Findings Of Fact Mitchell is a highway construction contractor with its principal place of business located in Tallahassee, Florida. FDOT is the agency of the state of Florida which is responsible for the construction and maintenance of the roads designated as part of the State Highway System. On July 15, 1994, the parties entered into Contract No. 18,784 (contract) which required Mitchell to resurface the existing roadway, construct four (4) foot wide paved shoulders and perform other related work for $626,347.44 in State Project No. 59100-3512 (project) in Wakulla County, Florida. The contract incorporated by reference special provisions attached thereto and FDOT's Standard Specifications for Road and Bridge Construction (1991) (Standard Specifications). The contract required Mitchell to complete the project within 84 calendar days. Construction began on August 31, 1994, which was contract day one (1). In order to construct and pave the shoulders, Mitchell had to remove the top soil and stabilize the subgrade. After removing the top soil, Mitchell hauled borrow material to the project site. Mitchell spread the borrow along the roadside and mixed it with the existing sub-soil. Mitchell then attempted to attain a certain required density by compacting the shoulders. Mitchell hauled borrow to the project site from October 5, 1994, through October 8, 1994, and on October 13, 1994. Mitchell rolled the surface of the shoulders on October 18, and 20-22, 1994. The contractor was unable compact the subgrade to the required density. On or about October 22, 1994, FDOT refused to pay Mitchell for additional material to reestablish grade on the shoulders. From approximately October 24, 1994, through November 11, 1994, Mitchell remixed and compressed the subgrade soil in an unsuccessful attempt to stabilize the shoulders. From October 25, 1994, through November 7, 1994, Mitchell wrote at least four (4) letters to FDOT discussing the problems at the project site in achieving required density and stabilization of the subgrade on the shoulders. These letters are not a part of the record in this case. However, the hearing transcript from February 15, 1995, clearly shows Mitchell's position: (1) Plastic materials beneath the subgrade (unexpected conditions not contemplated under the contract) were causing a delay on the project and preventing Mitchell from achieving the required density and stabilization of the subgrade; (2) Mitchell would have to excavate the plastic material and haul in additional borrow to reestablish the grade of the shoulders before stabilization could be obtained; (3) Mitchell needed an extension of time in which to complete the project; and (4) Mitchell wanted FDOT to pay for the expenses (not covered under the contract) that Mitchell would incur in curing the problem. On or about November 11, 1994, Mitchell informed FDOT in writing that Mitchell was suspending work on the project. Mitchell suspended work without obtaining FDOT's approval as required by the contract. By letter dated November 14, 1994, FDOT responded to Mitchell's four (4) letters. FDOT's letter did not specifically deny each of Mitchell's requests but made it clear that Mitchell's claims were unsubstantiated. FDOT took the position that Mitchell created the problems with compaction by failing to follow FDOT procedures: (1) Prior to hauling in stabilizing material, Mitchell did not submit a sample of the existing on-site material so that a lime rock bearing ratio (LBR) could be established to determine how much, if any, stabilizing material would be needed to obtain the required LBR; (2) Mitchell did not submit samples or get FDOT's approval of the material used for stabilization before spreading and mixing it on the project site; (3) Mitchell did not sufficiently mix the material used for stabilization so that density could be obtained; (4) Soil samples of the material beneath the area being stabilized, to a depth of approximately three and one half feet, indicated that it was suitable for compaction; (5) The sources of borrow material used in attempting to stabilize the subgrade were not approved as required by the contract; (6) Mitchell added unapproved material, in excess of what was required, to the borrow material hauled to the project site. FDOT wrote this November 14, 1994, letter after investigating the problem and performing certain field and laboratory soil tests. On December 12, 1994, Stephen Benak, District Construction Engineer for FDOT, made a visit to the project site to conduct further investigation. Later that day the parties had a meeting. Mitchell again explained to FDOT that unexpected conditions at the job site were causing problems and preventing the contractor from obtaining density requirements on the subgrade. FDOT again informed Mitchell: (1) The unapproved borrow material that Mitchell previously hauled to the project site