Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, the following findings of fact are made: The Petitioner was employed as a line cook with Smitty's Restaurant of Sanibel from January 20, 1988 until approximately August 4, 1988. On or about August 1, 1988, Petitioner and the kitchen manager at the restaurant became embroiled in a verbal confrontation with regard to the time off Petitioner had recently taken. Petitioner had had a doctor's note to take two days off for rest in connection with treatment the Petitioner was receiving for back pain (the specific nature of Petitioner's malady was not disclosed at hearing nor made a part of this record). Apparently, the kitchen manager had had to cover Petitioner's work shift in his absence. In any event, Petitioner and the kitchen manager had unpleasant words and the Petitioner believed he had been fired. Consequently, he left the premises and did not return to work. Contrary to Petitioner's belief, and supported by the record in this cause, the kitchen manager did not have the authority to terminate the Petitioner's employment. When Petitioner chose to leave the premises on August 1, 1988, he did so contrary to the direct verbal instruction of the restaurant manager, Martin Howard, and the company policy regarding terminations. On at least two prior occasions, Respondent had allowed Petitioner to take time off for personal or medical reasons. Petitioner presented no evidence that the Respondent discriminated against him because of a handicap.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Florida Commission of Human Relations enter a final determination of no cause in connection with Petitioner's discrimination claim. DONE AND ENTERED this 30th day of November, 1990, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of November, 1990. APPENDIX CASE NO. 90-3806 RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE PETITIONER: None submitted. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE RESPONDENT: 1. Paragraphs 1 through 14 are accepted. COPIES FURNISHED: Stephen J. Iwaniszek 922 Countington Lane, Apt. J Fort Myers, Florida 33919 Douglas L. Waldorf, Jr. SMOOT ADAMS JOHNSON & GREEN, P.A. P.O. Box 06259 Fort Myers, Florida 33906-6259 Acting Executive Director Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32399-1925 Dana Baird General Counsel Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32399-1925 Margaret Jones, Clerk Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32399-1925
Findings Of Fact Petitioner certified Respondent as a law enforcement officer and issued him certificate number 02-31445 on March 26, 1982. At all times material to this proceeding, the Virginia Gardens Police Department, Virginia Gardens, Florida, employed Respondent as a reserve or part- time police officer. During the ten years that he had been employed in that capacity, Respondent's certification had never been disciplined. Respondent also was part owner of the "Gun Doc", a gunsmith business in Dade County. On January 14, 1992, Respondent was working in his private capacity collecting weapons for repair and restoration from his customers. About 2:00 p.m., Respondent was enroute to his part-time business, traveling south on the Palmetto Expressway. He was driving his personal vehicle, a black convertible Mustang. The weather was clear, sunny, and dry. The Palmetto Expressway is a divided asphalt and concrete road which runs north and south with four (4) lanes in each direction in most places. On January 14, 1995, at approximately 2:00 p.m., Metro-Dade Police Department (MDPD) Sergeant John Petri was driving an unmarked undercover vehicle, a grey and white Chevolet Blazer, south on the Palmetto Expressway. Around the 102nd Street and the Palmetto Expressway intersection, the Respondent's vehicle approached Sergeant Petri from the rear at a high rate of speed that was substantially over the posted speed limit of 55 miles per hour. The traffic in the area was heavy at the time. Sergeant Petri braced himself for impact because he felt he would be hit by Respondent's vehicle. At the last moment, in a sudden move, Respondent's vehicle swerved around Sergeant Petri to the left. Sergeant Petri maintained visual contact with the Respondent's vehicle as it continued south on the Palmetto Expressway and through the intersection of South River Road. Respondent's vehicle was weaving in and out of traffic, cutting off cars, pulling behind others at a high rate of speed and slamming on his brakes. Respondent used the right shoulder of the road as a passing lane even though the traffic was flowing smoothly and there were no obstacles blocking the roadway. MDPD rules and regulations prohibit officers in unmarked cars from making traffic stops. Consequently, Sergeant Petri dispatched Respondent's vehicle tag number to the MDPD communication center and requested that a uniform unit or a trooper stop Respondent. Meanwhile, Respondent's vehicle came up behind Drug Enforcement Administration (DEA) Special Agent Pierre Charette at a high rate of speed. Special Agent Charette saw that Respondent's vehicle was being trailed by a Bronco/Blazer type vehicle. Special Agent Charette, driving an undercover DEA vehicle, thought he was going to be struck by the Respondent's vehicle but Respondent's vehicle suddenly swerved avoiding a collision. Next, Respondent's vehicle came over into Special Agent Charette's lane almost causing a collision with other cars. Respondent's vehicle and Sergeant Petri passed Special Agent Charette and continued southward on Palmetto Expressway. Around 74th Street, the traffic on Palmetto Expressway became more congested. At that point, Respondent's vehicle was in the right lane. A guardrail was to his right. Due to the approaching overpass, Respondent was forced to slow down. Sergeant Petri, driving in the right center lane, pulled up along the left side of the Respondent's vehicle. Both vehicles came to a rolling stop. The driver's window of Respondent's vehicle was down. Sergeant Petri put the passenger's window down on his undercover car. After showing his gold badge, Sergeant Petri identified himself as a police officer and told Respondent to slow down. Respondent made eye contact with Sergeant Petri but did not give a verbal response. Instead, Respondent made a gesture with his middle finger. Sergeant Petri did not get out of his vehicle. As Special Agent Charette drove past Respondent and Sergeant Petri, he noticed that the individual in a grey and white Chevolet Blazer was holding up what appeared to be law enforcement credentials. Believing that everything was under control, Special Agent Charette continued south on the Palmetto Expressway. When traffic in front of him began to move, Respondent began passing cars by pulling onto the right shoulder of the road. At one point, the rear end of Respondent's vehicle began to fishtail when he was on the grassy dirt