The Issue Did Respondent, Universal City Development Partners (Universal), discharge Petitioner, Kevin D. Fischer, because of his age? Did Respondent, Universal City Development Partners (Universal), discharge Petitioner, Kevin D. Fischer, because of a handicap or a perception that he had a handicap?
Findings Of Fact Universal operates a theme park in Orlando, Florida. Universal employed Mr. Fischer as an Industrial Automation Technician (Electrical) for approximately 20 years. From May 27, 2011, until June 15, 2011, Mr. Fischer was on approved medical leave. After that, he returned to work with no activity restrictions. Mr. Fischer's date of birth is July 2, 1960. Universal discharged Mr. Fischer on July 11, 2011. Universal discharged Mr. Fischer for failure to properly clean a bilge pump on June 26, 2011, and for falsely certifying that he had cleaned the pump. Cleaning the pump was a preventative maintenance procedure that Mr. Fischer had performed for most of his career with Universal. The pumps are in the bilge or bottom of the boats used in Universal's Jaws ride. Each boat carries approximately 48 passengers around an artificial island in a man-made lagoon. The ride simulates the experience passengers might have boating in the waters depicted in the movies "Jaws" while the shark swam the waters. The boats ride on rails and are moved about by hydraulic arms. The bilge pumps are important protection for the $8,500.00, engines in the boats. If the pumps fail, water accumulates in the bilge and can cause very costly damage to the engines. On June 26, 2011, Mr. Fischer worked from 6:00 a.m. until 2:30 p.m. His duties that day included cleaning and servicing three bilge pumps. Mr. Fischer completed Universal's standard preventive maintenance form confirming he had cleaned and serviced the pumps. Mr. Christopher Cole, a former supervisor, examined the pumps after Mr. Fischer's shift ended. They had not been properly cleaned. The float switches were caked with sludge. If properly cleaned, they would not have been. The float switch is critical to operation of the pump. It turns the pump on when water reaches an unacceptable level in the bilge. Ricky Stienker, Mr. Fischer's supervisor at the time, terminated Mr. Fischer on July 11, 2011, for failure to properly clean the pumps and falsely representing that he had cleaned them. In 2008 and 2009, Mr. Fischer's annual reviews rated him as less effective. Then in 2010, the review rated Mr. Fischer as highly valued. But during his career, Mr. Fischer had received eight different counselings for poor performance. Mr. Fischer used Universal's appeal process to contest his discharge. David Winslow, senior vice president of the Technical Services Division, denied his appeal. There is no credible evidence of offenses committed by other employees of any age or physical condition that were similar to Mr. Fischer's failure to properly clean the pumps and his misrepresentation that he had cleaned them. Universal's employee handbook includes a clear policy requiring employees to be honest and trustworthy in all of their business activities and relationships. It also, clearly states that acts of dishonesty are grounds for immediate discharge. Mr. Fischer received the employee handbook when he began employment with Universal. Mr. Fischer has diabetes. His previous supervisor, Mr. Cole, knew this because he had observed Mr. Fischer taking medication that Mr. Cole also took. Mr. Cole also has diabetes and has had it for approximately 25 years. Mr. Cole did not perceive having diabetes as a handicap. There is no evidence that Mr. Stienker, who made the decision to discharge Mr. Fischer, knew Mr. Fischer had diabetes. There is no persuasive, credible evidence that Mr. Fischer had a handicap or that his supervisors or any management employee of Universal perceived Mr. Fischer as having a handicap. Consequently, there is no persuasive, credible evidence that a handicap or perception of handicap was a factor in Universal's discharge of Mr. Fischer. There is no evidence establishing who filled Mr. Fischer's position or the age of that person. There is no persuasive, credible evidence that Mr. Fischer's age was a factor in Universal's decision to discharge him.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations deny Mr. Fischer's Petition for Relief. DONE AND ENTERED this 17th day of August, 2012, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of August, 2012.
The Issue Whether petitioner should take disciplinary action against respondent for the reasons alleged in the administrative complaint?
