Findings Of Fact Respondent, Lori Goldston, was employed by the Petitioner, City of Clearwater, for approximately seven and one-half years as a Building Construction Inspector II. On April 13, 1994, Respondent was placed on administrative leave and on April 21, 1994, she was terminated and all pay and other benefits were terminated as of 4:00 p.m. on April 21, 1994. Specifically, Respondent was terminated for alleged violations of Rule 14, Sections 1(b), (d), (k), and (1) of the Civil Service Rules and Regulations of Respondent, to-wit: (b) Is incompetent in the performance of the specific duties of [her] position. (d) Has been careless or negligent in the care of the property of the City; or has participated in the unauthorized use thereof. Has been . . . guilty of conduct un- becoming a City employee defined as scandalous or disgraceful conduct while on or off duty where such conduct tends to embarrass the City or bring its service into public disrepute. Has violated any lawful and reasonable official regulation or order or failed to obey any lawful and reasonable direction made and given . . . by [her] superior officer when such violation or failure to obey amounts to insubordination or serious breach of discipline which may reasonably be expected to result in a lower morale in the department or to result in loss, inconvenience, or injury to the City or the public. During the week of April 4, 1994, Tom Chaplinsky received two complaints that a City vehicle was observed leaving the city limits with a magnetic sign covering the City seal. The complainants related that the driver appeared to be Respondent and that the vehicle was heading north on alternate route 19 when it was so observed. Vick Chadora, assistant central planning director, requested that Chaplinsky investigate the complaints. Chaplinsky along with Kevin Garriot, a building code analyst, initiated an investigation to check Respondent's inspection schedule and job sites for the day of April 11, 1994. Chadora and Chaplinsky reviewed Respondent's inspection schedules and job sites on April 11, 1994, and discovered that most of Respondent's inspections were completed by mid-morning. Chadora then instructed Chaplinsky to check Respondent's residence which is located north of Palm Harbor, approximately 8 to 10 miles outside of the city limits. During mid-morning on April 11, 1994, Chaplinsky parked near the end of the dead end street on which Respondent's residence is located. He saw what appeared to be her city vehicle but was unable to make a positive identification. On Tuesday, April 12, 1994, Chaplinsky again found that a majority of Respondent's inspections had been completed by mid-morning. Chaplinsky contacted her by radio at approximately 11:00 a.m., to determine her location and she replied that she was in Clearwater Beach. Chadora drove to the beach area while Chaplinsky and Garriot drove to Respondent's residence between 11:00 and 11:15 a.m. Messrs. Chaplinsky and Garriot parked at the entrance to the dead end street where Respondent resides and waited. At approximately 11:45 a.m., Chaplinsky and another staff assistant began trying to reach Respondent by radio. At approximately 12:55 p.m., Respondent answered her radio. At that time, Respondent was asked to investigate a complaint on the beach. At approximately 1:20 p.m., Messrs. Chaplinsky and Garriot observed Respondent in her city vehicle, with the City seal covered, leaving her neighborhood. They lost Respondent in traffic but later caught up with her at the site of the complaint. At that time, the City seal on her vehicle was no longer covered. On April 13, 1994, Messrs. Chaplinsky and Garriot again drove to Respondent's residence during mid-morning and waited at the entrance to her street. Respondent was observed leaving the City in the city vehicle with the City seal covered. At approximately 2:55 p.m. on April 13, 1994, with Messrs. Chaplinsky and Garriot present, Respondent was advised by Chadora that two people had complained that she was using her city vehicle with the City seal covered while leaving the city limits. Before Chadora could complete his inquiry, Respondent immediately denied that it was her. Upon Respondent's repeated and adamant denial, Chadora told her that he and Garriot has observed her leaving her residence on Tuesday, April 12 and Wednesday, April 13 in the City vehicle. Upon being confronted with that information, Respondent admitted that they had caught her in a lie and she admitted that she did leave the city limits in the city vehicle. Respondent indicated that she was trying to complete a construction project at home in order to re-finance and satisfy a balloon note which was coming due and the lender was insisting that certain renovations be completed prior to closing. During 1990, Respondent was disciplined for leaving the city limits and going to her home. At that time she was specifically advised that she should not leave the city limits to return home in the city vehicle without first obtaining permission from her supervisor. For that offense, Respondent was suspended for four days. Petitioner has a system of progressive discipline in effect which is utilized to discipline employees who engage in conduct contrary to the City's rules and regulations. An employee who violates the rules accumulates points under the disciplinary system. An employee who receives up to 60 points within a specified period (24 months), can be subjected to discharge. Respondent accumulated 140 points for the alleged infractions that she received for leaving the City limits during the days April 11-13, 1994. Petitioner also has a liberal sick leave policy which employees may avail by demonstrating need to use sick leave. Respondent did not advise Petitioner that she was suffering from any medical disability or other infirmity which would warrant the utilization of sick leave prior to her discharge. Respondent maintained that she failed to advise Petitioner of her need for sick leave -- she suffers from severe depression which is prompted by a chemical imbalance in her brain -- because she did not want other employees to know about her problems as she feared it would be common knowledge among her colleagues. Respondent attempted to show that she was being treated unfairly and more harshly than other employees had been treated for similar misconduct. Specifically, Respondent related an incident wherein an employee threw a temper tantrum during a grievance meeting, tossed a beeper against a bookcase and was generally insubordinate when he was questioned about an infraction. Petitioner explained that that employee "blew up" when he was confronted about a simple rule infraction and that employee was suspended as was Respondent when she was first disciplined for leaving the City in a vehicle without authorization in 1990. Respondent failed to show that she was treated more harshly or that she was the recipient of disparate treatment by Petitioner. Respondent demonstrated that the other employee was similarly treated when Petitioner was disciplined in 1990. Moreover, that employee was subjected to discharge when he later violated the city's rules and regulations (a drug offense-employee failed a urinalysis screen). Petitioner had no way of knowing prior to April 21, 1994, that Respondent requested or was otherwise in need of "an accommodation" due to her health in April of 1994.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order dismissing Respondent from her position of a Building Construction Inspector II effective April 21, 1994. DONE AND ENTERED this 28th day of February 1995 in Tallahassee, Leon County, Florida. JAMES E. BRADWELL 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 28th day of February 1995. APPENDIX The following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. Paragraph 1, adopted as modified, paragraphs 2, 18, and 19, Recommended Order. Paragraph 3, rejected, unnecessary. Paragraph 4, adopted as modified, paragraph 18, Recommended Order. Paragraph 7, rejected, irrelevant. Paragraph 8, conclusionary and argument. Paragraph 11, adopted as modified, paragraph 22, Recommended Order. Respondent's Proposed Findings of Fact. Paragraph 5, rejected, contrary to the greater weight of evidence, paragraph 16, Recommended Order. Paragraph 8, rejected, irrelevant. Paragraph 11, rejected, contrary to the greater weight of evidence, paragraphs 2, 14, and 19, Recommended Order. Paragraph 13, rejected, contrary to the greater weight of evidence. Paragraphs 15 and 16, rejected, contrary to the greater weight of evidence, paragraph 23, Recommended Order. Paragraph 17, adopted as modified, paragraphs 17-20, Recommended Order. Paragraph 18, rejected, contrary to the greater weight of evidence, paragraph 23, Recommended Order. Paragraphs 19-22, rejected, irrelevant and unnecessary. COPIES FURNISHED: Miles A. Lance, Esquire Assistant City Attorney City of Clearwater Post Office Box 4748 Clearwater, Florida 34618-4748 Robert McCormack, Esquire Prestige Professional Park 2655 McCormick Drive Clearwater, Florida 34619 Karleen DeBlaker City Clerk City of Clearwater P.O. Box 4748 Clearwater, Florida 34618-4748
