The Issue Whether Petitioner was wrongfully terminated from his position as a janitor with Respondent because of his handicap, in violation of Section 760.10(1)(a), Florida Statutes.
Findings Of Fact Petitioner, Lee, was hired by Respondent in August 1994 as a custodial worker at the Tallahassee Mall in Tallahassee, Florida. As a janitor Petitioner's duties included bending, stooping, and lifting. He was assigned to zone 3 in the Mall. Up until 1996, when Petitioner was injured, Petitioner received good evaluations on his job performance. Indeed Petitioner was very proud of the quality of his work and took special care to do his job well. Sometime prior to May 20, 1996, Petitioner, while at work and in the scope of his employment, stepped on a set of stairs which were not properly attached to a stage in the Tallahassee Mall. The steps slipped causing Petitioner's feet to come out from under him. Petitioner fell flat on his back. As a consequence Petitioner suffered a permanent back injury for which he received workers' compensation. The injury impairs his ability to work and therefore is a handicap. Around May 20, 1996, Petitioner was released by his doctor and was given orders for light duty with no bending, stooping, or heavy lifting. Petitioner gave these orders to his supervisor, Mr. Navin, when he returned to work on May 20, 1996. Respondent had light duty work available which Petitioner was qualified to perform. However, Respondent did not assign Petitioner to light duty work, but changed his work area from zone 3 to zone 1. Zone 1 is located at the front entrance to the mall and requires more work to maintain. Petitioner attempted to perform his duties but could only work for 3 1/2 hours before being overcome by pain from his injury. Petitioner could not work the next four working days because of the aggravation of his injury. On May 28, 1996, after returning to work, Petitioner was again given full duty work. Petitioner attempted to perform his custodial duties for about 2 weeks. However, the pain from his injury was so severe he again requested light duty work. Petitioner's supervisor asked Petitioner to bring him another notice from his doctor. Petitioner's doctor faxed the supervisor a second notice and Petitioner was placed on light duty work. Once Petitioner was placed on light duty work, the mall manager, Mr. Renninger, followed Petitioner around the mall watching him all the time while he worked. On July 8, 1996, prior to the mall opening for business, Petitioner was helping one of the mall store owners with a problem. Such aid was part of Petitioner's job. The mall manager walked up to Petitioner and began to yell at him in a very rude and disrespectful manner. The manager would not listen to Petitioner's explanation of the event. The manager gave Petitioner a written disciplinary notice for his aid to the mall store owner. The manager continued to follow Petitioner around the mall while he worked. Sometime around August 15, 1996, the mall manager advised the mall's employees that they should take their respective vacations prior to October. Petitioner thought it would be a good time for him to take the 4-day vacation time he had accumulated during his employment with the mall. He could use the time to allow his back to heal more. On August 15, 1996, Petitioner requested vacation leave and vacation pay for the period beginning September 3, 1996 and ending September 9, 1996. Initially, the request was denied. Petitioner's supervisor felt he had missed too much work and been late too often. However, Petitioner had only been absent or late in relation to his back injury. Petitioner explained that fact to his supervisor. His supervisor agreed and approved Petitioner's vacation. Petitioner returned to work on August 10, 1996. An argument with the administrative assistant occurred when she refused to recognize that Petitioner was entitled to be paid for his vacation time. She was not going to turn in any time for him so that Petitioner could get paid while on vacation. Getting a paycheck was a serious matter to Petitioner, and Petitioner, understandably, became gruff with the administrative assistant. Petitioner only raised his voice at the administrative assistant. He was not abusive and did not curse at her. In fact, the administrative assistant yelled at Petitioner when he raised the subject of his pay "Now, before you start bitching." Petitioner called the headquarters of Respondent and confirmed he had vacation time and pay accrued. After this incident Petitioner was fired ostensibly for mistreating the administrative assistant. The administrative assistant, who was incorrect, was not terminated. The reason appears to be a pretext. Petitioner's pay was $5.35 per hour and he worked a 40-hour-work-week. After his termination, Petitioner actively sought employment but could not find any until September 1, 1997. At that time he began work for Tallahassee Community College as a custodial worker with light duties at a higher rate of pay. Petitioner's search for work was reasonable.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order finding Respondent guilty of an unlawful employment practice against Petitioner and awarding Petitioner backpay in the amount of $11,770.00. DONE AND ENTERED this 27th day of October, 2000, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of October, 2000.
The Issue Whether Petitioner, Marie L. Henry, was subject to an unlawful discriminatory act by Respondent, The Florida Bar, based on her race and disability and through retaliation in violation of the Florida Civil Rights Act.
