Findings Of Fact Petitioner, Harvey Jackson, in an inmate at UCI and has been at all times pertinent hereto. During the month of September, 1986, consistent with the rules of DOC, Jackson had a list of individuals on file who he desired to be allowed to visit him at the institution. These included members of his family and his fiancee, Ms. Ann Alexander. On September 22, 1986, Ms. Alexander came to visit Jackson at UCI. According to the routine procedure followed for the preparation of visitors' entrance into the Visitor's Park area, Ms. Alexander's purse was searched and she was subject to a pat search prior to being allowed into the secure area. During the search, it was determined she had $50.00 in U.S. currency in her possession and she was permitted to take that money into the Visitor's Park, leaving her purse at the waiting area. While Jackson and Ms. Alexander were together in the Visitor's Park, she purchased two cartons of cigarettes at the canteen and two orange drinks. The cartons of cigarettes were $12.00 each and the drinks were 35 each. Therefore, she spent approximately $24.70 of the $50.00 she brought in. Because she did not have a purse, she claimed later, upon questioning, that she put the change in the brown paper bag she got with the drinks and when she disposed of the bag in a trash can, inadvertently threw out the money as well. When she left the Visitor's Park area, she was subject again to a pat search and requested to indicate how much money she had. At that time, it was determined she had only $3.00 in her possession. According to corrections personnel who interviewed her, she gave several different stories as to what happened to the money she could not account for. Though both Ms. Alexander and Jackson stated she bought him two cartons of cigarettes, when he was searched prior to leaving the Visitor's Park, he had only one carton with him. The strip search conducted of him at that time also failed to reveal any money in his possession. Ms. Alexander was asked to go back into the Visitor's Park and look through the trash cans to try to find the money, and was accompanied by a guard. Because of the heat, however, it was an odious task and she admits her search of six or seven cans was not thorough. Unfortunately, she was unable to locate the money. As a result of this missing money, an incident report, (IR) was prepared. Ms. Alexander was not detained but was orally informed that her visiting privileges might be suspended and Jackson was allowed to return to his quarters. The IR merely outlined the information cited above but did not draw any conclusions as to what happened to the money. Mr. Davis, the corrections supervisor who was in charge of the corrections shift, concluded that Ms. Alexander disregarded the department's rules and regulations and recommended that her visiting privileges be revoked for an indefinite period. This IR was processed through channels to Mr. Cunningham, the Classification Supervisor, who under the provisions of Section 33-5.007(5), F.A.C., had the authority, in the absence of the Superintendent, to approve the suspension. He did so, and made sure that the Superintendent was informed. Thereafter, on September 29, 1986, Mr. K. W. Snow, who worked for Mr. Cunningham, on behalf of the Superintendent, Mr. Barton, sent a letter to Ms. Alexander at her home address on file at the institution, indicating that her visiting privileges were suspended indefinitely beginning that date and would be reinstated on October 31, 1986, one month later. Notwithstanding that inconsistency regarding the length of the suspension, the practice at UCI, in the case of indefinite suspensions, is to reconsider the suspension on receipt of a request for reinstatement. In the case of a suspension for a definite term, they will reinstate upon request at the end of the suspension period. On the afternoon of September 26, 1986, several days prior to the dispatch of the suspension letter to Ms. Alexander, inmate Jackson was called to Mr. Snow's office where he was told that Ms. Alexander's visiting privileges were to be suspended for 30 days. At that time, he was advised that the basis for the suspension was her inability to account for the money she brought into the Visitor's Park on September 22. Though he requested a copy of the IR at that time, Jackson was not given a copy of it until in response to a discovery request after the filing of the rule challenge petition. Jackson was not advised of any opportunity either he or Ms. Alexander might have for a hearing on the matter prior to the suspension, or any appeal rights. Thereafter, Jackson wrote to Mr. Snow asking that he be notified of the suspension in writing, but this request was denied. The September 29, 1986 letter was not received by Ms. Alexander but was returned undelivered because of an erroneous address. On October 1, 1986, however, she wrote to Mr. Cunningham, having been advised by Jackson of the suspension, and the address on her stationery was used to again send her a letter of notification. This second letter was not returned. In her letter, Ms. Alexander explained her reasons for taking so much money into the Visitor's Park, and what she had done with a part of it. She also outlined her efforts to find the extra money. These explanations were not credited by the institution officials, however. Ms. Alexander's suspension has had a bad effect on Jackson, he claims. He felt frustrated and considered that his ability to be heard by the authorities was unnecessarily thwarted. He is of the opinion that the suspension was unfair because neither he nor his fiancee had broken any rules, and neither of them was given any opportunity to explain to the decision maker what had happened other than in writing and after the action was taken. As a result of the suspension, which has now expired, he missed two separate visits from his fiancee. It should be noted, however, that Ms. Alexander's suspension did not place any limits on visits by the other 7 or 8 people on his visitor's list. This suspension action has been utilized frequently as to other visitors as well as Ms. Alexander. Ms. Decker, for example, on September 29, 1986, was notified of the suspension of her visiting privileges on the basis that she had allegedly written a threatening letter to an official at the institution. She found out about her suspension through a phone call from her inmate fiancee. Neither she nor he, initially, was told of the reason for her suspension, and she was given no opportunity to rebut the allegations against her prior to the suspension action. Subsequent to the suspension, she was able to clarify the situation and her visiting privileges have been reinstated, albeit on less convenient days than she had previously. She believes this change in days was intended as punishment, but there