The Issue The issues are whether the Correctional Certificate issued to the Respondent by the Criminal Justice Standards and Training Commission (the Commission), should be revoked or otherwise disciplined on charges stated in the Petitioner’s Amended Administrative Complaint,1/ FDLE case 40421.
Findings Of Fact The Respondent was certified as a correctional officer by the Commission on July 12, 2006. The parties stipulated that the Respondent holds Correctional Certificate 258546. (The Amended Administrative Complaint alleges he holds Correctional Certificate 25846.) On the afternoon of March 7, 2016, the Respondent was observed and videoed by a neighbor mistreating his dog. Specifically, the neighbor looked out her front window and saw the Respondent outside his house apparently bathing his dog, which was a large German shepherd. She could hear the Respondent’s nine-month-old child crying. She thought the child was standing behind a screen door. While she was watching, the dog got away from the Respondent and trotted toward the front door. The Respondent went after the dog, angrily grabbed it by the head and tail, lifted it off the ground several feet (to about waist-high), and slammed it down on the concrete walkway. He repeated the body slam and then brought the dog back to where he was washing it. At that point, the neighbor decided to video the Respondent and his dog with her cell phone. The video recording shows the Respondent pulling up on the dog’s tail and punching the dog in the side. Then, the Respondent shortened the dog’s leash by wrapping it several times around his hand until his hand was near the dog’s collar. Then, he flipped the dog over on its side by suddenly and violently jerking the leash and collar. After the neighbor witnessed the Respondent’s mistreatment of his dog, she reported him to the Polk County Sheriff’s office. A sheriff’s detective responded on March 21, 2016, and questioned the Respondent, who stated, “I guess I lost my temper that day.” The detective requested permission to remove the dog from the Respondent’s home to be examined by a veterinarian as part of an animal cruelty investigation, and placed in an animal shelter. The Respondent willingly surrendered the dog. The veterinarian who examined the dog found it to have soft tissue trauma at the base of its tail, but no fractures or broken bones. The veterinarian explained that a dog’s tail is an extension of its spine, and an injury at or near the base of the tail could have resulted from yanking the tail, or from lifting the dog by the tail, which is not designed to bear weight. The Respondent’s dog weighed about 77 pounds, and the tail would have been supporting about half the dog’s weight the way the Respondent was handling it. The veterinarian found that the dog had a temperature, and blood tests showed a high white blood cell count. Both symptoms are consistent with either inflammation from an injury, or an infection. The dog also had elevated kidney values, which could be consistent with an injury to the kidney, or with an infection. The veterinarian testified that she prescribed pain medication for the dog. The sheriff’s detective believed that antibiotics were prescribed. No other significant injuries to the dog were found, but the veterinarian recommended that the dog not be returned to its owner. The Respondent did not object. At the hearing, the Respondent testified that just prior to the incident, his dog had been acting aggressively toward his child and had bitten the Respondent in the hand. He testified that he hoped the dog would calm down if taken outside to be bathed. He claimed that the dog was growling and acting aggressively toward him. He testified that he was afraid for his child’s safety when the dog got away from him and ran toward the door. He testified that his child actually was standing behind a child’s gate at the door, not behind a screen door, as stated by his neighbor. The neighbor disputed that the dog was acting aggressively while she was watching. She testified that the dog trotted to the front door with its tail wagging when it got loose from its owner during the bath. The video recording showed that the dog was not acting aggressively but was submissive while being manhandled by the Respondent. The Respondent admits that the dog did not try to bite him during his manhandling of the dog, and no growling (or much sound at all) could be heard on the video recording. The Respondent’s claims about his dog’s aggression and his concerns about his daughter’s safety were not reported to the sheriff’s detective on March 21, 2016, or to anyone else before the hearing. Even if the neighbor was mistaken in thinking the Respondent’s child was standing behind a screen door, the rest of her unbiased testimony is credited as more worthy of belief than the Respondent’s self-serving testimony, to the extent of any conflict. Taken as a whole, the evidence was clear and convincing that the Respondent’s treatment of his dog was inhumane and unnecessary.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission find the Respondent guilty of failing to maintain good moral character by acts violating section 828.12(1); suspend his correctional certificate for 60 days, or until completion of a Commission-approved course in anger management, whichever is later; and, upon reinstatement of his certificate, place him on probation for one year, conditioned upon maintaining good moral character, as defined by rule 11B-27.0011(4)(b). DONE AND ENTERED this 4th day of October, 2018, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON 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 4th day of October, 2018.
Findings Of Fact Petitioner was employed by Respondent from August 26, 1986 to November 6, 1986 as a millworker cutting wood for floor joists used in the manufacture of mobile homes. His employment was terminated by Respondent on November 6, 1986 due to his inability to keep up with production. Petitioner timely filed his request for hearing with the Florida Commission on Human Relations. Respondent is an employer within the terms of the Human Rights Act of 1977, Chapter 760, Florida Statutes, and manufactures mobile homes. Petitioner is handicapped by virtue of the amputation of his left arm above the elbow due to a motorcycle accident in 1977. During the approximately two and one-half month period that Petitioner was employed by Respondent, four mobile homes per day were being produced. However, Respondent determined in late October, 1986 to increase production to five mobile homes per day and implemented this increased level of production in November, after Petitioner was terminated. All employees are evaluated within thirty days of their employment by Respondent. Petitioner's thirty day evaluation was conducted on September 23, 1986. On a five point scale, with one being excellent and five being poor, Petitioner received a rating of four in productivity. This is a low average rating. Comments by his group leader on the evaluation form state that Petitioner "needs to get a system down in order to increase productivity." Petitioner was counsel led about the need to increase his productivity at the time of this evaluation. From September 23 to October 24, 1986 Petitioner's productivity did not improve. His group leader at the time he was terminated, Frederick W. Moulder, testified that it took Petitioner 3 1/2 hours to do a job which it took Moulder 1 1/2 to 3 hours to do. Moulder also helped Petitioner finish his work since Moulder regularly finished early and Petitioner never completed his work early, even though production at the time was four homes per day and had not yet been increased to five. On October 24, 1986 Petitioner's supervisor, Tim Powers, prepared a written warning notice which stated that Petitioner "needs to improve his speed to enable him to keep up with his production . . . ." Petitioner refused to sign this warning notice to acknowledge receipt, and instead stated to Powers that his production was fast enough. Petitioner was assigned to work with Charles Rogers on the last day of his employment to show Rogers how the machines he worked with operated. Rogers replaced Petitioner after his termination. There is no evidence that Petitioner ever asked for a reassignment due to production demands of his millworker position. To the contrary, Petitioner continues to feel that he was working fast enough and was meeting production that he felt was sufficient. In any event, there is no evidence that alternative positions were available. During October and November, 1986 Respondent terminated eleven employees for slow or insufficient production, in addition to Petitioner.
