The Issue The issue is whether Respondent violated Subsection 760.10(1), Florida Statutes (2006), by discriminating against Petitioner on the basis of her age or disability when Respondent terminated Petitioner from her employment.
Findings Of Fact Respondent is a rehabilitation and nursing center located in Port Richey, Florida. Petitioner began her employment with Petitioner on August 2, 2004, as a dietary aide and remained employed as a dietary aide until the date of termination from employment on June 26, 2007. As a dietary aide, Petitioner provided assistance in the kitchen area before, during, and after meals. Petitioner cleaned tables, assisted with food carts, removed garbage, and performed other physical duties to assist with the meal service. Petitioner sustained a fractured wrist in an accident at her home on March 27, 2007. Respondent provided unpaid leave for Petitioner, pursuant to Family and Medical Leave Policy (the FMLA Policy). The leave to which Petitioner was entitled as a job benefit began on March 27, 2007. Petitioner was eligible for up to 12 weeks of unpaid leave under the FMLA Policy. On April 20, 2007, the treating physician for Petitioner at the Center for Bone & Joint Disease provided a note to Respondent stating that Petitioner was unable to return to work for eight weeks. Respondent correctly excused Petitioner from work until June 15, 2007. On April 24, 2007, the treating physician for Petitioner completed a Certification for Health Care Provider Form and presented the form to Respondent. The form indicated that Petitioner’s leave would expire on June 15, 2007. Petitioner completed, signed, and provided to Respondent a Request for Leave of Absence Form, indicating her anticipated return date to be June 15, 2007. Respondent provided leave for Petitioner until June 19, 2007. It is undisputed that, seven days before returning to work, the FMLA Policy required Petitioner to provide a medical clearance or a doctor’s statement that she was physically able to resume the normal duties of her employment. Shortly after May 1, 2007, Petitioner received a memo from the administrator for Respondent reminding Petitioner that her “FMLA leave EXPIRES on: 6/19/2007.” In late May 2007, Ms. Joann Robinson, a co- worker and former cook for Respondent, spoke to Petitioner by telephone and requested that Petitioner contact the supervisor about Petitioner’s return to work. Petitioner acknowledged to Ms. Robinson that Petitioner would contact the supervisor. Ms. Robinson informed the supervisor that she spoke with Petitioner and that Petitioner stated she would contact the supervisor. When the supervisor did not hear from Petitioner, the supervisor and Ms. Laura Gilbreath, payroll administrator for Respondent, attempted to contact Petitioner by telephone approximately one week prior to the expiration of the FMLA leave. The purpose of the telephone call was to confirm that Petitioner was able to return to work upon expiration of her FMLA leave. The supervisor and Ms. Gilbreath were unable to reach Petitioner because her telephone service was disconnected. Petitioner never contacted Respondent prior to the expiration of the FMLA leave on June 19, 2007. Petitioner never contacted her supervisor about returning to work and never presented a medical clearance or doctor’s statement that she was physically able to resume her normal duties. Respondent terminated Petitioner from her employment on June 26, 2007, for exceeding the leave allocated under the FMLA Policy and failing to contact the facility or report back to work with proper documentation prior to the expiration of her FMLA leave. Respondent has terminated other employees who failed to contact the facility or return to work upon exhaustion of leave under the FMLA Policy, and there is no evidence to suggest Respondent treated Petitioner any differently.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a final order finding Respondent not guilty of the alleged discrimination and dismissing the Petition for Relief. DONE AND ENTERED this 4th day of March, 2009, in Tallahassee, Leon County, Florida. S DANIEL MANRY 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 4th day of March, 2009. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Sherry Malter 9415 Palm Avenue Port Richey, Florida 34668 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Benjamin D. Sharkey, Esquire Jackson Lewis St. Joe Building 245 Riverside Avenue, Suite 450 Jacksonville, Florida 32202
Findings Of Fact On March 21, 1979, the Department of Transportation began negotiations to acquire real property in Dade County, Florida, for a right-of-way in connection with the expansion of I-95. In October of 1979, representatives of DOT found the Petitioner's trailer on land located on the right-of way. This trailer was not being used as a residence, but was used for storage of feed for horses being raised by the Petitioner. The Petitioner claimed to be occupying the property pursuant to a lease from the owner. The representatives of DOT advised the Petitioner that he must move the trailer off the property, but that he could file a claim for relocation benefits. Subsequently, the Petitioner presented DOT with a claim for the expenses of moving the trailer off the subject property. The Petitioner also submitted a lease dated May 1, 1979, from Henry Milander to the Petitioner, leasing the subject property for a term of two years, in support of his claim to be in lawful possession. This lease, however, was not executed by Henry Milander, but by Michael Manin, whose signature was neither witnessed nor notarized. The Petitioner subsequently submitted a power of attorney executed by Henry Milander to Michael Manin, dated approximately three years prior to the date of the Petitioner's lease. This power of attorney was witnessed, but was not notarized. Neither the lease nor the power of attorney had been recorded on the public records of Dade County. The DOT representatives conducted a title search, and found that the record owner of the subject property was Ruth Milander Tabrah, as trustee of a trust established by Henry Milander in 1955. This trust had not been terminated, and was in existence during the time periods relevant to this proceeding. Thereupon, the DOT advised the Petitioner that his claim for relocation benefits had been disallowed because his occupancy of the subject property was "inconsistent with the rights of the true owner". The Petitioner's request for a formal administrative hearing challenges the determination of DOT that he is not eligible for relocation benefits.