Findings Of Fact Petitioner, an African American woman, was admitted to practice law in Florida in 2009. On March 31, 2015, the Florida Supreme Court (the “Supreme Court”) issued an Order suspending Petitioner from the practice of law for six months (the “Suspension Order”). As of the date of the final hearing, Petitioner had not taken steps to reinstate her license. Petitioner asserts that the Supreme Court’s Suspension Order is illegal. Petitioner alleges that the Suspension Order directly resulted from discrimination against her by The Florida Bar. Under Article V, section 15 of the Florida Constitution, the Supreme Court “shall have exclusive jurisdiction to regulate the admission of persons to the practice of law [in Florida] and the discipline of persons admitted.” The Supreme Court’s power to regulate the discipline of persons admitted to practice law is exercised through The Florida Bar’s lawyer regulation function. As an official arm of the Supreme Court, The Florida Bar and its Department of Lawyer Regulation are charged with administering a statewide disciplinary system to enforce Supreme Court rules of professional conduct on the more than 100,000 lawyers admitted to practice law in Florida. The Florida Bar is charged with assuring that admitted lawyers comply with the Rules Regulating The Florida Bar (the “Bar Rules”), which are adopted by the Supreme Court. In furtherance of its responsibilities, The Florida Bar accepts complaints against attorneys licensed to practice law in Florida. The Florida Bar then investigates these complaints and prosecutes attorneys who engage in misconduct. The Bar Rules describe the process by which The Florida Bar processes complaints and initiates disciplinary action. See R. Regulating Fla. Bar 3-7. All investigations and disciplinary recommendations of The Florida Bar are subject to full and independent review by the Supreme Court. If the Supreme Court suspends a lawyer for over 91 days, the lawyer must petition the Supreme Court for reinstatement. The Supreme Court, not The Florida Bar, determines whether the lawyer is reinstated to practice law in Florida. See R. Regulating Fla. Bar 3-7.10. The facts that led to this dispute began in 2009. On October 31, 2009, Petitioner’s daughter, who was 13 years old at the time, was arrested in Lake County, Florida. She was charged with resisting a police officer without violence and taken to jail.6/ After learning of the allegations that led to the arrest, Petitioner determined that the charges against her daughter were unfounded. (Petitioner represented that her daughter allegedly “resisted” because she did not give her name to the arresting officer when asked.) Petitioner also believed that her daughter was racially profiled. As a parent, Petitioner became extremely distressed and upset at what she perceived to be a grave injustice. The State of Florida filed a Petition for Delinquency against Petitioner’s daughter on January 26, 2010. The case was presided over by Judge Michael G. Takac of the Fifth Judicial Circuit Court of Florida. (The Fifth Judicial Circuit includes Citrus, Hernando, Lake, Marion, and Sumter Counties.) Assistant State Attorney John Carnahan represented the State of Florida during the prosecution of Petitioner’s daughter. Petitioner represented her daughter during the trial. As part of her daughter’s defense, Petitioner filed a Motion for Discharge for Lack of Speedy Trial. In support of her motion, Petitioner filed a memorandum of law in which she cited the case of Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868 (1968), asserting that law enforcement’s “stop and frisk” and detention of her daughter was improper. In May 2010, following several days of trial, Judge Takac found Petitioner’s daughter guilty, but withheld adjudication of the charge. Judge Takac’s sentence imposed several conditions including probation. (Petitioner appealed her daughter’s criminal proceeding to the Fifth District Court of Appeal. On May 5, 2011, the Fifth District Court of Appeal affirmed the trial court’s determination that Petitioner’s daughter was guilty of resisting a law enforcement officer without violence.7/ The court specifically remarked that an individual may be required to provide her name to a law enforcement officer where the officer has initiated a valid Terry stop.)8/ At some point during the appeal, Petitioner’s daughter was arrested again; this time for petit theft. The petit theft charge was prosecuted in Seminole County. As a result of this new arrest, Petitioner’s daughter was also charged with violating the probation imposed in her first case before Judge Takac. Petitioner retained a private attorney, Lee Mercado, to represent her daughter in the petit theft case. Ms. Mercado entered an appearance in both the Seminole County case (for the petit theft charge) and the Lake County case (for the violation of probation). Based on her violation of probation, Petitioner’s daughter was detained in a juvenile detention facility. Ms. Mercado filed an emergency motion