was unsuitable and causing the problem; and (2) Mitchell's proposal to under-cut (excavate and haul more borrow material) was a drastic cure and not compensable under the contract. Mitchell did not immediately return to work on the project. With credit for twenty-four (24) rain days, the contract performance time increased to 108 calendar days. Taking the rain days and intervening holidays into consideration, FDOT determined that the contract term expired on December 20, 1994. Mitchell did not return to work at the project site until December 23, 1994. By letter dated December 29, 1994, FDOT gave Mitchell notice of the agency's intent to declare Mitchell delinquent on the project and to suspend its Certificate of Qualification and that of all its subsidiaries. This letter states that Mitchell was making unsatisfactory progress on the contract because the contract time had expired and the work was not complete. The letter refers to section 8-8.2 of FDOT's Standard Specifications and Rule 14- 23, Florida Administrative Code. On January 12, 1995, Mitchell filed a Request for Formal Hearing without making an additional request for extension of contract time. This petition states: Mitchell Brothers has filed timely requests for extension of contract time due to the delays resulting from the lack of constructability and differing site conditions of the project. Therefore, the Department's issuance of the notice of delinquency is invalid. After receiving Mitchell's request for hearing, FDOT designated Tom Kinsella, Esquire, as counsel for the agency. By letter dated January 23, 1995, Mr. Kinsella referred Mitchell's request for a hearing to DOAH. The Hearing Officer issued a Notice of Hearing on January 27, 1995, setting this matter for hearing in DOAH Case No. 95-289 on February 8, 1995. In order to allow the parties sufficient time for discovery, the Hearing Officer subsequently rescheduled the case for hearing on February 15 and 16, 1995. The parties took depositions every day from February 2, 1995, to February 13, 1995. Bill Carpenter, FDOT's Project Engineer on the project at issue here, was the first deponent. Prior to Mr. Carpenter's deposition, Mr. Kinsella inquired as to whether there were any outstanding time requests. Mr. Carpenter assured Mr. Kinsella that FDOT had addressed and denied all outstanding time requests in FDOT's letter dated November 14, 1995. At the formal hearing in DOAH Case No. 95-289 on February 15, 1995, Mr. Benak testified on FDOT's behalf. On direct examination, Mr. Benak testified that Mitchell made no "proper" requests for contract time extensions. During cross-examination, Mitchell questioned Mr. Benak concerning Mitchell's letters written between October 25, 1994, and November 7, 1994. Initially, Mr. Benak testified that Mitchell's letters were not "formal" requests for extension of contract time. The Hearing Officer ruled that two of these letters contained preliminary requests for extension of contract time. Mr. Benak subsequently questioned whether Mitchell's letters were timely pursuant to section 8-7.3.2, Standard Specifications. Without resolving the issue of timeliness, Mr. Benak conceded that the delay was on-going and that the agency had never written to Mitchell requesting more specific information about the delay, i.e. all documentation of the delay and a request for the exact number of days justified to be added to the contract time. Therefore Mitchell was never required to submit a more formal request for contract time extensions. However, Mr. Benak never conceded that Mitchell's preliminary requests were pending at the time the agency issued its notice of intent to declare Mitchell delinquent or that the agency failed to follow its own procedures before issuing that notice. Mr. Benak maintained that the contract did not provide for extensions of contract time for delays due to the fault or negligence of the contractor. He testified that FDOT's letter dated November 14, 1994, effectively denied Mitchell's pending preliminary requests for time extensions and informed Mitchell that the delay was due to the contractor's fault or negligence. Accordingly, FDOT was not required to solicit further information from Mitchell before issuing the December 29, 1994, delinquency letter. As the hearing on February 15, 1995, progressed, it became apparent that the parties disputed a variety issues involving mixed question of fact and law. In ruling on an objection which is not at issue here, the Hearing Officer stated: * * It seems to me the more pertinent, you know, a much more pertinent area -- and we haven't addressed this in terms of the Department's procedures, that would start a request for extension of time, and it appears that the Department has never acted on that. And you've raised a very interesting matter, and that is under the rules, apparently if that process has been initiated, you