Recommendation From the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the claim of Richard E. Kimball for relocation assistance payments be denied. THIS RECOMMENDED ORDER entered on this 15th day of April, 1982, in Tallahassee, Florida. WILLIAM B. THOMAS 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 15th day of April, 1982. COPIES FURNISHED: Richard E. Kimball 18930 S.W. 312 Street Homestead, Florida 33030 Charles G. Gardner, Esquire 562 Haydon Burns Building Tallahassee, Florida 32301
Findings Of Fact On September 23, 1980, Ms. Patricia Kroeger, ACLF Specialist, Department of Health and Rehabilitative Services, sent to the Petitioners, Mr. and Mrs. C. W. Price, a letter denying ACLF licensure to a home for the elderly owned and operated by the Prices in Plantation, Florida. The reason for the denial was the lack of multi-family zoning on the subject property which is necessary to lawfully operate an ACLF within the City of Plantation. The Petitioners were given 30 days by the Department to either cease operation of the facility or obtain a variance to the zoning code from the City of Plantation. Counsel for the Petitioners requested an administrative hearing on October 6, 1980, and a final hearing was held on February 13, 1981. The hearing was lawfully noticed for 10:00 A.M. on February 13, 1981. At the noticed hour, neither counsel for Petitioner nor the Petitioners were available and a call was placed to the law office of Ms. Marie Hotaling by counsel for the Department, Mr. Harold Braynon. The Hearing Officer was informed by Mr. Braynon that the Petitioners and their counsel were on the way to the hearing and would arrive shortly. At 11:00 A.M., with neither Petitioner nor their counsel present, the hearing was begun. The Department presented testimony and documentary evidence which established that the zoning on the Price's property for which ACLF licensure was sought would not permit the operation of a multiple resident facility such as an ACLF. At the close of Respondent's case, the Petitioners had not yet made an appearance and the hearing was adjourned. No subsequent communication has been received by the Hearing Officer from the Petitioners or their counsel concerning the final hearing.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That the Petitioner's request for licensure of their home in Plantation, Florida as an Adult Congregate Living Facility, be denied for failure to comply with Rule 10A-5.04(6), Florida Administrative Code. DONE and ORDERED this 16th day of March, 1981, 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 16th day of March, 1981. COPIES FURNISHED: Harold Braynon, Esquire District X Legal Counsel Department of HRS 201 W. Broward Boulevard Fort Lauderdale, Florida 33301 Marie S. Hotaling, Esquire 1523 N. E. 4th Avenue Fort Lauderdale, Florida 33304
Findings Of Fact By letter dated May 31, 1979 Respondent notified Petitioner that it was acquiring part of the property on which Petitioner's office was located and that it would be necessary for him to relocate. At the time Petitioner worked as a real estate appraiser in the office of the Pickens Agency owned by Philip Pickens. Pickens provided work space, telephones, secretary, data bank and supplies. The data bank contained data on real property throughout Florida and was invaluable to the appraisers in getting comparables to use for appraising like property. Due to the acquisition of additional property for the U.S. 90 right-of- way, it was necessary to move the two-story building in which Petitioner's office was located. This required moving out of this building into different quarters. In the building Petitioner's office, located on the second floor, comprised approximately 800 square feet in which he had desk, telephone and work space. The data bank was also located on the second floor. Philip Pickens owned another building in the Immediate vicinity into which Petitioner moved. The data bank was left in the original building which was jacked up in preparation for its move. Thee data bank remained available for use albeit less convenient for those using it. Petitioner had less space in the one-story building into which the Pickens Agency moved and Petitioner's office was located near the back door through which clients visited the Pickens Agency. He shared a telephone with another appraiser and had a smaller desk and less work space. He also experienced interruptions from visitors entering the office through the back door which opened into Petitioner's office space. During the two years immediately preceding the relocation of the office, Petitioner's appraisal work was performed exclusively for DOT. Part of this work was assigned him by the Pickens Agency and in some cases he was contacted directly by DOT for the appraisal . When employed directly by DOT, Petitioner received 50 percent of the appraisal fee and the Pickens Agency received 50 percent. When assigned work by the Pickens Agency, Petitioner received 45 percent of the appraisal fee. During the five months following Petitioner's move into the new quarters his income dropped substantially from what it had been before the relocation. Petitioner filed application for relocation benefits as soon as he moved his office and before any change in income occurred. Normally, there is a lag of three to six months between tile Line the appraisal work is done and payment is received. Petitioner's income during the