area of the road's shoulder. Special Agent Charette noticed Respondent's vehicle approaching from the rear again. Respondent almost caused a collision with other cars when he cut in front of Special Agent Charette's vehicle. Between the 74th Street and 58th Street intersection, Special Agent Charette turned on his lights and siren and began to pursue Respondent. Respondent zigzagged in and out of traffic with Special Agent Charette following about two (2) car lengths behind. In response to Special Agent Charette's lights and siren, other cars moved out of the way. Respondent exited the Palmetto Expressway at the 58th Street intersection. He was aware that Special Agent Charette was behind him. Sergeant Petri lost visual contact with Respondent as he made the exit. Respondent headed west on 58th Street which is an asphalt and concrete roadway with a total of five (5) lanes; the center lane is a middle turning lane. Special Agent Charette followed Respondent at speeds of 50 to 80 miles per hour. Special Agent Charette and Sergeant Petri routinely use the 58th Street exit when traveling to their respective offices. Respondent zigzagged around traffic and ran a red traffic light at the intersection of 58th Street and 79th Avenue almost causing another accident. Special Agent Charette hesitated at that intersection to avoid colliding with other automobiles then followed Respondent at speeds of 45 to 50 miles per hour. Respondent turned south on 82nd Avenue and went into a warehouse area. He parked in the first space in front of his business, The Gun Doc. Special Agent Charette followed and blocked the entrance to The Gun Doc with his light and siren still activated. Respondent got out of his vehicle, looked at Special Agent Charette and started to go inside The Gun Doc. Special Agent Charette displayed his credentials and badge and identified himself verbally as a federal narcotics law enforcement agent. Special Agent Charette advised Respondent that Metro police were on the way. Respondent responded derogatorily and went into The Gun Doc. Special Agent Charette notified DEA dispatch of his exact location and need for backup from Metro police. He also requested a tag check on Respondent's vehicle. Meanwhile, DEA Special Agents Lewis Perry and John Fernandez were monitoring their DEA radio in close proximity to The Gun Doc. They asked Special Agent Charette whether he needed assistance and went to the scene in an unmarked government vehicle. When they arrived at the scene, the blue light on Special Agent Charette's dashboard was still on. After their arrival, Respondent came out of The Gun Doc and asked who they were. Special Agents Perry and Fernandez identified themselves as federal agents with DEA and at least one of them showed his credentials. Respondent again responded derogatorily and went back into his business. At approximately 2:00 p.m. on January 14, 1992, United States Marshal Lorenzo Menendez was traveling in his unmarked vehicle on the 836 Expressway heading toward the Palmetto area. He was returning to the High Intensity Drug Trafficking Area (HIDTA) office in the Koger Executive Center. Marshal Menendez had two (2) radios in his vehicle and was scanning the DEA and MDPD radio frequencies. He heard Sergeant Petri requesting help. Later the Marshal heard that the subject vehicle had exited Palmetto Expressway at 58th Street. He also heard Special Agent Charette asking for help and learned the address of The Gun Doc as the address of the vehicle's owner. Marshal Menendez responded to the calls for help. When he arrived at The Gun Doc, Special Agents Charette, Perry and Fernandez were already there waiting outside next to their cars. When Respondent came out of his shop and approached his vehicle, Marshal Menendez walked up to Respondent's vehicle. With his silver star badge hanging around his neck and his photo identification in his hand, Marshal Menendez verbally identified himself as a U.S. Marshal. Respondent told Marshal Menendez that he too was a police officer but refused to show his credentials. About the time that Marshal Menendez and Respondent began to converse, Sergeant Petri arrived at the scene. The MDPD dispatcher had given him the address of The Gun Doc as the address of the owner of the black convertible Mustang. Respondent objected when Marshal Menendez looked in Respondent's car. Without any threat or provocation, Respondent shoved Marshal Menendez by placing both hands on the Marshal's chest causing him to fall backwards. Marshal Menendez then advised Respondent that he was under arrest and attempted to handcuff him. Respondent reacted by refusing to obey the Marshal's commands and trying to break free. Special Agents Charette, Perry, and Fernandez assisted Marshal Menendez in subduing and handcuffing Respondent who resisted by kicking, jerking, and thrashing about. When the struggle was over, Respondent was handcuffed face down on the ground. Respondent again informed the officers that he was a policeman. One of the officers took Respondent's badge and identification from his rear pocket. Respondent's Chief of Police arrived at the scene and asked that Respondent be allowed to get up. At that time, Respondent was not bleeding. However, his face and neck was bruised in the struggle to subdue him. The federal agents intended to charge Respondent with assault on federal officers. However, an assistant United States Attorney deferred to state charges of reckless driving and battery. upon a police officer. Respondent testified that when he first encountered Sergeant Petri and Special Agent Charette on the Palmetto Expressway, they were traveling in a convoy with a third vehicle and driving recklessly. He claims he did not know they were law enforcement officers. Respondent asserts that he had to drive defensively to escape them because he feared they were attempting to hijack the weapons in his possession. Respondent's testimony in this regard is less persuasive than evidence indicating that Respondent was driving recklessly before he encountered Sergeant Petri and Special Agent Charette. After Sergeant Petri identified himself as a policeman and Special Agent Charette turned on his siren and blue light, Respondent endangered the lives of others in an attempt to avoid being stopped. Upon arrival at his place of business, Respondent called 911 seeking assistance from a uniform unit. He also called his Chief of Police to ask for advice. Respondent's brother, David Pruitt, was in the shop when these calls were made. After making these calls, Respondent testified that he was attempting to keep Marshal Menendez from entering his vehicle when Marshal Menendez suddenly lunged and grabbed Respondent by the throat. The criminal trial testimony of Respondent's brother and of another criminal trial witness, Maribel Aguirre, tend to corroborate Respondent's version of the facts leading up to the altercation with Marshal Menendez. However, the undersigned finds the testimony of Respondent, his brother and Ms. Aguirre less persuasive in this regard than the testimony of Marshal Menendez, Sergeant Petri, and Special Agents Perry and Fernandez, supported by the criminal trial testimony of Special Agent Charette. Clear and convincing record evidence indicates that Respondent was guilty of reckless driving and battery.