Findings Of Fact Findings on general matters The Respondent was certified by the Criminal Justice Standards and Training Commission on June 15, 1982, and issued certificate number 02-31243. The Respondent was employed as a law enforcement officer by the Riviera Beach Police Department from March 29, 1982, to July 31, 1988. He was re-employed by that police department on March 11, 1991, and was so employed as of the date of the formal hearing. At the time of all of the events described in the findings of fact which follow, the Respondent was a certified law enforcement officer. Findings regarding the Mangonia Park incident During the evening hours of May 17, 1987, the Respondent, while off duty, unarmed, and dressed in civilian clothes, ventured into the town limits of the Town of Mangonia Park where he became involved in a fracas with a uniformed, armed, on-duty police officer of that town, Officer James C. Carr. The fracas had its inception shortly after the Respondent stopped his automobile in the outside lane of a city street that had three lanes in each direction in order to watch what Officer Carr and another Mangonia Park police officer (Officer Combs) were doing with a young black male civilian they had just stopped in the median strip of the same street. Officer Carr shouted to the Respondent that the latter should move his car. The Respondent took no action in response to that directive from Officer Carr. Annoyed by the lack of response, Officer Carr began to walk towards the Respondent's automobile as he repeated his directive to the Respondent using coarse, vulgar, confrontational words which included what are commonly referred to as "swear" words, as well as references to the Respondent's race, which is black. 2/ Officer Combs also walked towards the Respondent's automobile. The Respondent protested the manner in which Officer Carr was speaking to him and also offered the mistaken 3/ observation that his automobile was in the City of West Palm Beach, outside of Officer Carr's jurisdiction. Annoyed by the Respondent's comments and his continued failure to leave as directed, Officer Carr continued his invective. Annoyed by Officer Carr's abusive language, the Respondent addressed Officer Carr in a coarse and vulgar manner as he began to try to get out of his automobile. Officer Carr interrupted the Respondent's efforts to exit the automobile by pushing against the automobile door, thereby catching the Respondent's foot between the door and the side of the automobile. The Respondent continued to address Officer Carr in a coarse and vulgar manner and continued to struggle to get out of his automobile. Officer Carr continued to prevent his exit. Momentarily the Respondent was successful in exiting the automobile and he and Officer Carr stood face to face shouting at each other. Officer Carr made at least one verbal threat to do physical violence to the Respondent, threatened to throw the Respondent in jail, and also made threatening gestures with a baton towards the Respondent. The Respondent asked if he was under arrest and told Officer Carr not to touch him if he was not under arrest. In response to Officer Carr's further threatening gestures with the baton, the Respondent said to Officer Carr: "Don't hit me with that baton, okay? If you hit me with that baton and I'm not under arrest, I'm going to blow your brains out!" The Respondent did not take any aggressive physical action towards either Officer Carr or Officer Combs. At about this point, Officer Combs stepped in between Officer Carr and the Respondent in an attempt to keep things from getting worse. At about the same time, other off-duty police officers arrived on the scene and joined in Officer Combs' efforts. After Officer Carr and the Respondent had cooled down, it was agreed by all concerned that it was just an unfortunate misunderstanding and the participants apologized to each other. Findings regarding the Lt. Wiesen incident On November 20, 1987, the Respondent got into an argument with Lt. Steven Wiesen, one of his supervisors, regarding the latter's announced intention to recommend that the Respondent be given a suspension for abuse of sick time. The Respondent felt that he was being wrongly accused and continued to argue with Lt. Wiesen about the matter. The argument escalated to the point that Lt. Wiesen decided to go see a superior officer about the matter. As Lt. Wiesen and the Respondent were walking up the stairs to the Assistant Chief's office, the Respondent said to Lt. Wiesen words to the effect of: "This is the kind of shit that, like the post office, you know, makes somebody want to come to work and kill everybody." 4/ Lt. Wiesen's response to that comment was to ask if the Respondent was threatening him. The Respondent answered, "I don't make threats." At the time of these comments the Respondent was walking in front of Lt. Wiesen. The Respondent did not take any aggressive physical action towards Lt. Wiesen. The Respondent and Lt. Wiesen both told the Assistant Chief their respective versions of what they were arguing about and the Assistant Chief told them to both put it in writing. Findings regarding the Chief Walker incident During the evening hours of May 5, 1988, the Respondent, while off duty, unarmed, and dressed in civilian clothes, attended a meeting of the Civil Service Board at the Riviera Beach City Hall. The subject of the meeting was whether the decision of then Police Chief Frank Walker to demote the Respondent from Sergeant to Patrolman should be upheld or reversed. The Respondent's parents also attended the meeting. At the conclusion of the meeting the Civil Service Board voted to uphold the Respondent's demotion. The Respondent and his parents all felt that the Respondent had been treated unfairly by both the Civil Service Board and by Chief Walker. Shortly after the conclusion of the Civil Service Board meeting, the Respondent's mother approached Chief Walker and began telling him how she felt about the matter. She was very upset and was crying. The Respondent approached his mother and told her not to talk to the Chief any more and to come along home. He also said words to her to the effect of, "He's going to end up getting a bullet put in his head anyway." Chief Walker apparently heard part of what the Respondent had said to his mother and asked the Respondent what he had said. The Respondent replied: "I said, sir, it is my opinion that if you continue to treat people the way you do, somebody's going to put a bullet in your head." Immediately following that statement, the Chief walked away in one direction and the Respondent and his mother walked away in another. The Respondent did not take any aggressive physical action towards Chief Walker.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that the Criminal Justice Standards and Training Commission enter a Final Order in this case dismissing all charges in the Administrative Complaint. DONE AND ENTERED this 28th day of December, 1995, at Tallahassee, Leon County, Florida. MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of December, 1995.
The Issue Whether Respondent is guilty of gross insubordination, misconduct in office and absent without leave as more fully alleged in letter dated November 7, 1989.