is no evidence of this. Ms. Decker denies ever having been told that she could only spend $25.00 in the canteen as is alleged in Ms. Alexander's letter. In fact, there is no rule or policy limiting the amount that visitors may spend in the canteen nor is there a rule or policy which limits inmates to no more than one carton of cigarettes at a time. Mr. Jackson complains of the fact that neither he nor Ms. Alexander was afforded a hearing prior to the imposition of the suspension. There is no provision in the rule for a hearing prior to suspension in this type of case. This suspension was not intended as punishment for improper behavior by Jackson, but more a means of correcting an unauthorized situation and avoiding a security problem. Officials at UCI interpret the provisions of paragraph 33-5.007(5), F.A.C., as permitting the removal of a visitor from the visiting list for criminal activity, for a serious rule violation, for continuous infractions of visiting procedures, for security breaches, or a combination of those. While the instant situation is not considered to be criminal activity, a serious rule violation, or a continuing infraction, it is considered to be a security breach and it was to correct this situation that the institution officials suspended Ms. Alexander. Final action on the issue of a suspension of visiting privileges based on the IR is, by the rule, to be taken by the Superintendent, or the Assistant Superintendent, Classification Supervisor, or the next senior officer present in the chain of command in the absence of the Superintendent. Here, while the suspension letter in question was signed by Mr. Snow, the assistant classification supervisor, and while the Superintendent, Mr. Barton, was present on the day the suspension letter was signed, the letter clearly shows that the action was taken in the name of the superintendent and the testimony of Mr. Cunningham established that it was done with his concurrence. There is nothing in the rule that requires that the inmate or the visitor be afforded a hearing prior to the action suspending visiting privileges. If an inmate feels that the action suspending the visiting privileges of an individual on his list is improper and he can show a direct effect on him as a result thereof, he may file a grievance. Though Jackson indicates he filed a grievance in this case, there is no evidence of it. The incident report in question related strictly to the activity of Ms. Alexander and the action was taken against her even though, in so doing, an adverse effect was felt by Mr. Jackson. No doubt had he desired to do so, he could have grieved that situation, but, as was stated above, there is no evidence that he did so. There is a difference between an IR, as was written here, and a disciplinary report, (DR), which was not involved in this case. A DR involves misconduct on the part of an inmate which may result in disciplinary action, including a suspension of visiting privileges. An IR is nothing more than a memorialization of an unusual incident which is to be brought to the attention of institution authorities. Whereas an inmate is entitled to a hearing before action is taken on the basis of a DR, no hearing is required when an IR is written. If the incident resulting in an IR also results in a DR, a hearing would be afforded the inmate based on the proposed disciplinary action, not on the memorialization in the IR. There is no doubt that the removal of visitors from an inmate's visitors list does have an adverse effect on the morale and possibly the well- being of the inmate involved. However, the action is normally taken on the basis of the conduct of the visitor, not the inmate, and if a decision is made to suspend the visiting privileges of the visitor, the direct effect is on that visitor with a secondary effect only on the innate. In the instant case, officials concluded that Ms. Alexander's inability to account for approximately $20.00 in currency constituted a breach of security which authorized and in fact dictated a need to curtail her entry into the institution for a period of time. There is no evidence that Jackson committed any offense or did anything improper and it is, indeed, unfortunate that he was forced to suffer the deprivation of not being visited by his fiancee for a period of time. Notwithstanding this, it is clear from the testimony of the numerous individuals involved in the investigation of this incident that the action taken under the terms of the rule to suspend Ms. Alexander's privilege to visit was not taken lightly and was based on a bona fide evaluation of a security risk to the institution.
Findings Of Fact 1. On November 8, 2010, the Department of Financial Services, Division of Workers’ Compensation (hereinafter “Department”) issued an Order of Penalty Assessment in Division of Workers’ Compensation Case No. 10-155-D2OPA to DONNA’S RESTAURANT AND COCKTAIL LOUNGE, INC. for a total assessed penalty of $32,116.65. The Order of Penalty Assessment included a Notice of Rights wherein DONNA’S RESTAURANT AND COCKTAIL LOUNGE, INC. was advised that any request for an administrative proceeding to challenge or contest the Order of Penalty Assessment must conform to Rule 28-106.2015, Florida Administrative Code. 2. On December 8, 2010, the Order of Penalty Assessment was served by personal service on DONNA’S RESTAURANT AND COCKTAIL LOUNGE, INC. A copy of the Order of Penalty Assessment is attached hereto as “Exhibit 1” and incorporated herein by reference. 3. On December 29, 2010, DONNA’S RESTAURANT AND COCKTAIL LOUNGE, INC. filed a Petition for Administrative Review Hearing (“Petition”) with the Department. The petition for administrative review was forwarded to the Division of Administrative Hearings on January 6, 2011, and the matter was assigned DOAH Case No. 11-0033. A copy of the petition is attached hereto as “Exhibit 2” and incorporated herein by reference. 4. On March 22, 2011, the Petitioner filed with DOAH a Motion to Deem Matters Admitted and to Relinquish Jurisdiction Pursuant to Section 120.57 (1)(), Florida Statutes. A copy of - the Motion to Deem Matters Admitted and to Relinquish Jurisdiction Pursuant to Section 120.57 (1)(i), Florida Statutes is attached hereto as “Exhibit 3” and incorporated herein by reference. 5. On March 30, 2011, the Department a received copy of an Order Granting Petitioner’s Motion to Deem Matters Admitted and to Relinquish Jurisdiction Pursuant to Section 120.57 (1)(i), Florida Statutes. A copy of the Order Relinquishing Jurisdiction and Closing File is attached hereto as “Exhibit 4” and incorporated herein by reference. 6. The factual allegations contained in the Order of Penalty Assessment, issued on November 8, 2010, are fully incorporated herein by reference, and are adopted as the Department’s Findings of Fact in this matter.
