company at IRS audits, and at these audits only Mrs. Cornwell, her daughter and a female employee were present with him and the auditor. Whenever he consults on company business, he deals with Mrs. Cornwell. He sees her approximately 2 or 3 times a quarter on a professional basis. When he receives a request for audit from the IRS, and when he prepares the tax returns, he seeks out Mrs. Cornwell for the information and has always dealt with her. The current proposal for the pension plan for the company was initiated by Mrs. Cornwell. All decisions on the pension plan details were made by Mrs. Cornwell and her daughter, and Mrs. Cornwell is the administrator of the plan and signed all the documents necessary to implement it. On all matters with which Mr. Rodriguez has dealt with Mrs. Cornwell, she has consistently demonstrated her knowledge of the business operations. She is fully familiar with them and their technical aspects, and in his opinion, she is clearly in control of the company. Martha Replogle, the marketing representative for the Department of Labor's Job Service Division in the Tampa area, works with leading employers in the community. She has been doing this since 1989, and as a part of her routine work, deals with Test Lab. The relationship was initiated by Mrs. Cornwell in 1989 or 1990, when Ms. Replogle was solicited for assistance in filling some positions available at the company. All references for job placement are sent to Mrs. Cornwell who interviews and who does the hiring. Mrs. Cornwell also sits on the advisory board of the Job Service office in Tampa made up of owners and managers of local businesses. Ms. Replogle has no doubt that Mrs. Cornwell makes the hiring decisions for Test Lab. Whenever hirings were anticipated, Mrs. Cornwell would call with the list of requirements and would follow up with a report of the specific strengths or faults of those candidates sent over. All dealings that Ms. Replogle had with Test Lab were with Mrs. Cornwell. All decisions on hiring and firing had to be made by Mrs. Cornwell and inquiries to others at the firm were met with referrals to Mrs. Cornwell. Mrs. Cornwell kept regular working hours and was there whenever Ms. Replogle would stop by. Even Mr. Cornwell and the engineers with whom she talked would refer Ms. Replogle to Mrs. Cornwell for hiring and firing decisions. Charles W. Kristech owns Pinellas Scale Service and repairs, calibrates and certifies weighing instruments. He has been in this business for approximately 8 years and Test Lab has been one of his clients since January 1993. Mr. Kristech was initially contacted by Mrs. Cornwell who wanted him to check all their equipment and bring it up to state standards. He went to Test Lab's facility and evaluated all the company's scales. Some were beyond repair, some were repairable, and some were OK. He did what he could and gave Mrs. Cornwell the certificates. Mrs. Cornwell is the one who showed him what scales to look at. She seemed to know what equipment she had and what tolerances she needed. She corrected the tolerances he originally used and clearly had a technical knowledge of the scales used in the laboratory. She appeared familiar with their proposed use, their capacity and their tolerances, and was quite specific in her requirements and explanations. He never got any technical information from any of the engineers. Since then he has calibrated the company's scales twice a year. Coincidentally, when he purchased a used truck from Test Lab, he negotiated the deal with Mrs. Cornwell, and any dealings he has had with the company have been with her. Decisions on repair or discarding equipment were made by Mrs. Cornwell alone, and she did not have to ask anyone else for permission to do so. Mark Scime, Vice-president of Hammer and Howell Commercial Builders, has done business with Test Lab for about 8 1/2 years and has known Mrs. Cornwell very well for at least 5 of those years. To his knowledge, she is the President and owner of the company which does tests of concrete and soils for design and construction products of his firm. Whenever there is a question on a report done by Test Lab, he deals with Mrs. Cornwell or she refers him to an engineer in the company. She can deal with his engineers on a technical basis and he has seen her in problem resolution situations. On those occasions, it was very clear to him that Mrs. Cornwell was in charge. He also dealt with the prior management of Test Lab, and the difference in management when Mrs. Cornwell took over was significant and evident. He has been to Test Lab's facility 5 or 6 times, and there is no doubt in his mind that Mrs. Cornwell runs the operation. All the employees with whom he has dealt refer decision-making to her. By the same token, Mr. Ward, the District Test Lab Coordinator for the Florida Department of Transportation, has observed Mrs. Cornwell as an MBE subcontractor on FDOT contracts. To insure that the subcontractors are qualified to do the work awarded his office goes to Test Lab's laboratory twice a year to inspect for technical competence and compliance. When Mr. Ward debriefs, at the end of the week long inspection, Mrs. Cornwell is always there and appears to know what is going on. Mr. Ward has been doing this since the 1992 start of the master contract, but he dealt with Mrs. Cornwell on other matters for several years before that. He has always assumed that Mrs. Cornwell was in charge at Test Lab. Whenever he needed to speak with someone there he would call and ask for her, and whenever he did this, she was present to answer the phone. He found her familiar with the technical aspects of laboratory procedures and determined that she seemed to know enough of the technical aspects of her business to satisfy his engineers. The company meets all requirements imposed by the Department of Transportation. Mr. Gallagher, an engineer for the City of Tampa and an independent general contractor has used Test Lab for do work for him for at least 6 years. This involves the testing of materials, density tests, the coring of concrete and the like for the city and he has also dealt with Mrs. Cornwell in his own business. He also taught her a course in contracting. At that time, she told him she was the owner of Test Lab. Through his contacts with her he found she had a working knowledge of what was going on in her business. She knew the terminology related to specific tests and what the tests were designed to disclose, and she has provided him with standards information from her library. In his dealing with Test Lab, Mr. Gallagher can generally get what he wants from the office manager and the laboratory supervisor, but if he runs into any problem, he goes to Mrs. Cornwell for resolution and has to go no further. David Carron has worked at Test Lab since it was started in 1972. He is a materials engineer but is not registered. At Test Lab, his job is to meet with clients, write proposals, review plans and specifications for specific projects, estimate and do special testing. When Test Lab was started, Mr. Cornwell and Mr. Orofino managed the business, but the wife of each was very much involved from the beginning. Today, only Mrs. Cornwell is involved. Test Lab has two almost separate divisions. One is the geo-technical division and the other is the construction materials testing division. The former provides services to property owners and other engineers prior to construction. Before the Cornwells took over, this division was run by Mr. Orofino, while Mr. Cornwell was involved in materials testing. This continued until each of the men left the business. In 1988, Mr. Cornwell began having medical problems which made him start to pull out. Mr. Orofino was gone by then and Mrs. Cornwell began to take over, after her husband pulled out entirely, and, from the inside, Mr. Carron knows she now runs the company. As to the proposal writing process, Mrs. Cornwell's participation is to identify prospective projects from a biweekly source listing of projects to bid on. She then assigns the selected project to a staff member at a weekly staff meeting she chairs to determine if