Findings Of Fact On June 4 and 5, 1981, Petitioner John A. Love sat for the general contractor's licensing examination at Bayfront Auditorium in Miami, Florida. The exam which was administered consisted of three parts. The first part was given the morning of the first day. The second part was given the afternoon of the first day and the third part was given the second day. The Petitioner Love arrived at the auditorium approximately twenty minutes prior to the scheduled starting time of the June 4th exam. Upon arrival the Petitioner Love discovered that the doors to the auditorium were locked and he was required to remain outside in the rain until the doors were open at approximately 7:00 a.m. Once inside the auditorium, the Petitioner Love was given an assigned seat which was located in the rear right center of the room. After being seated, the Petitioner was given the plans and specifications for the exam and told not to open or observe them until told to do so. At about 7:30 a.m. a proctor instructed all examinees to check their examination area to determine if they each had a set of plans and specifications which should have consisted of fifteen pages of plans and nineteen pages of specifications. Examinees were instructed to raise their hands if they did not have all exam materials. The proctors repeated the instructions regarding the number of plans and specifications two or three times. Examinees were also instructed to count the number of pages of plans and specifications in their booklets. After these instructions were given, the examinees were given thirty (30) minutes to study their plans and specifications. At no time prior to the commencement of the construction examination did Petitioner Love raise his hand to indicate he was missing any exam materials. The Petitioner Love did not check his plans and specifications when instructed to do so by the proctor. The construction examination began after the instructions were completed. At that time, all examinees were instructed to open their examination booklets. Inside the booklet was a cover sheet on which was written "Important Instructions--Read Carefully." On the same page was an instruction detailing both the number of pages and plans that the examinee should have and a brief description of what each page should contain. At the end of the instructions was printed, "If you do not have all of these sheets, raise your hands." Petitioner Love failed to read this page of instructions. Approximately two hours after the morning portion of the examination had begun, Petitioner Love raised his hand and informed a proctor that he was missing a page from his plans. Petitioner discovered the missing page when a person seated near him raised his hand to indicate he was missing a page from the plans. The missing page was promptly provided by the proctor; with the process of replacing the sheet taking approximately 5-10 minutes. When the Petitioner Love notified the proctors of the missing page, he was on question twelve of the exam. The Petitioner's scores were 75 percent on the first part, 90 percent on the second part and 45 percent on the third part which gave him an overall grade of 68.70 percent. A grade of 69.01 percent was required to achieve a passing grade. On the first part of the exam the Petitioner missed four questions prior to the challenged incident and only one following it. Petitioner Love has a hearing impairment directly related to his previous occupation as a firefighter. However, the Petitioner never informed the Respondent of his impairment prior to the exam so that special arrangements would be made to accommodate him.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered denying the Petitioner's request that his grade on part one of the June 4, 1981, general contractor's licensing examination be adjusted to reflect an overall passing grade. DONE and ORDERED this 9th day of September, 1982, in Tallahassee, Florida. SHARYN L. SMITH, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of September, 1982. COPIES FURNISHED: Peter D. Blanc, Esquire Post Office Box 1108 West Palm Beach, Florida 33402 Stephanie A. Daniel, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 James Linnan Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202 Samuel R. Shorstein Secretary Department of Professional Regulation Old Courthouse Square 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact Petitioner is Charles K. Singletary, doing business as Keith's Lawn Care. On February 7, 1995, Respondent issued an Invitation to Bid (ITB) for school landscaping services. The purpose of the ITB is to privatize landscaping services previously done by employees of Respondent. Section 2.4 of the ITB defines the "contractor" as the successful bidder, "whether a corporation, partnership, individual or any combination thereof, and its, their or his successors, personal representatives, executors, administrators, and assigns." Section 3.4 of the ITB addresses employees of the contractor. Subsection 2 requires the contractor to give Respondent a list of all employees with Social Security numbers and fingerprints. Subsection 3 states that the employees shall comply with the "instructions pertaining to conduct and [Respondent's] regulations." Subsection 3 authorizes the Supervisor of Ground Maintenance for Respondent to require that the contractor remove any employee for violating any of Respondent's policies. Section 3.4.4 provides that the contractor shall "strictly prohibit interacting between the employee and the student population and the [employees] will refrain from using foul, abusive or profane language on school property." Section 5.4 sets forth the bidder qualifications. The requirements include "satisfactory completion of at least three contracts or orders for similar work within the last five years." The bidder must also be in "sound financial position and qualified to perform the work." Section 5.4 requires the submittal of various documents to evidence compliance with these qualifying requirements. Nothing whatsoever in the ITB disqualifies from bidding a person who has been convicted of drug offenses. The above- cited provisions are the only provisions applicable to bidder qualifications. Petitioner timely submitted a bid that was the low bid and otherwise acceptable except that Petitioner was convicted in 1984 of conspiracy to import marijuana and in 1978 of attempted possession of marijuana. By certificate dated December 27, 1990, the Governor and Cabinet restored Petitioner's civil rights. Citing the 1984 conviction (apparently unaware of the 1978 conviction), Respondent rejected Petitioner's low bid by letter dated March 8, 1995. Respondent cited its zero tolerance policy regarding drugs. Petitioner timely protested the decision by a letter of the same date. Respondent's zero drug policy has no direct application to this case. The policy operates prospectively to promise the most severe penalties for drug offenses committed on or in the vicinity of schools. The policy on which Respondent actually relied in rejecting Petitioner's low bid is unwritten and variable. The terms and conditions of the unwritten policy depend on the specific application and the administrator enforcing it. There are no standards specifying disqualification for types of crimes or how far in the past they were committed. There is some uncertainty as to the extent to which a conviction for driving while intoxicated would disqualify a bidder or the effect of crimes committed while a person was a juvenile. Respondent's unwritten policy is unclear as to its application against employees of suppliers or independent contractors, such as persons delivering food to a school cafeteria, who visit schools daily, or construction workers, who may work at schools all day for months at a time. Nothing in the record provides guidance as to the effect of the unwritten policy on corporate bidders having shareholders, directors, or officers who may possess disqualifying convictions. Petitioner and other bidders had no notice of the existence of the unwritten policy on which Respondent relied in rejecting Petitioner's bid. The ITB does not mention such a policy. The fingerprinting requirement, which implies a screening process, does not supply even the broad outline of a policy explaining what Respondent will do with the results of the screening. Respondent's inference of some unformulated policy from the fingerprinting requirement is less persuasive than the inference that the unwritten policy does not apply to principals of bidders, such as Petitioner, because the ITB permits free transferability of the contract.
Recommendation It is hereby RECOMMENDED that Respondent enter a final order to rebid the landscaping services with an amended invitation to bid addressing the issues set forth above, including the specific terms and conditions for disqualification of prospective bidders due to the criminal status of themselves, their principals, or their employees. ENTERED on May 26, 1995, in Tallahassee, Florida. ROBERT E. MEALE 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 on May 26, 1995. APPENDIX Rulings on Petitioner's Proposed Findings 1: adopted or adopted in substance. 2: rejected as subordinate. 3-4: adopted or adopted in substance. 5-8: rejected as subordinate. 9-14: adopted or adopted in substance. Rulings on Respondent's Proposed Findings 1-5: adopted or adopted in substance. 6: rejected as unsupported by the appropriate weight of the evidence. The zero tolerance policy on drugs does not mandate rejection of Petitioner's bid and does not generally address disqualification issues for past offenses. 7-17: rejected as subordinate. 18: rejected as irrelevant. 19: rejected as unsupported by the appropriate weight of the evidence. 20-27: rejected as subordinate. 28-29: rejected as irrelevant. COPIES FURNISHED: Robert C. Pollack 11983 Tamiami Trail North Suites 101-102 Naples, FL 33963 Steven M. Falk Roetzel & Andress 3003 Tamiami Trail North Suite 270 Naples, FL 33940 Dr. Robert E. Munz Superintendent Collier County School Board 3710 Estey Ave. Naples, FL 33942-4457
The Issue The issue in this proceeding is whether the Petitioner is entitled to recover attorney's fees and costs incurred in this proceeding pursuant to the provisions of Section 112.317(8), Florida Statutes, and if so, the amount of such attorney's fees and costs.