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, recommended that Petitioner enter a Final Order suspending Respondent's certification and the privilege of employment as a law enforcement officer for a period of two (2) years. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 26th day of April 1994. SUZANNE F. HOOD, Hearing Officer 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 26th day of April 1995. APPENDIX 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. Petitioner's Proposed Findings of Fact 1.- 3 Accepted in paragraphs 1-2. 4 - 6 Accepted in paragraphs 3-4. 7 - 16 Accepted in substance in paragraphs 5-8. 17 - 22 Accepted in substance in paragraphs 9-12. 23 - 32 Accepted in substance in paragraphs 14-17. 33 - 39 Accepted in substance in paragraphs 19-22. 40 - 48 Accepted in paragraphs 23-27. 49 - 61 Accepted in substance in paragraphs 28-32. 62 - 75 Accepted in substance in paragraphs 33-37. 76 - 87 Accepted in substance in paragraphs 38-40. 88 - 93 Accepted in substance in paragraphs 41-46. Respondent's Proposed Findings of Fact 1 - 4 Accepted as if incorporated in paragraphs 1-2. Accepted in part in paragraph 3. Reject last sentence as not supported by persuasive evidence. - 9 Rejected. No competent substantial persuasive evidence. Accept in part in paragraphs 26-27 but siren engaged before arrival at gun shop. - 12 Accept that Respondent made telephone calls in paragraph 44 but reject his reasons for doing so as not supported by competent substantial persuasive evidence. 13 - 15 Accepted in substance as modified in paragraphs 31-36. First and last sentence rejected as not supported by competent substantial persuasive evidence. The rest is accepted in substance as modified in paragraph 36. Rejected as not supported by competent substantial persuasive evidence. Accepted as modified in paragraph 39; the other officers did not "join the attack." Rejected as not supported by competent substantial persuasive evidence. Accepted in paragraphs 39-40. Rejected as not supported by competent substantial persuasive evidence. See paragraph 42 re: criminal charges. Balance rejected as not supported by competent substantial persuasive evidence. Accept that Ms. Aguirre's criminal trial testimony tends to support Respondent but reject this testimony as less persuasive than the contrary testimony of the law enforcement officers. COPIES FURNISHED: Karen D. Simmons Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 A. P. Walter, Jr., Esquire 235 Catalonia Avenue Coral Gables, Florida 33134 A. Leon Lowry, II, Director Div of Crim. Just. Stds. & Trng. P. O. Box 1489 Tallahassee, Florida 32302 Michael Ramage General Counsel P. O. Box 1489 Tallahahssee, Florida 32302
The Issue The central issue in this case is whether the Petitioner was terminated from her employment with Caballero's Mexican Restaurant in violation of Chapter 760, Florida Statutes.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, the following findings of fact are made: The Respondent owned and operated a restaurant in Melbourne, Florida known as Caballero's Mexican Restaurant (the restaurant). The restaurant opened in September, 1989 and remained in operation until May, 1990, when it closed and went out of business. Subsequently, the corporation was dissolved. When the restaurant opened, Kenneth Cooper was hired to perform the chef duties for the facility. Mr. Cooper had prior experience in such matters and was retained to be kitchen manager. Mr. Cooper was to hire and train all staff needed to efficiently operate the new restaurant kitchen. One of the individuals Mr. Cooper brought into the kitchen was the Petitioner. The couple had a good working relationship and Petitioner proved to be an excellent worker. Petitioner was made cook and, at all times material to this case, Respondent was pleased with her performance. In December, 1989, Richard Delmar, as president of the Respondent, advised Mr. Cooper that his employment at the restaurant was being terminated. The Petitioner was present when the incident occurred and demanded that Mr. Delmar give good reason for the termination. At that time Petitioner's employment was not terminated but she became upset that her husband's job had ended. Additionally, there was some dispute as to the ownership of personal property in the kitchen and whether Mr. Cooper and Petitioner would leave the restaurant premises. Ultimately, the police were summoned and the Coopers left. Petitioner did not return to work. Caballero's was opened only nine months and did not employ fifteen employees. The restaurant was primarily a family-run venture with the Coopers running the kitchen and the Delmars hosting the seating area. Waitresses and a bartender were also employed by shift.
Recommendation Based on the foregoing, it is recommended that the Florida Commission on Human Relations enter a final order dismissing the complaint filed by Petitioner for lack of jurisdiction. RECOMMENDED this 10th day of January, 1992, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of January, 1992. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-5275 RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE PETITIONER: None submitted. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE RESPONDENT: Respondent presented a series of proposed facts which were unnumbered. They are addressed below in the order of presentation (paragraphs 1 through 12). Paragraph 1 is rejected as irrelevant. Paragraph 2 is accepted. Paragraphs 3 and 4 are accepted. Paragraph 5 is rejected as irrelevant, hearsay, or not supported by the weight of the evidence. Paragraph 6 is accepted. Paragraph 7 is rejected as hearsay or not supported by the weight of the evidence presented in the case. Paragraph 8 is accepted. Paragraph 9 is accepted. Paragraph 10 is rejected as irrelevant. Paragraph 11 is rejected as irrelevant. Paragraph 12 is rejected as a conclusion of law. COPIES FURNISHED: Dana Baird General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570 Margaret Jones, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570 Jan Cooper 120 Sky Lane Titusville, Florida 32796 Joy Delmar Caballero's Mexican, Inc. 1825 S. Riverview Drive Melbourne, Florida 32901
The Issue The question presented here concerns the entitlement of the Petitioner, Theodore D. Walker to be approved to serve as Chief of Security, Palm Beach Jai Alai, Palm Beach County, Florida, in the face of the Director, Division of Pari- Mutuel Wagering's disapproval of that request.