can't go to delinquency, which means that this activity, this that they've tried to initiate, lacks the appropriate legal predicate. That's a good point. After the hearing in DOAH Case No. 95-289 recessed on February 15, 1995, Mr. Kinsella advised Mitchell's counsel that FDOT would withdraw the delinquency. Mr. Kinsella wanted to alert Mitchell that it was unnecessary for witnesses to attend the hearing the next day. When the hearing resumed on February 16, 1995, FDOT filed its Notice of Withdrawal of Notice of Delinquency and Motion for Relinquishment and Remand of Jurisdiction. The motion states, "The Department is now withdrawing it (sic) notice of intent to declare delinquincy without prejudice, it appearing that all of Mitchell Brothers, Inc., requests for additional time may not have been addressed by the Department." However, competent persuasive record evidence indicates that FDOT made this determination based on the Hearing Officer's prior rulings and statements during the hearing on February 15, 1995. Mr. Kinsella stated on the record: * * After the conclusion of the hearing yesterday on the basis of the matters that came up in terms of whether the preliminary requests for time extensions have been properly met by the Department and evaluated and addressed in the correspondence as pointed out by the Court, we went back and evaluated, and determined that we don't believe those have been fairly met and addressed by the Department, and that this delinquency was premature for that reason. Counsel for Mitchell did not object to the motion to relinquish jurisdiction but requested an opportunity to submit a proposed order. The Hearing Officer stated that Mitchell could file a motion to submit a proposed order and that FDOT would have an opportunity to respond to that motion. The Hearing Officer did not set a date certain for the filing of the posthearing motion but Mitchell's counsel stated that the motion would be filed in a very brief time, within a day or two. February 16, 1995, was a Thursday. The following Monday, February 20, 1995, Mitchell filed a Motion to Permit Submittal of Proposed Findings and for Entry of a Recommended Order, a proposed recommended order for the Hearing Officer's signature, and a Motion for Attorney's Fees. DOAH's Clerk docketed Mitchell's motion to submit proposed findings and the proposed recommended order in DOAH Case No. 95-289. The Clerk docketed Mitchell's motion for attorney's fees under DOAH Case No. 95-1096F. That same day, the Hearing Officer entered an Order Closing File which did not retain jurisdiction over any issue in DOAH Case No. 95-289. Subsequent relevant pleadings and procedures arising in the instant case between February 20, 1995, and June 14, 1995, are set forth above in the Preliminary Statement and incorporated herein. The record indicates that the parties were at an impasse when Mitchell suspended work on the project on or about November 11, 1994. After FDOT's November 14, 1994, letter and the meeting on December 12, 1994, the parties certainly were aware of each other's positions, and were deadlocked as to the reason for the delay in stabilizing the subgrade. The dispute between them involved multiple questions of fact and law which are not at issue here. FDOT's December 29, 1994, delinquency letter gave Mitchell what it was entitled to, i.e., a point-of-entry to challenge, in an administrative proceeding, FDOT's position that Mitchell created the conditions causing the delay in stabilizing the subgrade. FDOT had a reasonably clear legal justification for issuing that letter based on sections 8-7.3.2 and 8-8.2 of FDOT's Standard Specifications and Rule 14-23, Florida Administrative Code. The delinquency letter was not issued and subsequently filed with DOAH for an improper or frivolous purpose. As of February 15, 1995, the 165th calendar day of the project, Mitchell continued to work on the project which was only 36 percent complete and which FDOT had not conditionally accepted. Mitchell has incurred $44,408.50 in attorney's fees and $18,071.13 in cost in litigating DOAH Case No. 95-289 and DOAH Case No. 95-1096F. Mitchell is also obligated to pay $1,045.00 to Carolyn Raepple, Esquire, who testified concerning the reasonableness of the fees and costs that Mitchell incurred in DOAH Case Nos. 95-289 and 95-1096F. FDOT has presented no evidence to rebut the reasonableness of these fees and costs.
The Issue Whether the Motions for Rule Challenge Proceedings (referred to as Petition(s)) filed in each of the above-cited cases meet the requirements both in form and substance, pursuant to Subsection 120.56(4)(a), Florida Statutes (2004); Whether Respondent, Florida Commission on Human Relations (FCHR), has inherent authority to reconsider a Final Order it has issued; and Whether FCHR should adopt a rule which would permit the granting of a motion to reconsider a Final Order.
