The Issue The issue in this proceeding is whether William Jeffery Mishko's application for qualification as general lines agent should be denied for the reasons stated in the letter of denial: nolo contendere plea to a felony failure to reveal that plea on the application, based on the provisions of subsections 626.611(1)(2) and (7) F.S. and subsection 626.621(8) F.S.
Findings Of Fact William Jeffery Mishko, 1649 Algonquin Trace, Maitland, Florida, submitted his application, dated December 26, 1986, to the Department of Insurance, seeking qualification to take the examination for licensure as a general lines agent or solicitor. At the time that he filled out the application he was attending an insurance school, Hilda Tucker School, in Ft. Lauderdale, Florida. It was the first day of class and the students were told to get their applications in for the examination. He hurriedly completed the form and mailed it. A series of questions on the form address criminal history of the applicant. Those questions and Mishko's responses are: 8. Have you ever been charged with a felony? Yes if YES give date(s): 5/23/84 What was the crime? controlled Stubstnce[sic] Where and when were you charged? Winter Springs C.C. Tuskawilla Did you plead guilty or nolo contendere? No Were you convicted? No Was adjudication withheld? x Please provide a brief description of the nature of the offense charged. [writing struck through] controlled substance If there has been more than one such felony charge, provide an explanation to each charge on an attachment. Certified copies of the information or indictment and Final Adjudication for each charge is required. ---No Mishko testified that he started to explain the whole story on 8.(f), but there was insufficient space. He did not attach an additional sheet and did not attach a copy of the court documents as they were not available to him at the time. Later, the agency returned his application to him with the incomplete items circled. The question at 8.(c) was circled, as well as others relating to residence and employment in the past five years. Mishko then went to the Seminole County courthouse, obtained the certified copies and sent them to the agency. The court records reveal that on January 13, 1986, in case no. 85-999 CFC, in circuit Court of Seminole county, William Jeffery Mishko entered a plea of nolo contendere to possession of a controlled substance. Adjudication was withheld and he was placed on probation for three years. Mishko had been arrested on May 23, 1985, with two friends. He said that he was at work at the golf and country club and two friends came to see him with a small amount of cocaine. The police found them in the golf cart shed and arrested them for possession of cocaine and paraphernalia. The information, dated August 12, 1985, alleges a violation of section 893.13 F.S.. Mishko attributes the errors in the answers on the form itself to his haste to get the application filed so he could take the examination as soon as he finished the course in Ft. Lauderdale. When he followed up the application with the certified court records, he did not amend the application form with the accurate date of arrest or with the correct answer to 8.(c).
Recommendation Based on the foregoing, it is hereby, RECOMMENDED: That the Department of Insurance enter a final order denying William Jeffery Mishko's application based upon subsection 626.621(8) F.S. DONE and RECOMMENDED this 20th day of July, 1987 in Tallahassee, Florida. MARY CLARK 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 20th day of July, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-1254 The following constitute my specific rulings on the parties proposed findings of fact. Petitioner's Proposed Findings of Fact Adopted in paragraphs #1 and #2. Adopted in paragraph #2. Adopted in paragraphs #3 and #4. Rejected as irrelevant. Respondent's Proposed Findings of Fact Adopted in paragraph #3. Adopted in paragraph 4. Rejected as irrelevant. See paragraph 4, Conclusions of Law. 7-8. Adopted in paragraph #5. 9-11. Adopted in substance in paragraph #4. COPIES FURNISHED: Honorable William Gunter State Treasurer and Insurance Commissioner The capitol, Plaza Level Tallahassee, Florida 32399-0300 Don Dowdell, Esquire General counsel Department of Insurance and Treasurer The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Gerald Rutberg Esquire Post Office Box 977 Casselberry, Florida 32707 Rainell Y. McDonald, Esquire Richard W. Thornburg, Esquire Department of Insurance Room 413-B Larson Building Tallahassee, Florida 32399-0300
The Issue Has Respondent violated the Human Relations Act of 1977 with regard to Petitioner by an unlawful employment practice?
Findings Of Fact In the course of hearing several motions and rulings were made which arose out of the prehearing procedural background of the case, which of necessity now become findings of fact. This cause commenced by "Transmittal of Petition" from the Florida Commission on Human Relations for hearing de novo upon a Petition for Relief filed by Petitioner Leroy McDuffie Jr. from that agency's determination of "no cause" to believe that an unlawful employment practice had occurred in regard to Petitioner and Respondent's employment relationship. Included with that transmittal were copies of all pleadings and jurisdictional papers previously filed with the Commission. On or about October 25, 1984 Respondent filed with the Division of Administrative Hearings a Motion to Dismiss Petition for Relief from Unlawful Practice for Failure to State a Cause of Action Upon Which Relief May Be Granted, and/or Motion for More Definite Statement. On or about October 29, 1984 the Commission on Human Relations transmitted to the undersigned a handwritten notice from Petitioner of a change in his mailing address from "159 9th Street, Winter Haven, Florida 32787" to "1600 W. Washington St., Orlando, Florida 32805 PH. No. 425-1851." The undersigned determined that certificate of service on Respondent's pending Motion to Dismiss recited only Petitioners old address of "159 9th Street, Winter Garden, Florida 32787" and entered a November 5, 1984 Order requiring re-service of the Motion upon Petitioner at his new address and requiring Respondent to initiate a formal hearing on the motion. The parties were encouraged to use a telephonic conference call. Due to typographical error, a Corrected Order was entered November 8, 