Findings Of Fact Petitioner, Gordon Sands (Petitioner or Mayor Sands), is and at all times material to this proceeding was mayor of the Town of Welaka, Florida (Town or Town of Welaka), having served in that position for four years. Initially, Petitioner was appointed mayor in May 1996, after the then-mayor resigned. In 1997, Petitioner ran unopposed for mayor and, in March 1999, he was re-elected. Respondent, Caron Speas (Respondent), is and has been a resident of the Town of Welaka for two years. Respondent, who has practiced law since 1981, considers herself a "watchdog" of the actions of the Town's local government. She is chair of and has been active in a local "political committee" currently known as Concerned Citizens for Public Integrity, Inc. Respondent's brother, Rand Speas, is also a resident of the Town of Welaka. During January to March 1999, Mr. Speas was running for a position on the Town Council at the request of his sister, Respondent. Mr. Speas lost his election campaign on March 3, 1999. During Mr. Speas' unsuccessful 1999 election campaign, Mayor Sands was running for re-election. Respondent was opposed to Petitioner's re-election bid and had actively opposed many of the official actions taken by Mayor Sands. Moreover, Respondent had openly expressed her dislike and dissatisfaction with the manner in which the Town of Welaka was governed and her opposition to the administration of Mayor Sands. On April 9, 1999, Respondent filed an amended ethics complaint (Amended Complaint) against Mayor Sands alleging that the mayor violated Section 112.313(6), Florida Statutes, by orchestrating a willful and deliberate violation of the public records laws in order to aid his re-election campaign. After an investigation and consideration of the Complaint and the Amended Complaint, the Ethics Commission issued an order finding that there was no probable cause to believe that the mayor had violated the Code of Ethics as alleged by Respondent and dismissing both the Complaint and the Amended Complaint. In this case, Petitioner asserts a right to attorney's fees and costs by reason of Respondent's filing the Amended Complaint. In the Amended Complaint made against Mayor Sands, Respondent submitted an Amended Statement of Facts, which stated: AMENDED STATEMENT OF FACTS During the months from January 1999 to March 1999, said party [Mayor Sands] did violate Florida Statute [sic] 112.313(6) by orchestrating a willful and deliberate violation of the public records laws for the purpose of aiding his re-election campaign. Said party did use his position as Mayor of the Town of Welaka (population approximately 600) to instruct the town clerk not to provide his political opponents with public records that contained information relating to campaign issues. On January 13, 1999, The Concerned Citizen's Group, a political committee opposing Mayor Sands [sic] bid for re-election, requested copies of very specific public records. The town clerk produced records which were wholly incomplete--rather than producing the audited financial statements that were requested, she produced only the balance sheets taken from the audited financial statements. When the deficiency was pointed out to her, she wrote a letter on February 16, 1999, improperly requesting a $100.00 deposit for the "extensive labor" involved in locating the records. When it was pointed out that she had already located the records because she copied the balance sheets from them, she finally had to accede to copying the audited financial statements that day. Over one month after they were requested. [sic] On January 22, 1999, The Concerned Citizen's Group, served a second written request for copies of very specific public records, to wit: grant applications. On February 16, 1999, the town clerk wrote the above- referenced letter improperly requesting a $100.00 deposit but did not object to the public nature of the records requested. When the $100.00 deposit was paid under protest, the records were nevertheless not forthcoming. One day before the election, The Concerned Citizen's Group was contacted and told it could pick up the records that afternoon. The records consisted of 11 pages for which the Concerned Citizen's Group was charged $66.50, or $6.60 per page. On January 22, 1999 Philip J. Cobb, campaign manager for Rand Speas, requested a copy of the Absentee Ballot Voter's List for the last two Welaka elections and did not receive the requested document until one day before the election. It was three pages long and he was charged 45 cents. On January 28, 1999, Edna Moore, a political opponent of the mayor, made a request for public records, (specifically: two ordinances, a permit, a receipt for equipment purchase, Minutes of a town council meeting, and employee work sheets for 4 months). Ms. Moore also received a letter requesting a $100.00 deposit, which she was unable to pay. The day after the election, Ms. Moore was told that her public records were ready for pick up. She was charged $39.75 for 115 copies, or 35 cents per page. On February 15, 1999, May Nigh, a member of the Concerned Citizen's Group, made a request for specific public records. Ms. Nigh also received a letter requesting a $100.00 deposit, which she was unable to pay. Ms. Nigh received the requested records a week after the election. The records consisted of 19 pages for which she was charged $31.25, or $1.64 per page. The excuses and explanations given for the delays in producing the above records were totally lacking in plausibility. Each of the persons who requested public records were [sic] told that the requests were either voluminous or could not be located and that the town clerk would have to work on the weekends to provide the records. The records that were ultimately produced were not "voluminous" and a former town employee, Irene Perrins, (who has a lifetime of experience in office work) has indicated verbally to the complainant that there is not enough work at town hall to keep the town clerk busy for more than 3 hours a day, let alone on the weekends. The statute cited by Respondent and the facts alleged in support of her charges comprise a specific accusation by Respondent that Mayor Sands, a public officer of the Town of Welaka, corruptly used his official position by orchestrating a willful and deliberate violation of public records laws in order to secure a special privilege or benefit for himself by directing the Town Clerk not to provide his political opponents with requested records. At the time Respondent completed and filed the Amended Complaint, she had no personal knowledge that Mayor Sands had, in fact, "orchestrated a willful and deliberate violation of the public records laws for the purpose of aiding his re-election campaign." Respondent relied on statements of three individuals in making the charge against Mayor Sands contained in the Amended Complaint. First, according to Respondent, Grace Evans, a former member of the Town Council of the Town of Welaka, told Respondent that Mayor Sands totally controls and directs the activities of the Town Clerk, Renee Peterson. Next, Virgil Posetti, a political ally of Rand Speas and the political opponent of Mayor Sands in the 1999 election, allowed Respondent to tape a statement in which Posetti stated that Mayor Sands controls what goes on in Town Hall and supervises the Town Clerk. Finally, in a telephone conversation initiated by Respondent, Eileen Perrins, a former town employee who was fired, told Respondent that the Town Clerk had only three or four hours of work to do during the work day. Respondent put credence in Ms. Evans' statements because Respondent believed that Ms. Evans knew Mayor Sands well. Respondent testified that Ms. Evans had formerly served on the Town Council under Mayor Sands but resigned from the Council "saying that Mayor Sands violates the Sunshine Laws regularly." Respondent apparently believed the statements made by Posetti because he had been a former member of the Town Council. However, it is significant that at the time the public records requests were made to the Town Clerk, Posetti was not a member of the Town Council, was not active in Town Hall, and did not work in Town Hall. Moreover, prior to and at the time Respondent filed the Amended Complaint, she was aware that Posetti was running against Mayor Sands for mayor of the Town of Welaka. Lastly, Respondent apparently believed the statements of Ms. Perrins because Perrins had previously worked in Town Hall as an employee of the Town. Respondent relied on Ms. Perrins' statements although she knew or believed that Perrins had been fired from her job with the Town. Respondent's reliance on any statements made by Evans, Posetti, or Perrins was not well-founded. By her own testimony, Respondent was aware that the statements by these individuals should be weighed carefully in light of their likely biases against Mayor Sands. Moreover, there was no evidence that Evans, Posetti, or Perrins worked at Town Hall or were aware of or had any knowledge of what was going on in Town Hall at the time the subject public records request were made. Finally, Respondent acknowledged that none of the aforementioned individuals ever told her that Mayor Sands had orchestrated a willful and deliberate violation of the public records laws. Respondent also based the charges in the Complaint on the chronology--the dates the public requests were made; the information that was requested; the length of time she believed it reasonably should have taken to produce the documents; the time it actually took to produce the documents; and the dates that the records were actually produced. In summary, Respondent testified that the basis for the charges she made in the Amended Complaint was as follows: [W]hat I was hearing around town, what