the company can get involved and to report back to her. If the job is one on which the company desires to bid, Mr. Carron will write up the proposal using the standard fee schedule which is given to him by Mrs. Cornwell. The fee schedule was made up when the company started and has been adjusted over the years for rising costs and inflation. The prices on the current schedule were set by Mrs. Cornwell. This process can be used because of the lack of intangibles in the nature of Test Lab's work. If the amount of the proposal is under $1,500 the engineer is authorized to send it out on his own. Proposals of this size constitute between 20 and 40 percent of the company's business. If the proposal is for over $1,500, it must be approved and signed by Mrs. Cornwell. Mrs. Cornwell has generated a list of subcontractors that the company uses. Before she took over, there was more latitude in choosing subcontractors, but Mrs. Cornwell put the selection process on a more businesslike basis. Mrs. Cornwell arranges for all businesses used by the company, such as attorneys, CPA's and the like. She is the company business manager and she hires and fires all employees. She interviews all prospective employees and introduces a candidate to the operational supervisor for an evaluation of his or her technical capabilities. The ultimate decision to hire or fire, however, is up to her. Mrs. Cornwell is the one who instituted a bonus program and a profit- sharing program which never existed before she took over. Mr. Carron is satisfied that Mrs. Cornwell knows exactly what she is doing both from a business and a technical standpoint, and that she runs the company. She is there during all regular business hours and beyond. Historically, the engineering technicians were trained on the job. This practice has changed now. During the first few days of employment, the new technician is put in the video library which Mrs. Cornwell set up to review technical tapes before the start of on-the-job training. More experienced people, whose qualifications are known, need not do the classroom work. Whereas there was at one time only one registered engineer at Test Labs, now there are two. Neither can purchase equipment without Mrs. Cornwell's approval. She can fire both registered engineers as well as Mr. Thompson, the laboratory supervisor. All vehicles for the past 5 years have been purchased by her, and the same is true for test equipment, computers and office equipment. Mr. Carron is authorized to make relatively small purchases, of no more than $25.00 - $35.00, without Mrs. Cornwell's permission but only on an emergency basis, out on a job, when she is not available. This is to insure the work will not be delayed Terry Posner, the Technical Services Manager for Keys Concrete Industries, sells ready-mix concrete and concrete blocks. His company has done business with Test Lab for 14 years. They have block as well as ready-mix concrete tested. In his current dealings with Test Labs he deals only with Mrs. Cornwell. She runs the business, a fact which he has noticed over the past 3 or 4 years. Mr. Posner visits the company at least once a month and each time he is there he sees her. He has noted that she directs all employees and delegates responsibility. Regina Yorty has worked at Test Lab for almost 14 years. Initially she was hired as a general office clerk but now is the company's bookkeeper, Mrs. Cornwell's administrative assistant, and Secretary/Treasurer of the corporation. Since Mrs. Cornwell started entered full time management of the company in 1991 she has made many changes. She has pushed hard to upscale equipment and vehicles and she has updated the vehicle fleet, bought a new drill rig and purchased a new compaction hammer, scales and small equipment. She changed the prior management philosophy of just repairing and maintaining equipment. She also purchased a new copy machine and both new and used computers. Since Mrs. Cornwell assumed management, she has purchased a new accounting network system with the emphasis on job costing. This enhances the company's ability to bid on jobs and to bill receivables. Mrs. Cornwell believes in continuing education for all employees. She insists that all technicians become certified. In fact, Mrs. Cornwell is accredited by the American Concrete Industry and by Troxler Corporation for use of the nuclear densometer. Mrs. Cornwell bases the raises personnel receive on their certification level to encourage advanced and multiple certification. Salaries have gone up since Mrs. Cornwell took over and the company's salaries have become more competitive. This has resulted in the ability to retain qualified personnel. Test Lab now has workers compensation, medical, life, umbrella, professional liability, general liability and auto insurance. All policies were selected by Mrs. Cornwell who started price shopping. Professional liability insurance is a new coverage for the company. Prior management did not believe in it. Mrs. Cornwell has also implemented a plan for a drug-free workplace. New employees must sign an affidavit of non-use and be screened, and work related accidents result in a drug test. The results of this has been a saving on workers compensation insurance costs. Whereas prior management took money out of the company and paid themselves, Mrs. Cornwell leaves money in the company to promote its growth. Though Ms. Yorty writes out the checks to pay the bills, Mrs. Cornwell signs them. When funds are tight, it is Mrs. Cornwell who decides who to pay and how much is to be paid. The biweekly payroll at Test Lab is approximately $28,000 to $30,000. This is a substantial increase over what it used to be. Ms. Yorty used to open all incoming mail and route it. Mrs. Cornwell decided this would be a good way to learn about the business, so now she opens and routes it. Training programs are now in place for technicians and clerical personnel, enhanced by Mrs. Cornwell. In hiring all personnel from the professional consultants such as attorneys and accountants to cleaning personnel, Mrs. Cornwell looks for quality and price. She bears the majority financial risk if Test Lab were to fail since she owns more than 90 percent of the company stock. When finances were tight, Mrs. Cornwell did not take a paycheck. She was subsequently paid when funds became available. Also, at times she loaned money to the company out of her personal checking account. Income figures from 1982 to 1995 show that billing for professional engineers accounts for less than 5 percent of the company's total income. Revenue has, however, doubled since Mrs. Cornwell took over management of the company. Steven Knauss is a registered professional engineer who now works for Test Lab. He has also worked for four engineering firms since getting his Master's degree in 1973. One of these firms was the 35th largest engineering firm in the United States, and the owner is not an engineer. ATEC, another company authorized to do business as an engineering firm in Florida is not owned by an engineer. PSI, an engineering firm, is not owned by a registered engineer, but is owned by a financial holding company and, formerly, a foreign company. In short, there are numerous engineering firms in Florida which are not owned by a registered engineer. Based on Mr. Knauss' experience with the company, he is convinced that Mrs. Cornwell runs the company. She hired him, set his salary and can fire him. The Commission is not satisfied that Test Lab qualifies for minority business certification. Mary S. Williams is an analyst in the Certification Office of the Commission. She makes recommendations for approval or denial of applications for certification and is the individual who reviewed Test Lab's application submitted in June, 1993. This was the second application by Test Lab. After reviewing this application Ms. Williams requested additional information from the applicant and thereafter did a telephone audit of the application. Based on the information contained in the application and the other information received by her, Ms. Williams recommended denial of Test Lab's application because, in