Findings Of Fact At all times relevant hereto Joseph A. Tourney held an Educator's Certificate from the Florida Department of Education (Ex. 1) and has been on continuing contract since 1972 with the Pinellas County School Board (Ex. 2). He has taught in the Florida School System for approximately 20 years with the last 14 years at Pinellas Park High School (PPHS) as a social studies teacher. As early as 1970, while a teacher at Lakewood Senior High School, Respondent's negative attitude toward strict compliance with school policies was noted (Ex. 9). Much of this attitude was exhibited by arriving later than and departing prior to the time designated for teachers to be at the school (Ex. 10). Following a review of Respondent's evaluations and conferences with him regarding his attitude respecting school policies and procedures to which Toumey did not agree, a recommendation was made by the Principal at Lakewood that Toumey be transferred (Ex. 12). Toumey was transferred to Largo High School. No problems were reported regarding Toumey during his tenure at Largo. When Pinellas Park High School opened circa 1976 Toumey was transferred to that school. Hugh Kreiger was principal at Pinellas Park High School. Krieger was a hands-on administrator who closely observed those under his supervision. The first time he observed Toumey depart school early he called him in and assigned Toumey permanent parking lot duty which required Toumey's presence at the parking lot until after the designated departure time. For the next five years no further problem was noted regarding Toumey's punctuality at school. Krieger was replaced by Louis Williams and Toumey's attendance problems resumed. After repeated warnings about leaving school in the afternoon prior to the scheduled departure time for teachers (30 minutes after students are released) and a conference between Williams and Tourney, Williams requested a conference with Tourney and John Mixon, Director of Personnel Services for the school board. This conference was held October 14, 1982 (Ex. 13). During this conference Respondents's early departures from school, his attitude toward school policies to which he disagreed, and his insensitivity to students was discussed and Tourney was advised that improvements in these matters was expected. By memo dated February 28, 1983 (Ex. 15) Williams noted several occasions where Toumey had departed school early and Tourney was charged with one-half day's leave and given a written reprimand. A subsequent documentation of Tourney leaving school early is contained in a memo dated November 7, 1986, from Williams to Tourney (Ex. 16). On September 21, 1987, Nancy Blackwelder, Assistant Principal at PPHS, submitted a memorandum to Tourney memorializing a conference with him in which he was again reminded of his need to improve in classroom atmosphere conducive to learning, judgment, and routine duties; and noting that if he failed to perform routine duties he would receive a written reprimand (Ex. 17). On October 8, 1987, a conference was held between Tourney; Nancy Zambito, who replaced Dr. Mixon as Director of Personnel Services; the principal of PPHS, M. Heminger; and a union representative. The summary of this conference is contained in a memo from Zambito to Tourney dated October 3, 1987, (Ex. 18). In this conference Tourney's inappropriate behavior in class involving his participation in a program adopted by the school, Patriot Educational Partners (PEP), was discussed, Tourney was again reminded of the need to support school board policies and programs in his contact with students, and Tourney agreed to improve. In November 1987 Tourney and the School Board entered into a Stipulation and Agreement (Ex. 19). In this Agreement Tourney acknowledged that he had been given less than satisfactory evaluations for the school years 1970-71, 1982-83, 1983-84, and 1986-87, that he had received numerous counseling sessions to discuss his failure to adhere to established school procedures and his negative comments to students. He also acknowledged that during the 1987-88 school year while assigned as advisor to a group of students with whom he is supposed to meet for five minutes each morning, he has frequently been late; that he referred to this program in the presence of students in negative and profane terms; and on one occasion he threw financial aid papers in the trash can and told students they could get them from there if they wanted them. For these infractions Tourney agreed to a suspension without pay for five days. He also acknowledged that further infractions may lead to a recommendation for his dismissal. In his testimony at this hearing Tourney averred that most of the students who were given financial aid applications threw them on the floor from which they had to be picked up and placed in the trash baskets, and that he was merely shorting the process by throwing these applications in the trash can rather than pass them out to the students who would throw them on the floor. On May 9, 1989, Respondent was issued a letter of reprimand (Ex. 20), by Principal Heminger for inappropriate conduct in his class during a visit to the class by members of the committee conducting a ten-year evaluation of the PPHS for accreditation during the period of April 25-28, 1989. In this reprimand he was also found to have arrived late at the final meeting of the Visiting Committee and to have returned from lunch with the odor of alcohol on his breath. On September 12, 1989, a conference was held between John Reynolds, Assistant Principal at PPHS and Tourney to discuss Tourney's 1988-89 evaluation. This conference is memorialized in memorandum dated September 19, 1989, (Ex. 21). The areas in which improvement is expected in the evaluations are attitude, judgment and routine duties. October 13, 1989, was an in-service day for teachers. This is a normal school day which only teachers attend. It was one of several similar days during the school year that teachers hold meetings, catch up on the grading of papers and perform tasks other than conducting classes for their students. It is a day all teachers are expected to be present at school. At PPHS in-service days have always been more informal than regular school days and in the past teachers have departed early once their tasks were completed. Prior to 1988 there had been no sign-in sheet for teachers at PPHS but such a procedure was instituted and in effect for the in-service day of October 13, 1989. Respondent appeared at school on October 13, 1989, as required but slightly late. Around 9:00 a.m. he received a telephone call from his good friend and fellow teacher in the social studies department, David Smith, who told respondent that he, Smith, had just awakened after not having slept well during the night, and Smith requested Respondent to sign him in and he would arrive shortly. Respondent did so. After making the call, Smith went back to bed and when he again awoke it was afternoon and he realized he was suffering from flu-like symptoms and was too sick to go to school. Several people were aware that Smith did not report to school on October 13, 1989 and reported same to the authorities. When confronted with the accusation both Tourney and Smith denied that Tourney had signed Smith in and that Smith was not at school that day. When he finally acknowledged his absence from school on October 13, 1989, Smith was suspended for three days without pay. The October 13, 1989, incident was the culmination of a long history of Respondent's failure to comply with school policies and directives, to "trash" school programs to which he did not agree, and to be in the forefront of rebellion against such programs and policies which led to the proposed action of the school board to dismiss Respondent from his continuing contract as a teacher in the Pinellas County school system at the expiration of the 1989-90 school year.
Recommendation It is recommended that Joseph Tourney be dismissed from his position as a continuing contract teacher in the Pinellas County School System at the conclusion of the 1989-90 school year. DONE and ENTERED this 5th day of July, 1990, in Tallahassee, Leon County, Florida. K. N. AYERS 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 5th day of July, 1990. COPIES FURNISHED: Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, FL 32399-0400 Dr. Scott N. Rose, Superintendent Pinellas County School Board Post Office Box 4688 Clearwater, FL 34618-4688 Bruce Taylor, Esquire Post Office Box 4688 Clearwater, FL 34618-4688 Robert F. McKee, Esquire Post Office Box 75638 Tampa, FL 33675-0638
The Issue The issue in this case is whether the licensure application filed by Petitioner, Sun and Earth Citrus, LLC ("Sun and Earth"), for licensure as a citrus fruit dealer should be denied or approved by the Florida Citrus Commission (the "Commission").