Other Judicial Opinions A party who is adversely affected by this order closing file is entitled to Judicial review pursuant to Section 120.68, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing one copy of a Notice of Appeal with the Agency Clerk of the Department of Management Services, 4050 Esplanade Way, Suite 160, Tallahassee, Florida 32399-0950, and a second copy, accompanied by filing fees prescribed by law, with the District Court of Appeal, First District, or with the District Court of Appeal in the Appellate District where the party resides. The notice of appeal must be filed within 30 days of rendition of the order to be reviewed. CERTIFICATE OF SERVICE I HEREBY CERTIFY that this Order Closing File was filed in the official records of the Department of Management Services and copies were furnished to: Larry D. Scott, Assistant General Counsel, Department of Management Services, 4050 Esplanade Way, Suite 160, Tallahassee, Florida 32399-0950; Jane M. Letwin, Esquire, 5426 SW 25" Avenue, Fort Lauderdale, Florida 33312, and Judge Claude B. Arrington, Division of Administrative Hearings, the DeSoto net Building, 1230 Apalachee Parkway, Tallahassee, Florida 32399-3060, this | a day of Quis, Us? ‘ , 2009. Debbie Shoup Clerk Department of Management Services (850) 487-1082 2 of 2 Jul 11 2009 11:41 a7/11/2889° 12:23 9549617454 PACK-SHIP&BEYOND PAGE 91/03 STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS GLORIA MARSHALL, Petitioner CASE NO: 08-3716 JUDGE ARRINGTON v. DEPARTMENT OF MANAGEMENT SERVICES, DIVISION OF RETIREMENT. Respondent. / PETITIONER’S AMENDED NOTICE OF VOLUNTARY DISMISSAL WITHOUT PREJUDICE PETITIONER, GLORIA MARSHALL, through undersigned counsel, hereby files this AMENDED PETITIONER’S NOTICE OF VOLUNTARY DISMISSAL WITHOUT PREJUDICE, on the following grounds: 1. Petitioner Marshall is not working for the employer since June of 2008, when she retired after a long career as an employee of the Broward County School Board. Most of the documents to be used in this petition are already in possession of Respondent and the attorney for Petitioner. 2. Petitioner patiently and conscientiously worked as an adult ed teacher from 1981 through 2005, a period of some twenty four years. EXHIBIT att Jul 11 2009 11:41 @7/11/2889 12:23 9549617454 PACK-SHIP&BEYOND PAGE 62/83 3. In view of the relationship between the Repondent and Petitioner, who has been enrolled several times in the FRS, Petitioner contends that the Respondent exercise its fiduciary duty to act in the best interests of the member by not opposing this dismissal without prejudice. 4. Petitioner contends that no prejudice to Respondent will result. 5. No expenses have been incurred thus far other than the transmission of employment records by the Respondent to undersigned counsel, and those will not change. If a plan has been proposed for the case by Respondent, that plan can be laid aside and will serve the same purpose in the future. 6. In light of the circumstances which prevail, to insist on the prosecution of this petition at this time will not serve the interests of justice. 7. Petitioner has indicated that she is unable to assist in this petition until the month of December 2009. 8, In addition, the goal sought in these proceedings is a very precious one, that is, a pension and social security fund which will influence the comfort or lack thereof of this petitioner’s last years, and is worthy of the Court’s indulgence in acknowledging this dismissal without prejudice. BASED ON THE FOREGOING recitation of facts, Petitioner files this ‘ Amended Notice of Voluntary dismissal without prejudice. Jul 11 2009 11:42 97/11/2009 12:23 9549617454 PACK-SHIP&BEYOND PAGE 43/03 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true copy of the foregoing has been fax-filed with the Department of Administrative Hearings and e-mailed to 850 922 6312, to Larry Dz. Scott, Esq., Asst. General counsel to DMS, 4050 Esplanade Way, Suite 160, Tallahassee, Florida 32399-0950 Eleventh day of July, 2009. LAW OFFICE OF JANE M. LETWIN Attorney for Petitioner: Florida Bar Number 990329 5426 SW 25" Avenue, Fort Lauderdale Fl 33312 Phone: 954 245 8495: Fax: 954 301 8401 E-mail; Janeletwintv@aol.com By * ou Jane M. Letwin