Recommendation Based upon the foregoing, it is recommended that a Final Order be issued by the Florida Commission on Human Relations dismissing Petitioner's charge of discrimination against Respondent. DONE AND ENTERED this 23rd Day of November, 1987, in Tallahassee, Florida. DONALD D. CONN 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 23rd day of November, 1987. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 87-3407 Rulings on Respondent's Proposed Findings of Fact: 1-3 Rejected as irrelevant and unnecessary. Adopted in Finding of Fact 1. Adopted in Finding of Fact 6. Rejected as irrelevant and unnecessary. Adopted in Finding of Fact 4. 8-9 Adopted in Finding of Fact 8. 10-11 Rejected as irrelevant and unnecessary. 12 Adopted in Finding of Fact 4. 13-16 Adopted in Finding of Fact 7. Rejected as irrelevant and unnecessary. Adopted in Finding of Fact 11. Adopted in Finding of Fact 1. COPIES FURNISHED: Joseph Scott Shepherd 108 Flores Way Auburndale, Florida 33823 Jeffrey W. Bell, Esquire 600 Peachtree At The Circle Building 1275 Peachtree Street, N.E. Atlanta, Georgia 30309 Donald A. Griffin Executive Director 325 John Knox Road Bldg. F, Suite 240 Tallahassee, Florida 32399-1925 Dana Baird, Esquire General Counsel 325 John Knox Road Bldg. F, Suite 240 Tallahassee, Florida 32399-1925 Sherry B. Rice, Clerk 325 John Knox Road Bldg. F, Suite 240 Tallahassee, Florida 32399-1925
Findings Of Fact Petitioner is a white female born April 23, 1933. She began work as a cook for Respondent in 1982, eventually working her way up to head cook. Respondent is Mid-Florida Child Care Division, a child care facility located in Brooksville, Florida, which is part of Hernando-Sumter Head Start. Either or both entities employs in excess of fifteen full-time employees. Petitioner went into the hospital in 1989 and had a craniotomy. A cerebral aneurysm was "clipped" with resultant subarachnoid hemorrhage. In other words, her initial situation was complicated by a cerebral vascular accident (CVA or stroke) which resulted in hemiparesis on the right side and some speech impairment. Thereafter, she was off work for a period of time. At all times relevant to these proceedings, Petitioner continued to have mild problems with fine motor control of the right upper extremity, found it difficult to locate and use the correct word when she was under stress, and was unable to write or do arithmetic. She is "aphasic," which, among other definitions, refers to an individual who retains full intelligence but who has difficulty with deliverance of that intelligence at times. On August 11, 1989, James R. Cummings, M.D., a general practitioner, released Petitioner to return to work with no mention of any residual impairment in her ability to work. Dr. Joseph C. Williams, M.D., Petitioner's treating neurologist, wrote that Petitioner "can return back to work without restrictions as of 8/15/89." Due to the length of time Petitioner has been off work, Respondent did not hire Petitioner back as head cook but as an undercook. In her absence, another woman had replaced her as head cook, and Petitioner started anew as a probationer in the lower position. There is no clear evidence as to how long her probation was to last or lasted. On August 11, 1989, Dr. Cummings performed a complete examination of Petitioner on behalf of Respondent and by a September 12, 1989 form, informed Respondent that he and Dr. Williams concurred that Petitioner could return to work but "continues to have mild problems with fine motor control of R [right] upper extremity, some difficulty with word finding at times." By communication of October 16, 1989, Dr. Williams stated, in pertinent part, that: She [Petitioner] was released back to full work duties. This does not mean that the patient, at this time, is able to tolerate a full working day. It is my opinion that the patient's activities are unrestricted at work but I do feel, based on her current examination, as well as history, that she, at this point at least, is ready only for working one half day. Because Petitioner could not write and had trouble working a full day, Respondent permitted her to work only a four- hour day as an undercook. At some point after her return to work, Petitioner missed 3-5 consecutive days of work one time due to her mother's death and another time due to a second stroke/seizure. It is not clear whether she missed work of several eight-hour days or several four-hour days on those two occasions. Several employee witnesses expressed the belief that Petitioner missed several days of work on other occasions, but some of these witnesses seemed to think she was always working eight-hour days. Petitioner denied such absences or did not remember them. No contemporaneous absentee records maintained by the employer were introduced into evidence. She was not cited for absenteeism and the absences seem to have been of more concern to co-employees than to supervisors. For those reasons and because it is not clear whether Petitioner was working four or eight hours on those occasions, it is not possible to accurately determine how many hours of absences she had. Upon the foregoing evidence, it is found that Petitioner's absenteeism was not chronic and was not a source of constant concern to the Respondent's employer. On February 9, 1990, Dr. Williams notified Respondent that Petitioner was: ". . . doing extremely well after suffering a neurologic problem. At this point, I believe that the patient can return to her full duties working full time without restrictions." On March 8, 1990, Dr. Cummings wrote the Assistant Director of Mid- Florida Child Care Division, Head Start, in response to a letter inquiry of hers which is not in evidence, and stated, in pertinent part as follows: In regard to the two page job description given to me for dietary aide grade I, September 19, 1988: The patient should be able to perform all of the activities which are listed, one through twenty-one on the first page and one through thirteen on the second page. As you know Dr. Williams has given the patient a complete release to return to work, with some understanding of the basic duties of her job. From all indications from notes from Dr. Williams as well as from the speech therapist, Peggy Cockin, and from my own evaluation and questioning of the patient, she should be able to perform the above duties without major difficulty. She does occasionally have some mild difficulty with word finding and her speech is somewhat staggered, but totally appropriate and understandable. The patient gives indications to me that she has been able to perform her functions without major difficulties; that on occasion it has been difficult, but work is hard at times for anyone. Unless someone can give evidence that the patient is not functioning properly in her work setting, I see no reason that she shouldn't continue in her current occupation, based on my understanding of her current capabilities. On March 14, 1990, Dr. Williams advised Respondent's Assistant Director, Viennessee Black, in pertinent part, as follows: Constance Fiedorowicz is a patient under my care. She, at this time, is showing a very good recovery from her neurologic event. At this time I feel that Constance can perform all of the duties that you have listed. The only stipulation I would have is that the patient seems to have some difficulty with expressing herself, particularly if she becomes nervous, as well as, in writing. Otherwise, her mental faculties seem to be intact and at this point, at least based on my examinations in the office, I feel