for release based on jurisdictional grounds. Judge Takac heard the motion. At some point after the conclusion of the juvenile proceeding involving Petitioner’s daughter, Judge Takac was reassigned to the civil division of the Fifth Judicial Circuit in Lake County. As a result of this transfer, Judge Takac became the presiding judge in a pending civil matter in which Petitioner was a party. This civil matter (which appears to have been filed in August 2009, before Petitioner’s daughter’s arrest) involved an alleged predatory lending lawsuit that Petitioner brought against her mortgage loan servicer. After Petitioner learned that Judge Takac was presiding over her civil case, she filed two motions to disqualify him. Petitioner filed a Motion to Disqualify Trial Judge for Cause on March 8, 2012. Petitioner based her motion on Judge’s Takac’s “perceived bias” against her in her daughter’s juvenile proceeding. Petitioner alleged that, “When her mother, the plaintiff in this case, raised the issue of prosecutorial misconduct and racial bias to this Court . . . [Judge Takac] repeatedly sought to embarrass her and thwart her attempts to seek justice for her child.” Petitioner further wrote that, “The prejudice of the trial court was so patently unfair, overt and in violation of the laws of the United States of America and Florida that it rises to the level of abuse.” On May 9, 2012, Petitioner filed a second, nearly identical, Motion to Disqualify Trial Judge for Cause asserting similar statements (the motions are collectively referred to as “Motions to Disqualify”). Just prior to challenging Judge Takac in her civil matter, Petitioner decided to report to The Florida Bar her displeasure with the inappropriate manner in which she believed Mr. Carnahan prosecuted her daughter in the juvenile proceeding. On February 23, 2012, Petitioner submitted a complaint against Mr. Carnahan to The Florida Bar for “ethical violations and possible criminal conduct.” In her ten-page verified complaint, Petitioner expressed that Mr. Carnahan prosecuted her daughter “for purely racial and political motives.” Petitioner complained of “overt and direct racial bias.” Petitioner further contended that when prosecuting her daughter, Mr. Carnahan, a white male, acted with “malice” and “racial animus” and “blatantly misrepresented the case law to the Court.” On March 16, 2012, Mr. Carnahan responded to Petitioner’s Bar complaint. In his written response, however, Mr. Carnahan went beyond simply denying Petitioner’s allegations. He pronounced his own complaints about Petitioner’s behavior during the juvenile proceeding and urged The Florida Bar to examine her conduct. Mr. Carnahan declared that Petitioner misquoted the speedy-trial rule and misrepresented its meaning to Judge Takac. In addition, Mr. Carnahan reported that when Petitioner quoted the Terry case in her memorandum of law, Petitioner failed to disclose that the portion of the case from which she recited was a concurring opinion. Mr. Carnahan further recounted that Petitioner lied under oath to Judge Takac during her daughter’s probation violation hearing when she represented that she told the probation officer that she did not know her daughter’s location. Finally, Mr. Carnahan declared that Petitioner called him a “racist” in open court. On July 16, 2012, Mr. Carnahan submitted additional information to The Florida Bar supplementing his statement against Petitioner. Mr. Carnahan elaborated on two instances of unethical and/or dishonest conduct by Petitioner. Mr. Carnahan expanded on his allegations that Petitioner: 1) intentionally misrepresented the speedy trial rule “in a calculated way to mislead the reader (Court) on the law,” and 2) made “a clearly false statement under oath to presiding Judge Michael B. Takac concerning the nature of her daughter’s first absconding from supervision.” On June 19, 2012, Judge Takac issued his ruling on Petitioner’s Motions to Disqualify in the civil matter in an Order entitled: Order Finding “Motion(s) to Disqualify Trial Judge for Cause” Legal Insufficient; Striking Said Motions (Filed 3/8/12 & 5/22/12); Requiring Clerk to Forward Copy of Order to the Florida Bar, and Requesting Assignment to Appropriate Circuit Judge for Further Prosecution.” Judge Takac denied both Petitioners’ Motions to Disqualify as “sham pleadings of scurrilous content.” Judge Takac found Petitioner’s motion filed on March 8, 2012, to be legally insufficient. Judge Takac commented that Petitioner’s second motion filed on May 22, 2012, “mimics the previous motion in all respects except for its lack of candor for contradiction, or omitting, the essential date upon which [Petitioner] claims to have first learned of this case’s reassignment to the undersigned Judge.” In his Order, Judge Takac also commented that Petitioner’s first motion accused him of “depart[ing] from the essential requirements of justice purely based on perceived racial animus, profiling and political motives in prosecuting this [child’s juvenile] case.”9/ Judge Takac