Findings Of Fact 11. The factual allegations contained in the Stop- Work Order and Order of Penalty Assessment issued on May 19, 2011, the Amended Order of Penalty Assessment issued on June 7, 2011, and the 3rd Amended Order of Penalty Assessment issued on February 17, 2012, and fully incorporated herein by reference, are hereby adopted as the Department’s Findings of Fact in this case.
Conclusions THIS PROCEEDING came on for final agency action and Jeff Atwater, Chief Financial Officer of the State of Florida, or his designee, having considered the record in this case, including the request for administrative hearing received from WILLIAM KEELE, DBA, WILLIAM MILTON KEELE LLC, A DISSOLVED FLORIDA LIMITED LIABILITY COMPANY AND WILLIAM MILTON KEELE LLC, the Stop- Work Order and Order of Penalty Assessment, the Amended Order of Penalty Assessment, the 3rd Amended Order of Penalty Assessment, and being otherwise fully advised in the premises, hereby finds that: 1. On May 19, 2011, the Department of Financial Services, Division of Workers’ Compensation (hereinafter “Department”) issued a Stop-Work Order and Order of Penalty Assessment in Division of Workers’ Compensation Case No. 11-164-1A to WILLIAM MILTON KEELE LLC, A DISSOLVED FLORIDA LIMITED LIABILITY COMPANY AND WILLIAM MILTON KEELE LLC. The Stop-Work Order and Order of Penalty Assessment included a Notice of Rights wherein WILLIAM MILTON KEELE LLC, A DISSOLVED FLORIDA LIMITED LIABILITY COMPANY AND WILLIAM MILTON KEELE LLC was advised that any request for an administrative proceeding to challenge or contest the Stop-Work Order and Order of Penalty Assessment must be filed within twenty-one (21) days of receipt of the Stop- Work Order and Order of Penalty Assessment in accordance with Sections 120.569 and 120.57, Florida Statutes, and must conform to Rule 28-106.2015, Florida Administrative Code. 2. On May 19, 2011, the Stop-Work Order and Order of Penalty Assessment was served by personal service on WILLIAM MILTON KEELE LLC, A DISSOLVED FLORIDA LIMITED LIABILITY COMPANY AND WILLIAM MILTON KEELE LLC. A copy of the Stop-Work Order and Order of Penalty Assessment is attached hereto as “Exhibit A” and incorporated herein by reference. 3. On June 2, 2011, the Department received an Election of Proceeding requesting administrative review (“Petition”) from WILLIAM KEELE, DBA, WILLIAM MILTON KEELE LLC, A DISSOLVED FLORIDA LIMITED LIABILITY COMPANY AND WILLIAM MILTON KEELE LLC. A copy of the Petition is attached hereto as “Exhibit B” and incorporated herein by reference. 4. On June 7, 2011, the Department issued an Amended Order of Penalty Assessment to WILLIAM KEELE, DBA, WILLIAM MILTON KEELE LLC, A DISSOLVED FLORIDA LIMITED LIABILITY COMPANY AND WILLIAM MILTON KEELE LLC. The Amended Order of Penalty Assessment amended the legal name of the employer to WILLIAM KEELE, DBA, WILLIAM MILTON KEELE LLC, A DISSOLVED FLORIDA LIMITED LIABILITY COMPANY AND WILLIAM MILTON KEELE LLC. The Amended Order of Penalty Assessment assessed a total penalty of $43,256.29 against WILLIAM KEELE, DBA, WILLIAM MILTON KEELE LLC, A DISSOLVED FLORIDA LIMITED LIABILITY COMPANY AND WILLIAM MILTON KEELE LLC. The Amended Order of Penalty Assessment includéd a Notice of Rights wherein WILLIAM KEELE, DBA, WILLIAM MILTON KEELE LLC, A DISSOLVED FLORIDA LIMITED LIABILITY COMPANY AND WILLIAM MILTON KEELE LLC was advised that any request for an administrative proceeding to challenge or contest the Amended Order of Penalty Assessment must be filed within twenty-one (21) days of receipt of the Amended Order of Penalty Assessment in accordance with Sections 120.569 and 120.57, Florida Statutes, and must conform to Rule 28- 106.2015, Florida Administrative Code. 5. On June 23, 2011, the Amended Order of Penalty Assessment was served by certified mail on WILLIAM KEELE, DBA, WILLIAM MILTON KEELE LLC, A DISSOLVED FLORIDA LIMITED LIABILITY COMPANY AND WILLIAM MILTON KEELE LLC. A copy of the Amended Order of Penalty Assessment is attached hereto as “Exhibit C” and incorporated herein by reference. 