The Issue The issue in this proceeding is whether the Respondent’s award of a security guard services contract to Intervenor is clearly erroneous, contrary to competition, arbitrary, or capricious.
Findings Of Fact On October 8, 2008, Respondent, DMA, issued a Request for Proposals, RFP No. DMA-RFP-112, entitled “Security Guard Service.” The purpose of the RFP was to solicit bids for providing security services at five National Guard locations around Florida. The term of the contract was for five years. Part (a) of Section 1.2 of the RFP defines a valid proposal as a responsive offer where “a person or firm has submitted a bid/proposal and conforms in all material respects to the Request for Proposal.” Part (b) of section 1.2 defines a responsible or qualified offeror as a “person or firm with the capability to perform the requirements and the integrity and reliability to assure good faith performance.” Section 4.5 of the RFP governs “Bid Questions and Answers.” In particular, Section 4.5 states in part: Any technical questions arising from this RFP must be forwarded, in writing, to the procurement official designated in section 1.2 or 1.4 above. Section 4.7.1 of the RFP states: The Vendor must prove to the satisfaction of the Agency that their company has actively and normally been engaged in business for the services/items being procured under this solicitation for at least three (3) years of continuous operation. (This shall be demonstrated through references which have been in place at least one (1) continuous year). The Bidder shall have available under their direct supervision, the necessary organization, experience, equipment and staff to properly fulfill all the conditions, requirements, and specifications required under this solicitation. Section 4.8 of the RFP specifies DMA’s reservations and outlines how the proposals are evaluated in terms of responsiveness. In particular, Section 4.8.1 reserves the right of DMA to accept or reject any proposal. Section 4.8.2 defines a responsive proposal or bid as one that offers to perform the services called for by the RFP and meets the requirements of the RFP. Section 6.2 of the RFP delineates the Evaluation Criteria for scoring the proposals. Section 6.2 states: DMA will evaluate responsive replies and score them on a scale of 1 to 100 using the following criteria (weight noted parenthetically). DMA anticipates awarding one Contract to the responsive and responsible [sic] criteria which will be used to evaluate proposals: Qualifications: 70% 70 Points Price: 30% 30 Points Total: 100% 100 Points In order to demonstrate that a bidder was qualified in providing the services required by the RFP, DMA required references to be provided by the prospective bidders. Section of the RFP states: 6.2.1 Qualifications: The Vendor’s qualifications and experience in successfully serving facilities of similar size and scope to those required by this solicitation, as indicated by (Maximum 70 points – Attachment B –references (6 points) will be included in this maximum point total): Experience: Age of the Company, qualifications of key personal, extent of the vendor’s activities, locations of the Vendor’s Florida office(s) and nearest Florida account, and current and past project references. (0-24 Points) Preference for vendors that have considerable and quantifiable experience in providing similar services to governmental entities. (0-5 Points) Preference for companies with a proven ability to effectively manage multiple sites. Vendors should provide relevant experience data and references. References may be the same as those provided on Attachment B, if so; a statement to that effect should be added. (0-5 Points) Section 6.4 of the RFP states: Reference Sheet: Vendors shall provide at least three current references. Note 6 points (2 points for each reference) of the proposal points are applied from this category. During the evaluation process all companies will receive the maximum points until references are verified, at such time the points may be reduced. (Attachment B.) Attachment B to the RFP provides for the listing of three separate and verifiable references. The instructions for filling out Attachment B state, in part, the following: The Respondent must list a minimum of three (3) separate and verifiable clients of the Respondent, other than the DMA which have been in place for at least one (1) continuous year. Any information not submitted on this attachment shall not be considered. The clients listed shall be for services similar in nature to that described in this solicitation. Attachment B requires prospective bidders to list contact information for the bidder’s references so that the references could be verified at the appropriate time. The requested information includes the name of the company or entity that the contract was with, description of work, the beginning dates of the contracts and, importantly, the ending dates of the contracts. Attachment B does not include the use of the word “current” or “active” in its description of the type of references that a bidder should submit. Rannah Lewis is the Grant Specialist for the Department of Military Affairs. As such, she participates and manages bid solicitations for DMA. She has performed these duties for four or five years. In this case, Ms. Lewis was the person responsible for assembling the RFP and the person responsible for the use of the word “current” in this RFP. Her use of the word “current” referred to a recent contract that could be verified with respect to similarities between the referenced contract and the services being solicited by DMA. She distinguished a “current” contract from an “active” contract and specifically did not require the contract to be active. Indeed, Ms. Lewis’s purpose for including the starting and ending dates for contracts listed in Attachment B of the RFP was to aid her in identifying the contractor to the referent when she verified the bidder’s references. In the past she had sometimes encountered difficulty in verifying a bidder’s references because the contractee did not remember the contractor from the information Ms. Lewis had regarding the referenced contract. She also wanted to obtain references that demonstrated experience in providing services required in the RFP that were verifiable over the course of time. Ms. Lewis testified: We wanted them to demonstrate it had been a continuous process of at least a year so that when I called the reference, if they use them as a reference, they said – Well I’ve had this experience – personally, I’ve had this experience where I called a reference, and they go, well, they just started two weeks ago, so we really don’t know. And that was the intent, to avoid situations like that. There was no evidence presented at the hearing that demonstrated DMA’s use of the word “current” as meaning recent or relevant to the RFP was inaccurate or unreasonable. Eleven bids were submitted in response to the RFP. First Coast’s bid price was $17.42. Wackenhut’s bid price was $19.40. The bids were the third and fourth lowest bids, respectively. None of the bidders raised any questions regarding the meaning of the word “current” in the RFP. Eight out of the eleven bidders for the RFP listed contracts on Attachment B that were not active and had ended or expired. All of Wackenhut’s listed contracts were active. First Coast listed three references on Attachment B. Two of the references were active and are not at issue here. However, First Coast also listed the U.S Government – Department of the Navy as a reference and reflected the service dates for the contract as June 2001 through December 2006. The bids were evaluated by a three-person committee selected by the DMA. The Evaluation committee was directed by Ms. Rannah Lewis. The other members of the evaluation committee were Major John Gross and Joseph Beilawaski. Major Gross and Mr. Beilawski were selected because of their experience with regard to force protection and security. Each evaluator evaluated the bids independently of the other evaluators. Ms. Lewis awarded six points to First Coast for the three references it listed in Attachment B. She also awarded six points to Wackenhut for the three references it listed in Attachment B. She felt that a bidder’s references were current if the contract had been active within the past seven years. She chose seven years because, in her experience, most businesses retain records for at least seven years and could therefore, find and supply relevant information on the referenced contract. There was no evidence that Ms. Lewis was either arbitrary or capricious in her individual evaluation of the parties’ RFP proposals. Similarly, there was no evidence that Ms. Lewis’ evaluation was dishonest, contrary to competition, or otherwise impaired the competitive bidding process. Mr. Bielawaski awarded six points to all of the bidders for the references they listed on Attachment B. He believed that references in the recent past met the currency requirement of the RFP since the contracts referred to recent customers that provided services similar to that which was requested in the RFP. As with Ms. Lewis, there was no evidence that Mr. Bielawaski was either arbitrary or capricious in his individual evaluation of the parties’ RFP proposals. Similarly, there was no evidence that Mr. Bielawaski’s evaluation was dishonest, contrary to competition, or otherwise impaired the competitive bidding process. Major Gross determined that First Coast’s bid “complied with all material provisions” of the RFP. Major Gross thought that a contract that had been in place within the last three or four years would be “current,” even though that contract was not presently active. He awarded five points to First Coast and six points to Wackenhut based on the two companies’ respective references listed in Attachment B. Major Gross determined that the references provided by First Coast were current and that one was not active. He, therefore, deducted one point from First Coast’s score because of the inactive reference. However, Major Gross also testified that he