1984. The original order was mailed to Petitioner at "1600 W. Washington Street, Orlando, Florida 32805" and the Corrected Order was mailed to Petitioner at "1600 West Washington Street, Orlando, Florida 32805." Neither was returned to the undersigned by the U.S. Postal Service. The Motion was re-served by mail to the new address of "1600 W. Washington Street, Orlando, Florida 32805," but Respondent was unable to complete connections for a telephone conference call on a number of occasions, so on December 28, 1985, the undersigned issued a Notice of Motion Hearing to the parties for a date and time certain requiring Petitioner to contact Respondent and for Respondent's attorney to initiate such a call. This Notice was sent to Petitioner at "1600 West Washington Street, Orlando, Florida 32805." It was not returned to the undersigned by the U.S. Postal Service. At the time scheduled for the telephonic conference call (1:00 p.m., January 9, 1984) Respondent's attorney represented that he had had no contact from Petitioner and had, himself, been unable to reach him by phone. Since in excess of the time permitted by rule for filing of a response by Petitioner had passed, and since notice of the hearing was apparently complete with no response by Petitioner, argument was heard without Petitioner on the line. An order was entered January 23, 1985 denying Respondent's Motion to Dismiss but requiring that Petitioner file a more definite statement within 30 days. This Order reflects it was mailed to "Leroy McDuffie, Jr., 1600 West Washington Street, Orlando, Florida 32802." Also on January 23, 1985, the undersigned entered a Notice of Hearing for 11:00 a.m., April 5, 1985 and standard Pre- Hearing Order with detailed instructions cutting off discovery, requiring exchange of witness and exhibit lists, and requiring pre-hearing stipulation or statements by the parties. The Pre- Hearing Order indicates it was mailed to Petitioner at "1600 West Washington Street, Orlando, Florida 32802" and "159 Ninth Street, Winter Garden, Florida 32787." The Notice of Hearing indicates it was mailed to Petitioner at "1600 West Washington Street, Orlando, Florida 32802" and "129 Ninth Street, Winter Garden, Florida 32787." However, based on recollection and standard business procedure in the office of the undersigned, it appears that duplicates of the Order for More Definite Statement and Notice of Hearing and Pre-Hearing Order all of the same date of January 23, 1985 were all mailed to Petitioner together in envelopes addressed to both addresses as set out above. There was no return from either address by the U.S. Postal Service. Petitioner did not timely comply with the January 23, 1985 Order requiring more definite statement and on March 1, 1985 Respondent moved for entry of sanctions, including but not limited to dismissal. This Motion was served on Respondent at "1600 West Washington Street, Orlando, Florida 32802." Petitioner did not timely file a response in opposition to the March 1, 1985 motion but by Order of the undersigned dated March 15, 1985, dismissal was still not granted and the sanctions specifically requested were not granted. The only sanctions imposed by the undersigned in response to the general prayer of Respondent's Motion were that to prevent unfair surprise to Respondent due to lack of a More Definite Statement, Petitioner would not be permitted to call at formal hearing any witnesses other than himself and would not be permitted to submit at formal hearing any documentary evidence; further, Respondent was relieved of filing the Pre-Hearing Statement previously mandated by the Pre-Hearing Order. Petitioner was further ordered to show cause in writing by March 26, 1985 why his failure to comply with the January 23, 1985 Order requiring More Definite Statement should not be deemed an admission there were no disputed issues of fact and why a Recommended Order of Dismissal ought not to be entered accordingly. This Order was mailed to Petitioner at "1600 W. Washington Street, Orlando, Florida, 32802" and "129 Ninth Street, Winter Garden, Florida 32787." It was not returned to the undersigned by the U.S. Postal Service from either address. Petitioner did not timely show cause why this action should not be dismissed. Petitioner did not timely file a unilateral Pre-Trial Statement as required by the January 23, 1985 Pre-Hearing Order, which portion had not been rescinded by subsequent orders. Nonetheless, in what may have been an overabundance of caution, the undersigned did not enter a Recommended Order of Dismissal at that point nor did she cancel the hearing scheduled for April 5, 1985. At the time and place appointed for final formal hearing, Petitioner appeared on his own behalf. Before proceeding into final formal hearing on the merits, the undersigned inquired why the Petitioner had failed to comply with all prior orders and requested he show cause orally why the action ought not to be dismissed. It was Petitioner's explanation that although he received his mail at "1600 West Washington Street, Orlando, Florida 32805" he had never received any orders or correspondence or papers from the undersigned at that address. Upon inquiry as to how he knew to be at the formal hearing scheduled at that particular time and place, Petitioner said he had only received a phone call from his former residence in Winter Park that morning and so he arrived only at the last moment. The undersigned observed Petitioner arrived some 10 minutes before Respondent's attorney. Petitioner conceded that with the exception of the last digit of the zip code all orders and Notices had been correctly addressed to "1600 West Washington Street, Orlando, Florida" but maintained he had received none. He permitted the undersigned to examine the papers he had brought with him and indeed no pleadings or orders were included. Petitioner indicated he normally got no mail at the old address but sometimes he had his children pick up his mail there and deliver it to him which would explain why the items mailed to Winter Garden were not returned to the undersigned. Further, by his own admission, someone at the old Winter Park address appears to have opened duplicate mail there and relayed him messages about it. Petitioner apparently does not physically reside at either address, but does intend to receive all his mail at the West Washington Street address. However, Petitioner had no explanation