I was hearing from former council people, what I heard from Irene Perrins in the telephone conversation I had with her and the timing of the requests, the demands for $100 deposits, and the actual production of documents and what was produced. The totality of the circumstances is the reason this complaint was filed. (Transcript, pages 71-71). Respondent was "upset" and "outraged" when some of the public records requests were not responded to in the time frame and manner that she thought was reasonable. As a result, after the March 1999 election, she filed the Complaint against Mayor Sands. Respondent chose to file the Complaint against Mayor Sands although she knew that all the subject public records requests had been directed to the Town Clerk and/or the Town Custodian of Records. The only Town official with whom Respondent communicated regarding the subject public records requests was Renee Peterson. However, Respondent believed Mayor Sands was a "dictator" in that he "controls" and "runs everything" at Town Hall. In light thereof, Respondent believed that Ms. Peterson was delaying and withholding production of documents at the direction of Mayor Sands. Despite Respondent's belief that Mayor Sands controlled everything at Town Hall, including responses to public records requests, she never communicated with him about the delay in the Town Clerk's responding to the subject public records requests. In fact, Respondent has never had a conversation with Mayor Sands. At all times material to this proceeding, Renee Peterson was the Town Clerk and Custodian of Records for the Town of Welaka, having been employed in that position since September 1998. Among her various duties, Ms. Peterson was responsible for keeping and providing public records for review and copying such records upon request. In that connection, the Town of Welaka has a duly-adopted ordinance establishing a procedure for Ms. Peterson to follow. At all times relevant to this proceeding, Mayor Sands was charged with supervising the Town Clerk, Ms. Peterson. When Ms. Peterson was first employed, Mayor Sands instructed Ms. Peterson to refer any questions about public records to the Town's attorney or to use the "Sunshine Manual." However, the mayor was not involved in and did not direct the day-to-day work activities of Ms. Peterson. Ms. Peterson used her discretion in establishing and accomplishing her job priorities. Between approximately January 13 and March 9, 1999, Ms. Peterson received at least 13 public records requests from the Concerned Citizens Group and several individuals. Ten of the thirteen public records requests were made in January 1999 and some required research back to 1990. In January 1999, when ten of the public records requests were made, Ms. Peterson had been employed as Town Clerk for only three or four months. Given her varied responsibilities as Town Clerk, the number and the volume of the public records request, and the extensive research required to comply with some of the public records requests, Ms. Peterson took several weeks to respond to several of the public records requests. In instances when Ms Peterson determined that there would be some delay in fully responding to the requests, she wrote letters to the appropriate individuals and informed them of the status of their public records requests. Subsequently, with the help of two other people, Ms. Peterson worked seven hours one Saturday to satisfactorily respond to the public records requests. Respondent testified that the public records requests were relevant to campaign issues in the March 1999 election. However, none of the persons who had made the subject public records requests ever complained to Ms. Peterson about the time frame within which she responded to their public records requests. Furthermore, when the requests were made and after they received letters advising them of the status of their requests, none of the individuals advised Ms. Peterson that the requested records were needed by a date certain. Ms. Peterson did not think in terms of the subject public requests as related to the election. She simply thought of them as public records requests. Under all the circumstances, there was no unreasonable delay in her response to those public records requests. Ms. Peterson testified credibly that she never told Mayor Sands that the subject public records requests had been made; that Mayor Sands never orchestrated any willful or deliberate violation of the public records law; and that the mayor never instructed her not to provide his political opponents with public records that contained information relating to campaign issues or to delay providing such records to his political opponents. Mayor Sands' credible testimony was that Ms. Peterson never advised him that she had received the subject public records requests and that he never instructed her not to provide his political opponents with public records or to delay providing such records to his political opponents. Mayor Sands' credible testimony was that he first heard about problems concerning an individual's obtaining public records at a political rally two weeks before the March 1999 election. While at that rally, he heard Posetti, his opponent in the election, and Edna Moore, make statements that Ms. Moore could not get public records that she desired. Neither Posetti nor Ms. Moore accused Mayor Sands of interfering with Ms. Moore's getting the records. However, after hearing these complaints, Mayor Sands asked the former Town Clerk and a former Town Council member who had served as assistant records keeper to assist Ms. Peterson in responding to the public records requests. Soon thereafter, all records were produced. Respondent acknowledged that no one told her that Mayor Sands orchestrated a willful and deliberate violation of the public records law to assist his re-election campaign. Rather, in filing the Amended Complaint, Respondent relied on statements made to her by individuals who were obviously biased against Mayor Sands and whose statements, even if true, do not support the charge that the mayor orchestrated a willful and deliberate violation of the public records law for the purpose of aiding his re-election efforts. Respondent had no first-hand knowledge of any facts that would reasonably support the charge she made against Mayor Sands in the Amended Complaint. In absence of such knowledge, Respondent relied on the statements of Ms. Evans, Ms. Perrins, and Mr. Posetti and on Respondent's conclusion that the chronology of events related to the public records was evidence that Mayor Sands: (1) orchestrated a willful and deliberate violation of the public records law for the purpose of aiding his re-election campaign; and (2) instructed the Town Clerk not to provide his political opponents with public records that contained information relating to campaign issues. Contrary to Respondent's beliefs, the aforementioned statements and the chronology of events relative to the public records requests do not support or provide a reasonable basis for charges against Mayor Sands in the Amended Complaint. The allegations and statements of fact in the Amended Complaint are mere conjecture and surmise. Based on the foregoing, Respondent filed the Amended Complaint with a malicious intent to injure the reputation of Mayor Sands and with reckless disregard for whether said Amended Complaint contained false allegations material to a violation of the Code of Ethics. In defending himself against the allegations in the Complaint and in this proceeding, Petitioner has been represented by Allen C. D. Scott, II, Esquire. Mr. Scott's hourly rate is $125.00. Prior to the final hearing, Mr. Scott expended 43 hours on this matter and a related case, McGuire v. Speas, DOAH Case No. 00-0267FE, Recommended Order issued August 24, 2000. One- half of that time is attributable to the instant case. The hourly rate of $125.00 billed by Mr. Scott is reasonable. Likewise, the pretrial time of 21.80 hours expended in this matter is reasonable. Accordingly, the attorney's fee of $2,725.00 incurred is reasonable. Judith Ginn, Esquire, an attorney who has practiced law in the state of Florida since 1974, testified as an expert witness in this case. Ms. Ginn's hourly rate of $150.00 is reasonable. The reasonable cost of Ms. Ginn's expert witness services in this case and in the companion case is $650.00.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that: The Ethics Commission enter a final order finding that Respondent, Caron Speas, is liable for attorney's fees of $2,725.00 and costs of $325.00; and The Ethics Commission award fees and costs which were incurred on the day of and after the administrative hearing. DONE AND ENTERED this 5th day of September, 2000, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD 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 5th day of September, 2000. COPIES FURNISHED: Allen C. D. Scott, II, Esquire Scott & Scott 101 Orange Street St. Augustine, Florida 32084 Peter Ticktin, Esquire Scholl, Ticktin, Rosenberg, Glatter & Litz, P.A. Net First Plaza 5295 Town Center Road, Third Floor Boca Raton, Florida 33486-1080 Sheri L. Gerety, Complaint Coordinator and Clerk Commission on Ethics 2822 Remington Green Circle, Suite 101 Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Bonnie J. Williams, Executive Director Commission on Ethics 2822 Remington Green Circle, Suite 101 Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Philip C. Claypool, General Counsel Commission on Ethics 2822 Remington Green Circle, Suite 101 Post Office Drawer 15709 Tallahassee, Florida 32317-5709
The Issue The issue is whether Respondent should be dismissed from her employment with Petitioner for the reasons set forth in a termination letter dated October 3, 2008.