Findings Of Fact Sun and Earth is a Florida limited liability company formed for the purpose of buying and selling citrus products. Vazquez is the sole owner of Sun and Earth and serves as its president. The company was formed in January 2012. Vazquez formed the company partly in response to a series of events concerning his brother, William. A discussion of those facts is pertinent to the underlying facts in this case: William operated businesses named Zumoval Citrus Packer and Zumoval Trucking and Cold Storage. William obtained a license to operate a packinghouse after seeing other dealers acting in a way he believed to be illegal. He renewed the license each year for two years, but when he attempted to renew the third year, his application was denied. At the Commission meeting where William's renewal application was considered, Vazquez appeared on William's behalf because William could not adequately articulate his position. The meeting did not go well for William; Vazquez had to calm William down and keep him from yelling at the commissioners during the meeting. The meeting date was January 18, 2012. After the meeting at which William's license renewal was denied, Vazquez announced to Department employees that because his brother could not be licensed, Vazquez would seek his own license. Inasmuch as Vazquez had appeared on William's behalf, and they were siblings, the Department had some concern that Vazquez's application was a subterfuge and simply an attempt to allow William to operate using Vazquez's license. On March 2, 2012, Vazquez filed an application with the Department; it was received on March 6, 2012. The application, as filed, said the proposed business would include operation of a packinghouse, being a fruit broker, operating a roadside stand, and being a wholesaler. The application contained information about Sun and Earth, as well as its owner, Vazquez. An application fee of $25.00 and a cashier's check in the amount of $1,000.00 for a bond were included with the application. Upon its initial review of the application, the Department noticed several errors and omissions. Ms. Wiggins, a license and regulation specialist for the Department, contacted Vazquez via telephone on March 6, 2012, to discuss her findings concerning the application content. She told Vazquez that a substantially larger bond was required for a license that included a packinghouse. She also noted that if the proposed roadside stand was purchasing fruit directly from a grower, then it must also have a bond. If the fruit was being purchased from a packinghouse, no bond would be required. Ms. Wiggins asked Vazquez to identify the packinghouse(s) from whom he intended to purchase fruit. The purpose of her request was to verify that fruit was being purchased from a packinghouse, rather than from a grower. Vazquez sent Ms. Wiggins an email the very next day confirming the telephone discussion. Vazquez, in response, asked that the packinghouse designation be removed from his application. He also stated that according to everything discussed during their telephone conversation, it was his contention that the application was complete. He then questioned why his brother's company--which had recently been denied renewal of its license--was pertinent to his application for a citrus dealer license. Vazquez asked when his application would be considered by the Commission. Ms. Wiggins replied to the Vazquez email via an email dated March 8, 2012. The email noted that Ms. Wiggins had removed the packinghouse request from the application. It also addressed the need for different reference letters relating to Sun and Earth. Then the email set out five enumerated issues that still needed to be addressed, to wit: An explanation as to how he operated Zumoval Citrus, LLC, without a wholesaler license from 2009 to 2011. How Zumoval Citrus, LLC, continued doing business in 2011, when it became inactive in September 2010. An explanation of his probation or parole from New York State relating to a conviction for stolen property. A list of the packinghouses from which he would be purchasing fruit. An address for the roadside stand. Ms. Wiggins also advised Vazquez in her email that the Department could not grant a conditional approval of the application in that there were "unusual or questionable circumstances" surrounding the filing of the application. That is, the relationship between Vazquez and William caused some concern for the Department. Ms. Wiggins reminded Vazquez that the $1,000.00 bond submitted with the application would not be sufficient if Sun and Earth planned to purchase fruit from growers. She then advised Vazquez that if he would submit all the missing information at least five days prior to the Commission meeting scheduled for March 21, 2012, the application would be presented for review. Vazquez responded via email dated March 13, 2012. He provided responses to the five enumerated issues set forth in Ms. Wiggins' email as follows: He explained that neither of his companies continued to do business after they were declared inactive in September 2010. He explained that he had another business entity that was operating, but neither of the questioned businesses was in operation. Included in above response. Vazquez had presented evidence of his conviction in the application; he did not believe anything further was required. He was upset that Ms. Wiggins apparently had information from his other prior transgressions (more on this below) and wanted to know what information she had seen. Vazquez refused to provide names of the packinghouses with whom he planned to do business. He stated that the inquiry was outside of Ms. Wiggins' "scope of duties," and he did not have to comply with her request. He asked that the roadside stand designation be removed from the application. Vazquez's email then became somewhat belligerent and argumentative. He concluded with a demand that his application be presented to the Commission on March 21, 2012. The reason Ms. Wiggins had asked Vazquez for a list of the packinghouses he planned to do business with was two-fold: First, Vazquez had indicated he planned to have a roadside stand. If the stand was going to get its fruit from a grower, then a larger bond would be required. If the fruit was to come from packinghouses, then there would be no bond requirement. Ms. Wiggins attempted to ascertain whether Vazquez was planning to obtain fruit from packinghouses. Second, due to Vazquez first indicating he would operate a packinghouse and then removing that designation, Ms. Wiggins wanted to make sure he was being honest and truthful in his responses. Citrus dealers by and large police themselves, so it is important that the Department know they can trust entities to which they issue licenses. By striking the roadside stand item from his application, Vazquez still did not alleviate the basis for Ms. Wiggins' questions about packinghouses. The Department decided that because of the questionable and unusual circumstances surrounding Vazquez's application, it would not issue a conditional license. Rather, it would process the application and send it on to the Commission for review and approval or denial. After further review, the Department ultimately decided that it would recommend denial of the Sun and Earth application when it was forwarded to the Commission. Vazquez was notified of the decision by way of a letter dated May 3, 2012, sent by certified mail, return receipt requested. The letter advised Vazquez that he could challenge the decision in an administrative hearing. Vazquez chose to do so, thereby staying any further action on the application until a final order could be issued in the instant proceeding. The basis of the Department's decision was that the Sun and Earth application had misrepresented Vazquez's circumstances with respect to his work history, residence, and criminal background. Further, Vazquez had been reluctant to respond to requests for information after reasonable inquiry by the Department. As to Vazquez's reported work history as set forth in the application, Vazquez had initially provided a work history summary in response to question 18. The response indicated employment from March 2007 until January 2011 with Associated Produce in Bronx, New York. In fact, Vazquez was incarcerated in New York for most of that time period. An amended response to question 18 was submitted; it did not list Associated Produce as a former employer. Vazquez explained the erroneous information thusly: The dates of employment were taken directly from his resume. His resume was attached to the application only to show his employment duties, not as evidence of the dates he actually worked. It was simply a mistake, said Vazquez, not an attempt to mislead the Department. Vazquez's testimony in this regard was self-serving and not credible. As to his history of residence in the state, the application said Vazquez had lived at the same address in Florida for the past five years. In truth, Vazquez was in prison in New York and did not move to Florida until 2009. Again, Vazquez said that was simply a mistake and was not meant to mislead the Department. Again, the testimony provided by Vazquez as to this issue was not credible. The issues concerning Vazquez's criminal history are more complex. Question 10 in the application asks for information concerning investigations, charges, arrests or convictions "in the last 10 years." Vazquez provided information concerning an arrest in October 2010 for carrying a concealed weapon. He also provided the Order acquitting him of the charge. The arrest report references probation for a conviction of possession of stolen property in New York. The Department, during its background check of Vazquez, found that he was on parole. Vazquez was asked to clarify the probation versus parole discrepancy. He explained that between the arrest and acquittal, his parole officer had submitted a violation of parole, but that was lifted after his acquittal. The Department's concern about Vazquez's relationship with his brother was founded on the fact that Vazquez represented William before the Commission just prior to the filing of the Sun and Earth application. That representation preceded Vazquez's remark to a Department employee that if his brother could not have a license, he would seek one himself. The statement put the Department on notice that the brothers may be trying to circumvent William's loss of his license. At final hearing, it was evident the brothers had no such intent. In fact, William was not cooperative with Vazquez's efforts to obtain a license that would, in effect, compete with William's business. The Department also raised a concern about the letters of reference received in support of the Sun and Earth application. Normally, the Department would forward Letter of Reference forms to businesses, and they would be returned directly to the Department. In this case, Vazquez took the letters to business owners himself. There is nothing inherently improper about doing this, but it caused some concern to the Department in a case where red flags had already been raised. Ms. Wiggins had never had an applicant refuse to answer questions during the application process. When Vazquez raised his "scope of work" objections, Ms. Wiggins was taken aback. Vazquez, an admitted novice in the citrus business, basically told the Department how to do its job. Faced with this very unique situation, Ms. Wiggins then asked her supervisor to become involved in the application review so that it would be done completely in accordance with Department rules. After the March 13, 2012, email from Vazquez, it was decided that the Department legal counsel should also be involved. The Department was justifiably concerned about the propriety of the Sun and Earth application. Citrus dealers are generally self-governing, and the Department began to have concerns that Vazquez could not be trusted. That, in and of itself, was sufficient basis for the recommendation of denial of Vazquez's application. Vazquez admitted to being less than forthright with the Department on his application. He withheld information that he believed the Department could easily obtain on its own. He refused to answer questions that he did not believe were relevant. He would not cooperate with inquiries made into issues about his past. He disagreed that his affiliation with his brother's company was relevant, so he stonewalled all inquiries about that issue. All in all, Vazquez--the applicant for a license--refused to provide information and assistance to the entity which was reviewing his application. While he may have had his personal reasons for his actions, what he did was not conducive to obtaining approval from the Department. Thus, his application was given a recommendation for denial.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Citrus/Florida Citrus Commission, denying Sun and Earth's application. DONE AND ENTERED this 30th day of August, 2012, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN 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 30th day of August, 2012.