that she probably would be able to perform the other tasks that are outlined. The only way of knowing for sure would be to have the patient attempt to do the tasks and evaluate her performance of these. Petitioner testified that she was assigned the job of transporting food to the "Bypass School," a location different from her usual cooking location and that job was taken away from her upon the grounds that she allegedly had a weak leg and could not use the car brake quickly and accurately. She denied that she had any problem with a car brake. No other witness indicated any direct knowledge of why Petitioner was removed from this task, although many had "heard" she could not use the car brake pedal. In any case, she was reassigned to work in one location which apparently corresponded with her pre-handicap duties. On one occasion, while performing her kitchen tasks, Petitioner broke a cup and cut her hand. Her hand bled, but she did not know it until she saw the blood. The same was true of some nicks she made with a knife on her thumb. These incidents caused great concern to her coworkers, but not to Petitioner. The employer made no contemporaneous record of these incidents. A record was made of an incident on March 26, 1990 which occurred when Petitioner either put a dutch oven in a sink of hot water or bumped her left arm, the side unaffected by the stroke. This incident resulted in a "knot in a vein" swollen under the skin on Petitioner's left hand or forearm. The injury responded to elevation and subsided within five minutes. Petitioner continued to work. Only a bruise remained when Petitioner left early for speech therapy that same day. The employer required that some workers' compensation forms be filled out due to the March 26, 1990 incident, but none were offered in evidence. There is no evidence that Respondent had to pay workers' compensation or medical benefits to Petitioner as a result of this incident. One time, Petitioner forgot and left a knife in the freezer and another time she left a knife in among the canned goods. There was some unfocused concern by the new head cook and co-employees about sanitation on these occasions, but the employer offered no evidence to show how a knife, among intact cans of food or solidly frozen goods, could cause an unsanitary condition. Petitioner made some errors in counting lunches. The United States Department of Agriculture (U.S.D.A.) reimburses Respondent per child per meal. Petitioner's errors in counting sandwiches resulted in the Respondent not being reimbursed by the U.S.D.A. for two units at the end of one month. This was a rather serious financial loss in the opinion of the new head cook, but the actual monetary cost was never explained nor was it explained in relation to the number of children or meals the Respondent services; therefore, there is insufficient evidence upon which to find Respondent's counting error caused a substantial monetary loss to Respondent. The biggest functional problem that Respondent was able to demonstrate was that Petitioner sometimes ran dish water too hot for co-employees to use, used it herself when co-employees thought it was too hot for her, grabbed trays without gloves after being warned the trays were too hot and got burned, and grabbed one coworker too hard with her right hand instead of grabbing a pot. However, one coworker, Pinkie Bostic, who testified to most of these incidents, was of the opinion that Petitioner "could probably do the job if not around hot things like pots and water." One coworker testified that Petitioner had begun to have a personality change shortly before her stroke. However, it is not clear from this witness' testimony whether Petitioner's alleged personality problem manifested itself before the 1989 operation and CVA, which occurred while Petitioner was still head cook, or whether the alleged personality problem occurred later, just before a second stroke or seizure which occurred at some unspecified time after the Petitioner returned to employment as an undercook with Respondent (See Finding of Fact 11 supra). Petitioner and all the other employees who testified at formal hearing specified that when Petitioner returned to work after her operation and stroke she began to be difficult to get along with and it was then that she was frustrated and "touchy" in dealing with coworkers. Upon the foregoing, it is found that Petitioner's "touchiness" only began when she first evidenced aphasia after the operation/first stroke and came back to work as an undercook and that her "touchiness" continued thereafter through the second stroke/seizure. Petitioner also had at least two serious emotional outbursts about being unable to sign in or out on her timesheet and what she could do and/or was allowed to do on the job. These incidents were complicated by Petitioner's anger and frustration at not being able to adequately express herself orally when under strain. Petitioner perceived her co-employees as uncooperative with her due to their lack of understanding of her aphasia. She felt they treated her as "retarded." She testified that they intervened whenever she tried to do food preparation and cooking chores and would not allow her to complete those chores, thus making her frustrated and angry. Petitioner's co-employees testified that Petitioner had made this same complaint to them and each stated that they had offered advice as to how she should do things and had taken jobs away from her occasionally because they feared she would cut or burn herself. Petitioner also had complained to co-employees about being left by them to do only the dirty work, including but not limited to mopping up. Supervisors and Petitioner's adult daughter testified that mopping up was part of Petitioner's job description but not all of it. Tracey Ramsey, the new head cook, testified without refutation, that on some occasions, Petitioner refused to do the work that was intentionally left over for her to do because her co-employees were not talking to her. Petitioner's adult daughter and her husband observed Petitioner prepare food at home both before and after each stroke. Petitioner's husband and daughter observed that Petitioner could do her own cooking at home at all times. The daughter observed Petitioner prepare food on the job after the first stroke, and confirmed that after the first stroke, Petitioner was "protected" by Ms. Cummings, a supervisor, who would not let her do much and who would stop Petitioner from doing more complex tasks and send her to wash pots and pans instead. It is undisputed that washing pots and pans was also part of Petitioner's job description. The daughter observed that Petitioner could do her physical food preparation job but no longer could do its paperwork. On April 26, 1990, Petitioner had a three-hour conversation with Ivory J. Gray, Respondent's local director, in which Petitioner expressed her frustration on the job, asked that Ms. Gray give her another leave of absence without pay, and said she was considering quitting. Ms. Gray told Petitioner she did not have the authority to grant a further leave of absence and would have to refer the request to her own supervisor. That evening, a staff meeting was held in Lake Panakoffsky. Petitioner requested that Linda B. Blevins, Educational Consultant, read a prepared statement from Petitioner to the staff. Permission for this reading was secured from Ms. Gray, and the prepared statement was read. This document was not offered into evidence. However, upon the credible testimony of Petitioner and Ms. Blevins, it is found that