Findings Of Fact Petitioners are Dennis Coulter; J. Larry Hooper; L.C. Dairy, Inc. (hereinafter referred to as "L.C. Dairy"); and Wabasso Road Dairy, Inc. (hereinafter referred to as "Wabasso"). L.C. Dairy is a closely held Florida corporation. Mr. Coulter owns 50 percent of the stock of L.C. Dairy. Mr. Coulter also serves as L.C. Dairy's President. Wabasso is a closely held Florida corporation. Mr. Coulter and Mr. Hooper are officers and directors of Wabasso. Mr. Coulter and Mr. Hooper are, together, the majority stockholders of Wabasso. Between 1988 and 1997, Petitioners operated a dairy known as Willowbrook Farms Dairy, which consisted of approximately 2,000 cattle (hereinafter referred to as the "Dairy"). The Dairy was operated on property owned by Willowbrook Coal Company, d/b/a Willowbrook Farms (hereinafter referred to as "Willowbrook"). Willowbrook is a Pennsylvania general partnership. Mr. James Sartori is the general partner of Willowbrook. Willowbrook owned two adjacent parcels of property located in Brevard County, Florida. One parcel was used by Petitioners for the Dairy (hereinafter referred to as the "Dairy Parcel"). The other parcel, located to the west of the Dairy Parcel, was not directly used for grazing dairy cattle (hereinafter referred to as the "Non-Diary Parcel"). Respondent, St. Johns River Water Management District (hereinafter referred to as the "District"), is a public corporation with regulatory jurisdiction over the administration and enforcement of surface water management systems. On August 13, 1997, the District entered into an Agreement of Purchase and Sale with Willowbrook whereby the District acquired a conservation easement over the Dairy Parcel and acquired the Non-Dairy Parcel in fee (hereinafter referred to as the "Sales Agreement"). The Sales Agreement specifically provided that all cattle on the Dairy Parcel and the Non-Dairy Parcel had to be removed prior to closing. The terms of the Diary Parcel conservation easement also provided that concentrated animal feeding operations, including dairy operations, were prohibited. The total agreed purchase price for the fee interest in the Non-Dairy Parcel and the easement over the Dairy Parcel was $11,500,000.00. While the Sales Agreement was being negotiated by the District, the District was also negotiating with the National Resource Conservation Service (hereinafter referred to as the "NRCS") of the United States Department of Agriculture (hereinafter referred to as the "USDA") to sell a 30-year conservation easement over the Non-Dairy Parcel to the USDA. USDA was interested in purchasing the easement as part of a federally funded program known as the Wetlands Reserve Program. The USDA ultimately agreed to purchase a conservation easement over the Non-Dairy Parcel from the District for $4,200,000.00. This agreement was reached before closing on the Sales Agreement. No agreement was made between the District and the USDA specifying that the District would provide relocation assistance to any persons displaced as a result of the USDA's purchase of a conservation easement over the Non-Dairy Parcel. The Sales Agreement contained the following contingency: (B) This Agreement is contingent on Buyer entering into an Agreement with the United States of America for funding of a portion of the purchase price of the Conservation Easement for the Restrictions Parcel [the Non-Dairy Parcel] through the Wetlands Reserve Program of the Commodity Credit Corporation. On March 26, 1998, the USDA wired $4,200,000.00 to the District's Land Acquisition Revenue Bonds Project Funds Account. These funds were intended to be used for USDA's purchase of the conservation easement over the Non-Dairy Parcel. Closing on the Sales Agreement took place on March 30, 1998. Closing was initially held for the District's purchase of the fee interest in the Non-Dairy Parcel and the purchase of the conservation easement over the Dairy Parcel. Immediately after the completion of District's closing, a second closing was held on the purchase of the conservation easement over the Non-Dairy Parcel by the USDA. Disbursement of all purchase funds, including the $4,200,000.00 remitted by the USDA to the District and $7,300,000.00 in District funds, took place on March 31, 1998. The net result of the closings on the Sales Agreement was that the District purchased a conservation easement over the Dairy Parcel and the underlying fee interest in the Non-Dairy Parcel for $7,300,000.00 and the USDA purchased a conservation easement over the Non-Dairy Parcel from the District for $4,200,000.00. Pursuant to the terms of the Sales Agreement Petitioners were required to relocate their dairy operations. They incurred substantial costs in doing so. On or about April 9, 1998, Petitioners requested relocation assistance under the "Uniform Relocation Assistance and Real Property Acquisition Policies Act" 42 U.S.C. Sections 4601 et seq. (hereinafter referred to as the "Relocation Assistance Act"), and Section 421.55, Florida Statutes, from the District. By letter dated May 8, 1998, the District informed Petitioners that their request for relocation assistance was denied. On or about June 22, 1998, Petitioners filed a Petition for Formal Administrative Hearing with the District challenging the denial of their request for relocation assistance. The Petition was filed by the District with the Division of Administrative Hearings by Notice filed July 14, 1998.