Findings Of Fact Respondent Raymond C. Riddles has been certified as a law enforcement officer since September 1, 1971. He holds certificate number 090171. November 3, 1976 On November 3, 1976, Joseph A. Vi11ar, at the time a policeman with the Pensacola Police Department, arrested respondent Riddles at the wayside park off Gregory Street, near the northern end of Pensacola Bay bridge. In November of 1976, travelers, fishermen and other members of the public regularly made use of the park and the public bathrooms there. The park featured a double picnic table and ten or twelve other picnic tables. The old bridge across Pensacola Bay had been halved, and the park was near the end of one of the halves used as a fishing pier. The park had also gained notoriety as a meeting place of homosexuals: on two nights in 1974 police arrested 18 persons on various charges. On the night of November 3, 1976, Mr. Villar, wearing blue jeans and a pullover to disguise the fact that he was a policeman, entered the men's room in the park, after respondent Riddles called him into the bathroom. In the bathroom, Mr. Riddles beckoned Mr. Villar to a stall and, from the adjoining stall, asked if he wanted to "fool around." The partition between the toilet stalls had been to some extent removed; Villar's view of Riddles was unimpeded. Riddles first addressed Villar with his back to him, then turned around, penis in hand, continuing to masturbate. At this point, Mr. Villar placed him under arrest. Eventually Mr. Riddles stood trial on charges arising out of the incident, and was found guilty of lewd and lascivious behavior in a public place. September 12, 1984 In September of 1964, complaints that men were romping through the woods in various states of undress at a place called the Old Chimney, an abandoned steam plant site near the Scenic Highway, reached the Pensacola Police Department. As a result, on September 12, 1984, Jim Leath, a supervisor with the Pensacola Police Department, in charge of the vice unit, visited the site. Numerous persons of various sexual persuasions had come to use the area as a park. Vehicles were parked along the road, including one in which Mr. Leath spotted a Florida Highway Patrolman Auxiliary cap. Walking down a footpath, Mr. Leath came to respondent Riddles at about one o'clock in the afternoon. He recognized Mr. Riddles as someone he had seen before and remembered the cap he had noticed through the window behind the back seat in a vehicle parked in the area in which he himself had parked. Mr. Riddles stood next to a tree. A conversation arose between the two men, during which Mr. Riddles rubbed his crotch. Mr. Riddles said that he came to the Old Chimney on a regular basis to meet people, then turned away, withdrew his penis from his trousers and turned back, displaying his semi-erect penis. Only seconds had elapsed when Mr. Riddles heard someone else approach, left off stroking his penis, tucked himself in, and zipped his trousers up. Mr. Leath returned to the parking lot and made a note of the license tag number of the vehicle with the cap. He later determined that the vehicle was registered to Mr. Riddles, and located a photograph of Mr. Riddles. Eventually he obtained a warrant and arrested Mr. Riddles. In due course, Riddles pleaded nolo contendere to lewd and lascivious behavior, and to exposure of sexual organs. He was adjudicated guilty of these offenses and placed on six months' probation, on conditions including that he pay $20 a month and stay out of the area of the Old Chimney.
Findings Of Fact At all times material hereto, Respondent, William Losciale, was a licensed registered pool contractor in the State of Florida, having been issued license number RP-0032951, by the State of Florida, and was the qualifier of Lynn Pools. On June 9, 1987, Respondent entered into a contract with Kevin D. Foy for the construction of a pool with a screen enclosure on Mr. Foy's property for the sum of $12,000.00. On August 12, 1987, Mr. Foy made his final payment to the Respondent for the pool and enclosure and all related work. On June 9, 1987, Respondent entered into a contract with Harold Orcutt for the construction of a pool with a screen enclosure on Mr. Orcutt's property for the sum of $18,015.00. On August 1, 1987, Mr. Orcutt made his final payment to the Respondent for the pool and enclosure and all related work. On May 12, 1987, Respondent entered into a contract with Ann McAuley for the construction of a pool with a screen enclosure on Ms. McAuley's property for the sum of $14,204.08. On September 18, 1987, Ms. McAuley made her final payment to the Respondent for the pool and enclosure and all related work. At the end of September, 1987, the Respondent entered into an oral contract with Paragon Aluminum Products, Inc. to have Paragon Aluminum Products, Inc., install the pool enclosure at the Foy residence, pursuance to the Respondent's contract with the Foys. The total Paragon contract price was $3,975.00 which was to be paid by the Respondent to Paragon within two weeks of October 6, 1987, which was the completion date. The Respondent failed to pay that amount in a timely manner. On or about July 16, 1987, the Respondent entered into an oral contract with Paragon Aluminum Products, Inc. to have Paragon Aluminum Products, Inc., install the pool enclosure at the Orcutt residence pursuant to the Respondent's contract with the Orcutts. The total Paragon contract price was $4,910.00, which was to be paid by the Respondent to Paragon within two weeks of the first part of August, 1987, which was the completion date. The Respondent made a partial payment on August 17, 1987, of $3,015.00 and the balance of $895.00 was not paid in a timely manner. On or about