Findings Of Fact Mitchell is a highway construction contractor with its principal place of business located in Tallahassee, Florida. FDOT is the agency of the state of Florida which is responsible for the construction and maintenance of the roads designated as part of the State Highway System. On July 15, 1994, the parties entered into Contract No. 18,784 (contract) which required Mitchell to resurface the existing roadway, construct four (4) foot wide paved shoulders and perform other related work for $626,347.44 in State Project No. 59100-3512 (project) in Wakulla County, Florida. The contract incorporated by reference special provisions attached thereto and FDOT's Standard Specifications for Road and Bridge Construction (1991) (Standard Specifications). The contract required Mitchell to complete the project within 84 calendar days. Construction began on August 31, 1994, which was contract day one (1). In order to construct and pave the shoulders, Mitchell had to remove the top soil and stabilize the subgrade. After removing the top soil, Mitchell hauled borrow material to the project site. Mitchell spread the borrow along the roadside and mixed it with the existing sub-soil. Mitchell then attempted to attain a certain required density by compacting the shoulders. Mitchell hauled borrow to the project site from October 5, 1994, through October 8, 1994, and on October 13, 1994. Mitchell rolled the surface of the shoulders on October 18, and 20-22, 1994. The contractor was unable compact the subgrade to the required density. On or about October 22, 1994, FDOT refused to pay Mitchell for additional material to reestablish grade on the shoulders. From approximately October 24, 1994, through November 11, 1994, Mitchell remixed and compressed the subgrade soil in an unsuccessful attempt to stabilize the shoulders. From October 25, 1994, through November 7, 1994, Mitchell wrote at least four (4) letters to FDOT discussing the problems at the project site in achieving required density and stabilization of the subgrade on the shoulders. These letters are not a part of the record in this case. However, the hearing transcript from February 15, 1995, clearly shows Mitchell's position: (1) Plastic materials beneath the subgrade (unexpected conditions not contemplated under the contract) were causing a delay on the project and preventing Mitchell from achieving the required density and stabilization of the subgrade; (2) Mitchell would have to excavate the plastic material and haul in additional borrow to reestablish the grade of the shoulders before stabilization could be obtained; (3) Mitchell needed an extension of time in which to complete the project; and (4) Mitchell wanted FDOT to pay for the expenses (not covered under the contract) that Mitchell would incur in curing the problem. On or about November 11, 1994, Mitchell informed FDOT in writing that Mitchell was suspending work on the project. Mitchell suspended work without obtaining FDOT's approval as required by the contract. By letter dated November 14, 1994, FDOT responded to Mitchell's four (4) letters. FDOT's letter did not specifically deny each of Mitchell's requests but made it clear that Mitchell's claims were unsubstantiated. FDOT took the position that Mitchell created the problems with compaction by failing to follow FDOT procedures: (1) Prior to hauling in stabilizing material, Mitchell did not submit a sample of the existing on-site material so that a lime rock bearing ratio (LBR) could be established to determine how much, if any, stabilizing material would be needed to obtain the required LBR; (2) Mitchell did not submit samples or get FDOT's approval of the material used for stabilization before spreading and mixing it on the project site; (3) Mitchell did not sufficiently mix the material used for stabilization so that density could be obtained; (4) Soil samples of the material beneath the area being stabilized, to a depth of approximately three and one half feet, indicated that it was suitable for compaction; (5) The sources of borrow material used in attempting to stabilize the subgrade were not approved as required by the contract; (6) Mitchell added unapproved material, in excess of what was required, to the borrow material hauled to the project site. FDOT wrote this November 14, 1994, letter after investigating the problem and performing certain field and laboratory soil tests. On December 12, 1994, Stephen Benak, District Construction Engineer for FDOT, made a visit to the project site to conduct further investigation. Later that day the parties had a meeting. Mitchell again explained to FDOT that unexpected conditions at the job site were causing problems and preventing the contractor from obtaining density requirements on the subgrade. FDOT again informed Mitchell: (1) The unapproved borrow material that Mitchell previously hauled to the project site was unsuitable and causing the problem; and (2) Mitchell's proposal to under-cut (excavate and haul more borrow material) was a drastic cure and not compensable under the contract. Mitchell did not immediately return to work on the project. With credit for twenty-four (24) rain days, the contract performance time increased to 108 calendar days. Taking the rain days and intervening holidays into consideration, FDOT determined that the contract term expired on December 20, 1994. Mitchell