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the St. Johns River Water Management District denying Petitioners request for relocation assistance pursuant to the Relocation Assistance Act and Section 421.55, Florida Statutes. DONE AND ENTERED this 10th day of September, 1999, in Tallahassee, Leon County, Florida. LARRY J. SARTIN 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 10th day of September, 1999. COPIES FURNISHED: Kenneth G. Oertel, Esquire Oertel, Hoffman, Fernandez & Cole, P.A. Post Office Box 1110 Tallahassee, Florida 32302-1110 John W. Williams, Esquire Stanley J. Niego, Esquire St. Johns River Water Management District Post Office Box 1429 Palatka, Florida 32178-1429 Dykes C. Everett, Esquire Robert P. Major, Esquire Winderweedle, Haines, Ward and Woodman, P.A. 1500 NationsBank Center 390 North Orange Avenue Orlando, Florida 32801 Henry Dean, Executive Director St. Johns Water River Management District Highway 100, West Post Office Box 1429 Palatka, Florida 32178-1429
Findings Of Fact 8. The factual allegations contained in the Stop-Work Order and Order of Penalty Assessment issued on February 23, 2009, and the Amended Order of Penalty Assessment issued on February 25, 2009, which are fully incorporated herein by reference, are hereby adopted as the Department’s Findings of Fact in this case.
Conclusions THIS PROCEEDING came on for final agency action and Alex Sink, Chief Financial Officer of the State of Florida, or her designee, having considered the record in this case, including the Stop-Work Order and Order of Penalty Assessment and the Amended Order of Penalty Assessment served in Division of Workers’ Compensation Case No. 09-047-D7-09-WC, and being otherwise fully advised in the premises, hereby finds that: 1. On February 23, 2009, the Department of Financial Services, Division of Workers’ Compensation (hereinafter “Department”) issued a Stop-Work Order and Order of Penalty Assessment in Division of Workers’ Compensation Case No. 09-047-D7-09-WC to BEBEE ROOFING, INC. The Stop-Work Order and Order of Penalty Assessment included a Notice of Rights wherein BEBEE ROOFING, INC. was advised that any request for an administrative proceeding to challenge or contest the Stop-Work Order and Order of Penalty Assessment must be filed within twenty-one (21) days of receipt of the Stop-Work Order and Order of Penalty Assessment in accordance with Sections 120.569 and 120.57, Florida Statutes. 2. On February 23, 2009, the Stop-Work Order and Order of Penalty Assessment was served by personal service on BEBEE ROOFING, INC. A copy of the Stop-Work Order and Order of Penalty Assessment is attached hereto as “Exhibit A” and incorporated herein by reference. 3. On February 25, 2009, the Department issued an Amended Order of Penalty Assessment in Case No. 09-047-D7-09-WC to BEBEE ROOFING, INC. The Amended Order of Penalty Assessment assessed a total penalty of $86,762.54 against BEBEE ROOFING, INC. The Amended Order of Penalty Assessment included a Notice of Rights wherein BEBEE ROOFING, INC. was advised that any request for an administrative proceeding to challenge or contest the Amended Order of Penalty Assessment must be filed within twenty-one (21) days of receipt of the Amended Order of Penalty Assessment in accordance with Sections 120.569 and 120.57, Florida Statutes. 4. On February 25, 2009, the Amended Order of Penalty Assessment was served by personal service to BEBEE ROOFING, INC. A copy of the Amended Order of Penalty Assessment is attached hereto as “Exhibit B” and incorporated herein by reference. 5. On March 12, 2009, BEBEE ROOFING, INC. filed a petition for administrative review with the Department. The petition for administrative review was forwarded to the Division of Administrative Hearings on March 27, 2009, and the matter was assigned DOAH Case No. 09-1604. 6. On August 25, 2009, BEBEE ROOFING, INC. filed a motion with the Division of Administrative Hearings requesting cancellation of the hearing. 7. On August 26, 2009, the Administrative Law Judge issued an Order Relinquishing Jurisdiction and Closing File which relinquished jurisdiction to the Department for final agency action. A copy of the Order Relinquishing Jurisdiction and Closing File is attached hereto as “Exhibit C” and incorporated herein by reference.