July 20, 1987, the Respondent entered into an oral contract with Paragon Aluminum Products, Inc. to have Paragon Aluminum Products, Inc., install a pool enclosure at the McAuley residence pursuant to the Respondent's contract with Ms. McAuley. The total Paragon contract price was $4,321.00 which was to be paid by the Respondent to Paragon within two weeks of August 5, 1987, which was the completion date. The Respondent made a partial payment on September 12, 1987, of $2,704.08 which left a balance of $1,616.92 which was not paid in a timely manner. When the Respondent failed to timely pay Paragon Aluminum Products, Inc., at the end of the foregoing jobs, an officer of Paragon contacted the Citrus County Building Department in an effort to have that department aid her in collection of the monies owed. The Respondent admitted to an investigator of the Department of Professional Regulation on June 7, 1988, that he was having cash problems in relation to the three jobs, that all work had been completed, but due to those cash flow problems, Paragon had not been paid in full. The Respondent signed a personal promissory note for the full amount due to Paragon. No liens were ever filed by Paragon. The Respondent's county license was suspended the Citrus County Licensing Board on May 11, 1988, until he was able to show financial responsibility to that board. That suspension was lifted by the Citrus County Licensing Board on October 12, 1988. Respondent has previously been disciplined by the Florida Construction Industry Licensing Board.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Professional Regulation, Construction Industry Licensing Board, enter a Final Order and therein penalize the Respondent, William Losciale, as follows: Assess a fine of $1500 for the violation of Section 489.129(1)(i) Dismiss the remaining charges made in the Administrative Complaint. DONE and ENTERED this 19th day of October, 1989, in Tallahassee, Florida. DIANE K. KIESLING 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 19th day of October, 1989.
The Issue In her charge of discrimination Ms. Alexander alleges that her employer created a hostile work environment and unfair conditions of employment when it singled her out as a thief of a stolen purse, denied her overtime, disciplined her for the size of her earrings, and made insulting statements about African Americans. The issues in this proceeding are whether that discrimination occurred, and if so, what relief is appropriate.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the FCHR enter its final order dismissing the complaint by Felicia A. Alexander against Dynair. DONE AND ENTERED this 2nd day of August, 2000, in Tallahassee, Leon County, Florida. MARY 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 2nd day of August, 2000. COPIES FURNISHED: Sharon Moultry, Clerk Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Felicia A. Alexander Post Office Box 549 Sanford, Florida 32772-0549 Gabriel G. Marrero, Administrator Dynair Services, Inc. Two Red Cleveland Boulevard, Suite 205 Orlando-Sanford International Airport Sanford, Florida 32773 Dana A. Baird, General Counsel Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149
The Issue Whether the specifications set forth in Respondent's Invitation To Bid for Lease No. 590:2029 are in accordance with law.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: The Department of Health and Rehabilitative Services (Department) determines space need annually pursuant to a letter of agency staffing, primarily generated as a result of legislatively allocated new positions. Based on the letter of agency staffing showing the need for additional office space in the Inverness, Florida service area of the Department's District Three, the Department caused an ITB to be advertised regarding Lease No. 590:2029 seeking some 19,373 square feet of office space, plus of minus 3%. The Petitioners presently lease office space to the Department in the Inverness, Florida, District Three service area. This office space is located within the preferred zone set forth in Attachment B to the ITB. In addition to the presently leased space, the Petitioner intends to offer additional space within the preferred area. The Department's Leasing Manual HRS M 70-1 (Manual) sets out the procedure to be followed when the Department is seeking to lease office space of 2,000 square feet or more in privately owned buildings. Within this manual are the forms to be utilized for this purpose and, among other forms, is an ITB packet that contains a Bid Submittal Form (BSF) and, within the BSF is a page entitled Evaluation Criteria. The Department followed the procedure set forth in the manual in advertising for competitive bids on Lease No. 590:2029 for office space in Inverness, Florida service area of District Three and, in doing so, used the ITB packet that contains the BSF with the Evaluation Criteria page. The BSF, including the Evaluation Criteria page, is a slightly modified version of the Department of General Services' (DGS) Request For Proposal Submittal Form - BPM 4136, incorporated by reference in Rule 13M-1.015(3)(e), Florida Administrative Code, as a suggested format. The Evaluation Criteria page of the Department's BSF contains nine of the eleven evaluation criteria set forth on the evaluation criteria page of the BPM 4136, but does not place any limit on the weight of award factors as does BPM 4136 on two of the same criteria used by the Department. The Evaluation Criteria set out in paragraph C. 2. and 4. of BPM 4136 which corresponds to paragraph 1(a) and 2(c) of the Department's Evaluation page, provide that award factors for these two criteria should not exceed ten, whereas the Department does not