was “probably in error” in deducting one point from First Coast based on the provision of Section 6.4, which required the award of two points for each reference that he “perceived as being current and appropriate to this bid proposal.” Indeed, Major Gross’ error worked against First Coast in winning the RFP since the error resulted in less points being awarded to First Coast and, thereby, advantaging Wackenhut. However, even with Major Gross’ error, there was no evidence that Major Gross was either arbitrary or capricious in his individual evaluation of the parties’ RFP proposals. Likewise, there was no evidence that Major Gross’ evaluation was dishonest, contrary to competition, or otherwise impaired the competitive bidding process. At the conclusion of the evaluations, the evaluators turned in their score sheets and notes to Ms. Lewis. The total scores for the three evaluators were averaged for a final score on each bidder’s proposal. First Coast received a total score of 91 points. Wackenhut received a total score of 90 points. First Coast was determined to be the bidder with the highest score. Ms. Lewis then verified First Coast’s three references. First Coast’s score remained unchanged since all three references were verified. Based on the scores First Coast was awarded the RFP by DMA. As indicated, the evidence did not demonstrate that the evaluators or DMA acted dishonestly, arbitrarily or capriciously. Indeed, each evaluator reviewed each proposal using consistent criteria that he or she used for all the proposals reviewed by that evaluator. In this case, the differences in the amount of time used to define the parameters of what constituted a current reference were immaterial. Both parties’ references fell well within all the evaluators’ time frames. Likewise, the evidence did not demonstrate that DMA’s definition of the word “current” was so unusual so as to cause the evaluation of the parties’ proposals to be arbitrary, capricious, or otherwise contrary to competition. No bidder received an advantage over another bidder based on DMA’s definition of the word “current.” Given these facts, the award of the RFP to First Coast was valid and should be upheld.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED that the Department of Military Affairs enter a final order approving the award of RFP No. DMA-RFP-112 to First Coast Security. DONE AND ENTERED this 1st day of May, 2009, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER 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 1st day of May, 2009. COPIES FURNISHED: Bradley R. Johnson, Esquire Taylor, Day, Currie, Boyd & Johnson Bank of America Tower 50 North Laura Street, Suite 3500 Jacksonville, Florida 32202 Thomas Barnhart, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Elizabeth C. Masters, Lieutenant Colonel Florida National Guard Post Office Box 1008 St. Augustine, Florida 32085-1008 Andrew K. Kantor, Esquire 800 West Monroe Street Jacksonville, Florida 32202
The Issue The issue presented is whether Respondent is guilty of the allegations contained in the Administrative Complaint filed against him, and, if so, what disciplinary action should be taken, if any.
Findings Of Fact On June 24, 1996, Petitioner revoked Respondent's Class "D" security officer license number D95-12548 and ordered Respondent to cease and desist from engaging in security services and to return to Petitioner Respondent's license. That Final Order certifies that a copy was mailed to Respondent that day. Respondent did not return his license to Petitioner. On November 1, 1996, Fred Speaker, the investigator supervisor in Petitioner's West Palm Beach office, went to Respondent's home to retrieve Respondent's license. Respondent asserted that he did not know where his license was. Respondent did not produce his license. On November 12 Speaker returned to Respondent's home to retrieve Respondent's license. Respondent was not there, and Respondent's wife did not produce Respondent's license. On April 17, 1997, while Speaker and investigator Jack D'Ambrosio were checking security posts and licenses, they encountered Respondent who was on duty at the gate house of a private community. They asked Respondent for his company identification and his guard license. Respondent produced both documents for their inspection. Petitioner's employees did not take Respondent's license that evening since they wished first to verify if the license were still revoked before taking Respondent's license from him. Sometime subsequent to that date, D'Ambrosio saw Respondent in Petitioner's office and again asked Respondent for his license. Respondent refused to give his license to D'Ambrosio.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding Respondent guilty of the allegations contained in the Administrative Complaint and imposing an administrative fine in the amount of $3,000 to be paid by a date certain. DONE AND ENTERED this 21st day of January, 1998, in Tallahassee, Leon County, Florida. LINDA M. RIGOT Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 21st day of January, 1998. COPIES FURNISHED: Kristi Reid Bronson, Esquire Department of State Division of Licensing The Capitol, Mail Station 4 Tallahassee, Florida 32399-0250 Frank Giordano, pro se 3655 Coelebs Avenue Boynton Beach, Florida 33436 Don Bell, General Counsel Department of State The Capitol, Plaza Level 02 Tallahassee, Florida 32399-0250 Honorable Sandra B. Mortham Secretary of State Department of State The Capitol Tallahassee, Florida 32399-0250
The Issue Petitioner protests the method by which Respondent Department of Transportation (DOT) advertised RFP-DOT-99/00-3002 and RFP-DOT-99/00-3003 and the specifications contained in the RFP's SCOPE OF SERVICES, Sections 1.7.2, 2.0-A, 14.0-A, 14.0-B, and 14.0-C.
Findings Of Fact The subject Requests for Proposal (RFPs) are RFP-DOT- 99/00-3002 and RFP-DOT-99/00-3003, commonly referred-to as the 2000 RFPs. These RFPs seek suppliers of security guards for rest areas and welcome centers maintained by DOT in its District III. That District currently is administered by "east" and "west" segments of Interstate Highway 10, with "east" corresponding to RFP 3003 and "west" corresponding to RFP 3002. NYCO is a supplier of security guard services for industrial, health care, general, and retail establishments in Florida, Alabama, and Mississippi. Ken Chandler is Administrator and Operational Manager for NYCO. Since 1994, NYCO has bid on DOT RFPs for the same project and has provided security guard services for District III. Generally speaking, security guards are non-skilled persons who work at or near minimum wage. Higher standards for its security guards imposed by prior DOT contracts requiring law enforcement training and certification have resulted in NYCO paying off-duty law enforcement officers at a considerably higher rate of pay to work at DOT's facilities. The 2000 RFPs constitute "contractual services contracts" governed by Chapter 287, Florida Statutes. They also are "standard scope of services contracts," which means they are developed on a statewide basis with District input. NYCO's first contract with DOT was awarded July 1, 1994, for two years. The second was awarded July 1, 1996, for two years. For the first contract, specifications were mailed to Mr. Chandler three months in advance of the bid submittal date. For the second contract, NYCO, as the incumbent contract holder, was notified that specifications were ready for pick-up. NYCO had to submit a written request for the RFP package. The 1999 RFP was advertised on the Florida Communities Network (FCN) and, according to Richard Norris, DOT District III Contract Administrator, RFP packages also were sent to all proposers for the prior contract because he had promised to do so when that set of bids had all been rejected. Apparently, no such promise was made for the 2000 RFPs. (TR-103). FCN is a website maintained by the Florida Department of Management Services for the purpose of advertising public contracts. During the course of NYCO's most recent contract, NYCO employee Joe Huff regularly checked with DOT personnel to ensure that the security which NYCO was already providing was going along well. Both Mr. Chandler and Mr. Huff assumed NYCO would be alerted during these conversations as to when it could request the specifications for the next round of contracts, the 2000 RFPs. DOT employee Lloyd Tharpe submitted technical aspects of the 2000 RFPs to Richard Norris on or about December 23, 1999. Mr. Huff testified that he made contact with DOT personnel, including Mark Thomas, Tom Williams, Charlie Ward, Rufus Baron, and Milton Blake, on February 7, February 14, February 15, February 21, and February 29, 2000. While Mr. Huff maintained that on nearly every occasion he asked if the DOT employee to whom he was speaking knew when the new RFP specifications would be ready, his testimony on the precise contents of these conversations is a little vague. He based his recollection on notes in his day planner which merely listed the name of a city, and he then assumed that he spoke with whomever he usually contacted in that city. He could not recall the exact content of these conversations. None of the foregoing DOT employees corroborated that they had been asked about the 2000 RFP specifications by Mr. Huff. It was not established that any of Mr. Huff's contacts were with DOT's procurement office, which Mr. Huff knew advertises the RFPs. DOT District Maintenance Engineer Mark Thomas stated that he only became aware on or about February 29, 2000, that the 2000 RFP was being advertised. Mr. Huff was told on February 29, 2000, by Mark Thomas that the 2000 RFPs were "on the street" and that the mandatory pre-bid conference would be held March 2, 2000. NYCO attended the mandatory pre-bid conference for the 2000 RFPs on March 2, 2000. On March 3, 2000, NYCO timely filed its Notice of Intent to Protest the specifications of the 2000 RFPs. The deadline for submitting proposals in response to the 2000 RFPs was March 9, 2000. NYCO submitted a bid proposal timely, but found it difficult to prepare in such a short time frame. On March 13, 2000, NYCO timely filed its Formal Written Protest of certain specifications of the 2000 RFPs. The specifications challenged in this case were developed by the Department's State Maintenance Office. They read as follows: 1.7.2 Qualifications of Key Personnel Those individuals (as identified in Section 12 of Exhibit "A" Scope of Services) who will be directly involved in the project should have demonstrated experience in the areas delineated in the scope of work. Individuals whose qualifications are presented will be committed to the project for its duration unless otherwise excepted by the Department's Contract Manager. Where State of Florida registration, certification, or license is deemed appropriate, as identified in Exhibit "A" Scope of Services, a copy of the registration, certificate, or license shall be included in the proposal package. 