The Issue Whether this cause is barred by a release of all claims.
Findings Of Fact On January 16, 2019, on her last day of employment with Respondent, Petitioner executed a General Release. Petitioner does not dispute that she signed the General Release, which states, in pertinent part: I knowingly and voluntarily release and forever discharge [Respondent] of and from any and all claims, known and unknown, anticipated and unanticipated, asserted and unasserted, which I have or may have against the [Respondent] as of the date of execution of this General Release. These released claims include, but are not limited to, any alleged violation of ... Title VII of the Civil Rights Act of 1964; the Americans with Disabilities Act; the Age Discrimination in Employment Act; the Family and Medical Leave Act; ... [and] the Florida Civil Rights Act[.] * * * By signing below, I am knowingly and freely waiving and releasing all claims I may have against the [Respondent]. I further affirm I have been given a sufficient amount of time to consider whether to sign this General Release. The subject complaint of discrimination was brought by Petitioner, after she signed the General Release, pursuant to the FCRA, which is specifically referenced as a released claim in the General Release. By executing the General Release, Petitioner released Respondent from the claims that were the basis for her complaint of discrimination. Petitioner asserts that the General Release was signed under duress, she did not give up her rights because she had not yet received her final paycheck or belongings, and that there is no proof that she received consideration for signing the general release.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a Final Order dismissing Kathy L. McKethan’s Petition for Relief due to a lack of jurisdiction. DONE AND ENTERED this 28th day of October, 2020, in Tallahassee, Leon County, Florida. S JODI-ANN V. LIVINGSTONE 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 28th day of October, 2020. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020 (eServed) Keith L. Hammond, Esquire Law Office of Keith L. Hammond, P.A. Post Office Box 547873 Orlando, Florida 32854 (eServed) Kathy McKethan Post Office Box 953304 Lake Mary, Florida 32795 (eServed) Cheyanne Costilla, General Counsel Florida Commission on Human Relations 1075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 (eServed)
The Issue The issues in this case are whether Respondent, A-1 Block Corp., discriminated against Petitioner, Harold E. Ford, Jr., on the basis of his race and/or color and in retaliation, and, if so, what remedy should be ordered.
Findings Of Fact Respondent is a family-owned business that manufactures concrete products, ready-mix concrete, concrete block, and precast concrete. Mr. Freeman has been the president of Respondent for approximately 10 years. Petitioner is an African-American male who was employed by Respondent at two different times. Petitioner was hired to work in several different capacities which included: ready-mix driver; block driver; dump truck driver; and/or loader operator. Mr. Caviglia serves Respondent in a supervisory position, and Mr. Caviglia made the decision to hire Petitioner as a truck driver in December 2009 (first employment). Respondent hired Petitioner at $12.00 an hour. Respondent terminated Petitioner’s employment in July 2011 (first employment termination). Mr. Freeman described the circumstances under which Petitioner was terminated as: Petitioner failed to unhook some type of ladder or other apparatus at a self-loading dock, and drove off causing approximately $4,000 to $5,000 of damage to Respondent’s truck and/or the dock. Respondent was responsible for making the repairs. At the time of his first employment termination, Petitioner was making $13.00 an hour. Approximately five months later, in December 2011, Mr. Caviglia re-hired Petitioner to be a truck driver for Respondent. The other drivers employed by Respondent wanted Petitioner to return. Petitioner was hired at $13.00 an hour (second employment). At various times during Petitioner’s employment with Respondent, Petitioner inquired about becoming a “dispatcher” for Respondent. Mr. Freeman indicated to Petitioner that he (Mr. Freeman) would think about Petitioner’s dispatcher request. However, one of the requirements for Respondent’s dispatcher position was the availability to work on Saturdays. Mr. Freeman knew that Petitioner had a second job which required Petitioner to work on Saturdays. Since 2004, Petitioner worked part-time as an