Conclusions THIS PROCEEDING came on for final agency action and Jeff Atwater, Chief Financial Officer of the State of Florida, or his designee, having considered the record in this case, including the Petition received from DONNA’S RESTAURANT AND COCKTAIL LOUNGE, INC., as well as the Order of Penalty Assessment, and being otherwise fully advised in the premises, hereby finds that:
Findings Of Fact The Petitioner testified in his own behalf, admitting that he had failed to answer Question 13, "Have you ever been arrested?" honestly. He stated that he had been embarrassed to put down the fact that he had been arrested. He stated that he had applied for the position as an unarmed security guard with Oxford Security Services thinking that it would be a temporary position. However, since his employment he has been promoted to safety coordinator, salesman and supervisor/operations manager of the company's operations in the Jacksonville area. The applicant was first employed in June of 1979. He stated that he needed to be licensed in order to maintain his present position. The applicant explained his arrest in 1963 and in 1977. His arrest in 1963 was for larceny and arose from taking money belong to the company by which he was employed and purchasing a car with it. The court withheld adjudication and placed the applicant on probation for five years. During that time he married and left the State of Florida in violation of the terms of his probation. In 1977, the applicant was employed in Jacksonville, Florida, as a used car salesman. After a 24-hour sale-athon, the applicant began bar-hopping and ended up in a topless go-go club. His next conscious recollection was waking up in the Duval County jail, where he was advised that he was charged with lewd and lascivious conduct. He had no knowledge of the conduct which gave rise to his arrest. The Duval County court advised the applicant to enter a plea of nolo contendere and be transferred to Miami court for disposition of the applicant's offense of parole violation. The Duval County court sentenced the applicant to two days for lewd and lascivious conduct, during which time he was transferred to the Dade County courts. The charges of violating parole in Dade County were dismissed. The applicant further explained his arrest for passing a worthless bank check. The applicant stated that he had overdrawn his account unknowingly in 1971. He was arrested and paid off the overdraft, and the charge was dismissed. The applicant stated that his employer was not aware of his arrest record.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the applicant's application for a Class F, unarmed guard license be denied; however, that the applicant be afforded the opportunity to refile his application with full disclosure, and that in the absence of any other disqualifying grounds said reapplication be approved. DONE and ORDERED this 6th day of February, 1980, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of February, 1980. COPIES FURNISHED: W. J. Gladwin, Jr., Esquire Assistant General Counsel Department of State The Capitol Tallahassee, Florida 32301 Mr. Wayne M. Chadwick 865 Lane Avenue, #703 Jacksonville, Florida 32205 =================================================================
Findings Of Fact At all times pertinent to the issues herein, Respondent, Lykes Brothers, Inc. operated a meat packing plant in Plant City, Florida. Hennis Washington, III was employed by Respondent at that plant as a utility worker. Petitioner, Hillsborough County, through its Human Resources and Equal Opportunity Department, had the authority to investigate and administratively enforce County Ordinances relative to unlawful discrimination in employment. Respondent is 5'1/2" tall and weighs about 114 pounds, much the same as at the time in issue. He is a power lifter and claims to be able to lift 405 pounds in a dead lift. He was employed at the Respondent's plant from July, 1991 to May, 1993, when he was terminated in the action which is the subject of this hearing. On May 24, 1993, while in the performance of his duties, Mr. Washington was carrying a stack of empty boxes from one place to another through the plant's bacon curing department. The stack of boxes he was carrying extended above his head and as a result he was unable to see in front of him. As he proceeded down the aisle, he ran into some resistance which prevented him from going further. He changed direction to the side where he could see, and which, he believed, was clear, and again ran into resistance which, this time, caused him to drop the boxes. After the boxes fell, and he could see in front of him, he observed Mr. Romero, a sanitation worker, in front of him, smiling. There is some question whether or not Mr. Romero took a step toward Mr. Washington. At hearing, Mr. Washington said he did and that he felt threatened by Mr. Romero's advance, though at his grievance hearing he did not indicate that. In response, howevever, Mr. Washington moved toward Mr. Romero, a man approximately 5'8" tall and weighing approximately 175 pounds, picked him up, and dropped him on the floor. As a result of that, Mr. Romero claimed to have injured his back and reported to the medical office by which he was released from duty for the evening. After this action, Mr. Washington was terminated from employment with the company. He is of the opinion it was because of his race, but admits he was advised by his supervisor, Mr. Freeman, it was because it was felt he had over- reacted to the situation with Mr. Romero. Nonetheless, an employee action request initiated by Mr. Freeman, dated May 24, 1993 reflected that Mr. Washington was administratively terminated. Administrative termination deals with unauthorized absences, according to the company's Employee Handbook. Mr. Freeman, himself African-American, was not present at the time of the incident, but was informed of it shortly thereafter, and called Mr. Washington to his office. Mr. Washington admitting picking up Mr. Romero, whom he did not previously know, and thereafter dropping