further remarked that: The content of the rambling, illogical, inconsistent “motions” are rife with adjective, invective and accusations, but short on fact(s), and constitute either a display of ineptitude, or calculated violation of professional conduct rules, that require submission to the Florida Bar for consideration of appropriate sanction(s) against [Petitioner]. On June 25, 2012, Judge Takac submitted a copy of his Order to The Florida Bar. In his cover letter, Judge Takac stated that his Order included his charges against Petitioner “for unethical and unprofessional conduct that violated the Rules of Professional Conduct of the Rules Regulating the Florida Bar.” Upon receiving the complaints by and against Petitioner, The Florida Bar assigned the matter to Bar Counsel JoAnn Stalcup (now deceased), who worked in The Florida Bar’s Orlando Branch. As Bar Counsel, Ms. Stalcup investigated each complaint that was assigned to her. Her responsibilities included gathering evidence to determine whether the attorneys’ alleged misconduct violated Bar Rules. If Ms. Stalcup concluded that the evidence substantiated the allegations, she would forward the complaint to a grievance committee. If evidence did not verify the veracity of the complaint, or if the complained-of conduct did not constitute a violation of Bar Rules, Ms. Stalcup was authorized to dismiss the complaint without further inquiry. After an investigation, Ms. Stalcup dismissed Petitioner’s complaint against Mr. Carnahan. As she explained in a letter to Petitioner dated November 19, 2012, Ms. Stalcup found the “objective evidence is insufficient to support a finding of attorney misconduct on the part of Mr. Carnahan.” Ms. Stalcup wrote that “upon careful review of all the objective evidence, . . . there is nothing in the objective evidence which would support a determination that Mr. Carnahan, as the prosecutor in the case, violated the law in pursuing the prosecution of [Petitioner’s] daughter.” Ms. Stalcup further found that no evidence in the record supported Petitioner’s claim that Mr. Carnahan’s actions were “based on racial animus or prosecutorial misconduct,” or that “the ruling of the trial court was based upon [Petitioner’s] daughter’s race.” Ms. Stalcup concluded that: [T]he objective evidence simply does not support a finding that there was racial animus involved in this prosecution, that Mr. Carnahan engaged in any type of profiling or prosecutorial misconduct, that he disparaged either you or your daughter during this matter, or that he used the law improperly or for an improper purpose. On the other hand, following her investigation of Mr. Carnahan’s complaint against Petitioner, Ms. Stalcup determined that the objective evidence sufficiently substantiated the allegations of misconduct on the part of Petitioner. Therefore, Ms. Stalcup forwarded Mr. Carnahan’s complaint to a Florida Bar grievance committee. A grievance committee is composed of individuals nominated from The Florida Bar’s Board of Governors. Each Board of Governors member is assigned to sit on a grievance committee. Grievance committees are comprised of both lawyers and non- lawyers. At least one-third of the committee members must be non- lawyers. Once Bar Counsel sends a complaint to a grievance committee, the Bar Counsel works with the committee to investigate the complaint. The purpose of a grievance committee is to determine whether probable cause exists to believe that the alleged misconduct, if true, would support a violation of Bar Rules. Thus, a grievance committee, not Ms. Stalcup, decides whether The Florida Bar pursues formal charges against a lawyer for alleged violations of Bar Rules. The complaints against Petitioner from both Mr. Carnahan and Judge Takac were referred to the Eighteenth Judicial Circuit Grievance Committee “A” (the “Grievance Committee”). Clayton Simmons served as the investigating member of the Grievance Committee. As the investigating member, Mr. Simmons was tasked with investigating the allegations in the complaints and presenting the results of his investigation to the Grievance Committee. Thereafter, he would remove himself from the Grievance Committee while the members deliberated on the evidence and voted on a finding of probable cause. Mr. Simmons explained that a “probable cause” finding means that, based on the evidence, the attorney “more likely, than not,” committed the alleged misconduct. In his investigation, Mr. Simmons reviewed the complaints submitted against Petitioner. He also interviewed seven witnesses. These witnesses included Petitioner, Mr. Carnahan, and Judge Takac, as well as the juvenile parole officer who had been assigned to Petitioner’s daughter’s case. At the conclusion of Mr. Simmons’ investigation, Ms. Stalcup prepared a Notice of Grievance Committee Review (the “Notice”), dated March 27, 2013. Ms. Stalcup sent the Notice to Barry Rigby, Petitioner’s attorney who represented her during The Florida Bar investigation. The Notice advised Petitioner of the potential Bar Rule