did not return to work at the project site until December 23, 1994. By letter dated December 29, 1994, FDOT gave Mitchell notice of the agency's intent to declare Mitchell delinquent on the project and to suspend its Certificate of Qualification and that of all its subsidiaries. This letter states that Mitchell was making unsatisfactory progress on the contract because the contract time had expired and the work was not complete. The letter refers to section 8-8.2 of FDOT's Standard Specifications and Rule 14- 23, Florida Administrative Code. On January 12, 1995, Mitchell filed a Request for Formal Hearing without making an additional request for extension of contract time. This petition states: Mitchell Brothers has filed timely requests for extension of contract time due to the delays resulting from the lack of constructability and differing site conditions of the project. Therefore, the Department's issuance of the notice of delinquency is invalid. After receiving Mitchell's request for hearing, FDOT designated Tom Kinsella, Esquire, as counsel for the agency. By letter dated January 23, 1995, Mr. Kinsella referred Mitchell's request for a hearing to DOAH. The Hearing Officer issued a Notice of Hearing on January 27, 1995, setting this matter for hearing in DOAH Case No. 95-289 on February 8, 1995. In order to allow the parties sufficient time for discovery, the Hearing Officer subsequently rescheduled the case for hearing on February 15 and 16, 1995. The parties took depositions every day from February 2, 1995, to February 13, 1995. Bill Carpenter, FDOT's Project Engineer on the project at issue here, was the first deponent. Prior to Mr. Carpenter's deposition, Mr. Kinsella inquired as to whether there were any outstanding time requests. Mr. Carpenter assured Mr. Kinsella that FDOT had addressed and denied all outstanding time requests in FDOT's letter dated November 14, 1995. At the formal hearing in DOAH Case No. 95-289 on February 15, 1995, Mr. Benak testified on FDOT's behalf. On direct examination, Mr. Benak testified that Mitchell made no "proper" requests for contract time extensions. During cross-examination, Mitchell questioned Mr. Benak concerning Mitchell's letters written between October 25, 1994, and November 7, 1994. Initially, Mr. Benak testified that Mitchell's letters were not "formal" requests for extension of contract time. The Hearing Officer ruled that two of these letters contained preliminary requests for extension of contract time. Mr. Benak subsequently questioned whether Mitchell's letters were timely pursuant to section 8-7.3.2, Standard Specifications. Without resolving the issue of timeliness, Mr. Benak conceded that the delay was on-going and that the agency had never written to Mitchell requesting more specific information about the delay, i.e. all documentation of the delay and a request for the exact number of days justified to be added to the contract time. Therefore Mitchell was never required to submit a more formal request for contract time extensions. However, Mr. Benak never conceded that Mitchell's preliminary requests were pending at the time the agency issued its notice of intent to declare Mitchell delinquent or that the agency failed to follow its own procedures before issuing that notice. Mr. Benak maintained that the contract did not provide for extensions of contract time for delays due to the fault or negligence of the contractor. He testified that FDOT's letter dated November 14, 1994, effectively denied Mitchell's pending preliminary requests for time extensions and informed Mitchell that the delay was due to the contractor's fault or negligence. Accordingly, FDOT was not required to solicit further information from Mitchell before issuing the December 29, 1994, delinquency letter. As the hearing on February 15, 1995, progressed, it became apparent that the parties disputed a variety issues involving mixed question of fact and law. In ruling on an objection which is not at issue here, the Hearing Officer stated: * * It seems to me the more pertinent, you know, a much more pertinent area -- and we haven't addressed this in terms of the Department's procedures, that would start a request for extension of time, and it appears that the Department has never acted on that. And you've raised a very interesting matter, and that is under the rules, apparently if that process has been initiated, you can't go to delinquency, which means that this activity, this that they've tried to initiate, lacks the appropriate legal predicate. That's a good point. After the hearing in DOAH Case No. 95-289 recessed on February 15, 1995, Mr. Kinsella advised Mitchell's counsel that FDOT would withdraw the delinquency. Mr. Kinsella wanted to alert Mitchell that it was unnecessary for witnesses to attend the hearing the next day. When the hearing resumed on February 16, 1995, FDOT filed its Notice of Withdrawal of Notice of Delinquency and Motion for Relinquishment and Remand of Jurisdiction. The motion states, "The Department is now withdrawing it (sic) notice of intent to declare delinquincy without prejudice, it appearing that all of Mitchell Brothers, Inc., requests for additional time may not have been addressed by the Department." However, competent persuasive record evidence indicates that FDOT made this determination based on the Hearing Officer's prior rulings