him to the floor. Mr. Freeman, after finding out what happened, referred the matter to Mr. Harris, the employee relations manager, who is also African-American. Mr. Freeman did not interview Mr. Romero. He prepared the administrative termination notice upon direction of his supervisors. He claims the termination was based on Mr. Washington's fighting and not on the basis of his race. Mr. Harris, over a period of the next several days, conducted his independent investigation into the incident which investigation included speaking with Mr. Washington, Mr. Romero, and several other witnesses. During this period, both Mr. Washington and Mr. Romero were suspended. Mr. Harris' investigation confirmed there had been an incident, but he could find no evidence that Mr. Romero had pushed the boxes Mr. Washington was carrying. It was for that reason that Mr. Romero was not disciplined. The termination of Mr. Washington was predicated upon the fact that he had been engaged in a fight with another employee. The Respondent's personnel rules indicate that fighting, as opposed to mere horseplay, is a Class I infraction, the punishment for which can include dismissal. It includes the throwing of punches, the use of weapons, and the threat of injury. Horseplay, on the other hand, usually amounts to no more than pushing, tugging, and actions which are not likely to result in injury. In the instant case, Mr. Washington's actions constituted a direct battery of Mr. Romero which resulted in injury. It was, therefore, properly considered fighting. Mr. Harris concluded that Mr. Washington had reacted to the situation improperly. If, as he claimed, Mr. Washington felt he was being harrassed by Mr. Romero and Mr. Barbosa, who was with Mr. Romero at the time of the incident, he should have reported the matter to his supervisor rather than taking matters into his own hands. Employees are given an Employee Handbook when they begin employment with the company, and they are taught, in a four hour orientation course given to all employees, to back off from incidents of this nature - not to fight. Because he felt Mr. Washington had overreacted, Mr. Harris recommended termination, even though a check of both employees' personnel records indicated neither had any previous incidents. At the time of the incident, Lykes had approximtely 750 production maintenance employees, (Mr. Washington's category). Of this number, between 30 and 35 percent were African-American, 15 percent were Hispanic, 5 percent were other minorities, and between 45 and 50 percent white. Mr. Hampton, Lykes' Vice-President for Employee Relations, was made aware of the situation involving Mr. Washington by Mr. Harris, who recommended termination. Mr. Hampton agreed with this recommendation because Mr Washington had thrown Mr. Romero down and injured him. The recommendation for termination was not based on race and was consistent with discipline taken in prior incidents. Specifically, Mr. Hampton referred to a situation occuring not long before the instant case in which two white employees were initially terminated for an altercation they had. In that case, the investigation showed the employees had been fighting and both initially were fired. However, the union filed a grievance. A hearing was held and the decision to terminate was upheld. Thereupon, the union indicated its intent to take the matter to arbitration, and as a result of a meeting held on that issue, it was determined that the incident was more horseplay than fighting and there was little likelihood the company could prevail at arbitration. That conclusion was based on the fact there were no blows struck, there was no injury, and the incident stopped immediately upon the arrival of the supervisor. The employees thereafter were disciplined and reinstated. Mr. Washington also filed a grievance regarding his case. A hearing was held persuant to the union contract. Based on the information presented at the hearing, the grievance committee, made up of two African-American employees and one white employee, concluded there was insufficient evidence to take the issue to arbitration. This committee included the same individuals who heard the previously noted grievance, regarding the white employees. Mr. Washington asserts that because he had been assigned to a position previously held by Mr. Romero, who, he claimed, was demoted from utility to sanitation, Mr. Romero was angry with him and was looking for trouble. The evidence of record indicates that in March, 1993, Mr. Romero was transferred to another position on a different shift from that he was then occupying. The evidence also indicates the position to which Mr. Washington was assigned cannot be considered to be Mr. Romero's old position. Utility and sanitation jobs are, purportedly, on a par. Mr. Washington was assigned to a job identical to that which Mr. Romero had vacated, but on a different shift. Mr. Romero would have had no reason to think Mr. Washington took his job any more than any other utility employee. Further, there is no evidence, save the claim by Mr. Washington, that Mr. Romero acted in a threatening manner. Mr. Glisson, a witness to the incident, indicated the two "tangled". but there was no indication of aggressiveness by Mr. Romero. Taken together, while Washington may have believed Mr. Romero was threatening him, there was insufficient provocation for him to react in the way he did. Under the terms of the Employee Handbook, he should have retreated, and his actions constituted fighting which is grounds for discipline. It is impossible to conclude, from the evidence of record, that the termination of Mr. Washington resulted from anything other than a reaction to his demonstrated misconduct. Only one question remains unanswered. On June 1, 1993, an Employee Action Request was prepared, purporting to administratively terminate Mr. Washington because of fighting on the job and threats of violence. Counsel for the County claims this is an alteration of that action form prepared on May 24, 1993. Both exhibits were photo copies