place a limit on the award factors for any of the criteria. The two Evaluation Criteria on BPM 4136 that do not appear on the Department's Evaluation Criteria page address the availability of dining facilities and proximity of offered space to other Department activities and public services. Both the BSF and BPM 4136 are used in bidding for space in existing facilities and, therefore, require a scaled floor plan showing present configuration, with measurements that equate to the net rentable square footage using the Standard Method of Space Measurement. The BSF does not attach a "floor plan for suggested configuration of offices and rooms" as does the BPM 4136 but does provide the number, types and sizes of rooms to be placed in the existing facility. Both forms leave the final configuration of the floor plan to the successful bidder and the lessee. The Department's reasoning for not including a "suggested floor plan" is that this may reduce the number of prospective bidders due to the varied configuration of existing facilities in the bid area. The majority of the clients to be served by the Department in Citrus County, Florida reside within the preferred zone shown as Attachment B. However, there may be other areas where a lesser concentration of clients may be served by "outposting". That is, servicing those clients on a regular scheduled basis at other smaller facilities within an area outside of the preferred zone. The Department no longer requires the facility to be under one roof but how co-location is accomplished is important to the efficient utilization of services and supervision of staff. Elderly and handicapped clients experience difficulty in utilizing needed services (when more than one service is needed) because of distance between buildings. Department clients frequently utilize the services of more than one program and such multi-service utilization is projected to increase in the future. Public transportation in Citrus County, Florida is partially funded by the Department to assist its clients and is uniformly available to the clients in the Inverness services area. The Department did not prepare any studies of functional space needs, staff space needs, client needs, client demographics or client transportation needs before or after the ITB was advertised. The Evaluation Criteria did not include a factor for future expansion even though the Department's caseload is projected to increase. In accordance with the procedure set forth in the Manual an Evaluation Committee (Committee) was appointed to determine, among other things, the award factor or weight to be placed on the nine Evaluation Criteria set forth on the Evaluation Criteria page of the BSF. The committee determined the significance of the nine criteria on the Evaluation page to the Department's needs in regard to Lease No. 590-2029 and awarded a weight factor in accordance with the significance of the criteria. Those criteria most significant to the Department's needs received the highest weight. These award factors were added to the Evaluation page of the BSF at the time the ITB was advertised. No additional Evaluation Criteria were used by the Committee. There was insufficient evidence to show that Committee's action in determining the weight to be given the nine criteria was arbitrary or capricious or unlawful even though different weights had been placed on some of the same criteria in the 1988 ITB. Likewise, there was insufficient evidence to show that any of the specifications set forth in the ITB did not promote fair competition or otherwise reflect normal policy or, that the criteria were designed to favor a specific location or prospective bidder within the preferred zone. The procedure and the forms set forth in the Manual and used by the Department, including the procedure followed by the Evaluation Committee in putting together the ITB for Lease No. 590:2029, comports substantially with all substantive provisions of Chapter 13M-1, Florida Administrative Code, and more specifically with Rule 13M-1.015, Florida Administrative Code. The differences, such as they are, are not substantial, nor is there any extrinsic or intrinsic divergence from the substance of the rule such as to mislead any potential bidder who sought to address the ITB.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, accordingly, RECOMMENDED that a Final Order be entered by the Department dismissing Petitioners' Formal Notice of Written Protest. DONE and ENTERED this 2nd day of October, 1990, in Tallahassee, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of October, 1990. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 89-6017BID The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the Proposed Findings Of Fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by the Petitioner Adopted in Finding of Fact 1. - 3. Covered in the Preliminary Statement 4. 6. Adopted generally in Findings of Fact 4 - 11, otherwise not material or a restatement of testimony and stated as a finding of fact. 7. - 8. Not material or relevant. 9. - 22. Adopted generally in Findings of Fact 4 - 11, 15, 17 and 18, otherwise not material or a restatement of testimony and not state as a finding of fact. 23. - 24. Not material or relevant. 23. - 24.*Covered in the Conclusions of Law, otherwise not material or a restatement of testimony and stated as a finding of fact. 25. - 27. Adopted in Findings of Fact 2 and 16. 28. - 31. Not material. Adopted in Finding of Fact 16, otherwise a restatement of testimony and not stated as a finding of fact. - 37. Not material or a restatement of testimony and stated as a finding of fact. Specific Rulings on Proposed Findings of Fact Submitted by the Respondent 1. Adopted in Finding of Fact 1. 2. - 3. Not material. 4. 6. Adopted in Findings of Fact 14, 15 and 13, respectively. 7. - 9. Not material. 10. - 12. Adopted in Findings of Fact 11, 12 and 13. 13. - 15. Rejected as not being supported by substantial competent evidence in the record. 16. Adopted in Finding of Fact 13. 17. Not material. 18. Adopted in Finding of Fact 11. 19. - 22. Not Material COPIES FURNISHED: Thomas V. Infantino, Esquire Post Office Drawer 30 Winter Park, FL 32609 Arthur R. Shell, Esquire 1000 Northeast 16th Avenue Gainesville, FL 32601 Sam Powers, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, FL 32399-0700 Linda Harris, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, FL 32399-0700 Case No. - 89-6017BID