The Issue The issue for consideration in this case is whether the Respondent's license as a certified general contractor in Florida should be disciplined because of the alleged misconduct outlined in the Administrative Complaint filed herein.
Findings Of Fact At all times pertinent to the allegations contained herein, the Petitioner, Construction Industry Licensing Board was the state agency responsible for the licensing and regulation of construction contractors in this state. Respondent, Frank W. Miller, was licensed as a certified general contractor in Florida under License No. CG C036176. On June 2, 1988, Lots of Casey Key, Inc., a group of investors and contractors, including the Respondent, purchased the land in question located in Sarasota County, Florida. On June 26, 1988, the group hired an environmentalist from a list provided by the county, who evaluated the property with a view toward development. The developers also hired a surveyor and an engineer to get the proper permits for the development. They also published all required notices and acquired at least some of the required permits for the initial stage of the development. This consisted of the construction of a fishing pier extending from the property into Sarasota Bay. This permit was taken out by the Respondent. The Respondent and his associates also contacted Robert B. Patten, an environmental consultant, with a view toward having the eight acres in question rezoned so that houses could be built on it. After examining the property, however, Mr. Patten advised Respondent there were so many protected mangroves on the property, both state and local permits would be required and he, Patten, was not interested in the job. He suggested that Respondent hire an attorney to insure the proper permits were obtained. Respondent claims that in January of 1989, he took his site drawing for the proposed development to the county natural resources office headed by Mr. McCarthy, told him what was planned at the property, and secured his approval. Mr. McCarthy was not called as a witness, and all the appropriate permits were not offered, so at most it can be found that McCarthy approved the concept of the activity in principle. At approximately this same time, the environmentalist the group hired to insure compliance with the environmental requirements purportedly also assured them that the proposal was environmentally sound and properly permitted. It is accepted that he did. As a result, the group acquired the state and county permit for the pier and, in addition, a permit to clear the uplands. They also procured a permit from the Southwest Florida Water Management District and the appropriate agency governing the construction and installation of utilities. In addition, the Respondent procured a permit allowing construction of a boardwalk and a seawall. He did not, however, procure the appropriate permit to allow him to cut, trim, or top mangroves in the numbers shown here. The group hired Southern Landscaping to do all the land work under a contract which called for all mangrove trimming to be done in accordance with the Division of Natural Resources rules This company, which was the low bidder in the procurement process, was relied on to trim the mangroves in accordance with the law and before beginning work, showed how the trees would be trimmed. It appeared to Respondent at this time that the work was being and would be done properly. On March 10, 1989, Belinda S. Perry, an employee of the county's Natural Resources Department, was out on Casey Key and observed that at the Respondent's work site clearing work was being done. She questioned the permitability of this work. She also observed that the mangroves on the north side of the property had been improperly cut, and she asked her associate, Mr. McCarthy, to check it out. He did and thereafter, on March 14, 1989, Respondent came to the office with a copy of his state-issued permit. After analyzing the permit and comparing the work done with the terms thereof, Ms. Perry and Mr. McCarthy advised Respondent it appeared his work was in excess of the limits imposed by his permit and that they would have to notify state authorities and get back to him. At that time, Respondent was cooperative and indicated he wanted to get the proper authorization. As a result, Ms. Perry contacted Ms. Toledo, of the Department of Environmental Regulation, discussed the possible violation with her, and arranged to visit the site with her on March 20, 1989. When they did, Ms. Perry again observed the cutting on the North side of the property in addition to which there was a corridor which had been cut to the east (water) side of the property heading toward the bay. At that point, they contacted Mr. McClintock, the forester, who examined the Respondent's permit. When he saw it permitted only the relocation of 20 palm trees and made no mention of or gave no approval of cutting or trimming of mangroves, he authorized the issuance of a stop work order on March 20, 1989. Ms. Perry and Ms. Toledo, pursuant to the terms of that order, served a copy on Mr. Miller and advised him he was in violation of both state and county regulations and should discontinue the work at the site. Ms. Toledo recalls that when she visited the site on March 20, 1989, she observed much the same situation as described by Ms. Perry. She also recognizes that one of Respondent's permits allowed the moving of palms, and he also had one for the construction of a fishing pier. As a part of this second permit, Respondent was allowed to cut mangroves. Nonetheless, she noted on her visit that in the area to the left of the pathway, many more mangroves had been cut than were allowed by the permit. This cutting was in the form of trimming in excess of any exemption criteria outlined in Rule 17-27.060, F.A.C., (17- 321.060), which allows trimming by a property owner without a permit, but of no more than 25 % of the lateral branches. The red mangroves on the property had been topped which is totally prohibited, and the trimming of the remaining white and black mangroves was to an extent in excess of the permitted 25%. At that time, Mr. Miller indicated to Ms. Toledo that he was the general contractor in charge of the site, and the workers doing the actual trimming were operating under his direction. This is corroborated by the testimony of Mr. Boatright, one of the trimmers, who indicates much the same. At that time, in Ms. Toledo's opinion, Mr. Miller was uncooperative and aggressive and as a result, on March 31, 1989, she drafted a warning notice which was issued on April 3, 1989. On that latter date, Ms. Toledo again went to the site and saw that additional and different mangroves had been trimmed in excess of the exemption criteria mentioned above. Thereafter, on April 7, 1989, she had a telephone conversation with the Respondent during which she advised him that the Department of Environmental Regulation intended to file criminal and civil charges against Lots of Casey Key, Inc. because of the violations described. At that time, Respondent expressed his regret that the situation had happened. As a result of the visits by Ms. Toledo and Ms. Perry, in late March or early April, 1989, Steven T. Cooley, environmental prosecutor for the 15th Judicial Circuit of Florida, was notified through the Sarasota County Sheriff's Department and Division of Natural Resources that there was significant damage to a mangrove forest at Lots of Casey Key. Mr. Cooley conducted an extensive investigation into the matter and caused a collateral criminal investigation to be conducted as well, and as a result of these inquiries, decided to file criminal charges against Mr. Miller and a co-defendant, Mr. Burke. This decision was based on the investigation which revealed that the county's tree protection ordinance, Ordinance 83-44, which included mangroves among the protected species, had been violated. It appeared that Respondent and Mr. Burke had hired subcontractors who committed a significant cutting, (trimming, topping and stumping) of more than 2000 mature trees. The Respondent and Burke were contacted by code enforcement people, (Perry and Toledo), and advised to stop. Nonetheless, additional damage was done after the notice to stop and a Stop Order was thereafter issued. Respondent had a permit to cut mangroves in a corridor area