regardless of others' perception of this document, Petitioner's prepared statement was meant to convey her frustration with the work situation and that she intended to "stick it out" and persevere with overcoming her disability, particularly her speech problem, and with holding her job. In the parking lot after the staff meeting, Petitioner and Ms. Gray had a conversation. Ms. Gray testified that on that occasion, Petitioner told her: "Friday will be my last day," meaning Petitioner was quitting her job. Petitioner denied that she quit. Martha Lawson testified that she overheard Petitioner tell Ms. Gray she was quitting. Petitioner's husband observed the physical location of all three women in the parking lot and testified that Martha Lawson was not even in the vicinity of the conversation between Petitioner and Ms. Gray. Respondent has consistently relied upon this conversation to show that Petitioner voluntarily quit her employment and was not fired. Regardless of what was said or understood or misunderstood in the parking lot conversation, that conversation is not determinative of this case because Petitioner orally and by all of her subsequent conduct, including reporting for work each day, evidenced her desire to retain her job, and because Respondent subsequently reacted as if Petitioner could remain employed if she were medically fit to do so. Petitioner reported to work as usual on Friday, April 27, 1990. Neither she nor any supervisor said anything about her quitting. On Monday, April 30, 1990, Petitioner again reported to work as usual. At that time, Viennessee Black was directly supervising Petitioner. Ms. Gray telephoned Ms. Black to say Petitioner had resigned. Ms. Black told Ms. Gray that the Petitioner was working there as usual. Ms. Gray then composed a memo which read in pertinent part: As per our conversation on the evening of April 26, 1990, at the Staff Meeting; you informed me that you were resigning, effective Friday, April 27, 1990. Ms. Gray presented Petitioner with the memo and asked her to sign it as a letter of resignation. Petitioner refused, asserting that she had not resigned. Respondent ceased to pay Petitioner and would not let her perform her job after April 30, 1990. Petitioner sought to continue to work. The situation became acrimonious with the Respondent employer giving consideration to psychological counseling for Petitioner with and without the participation of her co- employees. On June 15, 1990, a two hour conference was held with a psychologist, Dr. Bernard Lax, Petitioner and her husband, Ivory J. Gray, Michael Georgini, Director of Head Start, and Viennessee Black. Petitioner was again asked to provide specific information regarding her medical status, prognosis, and job analysis from her physicians and the speech pathologist. She was told that a decision would be made regarding her employment upon receipt of this information by the Head Start Program. Mr. Georgini asked to meet with Dr. Williams. Petitioner authorized the meeting. An appointment for the meeting was made for July 3, 1990. The results of this meeting, if it actually took place, are not in evidence. Petitioner thereafter submitted no further written medical assessments to Respondent. On July 3, 1990, Petitioner's speech/language pathologist wrote Mr. Georgini in pertinent part: Her speech rate is considered to be 80-90% fluent. She continues to experience some hesitations of speech when feeling "rushed" but she is fully capable of discussing almost all everyday problems or topics if given time to respond and not interrupted [sic]. She now has the foresight to know her strengths and limitations and well [sic] ask for assistance either with speech or a task. Comprehension of conversation and verbal information is well within the normal adult level. Connie continues to have difficult [sic] with writing and arithmetic calculations. Connie si [sic] fully aware of these limitations and will be the first to admit her inability to do so. This is not to say that she is not capable of using measuring device but rather would not be able to calculate a budget, or write a check, etc. She is capable of copying words and numbers without difficulty. Emotionally, Connie has had to regain her courage, confidence and self worth. She is fully aware that others around her do not understand her "Aphasia" and may acquaint this to a retardation disorder. As you know, an aphasic individual retains full intelligence but has difficulty with deliverance at times. Connie has always had a strong sense of determination and motivation. She has also learned the art of being able to laugh at herself and her mistakes. On July 23, 1990, Ms. Gray wrote Catholic Social Services saying the Respondent would not pay for counseling for Petitioner after her July 9, 1990 session.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the Florida Commission on Human Relations enter a Final Order which: Cites the Respondent for an unlawful employment practice and orders Respondent to cease and desist such practice. Orders Respondent to pay Petitioner the equivalent of salary and all emoluments for four-hour workdays for all workdays from April 30, 1990 until Respondent re-employs her. Requires Respondent to re-employ Petitioner in a job description commensurate with her handicapped capabilities. RECOMMENDED this 22nd day of February, 1993, at Tallahassee, Florida. ELLA JANE P. DAVIS 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 22nd day of February, 1993. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 92-2681 The following constitute specific rulings, pursuant to S120.59 (2), F.S., upon the parties' respective proposed findings of fact (PFOF). Petitioner's PFOF: Accepted that Petitioner did not voluntarily resign. The characterizations of burdens of proof and legal arguments are rejected. Immaterial in part unproven in part. In response to specific questions of the undersigned, Petitioner replied that pay stopped 4/30/90 and she was kept off premises as of July. Accepted that Petitioner demonstrated behavioral problems prior to one stroke or seizure but not dispositive. Covered in Findings of Fact 11 and 22. Subordinate and non-dispositive, but covered in substance. Immaterial, but covered in substance. Respondent's PFOF: The "Statement of the Issues" is treated as "Proposed Findings of Fact." 1. Rejected as not proven, as legal argument, and as a different point in time than that under consideration. 2,3,4,5 Rejected as not supported by the greater weight of the record evidence and as conclusory, not a proposed finding of fact. Covered in Findings of Fact. "Findings" is also treated as "Proposed Findings of Fact". Rejected as not supported by the greater weight of the credible evidence. Rejected as not supported by the greater weight of the credible evidence. Rejected as not supported by the greater weight of the credible evidence. COPIES FURNISHED: Constance Fiedorowicz 460 Hale Avenue Apt. 20 Brooksville, FL 34601 Ivory J. Gray, Director Mid Florida Community Services, Inc. Post Office Box 896 Brooksville, FL 34605-0896 Margaret A. Jones, Clerk Commission on Human Relations 325 John Knox Road Building F Suite 240 Tallahassee, FL 32303-4113 Dana Baird, Esquire General Counsel Commission on Human Relations 325 John Knox Road Building F Suite 240 Tallahassee, FL 32303-4113
The Issue The issues in this case are whether Respondent failed to maintain good moral character by engaging in sexual conduct while on duty as a police officer and making false statements under oath, and, if so, what penalty should be imposed.