her opinion, the company did not comply with the rule for small businesses which requires the minority owner exercise daily control. Notwithstanding the testimony and the evidence presented at hearing, all of which Ms. Williams heard, she concluded that Mrs. Cornwell does not have the requisite technical knowledge to run the business. This is because, she claims, even if Mrs. Cornwell had the requisite technical knowledge in a few areas, she does not exercise control. The Commission requires that the owner/manager actually be involved in the technical aspects of the business and in this case, according to Ms. Williams, Mrs. Cornwell relys on technicians and engineers to do the work. Her certification is limited and does not cover all areas. In addition, according to Ms. Williams, in 1995 the law was changed to require minority owners of technical businesses to actually hold the required license. In this case, since Test Lab is registered as an engineer in this state, though two registered engineers are employed by the company and sign those documents requiring their signature, the Commission's position is that since Mrs. Cornwell is not an engineer, she cannot be classified as a minority engineering business enterprise. The Commission's rules on MBE certification are tighter than those of DOT or other state agencies, Ms. Williams contends. She got the impression from talking with Mrs. Cornwell that Mrs. Cornwell relied to a great degree on the input from her engineers. Ms. Williams claims she does not agree with her supervisor that the purpose behind the regulations on minority certification is to control fraud. She contends the rules are to prevent non-minorities from getting minority treatment. This would appear to be the same thing said differently. Ms. Williams believes that Mrs. Cornwell needs no technical knowledge to run Tech Lab profitably and well. Though neither she nor anyone else from the Commission has ever observed Mrs. Cornwell at work or the Test Lab operation, she concludes that because Mrs. Cornwell is not a certified technician in all areas with which the business is concerned, she is dependent upon the abilities of the technicians working in those areas and, therefore, cannot be considered as the controlling manager of the business. In substance, the basis for Ms. William's recommendation for denial was not the statute on registration of the owner, but the lack of Mrs. Cornwell's knowledge and control of the business. In her deposition taken prior to the hearing, Ms. Williams stated she did not know certain pertinent facts which bore on the issue of certification. At hearing, she claimed she could not remember what she had said. Ms. Williams admits that Mrs. Cornwell exercises dominant control over the company and runs it. Her testimony was inconsistent in that on the one hand she claims the only observable deficiency in Petitioner's application is that Mrs. Cornwell is not a registered engineer or a broadly certified technician, yet on the other hand claims the denial was on the basis of a lack of Mrs. Cornwell's knowledge.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Petitioner, Test Lab, Inc.'s application for MBE certification be denied. RECOMMENDED this 8th day of September, 1995, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 8th day of September, 1995. APPENDIX TO RECOMMENDED ORDER The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: - 4. Accepted and incorporated herein. Accepted. & 7. Accepted and incorporated except that 7 is more a stipulation to a point of fact rather than a finding. - 10. Accepted and incorporated herein. More a restatement of evidence than a Finding of Fact. Accepted. & 14. Accepted and incorporated herein. 15. - 21. Accepted as statement of Respondent's position. 22. - 39. Accepted and incorporated herein. 40. - 43. A statement of agency position on legal issues. 44. & 45. Accepted and incorporated herein. 46. Accepted. 47. - 49. Accepted. 50. Accepted and incorporated herein. 51. Accepted. 53. & 52. 54. More a statement of agency position rather than a finding of fact. Accepted. 55. & 56. Rejected as argument by the Petitioner rather than a finding of fact. 57. - 115. Accepted and incorporated herein. 116. Accepted. 117. - 188. Accepted and incorporated herein. FOR THE RESPONDENT: - 12. Accepted and incorporated herein. Not a Finding of Fact but a Conclusion of Law. Rejected as not consistent with the weight of the evidence. & 16. Accepted. COPIES FURNISHED: Joe M. Gonzalez, Esquire, P.A. 500 North Westshore Boulevard, #700 Tampa, Florida 33609 Susan P. Stephens, Esquire Office of the Attorney General The Capitol - Suite PL-01 Tallahassee, Florida 32399-1050 Crandall Jones Executive Administrator Commission on Minority Economic and Business Development Collins Building - Suite 201 107 West Gaines Street Tallahassee, Florida 32399-2000 Joseph Shields Attorney Commission on Minority Economic and Business Development Collins Building - Suite 201 107 West Gaines Street Tallahassee, Florida 32399-2000
The Issue At issue herein is whether Petitioner, Ellen Moldoff, is qualified for a supervisor's license in microbiology under Section 10D-41.24(10), Florida Administrative Code.
Findings Of Fact Based on the testimony of the witnesses and their demeanor while testifying, the following relevant facts are found. On February 27, 1979, George S. Tylor, Jr., B.A., Clinical Laboratory program, advised Ellen Moldoff, petitioner, that her application for licensure as a supervisor was being denied under the provisions of the Florida Clinical Laboratory Law, Chapter 483, Florida Statutes, in that, "You do not have the 60 semester hours and the 10 years experience required under Section 10D-41.24 (10), of the Florida Administrative Code." Petitioner timely appealed the Department's denial of her application for a supervisor's license in microbiology. During the course of the hearing, Petitioner acknowledged the fact that she failed to satisfy either the sixty-semester-hour requirement or its equivalent in quarter or semester hours (two years of academic study) in an accredited college or university or that she possessed the ten years pertinent experience requirement as set forth in Chapter 10D-41.24 (10), Florida Administrative Code. However, Petitioner introduced four letters of recommendation written by employees and other supervisors who were familiar with the Petitioner's skills and abilities. It suffices to say that they all spoke highly of Petitioner's qualifications and highly recommended her to take the supervisor examination in microbiology. Petitioner, during the hearing, alluded to numerous persons whom she considered less qualified than she who were permitted to take the supervisory examination based on an overstatement of qualifications in their applications for licensure as a supervisor. Finally, Petitioner felt that her honesty alone prevented her from being permitted to take the supervisory examination Petitioner expressed her opinion that based on her observation of the clinical supervisors and the duties to which she is assigned, she considered herself as qualified, if not more qualified than those she observed. Respondent does not question Petitioner's ability to fulfill supervisory functions; however, it hastens to add that it has no authority to waive the qualifications for supervisory laboratory personnel as set forth in Chapter 10D-41.24(10), Florida Administrative Code.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby, RECOMMENDED: That the Petitioner's appeal of the Respondent's determination that she is ineligible to take the supervisory examination be DENIED. DONE and ENTERED this 6th day of August, 1979, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Ms. Ellen Moldoff 3690 Inverrary Drive Lauderhill, Florida 33319 Harold Braynon, Esquire District X Legal Counsel Department of Health and Rehabilitative Services 800 West Oakland Park Boulevard Fort Lauderdale, Florida 33311
The Issue By this petition, Horace R. Morgan, Jr., M. T. seeds a review of the Division of Health's denial of Mr. Morgan's application for licensure as a clinical laboratory supervisor.