Findings Of Fact Respondent Novella Franklin began her employment with FAMU in 1987. From 1993 to December 1996, and again from November 1999 through 2008, Ms. Franklin worked in the Registrar’s Office. At all times material to this proceeding, Respondent held the position of Office Manager in the Registrar’s Office. On or about June 2, 2008, Ms. Janet Johnson accepted the position of Registrar at FAMU. Ms. Johnson’s first day of employment was July 7, 2008. Prior to that date, the position of Registrar had been vacant for some time. Ms. Johnson had previously worked for FAMU at a time not material to this proceeding. Ms. Johnson and Respondent knew each other from the time of Ms. Johnson’s previous employment there. In mid-June 2008, Respondent asked Roland Gaines, Vice President for Student Affairs, for Ms. Johnson’s telephone number so that she could contact Ms. Johnson regarding several matters related to her transition to employment at FAMU. Mr. Gaines’ assistant provided Ms. Johnson’s telephone number to Respondent. In mid-to-late June 2008, Respondent phoned Ms. Johnson to welcome her back to FAMU and to assist Ms. Johnson with her transition back to FAMU. During telephone conversations, Respondent asked Ms. Johnson if she needed Respondent’s assistance with securing employment related items such as a parking decal, name plate, business cards, and access into the building where the Registrar’s Office is located. Respondent also asked Ms. Johnson if she wanted Respondent to order signature stamps for the office. At all times relevant to this proceeding, Denise Jones was the Administrative Assistant for the Office of the Registrar. On June 26, 2008, Ms. Johnson sent an e-mail addressed to Respondent and Ms. Jones which stated as follows: Good morning ladies, Novella, thanks for contacting me and gathering pertinent information to assist with my arrival to FAMU. Attached are several copies of my signature, select one (a good looking clear one) and use for the documents & stamps needed in the office. Select from one of the Janet E. Johnson signatures. Please protect these signatures. In the past they should be destroyed once used. I look forward to seeing you all on the 7th. Janet E. Johnson Attached to the e-mail were several versions of Ms. Johnson’s signature, as referenced in the e-mail. After receiving Ms. Johnson’s e-mail, Respondent spoke to Ms. Jones, who provided Respondent with the name and phone number of the Tallahassee Stamp Company. Ms. Jones is the person who typically orders supplies for the Registrar’s Office through a requisitioning process. Respondent learned from Ms. Jones that the budget had not yet been approved to purchase office supplies. In late June or the beginning of July, Respondent called Tallahassee Stamp Company and spoke to an employee there. On July 2, 2008, Respondent sent an e-mail to Tallahassee Stamp Company wherein she placed an order for a signature stamp containing Ms. Johnson’s signature. The e-mail contained the same attachment that Ms. Johnson provided in her e-mail to Respondent and Ms. Jones. Respondent’s e-mail to the stamp company stated, “Good morning. See attached signature for a stamp. The third from the top.” At the time she placed the order for the stamp, Respondent did not inform anyone at FAMU that she had placed the order. On July 21, 2008, Ms. Jones prepared a requisition for five signature stamps containing Ms. Johnson’s name. On July 24, 2008, Ms. Johnson approved the requisition for the five signature stamps. In addition to her position as Office Manager at the Registrar’s Office, Respondent was the Head Coach of the FAMU women’s bowling team. On July 25, 2008, Respondent left to attend a funeral in Chicago for a student athlete who had been killed in a car accident. Respondent returned to work mid-day on July 29, 2008. On July 30, 2008, Respondent reported to work in the morning and then left for a doctor’s appointment. On the way back to work, she stopped by Tallahassee Stamp Company. She picked up one stamp with Ms. Johnson’s signature and paid for it with her personal funds. She then stopped for lunch and thereafter returned to work around 12:30 p.m. Upon returning to work, Ms. Sharla Givens, a Transcript Specialist in the Registrar’s office, walked by Respondent’s desk. Respondent then showed Ms. Givens the signature stamp she had just picked up from the stamp company and informed Ms. Givens that she had purchased it with her own funds. Ms. Givens describes her reaction to Respondent having the stamp as “shocked.” Respondent then went to the desk of Rosa Christie, the receptionist for the Registrar’s Office, and showed Ms. Christie the stamp. Ms. Christie’s desk is just outside Ms. Johnson’s office. Respondent informed Ms. Christie that she had purchased the stamp for Ms. Johnson and that Ms. Johnson should not have to wait until funds were available to receive a signature stamp. Ms. Christie told Respondent that that was “nice.” Respondent also told Ms. Jones and another staff member, Ms. Thomas, about having the signature stamp. That afternoon, at approximately 4:45 p.m., Respondent was called into Ms. Johnson’s office and received a written reprimand for a matter unrelated to the allegations which form the basis for this proceeding. This meeting took 20 to 25 minutes. Respondent did not inform Ms. Johnson that she had the signature stamp during this meeting or at any other time. Respondent was upset at having received a written reprimand. She prepared a written response which was ultimately submitted to the Assistant Registrar on August 5, 2008. Danielle Kennedy-Lamar is the Associate Vice President for Student Affairs and is in charge of enrollment management. Prior to the time that Ms. Johnson was hired as Registrar and for a short time thereafter, student transcripts were stamped by Ms. Kennedy-Lamar’s administrative assistant, Allison McNealy. Ms. McNealy learned from Ms. Givens that Respondent had a signature stamp. Ms. McNealy reported this to Ms. Kennedy-Lamar and inquired whether she, Ms. McNealy, would continue to stamp transcripts. On August 1, 2008, Ms. Kennedy-Lamar had a previously scheduled meeting with Ms. Johnson. During this meeting, Ms. Kennedy-Lamar asked Ms. Johnson if Ms. Johnson was aware that Respondent had a stamp bearing Ms. Johnson’s signature. Ms. Johnson informed Ms. Kennedy-Lamar that she was not aware that Respondent had a signature stamp. Ms. Kennedy-Lamar then instructed Ms. McNealy to ask Ms. Givens if she had any transcripts and, if so, to have Respondent stamp them. Ms. Kennedy-Lamar did this to determine whether such a stamp existed. Ms. Givens then delivered several transcripts to Respondent, asked Respondent to stamp the transcripts, and advised Respondent that Respondent had the authority to stamp the transcripts. Respondent did not immediately stamp the transcripts, but eventually stamped them as instructed. At the time she stamped the transcripts, Respondent did so with authorization form Ms. Kennedy-Lamar’s office. The transcripts then were returned to Ms. Kennedy- Lamar, who recalls that there were approximately 20 transcripts. Ms. Kennedy-Lamar then gave the stamped transcripts to Ms. Johnson. The stamped transcripts were not disseminated to the students or whoever requested them. Ms. Johnson thereafter instructed Ms. Jones to cancel the stamp order that she had previously authorized and prepared another signature to order a different signature stamp. At the time Respondent was instructed to stamp transcripts, the standard procedure was as follows: Ms. Givens or Ms. Thomas from the Registrar’s Office, or on some occasions Respondent, would bring printed transcripts to Ms. McNealy in Ms. Kennedy-Lamar’s office. Ms. McNealy would stamp the transcripts. Ms. McNealy would then notify Registrar staff that the transcripts were ready for pickup. Ms. Givens, Ms. Thomas, or