Findings Of Fact Petitioner is the state agency responsible for the certification and regulation of law enforcement officers in Florida. Petitioner certified Respondent as a law enforcement officer on April 3, 1987, pursuant to certificate number 38354. During the fall of 2002, Respondent was employed as a police officer by the Sanford Police Department in Sanford, Florida. Respondent frequently conducted official business at a local Wal-Mart when Respondent was on duty and also visited the Wal-Mart for personal reasons when Respondent was off duty as a police officer. At the Wal-Mart, Respondent developed both a professional and personal relationship with Ms. Sheila Gill, a loss prevention employee at the Wal-Mart. Respondent and Ms. Gill spoke frequently both in person and by telephone. Some of the telephone conversations between Respondent and Ms. Gill included sexual banter. When Respondent and Ms. Gill talked in person at the Wal-Mart, the two usually stood close to one another or arm-in-arm, exhibiting personal intimacy. Respondent and Ms. Gill were sometimes together in the loss prevention office at the Wal-Mart when no one else was present. The loss prevention office has one door and no windows. Security personnel at the Wal-Mart use the loss prevention office, in relevant part, to process individuals accused of shoplifting and to transfer the custody of accused shoplifters to police officers, including Respondent. At all times relevant to this proceeding, the loss prevention office was equipped with a closed-circuit television camera to permit Wal-Mart security personnel to monitor the loss prevention office and to provide a videotape record. On October 13, 2002, Respondent and another police officer responded to a call from Wal-Mart security personnel regarding an accused shoplifter. After the other police officer left the loss prevention office with the accused, Respondent and Ms. Gill were alone in the office. They moved to an area of the office in which the video camera recorded only a portion of their actions. Respondent and Ms. Gill then engaged in sexual conduct at about 4:11 p.m., while Respondent was on duty for the Sanford Police Department. On October 27, 2002, Respondent was on duty for the Sanford Police Department and was alone with Ms. Gill in the loss prevention office at the Wal-Mart. Ms. Tracy Harden was employed at the Wal-Mart as the Assistant Store Manager. Ms. Harden attempted to enter the loss prevention office in response to a complaint of a stolen wallet that Ms. Harden received from a customer. Ms. Harden found the door locked. Ms. Harden unlocked the door, entered the loss prevention office, and observed Respondent and Ms. Gill alone together in the office. Respondent and Ms. Gill were sitting embraced and quickly separated when Ms. Harden entered the room. Ms. Gill was not working at the Wal-Mart on October 27, 2002. After observing Ms. Gill in the loss prevention office with Respondent, Ms. Harden met with Ms. Gill to question her about her presence in the store that day and her conduct with Respondent. Ms. Harden suspended Ms. Gill and directed her to leave the store. Ms. Harden retrieved the videotape from the security camera in the loss prevention office. However, she did not view the tape because she did not know how to operate the equipment. Ms. Harden locked the tape in the filing cabinet in her office and left work for the day. When Ms. Harden arrived at the Wal-Mart the next day, she found the filing cabinet in her office dented and its lock broken. Upon examining the contents of the cabinet, Ms. Harden discovered the tape was the only item missing from the filing cabinet. Ms. Gill had taken the videotape from the filing cabinet and discarded it. Ms. Harden complained to the Sanford Police Department about Respondent's behavior with Ms. Gill in the Wal-Mart loss prevention office on October 27, 2002. The Sanford Police Department conducted an internal investigation into the complaint. The internal investigation included an interview with Respondent on November 7, 2002. Respondent made two false statements under oath. Respondent denied that, on October 27, 2002, Respondent was touching Ms. Gill or in close proximity to Ms. Gill in the loss prevention office. Respondent also denied ever touching Ms. Gill, hugging her, having any type of close physical contact with her, or engaging in any inappropriate or unprofessional conduct with Ms. Gill while Respondent was on duty for the Sanford Police Department.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order finding Respondent guilty of failing to maintain good moral character and revoking Respondent's certification. DONE AND ENTERED this 14th day of April, 2005, in Tallahassee, Leon County, Florida. S DANIEL MANRY 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 14th day of April, 2005. COPIES FURNISHED: Joseph S. White, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Kristine R. Kutz, Esquire 200 East Robinson Street, Suite 200 Orlando, Florida 32801 Michael Crews, Program Director Division of Criminal Justice Professionalism Services Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
Findings Of Fact Appellant acquired the residence located at 1549 Levern Street approximately three years ago. The house was constructed some 30 years age and its outside dimensions have not been altered since construction. The house abuts the front setback line which is 25 feet from the front property line. The area is zoned RS-50, which is single family homes with up to 8.7 dwelling units per net acre. Minimum lot size for RS-50 is 5,000 square feet. Appellant resides in the home with his wife, and they are the only permanent occupants. He proposes to extend the front wall of his living room eight feet into the setback area the width of the living room which is 18 feet. This will increase the size of the living room by this amount. The existing living room is quite narrow and inadequate for Appellant's wife to comfortably entertain her church group. None of Appellant's neighbors oppose the variance of eight feet into the front setback requested by Appellant, and some support this request. Most of the other homes in the vicinity of Appellant's property are in conformity with the setback requirements of the building and zoning code. Appellant's lot is not unique or unusual but is similar to other lots in this section of the city. Some inference was made that when this home was constructed setback lines had not been established in this area and that, had the original owner so desired, the house could have been constructed closer to the front lot line than the 25 feet now prescribed by the zoning regulations. Even if this is assumed to be true, it is not relevant to the request for variance here under consideration.
The Issue The issue is whether the Respondent, Agency for Health Care Administration (AHCA), should pay the Petitioners attorney's fees and costs under section 57.111, Florida Statutes (2013),1/ the Florida Equal Access to Justice Act, for initiating DOAH Cases 10-0528, 10-1672 and 10-1673.
Findings Of Fact Avalon and Avalon II are licensed assisted living facilities (ALFs) in Orange County. In 2009, they were owned and operated by Robert Walker and Chiqquittia Carter-Walker. Each had no more than 25 employees and a net worth of not more than $2 million (making them small business parties under section 57.111). On December 4, 2009, AHCA filed an administrative complaint against Avalon (DOAH Case 10-0528). The administrative complaint alleged that Avalon was guilty of three Class II deficiencies, which are deficiencies that directly threaten the physical or emotional health, safety, or security of a resident. Count I alleged that Avalon falsified employee training documentation (cited as Tag A029) to deliberately misrepresent the level of information and skill possessed by a staff member. Count II alleged that Avalon failed to provide appropriate medication to a terminally ill resident (cited as Tag A427), resulting in unnecessary pain suffered by the resident. Count III alleged that Avalon failed to provide one resident with a prescribed nutritional supplement and two residents with appropriate pain-relieving medications, including the resident identified in Tag A427 (cited as Tag A700). Count IV alleged that the licenses of Avalon and Avalon II should be revoked under section 408.812(5), Florida Statutes (2009),2/ because they or their owners and operators ("controlling interests" under section 408.803(7)) operated a third, unlicensed ALF and because of a demonstrated pattern of deficient performance at Avalon. The first three counts of the administrative complaint were based on the results of an inspection (survey) of Avalon's facility completed on July 23, 2009. As to Count I, it was discovered during the inspection that training certificates for one Avalon staff member were not accurate and falsely indicated that the employee received required training, which the employee denied. Avalon disputed the employee's statement, offered explanations for some of the anomalies in the training certificates, and pointed out that Avalon still had time to provide some of the required training, but the employment was terminated before the time would have run out. Avalon also pointed to various mistakes and confusion in the survey report to attack its overall credibility. Nonetheless, the information in the survey report was a reasonable basis in fact to charge Avalon in Count I. Section 429.19(2)(b) provided a reasonable basis in law to file an administrative complaint seeking to fine Avalon for the violation alleged in Count I. As to Count II, the inspection revealed that a terminally ill resident, who no longer met the criteria for continued ALF residency, was allowed to remain in the ALF subject to the coordination of hospice care, the provision of additional medical services, and the development