The Issue Whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Charge of Discrimination filed by Petitioner on August 7, 2012.1/
Findings Of Fact At the time of her termination from employment on August 19, 2011, Petitioner had been employed by Respondent for approximately 18 years. For approximately the last 10 years of her employment, Petitioner was a member of the wait staff at Lombard's restaurant, a full service restaurant located within the Universal Studios theme park. In her Charge of Discrimination, Petitioner alleges that Respondent discriminated against her on the basis of "age." The Charge of Discrimination provides as follows: I am 65 years old. I was hired by Universal Studios as a [s]erver in March 1994. Starting in June 2011, a new computer system was installed. I made several errors, and received abusive comments from Kira, Assistant Manager. In July 2011, I was belittled in front of other employees and received fewer tables than other employees. I became flustered when Kira spoke to me [and] I complained to Mark, [the] Manager. Kira claimed that she would stop, however, she continued. On August 18, 2011, I was separated from employment. No reason was given for the above named actions. I believe that I was discriminated against due to my age/65. . . . On March 23, 2011, Petitioner's work-related performance was evaluated by Respondent. Petitioner's evaluation noted that she was a highly valued employee. A considerable portion of Petitioner's evaluation was completed by Ms. Reis, who was Petitioner's immediate supervisor. Respondent has a food product policy which provides in part that "[i]tems presented for guest purchase are not to be consumed by a team member, unless prior purchase is made while the team member is on break. The team member must obtain management signature on their receipt." The food product policy also provides that "[v]iolation of this policy is considered theft and will merit the appropriate disciplinary action per Universal guidelines up to and including termination." The food product policy applied to Petitioner, as a member of the wait staff. On or about August 16, 2011, Kira Reis observed Petitioner carrying a cup of espresso, which is an item that is sold by Lombard's to its guests. Ms. Reis credibly testified that as she walked towards Petitioner, she noticed that Petitioner moved her hand, which was holding the cup of espresso behind her back. Petitioner's conduct reasonably caused Ms. Reis to believe that Petitioner was trying to conceal the espresso. Noting Petitioner's odd behavior, Ms. Reis went to the area where Petitioner got the espresso and questioned the employee working in the area about whether Petitioner paid for the espresso. Ms. Reis was advised by the employee that Petitioner did not pay for the espresso. Armed with this information, Ms. Reis approached Petitioner and questioned her about the purchase of the espresso. When initially asked by Ms. Reis if she had purchased the espresso, Petitioner stated that she had in fact done so. This was a lie. Upon further questioning, Petitioner admitted that she did not pay for the espresso and that she lied to Ms. Reis when questioned about the same. Respondent terminated Petitioner's employment on August 19, 2011, for violating the food product policy. Petitioner claims that she lied about having purchased the espresso because her judgment was impaired for reasons related to an abscessed tooth. Petitioner also claims that she lied about the espresso because Ms. Reis used a harsh tone of voice when questioning her about the purchase. According to Petitioner, Ms. Reis' tone caused Petitioner's "brain to freeze" and the resulting "frozen brain," when combined with her abscessed tooth, caused her to tell a lie. Petitioner's testimony in this regard is neither credible nor supported by expert opinion testimony. Petitioner offered no direct evidence that age was a factor in Respondent's decision to discharge her from employment. Petitioner's indirect evidence of discrimination consists of allegations that Ms. Reis was unfairly critical of Petitioner's work performance when compared to younger employees. Petitioner testified that she was the oldest person at Lombard's. Petitioner did not, however, offer evidence of the ages of other staff members. Ms. Reis credibly testified that there were other wait staff at Lombard's who are in the "general age category of Ms. Taylor." Petitioner makes only conclusory allegations as to how she was treated in comparison to other employees and these conclusory allegations are insufficient to prove that Respondent harbored impermissible discriminatory animus towards Petitioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order finding that Respondent, Universal Studios, did not commit an unlawful employment practice as alleged by Petitioner, Margaret G. Taylor, and denying Petitioner's Charge of Discrimination. DONE AND ENTERED this 7th day of January, 2014, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of January, 2014.