out to the fishing pier, but the actual cutting far exceeded the terms of the permit. The first cutting was a thinning out of mangroves around Casey Key, which, in itself, was a violation, and even after the Respondent was informed he was in violation, he improperly cut more trees. Not all trees were cut down to the ground, but many of those which were illegally trimmed were trimmed to a point where the tree would ultimately die. This was verified by county tree experts. Mr. Cooley filed criminal charges against the Respondent rather than the actual workers who did the cutting because, in his opinion and as a result of his investigation, the workers were merely agents working under the direction of the Respondent. Mr. Miller originally pleaded Not Guilty to the charges against him but subsequently, on June 25, 1990, changed his plea to Guilty. At a sentencing hearing held in December, 1990, adjudication of guilt was withheld, and Mr. Miller was fined a total of $15,000.00; ordered to perform 500 hours of public service, and ordered to spend 10 weekends on the road gang. In addition to the criminal charges, a civil suit was filed by the county against Lots of Casey Key, Inc., to prevent additional cutting of mangroves. By stipulation, a temporary injunction was entered. Trial on the permanent injunction had not been held at time of hearing. According to Mr. McClintock, a sampling taken on March 22, 1989, after the stop work order was approved, showed approximately 2175 mangrove trees had been severely cut on the northern side of the property and between 75 and 100 cut down to the ground in the corridor on which the pathway to the fishing pier was to be constructed. This accounted for a total of 2275 trees. When he went back to the property on March 30, 1989, after the stop work order had been issued, McClintock observed that while cutting was no longer in progress, an additional cutting had taken place, and he counted approximately 78 additional trees which had been destroyed. He later verified that additional trees were cut in the corridor area as well. Taken together, a total of approximately 2350 trees were improperly cut in violation of the state and county codes protecting mangroves. This destruction is the largest in the recollection of Norman C. Easey, the Director of the county's forestry division, and it constituted a serious impact on what was then the largest single mangrove stand in the southern part of Sarasota County. Respondent does not deny that the trees were cut. He notes, however, that after Ms. Perry first came out and advised him of the possibility he was in violation, he agreed not to cut further and in fact, tried to cooperate. He met with his associates who encouraged him to nonetheless continue the cutting even though he advised against it. Ultimately he was able to convince them. An associate, Norman Sharrit, the architect for the project, recalls that Respondent spontaneously exclaimed to him that Burke and Jaffe, the other partners, directed the additional cutting after the stop work order was issued. Nonetheless, after securing his associates' agreement to suspend any cutting, Respondent attempted to contact the trimmers, Southern Landscaping, to advise them to stop work but claims he could never find anyone on site. In this claim, he is supported by Davis Baker, an adjacent retired homeowner, who, in observing the clearing process on a daily basis, noticed that the cutters kept very irregular hours and were gone as often as not. Respondent also claims he left word for the cutters to stop on the company's answering machine but the work continued. It is this additional work, after Respondent's efforts to get the work stopped, that constituted the additional cutting charged. Respondent also claims that the additional trees near the walkway were cut as activity beyond the scope of the contract which he had entered into with the landscape company. Mr. Miller also contends that the work was not done under his license because he was not an owner of Casey Key Estates. The owners of that company, the parent company for development, were Mr. Burke and Mr. Jaffe. He was, however, the Secretary of the corporation, but claims he did not have complete control as to who did what and where. He claims he was not a stockholder in the company and had no ownership in the operation. Under the terms of his agreement with the owners, he was to get a percentage of the profits when the development was completed. As of the date of the hearing, he has received nothing in the way of remuneration. Except for the claim that the work was not done under his license, it is so found. He also claims that in the instant case he was not acting as a contractor for the project. His reasoning here is not supported by the facts. His relationship with the other developers was based on the fact that he obtained the option to purchase the land; he was to put in the utilities; and he was to build the homes and construct the walk over to the beach and the seawall. He also was the one who obtained all permits and who entered into the contract for trimming with Southern Landscaping. It is found, therefore, that he was, in fact, the general contractor for this project and ultimately responsible for all actions taken under his certificate. Mr. Miller cites in his defense that as he understands the law, mangroves can be trimmed without a permit between October and March, up to 25% of the lateral growth, and in his opinion, the trimming did not constitute more than that allowable 25%. This is clearly not so, as evaluation of the Petitioner's photographs, taken near the time in question, which Respondent agrees fairly represents the site at the time, clearly indicates that more than 25% of the lateral growth of the trees' foliage was taken off. It should be noted, however, that a photograph taken some substantial time after the cutting shows that the trimmed area is filling in again and the trees are not dead. This does not mean there was no damage, however. Mr. Easely, the Director of Forestry, whose expertise indicates a reliable opinion, opined that the mangroves are not as healthy as they should be. Once cut, they are going through a period of shock and are branching out from reserve buds developed by the tree for emergency situations such as fire and damage. The tree, once in this condition, has a much shorter life span. Though new trees may, and probably will come in, there is a loss of habitat in the a rea as a result of the trimming, of some 30 to 40 years. In any case, minimization of damage does not excuse or justify prohibited trimming.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Respondent, Frank W. Miller's certification as a General contractor be suspended for three years, with the execution of the last two years of the suspension stayed under such terms and conditions as prescribed by the Construction Industry Licensing Board, and that he pay an administrative fine of $5,000.00. RECOMMENDED this 8th day of April, 1991, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of April, 1991. COPIES FURNISHED: Robert B. Jurand, Esquire Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Frank W. Miller 20 Dover Drive Englewood, Florida 34223 Jack McRay General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Daniel O'Brien Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202
The Issue Whether Respondent's state teaching certificate should be suspended or revoked pursuant to Chapter 231, , Florida Statutes, asset forth in Petition, dated May 21, 1979. This is an administrative proceeding whereby the Petitioner seeks to take adverse action concerning the teaching certificate of the Respondent based on two counts of misconduct arising from the teacher/pupil relationship. The first count alleges that the Respondent had sexual intercourse with a seventh grade student on one or more occasions during the 1972 school year. The other alleges that during the 1978 school year, the Respondent kissed a female student on the lips on one or more occasion. The Petitioner herein was filed pursuant to directions of the State Commissioner of Education who, on May 18, 1979, found probable cause to justify disciplinary action under the provisions of Section 231.28, Florida Statutes. Respondent requested an administrative hearing by his answer to the Petition, dated June 20, 1979.