and statements during the hearing on February 15, 1995. Mr. Kinsella stated on the record: * * After the conclusion of the hearing yesterday on the basis of the matters that came up in terms of whether the preliminary requests for time extensions have been properly met by the Department and evaluated and addressed in the correspondence as pointed out by the Court, we went back and evaluated, and determined that we don't believe those have been fairly met and addressed by the Department, and that this delinquency was premature for that reason. Counsel for Mitchell did not object to the motion to relinquish jurisdiction but requested an opportunity to submit a proposed order. The Hearing Officer stated that Mitchell could file a motion to submit a proposed order and that FDOT would have an opportunity to respond to that motion. The Hearing Officer did not set a date certain for the filing of the posthearing motion but Mitchell's counsel stated that the motion would be filed in a very brief time, within a day or two. February 16, 1995, was a Thursday. The following Monday, February 20, 1995, Mitchell filed a Motion to Permit Submittal of Proposed Findings and for Entry of a Recommended Order, a proposed recommended order for the Hearing Officer's signature, and a Motion for Attorney's Fees. DOAH's Clerk docketed Mitchell's motion to submit proposed findings and the proposed recommended order in DOAH Case No. 95-289. The Clerk docketed Mitchell's motion for attorney's fees under DOAH Case No. 95-1096F. That same day, the Hearing Officer entered an Order Closing File which did not retain jurisdiction over any issue in DOAH Case No. 95-289. Subsequent relevant pleadings and procedures arising in the instant case between February 20, 1995, and June 14, 1995, are set forth above in the Preliminary Statement and incorporated herein. The record indicates that the parties were at an impasse when Mitchell suspended work on the project on or about November 11, 1994. After FDOT's November 14, 1994, letter and the meeting on December 12, 1994, the parties certainly were aware of each other's positions, and were deadlocked as to the reason for the delay in stabilizing the subgrade. The dispute between them involved multiple questions of fact and law which are not at issue here. FDOT's December 29, 1994, delinquency letter gave Mitchell what it was entitled to, i.e., a point-of-entry to challenge, in an administrative proceeding, FDOT's position that Mitchell created the conditions causing the delay in stabilizing the subgrade. FDOT had a reasonably clear legal justification for issuing that letter based on sections 8-7.3.2 and 8-8.2 of FDOT's Standard Specifications and Rule 14-23, Florida Administrative Code. The delinquency letter was not issued and subsequently filed with DOAH for an improper or frivolous purpose. As of February 15, 1995, the 165th calendar day of the project, Mitchell continued to work on the project which was only 36 percent complete and which FDOT had not conditionally accepted. Mitchell has incurred $44,408.50 in attorney's fees and $18,071.13 in cost in litigating DOAH Case No. 95-289 and DOAH Case No. 95-1096F. Mitchell is also obligated to pay $1,045.00 to Carolyn Raepple, Esquire, who testified concerning the reasonableness of the fees and costs that Mitchell incurred in DOAH Case Nos. 95-289 and 95-1096F. FDOT has presented no evidence to rebut the reasonableness of these fees and costs.
The Issue The issue is whether Florida Administrative Code Rule 69B-211.042(6), (8), and (14) is an invalid exercise of delegated legislative authority within the meaning of Subsections 120.52(8)(b), (c), and (e), Florida Statutes (2002).
Findings Of Fact Respondent is the state agency responsible for licensing insurance agents in the State of Florida, pursuant to Chapter 626, Florida Statutes (2002). On April 3, 2003, Petitioner applied for a license as a resident company employee property and casualty adjuster (resident adjuster license). Petitioner truthfully answered all questions on the application, including those questions pertaining to Petitioner's criminal history and guilty plea to a felony charge in Georgia. On September 25, 2003, Respondent issued a Notice of Denial of Petitioner's license application. Respondent based the denial, in relevant part, on the grounds that Florida Administrative Code Rule 69B-211.042(6) and (14) prohibit Respondent from granting the application while Petitioner is on probation or in a pre-trial intervention program; and that Florida Administrative Code Rule 69B-211.042(8) requires Petitioner to wait five years after the plea dated May 14, 2002, before applying for a license. On a date not disclosed in the record, Respondent issued a Second Amended Notice of Denial (the Amended Notice of Denial). The record does not disclose a first amended notice of denial. The Amended Notice of Denial, in relevant part, deletes grounds for the proposed denial that are not relevant to this Final Order. On May 14, 2002, Petitioner pled guilty to a single felony charge of possession of cocaine. A Georgia court sentenced Petitioner under Georgia's First Offender Act. If Petitioner successfully completes probation, Georgia will dismiss the felony charge. If Petitioner does not successfully complete probation, the Georgia court may revoke Petitioner's probation, adjudicate Petitioner