2.0-A Services to be Provided by Contractor A. Provide uniformed, armed Security Officers licensed pursuant to F.S. 493, to provide security services. 14.0 Eligibility Criteria All Security Officers and Contract Supervisors employed by the Contractor under this Contract are required to meet the following requirements. Training Requirements: Must be a graduate of a certified United States federal, state, county, or local law enforcement agency training program, a correctional officer training program, a military police training program, or an equivalent training program, which presented the individual with the appropriate certificate or diploma stating eligibility for employment as a Law Enforcement or Correctional Officer. Law Enforcement Officer and Correctional Officer shall be defined in Sections 943.10(1) and (2), Florida Statutes. The Contractor is encouraged to seek services of security guards licensed pursuant to Chapter 493, F.S., who are former members of the armed forces of the United States and have been affected by military downsizing or base closures, and shall be further encouraged to contact community colleges or other educational institutions which provide training for security guards for candidates meeting these qualifications. Licensing Requirements: Contract Supervisors and Security Officers, while on duty, must possess upon their person and present to Department personnel upon request the following: State of Florida Class "D" License (security guard license). State of Florida Class "G" License (license authorizing individual to bear a firearm). State of Florida Driver's License or other State Driver's License which permits the individual to operate a vehicle in the State of Florida. No Security Officer will be permitted to work under this contract using an Acknowledgement Card from the Department of State. A Security Officer or Contract Supervisor employed as a Law Enforcement Officer or Correctional Officer must have documentation showing proof of current employment and approval from his/her employing agency or department to carry a firearm during off-duty hours in his/her capacity as Security Officer and Contract Supervisor. The manner of advertising the 2000 RFPs also was challenged. For the 2000 RFPs, DOT did not advertise in newspapers or the Florida Administrative Law Weekly and did not mail specifications to incumbent contractors or to a list of potential bidders. DOT only advertised the 2000 RFPs via FCN from approximately February 1, 2000 to March 6, 2000. According to Richard Norris, the Department is required by statute to advertise projects on FCN. He cited neither statute nor rule to support his conclusion. He stated that there are many other or additional ways DOT may advertise a project and that advertisement by FCN is only the minimum requirement. He was not aware of any current statutory or rule requirement that DOT directly notify potential bidders for this type of RFP. However, he stated that if he were approached directly by a potential bidder, he would tell that potential bidder about the RFP over the phone. To develop scope of services contracts such as the 2000 RFPs, Alan Reese, the Department's State Contracts and Agreements Manager, directs the gathering of information from the Department's Districts or other sources, develops a draft, receives input from each District as to the draft, and the draft is reviewed throughout the Department, including its legal office, until finally the State Maintenance Engineer signs-off on it. In this instance, the bid specifications were intended to create a uniform and consistent statewide system that was understandable to the bidders. Lloyd Tharpe and his staff were responsible for mailing out the RFP packages as they were requested by potential bidders after the first advertisement approximately February 1, 2000. No active intent or effort by DOT staff to obscure NYCO's opportunity to bid was proven. The 2000 RFPs require that to be a security guard of DOT facilities, one must be qualified to be hired as a law enforcement officer or correctional officer as defined in Subsections 943.10(1) and (2), Florida Statutes. (RFP Section 14.0-A). The training qualifications to be hired as a law enforcement officer under Chapter 943 are higher than those imposed by a Class "D" security guard license from the Department of State pursuant to Chapter 493, Florida Statutes. The 2000 RFP specifications also require that to be a security guard of DOT facilities one must have a Class "D" or Class "G" (if a gun is carried) license from the Department of State, pursuant to Chapter 493, Florida Statutes (RFP Section 4.0-B.1 and 2). DOT interprets the foregoing RFP requirements to mean that even currently employed Florida law enforcement officers and correctional officers must also be licensed by the Florida Department of State as Class "D" or Class "G" security officers. DOT is aware of an exemption in Chapter 493, Florida Statutes, permitting law enforcement officers to act as security guards without obtaining a Class "D" license from the Department. As far as the 2000 RFPs are concerned, the exemption may not be exercised. A 1996 DOT Inspector General's internal audit report identified individuals with questionable backgrounds working for security firms which had already contracted with DOT. The report concluded that the background checks that the then- existing contracts required the contract security firms to perform had been unsatisfactory. The report recommended that the security firms do more extensive background checks on their employees. DOT did not want anybody guarding tourists, especially women and children tourists, who had not gone through a thorough background check. DOT apparently felt it could not rely on the security firms to do background checks on their employee-guards. DOT determined that it did not have authority or ability to do its own background checks, so it decided to rely on the Department of State, which did have authority and ability to do background checks. Mark Thomas understood that once an application for a Class "D" or "G" license has been received by the Secretary of State, an FDLE criminal background check is conducted by the Florida Department of Law Enforcement (FDLE), and an acknowledgment card is sent by the Department of State to the applicant which states that the applicant may perform security guard services while carrying the card. However, Mr. Thomas ultimately admitted that he did not know anything at all about Department of State background checks. His "understanding" was not corroborated by Ms. Constance Crawford. Constance Crawford is the Bureau Chief for the Bureau of Licensing, Department of State. She handles the administrative responsibilities associated with the review of security guard applications pursuant to Chapter 493, and Sections 790.06 and 849.094, Florida Statutes. According to her, the Department of State will issue Class "D" and Class "G" security guard licenses to law enforcement officers. Ms. Crawford provided no information about the Department of State's security guard background checks. In developing the 2000 RFPs, DOT decided not to accept Department of State acknowledgement cards because DOT staff believed that acknowledgment cards were issued by the Department of State to applicants before a national background check (also called an NCIC check) was completed through the Federal Bureau of Investigation (FBI). No DOT witness had knowledge of how Department of State, FDLE, or FBI background checks are performed. Mr. Chandler testified that NYCO's problem with the RFPs' requirement for law enforcement officers to have Class "D" and/or Class "G" licenses before they are employed at DOT's interstate facilities was due to the time it takes to get Class "D" and "G" licenses issued by the Department of State, which can be anywhere from a few weeks to several months, and because it is very difficult for NYCO to retain potential employees for that long before they are placed on the jobsite. He testified that NYCO would have no problem if the employees could be certified in three days. Mr. Chandler testified that the letters of authorization required by DOT in specification 14.0-C differed from the language employed in Chapter 493, Florida Statutes, and that many law enforcement agencies had refused to sign the form letter provided by DOT because those law enforcement agencies interpreted the letters to make the law enforcement agencies liable for anything done by the law enforcement officer, on or off-duty. DOT's approved form letter reads: Dear Sirs: is an employee of this Department and has the approval of this Department to carry a fire arm during off- duty hours in his/her capacity as a Security Officer and/or Contract Supervisor at the Florida Department of Transportation Rest Areas/Welcome Centers within the Third District. Sincerely, Name Title
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Transportation which rejects all bids and provides that the specifications be redrafted in accordance with the foregoing Findings of Fact and Conclusions of Law. DONE AND ENTERED this 22nd day of August, 2000, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of August, 2000.