on some occasions Respondent, would retrieve the stamped transcripts. Ms. McNealy did not conduct a review of the transcripts before stamping or ask Ms. Kennedy-Lamar to review them prior to stamping them. Roland Gaines is Vice-President for Student Affairs at FAMU. On May 8, 2008, Dr. James Ammons, President of FAMU, delegated to Mr. Gaines the authority to administer all applicable FAMU regulations, policies, and procedures affecting employment and personnel actions consistent with Chapter 10 of FAMU regulations. On September 18, 2008, Mr. Gaines wrote a letter to Respondent notifying her of the University’s intent to dismiss her from employment and placing her on leave with pay. The letter cites FAMU Regulations 1.019(4), 10.111(1), 10.111(2)(b), 10.302(3)(y), and 10.302(3)(cc) as authority, and states in pertinent part as follows: This employment action is being considered against you for the following alleged work violations: * * * This proposed employment action is being considered against [sic] for your alleged failure to follow the protocols established by the University Registrar’s Office for processing student transcript requests. In addition, you allegedly requested, via e- mail, the production of a facsimile stamp bearing the signature of the Registrar; used your personal funds to purchase the stamp; and embossed 43 transcripts totaling 140 documents which were released without appropriate review and approval by the designated University authority. The enclosed documents from the Division of Audit and Compliance provide further details of the subject allegations of misconduct. The September 18, 2008, letter also provides Respondent with an opportunity to request a predetermination conference to present an oral or written statement, or both, to refute or explain the charges against her. Respondent submitted a written response and a predetermination conference was held on September 29, 2008. On October 3, 2008, Mr. Gaines notified Respondent by letter that she was dismissed from employment effective at the close of business October 16, 2008. The letter again cited the same FAMU regulations which were cited in the September 18, 2008, letter and added no additional or different factual bases for Respondent’s termination. The October 3, 2008, letter also advised Respondent of her right to appeal this action. FAMU referred Respondent’s appeal of her termination to the Division of Administrative Hearings, and this de novo proceeding ensued.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Petitioner enter a final order rescinding its October 3, 2008, letter terminating Respondent from employment, thereby entitling Respondent to reinstatement to a comparable position, and appropriate back pay from the effective date of her termination until the date of reinstatement. DONE AND ENTERED this 23rd day of June, 2009, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of June, 2009.
The Issue Whether proposed Rules 69O-175.003, 69O-170.005-007, 69O- 170.013, 69O-170.0135. 69O-170.014, 69O-170.0141, 69O-170.0142, and 69O-170.0155 are valid exercises of delegated rulemaking authority.
Findings Of Fact Section 20.05, Florida Statutes, addresses the structure and powers of the Department. Section 20.05 provides as follows, in pertinent part: 20.05 Heads of departments; powers and duties.-- (1) Each head of a department, except as otherwise provided by law, must: * * * (b) Have authority, . . ., to execute any of the powers, duties, and functions vested in the department or in any administrative unit thereof through administrative units . . . designated by the head of the department, . . . unless the head of the department is explicitly required by law to perform the same without delegation. * * * (e) Subject to the requirements of chapter 120, exercise existing authority to adopt rules pursuant and limited to the powers, duties, and functions transferred to the department. The Financial Services Commission (Commission) was created within the Department pursuant to Section 20.121, Florida Statutes. However, the Commission is not “subject to control, supervision or direction by the Department of Financial Services in any manner.” § 20.121(3), Fla. Stat. The Commission is composed of the Governor and Cabinet, who collectively serve as the agency head of the Commission. Action by the Commission can only be taken by majority vote “consisting of at least three affirmative votes.” Id. OIR is a structural unit of the Financial Services Commission. Section 20.121(3) states in relevant part, as follows: Structure.— The major structural unit of the commission is the office. Each office shall be headed by a director. The following offices are established: 1. The Office of Insurance Regulation, which shall be responsible for all activities concerning insurers and other risk-bearing entities . . . * * * * Organization.-- The commission shall establish by rule any additional organizational structure of the offices. It is the intent of the legislature to provide the commission with the flexibility to organize the offices in any manner they determine appropriate to promote both efficiency and accountability. Powers.— Commission members shall serve as the agency head for purposes of rulemaking . . . by the commission and all subunits of the commission. . . . (emphasis supplied) Clearly, under the Department’s, the Commission’s and the OIR’s organizational structures, only the Commission may promulgate rules for both itself and OIR. The Department does not have rulemaking authority over areas that have been given to the Commission. On the other hand, nothing in the statute prohibits OIR, as directed by the Commission, to perform steps, preliminary to proposing a rule, that often occur in the rule development process prior to the actual Notice of proposed rulemaking. See also § 120.54, Fla. Stat. To that end, the Commission, by non-rule policy, has delegated authority to OIR to engage in rulemaking activities on behalf of the Commission. However, this delegation is not limited to rule development activities that occur prior to the Notice of proposed Rules, but authorizes publication of the Notice prior to approval by the Commission of any proposed language or policy statement. As indicated, the Notices for the proposed Rules were published in the Florida Law Weekly in November 2004, with various changes made thereafter. The proposed Rules were published as OIR rules. Disturbingly and misleadingly, all the Notices for the proposed Rules state that the agency head approved the Rule that is the subject of the Notice on September 3, 2004 or November 2, 2004. However, none of the proposed Rules were approved by the Commission, the agency head, prior to their publication as a proposed rule in the Florida Administrative Weekly. The specific agency authority listed in the Notices for promulgating the proposed Rules was Section 624.308(1), Florida Statutes. Section 624.308(1) grants the Department of Financial Services (Department) and the Financial Services Commission (Commission) the general authority to adopt rules, pursuant to Sections 120.536(1) and 120.54 in order to implement laws that confer duties upon them. The statute does not confer the authority on the Office of Insurance Regulation (OIR) to adopt rules. See § 624.05, Fla. Stat. The statutes that confer a specific grant of rulemaking authority over the areas of the laws implemented in the proposed Rules are Sections 627.0651 and 627.331, Florida Statutes. These two statutes confer specific rulemaking authority over certain areas of insurance ratemaking only to the Commission; specific rulemaking authority is not granted to the Department or to OIR. Other than rulemaking authority, the various duties assigned in the laws implemented by proposed Rules are given to OIR.
The Issue Whether Respondent violated Section 561.42(5), Florida Statutes.