and implementation of an interdisciplinary care plan that adequately designated responsibility for the various kinds of care required by the resident. The inspection revealed that the resident did not receive medication for pain management, which had been authorized by the resident's physician, and suffered pain unnecessarily during the early morning hours of July 13, 2009. The inspection concluded that Avalon was responsible. Avalon disputed some of the findings in the survey report regarding this resident. Specifically, Avalon disputed statements in the survey report to the effect that there was no interdisciplinary plan in place and being implemented at the time. Avalon also contended that the allegations in Count II were based on inadequate investigation by unqualified personnel (i.e., not medical professionals), which resulted in a misunderstanding by the inspectors regarding how a hospice patient is treated in an ALF. The crux of the findings in the survey report and of the allegations in Count II was that Ms. Carter-Walker, who is a nurse and was the only ALF staff member authorized to administer medications to residents, as well as the administrator in charge of the ALF, had the facility's medication cart locked and made herself unavailable to authorize that it be opened during the evening hours of July 12 and early morning hours of July 13, 2009, resulting in the inability of anyone to administer the resident's pain medication for five hours when it was needed by the resident, as ordered by the resident's physician. This was a reasonable basis in fact to charge Avalon in Count II of the administrative complaint (even if there may not have been a reasonable basis for each and every allegation in Count II). Section 429.19(2)(b) provided a reasonable basis in law to file an administrative complaint seeking to fine Avalon for the violation alleged in Count II. Count III of the administrative complaint repeated the allegation in Count II and added allegations regarding two other residents. One of the other two residents was alleged to have had a history of weight loss and been prescribed a daily can of "Ensure" nutritional supplement, but did not receive the supplement, as ordered, because the facility had not obtained or provided it to the resident. Avalon contended that there were no medical records, facility records, or any other documentation submitted to substantiate the claim about the Ensure. It is true that the survey report did not include such supporting documentation, and no such supporting documentation was introduced in evidence in this case. However, the survey report indicates that AHCA staff reviewed Avalon's records on July 14, 2009, and that there was a health care provider order dated June 16, 2009, on file for one can of Ensure a day, and a Medication Observation Record showing none was provided to the resident in June or July. The report also indicates that Ms. Carter-Walker confirmed that no Ensure had been provided to the resident and telephoned the pharmacy to see if the pharmacy had received the order. This was a reasonable basis in fact to charge Avalon regarding the Ensure in Count III of the administrative complaint. The other resident mentioned in Count III was alleged to have had a history of hypertension and hypothyroid issues and to have been prescribed a daily Ibuprofen (400mg) for pain, but Avalon's medication records allegedly indicated that the medication had been provided to the resident twice on some days and not at all on other days. Avalon points out the vagueness of some of the evidence AHCA had to support this charge (namely, the statement of a former employee about an unknown date in June 2009 when the resident did not receive any pain medication), the confused and inconsistent testimony of AHCA's inspector and her supervisor as to the basis in fact for this allegation, and the absence of the medical records for this resident from the evidence introduced in this case. Nonetheless, the statements in the survey report reflecting that Avalon's records were reviewed by the AHCA inspectors were a reasonable basis in fact to include these allegations in Count III of the administrative complaint. Avalon complains that Count III repeated the allegations in Count II in order to combine with and elevate the other two deficiencies in Count III from Class III deficiencies to Class II deficiencies. While there may be no specific statutory or rule authority for doing so, Avalon does not point to any rule or statute prohibiting doing so, and AHCA had a reasonable basis in fact to take the position that the three alleged deficiencies, combined, were Class II. Section 429.19(2)(b) provided a reasonable basis in law to file an administrative complaint seeking to fine Avalon for the violations alleged in Count III. The allegation in Count IV of the administrative complaint that at an unlicensed facility was being operated by the owners and operators of Avalon and Avalon II on August 5, 2009, was supported by the report of an inspection (survey) of the facility on that day. As stated in the survey report, Mrs. Carter-Walker arrived and identified herself to the AHCA inspectors as the administrator of the facility. She was known to them as the administrator of Avalon and Avalon II, as well. It also was reported that she identified herself as the administrator of the facility to other care providers, including a clinical social worker, a registered nurse providing contract health care services to facility residents, and administrators at other local ALFs. In addition, according to the statements of an employee at the facility, there had been residents at the facility since at least June 16, 2009, which was when the staff member began to work at the facility. The employee worked providing resident services five days a week. According to the employee, there were always at least three residents in the facility, and the same residents were present on a day-to-day basis. There was no indication that those residents were transported out of the facility during the evening for some reason or that they did not otherwise remain in the facility overnight. A licensed practical nurse present at the facility on August 5, 2009, was the person who permitted the Agency's inspector to enter the facility. The nurse was there to provide personal care assistance to a terminally ill resident receiving care through an agreement between Mrs. Carter-Walker, as the facility's administrator, and hospice. After Mrs. Carter-Walker arrived at the facility, she appeared to the inspector to be unhappy that the nurse had permitted the inspector to enter the facility and directed the nurse to leave the facility. During the inspection on August 5, 2009, a "Notice of Unlicensed Activity/Order to Cease and Desist" was issued to Mrs. Carter-Walker and to Robert Walker, who arrived during the inspection and identified himself as an owner of the facility. At no time during the inspection on August 5, 2009, did Mr. Walker, Mrs. Carter-Walker, or anyone else say that the residents in the facility did not spend the night at the facility, that the residents had a familial relation to the owners, or that the facility was exempt from or otherwise not required to comply with relevant ALF licensing requirements. To the contrary, on August 14, 2009, Mr. Walker and Mrs. Carter- Walker applied for an ALF license for the facility to cure the violation. Avalon and Avalon II contend that there was no reasonable basis in fact and law for Count IV of the administrative complaint because Mr. Walker and Ms. Carter-Walker ceased and desisted as ordered by AHCA and applied for licensure. They cite to section 408.812(3) and (5), which they say subjected them to penalties only if they failed to cease and desist. AHCA contends that section 408.812(5) did authorize revocation and other disciplinary actions. AHCA also contends that section 429.14(1)(k) authorized revocation or suspension and fines. AHCA's arguments are reasonable. Avalon and Avalon II point to section 408.832, which provides that chapter 408 prevails over chapter 429 in the case of a conflict. However, it is reasonable for AHCA to argue that there is no irreconcilable conflict between section 408.812(3) and (5) and section 429.14(1)(k). AHCA's legal arguments persuaded Judge Quattlebaum, whose conclusions of law in that regard were not addressed by the appellate court in reversing the final order that adopted them. For these reasons, the survey report for the inspection on August 5, 2009, provided a reasonable basis in fact and law for this allegation in Count IV. Count IV also alleged a demonstrated pattern of deficient performance by Avalon between 2007 and 2009, as reflected in the attached survey reports. These survey reports indicated that Avalon had numerous lesser deficiencies during that time period. As pointed out by Avalon, not everything listed in these surveys indicated an actual deficiency, and all the earlier deficiencies presumably were corrected. Nonetheless, the survey reports were a reasonable basis in fact to charge Avalon with a continuing pattern of inadequate performance and a failure to meet relevant standards. In addition, section 429.14(1)(e)2. authorized fines and revocation, suspension, or denial of a license for three or more Class II deficiencies and was a reasonable basis in law to charge Avalon in Count IV. AHCA gave notice of intent to deny the license renewals for Avalon and Avalon II because of the unlicensed operation of an ALF and because their licenses were "under revocation." The first ground has been addressed. As to the latter, Avalon and Avalon II contend that there was no reasonable basis in fact and law because no final action revoking their licenses had been taken. However, the pending administrative complaint to revoke their licenses was a reasonable basis in fact and law to give notice of intent not to renew them.