guilty as charged, and sentence Petitioner to the maximum sentence authorized under Georgia law. Petitioner challenges the following provisions in Florida Administrative Code Rule 69B-211.042: (6) Probation. The Department shall not grant licensure to any person who at the time of application or at any time during the pendency of the application is serving a probationary term on any felony crime, or any misdemeanor crime, except for those crimes specified in Chapter 316, F.S., which are not punishable by imprisonment. The Department shall not substantively consider an application until the applicant has successfully completed his or her probationary term. * * * (8) Required Waiting Periods for a Single Felony Crime. The Department finds it necessary for an applicant whose law enforcement record includes a single felony crime to wait the time period specified below (subject to the mitigating factors set forth elsewhere in this rule) before licensure. All waiting periods run from the trigger date. (c) Class C Crime. The applicant will not be granted licensure until 5 years have passed since the trigger date. * * * (14) Pre-Trial Intervention: Specific Policy. (b) The Department will not grant licensure to any person who at time of application is participating in a pre-trial intervention program. The Department finds it necessary to the public welfare to wait until the pre- trial intervention is successfully completed before licensure will be considered. Petitioner challenges the foregoing provisions in Florida Administrative Code Rule 69B-211.042 on the grounds that each provision violates Subsections 120.52(8)(b), (c), and (e), Florida Statutes (2002). Petitioner alleges that each challenged provision of the rule, respectively, exceeds the grant of rulemaking authority; enlarges, modifies, or contravenes the specific provisions of law implemented; or is arbitrary or capricious within the meaning of Subsections 120.52(8)(b), (c), and (e), Florida Statutes (2002). The challenged provisions of the rule may reasonably be construed in a manner that preserves the validity of the rule. The express terms of the rule do not mandate an interpretation that violates Subsections 120.52(8)(b), (c), and (e), Florida Statutes (2002). However, Respondent interprets the challenged provisions of the rule in a manner that, if accepted, would violate Subsections 120.52(8)(b) and (c), Florida Statutes (2002). The enabling legislation for Florida Administrative Code Rule 69B-211.042 is Subsection 626.207(1), Florida Statutes (2002). Subsection 626.207(1), Florida Statutes (2002), authorizes Respondent to adopt rules establishing specific waiting periods that Respondent must apply after Respondent denies, suspends, or revokes Petitioner's license pursuant to specifically enumerated Florida statutes. In relevant part, Subsection 626.207(1), Florida Statutes (2002), provides that Respondent: . . . shall adopt rules establishing specific waiting periods for applicants to become eligible for licensure following denial, suspension, or revocation. . . . (emphasis supplied) Subsection 626.207(1), Florida Statutes (2002), prescribes a statutory prerequisite to the imposition of any waiting period pursuant to Florida Administrative Code Rule 69B-211.042. The statutory prerequisite is that Respondent must first deny, suspend, or revoke an existing license based on statutory provisions enumerated in the enabling legislation; enumerated provisions that are independent of any waiting periods. Thereafter, Respondent may impose relevant waiting periods to any application that follows Respondent's denial, suspension, or revocation of a license. The express terms of Florida Administrative Code Rule 69B-211.042 do not mandate the imposition of waiting periods without first satisfying the statutory prerequisite prescribed in the enabling legislation. The challenged provisions of the rule may reasonably be construed as authorizing the imposition of waiting periods following Respondent's denial, suspension, or revocation of an existing license. Respondent interprets the challenged provisions of the rule as authorizing Respondent to impose waiting periods without satisfying the statutory prerequisite in the enabling legislation. The waiting period that Respondent proposes to impose against Petitioner does not follow Respondent's denial, suspension, or revocation of a license within the meaning of Subsection 626.207(1), Florida Statutes (2002). When Georgia authorities arrested Petitioner for possession of cocaine on November 4, 2001, Petitioner held a Florida nonresident company all-lines adjuster license pursuant to license number A082918 (a nonresident adjuster license). Petitioner voluntarily cancelled the nonresident adjuster license on October 21, 2002. Respondent did not deny an application for renewal of the nonresident adjuster license. Nor did Respondent suspend or revoke Petitioner's nonresident adjuster license. The application for a resident adjuster license at issue in this proceeding indicates that no administrative action was ever taken against Petitioner's nonresident adjuster license. Respondent stipulated that Petitioner answered all questions on the application truthfully. The Florida licensure file that Respondent maintains shows that Respondent took no administrative action against Petitioner's nonresident adjuster