The Issue The issue in this case is whether Respondent committed an unlawful employment practice against Petitioner by terminating her employment based on Petitioner's gender and race in violation of Chapter 760, Florida Statutes (2009),1 and Title VII of the Civil Rights Act.
Findings Of Fact Ms. Williams is an African-American female who worked for Allegiance from September 26, 2009, until November 25, 2009, as a security officer. She was a security officer in a residential community named Waterside North Community, working in the gate house for the hours of 7:00 a.m. to 3:00 p.m. Prior to working for Allegiance, Ms. Williams had been a security officer for Weiser Security Services at the same residential community. While working for Weiser Security Services, Ms. Williams had received recognition for her positive attitude at work. During the time of Ms. Williams' employment with Weiser Security Systems, she worked with a fellow security officer named Donald Zwert (Mr. Zwert). According to Ms. Williams, Mr. Zwert had a problem with female officers, and her in particular. Sometime in September 2009, Allegiance replaced Weiser Security Systems for providing services to Waterside North Community. Ms. Williams and Mr. Zwert remained as security guards for Allegiance. On October 16, 2009, an Allegiance field supervisor, Erjon Arapi (Mr. Arapi), provided Ms. Williams with a verbal warning for failing to acknowledge visitors and residents entering the Waterside North Community and for the security gate being "wide open." Three days later, on October 19, 2009, Mr. Arapi conducted another field inspection and found the security gate still open and Ms. Williams inside the gate house. Further, he found Ms. Williams not acknowledging visitors and residents entering into the community. Based on his earlier verbal warning, Mr. Arapi wrote two Disciplinary Action Forms against Ms. Williams for the violations on October 16 and 19, 2009. Ms. Williams, on the bottom of each Disciplinary Action Form, stated that the gate was broken and that no resident had complained. On November 25, 2009, Crystal Plummer (Ms. Plummer), formerly known as Crystal Hill, an employee of Allegiance, went to conduct an inspection. Ms. Plummer found that Ms. Williams had failed to follow Allegiance's instructions of keeping a Daily Activity Report with hourly updates as the security officer. Ms. Williams explained that she had failed to fill out the Daily Activity Report because she was busy. Later that day on November 25, 2009, at 3:00 p.m. with the shift change, Mr. Zwert spoke to Ms. Williams about her failure to keep the Daily Activity Report. Mr. Zwert and Ms. Williams got into a verbal confrontation where Ms. Williams threatened to "kick [Mr. Zwert's] cracker ass." Ms. Williams testified that she reacted defensively because Mr. Zwert had touched her in the guardhouse. Jeffrey Knebel (Mr. Knebel), the manager for Allegiance, learned about the verbal altercation and consequently temporarily suspended Ms. Williams pending an investigation. Mr. Knebel requested that Mr. Zwert; Casey Matthews (Mr. Matthews), a security officer who was present during the altercation; and Ms. Williams provide written statements describing the event. Mr. Zwert and Mr. Matthews provided statements, but Ms. Williams did not provide one to Allegiance. At hearing, Ms. Williams did not dispute the altercation, but rather disputed that she had been asked to give a statement. On November 30, 2009, Mr. Knebel telephoned Ms. Williams and terminated her employment with Allegiance. Mr. Knebel credibly testified that Allegiance made the decision to terminate Ms. Williams' employment based on the November 25, 2009, altercation and her three prior disciplinary reports. On December 17, 2009, Ms. Williams filed a Charge of Discrimination with the Florida Commission on Human Relations, alleging that "I was suspended and discharged because of my sex, female and my race, Black, in violation of Title VII of the Civil Rights Act of 1964, as amended (Title VII)."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Ms. Williams' Petition for Relief. DONE AND ENTERED this 15th day of December, 2010, in Tallahassee, Leon County, Florida. S THOMAS P. CRAPPS 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 15th day of December, 2010.
The Issue The issue for determination is whether Respondent committed violations of provisions of Chapter 493, Florida Statutes, sufficient to justify the imposition of disciplinary action against Respondent's Class "D" Security Officer License and Respondent's Class "G" Statewide Firearm License.