first nine months of 1980 (January - October) we $10,622.97. For similar periods in 1979, 1978, and 1977 his income was $29,750, $26,382.50 and $22.252.50, respectively. Petitioner testified that he believes the loss of income was due to his inability to turn out as much work in the more restricted space and less privacy in the one-story building than he had before the move. Petitioner moved some 30 yards from his original location kept the same mailing address and the same telephone number. During the latter half of 1979 and the first half of 1980, the Lake City District of DOT had fewer relocation claims than in comparable periods of the two previous years. Relocation claims are related to appraisals which would indicate fewer appraisals were ordered by DOT in Lake City in 1979-80 than in the two previous years. During the period in question, most of Petitioner's work for DOT was generated by the Bartow office. This would require most of Petitioner's appraisal time out of Lake City with the use of the office primarily for the preparation of his appraisal report. No evidence was submitted to show the effect, if any, on the Pickens Agency's business resulting from the move or the business done by the other appraisers who also moved. During the period 1977-1980 the Pickens Agency employed between two and five appraisers and at the time of the relocation employed two appraisers, one of whom was petitioner. (Tr. p. 31). The number of appraisers employed varied with the volume of business coming into the agency. The appraisal work done by the Pickens Agency was statewide and not concentrated in the vicinity of Lake City.
The Issue This cause came on for consideration upon Respondent's Motion to Dismiss the Petition for Relief from a "Determination: No Cause," order entered by the Florida Commission on Human Relations.
Findings Of Fact The undisputed facts are as follows: After investigating Petitioner's Claim of Discrimination, the Florida Commission on Human Relations (FCHR) entered its Order, "Determination: No Cause," on March 12, 1996. FCHR's order unequivocally advised Petitioner that her Petition for Relief, if any, must be filed within 35 days. The thirty-fifth day would have been April 16, 1996. After the time as provided by FCHR's Rule 60Y-5.008(1) and by FCHR's March 12, 1996 order for the filing of her Petition for Relief had already run out, Petitioner filed a request for extension of time in which to file her Petition for Relief. Her request for extension stated that she needed the extension of time "due to failing health of my spouse and medical care and concern for him." This late request for extension of time was the only request for extension of time filed by Petitioner. It was dated April 17, 1996, (one day late) but it was not filed with the FCHR until April 24, 1996 (eight days late). Petitioner did not mail a copy of her April 1996 request for extension of time to Respondent as required by FCHR rules. Therefore, Respondent was unaware there had been a request for extension made to the FCHR until Respondent received the FCHR's order dated May 31, 1996. Because it had no notice that Petitioner was requesting an extension in April 1996, Respondent had no opportunity to object to the FCHR before the Commission entered its May 31, 1996 order. By its May 31, 1996 order, FCHR granted Petitioner an extension of time only until June 14, 1996 in which to file her Petition for Relief. The order does not state a number of days, but clearly and specifically states that the Petition for Relief must be filed by June 14, 1996. FCHR granted no further extensions to Petitioner for filing her Petition for Relief. Petitioner filed her Petition for Relief beyond the June 14, 1996 date assigned her by the FCHR. Although her Petition for Relief was dated June 14, 1996, FCHR's date stamp on the Petition for Relief shows that it was not filed with the Commission until June 18, 1996. FCHR transmitted the Petition for Relief to the Division of Administrative Hearings on or about July 12, 1996. Respondent filed a Motion to Dismiss the Petition for Relief and an Answer with affirmative defenses based on untimeliness. See, Conclusion of Law 15. In response to the October 8, 1996 order to show cause herein, Petitioner filed a pleading she labelled "Order Requiring Further Advices and to Show Cause." Although she had been required to show cause why she did not timely file her Petition for Relief between May 31, 1996 and June 18, 1996, she instead explained her tardiness in filing for an extension of time back in April 1996 this way: I was under the impression that I had 35 days to respond from the time I received the Notice of Determination: No Cause. I receive [sic] this notice on March 15, 1996, under my impression the 35 day lapse period would have been until April 19, 1996. I feel my response met this time period as my letter was dated April 17, 1996. In response to the October 8, 1996 order herein, Petitioner has offered no explanation why she filed her Petition for Relief beyond the clearly specified extension period granted her by the Commission.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is
The Issue Whether Respondent violated the provisions of chapter 440, Florida Statutes (2014),1/ by failing to secure the payment of workers’ compensation as alleged in the Stop-Work Order and 2nd Amended Order of Penalty Assessment, and, if so, what penalty is appropriate.