Findings Of Fact The Petitioner in this cause, Theodore D. Walker, has made application to serve as Chief of Security for the Fronton, Inc., in its fronton known as Palm Beach Jai Alai, Palm Beach County, Florida, for the seasons 1980-81. This request has been denied by the Respondent in the person of the Director of the Division of Pari-Mutuel Wagering. The justification for this denial is premised upon the alleged conflict of interest between the employment responsibilities of the Petitioner in his part- time employment as Chief of Security at the Palm Beach Fronton and his primary duty responsibilities as Lead Investigator in the State Attorney's office, Fifteenth Judicial Circuit, Palm Beach County, Florida, which is the State Attorney's office with jurisdiction over the County in which the Palm Beach Jai Alai is located. As authority for his denial, the Director has referred to Rule Subsections, 7E-3.03(11) and (12), Florida Administrative Code. 1/ The Petitioner has held seasonal employment as a security officer with the Fronton, Inc. in its West Palm Beach facility from 1965 until the Director's denial of approval which occurred on August 26, 1988. Beginning in 1972, Petitioner had been approved as Chief of Security at the aforementioned fronton. Walker has worked as an investigator in the State Attorney's office, Fifteenth Judicial Circuit, continuously beginning in 1973, and at the time he was hired in his primary employment as investigator, he held the secondary employment as Chief of Security with the Palm Beach Fronton. The Honorable David Bludworth, State Attorney, Fifteenth Judicial Circuit, knew of Mr. Walker's secondary employment as Chief of Security for the fronton when Walker was hired. Over the years, Walker has been promoted from the position of investigator to the position of Lead investigator. Presently his duties for the State Attorney's office involve assisting the attorneys in that office in the preparation of their cases for trial; original investigations that do not have their origins with other law enforcement agencies, in particular "white collar" crime, including public officials and law enforcement personnel and the primary responsibility to head up the "organized" crime unit of that State Attorney's office. In connection with his duties, the Petitioner is granted arrest powers and carries a weapon. As a full-time employee of the State, Walker is paid by the State of Florida. His salary is approximately $23,888 per year in contrast to his salary as a Chief of Security which has been in the amount of $14,888 for tax year, constituted of two meetings (seasons) at the fronton. (Pending the outcome of these matters, the Respondent's secondary employment with the Palm Beach Fronton, is that of floor supervisor at an undisclosed amount of compensation.) Walker's responsibilities as Chief of Security for the fronton include the hiring and supervising of security officers; the security of the physical plant at the fronton, to include the ejection of unruly patrons with the assistance of local law enforcement; initial contact with individuals over betting disputes which are ultimately referred to the Respondent; initial investigation of irregularities involving the computer system utilized by the fronton in running its facility; supervision of watchmen; initial investigation of matters involving betting on credit; investigation of shortages of money involving employees of the Fronton end prohibiting prostitutes and "book makers" from plying their trades on the fronton premises. In connection with his duties as Chief of Security, the Petitioner has no special expertise in the field of computers. When the Director of the Division of Pari-Mutuel Wagering disapproved the Respondent's request to serve as Chief of Security for the Fronton, Inc., he contended and continues to hold that belief, that the Petitioner's dual employment as Investigator for the State Attorney's office and as Chief of Security for the fronton, would serve to undermine public confidence in the integrity of the sport of jai alai and, therefore, was not in the best interest of the pari-mutuel industry. Consequently there was ample cause to reject Walker's request, according to the Director. In elaborating on his position, the Director expressed the opinion that law enforcement type officials should not be allowed to hold secondary employment in a fronton in a capacity as security official within the same geographical area in which the individual applicant has law enforcement responsibilities. To that end, six to eight other individuals, excluding the Petitioner, have also been disapproved as security officials at pari-mutuel wagering establishments, following the Walker disapproval. Gary Rutledge, Director of the Division of Pari- Mutuel Wagering in stating the reasons for denying Walker's request, goes on to say that the Chief of Security is a primary person responsible for detecting violations of law at the fronton and Rutledge has a concern that those matters might not be investigated by the Chief of Security or that the appearance might be created that the matters might not be investigated. Moreover, the Director worries about the potential flow of information from the State Attorney's office to the fronton, in particular, when there is, in his mind, the aura of "organized crime" which surrounds the pari- mutuel wagering industry. In response to concerns referred to above, neither the Petitioner nor the Respondent has shown any acts of impropriety on the part of Walker in serving in the capacity as Investigator for the State Attorney's office or in his part-time employment as Chief of Security for the Fronton, Inc., or do they have any reason to suspect that Walker is less than a man of utmost integrity in his profession and in his private life. There was, however, one instance in 1978, in which a fire occurred at the Palm Beach Fronton and State Attorney Bludworth made the judgment not to allow Walker to serve as State Attorney Investigator on that case, in which arson was suspected. This decision on Bludworth's part was made to protect against the appearance that might be created that as investigator to the prosecutor, some special knowledge and advantage could possibly be afforded to Walker in his role as Chief of Security for the fronton. Although Walker was above reproach in this matter, the State Attorney lost the advantage of his services as investigator in a circumstance wherein other law enforcement officials felt that it would have been extremely helpful to have Walker serving in his primary duty as State Attorney Investigator in attempting to solve the arson case. This instance points up the viability of the Director's argument on the issue of public confidence in the industry, in particular, in avoiding the appearance of fraud or dishonesty in that industry, and it is no less valid in the face of Walker's insistence that he would step down in future cases such as the 1978 incident and the State Attorney's indication that he would give serious consideration to the role that Walker would play in investigations involving incidences at the fronton in West Palm Beach. As stated before, criminal acts have occurred at the fronton and it is a reasonable expectation those events shall take place in the future. Alleged conflict of interest is the only ground upon which the Petitioner has been denied his request to act as Chief of Security at the Palm Beach Fronton. There has been some suggestion concerning a rumor that the Director had denied the application based upon a lack of good moral character on the part of the Petitioner and the ensuing effect that this has had on the community, and in particular, the black community in Palm Beach County of which the Petitioner is a member; however, Director Rutledge has never offered lack of good moral character as a reason for denying the permit application, and his decision to deny Walker's application was not racially motivated.
The Issue Whether Respondent committed the violations alleged in the agency action letter dated June 21, 2018.