Findings Of Fact The facts herein involved are largely undisputed. Mr. Morgan acknowledges that the experience computations made by the Respondent from the attachment to his application for licensure, Exhibit 3 herein, are correct; and that, as computed, the total experience of Mr. Morgan comprises seven years and four months. Mr. Morgan, however, contends that the practice of the Respondent in allowing credit only for months inn which an applicant is employed in a laboratory and requiring twelve months of such employment for one year's credit is not correct. The Petitioner's position appears to be that he should be given credit from the time he was initially employed as a laboratory technician through the intervening years he has been employed without regard to periods in which he was not so engaged. Petitioner's second point of contention is that, as acknowledged by the Respondent, he has a total of 70 credit hours in academic training, and therefore his experience requirements should be reduced accordingly. Rule 10D- 41.04, F.A.C. Laboratory Personnel Qualifications Supervisor, provides the minimum qualifications of a supervisor. These include successful completion of three years of academic study (a minimum of 90 semester hours or equivalent) in an accredited college or university, and at least seven years of experience in a clinical laboratory; or successful completion of two years of academic study ( a minimum of 60 semester hours or equivalent) in an accredited college or university and at least ten years of experience in a clinical laboratory. Petitioner contends that 70 hours of academic study should result in a lessening of the amount of practical experience required. Petitioner's basic contention is that the additional ten hours of academic study should be equivalent to one year of of experience, inasmuch as 60 hours of academic study requires ten years experience to qualify for supervisor, whereas with 90 hours academic study, only seven years experience is required to qualify as supervisor. On the other hand, Respondent's witness, who is in charge of reviewing all applications such as Morgan's, testified that the Division has interpreted the regulations to require a successful completion of three years of academic study and seven years experience, or successful completion of two years academic study and ten years experience in order to qualify as a laboratory supervisor. No interpolations have been allowed between these two requirements, and this interpretation of the rule has been followed since the rule was promulgated some seven or eight years ago. She further testified that she had credited Morgan with his experience periods in the manner that has been used to credit all other applicants since the rules were adopted. Under this long standing interpretation of the regulations, Morgan has seven years and four months experience as indicated on his application, and he also has 70 hours credit for academic study. Accordingly, even had Morgan been credited with nine years experience as he would have if given credit for every year he has been licensed, he still would not meet the minimum requirements to qualify as a supervisor.
Findings Of Fact Petitioner has 13 semester hours of science credits in college. She is also certified with the American Society of Clinical Pathologists. Petitioner's sole contention is that her certification is the equivalent of the seven remaining semester hours of academic instruction she needs to reach the 20 hours of science courses required for licensure by Rule 10D-49.68, Florida Administrative Code.
The Issue The issue presented is whether Petitioner is entitled to licensure as a clinical laboratory technologist in microbiology.
Findings Of Fact Applications for licensure as a medical technologist in microbiology are available from the Board's office. With the application, the Board staff sends directions for completing the application form, a copy of the relevant statutes and Board rules, the names and addresses of accredited and Board-approved medical technology training programs, and other materials. Petitioner's application for licensure as a medical technologist is dated January 20, 1999. She submitted that application and all required fees for licensure to the Board. Petitioner received her degree as a doctor of medicine from the Higher Institute of Medical Sciences in Havana, Cuba. That degree satisfies the educational requirements for licensure as a medical technologist in the State of Florida. In addition to minimum educational requirements, licensure as a technologist requires certain minimum experience working in a clinical laboratory performing a wide array of tests or completion of a technologist-level accredited or Board- approved medical technology training program. This requirement is clearly set forth in the materials the Board forwarded to Petitioner as part of her application package. The training program Petitioner completed in Cuba is not on the list of the Board's approved or accredited medical technology training programs. Petitioner acknowledges that she has not enrolled in, or completed, a technologist-level accredited or Board-approved technology training program. Therefore, in order to take the licensure examination and qualify for licensure Petitioner must have completed three years of full-time employment in a clinical laboratory performing a wide array of tests. None of Petitioner's work experience has been in the United States. With her application, Petitioner did not submit any employment verification forms from her employers. Instead, Petitioner submitted affidavits from people who knew her in Cuba and in Nicaragua. These affidavits conflict with each other, with Petitioner's resumé she submitted to the Board along with her application, and with Petitioner's testimony at the final hearing. On her application, Petitioner represented under oath that she was employed from June 1994 to July 1996 at the Institute of Tropical Medicine Pedro Kouri in Havana, from August 1996 to July 1997 at the Julio Trigo General Hospital in Havana, and from October 1997 to July 1998 at the National Center of Diagnostic and References in Managua, Nicaragua. She represented that she performed a wide variety of testing at each of these institutions, processing patient samples. However, on her resumé, which she submitted to the Board along with her application, Petitioner represents that at these three institutions, she was employed as a laboratory supervisor, charged with assessing laboratory personnel, and as a researcher. Her resumé also lists extensively the research studies she performed and her teaching experience. In support of her testimony at the final hearing that she possesses the required three years of pertinent clinical experience performing the required testing, Petitioner presented the testimony of Caridad Gonzalez and Biarda Villaverde. Ms. Gonzalez is a licensed medical technologist currently employed in the State of Florida. She testified that she worked with Petitioner at the Institute of Tropical Medicine Pedro Kouri from 1994 through 1996 and at the Julio Trigo General Hospital from 1996 through 1998. These dates conflict with those set forth in two affidavits Gonzalez provided to the Board as part of Petitioner's application for licensure. Further, in her own sworn application for licensure filed with the Board, Gonzalez never mentioned having been employed at the Institute of Tropical Medicine Pedro Kouri. Additionally, Gonzalez left Cuba and came to the United States in April 1997 and was not, therefore, employed in Cuba with Petitioner through 1998. Her testimony at final hearing, therefore, lacks credibility. Biarda Villaverde testified that she worked with Petitioner at the Institute of Tropical Medicine Pedro Kouri from June 1994 to June 1995 in a clinical setting. However, Villaverde and Petitioner worked in different laboratories at that institution. Villaverde, therefore, cannot support Petitioner's testimony as to the work performed by Petitioner since she did not work in the same laboratory. Further, the facility was a diagnostic, research, and teaching facility, where some tests were performed on animals, depending upon the type of research conducted. Villaverde testified that Petitioner was assigned to the research division at this facility. Research does not qualify for the work experience required for licensure as a medical technologist. Even if some of Petitioner's research experience could be counted toward the required clinical experience, Petitioner both admitted and denied at the final hearing that she performed research, primarily representing that she worked full-time performing the required array of testing on patient samples. Several of the accredited or Board-approved technologist training programs are located in South Florida, where Petitioner resides. A training program takes one to two years to complete, depending upon the program. Although Petitioner expressed her unhappiness with the length of time her application for licensure has been pending, she could have completed a program, thus obtaining the minimum required experience for licensure, had she chosen to do so upon learning the minimum requirements for licensure. Petitioner's argument that she should be given credit for her work in the laboratories in Cuba and Nicaragua since they complied with World Health Organization quality control standards is without merit. The World Health Organization does not regulate or set quality control standards for clinical laboratories. The World Health Organization only gathers statistical data and publishes studies.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered denying Petitioner's application for licensure as a clinical laboratory technologist in microbiology. DONE AND ENTERED this 4thday of December, 2000, in Tallahassee, Leon County, Florida. LINDA M. RIGOT 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 4th day of December, 2000. COPIES FURNISHED: Zenia Flores de Apodaca 1698 West 65th Street Hialeah, Florida 33012 Mary S. Miller, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Joe Baker, Jr., Executive Director Board of Clinical Laboratory Personnel Department of Health 4052 Bald Cypress Way Bin A07 Tallahassee, Florida 32399-3257 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way A02 Tallahassee, Florida 32399-1701
The Issue Whether Respondent discriminated against Petitioners based on their race in violation of Chapter 760, Florida Statutes (2006) ("Florida Civil Rights Act").