Findings Of Fact At all times relevant and material to this proceeding, the Respondent, J. J. Taylor Companies, Inc. (Taylor), held license number 23-07951, series JDBW, authorizing it do to business as a distributor of alcoholic beverages. Taylor's place of business is located at 3505 North West 107th Street, Miami, Florida. On August 21, 1996, the Petitioner, Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco (Division), placed Miami Supermarket, a vendor holding alcoholic beverage license number 23-02486, on the cash on delivery list. The Division mailed written notice to Taylor and to Miami Supermarket. On August 28, 1996, the Division placed Miami Supermarket on the no sale list, barring all distributors from making sales of alcoholic beverages to Miami Supermarket. Miami Supermarket remained in this status until January 2, 1997. At the time Miami Supermarket was placed on the no sale list, the Division mailed notice of Miami Supermarket's status to Taylor. Each week for the four months following the placement of Miami Supermarket on the no sale list, the Division mailed written notice to Taylor that Miami Supermarket was on the no sale list. Written notice was also mailed to Miami Supermarket. Omar F. Revelo, the owner of Miami Supermarket, had no knowledge that his business was on the no sale list. Mr. Revelo does not recall receiving the notices from the Department. He speaks very little English, and it is very unlikely that if he did receive the notices in English that he could read them. Unaware that Miami Supermarket was on the no sale list, Mr. Revelo continued to buy alcoholic beverages from Taylor and other liquor distributors from August 28, 1996, to December 31, 1996, when he was advised by a special agent of the Division that Miami Supermarket was on the no sale list. When Taylor received the notice that Miami Supermarket was placed on the cash only list on August 21, 1996, the information was conveyed to the employee responsible for entering the data into the company's computer system. The next week when Taylor received the notice that Miami Supermarket was on the no sale list, the data entry employee failed to change the cash only entry to a no sale entry. Although Taylor received additional notices that Miami Supermarket remained on the no sale list, the data entry employee continued to fail to change the cash only entry to a no sale entry. According to Alfonso Cueto, the President and General Manager of Taylor, the Division sends out deletion notices when it changes the status of a vendor; therefore, when Miami Supermarket was changed from cash only to no sale Taylor would have received a notice deleting Miami Supermarket from the cash only list. According to Mr. Cueto, the data entry employee did not change the cash only entry when Taylor received other notices that Miami Supermarket was on the no sale list because the employee keyed the August 28th deletion notice improperly; therefore, he did not receive another deletion notice from the Division because the status of Miami Supermarket remained the same. Mr. Cueto's testimony concerning how the computer error occurred is unrebutted. Taylor uses a preorder system which requires that a salesperson be responsible for taking orders for alcoholic beverages from the vendor the day prior to the delivery, rather than have the delivery truck drivers take the orders and make the deliveries. The salesperson must check the computer to determine the status of the vendors before they process an order. Additionally, the salespersons are told to look at the premises of the vendor to determine if other brands of alcoholic beverages are being sold. During the period August 30, 1996, through December 27, 1996, Taylor made at least 36 cash only sales of alcoholic beverages to Miami Supermarket. The computer system at Taylor listed the status of Miami Supermarket as cash only during this time period, and the salespersons observed other brands of alcoholic beverages being sold at Miami Supermarket during this time period. Thus, the salespersons had no reason to know that Miami Supermarket was on the no sale list. As a safeguard against the salespersons violating the Division's rules, Taylor requires the salespersons to pay any fines against Taylor which are attributable to their actions.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered dismissing the administrative action against Respondent, J. J. Taylor Companies, Inc., d/b/a J. J. Taylor Distributing. DONE AND ENTERED this 11th day of July, 1997, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 11th day of July, 1997. COPIES FURNISHED: Miguel Oxamendi, Senior Attorney Department of Business and Professional Regulation 1940 North Monroe Street, Northwood Centre Tallahassee, Florida 32399-1007 Louis J. Terminello, Esquire 2700 Southwest 37th Avenue Miami, Florida 33133 Major Jorge R. Herrera 8685 Northwest 53rd Terrace, Suite 100 Miami, Florida 33166 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399 Richard Boyd, Director Department of Business and Professional Regulation Division of Alcoholic Beverages and Tobacco 1940 North Monroe Street Tallahassee, Florida 32399
The Issue At issue in this proceeding is whether the Respondent, Brian Pitts, treasurer for Justice-2-Jesus, a political committee, willfully violated Section 106.07(1), Florida Statutes, by failing to file a Campaign Treasurer's Report for the first quarter of 2008 (referred to herein as the 2008 Q1 CTR).
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing, and the entire record in this proceeding, the following findings of fact are made: Respondent is the treasurer for Justice-2-Jesus, a political committee that registered with the Division of Elections (Division) on December 12, 2007. Justice-2-Jesus registered by filing an "Appointment of Campaign Treasurer and Designation of Campaign Depository for Political Committees and Electioneering Communication Organizations" form, or Form DS-DE-6. Justice-2-Jesus designated Respondent, Brian Pitts, as its treasurer. Respondent signed the document, giving as his address 1119 Newton Avenue South, St. Petersburg, Florida. Also on December 12, 2007, Justice-2-Jesus filed a "Registered Agent Statement of Appointment," Form DS-DE 41, naming Calvester Benjamin-Anderson as its registered agent. Respondent signed the document and gave 1119 Newton Avenue South, St. Petersburg, Florida as the address of the registered agent. The Division sent a letter, dated December 14, 2007, to Respondent acknowledging receipt of the Form DS-DE-6 and providing information about the Division's electronic filing system for CTRs. The letter informed Respondent that all political committees that file reports with the Division are required to do so by means of the electronic filing system. The Division's letter concluded with the following paragraph, set out in bold type: All of the Division's publications and reporting forms are available on the Division of Elections' web site at http://election.dos.state.fl.us. It is your responsibility to read, understand, and follow the requirements of Florida's election laws. Therefore, please print a copy of the following documents: Chapter 106, Florida Statutes, 2006 Committee and Campaign Treasurer Handbook, 2007-2008 Calendar of Reporting Dates, and Rule 1S- 2.017, Florida Administrative Code. The Division's letter also enclosed a sealed envelope containing PIN numbers to allow Respondent secure access to the Division's electronic filing system in order to submit CTRs for Justice-2-Jesus. A CTR lists all contributions received and expenditures made during a given reporting period. The 2008 Q1 CTR is the report that a campaign treasurer should have filed on behalf of his committee at the close of the first quarter of 2008. Respondent's 2008 Q1 CTR was due to be filed on or before April 10, 2008. Candidates and political committees have been required to file their CTRs electronically since 2004. § 106.0705(2), Fla. Stat. The CTR data may be uploaded using any of several proprietary programs that have been approved by the Division. These programs carry a fee for their use. As an alternative, the treasurer may enter the CTR information directly into the Division's electronic filing system at no cost. The Division has published an online "Electronic Filing System (EFS) User's Guide" (the Guide) to explain the use of the electronic filing system. The Guide contains help menus to assist the user in completing the data entry for a CTR. The Guide is available in a PDF format that can be read online or downloaded to the user's computer at no cost. A user may also make a public records request to the Division for a hard copy of the Guide. The Division will provide the hard copy at a cost of $0.20 per double-sided page, or approximately $4.80 for the 47-page Guide. On or about April 11, 2008, the Division sent Respondent a letter informing him that it had not received the 2008 Q1 CTR for Justice-2-Jesus, which had been due on April 10, 2008. On or about April 25, 2008, the Division sent Respondent a second letter informing him that it had not received the 2008 Q1 CTR