The Issue The issue in this case is whether Respondent discriminated against Petitioner on the basis of his age, as stated in the Charge of Discrimination, in violation of Section 760.10(1), Florida Statutes. Preliminary Statement Petitioner, Alton Saunders, filed a Charge of Discrimination with the Florida Commission on Human Relations ("Commission") on May 10, 2000. The Commission did not make a determination regarding Petitioner's charge of discrimination within 180 days as required by Section 760.11(3), Florida Statutes. On December 27, 2000, Petitioner filed a Petition for Relief and thereby requested an administrative hearing. On March 2, 2001, the Commission referred the matter to Division Of Administrative Hearings to conduct an administrative hearing. On March 22, 2001, a final hearing was set for May 9-11, 2001, in Orlando, Florida. The final hearing was reset for June 6-8, 2001. On March 27, 2001, Respondent filed a Motion to Dismiss alleging that Petitioner "failed to timely request an administrative hearing with the Florida Commission on Human Relations as required by Section 760.11(6), Florida Statutes." On May 17, 2001, an Order Reserving Ruling on Respondent's Motion to Dismiss was entered, reserving ruling until the matter was reconsidered after the close of evidence at the final hearing. At the onset of the final hearing, Petitioner requested a continuance, which was denied. In support of his request for continuance, Petitioner presented a letter from Robert Wheelock, an Orlando attorney, which was made a part of the record as Petitioner's Exhibit A, but not received into evidence. Petitioner presented James "Jan" Saunders, Hugh Paton, Brett Saunders, Doris Dixon, Debra Sweeney, and himself as witnesses. Petitioner offered two exhibits, 1 and 2, which were received into evidence. Respondent presented Debra Sweeney and two additional witnesses, Richmond Taylor and Karl D. Fillauer, by deposition. Respondent offered 13 exhibits; 1-8 and 14-17 were received into evidence. Respondent's exhibit 11 was not admitted into evidence. The Transcript of proceedings was filed on July 23, 2001. Respondent filed a Proposed Recommended Order on August 20, 2001. Petitioner did not file a proposed recommended order.
Findings Of Fact Petitioner was born on August 16, 1922, is 79 years old, and is a member of a protected class. Respondent, Hanger Prosthetics and Orthotics, Inc. ("Hanger"), employed Petitioner at the time of the alleged discrimination. Hanger is engaged in the manufacture, service, and sale of prosthetics and orthotic devices around the country, including in Central Florida. Petitioner and his family have also been engaged in the prosthetics and orthotics industry throughout Central Florida for many years, operating under a variety of different business names. From approximately 1985 through 1997, Petitioner was employed as a general office employee by Amputee and Brace Center, a prosthetics and orthotics company owned by Petitioner's sons, Jerome and Jan Saunders. In 1997, Amputee and Brace Center was acquired by NovaCare, a competitor in the prosthetics and orthotics industry. As part of the sale, members of the Saunders family, including Petitioner, became employees of NovaCare. Shortly after the acquisition of Amputee and Brace Center by NovaCare, several members of the Saunders family left NovaCare's employ to work for competing prosthetics and orthotics companies. For example, Scott Saunders, Petitioner's grandson, left NovaCare's employ and opened a competing company, ABC Prosthetics and Orthotics, Inc. across the street from NovaCare's facility on Gore Street in Orlando. In July 1999, NovaCare was acquired by Hanger, previously another competitor of NovaCare. Following the merger of NovaCare and Hanger, Petitioner became an employee of Hanger and remained at the facility located on Gore Street in Orlando. As a result of the merger, numerous personnel changes occurred at the Gore Street facility. For example, Debra Sweeney, a longtime Hanger employee, was transferred to the Gore Street facility as the Clinical Operations Director. In December 1999, the title of Clinical Operations Director was changed to Area Practice Manager. Ms. Sweeney was the individual ultimately responsible for the Gore Street facility where Petitioner was then employed. On March 8, 2000, a misdirected envelope and its contents arrived with the rest of the mail at the Gore Street facility. The envelope was addressed to Dr. Steven Goll, a significant source of patient referrals for Hanger. The return address on the envelope was the return address of ABC Prosthetics and Orthotics, Inc., the company owned by Petitioner's grandson, Scott Saunders, and Hanger's biggest competitor in Central Florida. The envelope was routinely opened by a member of Hanger's office staff and then delivered, along with its contents, to Debra Sweeney. The envelope addressed to Dr. Steven Goll contained a solicitation letter bearing Petitioner's signature seeking business referrals on behalf of a new company, Anatomically Correct Cosmetic Restorations ("Anatomically Correct"). The envelope also contained Petitioner's business card and a trifold marketing piece which explained the types of products and services offered by Anatomically Correct. According to the trifold, Anatomically Correct offered prosthetic and orthotics services and devices which were identical to significant services and devices being offered by Hanger. Upon receiving the marketing materials, Debbie Sweeney immediately recognized the return address on the envelope and trifold marketing piece as the return address for Hanger's competitor, ABC Prosthetics and Orthotics, Inc. ABC Prosthetics and Orthotics, Inc., Hanger's competitor, had given Petitioner permission to use the business address of ABC Prosthetics and Orthotics, Inc., as well as ABC Prosthetics and Orthotics, Inc.'s envelopes in distributing the Anatomically Correct marketing materials. Petitioner's granddaughter-in-law, the wife of the president of ABC Prosthetics and Orthotics, Inc. designed the marketing materials for Anatomically Correct. Upon examining the contents of the envelope, Ms. Sweeney suspected that Petitioner was engaged in improper competition with their employer, Hanger. On March 9, 2000, a meeting was held among Ms. Sweeney, Petitioner, and Rose DeLucia, the branch manager of the Gore Street facility, during which time Ms. Sweeney presented Petitioner with an opportunity to explain the contents of the envelope that had arrived at Hanger's Gore Street facility the previous day. During the March 9, 2000, meeting, Petitioner admitted that he had developed the marketing materials, signed them, and distributed them. Additionally, Petitioner admitted that he had mailed the solicitation materials out to physicians practicing throughout the Orlando area who referred patients to Hanger for the purpose of seeking patient referrals from them for his new business. Petitioner had not solicited business from Hanger's referring physicians during the time that he was actively working for Hanger, i.e., 8:00 a.m.