attendant at a local funeral home, which required Petitioner to work some Saturdays. Petitioner was paid $75 per funeral; however, he did not know how much he had been paid since his second employment termination. Petitioner did not have any pay-stubs to reflect how much he had been paid by the funeral home. Petitioner continues to work for the funeral home. In October 2013, Petitioner caused damage to tires on a truck belonging to Respondent. Respondent incurred a financial loss as a result of the damaged tires. Petitioner was terminated from his second employment with Respondent on November 20, 2013. Petitioner alleged and testified that Mr. Caviglia threatened Petitioner at various times during Respondent’s operational meetings.3/ Two other witnesses, Mr. Timmons and Mr. Sandy, testified that they did not observe Petitioner being threatened at these meetings. Petitioner alleged that he was retaliated against based on his race. Petitioner claimed that he was directed to wash a white man’s truck. Petitioner refused to wash the truck. Respondent requires its drivers to wash the trucks that they drive each day. However, there was no evidence of any retaliation against Petitioner when he did not wash the other man’s truck. Petitioner alleged he asked for raises when he thought it appropriate, and was refused. Mr. Freeman paid his employees the going rate, and it was established that Petitioner was being paid $14 an hour when he was terminated. Mr. Timmons, a former employee of Respondent, received the same rate of pay for working as a driver or as a dispatcher for Respondent. Petitioner’s resumé was admitted into evidence as Exhibit C. Petitioner created this resumé in 2011, and revised it one time to assist in the preparation for the hearing. The resumé does not accurately reflect Petitioner’s separate employment periods at Respondent, nor does it contain a two-week period of employment at another construction company.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Commission on Human Relations DISMISSING the Petition for Relief filed by Mr. Ford. DONE AND ENTERED this 22nd day of December, 2014, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK 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 22nd day of December, 2014.
Conclusions This matter came on for determination by the Department upon submission of an Order of Dismissal and Order Relinquishing Jurisdiction by Daniel M. Kilbride, an Administrative Law Judge, of the Division of Administrative Hearings, a copy of which is attached and incorporated by reference in this order. The Department hereby ‘adopts the Order of Dismissal and Order Relinquishing Jurisdiction as its Final Order in this matter. ORDERED that this case is CLOSED and no license will be issued to Peace Industry Group, Inc. and Eco Green Machine, LLC d/b/a Eco Green Machine to sell motorcycles manufactured by Astronautical Bashan Motorcycle Co. Ltd. (BASH) at 7000 Park Boulevard, Pinellas Park (Pinellas County), Florida 33781. DONE AND ORDERED this ha, of August, 2009, in Tallahassee, Leon County, Florida. ‘atl A. Ford, Director Division of Motor Vehicles Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399 Filed with the Clerk of the Division of Motor Vehicles this__[I#) day of August, 2009. NOTICE OF APPEAL RIGHTS __ Nalini Vinayak, Deaier Administrator Judicial review of this order may be had pursuant to section 120.68, Florida Statutes, in the District Court of Appeal for the First District, State of Florida, or in any other district court of appeal of this state in an appellate district where a party resides. In order to initiate such review, one copy of the notice of appeal must be filed with the Department and the other copy of the notice of appeal, together with the filing fee, must be filed with the court within thirty days of the filing date of this order as set out above, pursuant to Rules of Appellate Procedure. CAF/vig Copies furnished: Meredith Huang Peace Industry Group, Inc. 6600 B Jimmy Carter Boulevard Norcross, Georgia 30071 Ronnie Pownall ECO Green Machine, LLC d/b/a Eco Green Machine 7000 Park Boulevard Pinellas Park, Florida 33781 Jeffrey A. Blau, Esquire Davis Island Law 213 East Davis Boulevard Tampa, Florida 33606-3728 Michael J. Alderman, Esquire Assistant General Counsel Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Rm. A-432 Tallahassee, Florida 32399-0504 Daniel M. Kilbride Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Nalini Vinayak Dealer License Administrator Florida Administrative Law Reports Post Office Box 385 Gainesville, Florida 32602