license. Respondent proposes to impose a waiting period against Petitioner that that does not follow denial, suspension, or revocation of either Petitioner's previous nonresident adjuster license or the resident adjuster license that Petitioner seeks in this proceeding. The second page of the application that Petitioner submitted states that Respondent will not consider the application while Petitioner is under probation or in a pre- trial intervention program. In relevant part, the second page of the application provides: NOTE: IF YOU ARE CURRENTLY ON PROBATION OR PARTICIPATING IN A PRE-TRIAL INTERVENTION PROGRAM, YOU MAY WANT TO WAIT TO FILE YOUR APPLICATION WITH THE DEPARTMENT UNTIL YOUR PROBATION OR PRE-TRIAL PROGRAM HAS TERMINATED. (For other than minor traffic violations, the rules of the Department prohibit the approval of licensure for an individual who is currently serving a probationary term or participating in a pre- trial intervention program. ) (emphasis not supplied) After receiving the application for a resident adjuster license, Respondent issued a letter dated April 7, 2003, stating Respondent's intent to deny the application. In relevant part, the letter stated: [W]e are in receipt of the certified documents, however, a review of the documents indicate[s] that you are still on probation. The rules of the Department prohibit the approval of licensure for an individual who is currently serving a probationary term. Please write and let us know if we need to close or withdraw your application. The express terms of Subsection 626.207(1), Florida Statutes (2002), require an interpretation of Florida Administrative Code Rule 69B-211.042 that limits the imposition of relevant waiting periods to periods that follow Respondent's denial, suspension, or revocation of a license. The waiting periods begin on "trigger dates" defined in Florida Administrative Code Rule 69B-211.041(11). The express terms of the enabling legislation do not authorize the imposition of waiting periods unless the waiting periods follow a denial, suspension, or revocation of a license by Respondent in accordance with Florida law. If Respondent were to deny Petitioner's application for a resident adjuster license on the grounds that Petitioner violated one of the statutes enumerated in the enabling legislation, Subsection 626.207(1), Florida Statutes (2002), would authorize Respondent to apply the challenged provisions of Florida Administrative Code Rule 69B-211.042 to prevent Petitioner from applying for a license before the expiration of the applicable waiting period. Similarly, if Respondent were to have suspended or revoked Petitioner's nonresident adjuster license, Subsection 626.207(1), Florida Statutes (2002), would have authorized Respondent to apply the relevant waiting period to prevent Petitioner from applying for another nonresident adjuster license; or arguably to prevent Petitioner from applying for the resident adjuster license at issue in this proceeding.
The Issue Whether the suspension of the Petitioner Nelson was based on just cause.
Findings Of Fact Allen T. Nelson, Petitioner, was employed by the Department of Education, Division of Universities, University of Florida, as a Career Service employee Custodial Worker in the Physical Plant Division. During a three and a quarter month period of time the official attendance record disclosed 20 attendance deficiencies ranging from 15 minutes tardy to unauthorized absences for a full day. The employee had received an oral reprimand on July 8, 1977 for unsatisfactory attendance; a written reprimand on July 29, 1977 for unsatisfactory attendance and on September 29, 1977 was advised that his probationary period as a Groundskeeper II was unsatisfactory because of his attendance record. Because his probation was unsatisfactory, he was returned to his permanent position as a Custodial Worker. Notwithstanding official reprimands as well as counseling from his immediate supervisor, Mr. Earl Davis, and the Personnel representative for the Physical Plant Division, Mr. Danny Busseni, the employee's pattern of poor attendance and tardiness continued. While suggesting that some of his tardiness was caused by transportation problems and some of his absences were caused by family sickness and personal business, the employee was unable to give any clear or convincing reason why his attendance patterns were in any manner excusable. The employee indicated that he felt that the agency had not treated him fairly and this was one of the reasons for his poor attendance. Documentary evidence submitted by the employer confirms the steps of progressive discipline taken against the employee in an effort to improve his attendance record. The Guidelines for Standards of Disciplinary Action promulgated by the University provide that for unsatisfactory attendance the first offense shall result in an oral reprimand, the second offense in a written reprimand and that following a third offense the employee may be suspended for one week or dismissed. 8, All employees were aware of the guidelines which were incorporated in an Employee Handbook, covered in employee orientation sessions as well as being posted in areas where Career Service Employees are employed. Competent substantial evidence exists to sustain the action of the agency and "just cause" for the suspension of the employee is evident.