and it is impossible to tell, with certainty, that an alteration occurred. However, a close comparison of the copies leads to the conclusion that the latter dated form is, in reality, an alteration of the former with the dates changed, and an addition of fighting and threats with a direction to remove Mr. Washington from the payroll. No evidence was presented regarding a reason for the alteration, and nothing improper can be legitimately inferred therefrom. Counsel representing Mr. Washington makes reference to the opinion of an Appeals Referee of the Florida Department of Labor and Employment Security, dated July 30, 1993, which, in reversing the determination of the claims examiner in Mr. Washington's unemployment compensation claim, determines that he was not the aggressor in the incident that led to his discharge, and that his involvment was merely for self-protection. The Referee also finds that Mr. Washington's actions could not be viewed as misconduct connected with his work, and he is, therefore, not disqualified for unemployment compensation benefits. The Referee concludes, as a matter of law, that inefficiency, unsatisfactory conduct, and/or good faith errors in judgement or discretion are not to be deemed "misconduct" "within the meaning of the statute, (Chapter 443, Florida Statutes). The finding of the Appeals Referee is not binding on the undersigned in this action. Mr. Washington was deemed by his employers to have, by fighting, overreacted in the confrontation with Mr. Romero. Overreaction can be equated with poor judgement which, in an industry as hazardous as is meat packing, may well serve as appropriate grounds for discharge even if not classified as misconduct.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that a Determination of No Cause be entered by the Hillsborough Human Relations Board concerning the termination from employment of Hennis Washington, III by the Respondent, Lykes Brothers, Inc. RECOMMENDED this 31st day of March, 1995, in Tallahassee, Florida. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of March, 1995. APPENDIX TO RECOMMENDED ORDER The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: Accepted and incorporated herein. - 5. Accepted and incorporated herein. & 7. Accepted and incorporated herein. Accepted and incorporated herein. First sentence accepted and incorported herein. Second sentence rejected as a being more a Conclusion of Law than a Finding of Fact. - 12. Accepted and incorporated herein. Irrelevant. Accepted. Accepted. - 17. Accepted. 18. Accepted. FOR THE RESPONDENT: 1. 2. & 3. 4. 5. & 6. Accepted Accepted Accepted Accepted and and and and incorporated incorporated incorporated incorporated herein. herein. herein. herein. 7. - 9. Accepted. 10. & 11. Accepted and incorporated herein. 12. Accepted and incorporated herein. 13. & 14. Accepted and incorporated herein. 15. Accepted and incorporated herein. COPIES FURNISHED: Catherine P. Teti, Esquire Office of the County Attorney Hillsborough County P.O. Box 1110 Tampa, Florida 33601 Michael D. Malfitano, Esquire Malfitano & Campbell, P.A. 101 E. Kennedy Boulevard Suite 1080 P.O. Box 1840 Tampa, Florida 33601-1840 Daniel A. Kleman County Administrator Post Office Box 1110 Tampa, Florida 33601
Findings Of Fact 14. The factual allegations contained in the Stop-Work Order and Order of Penalty Assessment issued on June 14, 2008, the Amended Order of Penalty Assessment issued on July 21, 2008, and the Second Amended Order of Penalty Assessment issued on August 20, 2008, which are fully incorporated herein by reference, are hereby adopted as the Department’s Findings of Fact in this case.
Conclusions THIS PROCEEDING came on for final agency action and Alex Sink, Chief Financial Officer of the State of Florida, or her designee, having considered the record in this case, including the Stop- Work Order for Specific Worksite Only and Order of Penalty Assessment and the Amended Orders of Penalty Assessment served in Division of Workers’ Compensation Case No. 08-185-D1, and being otherwise fully advised in the premises, hereby finds that: 1. On July 14, 2008, the Department of Financial Services, Division of Workers’ Compensation (hereinafter “Department”) issued a Stop-Work Order and Order of Penalty Assessment in Division of Workers’ Compensation Case No. 08-185-D1 to F. PALHANO CONSTRUCTION CORPORATION (hereinafter “F. PALHANO”.). The Stop-Work Order and Order of Penalty Assessment included a Notice of Rights wherein F. PALHANO was advised that any request for an administrative proceeding to challenge or contest the Stop-Work Order and Order of Penalty Assessment must be filed within twenty-one (21) days of receipt of the Stop-Work Order and Order of Penalty Assessment in accordance with Sections 120.569 and 120.57, Florida Statutes. 2. On July 14, 2008, the Stop-Work Order and Order of Penalty Assessment was served by personal service on F. PALHANO. A copy of the Stop-Work Order and Order of Penalty Assessment is attached hereto as “Exhibit A” and incorporated herein by reference. 3, On July 21, 2008, the Department issued an Amended Order of Penalty Assessment in Case No. 08-185-D1 to F. PALHANO. The Amended Order of Penalty Assessment assessed a total penalty of $24,758.10 against F. PALHANO. The Amended Order of Penalty Assessment included a Notice of Rights wherein F. PALHANO. was advised that any request for an administrative proceeding to challenge or contest the Amended Order of Penalty Assessment must be filed within twenty-one (21) days of receipt of the Amended Order of Penalty Assessment in _ accordance with Sections 120.569 and 120.57, Florida Statutes. 4, On August 11, 2008, the Amended Order of Penalty Assessment was served on F. PALHANO by personal service. A copy of the Amended Order of Penalty Assessment is attached hereto as “Exhibit B” and incorporated herein by reference. 