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following Findings of Fact are made: All Petitioners are African-American males; all were employed by Respondent. Petitioners Alexander, Daniels and West were discharged on September 20, 2006. Petitioner Cole was laid off on August 25, 2006. Respondent, Solid Wall Systems, Inc., is an employer as defined by the Florida Civil Rights Act; it constructs cast-in- place solid concrete wall structures for the production home industry. This construction methodology is typically employed in large residential developments, and the construction "critical path" requires timely completion of each construction progression. For example, if walls are not timely completed, roof truss installation will be delayed, erection equipment will be idle, follow-up subcontractors are delayed, and money is lost. Petitioner, Ralph Alexander, was employed by Respondent in July 2004, as a laborer, being paid $9.00 per hour. He received pay raises and a promotion to leadman during the next several years. At his discharge, he was a leadman being paid $14.00 per hour. Petitioner, Stevie Daniels, was employed by Respondent in March 2004, as a laborer, being paid $9.00 per hour. He received pay raises and a promotion to leadman during the next several years. At his discharge, he was a leadman being paid $13.00 per hour. Petitioner, Ernest West, Jr., was employed by Respondent in October 2004, as a laborer and paid $9.00 per hour. He received pay raises during the next several years. At his discharge, he was being paid $11.00 per hour. Petitioner, Carlos Cole, was hired in September 2003, as a yard helper with Space Coast Truss, a subsidiary of Respondent's corporate owner, being paid $6.50 per hour. In October 2003, he was transferred to Respondent and received $9.00 per hour. He received pay raises and a promotion to leadman during the next several years. At his discharge, on August 25, 2006, he had been promoted to leadman and was being paid $15.00 per hour, but was working as a laborer. On September 11, 15 and 19, 2006, Petitioners Alexander, Daniels and West were "written-up." That is, they were disciplined for failing to follow the specific instructions of supervisors. On September 11, 2006, Petitioners Alexander, Daniels and West were on a "stripping" crew working at Wedgefield in East Orange County. Alexander was advised that the job had to be completed that day, because trusses were scheduled to be installed the following day. Notwithstanding direction to the contrary, the crew left the job without completing the stripping. The time cards of Petitioners Alexander, Daniels and West indicate that these Petitioners "clocked-out" at between 5:24 p.m. and 5:30 p.m. It is between 30 and 45 minutes from the job site and Respondent's yard. Petitioners would have spent several additional minutes cleaning up before "clocking- out." Not only did Petitioners fail to complete the job, they left the job site early. Petitioner Ernest West, Jr., had a part-time job working for Space Coast Cleaning, a janitorial service, from 6:00 p.m. to 9:00 p.m., Monday, Wednesday and Friday. The job was located in Viera approximately 15 to 20 minutes from Respondent's yard. September 11, 2006, was a Monday and a work day for West's part-time job. Petitioner West told Respondent's operations manager that they left the job site so that he could get to his part-time job on time. On September 15, 2006, Petitioners Alexander, Daniels and West were assigned to strip a multi-unit job site in Titusville. The crew was told to complete the stripping before they left the job site. Time cards indicate that Petitioners "clocked-out" between 3:30 p.m. and 4:00 p.m. Petitioners left the job unfinished, because they thought they would be unable to complete the job that day. On September 19, 2006, Petitioners Alexander, Daniels and West were assigned to strip a building at Viera High School. After a building is stripped, crews have standing orders not to leave any "cap" forms on the job site. This is a particular type of form that crews are specifically instructed to return to the main yard immediately after use and re-stock in bins for use on subsequent projects. On this day, Petitioner Alexander called Roy Brock, a field manager, and inquired regarding the "cap" forms. He was instructed to bring all forms to the yard. Brock visited the Viera High School job site after the stripping crew had returned to the yard and found several caps that had been left at the site. He loaded them on his truck and returned them to the yard. As a result of these three incidents, which were deemed acts of insubordination, Petitioners Alexander, Daniels and West were terminated on September 20, 2006. In May, June, and July 2006, the housing construction market suffered a significant decline. This was reflected by Respondent having a profit of $10,000 in May, a profit of $2,000 to $3,000 in June, and a $60,000 loss in July. In August, there was literally "no work." Respondent's employees were being sent home every day because there was no work. As a result of the decline in construction, Vince Heuser, Respondent's operations manager, was directed to lay off employees. Petitioner Cole was among five employees laid off on August 25, 2006. Of the five, three were African-American, one was Caucasian, and one was Hispanic. Seven Hispanic laborers were hired on July 5 and 6, 2006. Respondent had taken over the cast-in-place wall construction portion of two large projects from a subcontractor named "JR." The general contractor/developer, Welch Construction, requested that these seven Hispanic individuals, who had been "JR" employees, and had done all the stripping on these two Welch Construction jobs, be hired to complete the jobs. Hiring these seven individuals to continue to work on the jobs was part of the take-over agreement. In September 2006, three Hispanic laborers were hired. Two were hired to work on "amenity walls" which require a totally different forming process than does the standard solid- wall construction. The third was hired to work on the Welch jobs as he had worked with the "JR" crew previously.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter final orders dismissing the Petitions for Relief for Petitioners Ralph Alexander, Stevie Daniels, Ernest West, Jr., and Carlos Cole. DONE AND ENTERED this 31st day of January, 2008, in Tallahassee, Leon County, Florida. S JEFF B. CLARK 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 31st day of January, 2008. COPIES FURNISHED: Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Adrienne E. Trent, Esquire Enrique, Smith and Trent, P.L. 836 Executive Lane, Suite 120 Rockledge, Florida 32955 Chelsie J. Roberts, Esquire Ford & Harrison, LLP 300 South Orange Avenue, Suite 1300 Orlando, Florida 32801
The Issue Whether Respondent committed an unlawful employment practice?