violations, as well as the documents and evidence before the Grievance Committee. The Notice further advised Petitioner of her opportunity to make a written statement admitting, explaining, or refuting the alleged misconduct. Petitioner elected not to appear before the Grievance Committee. The Grievance Committee reviewed the documents and information Mr. Simmons gathered. Thereafter, following a vote of its members, the Grievance Committee found probable cause existed that Petitioner violated Bar Rules. At the final hearing, Mr. Simmons testified that the race of Petitioner, Judge Takac, or Mr. Carnahan had no bearing on his investigation or the Grievance Committee’s finding of probable cause. Once the Grievance Committee found probable cause, Ms. Stalcup’s role shifted from “investigator” to “prosecutor.” In her new role, Ms. Stalcup drafted a formal complaint (the “Complaint”) against Petitioner. Ms. Stalcup’s draft Complaint was reviewed at two supervisory levels at The Florida Bar. First, Jan Wichrowski, Ms. Stalcup’s direct supervisor and the Orlando office’s Chief Branch Discipline Counsel, reviewed the Complaint. At the final hearing, Ms. Wichrowski relayed that she carefully examined the draft Complaint and compared it to the Notice to ensure that the Complaint included only those alleged rule violations for which the Grievance Committee found probable cause. Next, Ms. Stalcup’s draft Complaint was forwarded for approval by Kenneth Marvin, then Director of Lawyer Regulation and Staff Counsel for The Florida Bar. Mr. Marvin testified that after receiving the Complaint, he personally discussed the allegations with Ms. Stalcup. He, too, felt that the allegations accurately reflected the Grievance Committee findings. Both Ms. Wichrowski and Mr. Marvin found the Complaint was based only on the allegations considered by the Grievance Committee. Both individuals testified that the Complaint against Petitioner was not drafted to retaliate against her for filing a complaint against Mr. Carnahan. Once the Grievance Committee found probable cause, the complaint process moved to The Florida Bar Board of Governors’ Disciplinary Review Committee (the “Review Committee”). The Review Committee is comprised of over half the Board of Governors. This committee is authorized to either overrule or stand by the Grievance Committee’s probable cause finding. The Review Committee examined the Grievance Committee’s findings. The Review Committee agreed that probable cause existed to believe that Petitioner violated Bar Rules. At that point, the Complaint against Petitioner was forwarded to the entire Florida Bar Board of Governors to consider the probable cause recommendation. The Board of Governors also accepted the Grievance Committee’s recommendation that probable cause existed that Petitioner violated Bar Rules. On June 26, 2013, The Florida Bar formally filed the Complaint with the Supreme Court charging Petitioner with violating Bar Rules. The Complaint specifically alleged that Petitioner violated Rule 4-3.1 (based on Petitioner’s misstatement of Florida Rule of Criminal Procedure 3.191(p) related to speedy trial); Rule 4-3.3(a) (based on her false statements to her daughter’s probation officer, as well as to Judge Takac); Rule 4-3.5(c) (for engaging in disruptive conduct); Rule 4-8.4(c) (for conduct involving dishonesty, deceit, or misrepresentation); and Rule 4-8.4(d) (for conduct that is prejudicial to the administration of justice including disparaging court personnel or other lawyers). The Supreme Court appointed Judge Thomas Jaworski of the Eighth Judicial Circuit as the Referee to conduct a disciplinary proceeding to consider The Florida Bar’s Complaint against Petitioner. As Referee, Judge Jaworski was tasked to make findings of fact and a recommendation to the Supreme Court regarding the charges brought against Petitioner. The standard of proof in a disciplinary hearing is clear and convincing evidence. Judge Jaworski was not an employee of The Florida Bar. A hearing was held before Judge Jaworski on November 12 and 13, 2013. Ms. Stalcup represented The Florida Bar. Mr. Rigby represented Petitioner. Petitioner, Mr. Carnahan, and Judge Takac all testified at the hearing. On February 4, 2014, Judge Jaworski notified Petitioner and The Florida Bar that he found Petitioner guilty of violating Bar Rules. On March 17, 2014, Judge Jaworski conducted a separate hearing to consider the appropriate sanctions for Petitioner based on his findings. Petitioner testified at the sanctions hearing. On April 30, 2014, Judge Jaworski issued a Report of Referee (the “Report”). As stated in the Report, Judge Jaworski found that The Florida Bar proved, by clear and convincing evidence, that Petitioner violated Rules 4-3.3(a)(1), 4-8.4(c), and 4-8.4(d).10/ (Judge Jaworski did not find that Petitioner violated Rules 4-3.1 and 4-3.5(c).) Judge Jaworski specifically ruled that Petitioner “made knowing and deliberate misrepresentations during the juvenile proceeding and civil proceedings.” Judge