The Issue The issue for consideration in this case is whether Respondent’s certification as a residential contractor should be disciplined because of the matters alleged in the Administrative Complaint filed herein.
Findings Of Fact At all times pertinent to the issues herein, Respondent, Gary L. Walters, was certified as a residential contractor in Pinellas County, Florida, and operated under license C-5600, (RR0065537). On October 78, 1997, Respondent submitted a proposal to Kimberly Solano to construct a 1,048 square foot second story addition to her residence located at 552 180th Avenue in Redington Shores, Florida. The proposal specifically described the work to be done by Respondent, and indicated a contract price of $46,840. Construction began under the terms of the contract, and over the course of the time Respondent worked on this job, Ms. Solano paid him a total of $44,600 for labor, materials, and other expenses. The amount paid constitutes approximately 95.5 percent of the contract price for the entire project. Included in the $44,600 that Ms. Solano paid to Respondent was $5,000 for trusses purchased by him from Florida Forest Products. However, on February 11, 1998, Ms. Solano was served with a Notice To Owner by the supplier indicating that the trusses ordered by Mr. Walters for the Solano property had not been paid for, and that if the amount due was not paid in full, a lien could be filed against her property. As a result, on April 17, 1998, Ms. Solano paid Florida Forest Products $1,000, and on May 4, 1998, paid the company the balance due of $1,429.80. Respondent stopped working on this project in January 1998. Ms. Solano called him repeatedly thereafter, but he consistently refused to resume work on her project. Finally, toward the end of February 1998, Respondent demanded more money to continue working on the project. At that point, Ms. Solano was unable to pay any more. Ms. Solano had borrowed $50,000 to pay for the project, and was initially prepared to pay up to that amount, pursuant to the contract. She was not prepared to pay more than that. However, Respondent’s failure to complete the work for which he contracted resulted in damage to the existing structure, and to keep that from continuing, Ms. Solano was forced to raise additional funds to get the construction completed, albeit in a piecemeal fashion. The project, as of the date of final hearing, was still not completed, and Pinellas county building authorities have not issued a certificate of occupancy for it. Nonetheless, in addition to the $44,600 paid to Respondent, and the $2,429.80 paid to Florida Forest Products, Ms. Solano had paid an additional $24,841.53 for labor, supplies, and other services necessary to the completion of the project. Ms. Solano filed a complaint against Respondent with the Board. In his response to the complaint, which he filed on July 16, 1998, Respondent contended that the engineer who designed the project changed the size and dimensions of the beams used in the floor framing after the contract price was set. Respondent contends he advised Ms. Solano that this change would add between $7,000 and $10,000 to the cost of the project. He claims that the money which should have gone to pay for the trusses was eaten up by the increased costs of the beams, and his only misconduct was in continuing to work on the project without final drawings. In his written statement submitted the day of the hearing, Respondent contends that the actual agreed cost of the project was much higher than that noted in the contract. The lower figure was stated therein only to circumvent the 50 percent rule of the Federal Emergency Management Agency, and that Ms. Solano knew it. In fact, Respondent claims, there was an oral agreement for an additional $25,000 to $30,000 to be paid to him. Ms. Solano categorically denies this and that claim is rejected. Taken as a whole, the evidence clearly demonstrates that Respondent entered a contract for a sum certain and was paid in excess of ninety-five percent of the contract price. He abandoned the project before it was completed, and when far less than 95 percent of the project had been accomplished. His abandonment of the project caused financial harm to the owner of the property and constitutes misconduct in the practice of contracting. Petitioner seeks to suspend Respondent’s certificate as a residential contractor for ten years. Under the circumstances of this case, that would appear to be an appropriate action.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Pinellas County Construction Licensing Board enter a Final Order suspending Respondent, Gary L. Walter’s, certification as a residential contractor in Pinellas County for a period of ten years. DONE AND ENTERED this 31st day of December, 1998, in Tallahassee, Leon County, Florida. _ ARNOLD H. POLLOCK 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) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of December, 1998. COPIES FURNISHED: William J. Owens Executive Director Pinellas County Construction Licensing Board 11701 Belcher Road Suite 102 Largo, Florida 33773-5116 Gary L. Walters 7163 121st Way North Seminole, Florida 33772 Carl Brody, Esquire Office of the County Attorney Pinellas County 315 Court Street Clearwater, Florida 34616