Findings Of Fact Petitioner, Mr. Young, is a black male. From May 8, 1980 until September 20, 1985, Petitioner was employed by PCR, Inc., in Gainesville, Florida. PCR, Inc., is a chemical manufacturing company which mixes and manufactures some of the most toxic chemicals that exist at its Gainesville plant. In September, 1985, PCR, Inc. was owned by SCM Organic Chemicals. Petitioner was first employed by PCR, Inc., in May, 1980 as a maintenance helper and was subsequently promoted to maintenance mechanic. The maintenance department at the plant had seven employees, including Petitioner, who was the only black. Respondent followed a practice of documenting meetings between supervisors and employees concerning disciplinary matters and employee reprimands by memorandums written by the supervisors. Also, employees were counselled by supervisors in an informal manner where no memorandums were written. Prior to December, 1984, Petitioner had only been counselled or reprimanded regarding his work performance one time. The reprimand was for a one-day unexcused absence from work following four days of vacation. Sometime in October, 1984, Mr. Singletary became the supervisor of the maintenance department at PCR's plant in Gainesville. As such he was Petitioner's immediate supervisor. Mr. Singletary had worked for Respondent for over 20 years in Respondent's Jacksonville plant, where he had moved up through the ranks to become second in command in the maintenance department. In Jacksonville, Mr. Singletary had a reputation of being a tough, but fair supervisor who was concerned with "getting the job done," and who treated his coworkers and those he supervised equally, regardless of their race. One of Mr. Singletary's first duties upon becoming maintenance supervisor in the Gainesville plant was to review the personnel files and attendance records of the maintenance department employees. From this review, it appeared to Mr. Singletary that Petitioner had been abusing the sick leave privilege. After consulting with Mr. Pitrolo, the plant superintendent at the time, Mr. Singletary and Mr. Pitrolo met with Mr. Young on December 4, 1985. At the meeting, Mr. Singletary showed Mr. Young his attendance record and decided to extend the time for the yearly review of Mr. Young's performance. The substance of the meeting was memorialized in a memorandum dated December 4, 1988, written by Mr. Singletary, as follows: This is to document our meeting and its conclusion we had December 4, 1984. I went over your work record and you have thoroughly abused the time off with pay segment of our working agreement. You are hereby not awarded a yearly review but instead it will be extended until 15 months. You will also be placed on probation for a period of three (3) months starting 12/05/84 and ending 03/05/85. Any further violations as we discussed will end in termination. The problem is definitely not with your work, however, its being at work. In early 1985, Mr. Singletary implemented a four day work week, ten hours per day work schedule for the maintenance department employees. Mr. Singletary received reports that Mr. Young was telling other plant employees that he would receive overtime pay for the extra two hours of work per day. This became a concern to Mr. Singletary, since it was not true, and he did not want other employees to think that the maintenance department employees were receiving preferential treatment. On February 9, 1988, Mr. Singletary met with Petitioner and Petitioner denied he was making comments regarding the overtime pay. Mr. Singletary felt Petitioner was lying and instructed him to stop spreading rumors. Sometime in late February or early March, 1985, Petitioner was arrested for driving under the influence. After his arrest, Petitioner started telling people at the plant, including Mr. Pitrolo, that his intoxication had been caused by the chemicals present at the plant. Mr. Pitrolo told Petitioner that if he had a problem he should talk to his immediate supervisor, Mr. Singletary, and not make comments to other people in the plant. Instead of talking with Mr. Singletary, Petitioner continued to talk with others at the plant. Because Petitioner continued to talk about the intoxication to others, in violation of Mr. Pitrolo's instruction to talk with Mr. Singletary, another meeting was held between Petitioner, Mr. Singletary and Mr. Pitrolo, on March 5, 1988. Petitioner denied he was telling others that his intoxication was caused by the chemicals, but Mr. Singletary did not believe him. Petitioner was told to stop spreading rumors and to follow the chain of command if he had a problem. In early April, 1985, Petitioner was convicted of driving under the influence and sentenced to serve a 6-month jail term. Also, in April, 1985, Mr. Bailey became plant supervisor of the PCR, Inc., plant in Gainesville. He had previously been interim plant manager from May to September, 1984. After Petitioner's conviction, the Department of Corrections asked if Petitioner could return to his job at PCR, Inc., so he could be placed on a work release program instead of serving the 6-month sentence in jail. After consulting with Mr. Singletary, and reviewing Petitioner's personnel file, Mr. Bailey decided to allow Petitioner to work at the plant on the work release program. Petitioner started back at work on April 22, 1985. On that date, Mr. Singletary met with Petitioner to discuss the work release program and to let Petitioner know he was on "thin ice with the company." On April 26, 1985, Mr. Bailey and Mr. Singletary met with Petitioner. Mr. Bailey had reviewed Petitioner's personnel file and had seen all the memorandums in the file which had been written as a result of past counselling sessions. Mr. Bailey showed all the memorandums to Petitioner and asked him if he understood them and Petitioner said yes. Petitioner signed all the memorandums in the file. Mr. Bailey explained to Petitioner that if he had a problem, he should speak to Mr. Singletary. Also, Petitioner was told that being disruptive in the plant was bad and could cause operators to do something wrong. Petitioner was told that any further acts of a disciplinary nature would result in immediate termination. Approximately one month later, Mr. Bailey during his walks through the plant, began receiving reports that Petitioner was disgruntled, was complaining to other employees about the work he had to do, and was slow in completing work assignments. Reportedly, Petitioner would accuse the operators of breaking the machines on purpose. Mr. Bailey spoke with Petitioner informally during walks through the plant and told Petitioner to stop being disruptive. However, the number of people complaining about Petitioner's comments increased and things reached a point where operators told Mr. Bailey and Mr. Singletary that they did not want to turn in work orders because they were concerned about the comments Petitioner would make. Mr. Bailey, concerned with plant safety, consulted with Mr. Singletary and they decided that they had enough and would terminate Petitioner. On September 20, 1985, Mr. Singletary and Mr. Sauer, the personnel officer, met with Petitioner and explained to Petitioner that he was being terminated. The reasons given to Petitioner for his termination were poor performance, attitude and not being a team player.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a Final Order dismissing the Petition for Relief filed in this case. DONE and ENTERED this 7th day of July, 1988, in Tallahassee, Florida. JOSE A. DIEZ-ARGUELLES Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of July, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-5570 The parties submitted proposed findings of fact which are addressed below. Paragraph numbers in the Recommended Order are referred to as "RO ." Petitioner's Proposed Findings of Fact Proposed Finding of Fact Number Ruling and RO Paragraph 1. Accepted. RO1. 2. Rejected as irrelevant. 3. Generally accepted. RO3. 4. Accepted, except events occurred in October. RO4. 5. Accepted. RO8. 6. Accepted. 7. Accepted. RO17. 8. First sentence accepted. RO19. Second sentence rejected. Mr. Singletary testified that he followed up and determined that the complaints were accurate. 9. Accepted, except for phrase "although no additional acts of a disciplinary nature had occurred", which is rejected as being contrary to the weight of the evidence. RO21. Respondent's Proposed Findings of Fact Proposed Finding of Fact Number Ruling and RO Paragraph First sentence accepted. RO2. Second sentence rejected; no evidence was presented about when PCR, Inc. was sold. Generally accepted. RO2. Supported by competent evidence but unnecessary to the decision reached. Accepted. RO1 and 3. First four sentences accepted. RO6. Last two sentences are supported by competent evidence but are unnecessary to the decision reached. Supported by competent evidence but unnecessary to the decision reached. Accepted generally. RO5. 8-12. Accepted generally. RO6. 13-20. Supported by competent evidence but unnecessary to the decision reached. Accepted generally. RO4. Accepted, except last sentence which is rejected. RO5. Accepted, except second sentence. RO7. Second sentence rejected as not supported by competent evidence. 24-25. Accepted. RO9. Accepted. RO10,11. First sentence accepted. RO12. Rest of paragraph is supported by competent evidence but is unnecessary to the decision reached. Accepted generally. RO14,15. Accepted. RO16. Accepted. RO17. Generally accepted. RO18. Generally accepted. RO18. Generally accepted. RO20. Generally accepted. RO18. Generally accepted. RO19. Accepted. RO20. Accepted. RO21. Rejected as irrelevant. Rejected as not a finding of fact, but a recitation of testimony. Not a finding of fact. See conclusions of law portion of the RO. Supported by competent evidence. 42-43. Not a finding of fact. See conclusions of law portion of the RO. COPIES FURNISHED: Reese Marshall, Esquire 210 West Union Street Jacksonville, Florida 32202 T. Geoffrey Heekin, Esquire Commander, Legler, Werber, Dawes, Sadler & Howell Post Office Box 240 Jacksonville, Florida 32201-0240 Donald A. Griffin Executive Director 325 John Knox Road Building F, Suite 240 Tallahasee, Florida 32399-1925 Dana Baird General Counsel 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925 Ms. Sherry B. Rice, Clerk Florida Commission on Human Relations Suite 240, Building F 325 John Knox Road Tallahassee, Florida 32399-1570
Findings Of Fact Petitioner took the examination for licensure as a laboratory supervisor in 1981, 1982, 1984 and 1985. In the fall of 1984 he passed that portion of the examination covering Immunohistology but failed the portion covering Supervision and Administration. His score on the Immunohemotology portion was 32 with 31 required for a passing grade. On the Supervision and Administration portion his score was 47 with 48 required to pass. On June 6, 1985, the rules affecting laboratory personnel licensing was changed to require candidates for the examination for which Petitioner applied to hold a bachelor's degree. Petitioner does not hold a bachelor's degree and acknowledged that he does not meet the current academic requirements to sit for the examination. Although the required procedures for making rule changes were followed by Respondent, Petitioner contends that he was not advised of the proposed changes, and, had he been so advised, he would have applied to retake the examination in Supervision and Administration before the rule changes became effective and would have qualified to sit for the examination. Respondent's witness presented Petitioner's record. This record shows that Petitioner, in October 1984 passed the Immunohistology portion of the examination and failed the Supervision and Administration portion by one point. This record also revealed that Petitioner applied to retake the examination in Supervision and Administration in January 1985 and sat for this examination in April 1985. On the examination his test score was 39 with 48 required to pass.