why the items were not delivered to him or alternatively returned to the undersigned from the 1600 West Washington Street address. Petitioner stated that he had received phone calls and mail from the Respondent's attorney at the old address. Respondent's attorney stated with one exception everything sent by his office had been sent to "1600 West Washington Street, Orlando, Florida 32802 and nothing had ever been returned to him by the U.S. Postal Service. In light of all of the foregoing, the undersigned ruled that she must conclude that a last digit zip code error was not sufficient to indicate Petitioner had not timely received all pleadings and orders at the 1600 West Washington Street address, and that having received them and having failed to comply, the sanctions previously imposed would stand. However, the undersigned also ruled that in light of Petitioner appearing for the hearing, and obviously indicating a controversy of some kind, she would proceed with the formal hearing and allow him to present his own testimony and at the conclusion of his testimony, so as to prevent any surprise to Respondent, the hearing would be continued to allow Respondent to prepare a defense and present it at a subsequent date by bifurcated hearing. This would be done because the Petition had never set out even the disputed issues of material fact and no More Definite Statement had corrected that deficit. Petitioner refused to be sworn, refused to indicate the issues of material fact in dispute, refused to give testimony and refused to present any evidence at all. The undersigned explained to Petitioner that the burden of proof was his, that if he put on no case whatsoever he could not prevail and she would have no choice but to enter a Recommended Order of dismissal upon all grounds raised by Respondent, upon failure to prosecute, and upon failure to carry the burden of proof. Petitioner stated he did not care as long as he had an appeal and could get a lawyer to "write it out" and "tell somebody what was going on here." The undersigned explained that after entry of a Recommended Order she would lose jurisdiction, that the Florida State Commission on Human Relations would then enter a Final Order which might accept, reject or diverge from the Recommended Order and then an appeal could be had to a District Court of Appeal, but that it was in Petitioner's interests to proceed now. Petitioner moved for a continuance so that he might hire a lawyer, stating he had the money to hire one now that he was working. The undersigned observed that Petitioner had had notice of this hearing since late January and had not hired a lawyer. Petitioner said he had consulted a lawyer who told him to get his papers together but had never gone back to hire that lawyer. The gist of Petitioner's argument on continuance was that a previous continuance had been granted to Respondent by an internal hearing officer or investigator for the Florida Human Relations Commission prior to commencement of this de novo proceeding pursuant to Section 120.57, Florida Statutes. The undersigned concluded Petitioner had had opportunity to hire an attorney if he chose and denied a continuance. Petitioner again refused to be sworn or to put on any evidence. Respondent renewed all previous motions and it was stipulated that rulings thereon and the rulings made at the hearing would be incorporated in this Recommended Order.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Human Relations Commission enter a Final Order dismissing with prejudice the Petition herein. DONE and ENTERED this 26th day of April, 1985, in Tallahassee, Florida. ELLA JANE P. DAVIS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 FILED with the Clerk of the Division of Administrative Hearings this 26th day of April, 1985. COPIES FURNISHED: Leroy McDuffie, Jr. 1600 West Washington Street Orlando, Florida 32805 Charles M. Rand, Esquire 10th Floor, CNA Building Post Office Box 231 Orlando, Florida 32802 Commission on Human Relations c/o Suzanne Oltman, Clerk 325 John Knox Road, Suite 240 Tallahassee, Florida 32303 Donald A. Griffin, Executive Director 325 John Knox Road, Suite 240 Tallahassee, Florida 32303
The Issue The issue in this case is whether the Petitioner is entitled to an award of attorney's fees and costs pursuant to section 57.111, Florida Statutes (2011).1/
Findings Of Fact By a three-count Administrative Complaint dated June 7, 2011, the Respondent charged the Petitioner with alleged violations of law related to the sale of certain products. The allegations of the Administrative Complaint were prosecuted in the disciplinary case. A final hearing in the disciplinary case was conducted on January 24 and 25, 2012. On April 18, 2012, the ALJ issued a Recommended Order determining that the products referenced in the Administrative Complaint were unregistered securities and that the Petitioner "violated section 626.611(16) [Florida Statutes,] by selling an unregistered security that was required to be registered pursuant to chapter 517." The Administrative Complaint also charged the Petitioner with additional violations of statute including a "[d]emonstrated lack of fitness or trustworthiness to engage in the business of insurance," in violation of section 626.611(7). As set forth in the Recommended Order, the ALJ determined that the evidence failed to establish the additional violations. Based on violation of section 626.611(16), the ALJ recommended that the Petitioner's license be suspended for a total of six months, two months for each product sale alleged in the three separate counts of the Administrative Complaint. On July 6, 2012, the Respondent issued a Final Order determining that in addition to the violation of section 626.611(16) found by the ALJ, the Petitioner had also violated section 626.611(7). Despite finding the additional violation, the Respondent adopted the penalty recommended by the ALJ. The Petitioner took an appeal of the Final Order to the District Court of Appeal for the Fifth District. The Court determined that the products sold by the Petitioner were not securities that required registration at the time they were sold by the Petitioner, and, on June 21, 2013, issued an order reversing the Final Order issued by the Respondent. The parties have stipulated that the Petitioner was the prevailing party in the disciplinary case and is a "small business party" as defined by section 57.111(3)(d).