Findings Of Fact Chapter 2001-324, Laws of Florida, declared the Escambia County Utilities Authority an independent special district with transferred assets and enumerated powers. Chapter 2004-398, Laws of Florida, changed the Escambia County Utilities Authority’s name to ECUA. By law, ECUA provides utility services throughout Escambia County, Florida, and has the power to appoint, remove and suspend its employees, and fix their compensation within the guidelines of Escambia County Civil Services Rules. ECUA’s mission statement specifies that the Board and employees of ECUA “are committed to providing the highest quality service” and that “ECUA will always provide cost-effective services.” ECUA has adopted standards set forth in the Manual in order to govern employee conduct. During the relevant time period, ECUA employed Mr. Page as the utility service worker in the patch services division (“the patch crew”). Mr. Page acknowledged on October 10, 2016, that a copy of the Manual was made available to him. The patch crew normally works from 7:00 a.m. to 3:30 p.m., with a 30-minute lunch break. The patch crew also receives two 15-minute breaks each day. Mr. Page would normally begin each workday by reporting to an ECUA building on Sturdevant Street where the patch crew’s trucks are maintained. The patch crew would use one or more of those vehicles to complete the day’s assignments and return them to the Sturdevant Street location at the end of each day. ECUA’s management received information in May of 2018, that members of the patch crew were leaving work early without authorization. This information led ECUA’s management to initiate an investigation. Part of that investigation involved the installation of tamper-proof global positioning devices (“GPS”) in ECUA vehicles. Those devices transmit a vehicle’s precise location to ECUA at two-minute intervals. The GPS devices also inform ECUA whether a vehicle is moving, idle, or stopped. ECUA’s management also hired a private investigator, Terry Willette, to observe and record the activities of the patch crew. Findings Regarding the Allegations from May 10, 2018 On May 10, 2018, Mr. Page received at least four assignments to fill holes at locations in Pensacola. Mr. Page recorded in ECUA’s work tracking system that he spent two hours completing two of those jobs and one hour completing the other two. Mr. Willette followed Mr. Page that day, and his observations contradict those time entries. Mr. Willette observed Mr. Page driving all over Pensacola, stopping on several occasions, and performing significant work at only one location. ECUA has proven by a preponderance of the evidence that Mr. Page wasted an excessive amount of time on May 10, 2018. Findings Regarding the Allegations from May 11, 2018 The May 11, 2018, GPS report for truck #1624 indicates that it stopped at or near Mr. Page’s residence from approximately 9:21 a.m. to 9:28 a.m. It is possible that Mr. Page used one of his 15-minute breaks to stop at his residence, and there is no evidence that ECUA expressly prohibits employees from stopping at their homes. The preponderance of the evidence does not demonstrate that Mr. Page violated any Manual provisions on May 11, 2018. Findings Regarding the Allegations from May 24, 2018 The patch crew employees use an electronic timekeeping system to record the amount of hours they work each day. The Manual specifies that every ECUA employee is responsible for verifying the accuracy of those time entries. Mr. Page’s entry for May 24, 2018, indicates he worked eight hours that day. Mr. Willette observed Mr. Page leaving work at 12:59 p.m. on May 24, 2018. Also, one of the ECUA trucks often utilized by Mr. Page was in use from 7:01 a.m. until 12:57 p.m. on May 24, 2018, and was not used again that day. The preponderance of the evidence demonstrates that Mr. Page failed to verify the accuracy of his time entry for May 24, 2018.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Executive Director of the Emerald Coast Utilities Authority find that Tadarel S. Page violated Section B-3, attendance records; Section B-13 A (4), conduct unbecoming an ECUA employee; Section B-13 A (13), falsification of records; Section B-13 A (18), loafing; Section B-13 A (21), neglect of duty; Section B-13 A (26), substandard quality and/or quantity of work; and Section B-13 A (33), violation of ECUA rules or guidelines or state or federal law. DONE AND ENTERED this 18th day of September, 2018, in Tallahassee, Leon County, Florida. S G. W. CHISENHALL 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 18th day of September, 2018.
The Issue Whether the Respondent is a Public Employer within the meaning of Florida Statutes, Chapter 447. Whether the Petitioner is an employee organization within the meaning of Florida Statutes, Chapter 447. Whether there is a sufficient showing of interest as required for the filing of a representation election petition under Florida Statutes, Chapter 447. Whether the employee organization is a properly registered organization with the Public Employees Relations Commission. What is the appropriate unit of public employees in the cause before the Public Employees Relations Commission. HEARING OFFICER'S REPORT The five issues were discussed at the hearing with the following results: It was agreed that the City of Rockledge is a public employer. It was agreed that the Petitioner is an employee organization within the meaning of Florida Statutes, Chapter 447. It was agreed that there is a sufficient showing of interest as required for the filing of a presentation election petition under Florida Statutes, Chapter 147. It was agreed that the employee Organization is a properly registered organization with the public Employees Relations Commission. The appropriate unit of public employees in the cause was in dispute. The Petitioner stated that the Association wanted to represent the dispatchers, patrolmen, sergeants, lieutenants and the detectives. The Public Employer requested that only patrolmen and detectives should make up the unit.
Findings Of Fact The Petition, styled Brevard County P.B.A, Petitioner, and City of Rockledge, Public Employer, seeks a certificate of representation as the exclusive bargaining agent for Officers of the City of Rockledge, Florida, including patrolmen, sergeants, dispatchers lieutenants and detectives. Excluded are captains and the chief of police. The city Counsel of the city of Rockledge, Florida, in the minutes dated April 2, 1975, agreed to follow guidelines under "Section 300" (8H300) of the Florida Administrative Code. See "Exhibit (1)". An envelope furnished by PERC containing authorization cards for the Brevard County P.B.A., alphabetized list of employees provided by the employers, notice of appearance forms for the attorneys, request to appear forms by the public, registration file (original) for the Brevard County P.B.A, original petition file including Petition, affidavit of registration, affidavit for 30 per cent showing interest, was circulated and without objection entered into evidence. See "Exhibit (2)". There are eighteen (18) men in the proposed bargaining unit: nine (9) patrolmen, two (2) detectives, three (3) dispatchers, three (3) lieutenants and one sergeant. A copy of the official job description of the City of Rockledge Police Department effective prior to the instigation of these proceedings was requested to be examined by both parties and submitted to the Hearing Officer and was submitted and marked as Supplement to the Record" and is made a part of this file. The major functions of personnel as delineated in the job descriptions submitted are as follows: Lieutenant: This is supervisory work in coordinating police activities on an assigned shift or specialized division of the department. The employee is responsible for the overall supervision of the subordinate personnel (patrolmen, dispatchers, etc.) engaged in police activities on an assigned shift or a specialized division. Part of the duties are to assign, direct and supervise the work of subordinate personnel engaged in routine police activities or criminal investigations. This employee reviews and makes recommendations for disciplinary action of subordinate personnel of the department. Sergeants: This is supervisory and specialized police work in the field and in police headquarters. An employee in this classification may also assume the total responsibilities as assigned to a regular shift commander. An employee in this classification may also be assigned the duty of coordinating the communication operators (dispatchers). When working as a shift commander the duties are the sane as listed for a lieutenant's duties. Patrolmen: This is general duty police work in enforcing laws and ordinances of the federal, state and local governments. Specific assignments are received from superior officers and carried out in accordance with the established rules and procedures. Personnel must be able to act without direct supervision in emergencies. Primary duties are to enforce the laws and ordinances and investigate and see whether these laws and ordinances are being violated. Detectives: The major functions of the detective is specialized police work but also includes enforcing the laws and ordinances of the federal, state and local governments. Major duties include the conducting of surveillance assignments to help detect crime and general investigative work. Communication operator or dispatcher: This is specialized work receiving, screening and dispatching messages of police communication systems. His duty largely is the operation of the radio transmitter for the purpose of dispatching patrol and detective units and receiving messages. In accordance with Chapter 447, Florida Statutes, no recommendations are submitted. August 8, 1975. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: James D. Williams, Vice President Brevard County P.B.A. 978 Beacon Road Rockledge, Florida 32955 Vernon Weekly, Past President Brevard County P.B.A. 700 Sandgate Street Merritt Island, Florida 32952 Dale Dixon, President Brevard County P.B.A. 2460 North Coutenay parkway Suite 216 Merritt Island, Florida 32952 John A. Hipp, City Manager City of Rockledge Post office Box 488 Rockledge, Florida 32955 Jim Gilliard 993 Pinson Boulevard Rockledge, Florida Ronald F. Ray Post office Box 206 Rockledge, Florida Chairman Public Employees Relations Commission Suite 105 2005 Apalachee parkway Tallahassee, Florida
The Issue Whether petitioner should take disciplinary action against respondent for the reasons alleged in the administrative complaint?