Findings Of Fact The Department is the state agency responsible for the enforcement of the workers’ compensation insurance coverage requirements established in chapter 440. On June 1, 2015, Investigator Abedrabbo conducted a random workers' compensation compliance check at 11422 North 56th Street, Tampa, Florida 33617. During the course of the compliance check, Investigator Abedrabbo observed two individuals installing a stone façade on a building that was under construction at the identified address. It is undisputed that the two individuals observed by Investigator Abedrabbo were, at the time of observation, employed by Respondent. In support of its 2nd Amended Order of Penalty Assessment, the Department prepared a penalty calculation worksheet showing a total penalty owed of $17,274.30.3/ Respondent does not challenge the accuracy or method of calculating the assessed penalty, but only asserts that the penalty is “too high” and the company cannot afford to pay it.
Recommendation Based on the Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED that the Department of Financial Services, Division of Workers’ Compensation, enter a final order finding that Respondent, Cortes Pre Cast Stone and Foam Corp, violated the provisions of chapter 440 by failing to secure the payment of workers’ compensation and assessing against Respondent a penalty in the amount of $17,274.30. DONE AND ENTERED this 18th day of February, 2016, 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 18th day of February, 2016.
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.
The Issue The issue for consideration in this case was whether Respondent's license as a registered real estate salesman in Florida should be disciplined because of the alleged misconduct outlined in the Administrative Complaint filed herein.
Findings Of Fact 1. At all times relevant to the allegations in the Administrative Complaint, the Respondent, ROGER W. DART, was licensed as a registered real estate salesman in Florida under license number 0306123. This license, however, became involuntary inactive on March 31, 1980 and was, at the times involved in this case, delinquent. 2 On February 26, 1984, Respondent placed an advertisement in the Panama City, Florida, News-Herald, under the Condominiums for Sale section of the classified advertisements which read: GULFRONT CONDO., 2BR 2B, fully fur., $79,900 By owner. 243-5356. On February 26, 1984, Respondent was not the owner of the condominium apartment so advertised. The owner was Kendal Sanborn. Telephone number 243-5356, in Panama City, Florida, is the phone number of Respondent. Pursuant to the advertisement referenced above, Respondent procured James D. Hill and Lavanda H. Hill, his wife, as purchasers of the property in question, and as a result, after the closing on April 12, 1984, Respondent received a fee of $2,000.00 for arranging the purchase. This fee was paid by a check drawn on The Commercial Bank in Panama City, on the escrow account of Lawyer's Title Insurance Corporation, dated April 23, 1984, and references the file relating to James D. Hill. Respondent admittedly holds an inactive real estate salesman's license, but has not been active in the real estate business for several years. He is a licensed boat captain for off-shore fishing boats and in the winter season, when fishing is not active, he also captains cargo boats and off-shore tug boats. He also buys and sells boats on his own. He knows and is a close friend of Kendal Sanborn, the sale of whose property gave rise to this case. Mr. Sanborn is a real estate developer from Atlanta and Respondent works for him periodically as a fishing boat captain. When Mr. Sanborn comes to the Panama City area, he generally stays with or in quarters belonging to Respondent. At the time in question, Mr. Sanborn owed Respondent a considerable amount of money for fishing trips, tackle, and rental on the property he rents from Respondent. As a matter of fact, Mr. Sanborn currently is indebted to Respondent for the same type of things. The transaction in question here was the only one in which Respondent has been involved for anyone other than himself since his license became inactive. He has never submitted any other advertisement listing his telephone number for real estate transactions (just for boats) since that time. Respondent's involvement in the one transaction in issue took place because Mr. Sanborn was indebted to him at the time for a sum substantially larger than the $2,000.00 he received. He acted as he did here both as a favor to Mr. Sanborn, who wanted to sell his property, and, also, to facilitate getting the money which was owed to him.
Recommendation On the basis of the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Respondent, Roger W. Dart's license as a real estate salesman in Florida be suspended for a period of six months and that he be ordered to pay an administrative fine of $250.00. RECOMMENDED in Tallahassee, Florida, this 26th day of September, 1985. ARNOLD H. POLLOCK 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 26th day of September, 1985. COPIES FURNISHED: James R. Mitchell, Esq. Department of Professional Regulation Division of Real Estate 400 West Robinson Street Orlando, Florida 32802 Glenn L. Hess, Esq. 9108 West Highway 98 Panama City, Florida 32407 Harold Huff, Director Division of Real Estate 400 West Robinson Street Orlando, Florida 32801 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Salvatore Carpino. Esq. General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
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