Findings Of Fact Respondent is Ronald W. Cone. Respondent holds Class "D" Security Officer License No. D89-03534 which expired on February 21, 1993. Subsequently, Respondent applied for renewal of the Class "D" Security Officer License in August, 1993. The renewal was granted by Petitioner. As stipulated by the parties at the final hearing, Respondent has, at all times pertinent to these proceedings, held a Class "G" Statewide Firearm License. From February 21, 1993, to April 12, 1993, Respondent performed his duties as an armed security officer at the Independent Life Insurance Building in Jacksonville, Florida. The building was open to the public at the time. On April 9, 1993, at approximately 2:30 p.m., Respondent arrived for work at his guard station in the center of the 80 foot vaulted ceiling lobby to the building. The acoustics of the lobby are such that a dime can be heard hitting the floor all the way across the area on a quiet day when there are few people in the facility, as was the case on April 9, 1993, at about 4:00 p.m. when Respondent decided to delve into his brown bag lunch. Leaving his subordinate, an unarmed security guard named William C. Piersky, on duty at the guard station, Respondent went to a restaurant area located in the lobby of the building approximately 125 feet from the guard station to eat his late lunch. The restaurant, operated by Morrison's Cafeteria, Inc., was closed at the time. The area was separated from the rest of the lobby by small partitions that stood three to four feet tall. Piersky was unable to see Respondent. A short time later, Piersky heard a loud report which he presumed was the discharge of a firearm. Although Piersky concluded the discharge he heard came from a firearm, his testimony is not credited on this point in view of his admitted unfamiliarity with bullets containing "birdshot", his admitted lack of involvement with firearms in previous security employment, and his present employment in the position previously held by Respondent. Respondent's testimony at final hearing was candid, worthy of belief and establishes that what Piersky really heard was not a firearm discharge. Rather, the loud report resulted from Respondent's action of blowing up and popping his paper lunch bag in an area with extreme acoustical sensitivity. Respondent admits that he was having fun at Piersky's expense and that when he returned to the guard station in the center of the lobby he remarked "can't believe I missed that bird." The reference to a bird was the sparrow that had found its way into the building. The bird had eluded capture by building maintenance personnel. Respondent's candid testimony establishes that he did not discharge his service revolver at the bird and that he did not load the weapon with a form of nonstandard ammunition known as birdshot on the day in question. In furtherance of his claim that a firearm had discharged, Piersky did an incident report on the matter. Three days later Respondent was fired. Piersky, previously an unarmed contract guard, now works as an armed security guard supervisor directly for Independent Life Insurance Company, as did Respondent prior to his termination. During the period of February 14, 1993 through April 12, 1993, Respondent performed duties as a security officer and armed security officer while his Class "D" license was expired. Upon receipt of a renewal notice and during his employment with Independent Life, Respondent's practice was to give that notice to the building manager's secretary to handle administratively. This had been a normal practice for licensed security guards during Respondent's employment with Independent Life. He followed this practice in the present instance and thought at the time that his license was renewed. Following his termination of employment and discovery of his license expiration, Respondent proceeded to obtain license renewal.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered finding Respondent not guilty of allegations contained in Counts III, IV and V of the Amended Administrative Complaint, and it is FURTHER RECOMMENDED that such final order find Respondent guilty of allegations contained in Count I and Count II of the Amended Administrative Complaint and impose an administrative fine of $100 for each violation. DONE AND ENTERED this 21st day of February, 1994, in Tallahassee, Leon County, Florida. DON W. DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of February, 1994. APPENDIX TO CASE NO. 93-4981 The following constitutes my ruling pursuant to Section 120.59, Florida Statutes, on proposed findings of fact submitted by the parties. Petitioner's Proposed Findings 1.-5. Accepted, though not verbatim. 6.-7. Rejected, weight of the evidence. Adopted by reference. Rejected, weight of the evidence. Adopted by reference. 11.-12. Rejected, relevance. Adopted, though not verbatim. Rejected, weight of the evidence. Respondent's Proposed Findings In Respondent's posthearing submission, he basically pleads guilty to the allegations contained in Count I and Count II of the Amended Administrative Complaint and not guilty to the remaining counts. Accordingly, further comment is not required. COPIES FURNISHED: Richard R. Whidden, Jr. Attorney at Law Department of State Division of Licensing The Capitol, M.S. #4 Tallahassee, Florida 32399-0250 Ronald W. Cone Post Office Box 447 Crawfordville, Florida 32326 Honorable Jim Smith Secretary of State The Capitol Tallahassee, FL 32399-0250 Phyllis Slater General Counsel The Capitol, PL-02 Tallahassee, FL 323999-0250
The Issue Whether Respondent committed the violation alleged in the Administrative Complaint? If so, what disciplinary action should be taken against him?
Findings Of Fact Based upon the evidence adduced at hearing, the parties' stipulations, and the record as a whole, the following Findings of Fact are made: The Department is a state government licensing and regulatory agency. Respondent is now, and has been at all times material to the instant case, the holder of a Class "D" security guard license and a Class "G" statewide firearms license. He has held the former license since May of 1990 and the latter license since September of that year. He has never before been disciplined by the Department. From October of 1991, until June 23, 1993, Respondent was employed by Certified Security Services, Incorporated (hereinafter referred to as "Certified"), a business which provides armed and unarmed security services. Among Certified's clients during the period of Respondent's employment was Winn-Dixie Store No. 343 (hereinafter referred to as "Store 343"), located at 14900 Northwest 6th Avenue in Miami, Florida. Respondent was assigned by Certified to work as a uniformed security guard at Store 343. He regularly drove a cashier at the store named Maria home from work in his car. On the afternoon of June 23, 1993, at around 1:00 or 2:00 p.m., Respondent was standing in the store parking lot conversing with a patron of the store, Sylvia Malgarejo, when he was approached by Maria, who was carrying a package containing a box of Pampers and a bottle of cooking oil. Respondent had no reason to, nor did he, believe that Maria had misappropriated these items from the store. Maria asked Respondent to put the package in his car. Respondent complied with Maria's request. He then continued his conversation with Malgarejo. The conversation did not last long. Olga Campos-Campbell, the store's general merchandise manager, had reported to the store manager that Respondent had shoplifted merchandise from the store. Campos-Campbell and Respondent had an ongoing feud concerning the scope of Respondent's job responsibilities. Campos-Campbell frequently asked Respondent to do things that he believed were outside the scope of his duties as a security guard, and an argument between the two invariably ensued. Based upon Campos-Campbell's erroneous report, the store manager had Respondent detained. Kent Jurney, who assisted the owner of Certified, his wife, in running the business, was contacted and advised of the situation. Jurney responded by going to the store with Certified's general manager, Bill Banco, and confronting Respondent. Respondent's native language is Spanish. Jurney, on the other hand, does not speak or understand Spanish. He communicates in English. Respondent's ability to communicate in English, however, is limited. Respondent tried to explain to Jurney in English how he had come into possession of the Pampers and cooking oil, but Jurney misunderstood him and mistakenly thought that Respondent was admitting that he had stolen the items from the store. Accordingly, he advised Respondent that Respondent's employment with Certified was being terminated effective immediately. The police were also contacted. The police officer who responded to the scene cited Respondent for shoplifting.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that the Department enter a final order finding the evidence insufficient to establish that Respondent committed the violation of Section 493.6118(1)(f), Florida Statutes, alleged in the instant Administrative Complaint and dismissing the instant Administrative Complaint in its entirety. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 14th day of March, 1994. STUART M. LERNER 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 14th day of March, 1994. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 93-6941 The following are the Hearing Officer's specific rulings on the "findings of facts" proposed by Respondent in his post-hearing submittal: 1. Accepted as true and incorporated in substance, although not necessarily repeated verbatim, in this Recommended Order. 2-5. Rejected as findings of fact because they are more in the nature of summaries of testimony elicited at hearing than findings of fact based upon such testimony. COPIES FURNISHED: Henri C. Cawthon, Esquire Department of State, Division of Licensing The Capitol, MS #4 Tallahassee, Florida 32399-0250 C. Ernest Rennella, Esquire 2524 Northwest 7th Street Miami, Florida 33125 Honorable Jim Smith Secretary of State The Capitol Tallahassee, Florida 32399-0250 Phyllis Slater, Esquire General Counsel Department of State The Capitol, PL-02 Tallahassee, Florida 32399-0250