Recommendation Sustain the decision of the Respondent University of Florida. DONE and ENTERED this 31st day of May, 1978, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Allen T. Nelson 227 N.W. 7th Avenue Gainesville, Florida 32611 Ashmun Brown, Esquire 207 Tigert Hall University of Florida Gainesville, Florida 32611 Mrs. Dorothy Roberts Career Service Commission 530 Carlton Building Tallahassee, Florida 32304
The Issue The issues in this case are whether Respondent, A-1 Block Corp., discriminated against Petitioner, Harold E. Ford, Jr., on the basis of his race and/or color and in retaliation, and, if so, what remedy should be ordered.
Findings Of Fact Respondent is a family-owned business that manufactures concrete products, ready-mix concrete, concrete block, and precast concrete. Mr. Freeman has been the president of Respondent for approximately 10 years. Petitioner is an African-American male who was employed by Respondent at two different times. Petitioner was hired to work in several different capacities which included: ready-mix driver; block driver; dump truck driver; and/or loader operator. Mr. Caviglia serves Respondent in a supervisory position, and Mr. Caviglia made the decision to hire Petitioner as a truck driver in December 2009 (first employment). Respondent hired Petitioner at $12.00 an hour. Respondent terminated Petitioner’s employment in July 2011 (first employment termination). Mr. Freeman described the circumstances under which Petitioner was terminated as: Petitioner failed to unhook some type of ladder or other apparatus at a self-loading dock, and drove off causing approximately $4,000 to $5,000 of damage to Respondent’s truck and/or the dock. Respondent was responsible for making the repairs. At the time of his first employment termination, Petitioner was making $13.00 an hour. Approximately five months later, in December 2011, Mr. Caviglia re-hired Petitioner to be a truck driver for Respondent. The other drivers employed by Respondent wanted Petitioner to return. Petitioner was hired at $13.00 an hour (second employment). At various times during Petitioner’s employment with Respondent, Petitioner inquired about becoming a “dispatcher” for Respondent. Mr. Freeman indicated to Petitioner that he (Mr. Freeman) would think about Petitioner’s dispatcher request. However, one of the requirements for Respondent’s dispatcher position was the availability to work on Saturdays. Mr. Freeman knew that Petitioner had a second job which required Petitioner to work on Saturdays. Since 2004, Petitioner worked part-time as an attendant at a local funeral home, which required Petitioner to work some Saturdays. Petitioner was paid $75 per funeral; however, he did not know how much he had been paid since his second employment termination. Petitioner did not have any pay-stubs to reflect how much he had been paid by the funeral home. Petitioner continues to work for the funeral home. In October 2013, Petitioner caused damage to tires on a truck belonging to Respondent. Respondent incurred a financial loss as a result of the damaged tires. Petitioner was terminated from his second employment with Respondent on November 20, 2013. Petitioner alleged and testified that Mr. Caviglia threatened Petitioner at various times during Respondent’s operational meetings.3/ Two other witnesses, Mr. Timmons and Mr. Sandy, testified that they did not observe Petitioner being threatened at these meetings. Petitioner alleged that he was retaliated against based on his race. Petitioner claimed that he was directed to wash a white man’s truck. Petitioner refused to wash the truck. Respondent requires its drivers to wash the trucks that they drive each day. However, there was no evidence of any retaliation against Petitioner when he did not wash the other man’s truck. Petitioner alleged he asked for raises when he thought it appropriate, and was refused. Mr. Freeman paid his employees the going rate, and it was established that Petitioner was being paid $14 an hour when he was terminated. Mr. Timmons, a former employee of Respondent, received the same rate of pay for working as a driver or as a dispatcher for Respondent. Petitioner’s resumé was admitted into evidence as Exhibit C. Petitioner created this resumé in 2011, and revised it one time to assist in the preparation for the hearing. The resumé does not accurately reflect Petitioner’s separate employment periods at Respondent, nor does it contain a two-week period of employment at another construction company.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Commission on Human Relations DISMISSING the Petition for Relief filed by Mr. Ford. DONE AND ENTERED this 22nd day of December, 2014, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of December, 2014.
The Issue The issue is whether Mr. Pontigo should be awarded $7,150 in attorneys' fees and $300 in costs under Section 57.111(4)(a), Florida Statutes, because the Department brought a proceeding against him which terminated in Mr. Pontigo's favor, the proceeding was not substantially justified when initiated and no special circumstances make an award of fees unjust.