Findings Of Fact Danny Michael Shipp is a black male who was employed at the Jacksonville, Florida, aluminum can plant of Respondent Kaiser Aluminum and Chemical Corporation. This period of employment was from October 29, 1978 until November 19, 1978. Mr. Shipp was hired as an equipment tender. In that position his duties included loading pallets, maintaining six paint spray guns and generally checking on equipment to ensure that is was functioning properly in the assembly of aluminum cans. His job required no special skills or qualifications. At the tame Mr. Shipp was hired, Kaiser was adding 70 to 80 people to its working force because it was starting up a new production shift. There were approximately 500 applicants and around 300 people were interviewed by plant management. A background check was made by Pinkerton's of Florida, Inc. on the newly-hired personnel including Mr. Shipp and another employee K.M. 1/. Of the 70 to 80 people hired, only K.M., who is white, and Mr. Shipp were reported to have a criminal record. Mr. Shipp's Pinkerton's report indicated: 7-2-77 Case number 77-2789 Possession of Contra. Substance (more than 5 grams) WHASJ Guilty 19 Month Probation. Released on $751.00 Bond. 3-26-70 Case number 701455 Assault and battery, case discharged 4-7-70 Case number 70 1454 Malicious Mischief, sugar in gas tank of Gail Shipp. K.M.'s report stated: 4-30-76 Case number 21013 possession Narcotics implements Nol. Press. Possession controlled substance Marijuana, over 5 gr. $250.00 Fine 7-31-78 Case number 3105 Sale of controlled substance, 80 days Duval County jail, 1 year Probation. There were other charges which were later shown as misdemeanor's. (sic.) On the job application form filled in by Mr. Shipp, Kaiser asked if he had been convicted of a felony within the last seven years. Mr. Shipp answered by checking a box "no." After several weeks of employment, Mr. Shipp on November 19, 1978, was invited to a conference with Mr. Rice, the Kaiser administrative manager; the plant manager; and the plant superintendent. This was still during his thirty- day probation period when he could be fired without cause and without the right to grieve a discharge. He was told by Mr. Rice that he was being terminated due to the Pinkerton's report. When Mr. Shipp asked for a specific reason for his discharge, Mr. Rice responded: (From Hearing Transcript p. 142) "He said, Well what are you talking about specifically?' And I said, 'Well, based on the evidence, the background check, that we no longer want to keep you as an employee. He said, 'Well, what specifically are you talking about?' And I said, 'Well,' I said, 'You currently are on probation?' He said, 'Yes, sir.' And I said, 'Well, let's just let it go at that, and I'm not going to talk about it anymore.' And that's basically what we did. And then Mr. Carlson walked back to the lockerroom with Mr. Shipp and we all walked out to the front, shook hands, and that was it. On October 21, 1977, Mr. Shipp was placed on probation, adjudication withheld for the felony possession of more than 5 grams of marijuana. His probation successfully expired on April 21, 1979, subsequent to his discharge at Kaiser. On his application with Kaiser, gave "layoff" as the reason for leaving a former employer, Jacksonville Shipyard. In fact, as was brought out during his cross examination, he was terminated there due to being absent from work. Kaiser's primary reason for discharging Mr. Shipp was because of his arrest record. At the time of his termination, Mr. Rice believed after consulting with Kaiser counsel, that Mr. Shipp had not been convicted of any felonies. He further believed that for the purpose of terminating an employee, K. M.'s report was the equivalent of Mr. Shipp's. K.M. who was also in his probationary period as an equipment tender was dismissed by Kaiser because of his arrest record. Kaiser has and had no custom, policy (written or otherwise) or practice of terminating an employee for his arrest record, conviction or criminal probation status. The decision to fire Mr. Shipp and K. M. was made spontaneously by Mr. Rice, Mr. Gene Miller, the plant manager, and Mr. Curtis Thompson, who collectively are the top management at the Jacksonville plant. There is no proof that anyone has ever been fired either before or after the termination of Mr. Shipp and K.M. because of their arrest record, convictions or criminal probation status. After his discharge, Mr. Shipp spoke with his probation counselor, Mrs. Susan Karl, about his discharge. She wrote a letter to Mr. Kaiser on November 28, 1978, in which she explained Mr. Shipp's legal status and gave her opinion about his currently being a law-abiding citizen. She asked that Mr. Shipp be considered for reemployment. He was not rehired. A copy of the Notice of Failure of Conciliation in Mr. Shipp's case was sent to him on March 10, 1980. He filed his Petition for Relief with the Commission on April 8, 1980. For reasons not appearing in the record, a Second Notice of Failure of Conciliation was sent to Mr. Shipp on March 28, 1980. During his employment at Kaiser, Mr. Shipp received three weekly evaluations as a probationary employee. For the first week his evaluator rated him as "fair" and commented that he "overreacted and needs to study more for the test." During the second week he received a "good" with the note that he "Works good on line, picks up on job fast." Finally, on November 17, 1980, he was given a "good" rating with the comment that "Danny's performance has been consistently good overall (He was late once)." With respect to Mr. Shipp's complaint charging Kaiser with race discrimination the Commission by its Executive Director has made a determination of reasonable cause to believe that an unlawful employment practice occurred.
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 the petition for relief filed by Danny Michael Shipp and supported by the Commission. DONE and RECOMMENDED this 8th day of January, 1981, in Tallahassee, Florida. MICHAEL P. DODSON Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675
The Issue Whether Petitioner, a member of a protected class, was terminated from his position with the Respondent in retaliation for his filing of a national origin discrimination complaint with the Florida Commission on Human Relations on August 17, 1988.
Findings Of Fact The Southland Corporation, d/b/a Southland Distribution Center, is an "employer" within the definition found in Section 760.02(6), Florida Statutes. Guillermo A. Barbosa was an "employee" of the Respondent as defined in Section 760.02, Florida Statutes, and was employed by Respondent for approximately sixteen (16) years. The Division of Administrative Hearings has jurisdiction over the subject matter of these proceedings and the parties involved. All procedural prerequisites and requirements have been duly accomplished or satisfied. The Petitioner, Guillermo A. Barbosa, is fully competent to represent himself on a pro se basis. He exhibited clear understanding of the procedural requirements at the formal hearing and the legal import of his burden of proof on his claim of an unlawful practice against the Respondent. Petitioner exhibited comprehension of the English language, both spoken and written, and exhibited fluency in the speaking of English in the interrogation of witnesses at the formal hearings. Respondent, The Southland Corporation, d/b/a Southland Distribution Center, functions as a warehousing and distribution complex for a number of commercial customers including 7-Eleven convenience stores and restaurant chains such as Steak & Ale, Bennigan's, TGI Friday's, Krystal and others. In order to service its regional territory of four states, it employs approximately 630 employees in a large 440,000 square foot warehousing facility located on Sand Lake Road in Orlando, Florida. Respondent's warehouse operates 24 hours a day five (5) days per week. Respondent's work force stores a variety of goods and products and, upon order or request from a given customer or account, selects the indicated