Findings Of Fact Respondent, Donald C. Whalen, is president of Somerset Security & Investigation, Inc. of Manatee County, Florida. Respondent holds several licenses issued by Petitioner, including a Class "A" Private Investigative Agency license number 86-00242, effective October 24, 1988; a Class "B" Watchman, Guard or Patrol Agency license number B86-00153, effective October 24, 1988; a Class "C" Private Investigator license number 86-00233, effective August 4, 1988; a Class "E" Repossesser license number E87-00027, effective March 20, 1989; and a Class "M" Manager license number M86-00046, effective August 4, 1988. Vaughn Yeager was employed by Respondent as a security guard for three months in 1988 without first obtaining licensure. Tom French was employed by Respondent as a security guard for three months in 1988 without first obtaining licensure. Ralph Chaffin was employed by Respondent as a security guard in May 1988, and worked for 27 hours without being licensed. Mr. Chaffin's application for licensure was not submitted because he quit within a few days of being hired. Judith L. Chester was employed by Respondent as a security guard between May 5, 1988 and September 24, 1988, before becoming licensed by the Division. George Clifton was employed as a security guard by Respondent between August 31 and September 5, 1988. An application for licensure was never submitted because of Mr. Clifton's termination. Roger Lee Curtis was employed by Respondent as a security guard from March 4 through August 1, 1988, before his application for 1icensure was received by the Division. James DeCoff was employed as a security guard by Respondent between June 17, 1988 and June 21, 1988, when he was terminated for improperly using a client's phone. His application for licensure was never submitted. Michael Durbin was employed as a security guard by Respondent in May 1988. He quit after working one day and an application was not submitted. Anthony R. Edwards was employed as a security guard by Respondent in May 1988. He quit after working one day and his application was not submitted. Albert F. Ferrell was employed as a security guard by Respondent between May 6, 1988 and November 20, 1988, before his application was submitted. Drenda Giambra was employed as a security guard for Respondent from September 16, 1988 to September 26, 1988, before becoming licensed by the Division. Dean Harris was employed as a security guard by Respondent from July 19, 1988 to November 20, 1988, before he was licensed by the Division. Dietrich Hogrefe was employed as a security guard by Respondent between November 30, 1988 and January 28, 1989, before becoming licensed by the Division. Daniel Hunt, Jr., was employed as a security guard by Respondent on April 10, 1989, before he was licensed on April 18, 1989. David Laplante was employed as a security guard by Respondent on January 15, 1989. He worked six hours and quit. An application was not submitted. Victor Lesso was employed as a security guard by Respondent from June 16 through July 7, 1988, without submitting an application for licensure. He was terminated after being arrested for arson. Ray Linderman was employed as a security guard by Respondent between April 8 and April 30, 1988, without being licensed. His application was submitted late. Todd Persinger was employed as a security guard by Respondent in January 1989, and worked one weekend before quitting. An application for licensure was never submitted. Arthur Samson was employed as a security guard by Respondent on September 30, 1988. His application was submitted by Respondent on October 2, 1988. He was terminated when the application was denied. Russell W. Schmidt was employed as a security guard by Respondent from March 4, 1988 thru April 1, 1988. He quit before his application for licensure was submitted. Jennifer Slaton was employed as a security guard by Respondent in November 1988. She worked part-time for three days and quit before her application was submitted. Randall Springer was employed as a security guard by Respondent for two weeks in September 1988. His application was never submitted because he quit. Tracy Tamburin worked as a security guard for Respondent for one weekend in December 1988. Her application was never submitted because she quit. James Wooten was employed as a security guard by Respondent from October 2, 1988 through March 25, 1989, before becoming licensed. Brian Frenn was employed as a security guard by Respondent for three shifts in January 1989. An application for licensure was not submitted. Gina Spaniak was employed as a security guard by Respondent for two weeks in March 1988. An application for licensure was never submitted. Tom Hunt was employed as a security guard by Respondent for two weeks in May 1989. An application was not submitted. Earl Watson was employed as a security guard by Respondent for a short period of time in April 1989. An application was not submitted. Todd Moudy was employed as a security guard by Respondent for a short period of time in April 1989. An application was not submitted. John Mullins was employed as a security guard by Respondent for a short period of time in May 1989. An application was not submitted. Walker Mobley was employed as a security guard by Respondent for a short period of time in May 1989. An application for 1icensure was not submitted. Richard Yelvington was employed as a security guard by Respondent from January 17, 1989, to February 28, 1989, before being licensed by the Division. Terry Harrison was employed as a security guard by Respondent from January 10, 1989 to February 10, 1989, before submitting an application for licensure. Cynthia K. Burdell was employed as a security guard by Respondent from July 18, 1988 through November 20, 1988, before being licensed by the Division. Flynn C. Gregory was employed as a security guard by Respondent from January 30, 1989 through April 4, 1989, before being licensed by the Division. David Morico was employed as a security guard by Respondent from March 30, 1989 to May 15, 1989, before being licensed by the Division. Daniel F. Hunt, Sr., was employed as a security guard by Respondent from March 18, 1989 to May 15, 1989, before submitting an application for licensure. Robert F. Hunt was employed as a security guard by Respondent for two weeks in March 1989, before submitting an application for licensure. John Moffat was employed as a security guard by Respondent from May 18, 1989 to June 1, 1989, with an expired Class "D" license. Jeff Clarkson was employed as a security guard by Respondent for a period of less than two weeks between April 1, 1988 and July 15, 1989, without proper licensure. Jay Abram was employed as a security guard by Respondent for a period of less than two weeks between April 1, 1988 and July 15, 1989, without proper licensure. Shedrick Bates was employed as a security guard by Respondent for a period of less than two weeks between April 1, 1988 and July 15, 1989, without proper licensure. Joseph Likes was employed as a security guard by Respondent for a period of less than two weeks between April 1, 1988 and July 15, 1989, without proper licensure. Dawn Dodson was employed as a security guard by Respondent for a period of less than two weeks between April 1, 1988 and July 15, 1989, without proper licensure. Woodrow Roberts was employed as a security guard by Respondent for a period of less than two weeks between April 1, 1988 and July 15, 1989, without proper licensure. Robert Anderson was employed as a security guard by Respondent for a period of less than two weeks between April 1, 1988 and July 15, 1989, without proper licensure. In July 1989, twenty of Respondent's employees performed security guard services without identification cards. In July 1989, Respondent issued to six employees security guard badges which depicted a facsimile reproduction or pictorial portion of the Great Seal of the State of Florida without authorization. On or about June 30, 1988, Respondent repossessed a 38 ft. Wellcraft St. Tropez boat for Barnett Bank of Manatee County, Florida. The bank authorized Respondent to store the boat near Joe Ungarelli's house at 2409 69th Avenue West, Bradenton, Florida. Mr. Ungarelli expressed an interest in purchasing the boat from the Bank, and on July 2 or 3, 1988, Respondent, Ungarelli and two Barnett Bank employees, Doug Kramer and Tom French took the boat on a five to six hour trip so that Ungarelli could inspect the boat. The next day Respondent attended a Fourth of July party at Ungarelli's house. The boat was moved from Trailer Estates Marina to Ungarelli's dock and parked there. Respondent was also aboard for the second moving. Respondent solicited his friend Ungarelli to accompany him on the trip to repossess the St. Tropez boat from Englewood, Florida, a distance of over 40 miles south of Bradenton. Lee Bissette drove Respondent, Ungarelli and French to Englewood. Additionally, French worked part-time for Respondent as a security guard. After the boat was repossessed and brought from Englewood to Bradenton, Ungarelli again indicated to Respondent and Tom French that he was interested in purchasing the boat. Ungarelli requested that Barnett Bank allow him to take the boat out so that he could show his wife the boat and hopefully get her approval to purchase it. Barnett Bank thereafter contacted Respondent and authorized him to show the boat to Ungarelli and his wife. For doing so, Respondent was paid for his services. On Sunday, July 3, 1989, Respondent, acting on behalf of Barnett Bank, took the Ungarellis, Tom French and Doug Kramer out on the boat for approximately five hours. Karen Erikson, a friend and former employee of Respondent was picked up at a local seafood establishment earlier in the day. Immediately upon boarding the boat, Karen Erikson retired to the berth for at least three hours during the boat trip as she had consumed approximately ten beers and was somewhat intoxicated. On July 4, Joe Ungarelli had a Fourth of July party at his house. Respondent and other employees of Somerset Security were invited to Ungarelli's party. Ungarelli's house is located on a canal where the 38 ft. St. Tropez was docked along with four other boats, including a 40 ft. Scarub and a 32 ft. Sports Fisherman. Ungarelli dug the 25 ft. canal behind his home and it is, on the most favorable day, at best "tricky" to maneuver a large boat such as the repossessed 38 ft. St. Tropez into the canal. Respondent did not move the repossessed boat from Ungarelli's home on July 4th, nor did any other party, as Respondent, Ungarelli and several of his employees were busy barbecuing a pig for the party which was held that day. On each occasion that Respondent moved the repossessed boat, it was with the owner's (Barnett Bank of Bradenton) permission and was not used for any personal benefit of Respondent. Ungarelli submitted a bid to purchase the repossessed St. Tropez, however, he was out-bid by another party.