for Justice-2-Jesus. Both letters were sent to 1119 Newton Avenue South, St. Petersburg, Florida, the address provided by Respondent on the Form DS-DE-6 for Justice-2-Jesus. Neither letter was returned to the Division as undeliverable or unclaimed. At the hearing, Respondent did not deny receiving these letters in April 2008. On or about July 10, 2008, the Division sent to Calvester Benjamin-Anderson, the registered agent for Justice-2- Jesus, a final notice that Respondent had failed to file the 2008 Q1 CTR for Justice-2-Jesus. The letter was sent certified mail, return receipt requested. Ms. Benjamin-Anderson signed for the letter on or about July 14, 2008. Respondent testified that he attempted to hand-deliver a paper copy of the 2008 Q1 CTR to the Division, but that a Division employee told him that he was required to file all reports for his committee electronically. The Division's records indicate that Respondent had filed Justice-2-Jesus' 2007 Q4 CTR and its 2007 SR2 report2/ electronically, prior to the due date for the 2008 Q1 CTR. Erin NeSmith, a supervisor in the Bureau of Election Records, testified that Respondent came into the Division's offices on November 20, 2008. Respondent asked Ms. NeSmith questions about the 2008 Q1 CTR. She told him that the matter had already been referred to the Commission because Respondent had not filed the report despite repeated notices, but that Respondent still needed to file the 2008 Q1 CTR. Respondent explained to Ms. NeSmith that he had not filed the report because he had been busy and had a lot of items to pull together for the report. As of August 10, 2009, Respondent had yet to file the 2008 Q1 CTR for Justice-2-Jesus. At the hearing, Respondent testified that he had at least 50 contributions and 80 to 100 expenditures to report for the first quarter of 2008. Respondent testified that the due date for the 2008 Q1 CTR fell during the legislative session, when Respondent was extremely busy at the Florida Capitol. The Division's offices are open only during normal business hours, when Respondent was unavailable, and thus Respondent was unable to phone the Division for assistance in preparing the reports. Respondent defended his subsequent failure to file the report as something in the nature of a protest against the Division's electronic filing requirement and its alleged refusal to provide him with a paper copy of the Guide to facilitate his preparation of the report. Respondent complained that the vendors who provide Division-approved data uploading programs charge prohibitively expensive fees. He further complained that the alternative means of filing, direct entry of the data onto the Division's electronic filing system, is difficult and confusing without a paper copy of the Guide for assistance. Respondent acknowledged the availability of the Guide in printable PDF format, but asserted that purchasing printer cartridges and paper sufficient to print the Guide and other necessary Division handbooks would cost between $80.00 and $120.00. Respondent did not acknowledge the Division's willingness to print the Guide for $0.20 per double-sided page pursuant to a public records request. Respondent testified that he has assisted several other persons in preparing and filing their electronic reports to the Division. On behalf of Justice-2-Jesus, Respondent has electronically filed several reports to the Division subsequent to the due date for 2008 Q1 CTR. Willfulness is a question of fact. § 106.25(3), Fla. Stat. See Beardslee v. Fla. Elections Comm'n, 962 So. 2d 390, 393 (Fla. 5th DCA 2007); McGann v. Fla. Elections Comm'n, 803 So. 2d 763, 764 (Fla. 1st DCA 2001). Florida Administrative Code Rule 2B-1.002 provides: For purposes of imposing a civil penalty for violating Chapter 104 or 106, F.S, the following definitions shall apply: A person acts "willful" or "willfully" when he or she knew that, or showed reckless disregard for whether his or her conduct was prohibited or required by Chapter 104 or 106, F.S. "Knew" means that the person was aware of a provision of Chapter 104 or 106, F.S., understood the meaning of the provision, and then performed an act prohibited by the provision or failed to perform an act required by the provision. "Reckless disregard" means that the person disregarded the requirements of Chapter 104 or 106, F.S., or was plainly indifferent to its requirements, by failing to make any reasonable effort to determine whether his or her acts were prohibited by Chapter 104 or 106, F.S., or whether he or she failed to perform an act required by Chapter 104 or 106, F.S. The evidence established that Respondent was well aware of the requirement to file the 2008 Q1 CTR on behalf of Justice-2-Jesus. Shortly after Respondent filed the committee's initial paperwork, the Division sent him an acknowledgement letter directing him to the Division's website for information about the electronic filing of campaign treasurer's reports. Respondent could have downloaded the Guide or any other Division publication. At the hearing, Respondent claimed no lack of knowledge of the filing requirements. After he failed to file the 2008 Q1 CTR, Respondent received two letters from the Division notifying him of the failure. Despite these notices, Respondent never filed the report. The evidence established that Respondent electronically filed two reports with the Division prior to the due date of the 2008 Q1 CTR, and filed several electronic reports after the due date of the 2008 Q1 CTR. These facts demonstrate Respondent's knowledge of the filing requirements and ability to prepare an electronic report. Respondent has acted willfully in his failure to file the 2008 Q1 CTR for Justice-2-Jesus. At the hearing, Respondent asserted that Justice-2- Jesus was indigent, but offered no financial data to support the assertion.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: On or about January 28, 1977, at approximately 2:00 P.M., respondent Spencer, Clarence Jones, and John Aaron were all on duty as employees of the petitioner. The three men were dressed in City work clothes and were riding in a small truck with a City of Clearwater emblem on the side. John Aaron was driving the truck. As the City truck approached the intersection of Jones Street and Garden Avenue in Clearwater at a speed of about 5 miles per hour, it came upon three teenage pedestrians -- two girls and a boy -- walking on the left side of the rode. Driver Aaron said "Hey, now" or "Hey baby" to one or both of the girls. One of the girls said something offensive in reply. At that point, respondent Spencer asked Aaron to stop the truck. After two or three such requests, Aaron stopped the truck and respondent Spencer got out. By this time, the three teenagers had begun to walk away from the truck into a vacant field. Respondent Spencer walked up to the teenagers and one of the girls called him a "nigger" and continued to walk away. Spencer testified that the same girl swung at him with her fist. Neither Aaron nor Jones saw the girl make any threatening gestures toward respondent. After respondent was called a "nigger," he removed his belt and hit the girl twice with the belt as she was walking away. Respondent then returned to the City truck and the three employees drove off. By a "termination and dismissal notice," respondent was advised that he was dismissed as an employee of the City of Clearwater for his activities occurring on January 28, 1977. As causes and reasons therefor, petitioner listed three violations of Rule 14 of the Civil Service Rules of Clearwater. (Exhibit 4) Respondent timely filed his answer and explanation to the charges, petitioner did not accept the same and respondent therefore requested a hearing pursuant to City Ordinance Number 1643, S2-38. Pursuant to a contract between the City of Clearwater and the Division of Administrative Hearings, the undersigned Hearing Officer was duly designated to conduct the hearing. By an Agreement between the parties dated June 7, 1977, the parties recognized the recent ruling of the Circuit Court in and for Pinellas County (Civil Case No. 77-1023-7) which held invalid the referendum election amending the City's Civil Service System. Expressing doubt as to Whether the hearing should be held before the Civil Service Board or before a Hearing Officer appointed by said Board, the parties mutually agreed to waive any and all rights to a hearing before the Board, and to abide by the judgment rendered by the Board pursuant to the findings of the Hearing Officer pursuant to Ordinance Numbers 1643 and 1649, subject to the judicial review procedures established by law. (Exhibit 1)
Recommendation Based upon the findings of fact and conclusions of law recited above, it is recommended that the respondent's dismissal by the City of Clearwater be upheld and AFFIRMED. Respectfully submitted and entered this 13th day of July, 1977, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Frank X. Kowalski, Esquire Chief Assistant City Attorney Post Office Box 4748 Clearwater, Florida 33518 Ronald E. Smith, Esquire 308 South Garden Avenue Clearwater, Florida 33516