-5:00 p.m. Petitioner acknowledged that he had not advised Hanger that he intended to start Anatomically Correct and engage in business. Petitioner's conduct was a violation of Hanger policy as well as the policy of Petitioner's former employer, NovaCare, which merged with Hanger. As a result of the discussion and Petitioner's acknowledgment of production and distribution of the solicitation materials, Ms. Sweeney advised Petitioner that his employment was terminated for conduct in conflict with his obligations to Hanger, specifically competing with Hanger while employed by Hanger. Petitioner's employment was terminated for his improper competition with his employer, Hanger, and was unrelated to Petitioner's age. In his March 10, 2000, application for unemployment compensation benefits with the State of Florida Department of Labor, Petitioner indicated that he had been informed that he was being terminated because his "outside work is in conflict with their type of work." In a July 1999, conversation involving overstaffing at the Gore Street facility, Wallace Faraday, a Hanger executive, suggested, "Isn't it time for Al [Respondent] to resign, maybe one of his sons will hire him," or words to that effect. On April 27, 2000, Petitioner signed and dated a Charge of Discrimination. The Charge of Discrimination was filed with the Commission on May 10, 2000. Section 760.11(3), Florida Statutes, requires that the Commission determine whether there was reasonable cause for the Charge of Discrimination within 180 days of the date Petitioner filed his Charge of Discrimination. The last day the Commission could have issued its determination of reasonable cause was November 6, 2000. The Commission failed to issue an order determining reasonable cause. When the Commission failed to determine reasonable cause, Petitioner had 35 days from November 6, 2000, or no later than December 11, 2000, to request an administrative hearing in accordance with Sections 760.11(4), (6), (7), and (8), Florida Statutes. Petitioner executed an Election of Rights form indicating his desire to withdraw his Charge of Discrimination and file a Petition for Relief to proceed with an administrative hearing on December 27, 2000. Petitioner did not file his request for administrative hearing within 35 days of November 6, 2000. Petitioner's claim is barred. Section 760.11(6), Florida Statutes, expressly provides, in pertinent part: "An administrative hearing pursuant to paragraph 4(b) must be requested no later than 35 days after the date of determination by the commission."
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a final order granting Hanger's Motion to Dismiss finding that Petitioner's Election of Rights and request for an administrative hearing was not timely filed, finding that Hanger did not discriminate against Petitioner, and denying Petitioner's Charge of Discrimination and Petition for Relief. DONE AND ENTERED this 12th day of September, 2001, in Tallahassee, Leon County, Florida. JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of September, 2001. COPIES FURNISHED: Lisa H. Cassilly, Esquire Ashley B. Davis, Esquire Alston & Bird, LLP One Atlantic Center 1201 West Peachtree Street Atlanta, Georgia 30309-3424 Azizi M. Dixon, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Alton M. Saunders Jerome Saunders 418 Seville Avenue Altamonte Springs, Florida 32714 Dana A. Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
Findings Of Fact Appellant Thomas J. Bell, Jr., is a Security Officer I at the South Florida State Hospital, Hollywood, Florida, which is operated under the Department of Health and Rehabilitative Services. On September 6, 1977, Bell was issued an oral reprimand by his supervisor Lieutenant John Church of the Security Department at South Florida State Hospital for not obeying standing policy as to the dress code of the department. Bell was observed by Church on duty at Post 6 at approximately 3:15 P.M. with his shirttail out of his trousers and wearing a black leather hat. Church had discussed the question of dress regulations with Bell on a previous occasion and had provided him with a book of regulations together with instructions to follow those rules pertaining to dress. (Testimony of Church) Again, on October 13, 1977, Bell while on duty in the afternoon sometime after 3:00 P.M., was observed by Church at Monroe Gate on the hospital grounds with his shirttail out of his trousers and wearing the same leather cap. He was issued a written reprimand by Church on October 13, 1977 as a result of this incident for violation of written policies concerning dress. (Testimony of Church, Exhibits 1, 3) On February 3, 1978, Bell went to the hospital snack bar to obtain a "take-out lunch." He took his assigned portable radio with him which he placed on the counter. After procuring his bag of food, he left the snack bar and left the radio on the counter. The Security Department was notified by snack bar personnel that the radio had been left there and another security officer was dispatched to return it to the department office. The radio was undamaged. At the hearing, Bell admitted that he had left the radio, but testified that he had merely forgotten it in his rush to gat back to his post. Although the letter of suspension states that Bell received a written reprimand on February 6, 1978, for this incident which was deemed to be an abuse of departmental equipment, the Department of HRS has been unable to show the existence of such a letter to Bell in departmental files. A late filed exhibit of the department reveals only a memorandum from Lieutenant James H. Dryden to R. Bohler on February 6, 1978, which summarizes the September, October and February incidents. (Testimony of Dryden, Exhibit 4) Bell testified at the hearing and although admitting that he was carrying a dark colored cap when going to his post on the date of the incident in September, claimed that he did wear the hat on post. However, he also conceded that it was possible that his shirttail was out. He also acknowledged that Church had discussed the matter with him, but did not use the word "reprimand." He further testified that he had worn the hat in the October incident and when asked about it by the Security Department Chief, had informed him that it was too hot. Bell maintained that he had worn the hat because it was very hot on his post in the afternoons and he had insufficient funds to buy a regulation uniform hat. Although he also sought to show that Lieutenant Church disliked him and was prejudiced against him, Church denied such allegations and it is found that insufficient evidence was presented to establish such a fact. (Testimony of Bell, Church)
Recommendation That the Career Service Commission deny the appeal. DONE and ENTERED this 14th day of July, 1978, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of July, 1978. COPIES FURNISHED: Conley M. Kennison Attention: Mrs. Dorothy Roberts Appeals Coordinator Career Service Commission 530 Carlton Building Tallahassee, Florida 32304 Harold L. Braynon District X Legal Counsel Department of HRS 800 West Oakland Park Boulevard Fort Lauderdale, Florida 33311 Thomas J. Bell, Jr. 16420 North West 20 Avenue Opa Locka, Florida 33054