Recommendation Based on the foregoing Findings of Fact, Conclusions of Law and Stipulation of the parties, it is RECOMMENDED: Petitioner enter a Final Order imposing an administrative fine against Respondent in the amount of $4,000.00 and place his Class "A", "B", "C" and "M" licenses on probation for a term of six (6) months. 1/ DONE and ENTERED this 3rd day of July, 1990, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL 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 3rd day of July, 1990.
The Issue Whether respondent discriminated against petitioner in terminating his employment, either on account of his race or because he had engaged in protected activities?
Findings Of Fact In order to serve as Marine Patrol officers, candidates muse successfully complete a training program at DNR's Marine Patrol Academy, which only accepts one class a year. In 1983, DNR began its officer trainee program, an affirmative action effort to recruit members of minorities as Marine Patrol officers. The idea was to give recruits employment pending the annual beginning of the Marine Patrol Academy course, so that they would not be otherwise committed when classes started. In the interim, these officer trainees accompanied regular Marine Patrol officers, ordinarily in the field at the post nearest the trainee's home, and learned informally about the work. Ronald D. Jones, who is black, began as a Marine Patrol officer trainee in respondent's Division of Law Enforcement, on October 1, 1984. He and then Captain Thompson had discussed the position in May of 1984, after Clydie Hubbard, DNR's equal employment opportunity coordinator, referred Mr. Jones to Captain Thompson. Mr. Jones' home was in Quincy and the nearest Marine Patrol base on the water was in Carrabelle. Instead of being required to commute five days a week to Carrabelle, he was permitted to report to general headquarters in Tallahassee three days a week, and to Carrabelle two days a week. Weak In Swimming In the course of their first conversation, Captain Thompson informed Mr. Jones that he would have to pass a physical fitness test in order to be admitted to the Marine Patrol Academy. When Mr. Jones said "he felt he was a little weak in swimming," (T.52) captain Thompson told him that he would administer the test at Mr. Jones' convenience, whenever he felt he was ready to take it. Later in May, when Mr. Jones indicated he felt he was ready, the test was scheduled for June 8, 1984. On June 8, 1984, Mr. Jones passed every test easily, except for the swimming and floating tests. To pass the swimming test required swimming 300 yards in ten minutes or less. Mr. Jones was unable to swim more than two swimming pool lengths without clutching a rope for support. He also failed the floating test: he could not stay afloat for five minutes without grabbing for something. Captain Thompson told him he could pass the swimming and floating tests later, without having to retake any other portion of the physical fitness test, and suggested that he go to Alicia Crews at Florida State University or check with people at the YMCA or at Florida A & M University for swimming lessons or coaching. At the time Mr. Jones failed the tests, he was only an applicant for the officer trainee program and had no assurances of being chosen as a trainee. He did not follow the advice to seek help in order to improve his swimming. Numerous Reminders When he saw Captain Thompson in September of 1984, Captain Thompson reminded him he needed to pass the swimming and floating tests. Captain Thompson spoke to him on the telephone, in September of 1984, and, as he had when he had seem him, again told Mr. Jones he had to pass the tests. When he was hired, on October 1, he was reminded yet again about the swimming and floating tests, and Captain Thompson sent him a copy of the physical fitness requirements, Respondent's Exhibit No. 1, which mentioned that the tests had to be passed. As an officer trainee, he sometimes helped administer swimming and floating tests to others, but always refused offers to try again himself. Mr. Jones was consistently told he had to pass the swimming and floating tests in order to be admitted to the Marine Patrol Academy. At the time Mr. Jones was hired, DNR had a firm requirement that candidates pass the physical fitness assessment tests before entering the Academy. At one time the policy had been to let people in, if passing seemed to be within reach, but experience had persuaded those in charge that this was a mistake; people who were let in on this basis often actually regressed. Mr. Jones did not seem to be close to passing the swimming and floating tests, in any case. Early on Mr. Jones was told that training at the Academy would start in February, and written materials reflected this, although perhaps at one time someone told him March. In fact, classes at the Academy began on February 11, 1985. DNR decided to send out letters on January 21, 1985, three weeks ahead of time, so that applicants who held other employment could give notice of two weeks or better to their employers that they would be leaving, in order to enter the Academy. Before mailing these letters, DNR sought to determine how many positions were available. On December 21, 1984, Captain Thompson, sent a letter to Mr. Jones reminding him that he still had not passed the swimming and floating tests and telling him that he would have to make arrangements to do so on or before January 21, 1985. Respondent's Exhibit No. 3. Memo From The Trainee Four days earlier, on December 17, 1984, Mr. Jones had written Clydie Hubbard, DNR's EEO Coordinator, a memorandum on the subject "GHQ Staff," as follows: Against my better judgment, I deferred writing to you until now. To my knowledge there are no Black employees in GHQ's staff (Florida Marine Patrol). This is a problem not only for Tallahassee, but also the state of Florida, in turn [a]ffecting the Nation as a whole. How long must this problem exist in this department? How am I depicted as ap Black, if the entire GHQ is lilywhite? From the first time I set foot in GHQ, I knew it was time for a change. The training section is located in GHQ, so every employee of the Florida Marine Patrol has to pass through these offices. Thinking of other Black Sisters and Brothers coming to seek employment, they just can't believe their eyes. How can we be treated fairly? All the White faces and not one Black, let you know that racism does exist in 1984. Maybe you are not aware, but I think it's time something is done. This is a[n] opportunity for someone to change an ugly situation. People in the know, do not let opportunities go by. They hit at injustice; they hit at evils. They make life great for themselves by making life great for others. Have respect and esteem for every person. See beneath their exteriors, know them for what they really are. I'm not here to fight any battles, nor am I here to lose any. The reason I'm telling you these things is because President Reagan told me to. If there are any problems direct them to him. Thank you in advance for your interest in this matter. Respondent's Exhibit No. 6 He copied the N.A.A.C.P. State Conference; Dr. Elton J. Gissendanner, then Executive Director of DNR; Bob Graham, then Governor of the State of Florida; and Ronald Reagan, President of the United States. He did not, however, copy Captain Thompson, and Captain Thompson was unaware of the existence of this memorandum when he wrote his letter on December 21, 1984, Respondent's Exhibit No. 3, advising Jones that he needed to make arrangements to take and pass the swimming and floating tests on or before January 21, 1985. When Colonel Ellingsen received a copy of Mr. Jones' memorandum to Clydie Hubbard, on December 19 or 20, 1984, he telephoned Inspector Nash, a black Marine Patrol Inspector in Jacksonville, and asked him to investigate the allegations the memorandum made. Mr. Nash came over from Jacksonville and, after reading the memorandum, had a conversation of some two hours' duration with Mr. Jones. Mr. Jones said he had been personally discriminated against on account of the absence of black faces on the seventh floor of the Commonwealth Building where the Marine Patrol is headquartered. As they talked further, Mr. Nash came to believe that Mr. Jones wanted a job on the seventh floor at general headquarters, perhaps one that would not require swimming. In January of 1985, Mr. Jones talked things over with Dr. Gissendanner, DNR's Executive Director, who suggested, as others had before suggested, that Mr. Jones make arrangements to work with a swimming coach or otherwise get swimming lessons. Deadline Passes On January 20, 1984, Major Thompson, as he is now, not having heard from Mr. Jones, telephoned him and instructed him to present himself at his office the following day. Mr. Jones failed to appear at the appointed time. About three hours later, Captain Thompson found him in Colonel Ellingsen's office. The three of them discussed his taking the swimming test. Mr. Jones complained that it was a cold day. Indeed, he testified at hearing that it was six degrees." The pool in which the test was proposed to be given was out of doors, but the water was heated. Colonel Ellingsen and Captain Thompson offered to get into the water with him and told him that that day was the absolute deadline, but he refused to take the swimming test. On that account, Colonel Ellingsen advised him in his office that he would be terminated and wrote him a letter terminating him, effective 5:00 p.m. that day. Colonel Ellingsen knew of the memorandum when he terminated Mr. Jones, but the deadline for taking the physical fitness test was set without reference to any individual, and the requirement that the test be passed before admission into the Academy antedated the memorandum to Clydie Hubbard. There was no evidence that the memorandum precipitated petitioner's discharge or that any other factor entered into the decision aside from the fact that he was originally unable and was subsequently unwilling to try to pass the swimming and floating tests.