goods, packs them in appropriate containers and loads the order on tractor trailer rigs for transport and delivery to the final destination point. The Respondent places great emphasis upon the importance of time and schedules. Timely reporting for work and attendance as scheduled is emphasized by the Company so that the closely integrated operation of the complex can be maintained with efficiencies of labor and close coordination of schedules between warehouse operation, the transportation link and the store hours of the customer. The policies, procedures and work rules of the Company provide incentive programs to reward employees who report to work as scheduled in a prompt and consistent manner. Conversely, through its work rules, the Company provides that employees who demonstrate a pattern of tardiness or absence may be disciplined or discharged. For these same reasons, the work rules published to the employees and acknowledged by each worker also stress that a failure to report to work when directed or as scheduled for a period of 48 hours (no show/no call) will result in automatic termination of employment. The Respondent views employee reliability for reporting to work as scheduled and on time as a fundamental condition of employment. On August 11, 1988, Petitioner reported an on-the-job injury and was relieved of duty and, under directions from the Respondent's occupational health nurse, treated by an outside physician. On August 17, 1988, while on the medical leave of absence due to the work-related injury, Petitioner filed a discrimination charge alleging denial of transfer or promotion due to his national origin. A notice of the charge of discrimination was directed to the attention of the Personnel Manager of the Respondent and was received on September 7, 1988. On Friday, September 16, 1988, Petitioner was released by the treating physician and given "return to work orders" instructing him to return to work without restrictions. The following work day, Monday, September 19, 1988, the Petitioner resumed his normal duties and work routine. However, after approximately one to one and one half hours of work, Petitioner reported that he had either re- injured himself or had aggravated the prior injury for which he had been treated. The Respondent again placed Petitioner on medical leave of absence due to the work-related injury and directed him for treatment to the outside physician. On Friday, September 30, 1988, Petitioner was again released by the treating physician without limitations or restrictions and given instructions to return to work. On the next workday, Monday, October 3, 1988, Petitioner failed to show up at his scheduled time. After being absent without authority or explanation for five consecutive work days, the Warehouse Manager, Mr. Julius Dix, mailed a letter to Petitioner. The letter explained that pursuant to Rule 12 of the Company's "working conditions", specifically failure to report to work as directed and being absent without explanation or authorization for five consecutive work days, the Company was placing Petitioner on suspension pending further review. Although dated October 5, 1988, the letter drafted by Mr. Julius Dix was actually written and sent on Friday, October 7, 1988. However, the date of the letter was made retroactive to the actual point of job abandonment pursuant to the so-called "48- hour rule". On October 17, 1989 Petitioner mailed a copy of a medical form from an outside physician indicating that Petitioner had been disabled from working from October 13 to October 25, 1988. It was received by an employee of Respondent on October 19, 1988. A similar form was mailed October 26, 1988 and received on October 28, 1988. There was no letter or personal explanation accompanying the medical form. Petitioner stated that upon being released by the treating physician, he contacted the Warehouse Manager, Mr. Julius Dix, and upon explaining that his injury continued to disable him from returning to work, was given permission to continue on medical leave and seek treatment by another physician. However, Mr. Dix testified that he had never given such permission or directions, nor had he received any communications or contact from Petitioner on Friday, September 30, or during the subsequent week. The more credible testimony is that Petitioner made no communication with his employer during the week of October 3, 1988. Following corporate review, required for long-term employees, Petitioner's employment was formally terminated for violation of the "48-hour rule" (no show/no call) under a subsequent letter from Mr. Julius Dix dated October 25, 1988. On November 8, 1988, Petitioner filed a charge of discrimination alleging retaliation. The Petitioner's work history demonstrates his knowledge of the 48- hour rule and prior compliance under similar circumstances. The 48-hour rule of Respondent has been applied in a consistent and uniform manner to a substantial number of other employees during a period of time immediately prior to the action taken with regard to the administrative termination of Petitioner's employment. The administration of this rule by the Company has resulted in termination of the non-complying employees.
Recommendation Based upon the testimony and evidence submitted on the record in the formal hearings on this matter and by application of the relevant or governing principles of law to the findings of facts established on such record, it is RECOMMENDED: That a Final Order be issued which denies the Petition for Relief. DONE AND ENTERED this 17th day of November, 1989, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 17th day of November, 1989. APPENDIX The following constitutes my specific rulings, in accordance with Section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner did not file proposed findings of fact. Respondent's Proposed Findings of Fact: Paragraphs 1, 2, 3, 4, 5, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18 (sic) -- accepted in substance. Paragraphs 7 and 8 -- rejected as not relevant. COPIES FURNISHED: Guillermo A. Barbosa Dana Baird 854 Long Bay Court General Counsel Kissimmee, Florida Human Relations Commission 325 John Knox Road Thomas C. Garwood, Jr., Esquire Building F, Suite 240 Garwood and McKenna, P.A. Tallahassee, FL 32399-1925 322 East Pine Street Orlando, Florida Margaret Jones Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1925
Findings Of Fact 1. The evidential facts in this cause are presented by a joint stiulation between the parties. That stipulation is made a part of the record herein. The exhibits referenced as being attached to the stipulation are not actually attached, but are available for review in the Petitioner's file, by agreement of the parties. The following is a recitation of the stipulation.
Recommendation It is recommended that the license held by the Respondent, Manhattan Liquors, Inc., t/a Manhattan Liquors, license no. 39-1086, series 4-COP, be revoked. DONE AND ENTERED this 28th day of December, 1977, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: William Hatch, Esquire 725 South Bronough Street Tallahassee, Florida 32304 Joseph G. Spicola, Jr., Esquire Spicola and Larkin, P.A. 806 Jackson Street Tampa, Florida 33602
The Issue Fact Issues Did Petitioner, Flo-Ronke, Inc. (Flo-Ronke), fail to timely pay a fine imposed by Final Order of the Respondent, Agency for Health Care Administration (Agency)? Did the Agency reject attempts by Flo-Ronke to timely pay the fine in full by a single payment without conditions? Did Flo-Ronke attempt to pay the fine untimely in full by a single payment without conditions? If so, did the Agency reject the proffered payment? Did Flo-Ronke employ an individual in a position that required background screening who had a disqualifying criminal conviction? Law Issues Which party bears the burden of proof? What is the standard of proof? Do the facts support denying re-licensure of Flo-Ronke? Are untimely efforts to pay the fine in full with a single payment mitigating factors? If so, how should the factors be weighed?