The Issue In an order dated January 29, 1992, the State of Florida, Commission on Ethics found probable cause that the Respondent, as a city commissioner of the City of Cottondale, violated Section 112.313(7)(a), Florida Statutes, by having a contractual relationship with a business entity which was doing business with the city. The issue in this proceeding is whether the violation occurred and, if so, what penalty should be recommended.
Findings Of Fact Leonard Norsworthy served two two-year terms as a city commissioner for the City of Cottondale, a small community in the Florida panhandle. His tenure spanned from 1987 until July 1991. Mr. Norsworthy is sole proprietor of J. & L. Housepainting and Remodeling (J & L), a roofing and remodeling business. He has a State of Florida contractor's license. Sometime in 1990, the City of Cottondale, through its grants coordinator in Tallahassee, sought and obtained Community Development Block Grant (CDBG) funds for various needed public works. The project was advertised, and a bid was awarded to T & A Utilities Contractors, Inc. (T & A), a Lynn Haven, Florida, firm owned by Charles Williams. The total contracted amount of $244,282 included resurfacing two streets, a parking lot, a children's park, 8-inch water lines, and renovations to the city hall. Not all of the work was done immediately, as the city needed to get various permits. Due to changes in the scope of work, additional money became available for other projects, including renovating a public bathroom to make it accessible for handicapped persons. Some of the work was subcontracted by T & A to other firms. Charles Williams did not advertise for bids for the subcontracted work, but obtained proposals. He had obtained proposals from some Panama City firms for the bathroom and city hall renovations because he was not aware of firms closer to Cottondale. "Pete" Hilton was Cottondale's Public Works Director for eight years until he left in October 1992 for medical reasons. He told Charles Williams that he knew someone who could do the work for a good price, and shortly thereafter Leonard Norsworthy called Williams. Mr. Norsworthy's proposal was less than the prices quoted by the Panama City firms, and on June 5, 1991, T & A subcontracted with J & L for the renovation work for a total amount of $8,460. The sum was paid in three releases. The jobs performed by Mr. Norsworthy under the subcontract included redoing the bathroom and a handicap ramp entrance, installing rain gutters, removing a wall and plastering and finishing a wall. At no charge for his labor, Mr. Norsworthy also painted the building. Leonard Norsworthy knew about the city's revitalization contract with T & A because he was a city commissioner at the time. While the city was a party to the contract, the specifications and the background work were handled by the city engineer, who recommended the award to T & A. Leonard Norsworthy admits that he did the work and says, "You live and learn." He concedes that there are others in the area who could have done the work, but believes he gave a good price for the job. He says that work is scarce in the area and you have to take it where you find it. He knew that the law prohibited doing business with one's own agency, but he had no idea that the prohibition extended to subcontracts as well.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED: That the Commission enter its final order and public report finding that Leonard Norsworthy violated Section 112.313(7), Florida Statutes, and recommending a penalty of $300.00. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 12th day of April 1993. MARY CLARK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of April 1993. COPIES FURNISHED: Craig Willis, Esquire Michael Ingraham, Esquire Department of Legal Affairs The Capitol, Suite 1502 Tallahassee, Florida 32399 Leonard Norsworthy Post Office Box 299 Cottondale, Florida 32431 Bonnie Williams, Executive Director Ethics Commission Post Office Box 6 Tallahassee, Florida 32302-0006 Phil Claypool, General Counsel Ethics Commission Post Office Box 6 Tallahassee, Florida 32302-0006
The Issue Whether Respondent discriminated against Petitioner in employment in violation of the Florida Civil Rights Act of 1992.