Recommendation It is, accordingly, RECOMMENDED: That FCHR dismiss petitioner's petition for relief from an unlawful employment practice. DONE and ENTERED this 14th day of August, 1987, at Tallahassee, Florida. ROBERT T. BENTON, II 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 14th day of August, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-3716 Petitioner's proposed findings of fact Nos. 3 and 7 have been adopted, in substance, insofar as material. With respect to petitioner's proposed finding of fact No. 1, the testimony was that he swam two lengths of the pool which a witness testified was 50 feet but may well have been 50 yards. With respect to petitioner's proposed finding of fact No. 2, admission to the academy was conditioned on passing the physical fitness tests. Petitioner's proposed finding of fact No. 4 accurately reflects the evidence as far as it goes, but Captain Thompson was unaware of the complaint when he wrote the letter. Petitioner's proposed finding of fact No. 5 has been rejected. The evidence did not establish retaliation on the part of DNR. With respect to petitioner's proposed finding of fact No. 6, petitioner was terminated for failure to take the swimming test on January 21, 1985, or on any other day before then, going back to May of 1984. With respect to petitioner's proposed finding of fact No. 8, being able to swim 300 yards could mean the difference between life and death for a marine patrol officer. Respondent's proposed findings of fact Nos. 1, 3, 4, 5, 7, 8, 9, 10, 11, 12, 13, 14, 15, 17, 18, 19, 20, 21, 22, 23 and 24 have been adopted, in substance, insofar as material. Respondent's proposed finding of fact No. 2 has been adopted, in substance, except that the record cited does not support a finding that a trainee's salary is 90 percent of a sworn officer's. Petitioner was paid $1,047.48 per month. Respondent's Exhibit No. 4. With respect to respondent's proposed finding of fact No. 6, the testimony was that he swam two lengths of 25 feet each, but the pool may in fact have been 25 yards long. With respect to respondent's proposed finding of fact No. 16, petitioner did not ask for a different job from Col. Ellingsen, although the evidence did not show that he had refused or declined any request that he ask for a job. COPIES FURNISHED: Donald A. Griffin, Executive Director Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925 Mr. Tom Gardner Executive Director Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, Florida 32303 Laura S. Leve, Esquire Assistant General Counsel Department of Natural Resources 3900 Commonwealth Boulevard Suite 1003 Tallahassee, Florida 32399 Ronald D. Jones 211 Tropicaire Street Tallahassee, Florida 32304
Findings Of Fact As Needed Temps, Inc., Respondent, provides temporary employees to various businesses. Respondent is not licensed under Chapter 493. Respondent Mary E. Carter is president of Respondent. She is also the director of operations for SOS Security, Inc., whose principal place of business is at the same location as that of Respondent. SOS Security, Inc. holds a Class "B" license. In August, 1987, David Christy, who was a drywall laborer, was working temporary jobs that Respondent had found for him. On August 8 or 9, 1988, Respondent assigned him to SOS Security, Inc., which placed Mr. Christy as a security guard at a local bicycle racetrack. While working as a security guard, Mr. Christy wore the guard uniform of SOS Security, Inc. Mr. Christy was not a licensed security guard. SOS Security, Inc., which billed its customer for the security service, paid Respondent for Mr. Christy's services, and Respondent paid Mr. Christy. At least one other individual entered into a similar arrangement with Respondent and SOS Security, Inc. Willy Dorsey, whose security guard license had expired in 1986, was paid by Respondent and SOS Security, Inc. at different times for security work that he performed during an unspecified year. These incidents were not isolated. Respondent invoiced SOS Security, Inc. a total of over $13,000 in three invoices from March 20, 1987, through May 8, 1987, for "providing guard service."
Recommendation In view of the foregoing, it is hereby RECOMMENDED that a Final Order be entered dismissing the Administrative Complaint. ENTERED this 30th day of September, 1988, in Tallahassee, Florida. ROBERT E. MEALE 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 30th day of September, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-1402 1-2. Rejected as not finding of fact. 3-10. Rejected as recitation of evidence and not findings of fact. COPIES FURNISHED: R. Timothy Jansen, Esquire Assistant General Counsel Department of State The Capitol, Mail Station #4 Tallahassee, Florida 32399-0250 Mary E. Carter President As Needed Temps, Inc. 6239 Edgewater Drive Suite N-5 Orlando, Florida 32810 Jim Smith Secretary of State The Capitol Tallahassee, Florida 32399-0250 Ken Rouse General Counsel Department of State 1801 The Capitol Tallahassee, Florida 32399-0250 =================================================================
The Issue This is a license discipline case in which the Petitioner seeks to take disciplinary action against the Petitioner on the basis of an alleged violation of Section 493.6118(1)(f), Florida Statutes, by sleeping while on duty.
Findings Of Fact Respondent currently holds a Class "D" Security Officer License, Number D92-08606, issued pursuant to Chapter 493, Florida Statutes, effective June 2, 1994. During September and October of 1994, Motivated Security provided security services to Shurgard Storage, located at 1650 West Oakland Boulevard, Fort Lauderdale, Florida. On September 30, 1994, the Respondent was employed as a security officer by Motivated Security. On that date the Respondent's assigned post with Motivated Security was at the Shurgard Storage premises described above. On that date, the Respondent was assigned to the 6:00 p.m. to 2:00 a.m. shift. At approximately 11:15 p.m. on September 30, 1994, while the Respondent was on duty at the post described above, the Respondent was sound asleep in a golf cart for a period of at least one-half hour.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that a Final Order be issued in this case finding that the Respondent committed the violation charged in the Administrative Complaint and imposing a penalty consisting of a six-month suspension of the Respondent's license. DONE AND ENTERED this 8th day of August 1995 in 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 8th day of August 1995. APPENDIX The following are the specific rulings on all proposed findings of fact submitted by all parties. Findings submitted by Petitioner. Paragraphs 1 through 6: Accepted. Paragraphs 7 through 11: Rejected as subordinate and unnecessary details. (All of these proposed details are essentially correct; it is simply not necessary to repeat them.) Findings submitted by Respondent. (None.) COPIES FURNISHED: Kristi Reid Bronson, Esquire Department of State Division of Licensing The Capitol, MS #4 Tallahassee, Florida 32399-0250 Gerald Brown 3551 N.W. 41st Street Lauderdale Lakes, Florida 33309 Honorable Sandra B. Mortham Secretary of State The Capitol Tallahassee, Florida 32399-0250 Don Bell, General Counsel Department of State The Capitol Tallahassee, Florida 32399-0250