Findings Of Fact Respondent holds Florida Teaching Certificate No. 157255, Graduate, Rank II, valid through June 30, 1989, covering the areas of English elementary education, and junior college. He received a Maser's Degree in education from South Carolina State College in 1969, and obtained Florida teaching certification in August, 1969. At the time of the incidents alleged in the Petitioner, Respondent was employed as a teacher in the public schools of Orange County. (Testimony of Respondent, case pleadings) During the 1971-72 school year, Respondent was a sixth grade teacher at the Grand Avenue Elementary School, Orlando, Florida. At some undisclosed time subsequent to the end of the school year, an Information was filed against Respondent by the State Attorney, Ninth Judicial Circuit of Florida, as a result of allegations that he had engaged in sexual intercourse with one of his twelve- year-old female students in 1972. The case was thereafter nolle prossed by the State Attorney for insufficient evidence. (Testimony of Nagel, Bailey) The alleged victim, Harriett Moten, testified at the hearing that on a number of occasions during the period January or February through May, 1972, while a twelve-year-old student in Respondent's sixth grade class, Respondent had sexual intercourse with her in a storage area behind the stage of the school auditorium. She testified that such incidents occurred approximately twice a week at about 11:00 A.M. during a class period. At those times, Respondent allegedly sent her out of class on an errand, such as obtaining film, and then joined her in the backstage area. She stated that these encounters would consume approximately 20 or 25 minutes by the time she returned to class, and the Respondent came back to class a short time later. Although music classes were conducted in the auditorium practically every day of the school week during the times in question, Moten testified that she never saw the auditorium in use or heard music while she was behind the stage. She stated that she submitted to Respondent's advances because she was afraid of him. She further testified that on one occasion Respondent had brought another female student to the rear of the stage who observed his activities with her. The deposition testimony of another former student, Thomas Grier, was admitted in evidence wherein he testified that he had once observed Respondent lying on top of the student who supposedly had once witnessed Respondent and Moten behind the stage. This incident also allegedly took place behind the auditorium after a music class. He further testified that he had observed Respondent enter the classroom on a number of occasions with one or the other of the tow female students. The witness was deposed at Zephyrhills Corrections Institute, Zephyrhills, Florida, where he was incarcerated for possession of a firearm. It was his third conviction of a felony. Harriet Moten testified that she gave birth to a child in January 1973. Although her blood type and that of Respondent is 0, she was informed by an Assistant State Attorney that her child's blood type was A. She had been a failing student during her sixth grade year and had been paddled a number of times by Respondent for disciplinary reasons. She informed her mother of Respondent's actions in the summer of 1972 when she experienced irregular menstrual periods and was found to be pregnant after her mother took her to a physician. She had not informed her mother earlier concerning the matter because they did not get along with each other. She claimed that she had not had sexual relations with anyone other than Respondent. Respondent denied the allegations at the hearing and said that, although the student had been one of his "problem children" whom he had to discipline on occasion, she had appeared to like him and was the only student who had brought him a Christmas present in 1971. From the foregoing, it is considered that the improbable and uncorroborated testimony of Harriet Moten, when viewed against Respondent's unequivocal denial of the allegations, is insufficient upon which to predicate a finding that Respondent had sexual intercourse with the student, as alleged in the complaint. The deposition testimony of Grier which, in part, supports the allegations, is not deemed credible. (Testimony of Moten, Grier (deposition, Petitioner's Exhibit 3), Respondent, Petitioner's Exhibit 5, Respondent's Exhibits 1, 2, 5). During the 1978-79 school year, Respondent taught sixth grade at the Cypress Park Elementary School, Orlando, Florida. On November 20, 1978, one of his students, Patricia Foster, accompanied by another member of her class, Lola Ortega, reported to the school principal that in the preceding October, Respondent had kissed her in the classroom during a-recess period when no one else was present. Lola told the principal that she had opened the classroom door at the time and observed the incident. The principal reported the matter to a school board Area Administrator who interviewed the two girls on the following day. Patricia told this official that Respondent had kissed her twice on the lips during the recess period and that, after the first kiss, he had said he "didn't mean it." Patricia said that on the second occasion, she looked up and saw Lola open the door and then close it. She further stated that she had not told her parents of the incident because her stepfather would have become angry, and that she had not told the principal earlier because she didn't want to get Respondent in trouble. Lola told the Area Administrator that she had opened the door to the classroom and observed Respondent stoop over and kiss Patty on the lips, at which time she closed the door and returned to the playground. At the hearing, Patricia testified that Lola had opened the door when Respondent kissed her the first time. Lola testified that at the time she opened the classroom door, Respondent had his back toward her and that she only saw him bend over the desk. She conceded that she had not seen Respondent actually kiss Patricia and denied that she had told anyone that she had. However, upon further inquiry, she admitted telling the principal that she had seen Respondent kiss the student and could not explain why she had done so. Patricia later told one of her classmates at a "slumber party" about the incident. That girl, Michelle Cridelle, testified that she thought Patricia had told her Respondent had kissed her twice on different days. Respondent had disciplinary problems with Lola during the previous school year and at the beginning of the 1978-79 school year. Also, on a prior occasion, she and another female student had fabricated a letter purportedly written by a male student to them containing coarse language which she admitted was designed to get the boy in trouble when it was delivered to her father. In another instance, Patricia and Lola had been untruthful in telling Patricia's mother where they had been on one occasion. Lola had been a frequent disciplinary problem for the school principal who considered her to be a leader and catalyst in creating problems at school. Respondent testified that, on the day of the alleged kissing incident, another student was in the classroom with Patricia during the recess period, and that he had simply gone to her desk and colored some leaves on a box. He denied kissing her on this or any other occasion. The school principal is of the opinion that Respondent is a very truthful individual. It is considered that the improbable, contradictory, and uncorroborated testimony of Patricia concerning the alleged kissing incident, coupled with Respondent's denial of the same, is insufficient upon which to base a finding that Respondent committed the acts alleged in the Petition. (Testimony of Foster, Richardson, Ortega, Cridelle, Cossairt, Taylor, Brady, Respondent, Petitioner's Exhibit 1). Respondent was relieved of his duties as a classroom teacher by the Superintendent of Orange County Public Schools on November 28, 1978, and reassigned to an Assistant Superintendent's office to perform administrative duties pending investigation of the 1978 allegations by Petitioner. He had been supervised by the principal of the Cypress Park Elementary School for a period of six years. The principal testified that the other teachers respected him, but that he should not be working with children due to his abrasive personality with students. During the three year period 1976-78, Respondent's performance evaluations were uniformly "Satisfactory," except in those areas reflecting his relations with students and parents, and in his support of "state laws and county policies." It was noted in the 1977 and 1978 evaluations that improvement was needed in those areas. Narrative comments of the evaluations further indicated his lack of rapport with students and parents, lack of support of corporal punishment practices, and his ridicule of students. One fellow teacher at Cypress Park Elementary School submitted a letter to Petitioner in January, 1978, stating that Respondent had always conducted himself properly with students and parents on the occasions when she had observed him at the school and during school functions. (Testimony of Cossairt, Petitioner's Exhibit 2, Respondent's Exhibit 3, supplemented by Respondent's Exhibit 4).