Findings Of Fact Respondent Raymond C. Riddles has been certified as a law enforcement officer since September 1, 1971. He holds certificate number 090171. November 3, 1976 On November 3, 1976, Joseph A. Vi11ar, at the time a policeman with the Pensacola Police Department, arrested respondent Riddles at the wayside park off Gregory Street, near the northern end of Pensacola Bay bridge. In November of 1976, travelers, fishermen and other members of the public regularly made use of the park and the public bathrooms there. The park featured a double picnic table and ten or twelve other picnic tables. The old bridge across Pensacola Bay had been halved, and the park was near the end of one of the halves used as a fishing pier. The park had also gained notoriety as a meeting place of homosexuals: on two nights in 1974 police arrested 18 persons on various charges. On the night of November 3, 1976, Mr. Villar, wearing blue jeans and a pullover to disguise the fact that he was a policeman, entered the men's room in the park, after respondent Riddles called him into the bathroom. In the bathroom, Mr. Riddles beckoned Mr. Villar to a stall and, from the adjoining stall, asked if he wanted to "fool around." The partition between the toilet stalls had been to some extent removed; Villar's view of Riddles was unimpeded. Riddles first addressed Villar with his back to him, then turned around, penis in hand, continuing to masturbate. At this point, Mr. Villar placed him under arrest. Eventually Mr. Riddles stood trial on charges arising out of the incident, and was found guilty of lewd and lascivious behavior in a public place. September 12, 1984 In September of 1964, complaints that men were romping through the woods in various states of undress at a place called the Old Chimney, an abandoned steam plant site near the Scenic Highway, reached the Pensacola Police Department. As a result, on September 12, 1984, Jim Leath, a supervisor with the Pensacola Police Department, in charge of the vice unit, visited the site. Numerous persons of various sexual persuasions had come to use the area as a park. Vehicles were parked along the road, including one in which Mr. Leath spotted a Florida Highway Patrolman Auxiliary cap. Walking down a footpath, Mr. Leath came to respondent Riddles at about one o'clock in the afternoon. He recognized Mr. Riddles as someone he had seen before and remembered the cap he had noticed through the window behind the back seat in a vehicle parked in the area in which he himself had parked. Mr. Riddles stood next to a tree. A conversation arose between the two men, during which Mr. Riddles rubbed his crotch. Mr. Riddles said that he came to the Old Chimney on a regular basis to meet people, then turned away, withdrew his penis from his trousers and turned back, displaying his semi-erect penis. Only seconds had elapsed when Mr. Riddles heard someone else approach, left off stroking his penis, tucked himself in, and zipped his trousers up. Mr. Leath returned to the parking lot and made a note of the license tag number of the vehicle with the cap. He later determined that the vehicle was registered to Mr. Riddles, and located a photograph of Mr. Riddles. Eventually he obtained a warrant and arrested Mr. Riddles. In due course, Riddles pleaded nolo contendere to lewd and lascivious behavior, and to exposure of sexual organs. He was adjudicated guilty of these offenses and placed on six months' probation, on conditions including that he pay $20 a month and stay out of the area of the Old Chimney.
The Issue The central issue in these cases is whether the Respondents are guilty of the violations alleged; and, if so, what penalty should be imposed.
Findings Of Fact This matter deals with three licensed premises all owned or controlled by the Respondent, Myriam Grau. Ms. Grau is either the sole proprietor or the sole corporate officer and shareholder for each of the named businesses. Feelings Restaurant located on Palm Avenue in Hialeah, Florida, holds series 2 COP license no. 23-15849. Hialeah Dolphin also located on Palm Avenue in Hialeah, holds series 2 COP license no. 23-02256. Feelings Restaurant II which is located on East 4th Avenue holds series 2 COP license no. 23-15990. It is undisputed that Ms. Grau, her husband, and her mother-in-law are responsible for the day-to-day operations of the three licensed premises. The Petitioner is the state agency charged with the responsibility of regulating licensed premises which sell or dispense alcoholic beverages. Special Agent Addy Mesa, formerly employed by the Division of Alcoholic Beverages and Tobacco, conducted an undercover investigation at the Feelings located on Palm Avenue. On or about January 13, 1995, while engaged in such investigation, Special Agent Mesa went to the Hialeah Dolphin along with Detective Barbara Rivera and spoke with the Respondent, Ms. Grau. At that time and in that place, Special Agent Mesa asked for cocaine but Ms. Grau advised her that she did not have any. Ms. Grau requested that she wait as she was expecting a delivery. Special Agent Mesa waited approximately ten minutes but was unable to purchase the cocaine. After confronting Respondent regarding the delay, Ms. Grau directed Special Agent Mesa to Feelings (also on Palm Avenue) and told her to ask for Carlos or Carmen. When Special Agent Mesa arrived at Feelings and found Carlos, he advised the women to wait as he, too, was waiting on someone to come. Eventually, Special Agent Mesa observed a Latin male enter the licensed premises and confer with Carlos. At that time Carlos was standing behind the bar but took the Latin man behind a door to an area presumed to be a back room. When Carlos returned to the bar area, Special Agent Mesa purchased illegal narcotics from him. During the sales transaction, Carlos was at the bar and, in exchange for $40.00, passed two clear plastic bags to Special Agent Mesa containing a white powder substance which was later tested and proved to be cocaine. This transaction took place in the licensed premises and could have been observed by the six or seven patrons then at the bar. On another occasion, Special Agent Mesa went to the Hialeah Dolphin Restaurant with Heidi Puig. Again, as indicated above, Special Agent Mesa was working undercover. On this occasion Special Agent Mesa met a man who introduced himself as "Ricardo" and who told her he was the manager for the business. Ricardo had access to a back room in which he apparently resided and gave Special Agent Mesa a business card, a copy of which has been admitted into evidence in this cause as DABT exhibit 2. Such card contains the handwritten words "Ricardo" above the printed line denoting manager and "ask for Miriam" along the bottom of the card. The remainder of the card contains the printed information for the business. After talking with Ricardo for a short time, Special Agent Mesa purchased two packets of cocaine for $40.00. Special Agent Mesa returned to the Dolphin on still another occasion with Detective Rivera. On this visit