5. On August 13, 2008, F. PALHANO filed a petition for administrative review with the Department. . | 6. On August 20, 2008, the Department issued a Second Amended Order of Penalty Assessment 1 in Case No. 08- 185-D1 to F. PALHANO. The Second Amended Order of Penalty Assessment assessed a total penalty of $25,846.54 against F. PALHANO. The Second Amended Order of Penalty Assessment included a Notice of Rights wherein F. PALHANO was advised that . any request for an administrative proceeding to challenge or contest the Second Amended Order of Penalty Assessment must be filed within twenty-one (21) days of receipt of the Second Amended Order of Penalty Assessment in accordance with Sections 120.569 and 120.57, F lorida Statutes. 7. On August 21, 2008, the Second Amended Order of Penalty Assessment was served on F. PALHANO. by personal service. A copy of the Second Amended Order of Penalty Assessment is attached hereto as “Exhibit C” and incorporated herein by reference. 8. On August 26, 2008, the employer entered into a Payment Agreement Schedule for Periodic Payment of Penalty, in which the employer agreed to pay its penalty to the Department in set installments. The employer was granted an Order of Conditional Release From Stop-Work Order, which notified the employer that should the employer become delinquent on the Payment Agreement Schedule for Periodic Payment of Penalty, the Stop-Work Order would be reinstated. 9. The petition for administrative review was forwarded to the Division of Administrative Hearings on September 5, 2008, and the matter was assigned DOAH Case No. 08- 4396. 10. On February 5, 2009, the Administrative Law Judge issued an Order Granting Continuance, requiring the parties to advise the Administrative Law Judge of the case’s status no later than February 13, 2009. 11. The parties did not advise the Administrative Law Judge of the case’s status on or before February 13, 2009. On March 5, 2009, the Administrative Law Judge issued an Order Closing File, dismissing the case and closing its file at the Division of Administrative Hearings. A copy of the Order Closing File is attached hereto as “Exhibit D” and incorporated herein by reference. 12. On June 3, 2009, the Department reinstated the Stop-Work Order issued to F. PALHANO for failure to make timely payments on the Payment Agreement Schedule for Periodic Payment of Penalty. The last payment made by F. PALHANO was on January 5, 2009, leaving an outstanding balance of $21,696.78. 13. On July 27, 2009, F. PALHANO filed a Notice of Voluntary Dismissal of Petition for Formal Hearing with the Division of Administrative Hearings. A copy of the Notice of Voluntary Dismissal of Petition for Formal Hearing is attached hereto as “Exhibit E” and incorporated herein by reference.
The Issue Did Respondent violate the provisions of Section 817.567, Florida Statutes (2004), or any lesser included offenses, Section 943.1395(6) and/or (7), Florida Statutes (2004), and Florida Administrative Code Rule 11B-27.0011(4)(b) and/or (c), by failing to maintain the qualifications established in Section 943.13(7), Florida Statutes (2004), requiring maintenance of good moral character?
Findings Of Fact Undisputed Facts: Respondent was certified by the Criminal Justice Standards and Training Commission on September 5, 1995, and was issued Correctional Certificate Number 157626. Additional Facts: Petitioner's Exhibit numbered A11 is a copy of an interoffice memorandum from Respondent to the "Personnel Dept." This reference to the personnel department is taken to refer to the Florida Department of Corrections, in view of other proof in this record. The interoffice memorandum goes on to describe as the subject "transcript and diploma." The interoffice memorandum says "I have enclosed a copy of my diploma and transcript. Please place these in my personnel file and update my records and incentive. Thank you, W.S.D." The exhibit reflects in a handwritten note of unknown origins, "This diploma & transcript are ineligible for CJIP because this is not an accredited college." Nothing else in this record describes the nature of the transcript and diploma referred to in the interoffice memorandum concerning the particulars of the transcript and diploma that was mentioned on January 31, 1999, nor can it be reasonably inferred. As evidenced by Petitioner's Exhibit numbered A15, Respondent prepared and signed an employment application with the Florida Department of Corrections for the position of Correctional Probation Officer on June 14, 2004. In the course of this application Respondent listed under the section related to college university or professional school "Southern Mississippi" at "Hattiesburg, Mississippi", which he allegedly attended from August 1996 through August 2003, participating in a course of study referred to as "Criminal Justice" at which, according to the application, he earned an M.S. degree. In fact Respondent had never attended the University of Southern Mississippi as explained in correspondence dated July 6, 2004, from Greg Pierce, University Registrar at the University of Southern Mississippi directed to Terry Foskey, a payroll specialist with the Department of Corrections, Region I Service Center, who had inquired of the University of Southern Mississippi concerning Respondent's status as a student. This correspondence is Petitioner's Exhibit numbered A9. Moreover, a transcript, Petitioner's Exhibit numbered A3, which Mr. Foskey had supplied a verification specialist in the registrar's office at the University of Southern Mississippi, Trudy Stewart or Steward, was found not to resemble a transcript from that university, as explained by Mr. Pierce in his correspondence. The transcript, Petitioner's Exhibit numbered A3, had been received by Mr. Foskey on June 28, 2004. Mr. Foskey was uncertain of the information contained in the transcript. This led to his inquiry to the University of Southern Mississippi, with the determination being made that the transcript did not come from that university. While Mr. Foskey was attempting to clarify the status of the transcript with the University of Southern Mississippi, he was contacted by Respondent who asked if Mr. Foskey had received the transcript. Mr. Foskey replied that