Recommendation That the charges against Respondent Isadore Smith be dismissed. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 12th day of February, 1980. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: J. David Holder, Esquire 110 North Magnolia Drive Suite 224 Tallahassee, Florida 32301 Edward R. Kirkland, Esquire 126 East Jefferson Street Orlando, Florida 32801 Professional Practices Council 319 West Madison Street - Room 1 Tallahassee, Florida 32301
Findings Of Fact Petitioner has been an employee of HRS for more than seven years. She has cerebral palsy and uses a motorized wheelchair. During her tenure with HRS, she worked initially as a CETA employee under the supervision of Timothy Myers. She was a Social Work Assistant in a para-professional position requiring minimal paperwork. She did very well and had no problems with her supervisor or cc-workers. She received a promotion to the position of AFDC worker under the supervision of Ann Hauckes in October, 1979, and worked in the HRS Suncoast office in St. Petersburg for approximately six months. During that six-month period, she had problems completing the "on-call" and workload responsibilities of an AFDC worker and was placed on conditional status. Due to her unhappiness with her supervisor and her conditional evaluation, she was transferred from the HRS Suncoast office in St. Petersburg to Pinellas Park under the supervision of Theresa Ruppel. Ruppel supervised Petitioner from March, 1980 to January, 1982. Ruppel was instructed by her superiors to give Petitioner a limited caseload so that Petitioner could perform her job duties as an AFDC counselor, and Petitioner was given a specialized caseload of AFDC foster care cases which required limited client contact and the use of small, lightweight files. Petitioner continues to be assigned a minimal workload of substantially less than other AFDC workers. She is evaluated just within her special work assignment and not within the responsibilities of an AFDC worker. When Petitioner first came to Ruppel's unit, she brought with her unfinished "on-call" work which Ruppel had to transcribe for her. During Petitioner's tenure under Ruppel, she served only as a backup "on-call" worker. Ruppel found Petitioner to be a very difficult employee to supervise. Petitioner had emotional outbursts as a worker in Ruppel's unit but received no disciplinary action, even when on one occasion she left the work site after having an emotional outburst and refused to advise the supervisor as to why she was leaving or when she would return to work. After Ruppel transferred out of the Pinellas Park Service Center, Susan Gilbert became Petitioner's supervisor from January, 1982, until January, 1984. The initial working relationship was good. Gilbert rearranged her office so Petitioner's wheelchair moved easily within it. Gilbert assisted Petitioner by updating Petitioner's policy manual, by making an easy reference chart for Petitioner so that every time Petitioner needed something, she did not have to pull out the HRS manual and read it but could just refer to the chart. Gilbert even assisted Petitioner with a case in which the written narrative had been accomplished by Petitioner, by taking the computer document apart, stapling it, and organizing it so it could be put in the filing cabinet. Gilbert also assisted Petitioner in preparing for the recertification test that all AFDC counselors must take. Gilbert made up some exercises to help Petitioner take the test. She allowed Petitioner 8 hours in which to take the 4 hour test. When Petitioner failed the test, Gilbert gave her 12 hours in which to take it again. The relationship between Gilbert and Petitioner deteriorated when, in March or April of 1982, Petitioner invited Gilbert, her supervisor, to take two days of annual leave and a weekend to accompany Petitioner to a Miss Wheelchair pageant, an invitation which Gilbert declined because she did not want to have a personal relationship with any person she supervised. The relationship then deteriorated, with Petitioner calling Gilbert a snob for refusing to go to the Miss Wheelchair pageant and accusing Gilbert of not liking her due to her handicap. Thereafter, there were emotional outbursts by Petitioner over minor matters. Petitioner served as a backup "on-call" person under Gilbert until December of 1982, when she was removed because she had complained about the amount of paperwork and she did not want to be "on-call" on Fridays. Petitioner was put back on "on-call" duty in June, 1983, due to Petitioner's complaints, and she worked "on-call" with her friend Frances Whittle who was willing to help Petitioner with those duties until Petitioner was moved out of Gilbert's AFDC Unit in January, 1984. Between January, 1983, and December 5, 1983, Petitioner would not accept authority or supervision from Gilbert. Petitioner questioned every decision Gilbert made. She would leave Gilbert's office upset and come back in a matter of minutes, arguing with her supervisor. The problem in the working relationship between Petitioner and Gilbert resulted in high-level District Administration meetings to determine how to resolve the problem. Initially, in early 1983, the high-level District officials met to determine how they could resolve the conflict, and the Deputy District Administrator suggested transferring Petitioner to the Clearwater AFDC Unit under a new supervisor. Petitioner opposed being moved to the Clearwater office, and so the Department did not move her from Pinellas Park to Clearwater. Both Gilbert and Petitioner agreed to try to resolve any problems on their own. As 1983 went on, the work relationship again deteriorated which again resulted in the District Administrator, Deputy District Administrator, Personnel Officer, Gilbert, Petitioner and the Human Services Program Administrator meeting to see if they could resolve the deteriorated relationship. There was a meeting on December 5, 1983, with those persons and another meeting on December 12, 1983. On December 5, 1983, four options were presented to Petitioner: (1), transferring Gilbert to another unit if HRS could find another supervisor willing to trade positions with her; (2), transferring Petitioner to a position in St. Petersburg under a different AFDC supervisor; (3), allowing Petitioner to work at home and equipping her office at home with all the rehabilitation equipment necessary to do her work, under which option she would only have to be involved with Gilbert once a week to have her work reviewed; and (4) having Petitioner stay at the Pinellas Park office but transferring her supervision away from Gilbert, with Petitioner being supervised long distance by Karen Raym Girard who would then drive, initially from Suncoast in St. Petersburg and, when the Wildwood Service Center opened, from the Wildwood office in St. Petersburg once a week or as often as was needed by Petitioner. Option 4 was the option chosen by Petitioner at the December 12 meeting. 2O. The effective date for the transfer of supervision from Gilbert to Karen Raym Girard was to be effective January 3, 1984. Subsequent to December 12, 1983, but before January 3, 1984, Petitioner changed her mind and did not want option 4. Petitioner requested a third meeting with the District Administrator after she had changed her mind about the option she had selected. The District Administrator declined a third meeting and told Petitioner that she could institute an internal grievance if that is what she wanted to do. When the District Administrator did not have yet another meeting, Petitioner filed an internal HRS grievance. Before the grievance committee met, the transfer of supervision did take place on January 3, 1984. During the period January 3, 1984 until February 10, 1984, Petitioner decided she was being segregated because she was working in the Pinellas Park office but was being supervised by Girard who was located in the Suncoast office in St. Petersburg. Petitioner's feelings of segregation were based upon the fact that she was taken off "on-call" duties in Gilbert's office because she was no longer a member of that unit; her name was removed from Gilbert's bulletin board showing the names of the persons in Gilbert's unit; and there was a sign placed on a vacant office in the building reserving it for Girard to use when her supervision of Petitioner required. While Petitioner was under the supervision of Girard from January 3, 1984, until February 10, 1984, Girard had weekly conferences with Petitioner where Girard would come from St. Petersburg to Pinellas Park to the office