there were approximately six or seven patrons in the bar and Ricardo approached them when they entered. After engaging in conversation for a few moments, Special Agent Mesa asked to purchase cocaine and Ricardo accommodated the undercover agent. While Special Agent Mesa waited at the bar, Ricardo went to his back room and returned with two baggies of cocaine wrapped inside a napkin. In return for the twenty dollar bills from Special Agent Mesa and Detective Rivera, the two packets containing cocaine were delivered inside the bar. Thereafter, Special Agent Mesa did not return to the premises until the search warrant was executed on February 10, 1995. All of the foregoing transactions took place while Special Agent Mesa was working in an undercover capacity and utilizing language that is common to transactions of this nature. Given the successfulness of her efforts to purchase illegal narcotics it is found that Special Agent Mesa communicated her intent to Respondent Grau, Carlos, and Ricardo in such a manner that they knew she was attempting to purchase cocaine. Carlos and Ricardo conducted themselves in a manner which gave the appearance of being employees of the licensed premises. Both men had access to the area behind the bar. Both utilized areas presumed to be private from the public. On at least one of the occasions Ricardo advised Special Agent Mesa of jobs available. The conduct of the transactions was inside the licensed premises, repeated on several occasions, and open to the view of bar patrons. Elio Olivia is a detective with the Hialeah Police Department. During January, 1995, while working in an undercover capacity, Detective Olivia was investigating illegal narcotic activities at the Feelings located on Palm Avenue in Hialeah. On or about January 12, 1995, Detective Olivia entered the licensed premises and spoke with Carlos who was behind the counter. For twenty dollars Detective Olivia purchased, and the individual Carlos sold, one packet of a white powdered substance which was tested and proved to be cocaine. Later, on January 18, 1995, Detective Olivia returned to the Palm Avenue Feelings and, again, purchased cocaine from Carlos. On this occasion Carlos went from behind the bar to an office, returned to the bar, and delivered the packet. Detective Olivia went to Feelings on a third date and repeated the process. Again, Carlos was observed behind the counter at the time of the transaction and Detective Olivia presumed him to be an employee of the premises based upon the manner in which he conducted himself. On at least one of the occasions, Detective Olivia observed another patron at the bar purchase a packet from Carlos. While the contents of the observed packet are unknown, the manner of the transaction was consistent with Detective Olivia's experience with purchasing cocaine from Carlos. Detective Olivia did not observe Respondent Grau on the licensed premises during any of the times he was there. The transactions involving the purchase of illegal narcotics took place in the licensed premises and could have been viewed by the patrons of the facility. Given the fact that Detective Olivia observed at least one such transaction himself, it is found that the actions of Carlos were open and notorious to the public. Michael Barsky is a detective employed by the Hialeah Police Department. At all times material to this matter, Detective Barsky was working undercover investigating illegal narcotics. On or about June 15, 1994, Detective Barsky went to the Feelings located on 4th Avenue. While there, he conversed with a male later known to him as Ricardo. Detective Barsky presumed Ricardo to be an employee at the business as it appeared he had the "run of the place." That is to say, Ricardo went behind the bar, went throughout the premises, and paid winnings to patrons who prevailed on a gambling machine that was located within the business. Detective Barsky went to the 4th Avenue Feelings again on October 14, 1994. On this date he met Ricardo and in exchange for twenty dollars purchased a small packet of a white powder substance which was later tested and proved to be cocaine. Although the transaction was discussed in the bar area in front of approximately five patrons, Ricardo took Detective Barsky to the mens room to make the exchange. From October 14, 1994 through December 7, 1994, Detective Barsky returned to Feelings on six occasions. For each visit he purchased cocaine from Ricardo as described above except on the later occasions the exchange took place at the bar instead of in the mens room. From the time of his first visit through December 7, 1994, Detective Barsky observed Respondent Grau on the licensed premises only once or twice. While the date of the arrest is not certain, Ricardo was arrested for illegal drug possession sometime during Detective Barsky's investigation at Feelings (4th Avenue). There came a time after Ricardo was arrested when Detective Barsky no longer observed him at the Feelings on 4th. In fact, when Detective Barsky returned to the licensed premises on January 12, 1995 (he had had a tip sales were still being made at the location), he met with an individual known as Orlando who claimed to be the new manager who could help him. As with Ricardo, Detective Barsky observed that Orlando appeared to have the run of the place. He was behind the counter, went into the DJ's booth, and was never reproached by the servers who were assisting bar patrons. Additionally, Detective Barsky observed and heard Orlando giving directions to the females who "did everything" in the kitchen area. In doing so, Orlando entered areas of the premises not available to the general public. As had occurred with Ricardo on the first buy, Orlando took Detective Barsky into the mens room and in exchange for twenty dollars the cocaine was purchased. On the next visit, on or about January 18, 1995, Detective Barsky purchased cocaine from Orlando at the bar. Orlando took a packet from his pocket and slipped it to Detective Barsky in a secretive manner. Detective Barsky returned to Feelings on several occasions thereafter. On each visit he successfully purchased cocaine from Orlando. On one occasion Orlando went to the back room before he delivered the packet to Detective Barsky. On one of the later visits, on or about January 27, 1995, Detective Barsky observed the Respondent Grau with an unknown male enter the premises and exchange money for what appeared to be drugs packaged in small zip baggies. This transaction took place in the licensed premises in view of the detective. Detective Barsky purchased cocaine at the Feelings on 4th Avenue at least twelve times for the period October 14, 1994 through February 3, 1995. On January 18, 1995, Detective Barsky went to the Dolphin and observed the male he knew as Ricardo at that licensed premises. Ricardo was fixing lights at a pool table when the detective confronted him and sought to purchase cocaine. On this occasion as in the past, Detective Barsky purchased a twenty dollar amount of a substance which was later tested and proved to be cocaine. Subsequently, Detective Barsky returned to the Dolphin and purchased cocaine from Ricardo on four additional visits. On one such visit, February 2, 1995, Detective Barsky observed Ricardo and a bar patron "do" cocaine at the bar counter. This was in plain view of bar patrons and was open and notorious. Respondent Grau knew that Ricardo had been arrested for illegal drugs prior to allowing him to reside at the Dolphin premises. Respondent Grau did not ask Ricardo to vacate the premises or to stay away from the licensed premises. At least six of the cocaine purchases occurred after Respondent Grau knew Ricardo had been arrested for drugs. Cocaine is a controlled substance the sale of which is prohibited by law.