Jaworski remarked that: The evidence clearly and convincingly establishes that the manner in which [Petitioner] chose to change the words of the [speedy trial] rule was in an unethical attempt to alter not only the meaning of the rule but also the manner in which the trial court would be required to rule. Judge Jaworski further concluded that Petitioner “knowingly or with callous indifference disparaged the prosecutor, the trial judge, and the appellate court.” Regarding the appellate court, Judge Jaworski found that Petitioner’s statement in a Petition for Habeas Corpus she filed with the Supreme Court “was a misrepresentation of the actions of the Fifth District Court of Appeal.” Judge Jaworski explained that Petitioner’s “assertions that the appellate court failed to perform its duty, without providing any objective factual basis for such assertions, was disparaging to the court. Respondent’s actions in this regard were prejudicial not only to the individuals involved, but were also highly prejudicial to the legal system.” Judge Jaworski determined that Petitioner should be suspended for 91 days. Judge Jaworski further concluded that, prior to reinstatement, Petitioner should: 1) be required to be evaluated by a mental health professional approved by Florida Lawyers Assistance, Inc., to determine that she is fit to practice law with reasonable skill and safety; and 2) pay The Florida Bar’s costs of $5,595.45 for the proceedings.11/ Judge Jaworski filed his Report with the Supreme Court. His Report, as well as the recommended factual findings and discipline contained therein, was not final until approved by the Supreme Court. As expressed in Article V, section 15 of the Florida Constitution, the Supreme Court is the ultimate arbiter of attorney discipline. As such, the Supreme Court reviews every Report of Referee from an attorney disciplinary hearing. The Supreme Court has absolute discretion to accept, modify, or reject a Report of Referee. See R. Regulating Fla. Bar 3-7.10. On June 27, 2014, Petitioner filed a Notice with the Supreme Court of her intent to seek review of Judge Jaworski’s Report. On September 26, 2014, Petitioner filed her Initial Brief with the Supreme Court. The Supreme Court declined to allow oral argument. On March 31, 2015, the Supreme Court issued the Suspension Order approving the findings and recommendations of Judge Jaworski. Regarding the discipline to be imposed, however, the Supreme Court elected to increase the length of Petitioner’s suspension to six months “in light of the serious rule violations.” The suspension was effective 30 days from the date of the Suspension Order. The Supreme Court agreed with Judge Jaworski that, prior to applying for reinstatement, Petitioner must undergo a mental health evaluation by a mental health professional approved by Florida Lawyers Assistance, Inc., as well as pay costs to The Florida Bar in the amount of $5,595.45. All Supreme Court Justices concurred with the opinion. See Fla. Bar v. Henry, 168 So. 3d 230 (Fla. 2015). Petitioner asserts that The Florida Bar discriminated against her by applying the Bar Rules differently to black members, as opposed to white members. Specifically, Petitioner, a black woman, was treated differently than a white member of The Florida Bar (Mr. Carnahan) who she accused of violating Bar Rules. Petitioner contends that The Florida Bar (Ms. Stalcup) did not investigate her complaint against the white prosecutor. Conversely, The Florida Bar did investigate the white lawyer and the white judge’s complaints against her. In consequence, Petitioner asserts that The Florida Bar discriminated against her because The Florida Bar “did not discipline a white licensee against whom [Petitioner] filed an ethics complaint but instead disciplined [Petitioner] who is black.” As Petitioner described it, a black lawyer files an ethics complaint against a white lawyer, and the only person punished is the black lawyer. It appeared to Petitioner that the black lawyer was disciplined simply for making a complaint about a white lawyer relating to racial animus. Consequently, Petitioner asserts that The Florida Bar promotes a culture that a lawyer cannot complain of racial discrimination without facing punitive action and being accused of incompetency. Petitioner testified that, as a member of The Florida Bar, she had a responsibility to bring her complaint against Mr. Carnahan. Petitioner explained that a lawyer who becomes aware that a fellow lawyer or a judge has committed an act in violation of the rules of ethical conduct is obligated to report that violation to The Florida Bar. For support, Petitioner cited Rules Regulating the Florida Bar 4-8.3. Regarding her motions against Judge Takac, Petitioner asserts that she exercised her right to disqualify a circuit court judge for perceived prejudice in accordance with Florida law. See § 38.10, Fla. Stat. However, despite writing that “the Court departed from the essential requirements of Justice purely based on perceived racial animus” in her