Findings Of Fact At all times relevant hereto, Petitioner was employed by Respondent as a patient transporter. On December 27, 2018, Petitioner sustained a back injury while on the job. Petitioner reported the injury to Lora Vitali, Director of Colleague Health, Respondent’s employee healthcare department. Ms. Vitali instructed Petitioner to take the rest of the day off work and treat the injury with ice and ibuprofen. On December 28, 2018, Petitioner returned to Colleague Health and reported that she was still in pain. Colleague Health nurse, Monica Hubmann, arranged massage therapy and pain medication for Petitioner and instructed her to report back to Colleague Health on Monday, December 31, 2018, for further evaluation. Petitioner presented to Colleague Health on December 31, 2018, and reported that she was still in pain. Nurse Hubmann referred Petitioner to Dr. Spencer Stoetzel, who evaluates and treats Respondent’s employees who are injured on the job. Dr. Stoetzel is employed by North Florida Sports Medicine & Orthopaedic Center, not Respondent. At Dr. Stoetzel’s direction, Petitioner received regular treatment, including both physical and occupational therapy, until March 25, 2019. Petitioner was on workers’ compensation leave from work during her treatment. On March 25, 2019, Dr. Stoetzel cleared Petitioner to return to work with no restrictions and a 0% impairment rating. Based on Dr. Stoetzel’s conclusion, Ms. Vitali released Petitioner to return to work effective March 26, 2019. Ms. Vitali informed Petitioner of her release to work on March 25, 2019. Petitioner’s supervisor placed Petitioner on the work schedule after she was released to return to work, but Petitioner did not return to work as scheduled, and did not return any one of several telephone calls from her supervisor. Therefore, Respondent discharged Petitioner for job abandonment. Petitioner disputes her dismissal for job abandonment because she maintains that she was unable to work due to continuing pain. Petitioner disputes Dr. Stoetzel’s conclusion that she could return to work beginning March 26, 2019. Petitioner testified that Dr. Stoetzel told her that, based on the results of magnetic resonance imaging (“MRI”), she had a lumbar tear in the L4-L5 region, yet the discharge summary excluded the results of the MRI. The discharge summary refers only to a “[l]umbar sprain or strain with discrepant pain as well as radicular symptoms [pain radiating down the leg].” In the discharge summary, Dr. Stoetzel concludes, “There is really nothing further I have to offer.” Petitioner testified that her pain is continuous, has increased in severity, and prevents her from wearing shoes, driving, doing household chores, and caring for her children. Ms. Pride testified that her daughter is in constant pain and that Ms. Pride has assumed care of her grandchildren during the day when Petitioner’s husband is at work. Petitioner maintains that she has been unable to work due to her injury from December 27, 2018, through the date of the final hearing. Petitioner did not introduce any evidence of discrimination on the basis of her race, sex, or in retaliation for engaging in a protected activity. With regard to age discrimination, Petitioner testified that Dr. Stoetzel once commented that her back pain was due to her age. Petitioner’s PRO includes no references to discrimination based on her age, sex, race, or in retaliation for engaging in a protected activity.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission issue a final order finding that Tallahassee Memorial HealthCare, Inc., did not discriminate or retaliate against Petitioner, and dismissing Petitioner’s Petition for Relief in Case No. 2019-18837. DONE AND ENTERED this 9th day of September, 2020, in Tallahassee, Leon County, Florida. COPIES FURNISHED: Tammy S. Barton, Agency Clerk S SUZANNE VAN WYK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of September, 2020. Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020 (eServed) Elaine Williams 411 Earline Hobbs Road Quincy, Florida 32351 Gerald D. Bryant, Esquire Pennington, Moore, Wilkinson, Bell & Dunbar, P.A. 2nd Floor 215 South Monroe Street Tallahassee, Florida 32301 (eServed) Stephanie Clark, Esquire Pennington, P.A. Suite 200 215 South Monroe Street Tallahassee, Florida 32301 (eServed) Cheyanne Costilla, General Counsel Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020 (eServed)