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco, enter a final order revoking the licenses nos. 23-15849, 23-02256, and 23-15990. DONE AND RECOMMENDED this 30th day of June, 1995, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of June, 1995. APPENDIX TO DOAH CASE NOS. 95-0703, 95-0704, and 95-0705 Rulings on the proposed findings of fact submitted by the Petitioner: Paragraphs 1 through 19 are accepted. Paragraph 20 is clarified in the findings above as to the manner of the delivery of the cocaine (which in some instances did include a secretive manner), therefore, as drafted the paragraph is inconsistent with the total evidence presented in the case. Rulings on the proposed findings of fact submitted by the Respondent: Paragraphs 1 through 6 are rejected as comments or argument regarding Petitioner's proposed findings of fact. Paragraph 7 is rejected as not supported by the weight of the credible evidence. COPIES FURNISHED: Miquel Oxamendi Senior Attorney Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-1007 Louis J. Terminello TERMINELLO & TERMINELLO, P.A. 2700 S.W. 37th Avenue Miami, Florida 33133-2728 Howard Sohn 2534 Southwest Sixth Street Miami, Florida 33135-2926 Lynda L. Goodgame General Counsel Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 John J. Harris, Director Division of Alcoholic Beverages and Tobacco Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792
The Issue Is Petitioner entitled to attorney's fees and costs under Section 57.111, Florida Statutes, the Florida Equal Access To Justice Act?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: The action in this case was initiated by the Respondent, a state agency. The Respondent was not a nominal party. Petitioner was the prevailing party in the administrative action brought against his license by Respondent in Department of Business and Professional Regulation, Board of Veterinary Medicine vs. William H. Jernigan, D.V.M., Case No. 95-4487 in that Respondent voluntarily dismissed the case. Petitioner incurred attorney's fees and costs in excess of $15,000, and there is no dispute as to the reasonableness of attorney's fees and costs. There are no special circumstances which would make an award of attorney's fees and costs unjust. At all times pertinent to this proceeding, Petitioner's veterinary practice was organized as a sole proprietorship under the fictitious name of Sebring Animal Hospital located in Sebring, Florida. Petitioner is the sole proprietor of Sebring Animal Hospital, an unincorporated business. Both Petitioner and Sebring Animal Hospital are domiciled in the State of Florida. At all times pertinent to this proceeding, Petitioner through Sebring Animal Hospital employed less than 25 employees. At no time pertinent to this proceeding, did Petitioner and Sebring Animal Hospital have a combined net worth in excess of two million dollars. Petitioner is a "small business party" as that term is defined in Section 57.111(3)(d), Florida Statutes. On or about September 23, 1993, a dog was presented to the Sebring Animal Hospital for boarding and grooming. On or about October 1, 1993, a hospital employee, during the course of grooming the dog, left the dog unattended. While unattended, the dog either fell or jumped off the grooming table and accidentally hanged herself with a leash that was being used to restrain her. The dog's owner was notified of the accident on October 1, 1993. Petitioner was not present in the hospital at the time of the accident. The owner of the dog subsequently filed a complaint with the Respondent on March 28, 1995. An investigation of the incident was conducted by an investigator from the Department of Business and Professional Regulation (Department). The investigator prepared an Investigative Report which included, among other things, the Investigator's interview with the complainant and Petitioner's response. The factual allegations of the incident contained in the Investigative Report are the same as those set out in findings of fact 9, 10, and 11. The Investigative Report was presented to the Probable Cause Panel (PCP) of the Board of Veterinary Medicine. The members of the PCP reviewed the Investigative Report prior to its meeting and discussed the Investigative Report at the PCP meeting on June 29, 1995. The PCP found probable cause and issued a Memorandum of Finding of Probable Cause but did not state the statutory violations upon which the finding of probable cause was based. The PCP directed the Department to file an Administrative Complaint. Although the Board's attorney was present at the PCP meeting on June 29, 1995, none of the panel members made an inquiry of the Board's counsel as to whether under the facts presented there was a violation of Chapter 474, Florida Statutes, specifically Section 474.214(1)(o), Florida Statutes. In fact, the PCP made no inquiry of anyone as whether the facts as presented constituted a violation of Chapter 474, Florida Statutes. Of all the evidence considered by the PCP, there was no evidence which would reasonably indicate that a violation of Chapter 474, Florida Statutes, had occurred. As directed by the PCP, the Department filed an Administrative Complaint against Petitioner alleging a violation of Section 474.214(1)(o), Florida Statutes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is accordingly, ORDERED that Petitioner's Application for Attorney's Fees is Granted and the Respondent shall forthwith pay Petitioner the sum of $15,000 for attorney's fees and costs. ORDERED this 18th day of August, 1997, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6947 Filed with the Clerk of the Division of Administrative Hearings this 18th day of August, 1997. COPIES FURNISHED: Richard T. Ferrell Secretary Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Lynda L. Goodgame General Counsel Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Sue Foster Executive Director Board of Veterinary Medicine Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Bert J. Harris, III, Esquire SWAIN, HARRIS, SHEEHAN and MCCLURE, P.A. 212 Interlake Boulevard Lake Placid, Florida 33852 James E. Manning, Esquire Department of Business and Professional Regulation Suite Number 60 1940 North Monroe Street Tallahassee, Florida 32399-0792