he had and asked what Respondent wanted done with that transcript. Respondent answered that he had pulled up information on a program known as ATMS, which the Florida Department of Law Enforcement uses to track certified officers, Respondent among them. As a result Respondent said that he needed this document, meaning the transcript, entered into the ATMS because he was transferring from his present position into another position he referred to as security. There was a series of e-mails as reflected in Petitioner's Exhibit numbered A8 from Respondent to Mr. Foskey. The first was on July 1, 2004. It says "Per telephone call, please place information in ATMS 2 and in my personnel file Thanks." Then the name and position of Respondent as Classification Officer at Santa Rosa CI-119 is provided. On that same date another e-mail was dispatched from Mr. Foskey back to Respondent which said "Thank you for the follow-up." As reflected in the exhibit, on July 7, 2004, Respondent sent an e- mail to Mr. Foskey, with the subject line being "Re: Transcript," which said in its text, "Mr. Foskey, how long does it take for the information to be entered into ATMS 2?" The change in employment position by Respondent that was being described for Mr. Foskey related to the application, Petitioner's Exhibit numbered A15. Pertinent to this inquiry, the Correctional Probation Officer job being sought by Respondent required a bachelor's degree level of education as a prerequisite to filling the position. The reference made by Respondent to the M.S. degree from University of Southern Mississippi is perceived as Respondent's attempt to show that he had the necessary level of education to apply for the job. In relation to his pursuit of the Correctional Probation Officer position, on June 8, 2004, Respondent had filed a request for demotion with the Regional I Service Center Department of Corrections for personal reasons, requesting permission to move from his position of Senior Classification Officer to that of Correctional Probation Officer. This is reflected in Petitioner's Exhibit numbered A15A. As a result of the incident concerning the purported transcript from the University of Southern Mississippi, the Department of Corrections, Office of the Inspector General investigated. That investigation was conducted by David Ellis. In a discussion between Mr. Ellis and Respondent concerning the subject transcript, Respondent acknowledged that he had the documentation sent to personnel, taken to mean the personnel office with the Department of Corrections. Respondent told Mr. Ellis that he had requested that the transcript be sent to personnel and had supplied information to a company to have it sent. Respondent did not remember the name of the company, as he explained to Mr. Ellis. Respondent told Mr. Ellis that he had read a personnel memorandum on the Department of Corrections website about a university in southern Florida that would accept life experience for college credits and that he, meaning Respondent, searched the web and found that the University of Southern Mississippi did likewise. The memorandum about the university in southern Florida, refers to Florida Southern College, and is found to be that as reflected in Respondent's Exhibit numbered A5. Respondent then sent an e-mail to the internet company requesting information about college degrees. The company sent him a package explaining the process and he sent something back about his life experiences, with a check of $800.00 and a list of other college credits earned elsewhere. Respondent told Mr. Ellis that he then received the subject transcript at his home from the University of Southern Mississippi on a later date. This is found to be as arranged through the internet company. The transcript that he received at home, Respondent compared to the one that had been received by Mr. Foskey and Respondent told Mr. Ellis they were the same with the exception that his transcript copy had a seal in the middle. Respondent acknowledged to Mr. Ellis that he had not taken any of the courses on the transcript that has been described and had not earned any grades for any of those courses reflected on the transcript. When Mr. Ellis asked Respondent why he would send something to personnel that he had never officially done, Respondent replied because he thought it was all right. Mr. Ellis asked Respondent to give him information about the internet company that Respondent had referred to and any information regarding payment to that company by Respondent. Respondent called Mr. Ellis back and told him that the name of the company was CustomDegrees.com. It is found that Respondent's Exhibit numbered 4 is information from CustomDegrees.com that Respondent relied on. Nothing about this information from CustomDegrees.com provided to Respondent, and for which Respondent paid a service fee, could reasonably be interpreted to serve as the functional equivalent of having earned the degree from the University of Southern Mississippi for which Respondent intended to take credit. Petitioner's Exhibit numbered A3A constitutes a handwritten educational history which Respondent provided to CustomDegrees.com for them to provide the degree which was falsely portrayed as having been issued by the University of Southern Mississippi.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a Final Order be entered finding violations of the Statutes and Rules referred to and suspending Respondent's Correctional Certificate Number 157626 for 60 days. DONE AND ENTERED this 12th day of April, 2006, in Tallahassee, Leon County, Florida. S CHARLES C. ADAMS 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 12th day of April, 2006. COPIES FURNISHED: Linton B. Eason, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 R. John Westberry, Esquire Holt & Westberry, P.A. 1308-B Dunmire Street Pensacola, Florida 32504 Michael Crews, Program Director Criminal Justice Standards and Training Commission Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
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.