Findings Of Fact Based upon the stipulated facts and the chronology of events filed by the Department on October 31, 1990, the following are found: On December 21, 1982, George S. Pontigo was convicted of three felony offenses (a tax violation, conspiracy to distribute cocaine, and using a telephone to distribute cocaine). These convictions constituted violations of Section 493.319(1)(c), Florida Statutes (1982), for at the time of his convictions, Mr. Pontigo held Class "P" license #P00-00679 (detection of deception examiner license). On September 1, 1983, the Department of State, Division of Licensing filed an Administrative Complaint (Case No. C 83-24) to revoke that license. An informal hearing was held on October 25, 1983, during which several character witnesses attested to the unique circumstances of Mr. Pontigo's arrest and conviction, his good moral character, his competence as a polygraph examiner, his honesty and his suitability for licensure. The Department of State entered a Final Order on November 15, 1983, which specifically found that a denial of licensure based solely on Section 493.319(1)(c), Florida Statutes, was unwarranted as too severe. A period of probation for one (1) year was imposed. The probationary period ended on November 30, 1984. No conduct during the probationary period provided a basis for non-renewal of the license. Mr. Pontigo's license was renewed and has been continuously renewed since that date. On June 7, 1988, the Department again filed an Administrative Complaint to revoke Mr. Pontigo's Detection of Deception Examiner License, this time based upon Section 493.319(3), Florida Statutes, and the same criminal conviction of December 21, 1982, which had been the basis for the imposition of probation in the Department's Final Order of November 15, 1983. On June 28, 1989, the Department amended its Administrative Complaint. On August 18, 1989, Pontigo filed an answer and defenses, which argued that further disciplinary action was barred by the doctrines of res judicata and collateral estoppel, and that the statute could not be applied retroactively to Mr. Pontigo. An informal hearing was held on this second effort to revoke Mr. Pontigo's license on October 3, 1989. An Order entered that same day by Fred Speaker, the internal departmental hearing officer, recommended that "in the interest of fairness, I would recommend the Division [of Licensing] honor the decision reached as a result of the hearing of October 25, 1983." The internal departmental hearing officer felt compelled, however, to revoke Mr. Pontigo's license. On November 7, 1989, the Department of State, Division of Licensing entered its second Final Order based upon the 1982 criminal conviction, this time revoking Mr. Pontigo's license. By letter dated November 21, 1989, the Department confirmed that the Final Order was issued after considering Mr. Pontigo's October 19, 1989 Memorandum of Law and the Affidavit of Representative Alberto Gutman of the Florida House of Representatives dated January 5, 1989. The Department stated in the Final Order that it revoked Mr. Pontigo's license based upon Section 493.319(3), Florida Statutes. That statute mandates the revocation of a license or denial of an application "... when the person or licensee has been convicted of a felony, regardless of whether adjudication was withheld or whether imposition of sentence was suspended, unless and until civil rights have been restored and a period of ten years has expired." This disciplinary provision was first enacted in 1986 as part of Chapter 86-193, sec. 17 Laws of Florida, and codified as Section 493.319(1)(p), Florida Statutes (1986 Supp.). Before that time, a licensee could be disciplined if found guilty of a crime directly related to the business for which the license had been issued. Section 493.319(1)(c), Florida Statutes (1985). Amendatory language was added regarding convictions based upon a plea of nolo contendere in 1987 and the provision was renumbered. Chapters 87-135, sec. 3 and 87-274, sec. 10, Laws of Florida. By letter of May 9, 1988, the Secretary of State informed the Governor, the President of the Senate, and the Speaker of the House, that the Department would be required to review all licensing files for possible revocation action based on the 1987 amendment. The 1988 Legislature authorized a transfer of funds within the Department for the purpose of reviewing existing Chapter 493, gun permits and Chapter 790, concealed weapons licenses for appropriate action. Chapter 88-557, sec. 30, Laws of Florida; Chapter 87-247, sec. 58, Laws of Florida. The permit at issue here was neither a gun permit nor a concealed weapons permit, so the authorization for a fund transfer is irrelevant. George Pontigo appealed the Final Order of the Department revoking his Detection of Deception License to the District Court of Appeal, Third District, by Notice of Appeal dated December 1, 1989. The Department did not oppose a motion filed in the appellate court to stay the effect of the revocation order, and a judicial stay of the revocation was granted on January 9, 1990. Mr. Pontigo filed his brief on March 19, 1990. On April 13, 1990, the Department entered an Amended Final Order dismissing with prejudice its Administrative Complaint. While the second round of administrative litigation with Mr. Pontigo had been pending, Congressional action placed the continued licensure of polygraph examiners in doubt, because the Employee Polygraph Protection Act of 1988, Public Law 100-347, effective December 27, 1988 would reduce the number of examiners throughout the country because the uses of polygraphy were restricted. Chapter 493 went through Sunset Review during the 1990 session of the Florida Legislature. By March 1990, the Department believed that the state licensure program for polygraph examiners would cease. Chapter 493 was revised by Chapter 90-364, Laws of Florida, so that as of October 1, 1990, Part II of Chapter 493, which had regulated polygraphers was repealed. Id., Sec. 10. After the Department determined that the polygraph licensure program would be phased out, it dismissed the Pontigo revocation action then pending in the Court of Appeal. The attorneys for George Pontigo filed a Petition for attorneys fees and costs pursuant to Florida Statute 57.111. For services rendered through November 8, 1990, the attorneys for Petitioner request $7,150.00 in legal fees and $300.00 in costs for a total of $7,450.00 The Department does not dispute the reasonableness of the amount claimed. The sole issue in this proceeding is whether attorneys fees and costs should be awarded to Mr. Pontigo under Section 571.111(4)(a), Florida Statutes, as a prevailing small business party because the actions of the agency were not substantially justified and no special circumstances exist which would make the award unjust.