assigned to her in the Pinellas Park Service Center. Petitioner told Girard that she wanted Gilbert to be a personal friend with her and associate with her after working hours, and that she felt that Gilbert did not like her because Gilbert did not pursue being a personal friend of hers. During the time that Girard supervised Petitioner, she found Petitioner very difficult to supervise. Petitioner would lose her temper, raise her voice, or lose emotional control. The main issue Petitioner always wanted to discuss with Girard was that she wanted Gilbert to be friends with her. Petitioner did not want to discuss work-related issues with Girard. From February 10, 1984 until August 31, 1984, Petitioner was on extended leave -- annual leave, sick leave, and leave without pay. She never physically transferred to Wildwood in St. Petersburg, although her office furniture was moved there while she was on leave. The HRS internal grievance committee consisted of one member of Petitioner's choosing, one of HRS' choosing, and one agreed upon by both HRS and Petitioner. The internal grievance committee found: that an irreconcilable personality conflict existed between Gilbert and Petitioner; that the conflict was based on Petitioner's desire for a relationship that was personal as well as professional and Gilbert's inability to provide that relationship; that Petitioner did not have any problems with performing her job duties and was rated above satisfactory (it did not mention that Petitioner was only evaluated against her own performance) that considerable efforts were made to try to improve and clarify the relationship between Gilbert and Petitioner; that those efforts were not successful and the situation deteriorated rather than improved; that four options or solutions were discussed with Petitioner; that Petitioner participated in the selection of the option to remain in Pinellas Park but transfer her supervision, and that she agreed to that option; that subsequently she experienced a feeling of segregation and decided that the option was not in her best interest; that due to her physical location and supervision, she was segregated from her unit; that the committee was unable to substantiate any instance of discrimination due to Petitioner's handicap on the part of management; that she had been afforded special accommodations due to her handicap not normally given employees; that Petitioner's proposed solution was to return to her previous unit for a 90-day trial period during which all parties should work to improve the relationship. On February 9, 1984, the internal grievance committee recommended that: Both Petitioner and Gilbert be referred to EAP, Petitioner for counseling and more realistic expectations in dealing with management/employee relationships and Gilbert for sensitivity training in dealing with employees with special needs. Petitioner be physically transferred to Girard's unit when the HRS move to the Wildwood Service Center was made for the following reasons: Petitioner was experiencing segregation which could only be alleviated by physically locating her with the unit of which she was a member. The personality conflict between Gilbert and Petitioner could not be solved. The situation was detrimental to Petitioner's emotional and physical well being. By waiting to relocate Petitioner at the time of the HRS move to Wildwood, she would not be singled out as being moved because of a problem. Moving her when others were also being moved would afford her the opportunity to naturally interrelate with staff experiencing the same action. It was hoped that would facilitate her adjustment to her new service center. The Wildwood facility could easily be made accessible for her and a room could be adapted to her needs. Wildwood is on the Interstate and, therefore could be reached from Petitioner's home within a reasonable time frame. In the future, District Management should make every effort to afford Petitioner treatment consistent with treatment afforded all other employees. Special considerations given in the past had exceeded reasonable accommodation and had led Petitioner to have unrealistic expectations and difficulty in adjusting to the normal work setting. The many special considerations had not been to her benefit and, in fact, had been a disservice to her. On February 23, 1984, Petitioner's position was transferred from Pinellas Park to St. Petersburg. The District Administrator accepted the recommendation of the internal grievance committee and agreed to transfer Petitioner from Pinellas Park to Wildwood in St. Petersburg when Wildwood opened in the spring of 1984. The District Administrator was satisfied that Petitioner could drive from Pinellas Park to St. Petersburg where she had previously worked. Petitioner was very unhappy with the HRS internal grievance committee recommendation because she did not want to be transferred from Pinellas Park to St. Petersburg where she had formerly worked. Her preference at that Point was that the District place her back under the supervision of Gilbert and that they attempt to work out any relationship problems. When Gilbert transferred away from her supervisory position in Pinellas Park to a counseling position in the Central Licensing Unit in June, 1984, HRS offered Petitioner the opportunity of coming back to Pinellas Park with a new supervisor, Lawrence R. Raym. Raym supervised Petitioner from July 1, 1984, until February, 1985. During that time, Petitioner's temper tantrums continued. It was estimated that her caseload only took from 2 to 7 days to accomplish each month. Susan McPhee supervised Petitioner from March of 1985 until September of 1986 and also had problems with Petitioner's general acceptance of supervisory authority. During McPhee's supervision of her there were times when Petitioner would not like what McPhee told her and would abruptly terminate the conference by simply wheeling out of the room in anger. Martin Ademy became Petitioner's supervisor in October of 1986 when this case was initially scheduled for final hearing. Ademy has not had any difficulty in supervising her. Ademy estimates that it should take her between 10 to 12 days a month to do the work assigned to her. Any work she does not complete is assigned to another AFDC counselor. Ademy does not have Petitioner do "on-call" work because, in his opinion, she cannot handle those duties. Although Petitioner has applied for some unidentified promotions which she has not received, there is no evidence that Petitioner is able to perform the duties of those unidentified positions with reasonable accommodations being afforded her. Additionally, some of those positions were at locations to which Petitioner had refused to be transferred. Respondent has not discriminated against Petitioner based upon her handicap and has not retaliated against her in any way. HRS has provided Petitioner with much more than reasonable accommodation. To the extent that HRS has treated Petitioner differently than other employees, it has been through pampering rather than discrimination or retaliation. Petitioner has not suffered any physical or emotional illness as a result of any conduct on the part of Respondent. Although Petitioner testified that her absence from work from February until August, 1984, was due to illness brought on by Respondent's discrimination and retaliation, her testimony is simply untrue. Petitioner became ill while she was on annual leave. The minimal medical attention she received was for long- standing medical problems. Although Petitioner had provided HRS with reports from her doctor indicating her medical problems were work-related, those opinions were not those of her doctor. Rather, those reports were "doctored" by Petitioner herself before she gave them to HRS.
Recommendation Based upon the foregoing Findings of Fact and conclusions of Law, it is, therefore RECOMMENDED that a Final Order be entered finding that Respondent has not discriminated or retaliated against Petitioner and dismissing Petitioner's Petition for Relief from an Unlawful Employment Practice. DONE and RECOMMENDED this 9th day of July, 1987, in Tallahassee, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of July, 1987. COPIES FURNISHED: Beverly L. Lassor 6333 81st Avenue North Pinellas Park, Florida 34665 Barbara Ann Dell McPherson, Esquire Department of Health and Rehabilitative Services 2255 East Bay Drive Clearwater, Florida 33546 Donald A. Griffin, Executive Director Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925 Dana Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925