Findings Of Fact In August 1986, petitioner was employed as a Detention Care Worker I at the Manatee Regional Juvenile Detention Center. On August 6, 1986, petitioner received a copy of HRS Pamphlet 60-1, entitled "Employee Handbook." The HRS policy concerning absences is set forth in the handbook as follows: If you expect to be absent from work for any reason, you must request leave from your supervisor as much in advance as possible, so that suitable disposition of your work may be made to avoid undue hardship on fellow employees and clients. As soon as you know you will be late or absent from work you must notify your supervisor. Absence without approved leave is cause for disciplinary action. If you are absent for three consecutive workdays without authorization, you may be considered to have abandoned your position and thus resigned. On May 4, 1987, petitioner received a written reprimand for an absence without authorized leave which occurred on April 9, 1987. Petitioner was reminded that he had to call his immediate supervisor for approved leave prior to the beginning of his shift. On May 4, 1987, petitioner also received an oral reprimand for his excessive absences. By May 28, 1987, petitioner had accumulated 41 hours of leave without pay that were due to absences from work that were not approved in advance. Ms. Clark, petitioner's Shift Supervisor, held a conference with petitioner to discuss the problems he was having. As a result of the discussion with petitioner, Ms. Clark decided to retroactively grant petitioner leave with pay, or annual leave, for all of the hours of absences for which he had annual leave available. After using all of petitioner's accumulated annual leave, petitioner still had eight hours of "short time," which was treated as leave without pay. On May 29, 1987, petitioner was advised by written memorandum from John Simpson, the Assistant Superintendent of the facility, that petitioner had to personally call his shift supervisor for any future leave requested. He was also advised that such request might not be approved and that he should be prepared to report to his assigned shift. On June 12, 1987, petitioner did not go to work. He did not request leave, but his wife called to say that he would not be at work. The Manatee Juvenile Detention Center is a secured facility. Detention care workers must be present at the facility at all times and work in shifts. Due to the nature of the work, it is vital that a detention care worker notify his supervisor in advance of any proposed absence so that arrangements can be made for a substitute to take his shift. Petitioner appeared for work as scheduled at 11:00 p.m. on June 18, 1987, and worked until 7:00 a.m., June 19, 1987. He was scheduled to work again at 11:00 p.m. on June 19, 1987. He did not call, and he did not report for work. He also was scheduled to work the night of June 20th. At about 6:00 p.m. on June 20, he stopped by the facility to say that his wife was having a baby. He did not report to work that night. On June 21, petitioner called Ms. Clark at home at about 9:50 p.m. He said that he was at the hospital with his wife and baby. He indicated that his wife and baby were fine, although the baby was about five weeks premature. Petitioner testified that he asked Ms. Clark for five days off and that Ms. Clark agreed. Ms. Clark testified that petitioner asked that he be given leave for the night of June 21. Since petitioner did not have annual leave accumulated, the leave had to be without pay. A shift supervisor is not authorized to grant over one day of leave without pay. Ms. Clark was a credible witness, she clearly recalled the conversation she had with the petitioner, and her testimony is accepted. It is therefore found that petitioner was granted leave for the shift beginning at 11:00 p.m. on June 21 and ending at 7:00 a.m. on June 22, 1987. No additional leave was authorized. Petitioner was scheduled to work the shift beginning at 11:00 p.m. on June 22, 1987. He did not appear for work and did not call. Petitioner was not scheduled to work the nights of June 23 or June 24, 1987. On Thursday, June 25, 1987, petitioner was scheduled to work the 11:00 p.m. shift. He did not call and did not report to work. On Friday night, June 26, 1987, petitioner was scheduled to work. He did not call and did not report to work. On June 27, at about 5:30 p.m., petitioner called Ms. Clark to inform her that he was returning to work. Ms. Clark told petitioner that he needed to talk to Mr. Simpson. Mr. Simpson went to the facility to meet with petitioner. Petitioner did not report to work. On June 28, 1987, petitioner went to work. He was told that he had to see Mr. Simpson. Mr. Simpson gave petitioner the termination letter which advised petitioner that he had been absent from work on June 22, 25 and 26, 1987, without authorization, and that he was deemed to have resigned from his position as Detention Care Worker I effective 7:00 a.m. on June 27, 1987.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered sustaining the action of the Department of Health and Rehabilitative Services and finding that Calvin Sloan abandoned his position as Detention Care Worker I and resigned from the Career Service. DONE AND ENTERED this 18th day of December, 1987, in Tallahassee, Leon County, Florida. DIANE A. GRUBBS 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 18th day of December, 1987. COPIES FURNISHED: Mr. Calvin Sloan 1207-25th Street East Palmetto, Florida 33561 Frederick Wilk, Esquire Department of Health and Rehabilitative Services District VI 4000 West Buffalo Avenue Room 520 Tampa, Florida 33614 Adis M. Vila, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Pamela Miles, Esquire Assistant General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 R. S. Power, Esquire Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407 Tallahassee, Florida 32399-0700