Motions to Disqualify, Petitioner denies that she “expressly or indirectly called Judge Takac a racist.” Petitioner insisted that if The Florida Bar believed that she accused Judge Takac of racial prejudice, it misinterpreted her motivation for filing her motions. Petitioner alleges that she experienced numerous references to her race and her child’s race during The Florida Bar’s investigation. Petitioner also asserts that she suffered verbal censure of a racial nature. Petitioner specifically recounted that a member of the Grievance Committee informed her that during the Grievance Committee’s consideration of her alleged violations, it concluded that she (Petitioner) “played the race card.” This comment established in Petitioner’s mind that The Florida Bar based its decision to prosecute her on her race. Petitioner alleges retaliation because after she complained about racial harassment and discrimination, The Florida Bar “carried out a long campaign of discrimination and retaliation after [she], a black woman, dared to question the ethics of a white male Assistant State Attorney and a white male Judge.” Petitioner maintains that The Florida Bar, by and through its employees and agents, threatened her, harassed and intimidated her, and retaliated against her for raising ethics complaints alleging racial animus and exercising her right to seek an impartial judge. Petitioner asserts that she was placed on trial because of her race. Petitioner expressed that The Florida Bar disciplined her for personal vindication and retribution because she complained of racial discrimination and an unjust criminal justice system. Petitioner testified that The Florida Bar’s discriminatory acts led to the loss of her job. At the time of the Supreme Court’s Suspension Order, Petitioner was employed by a private employer. (Petitioner has never been employed by The Florida Bar.) Petitioner’s employer terminated her shortly after the Supreme Court suspended her license. Furthermore, the Supreme Court’s Suspension Order, as well as the Referee’s Report, were posted online. By doing so, Petitioner alleges that The Florida Bar defamed her character and soiled her reputation.12/ Petitioner asserts a claim of disability discrimination because one of the Supreme Court’s conditions for reinstatement requires her to receive a mental health evaluation. Consequently, the Suspension Order “stigmatized [her] as someone with a mental disability.” Petitioner interprets this condition as the Supreme Court’s declaration that she is mentally unfit. Petitioner denies that she suffers from a mental disability or any other handicap. As of the date of the final hearing, Petitioner has not petitioned the Supreme Court for reinstatement of her license to practice law. Neither has Petitioner submitted to a mental health evaluation or paid costs to The Florida Bar. At the final hearing, Petitioner testified that she has no intention of complying with either requirement. Petitioner expressed that the suspension the Supreme Court imposed was not fair and an “injustice.” She staunchly maintained that she has done nothing wrong. Therefore, she was not going to apologize or show remorse for exercising her constitutional rights. Following the conclusion of the final hearing, Petitioner maintained (as she did throughout the proceedings) that Mr. Carnahan discriminated against her, retaliated against her, and interfered with her constitutional rights; Judge Takac’s Order on her Motions to Disqualify was unlawful, violated Florida statutes and case law, and violated her constitutional rights; and the Supreme Court Suspension Order was a “cursory, conclusory, unelaborated” order that conflicts with the law and Bar Rules. At the final hearing, Petitioner pronounced that she is the victim in this proceeding. Based on the competent substantial evidence in the record, the preponderance of the evidence does not establish that The Florida Bar discriminated against Petitioner based on race or disability. Neither did The Florida Bar retaliate against Petitioner based on her exercise of a protected action. Accordingly, Petitioner failed to meet her burden of proving that The Florida Bar discriminated against her in violation of the FCRA.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order dismissing Petitioner’s petition for lack of jurisdiction due to the Supreme Court’s exclusive constitutional jurisdiction over attorney discipline. Alternatively, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order concluding that Respondent, The Florida Bar, did not commit discrimination or retaliation against Petitioner, and dismissing her Petition for Relief. DONE AND ENTERED this 11th day of August, 2017, in Tallahassee, Leon County, Florida. S J. BRUCE CULPEPPER 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 11th day of August, 2017.
The Issue The issues in these cases are whether Respondent violated sections 489.129(1)(i), 489.129(1)(o), and 489.1425, Florida Statutes (2007 & 2009),1/ and, if so, what discipline should be imposed.