The Issue The issue in this case is whether the Petitioner is entitled to an award of attorney's fees and costs pursuant to section 57.111, Florida Statutes (2011).1/
Findings Of Fact By a three-count Administrative Complaint dated June 7, 2011, the Respondent charged the Petitioner with alleged violations of law related to the sale of certain products. The allegations of the Administrative Complaint were prosecuted in the disciplinary case. A final hearing in the disciplinary case was conducted on January 24 and 25, 2012. On April 18, 2012, the ALJ issued a Recommended Order determining that the products referenced in the Administrative Complaint were unregistered securities and that the Petitioner "violated section 626.611(16) [Florida Statutes,] by selling an unregistered security that was required to be registered pursuant to chapter 517." The Administrative Complaint also charged the Petitioner with additional violations of statute including a "[d]emonstrated lack of fitness or trustworthiness to engage in the business of insurance," in violation of section 626.611(7). As set forth in the Recommended Order, the ALJ determined that the evidence failed to establish the additional violations. Based on violation of section 626.611(16), the ALJ recommended that the Petitioner's license be suspended for a total of six months, two months for each product sale alleged in the three separate counts of the Administrative Complaint. On July 6, 2012, the Respondent issued a Final Order determining that in addition to the violation of section 626.611(16) found by the ALJ, the Petitioner had also violated section 626.611(7). Despite finding the additional violation, the Respondent adopted the penalty recommended by the ALJ. The Petitioner took an appeal of the Final Order to the District Court of Appeal for the Fifth District. The Court determined that the products sold by the Petitioner were not securities that required registration at the time they were sold by the Petitioner, and, on June 21, 2013, issued an order reversing the Final Order issued by the Respondent. The parties have stipulated that the Petitioner was the prevailing party in the disciplinary case and is a "small business party" as defined by section 57.111(3)(d).
The Issue The issue in this case is whether Respondent violated the Florida Civil Rights Act of 1992 by committing unlawful employment practice (discrimination) on the basis of Petitioner's sex (female), National Origin (Hispanic), handicap when it terminated Petitioner from employment, or on the basis of sexual harassment.
Findings Of Fact As noted above in the Preliminary Statement, the parties have entered into an Agreement of Settlement and Mutual and General Release. Their agreement, in pertinent part, includes the following: "DM, on the one hand, and JBF (under the name Joe Blasco Cosmetics), on the other hand, are parties to proceeding which took place before the State of Florida Division of Administrative Hearings, in Case No. 01- 2328, on about June 28, 2001, with respect to DM's claims of discrimination against JBE (the"Action"). Each of the parties hereto considers it to be in its best interest, and to its advantage, forever to settle, adjust, and comprise all claims and defenses which have been, or could have been, asserted in connection with the employment relationship, the Action, and/or in an other action or proceeding arising out of any employment or other relationship between the parties hereto. The terms of this Agreement are contractual, not a mere recital, and this Agreement is the result of negotiation between the parties, each of whom has participated in the drafting hereof, through each of the parties' respective attorneys. Diana Morales shall dismiss with prejudice Case No. 01-2328 pending before the State of Florida, Division of Administrative Hearings. Diana Morales agrees to execute and file any and all documents necessary to dismiss her claim and advise any and all documents necessary to dismiss her claim and advise any investigative bodies, administrative bodies and/or courts that she has withdrawn, dismissed and resolved any and all claims with Joe Blasco Cosmetics, Joe Blasco Enterprises and/or Joe Blasco." The parties' stipulated settlement agreement constitutes an informal disposition of all issues in this proceeding.