Findings Of Fact Flo-Ronke is an Assisted Living Facility (ALF). An ALF is a building, part of a building, or a residential facility that provides “housing, meals, and one or more personal services for a period exceeding 24 hours to one or more adults who are not relatives of the owner or administrator.” § 429.02(5), Fla. Stat. (2015).1/ The Agency licenses and regulates ALFs. §§ 429.04 and 429.07, Fla. Stat. Flo-Ronke is subject to the Agency’s licensure requirements and is licensed by it. By Notice of Intent to Deny Renewal Application dated December 2, 2014, the Agency denied Flo-Ronke’s application to renew its license on the grounds that Flo-Ronke “failed to comply with the criminal background screening requirements by employing a caretaker who was not eligible to work in the facility.” On January 8, 2015, the Agency amended the Notice of Intent to Deny. On January 21, 2015, the Agency issued a Second Amended Notice of Intent to Intent to Deny for Renewal. This notice is the subject of this proceeding. The second amended notice asserts two bases for denial. One is the originally asserted background screening violation. The other is Flo-Ronke’s failure to pay an outstanding fine in AHCA Cases 2014002513 and 2014002514. Payment of the Fine In AHCA Cases 2014002513 and 2014002514, the Agency’s Administrative Complaint charged Flo-Ronke with four deficiencies involving insects, cleanliness, medication administration, and inadequate staffing. Originally, Flo-Ronke requested an evidentiary hearing before DOAH (DOAH Case No. 14-1939). Later, Flo-Ronke, through its owner Ms. Akintola, agreed there were no disputed issues of facts and stipulated to returning the matter to the Agency for an informal hearing. The Agency provided Flo-Ronke an opportunity for a hearing. No representative of Flo-Ronke appeared at the hearing. The Agency issued a Final Order on November 5, 2014, upholding the Administrative Complaint and imposing a $13,500 fine. The Agency’s Final Order included instructions on how to make the payment, advised that the payment was due within 30 days of the Final Order, and cautioned that interest would be imposed on overdue amounts. The Final Order included a Notice of Right to Judicial Review. On behalf of Flo-Ronke, Ms. Akintola appealed the Final Order pro se. The Florida Rules of Appellate Procedure do not provide for an automatic stay of a decision if it is appealed. Flo-Ronke did not seek a stay of the Final Order. Consequently, the obligation to pay the fine was effective as of the date of the Final Order. The First District Court of Appeal rendered an Order requiring Flo-Ronke to obtain counsel for the appeal because a corporation cannot be represented by an employee or officer. Flo-Ronke did not obtain counsel or respond to the court’s Order. On January 16, 2015, the court dismissed Flo-Ronke’s appeal. On April 9, 2015, Flo-Ronke, represented by the same counsel as in this proceeding, moved to re-open the appellate case. On April 17, 2015, the court denied the motion. It also denied Flo-Ronke’s subsequent motion seeking reconsideration, clarification, a written opinion, and a stay. From the date that the Agency entered the Final Order imposing the fine in DOAH Case No. 14-1939 (AHCA Cases 2014002513 and 2014002514) to the date of the final hearing, Flo-Ronke did not pay the fine. Starting around February 2015, attorney Scott Flint tried, on Flo-Ronke’s behalf, to arrange a payment plan for the fine. He discussed the proposal with Agency Attorney Edwin Selby. Mr. Flint linked the discussions to resolving a separate investigation of Flo-Ronke that the Agency was conducting. Mr. Flint never offered unconditional payment of the fine on behalf of Flo-Ronke. Mr. Flint testified that at some point during conversations about the two cases, Mr. Selby said the Agency would not accept full payment if it was offered. Mr. Selby testified that he did not make this statement. Mr. Selby’s testimony is more credible in this instance, as it is in other instances when Mr. Selby’s testimony differed from Mr. Flint’s. One reason Mr. Selby’s testimony is more credible is that on February 11, 2015, after the time Mr. Flint says Mr. Selby made the statement, Mr. Flint wrote Mr. Selby a letter proposing an installment plan for paying the fine. The letter did not mention the alleged statement that the Agency would not accept payment. The proposal and the failure to mention the alleged refusal are inconsistent with the assertion that Mr. Selby said payment would not be accepted. Also, Mr. Flint hedged his testimony about the alleged refusals, noting that lawyers say many things during negotiations. Mr. Selby’s testimony about conversations after the February 11 letter is also more credible. Mr. Selby never said that the Agency would not accept full payment if it were tendered. The clear and convincing evidence proves that from the date the Agency entered the Final Order to the date of the final hearing, Flo-Ronke never tendered full and complete payment of the fine to the Agency. Flo-Ronke, despite its assertions during pre-hearing motion practice, did not offer any evidence that could be reasonably be interpreted as proving that Flo-Ronke tendered full payment of the fine or that the Agency refused the payment. Even Mr. Flint’s testimony, if fully credited, is not evidence that Flo-Ronke tendered full payment or that the Agency refused full payment. Background Screening At all relevant times, Florida law required level two background screening of any person seeking employment with a provider whose responsibilities may require him to provide personal care or other services directly to clients or who will have access to the client living area. § 408.809(1)(e), Fla. Stat. (2014). Individuals who have disqualifying offenses may not hold positions where they provide services to clients or will have access to client living areas. Florida law also requires re-screening every five years after employment. § 408.809(2), Fla. Stat. (2014). Agency surveyor, Laura Manville, surveyed Flo-Ronke and its records on September 2, 2014. At that time, F.M. was employed there. Flo-Ronke employed F.M. since at least 2009. F.M.’s duties included caring for residents. In addition, even when performing non-caretaking duties, such as grounds-keeping and maintenance, F.M. had unsupervised access to the residents and their living area. F.M. was adjudicated guilty of a disqualifying sex offense on October 28, 1999. Flo-Ronke’s records did not document the required level 2 background screening of F.M. when reviewed on September 2, 2014. At that time, Ms. Manville told Ms. Akintola of the deficiency and that F.M. was not eligible to work at the ALF. This was not the first