Findings Of Fact At all times material to the administrative complaints, Mr. Organo was licensed as a certified general contractor in the State of Florida, having been issued license number CGC 1512005. At all times material to the administrative complaints, Mr. Organo was the primary qualifying agent for Bennett Marine Contracting and Construction, Inc. (Bennett Marine). On or about September 29, 2007, Jean Walker (Ms. Walker) entered into a contract with Bennett Marine to construct a dock and a tiki hut at 12305 Boat Shell Drive. The contract (the Walker contract) provided that the contractor would make application for a permit from Lee County, Florida. Mr. Organo signed the Walker contract for Bennett Marine. It is undisputed that the Walker contract did not include a written statement explaining Ms. Walker's rights under the Florida Homeowners' Construction Recovery Fund. On October 24, 2007, Bennett Marine applied for a permit to construct the dock. The application was denied October 29, 2007, because the site plan contained the tiki hut. When the tiki hut was removed from the application, the dock permit was approved. Ms. Walker paid Bennett Marine draws on the construction project. The payments were given to Mr. Organo. The payments totaled $9,200. By February 2008, a tiki hut had been constructed on Ms. Walker's property without a permit. Because the tiki hut was built without a permit, and it was in an illegal location, Lee County required that the tiki hut be removed. By April 2008, the tiki hut had been removed, and another tiki hut had been built in its place. Again, no permit was pulled for the tiki hut, and it was placed in an illegal location. Again, Lee County required that the tiki hut be removed. Mr. Organo subcontracted the construction of the tiki hut to Rick Fewell Chickees. Mr. Fewell of Rick Fewell Chickees, a Seminole Indian,2/ applied for a permit to build a tiki hut, but the application was rejected because the plot plan was not to scale, and the tiki hut did not meet the setback requirements from the water. Another tiki hut was built, and, in March 2009, Lee County again cited Ms. Walker for not having a permit for the tiki hut and for not meeting the setback requirements. In 2010, a permit was finally issued for the construction of a tiki hut on Ms. Walker's property. The permit was issued to Ms. Walker. Bennett Marine commenced work on the tiki hut without obtaining a building permit. On January 5, 2010, Bennett Marine entered into a contract with Chris Bevan (Mr. Bevan) to remove an existing dock, uninstall an existing boatlift, construct a dock, construct a tiki hut, and to reinstall the boatlift. The contract (the Bevan contract) required that the contractor obtain a City of Cape Coral building permit. The Bevan contract was signed by Mr. Organo for Bennett Marine. It is undisputed that the Bevan contract did not contain a written statement explaining Mr. Bevan's rights under the Florida Homeowners' Construction Recovery Fund. On March 17, 2010, Bennett Marine showed up on Mr. Bevan's property and commenced work, by knocking down a cantilever dock that was hanging over a seawall, removing old decking from the boatlift, and rough-framing part of the new dock. Bennett Marine worked until approximately March 25, 2010. That was the last that Mr. Bevan heard from Mr. Organo or Bennett Marine. Mr. Organo applied for a building permit for the Bevan contract on April 1, 2010. The permit was approved on April 13, 2010, but it was not issued. On May 14, 2010, the City of Cape Coral placed a stop-work order on the Bevan project. Mr. Bevan applied for an owner-builder permit for the dock construction, and the permit was issued on June 9, 2010. Mr. Bevan completed the dock construction at additional expense.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Mr. Organo violated sections 489.129(1)(i), 489.129(o), and 489.1425; imposing a fine of $250 each for the Walker contract and the Bevan contract for a total of $500, for failure to advise the owners of the recovery fund; imposing a fine of $3,000 and placing Mr. Organo on probation for two years for beginning work without a permit for the Walker contract; and imposing a fine of $1,000 and placing Mr. Organo on probation for one year for beginning work on the Bevan contract without a permit with the one-year probation to run concurrently with the probation imposed for the Walker contract. DONE AND ENTERED this 13th day of April, 2011, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL 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 13th day of April, 2011.
The Issue Whether Respondent, US Growth Investment, Inc., discriminated against Petitioners Jimmy and Gelene Stewart,2 on the basis of race in violation of the Florida Fair Housing Act (“the Act”), chapter 760, part II, Florida Statutes (2019),3 and, if so, the relief to which Petitioners are entitled.
Findings Of Fact Petitioners did not attend the Zoom Conference hearing or provide any direct evidence to support their claim of discrimination. Respondent’s counsel introduced Respondent’s representative. 6 The parties sent email communications to the undersigned’s judicial assistant regarding possible dates for a hearing, but failed to timely file the status report with the requested information. 7 Petitioners requested a 60-day continuance. The length of the actual continuance: 74 days. Further, no attorney entered a Notice of Appearance on behalf of Petitioners. 8 The tenth day after the hearing fell on a weekend; thus, the PROs were to be filed on the next business day, Monday, June 7, 2021.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief filed by Petitioners in its entirety. DONE AND ENTERED this 10th day of June, 2021, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of June, 2021. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 Jimmy Stewart Box 700 7862 West Irlo Bronson Highway Kissimmee, Florida 34747 Richard W. Withers, Esquire Ward & Ketchersid, P.A. 1241 Airport Road, Suite H Destin, Florida 32541 Gelene Stewart Box 700 7862 West Irlo Bronson Highway Kissimmee, Florida 34747 Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020