Findings Of Fact On March 17, 1977, the Petitioner, Rosa M. Richardson, made application with the State of Florida, Department of Health and Rehabilitative Services, to become a licensed clinical laboratory technologist. After reviewing the application of the Petitioner, the application was rejected by the Respondent. The rejection was made in the form of a letter addressed to the Petitioner, that letter being dated April 12, 1977, and appearing in the record as Joint Exhibit #2 by the parties. Basis for the denial of the license application was the allegation by the Respondent that the Petitioner had failed to have 60 semester hours of academic study as required by Section 10D-41.25(9), Florida Administrative Code. Subsequently, by a pleading entitled Amendment to Notice of Denial of License, the Respondent indicated that it recommended the rejection of the license application on the additional ground that the Petitioner failed to have four years of pertinent experience in an approved laboratory, again under the provisions of Section 10D-41.25(9), Florida Administrative Code. The Petitioner disagreed with the opinion of the Respondent concerning the issue of her qualifications to become a licensed laboratory technologist, and by correspondence of May 9, 1977, requested a formal hearing. The case was then forwarded to the Division of Administrative Hearings for consideration. On the initial date of hearing of August 18, 1977, the Petitioner gave testimony concerning her work experience. Some of that experience pertained to a job which she held in May, 1972 through July, 1975, this employment being with the Department of Business Regulation, Division of Pari-Mutual Wagering. The job there was working in the racing laboratory doing routine urinalysis of the horses who were running on the race program. An additional function was to do blood tests for the presence of drugs in certain prisoners who were incarcerated by the law enforcement officials in Dade County. Mrs. Richardson also worked six months at a regional laboratory as a laboratory technician I. This employment was during the year 1975. Those duties included DKU for new born babies, in other words testing for phenylhetonuria. In 1975 through 1977,to include the date of hearing, the Petitioner worked for the North American Biological Laboratory Inc. of Miami, Florida. This job was as a laboratory technician. Some of the duties included routine tests for hepatitis. Mrs. Richardson had also worked from July, 1968 through March, 1977 with the National Cardiac Childrens Hospital in Miami, Florida, as a laboratory assistant. All the work related experience stated above was in the position of a laboratory technician; that is to say that the work was in a position of a laboratory employee and under the supervision of a person qualified in laboratory work. Mrs. Richardson's educational background includes a high school diploma from the State of South Carolina; and two years of various courses at the Miami Dade Junior College to include courses in Math, Biology and Chemistry; however, the only courses in which the Petitioner received credit in this latter enrollment period was the credits for Math. The amount of total hours was three credit hours. This initial enrollment in the Miami Dade Junior College was in the years 1968 through 1970. Mrs. Richardson has also completed a course offered by Charron-Williams College, Paramedical Division. This course was offered in the City of Miami, Florida, and was completed by the Petitioner on August 2, 1974. Moreover, a diploma was given to Mrs. Richardson indicating that she had completed the prescribed course as a clinical laboratory technician. The Respondent concedes that the Petitioner is entitled to function as a laboratory technician and as a matter of fact the Petitioner is licensed by the Respondent in that capacity. As stated before, the opposition of the Respondent to the licensure of the Petitioner pertains to the attempt of the petitioner to be a licensed laboratory technologist. From the position taken at the hearing, the Respondent has abandoned its position in opposition to the licensure based upon the failure of the Petitioner to have completed at least four years of pertinent experience in an approved laboratory. This change in position by the Respondent has been made in view of the prior experience which the Petitioner has. On the second matter of opposition which pertains to the requirement of a minimum of 60 hours or equivalent in quarter or trimester hours in an accredited college or university with a chemical, physical or biological science as a major subject, the Respondent still asserts that the Petitioner has failed to meet those requirements. When this modified position was made known to the Petitioner in the course of the August 18, 1977 hearing, it was brought to the attention of the undersigned that the Petitioner was presently attending a college program which would lead to the completion of 60 semester hours or equivalent of work which would bring about an approval of her application to be a licensed laboratory technologist. By agreement of the parties, the hearing was recessed to allow the Petitioner to pursue that course study with the understanding that if the Petitioner decided that she was unable to achieve licensure through the completion of that course study, this knowledge could be made known to the undersigned and a recommended order would be drafted on the basis of the information which had been presented at the August 18, 1977 hearing. A period of time passed in which no one indicated their position on the question of requiring a recommended order to be made. This period of inactivity came to a close when the undersigned was made aware of the fact that the Petitioner wished to have a determination of the issue of her entitlement to a license as a laboratory technologist made before any completion of the current program in which she has enrolled. Therefore, on March 6, 1978 the hearing was reconvened. At that time it was offered into the record that 21 hours out of the needed 60 hours had been completed in the junior college program in which the Petitioner was now enrolled. Consequently, it left the hearing in the posture that any entitlement which the Petitioner would have to a license as a laboratory technologist must be conferred on the basis of the completion of the course with Charron-Williams College or some other alternative method expressed in Section 10D-41.25, Florida Administrative Code. This provision of the Florida Administrative Code pertains to the requirements for licensure as a laboratory technologist. A perusal of those requirements leads to the conclusion that the only possible basis for licensure which could be demonstrated, after an examination of that section, and in view of the testimony, would be the Section 10D-41.25(9), Florida Administrative Code, that provision states: 10D-41.25 Laboratory Personell -- Quali- fications, Technologist. A technologist shall meet one of the following requirements: * * * (9) Successful completion of two years of academic study (a minimum of 60 semester hours or equivalent in quarter or trimester hours) in an accredited college or university with a chemical, physical or biological science as a major subject, and at least four years of pertinent experience in an approved laboratory, or There are insufficient credit hours in the current enrollment In the junior college to meet the 60 semester hours or equivalent demand. Likewise, an examination of the Composite Exhibit #2, by the Petitioner, which includes the diploma, would show that the course study with Charron-Williams College was for purposes of becoming a clinical laboratory technician and not for the purpose of becoming