time the Agency advised Ms. Akintola of the deficiency. By letter dated October 2, 2009, the Agency advised that background screening of F.M. had revealed he had a disqualifying criminal offense. It advised Flo-Ronke that it must either terminate the employment of F.M. or obtain an exemption from disqualification. Flo-Ronke did neither. Ms. Manville conducted a follow-up survey on September 10, 2014. Despite the notice given on September 2, 2014, F.M. was still present at the facility performing grounds work and had access to client living areas. Ms. Akintola presented testimony and a single document attempting to prove that F.M. passed background screening in 2010. The document appears to show a determination of no background screening violation in 2010. Why it differs from other documents from 2009 and after 2010 is not explained. The circumstances surrounding the document are somewhat mysterious. It does not appear in the Agency files. On September 2, 2014, Ms. Akintola did not mention it. On that day, she said she thought F.M. did not need to satisfy screening requirements because he had worked for so long at Flo-Ronke. More importantly, the issue is whether F.M. was employed in 2014 in violation of the background screening requirements. The clear and convincing evidence, including evidence of the conviction in the background screening database, the continued employment of F.M. after September 2, 2014, and the letter of October 2, 2009, proves that in 2014 F.M. had a disqualifying offense and did not have an exemption from the disqualification.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration enter a final order denying the application of Flo-Ronke, Inc., for renewal of its ALF license. Jurisdiction over the Motion for Fees and Costs is retained for further appropriate proceedings once the prevailing party has been determined. DONE AND ENTERED this 30th day of October, 2015, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of October, 2015.
The Issue The issue in this case is whether Respondent should grant Petitioner's application for licensure as a public adjuster, despite his having pleaded guilty to (and been convicted of) a felony involving moral turpitude (conspiracy to commit mail fraud), which conviction was not disclosed on Petitioner's application.
Findings Of Fact On August 29, 2005, Petitioner Alex Niznik ("Niznik") completed an online application for licensure as a Resident Public Property and Casualty Insurance Adjuster and submitted the form electronically to Respondent Department of Financial Services ("Department" or "DFS"). The application contained 18 "screening questions" that called for a "yes" or "no" answer. Focusing primarily on matters bearing on character and fitness, these questions sought to elicit personal information about the applicant's background. One question, for example, asked: "Have you held a resident insurance license in another state during the last three years?" Another inquired: "Have you ever had an application for a license declined or denied by this or any other insurance regulatory body?" The instant dispute arose from the eighth screening question, which asked: Have you ever been convicted, found guilty, or pled guilty or nolo contendere (no contest) to a felony or crime punishable by imprisonment of one (1) year or more under the laws of any municipality, county, state, territory or country, whether or not adjudication was withheld or a judgment of conviction was entered? Niznik answered, "no." At the end of the application, just above his electronic signature, Niznik checked a box manifesting agreement with the following declaration: Under penalties of perjury, I declare that I have read the foregoing application for license and that the facts stated in it are true. I understand that misrepresentation of any fact required to be disclosed through this application is a violation of the Florida Insurance and Administrative Codes and may result in the denial of my application . . . . Despite having declared that his responses were true, Niznik's answer to the question of whether he had a criminal record was false. In fact, contrary to his denial of past criminal convictions, Niznik had pleaded guilty, about nine years earlier, to the felony charge of conspiracy to commit mail fraud, which is an offense against the United States. Following this guilty plea, the United States District Court, Southern District of New York, on July 25, 1996, had entered a judgment of conviction against Niznik, sentencing him to three years of probation and imposing a $50 fine. DFS discovered Niznik's conviction before granting him a license. Based on Niznik's criminal record and his failure to disclose its existence, DFS denied Niznik's application. DFS's decision was communicated to Niznik though a Notice of Denial dated July 27, 2006. Niznik was informed that he would not be eligible to reapply until after 17 years had elapsed, starting from the date of his conviction. Niznik timely requested an administrative hearing to determine his substantial interest in obtaining a license. Determinations of Ultimate Fact Because conspiracy to commit mail fraud is a felony that involves moral turpitude, and because it is undisputed that Niznik pleaded guilty to——and was convicted of——this federal crime, the Department is required by statute to deny Niznik's application for licensure. Pursuant to its rules, the Department must impose a waiting period on Niznik, which he is required to serve before becoming eligible to reapply. The usual waiting period for the type of crime of which Niznik was convicted is 15 years. An additional two years must be added to this, in consequence of Niznik's failure to disclose the conviction. Although Niznik failed to present persuasive evidence on any specific mitigating factors that might have given grounds to shorten the prescribed waiting period, he did persuade the undersigned that, more likely than not, he has been rehabilitated. Rehabilitation is a general mitigating factor that warrants a modest reduction of the waiting period.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order (a) denying Niznik's application for licensure as a Resident Public Property and Casualty Insurance Adjuster and (b) imposing a waiting period of 16 years, from the date of his criminal conviction, which must be served before Niznik may reapply. DONE AND ENTERED this 22nd day of January, 2007, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM 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 January, 2007.
The Issue The issue in this case is whether the Petitioner timely filed a complaint of discrimination in accordance with the provisions of Chapter 760, Florida Statutes (2009).
Findings Of Fact Prior to November 28, 2007, the Petitioner was employed by the Respondent. On November 26, 2008, the Petitioner sent a Technical Assistance Questionnaire (TAQ) to the Florida Commission on Human Relations (FCHR). The TAQ was submitted via facsimile transmission and was not signed. The Petitioner believed she was complying with the directives of the FCHR website and that follow-up assistance (from the FCHR) would not be required. The Petitioner did not understand that a signature was required, notwithstanding the place for same (along with a date) on page 2 of the TAQ. The Petitioner maintains that the FCHR website instructions were unclear and that she erroneously relied on the directions that did not specify she was required to sign the TAQ. The Petitioner filed a signed Charge of Discrimination with the FCHR on January 14, 2009. On February 5, 2009, the Petitioner received a "Notice of Receipt of Complaint" from the FCHR. At the same time, a copy of the complaint was furnished to the Respondent, who was then, presumably, put on notice of the Petitioner's charge. The FCHR did not advise the Petitioner that the TAQ had to be signed. In the course of its review of the instant charge, the FCHR entered a determination of "untimely." Per the FCHR's assessment, the charge of discrimination was filed more than 365 days from the last incident or act of discrimination. Thereafter, the Petitioner elected to file a Petition for Relief to challenge the determination and to seek relief against the Respondent. The Commission then forwarded the matter to the Division of Administrative Hearings for formal proceedings.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Florida Commission on Human Relations enter a Final Order dismissing the Petitioner's claim of discrimination. DONE AND ENTERED this 29th day of September, 2009, in Tallahassee, Leon County, Florida. J. D. PARRISH 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 29th day of September, 2009. COPIES FURNISHED: Mark Levitt, Esquire Allen, North & Blue 1477 West Fairbanks Avenue, Suite 100 Winter Park, Florida 32789 Marie C. Perez 517 29th Street West Palm Beach, Florida 33407 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue is whether Respondent committed an unlawful employment act against Petitioner pursuant to Chapter 70 of the Pinellas County Code, as amended, and Title VII of the U.S. Civil Rights Act of 1964, as amended.
Findings Of Fact Petitioner, a black female, is a member of a protected group. Respondent is an employer as defined in the Pinellas County Code, as amended, and Title VII of the Civil Rights Act of 1964, as amended. Respondent hired Petitioner as a telemarketer on December 8, 1997. Petitioner's job required her to call the telephone numbers on a list furnished by Respondent. After making the call, Petitioner was supposed to solicit the booking of vacations in time-share rental units by reading from a script prepared by Respondent. The script included an offer to sell potential customers three vacations in three locations for $69. When Respondent hired Petitioner, she signed a copy of Respondent's "New Employee Policy and Procedures" manual. Petitioner admits that this manual required her to book 25 vacations each pay period after a two-week training period. She also admits that the manual required her to only use the prepared script, including preplanned rebuttals to customer questions when talking over the telephone. Petitioner understood that during the two-week training period, she would be required to book 14 vacations or be terminated. She knew that Respondent's supervisors would monitor her sales calls. Petitioner sold four vacation packages in her first week at work with no complaints from her supervisors. In fact, one of Respondent's supervisors known as Mike told Petitioner, "You got the juice." On December 15, 1997, Mike monitored one of Petitioner's calls. Petitioner admits that she did not use the scripted rebuttals in answering the customer's questions during the monitored call. Instead, she attempted to answer the customer's questions using her own words. According to Petitioner, she used "baby English" to explain the sales offer in simple terms that the customer could understand. After completing the monitored call on December 15, 1997, Mike told Petitioner to "stick to the shit on the script." Mike admonished Petitioner not to "candy coat it." Petitioner never heard Mike use profanity or curse words with any other employee. Before Petitioner went to work on December 16, 1997, she called a second supervisor known as Kelly. Kelly was the supervisor that originally hired Petitioner. During this call, Petitioner complained about Mike's use of profanity. When Kelly agreed to discuss Petitioner's complaint with Mike, Petitioner said she would talk to Mike herself. Petitioner went to work later on December 16, 1997. When she arrived, Mike confronted Petitioner about her complaint to Kelly. Petitioner advised Mike that she only objected to his language and hoped he was not mad at her. Mike responded, "I don't get mad, I get even." When Petitioner stood to stretch for the first time on December 16, 1997, Mike instructed her to sit down. Mike told Petitioner that he would get her some more leads. Mike also told Petitioner that she was "not the only telemarketer that had not sold a vacation package but that the other person had sixty years on her." Petitioner was aware that Respondent had fired an older native-American male known as Ray. Respondent hired Ray as a telemarketer after hiring Petitioner. When Petitioner was ready to leave work on December 17, 1997, a third supervisor known as Tom asked to speak to Petitioner. During this conversation, Tom told Petitioner that she was good on the telephone but that Respondent could not afford to keep her employed and had to let her go. Tom referred Petitioner to another company that trained telemarketers to take in-coming calls. Tom gave Petitioner her paycheck, telling her that he was doing her a favor. During Petitioner's employment with Respondent, she was the only black employee. However, apart from describing the older native American as a trainee telemarketer, Petitioner did not present any evidence as to the following: (a) whether there were other telemarketers who were members of an unprotected class; (b) whether Petitioner was replaced by a person outside the protected class; (c) whether Petitioner was discharged while other telemarketers from an unprotected class were not discharged for failing to follow the script or failing to book more than four vacations during the first ten days of employment; and (d) whether Petitioner was discharged while other telemarketers from an unprotected class with equal or less competence were retained. Petitioner was never late to work and never called in sick.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the City's Human Relations Review Board enter a final order dismissing Petitioner's Complaint. DONE AND ENTERED this 16th day of November, 2001, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD 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 16th day of November, 2001. COPIES FURNISHED: Bruce Boudreau Vacation Break 14020 Roosevelt Boulevard Suite 805 Clearwater, Florida 33762 Donna Conway 3156 Mount Zion Road No. 606 Stockbridge, Georgia 30281 William C. Falkner, Esquire Pinellas County Attorney's Office 315 Court Street Clearwater, Florida 33756 Stephanie Rugg, Hearing Clerk City of St. Petersburg Community Affairs Department Post Office Box 2842 St. Petersburg, Florida 33731