a laboratory technologist. Moreover, assuming for purposes of argument that the program was designed as a course for clinical laboratory technologists, the credit received from Charron-Williams would not qualify because Charron- Williams is not an accredited college or university within the meaning of the aforementioned section of the rule. That rule is Section 10D-41.25, Florida Administrative Code. This conclusion on the subject of accreditation has been reached by an examination of Section 483.051(11), Florida Statutes. That provision says that the Respondent may approve the curriculum in schools and colleges offering education and training leading toward the granting of a license. The Respondent has taken the opportunity to set the qualifications and by its Section 10D-41.22(11), Florida Administrative Code, has defined the term accredited. In that provision it states: 10D-41.22 Definitions. In addition to definitions set forth in Section 483.041, F.S., as used in this chapter, unless context indicates to the contrary, the following terms shall mean: (11) Accredited -- refers to educational accreditation by a nationally recognized accrediting agency or association as deter- mined by the U.S. Commissioner of Education, or the Florida Department of Education, or, on an equivalent basis by the Department of Health and Rehabilitative Services. In the course of the hearing proof was offered that the publication Higher Education-Education Directory (1974-75), published by the U.S. Department of Health, Education and Welfare, Education Division; is a directory which list the institutions accredited by agencies, which agencies are recognized by the U.S. Commissioner of Education as being an acceptable accrediting agency or association. That publication does not list Charron-Williams College as being an accredited institution for purposes of academic study, at the time that the Petitioner received her diploma from that college. Finally, the Charron-Williams College seems to recognize that it has not achieved sufficient status to even have its graduates licensed as clinical laboratory technicians, a lesser level of endeavor than that necessary to become a clinical laboratory technologist. This recognition is stated in the December 23, 1977 letter from the president of the Charron-Williams College, Miami, Florida, addressed to the Director of the Office of Laboratory Services within the State of Florida, Department of Health and Rehabilitative Services. This letter may be found as Respondent's Exhibit #1, entered into evidence. Through that correspondence, the president of the college is requesting of the Respondent those things necessary to have its students accepted for licensure. Upon the consideration of all the facts, the petitioner does not qualify for licensure as a laboratory technologist within the meaning of Chapter 483, Florida Statutes, and Section 10D-41.25, Florida Administrative Code.
Recommendation It is recommended that the license application made by the Petitioner, Rosa M. Richardson, to become a licensed laboratory technologist be denied. DONE AND ENTERED this 20th day of March, 1978, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Mrs. Rosa M. Richardson Leonard Helfand, Esquire 17935 Northwest 47th Place Department of Health and Carol City, Florida 33055 Rehabilitative Services 2445 West Flagler Miami Florida 33135
Findings Of Fact Based upon my observation of the witness and their demeanor while testifying, documentary evidence received, I make the following relevant factual findings: Petitioner was employed by Respondent in its utilities department for approximately 10 years and 10 months. Petitioner's initial employment commenced in 1974, where he was employed in the position of treatment supervisor and remained in that position for approximately 2 years. In 1975, Petitioner was promoted to treatment supervisor superintendent and worked in that position until July 30, 1984. Respondent admits, and it is undisputed, that Petitioner was a good employee. (TR 8). It is also undisputed that Petitioner was the oldest employee (70 years old) in Respondent's utilities department and he resigned from his duty after he was transferred to a plant designated as the 3 B water treatment plant (3B). On July 20, 1984, Henry J. Block, an employee at 3 B submitted his resignation. Respondent thereafter held a meeting on July 23, 1984, with its operations superintendent, John Hayes, its operations manager, Michael J. Scottie, and chief plant operator II, Ralph Piacente, to discuss its staffing requirements and its need to shift personnel to maintain operations at 3 B on an interim basis. Following that meeting, it was determined that based on Petitioner's qualifications and the duties that he was them performing, which primarily involved process control and the collection of statistical data for both water and wastewater treatment operations, Petitioner would best be able to fill the new position brought about by Block's resignation with the least disruption of staff. Petitioner was therefore advised, on July 27, 1984, that he was being transferred, on an interim-temporary basis to 3 B , effective July 30, 1984. Petitioner was advised that the transfer was temporary and that he would retain his existing pay and benefits while fulfilling his newly assigned temporary responsibilities at 3 B. Additionally, Petitioner was advised that when a permanent replacement was employed to fill the vacancy created by Block's resignation, Petitioner would return to his previous duties. Respondent's two available employees who were able to be temporarily assigned to 3 B, Petitioner's temporary assignment was least disruptive to the efficient and effective operation of Petitioner's operations inasmuch as the other available employee, Ralph Piacenti, was already employed as an operator, whereas Respondent was involved in routine daily gathering and analysis of data that could be compiled and analyzed at a later time. Age was not a factor in Respondent's deliberations and Petitioner was temporarily assigned to 3B based on his ability to step in and perform the duties of retiring employee (Block) with minimal disruption of Respondent's available staff. Respondent has, in the past, required temporary transfers of employees to fill positions vacated by employees who resign. These transfers have included employees of higher rank assigned to lower rank positions and once a replacement is found, the temporarily assigned employees are transferred to their former positions. (TR 125-126). The 3 B plant is situated in the extreme south end of Broward County. It is one of Respondent's older treatment plants and requires more mechanical operations, i.e. requires a greater degree of input by the treatment plant operators who must closely monitor the various functions that take place at the treatment plant such as backwashing filters, etc. Over the years, the plant has been modified and improvements have been made. The 3 B water treatment plant is safe, works properly, and is not obsolete. The working conditions at 3 B are not deplorable and while it does not have some of the automatic capabilities that are available at some of Respondent's more modern plants, this absence of features does not render the working conditions deplorable at 3B. (TR 135-138). Petitioner was provided office space at 3 B. The office was airconditioned with a telephone and had adequate clerical and other support staff.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: The Florida Commission on Human Relations enter a Final Order denying Petitioner's prayer for relief and dismiss the petition. RECOMMENDED this 25th day of March, 1987, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of March, 1987.