6. On July 13, 2011, the Department received an amended Election of Proceeding form (“Amended Petition”) from WILLIAM KEELE, DBA, WILLIAM MILTON KEELE LLC, A DISSOLVED FLORIDA LIMITED LIABILITY COMPANY AND WILLIAM MILTON KEELE LLC, and the matter was referred to the Division of Administrative Hearings and assigned DOAH Case No. 11-6178. A copy of the Amended Petition is attached hereto as “Exhibit D” and incorporated herein by reference. 7. Following issuance of subsequent Amended Orders of Penalty Assessment, on February 17, 2012, the Department issued a 3rd Amended Order of Penalty Assessment to WILLIAM KEELE, DBA, WILLIAM MILTON KEELE LLC, A DISSOLVED FLORIDA LIMITED LIABILITY COMPANY AND WILLIAM MILTON KEELE LLC. The 3rd Amended Order of Penalty Assessment assessed a total penalty of $4,708.85 against WILLIAM KEELE, DBA, WILLIAM MILTON KEELE LLC, A DISSOLVED FLORIDA LIMITED LIABILITY COMPANY AND WILLIAM MILTON KEELE LLC. The 3rd Amended Order of Penalty Assessment included a Notice of Rights wherein WILLIAM KEELE, DBA, WILLIAM MILTON KEELE LLC, A DISSOLVED FLORIDA LIMITED LIABILITY COMPANY AND WILLIAM MILTON KEELE LLC was advised that any request for an administrative proceeding to challenge or contest the 3rd Amended Order of Penalty Assessment must conform to Rule 28-106.2015, Florida Administrative Code. 8. On April 5, 2012, the Department filed a Motion to Amend Order of Penalty Assessment with the Division of Administrative Hearings in DOAH Case No. 11-6178. A copy of the Department’s Motion to Amend Order of Penalty Assessment together with the 3rd Amended Order of Penalty Assessment is attached hereto as “Exhibit E” and incorporated herein by reference. 9. On April 18, 2012, the Administrative Law Judge issued an Order Granting Motion to Amend Penalty Assessment in DOAH Case No. 11-6178. The Order Granting Motion to Amend Penalty Assessment is attached hereto as “Exhibit F” and incorporated herein by reference. 10. On April 30, 2012, the Administrative Law Judge entered an Order Closing File and Relinquishing Jurisdiction due to Respondent’s failure to participate in discovery and appear at the scheduled formal hearing in DOAH Case No. 11-6178. A copy of the Order Closing File and Relinquishing Jurisdiction is attached hereto as “Exhibit G” and incorporated herein by reference.
Conclusions Agency Clerk's Office This matter comes before the Agency for Persons with Disabilities (the Agency) following a hearing at the Division of Administrative Hearings and the issuance of a Recommended Order. A copy of the Recommended Order is attached to this Final Order, On March 30, 2012, the Agency sent Respondent a Notice indicating that it was denying its application for licensure. Respondent timely requested an administrative hearing and the matter was referred to the Division of Administrative Hearings where it was assigned to an Administrative Law Judge (ALJ). On May 15, 2012, after reaching a settlement agreement, the parties filed a Joint Motion to Dismiss with Prejudice and on May 15, 2012, the ALJ issued an Order Closing File and Relinquishing Jurisdiction. Based on the foregoing and being otherwise fully advised in the premises, it is hereby ORDERED that Respondent's request for an administrative hearing to contest the Agency's Notice of March 30, 2012, is DISMISSED with prejudice. APD-12-1978-FO | 4 Filed July 18, 2012 3:04 PM Division of Administrative Hearings DONE AND ORDERED, this _/ S date of La ly , 2012, in Tallahassee, Leon County, Florida. a ichael P. Hansen, Director Agency for Persons with Disabilities RIGHT TO APPEAL A party who is adversely affected by this final order is entitled to judicial review. To initiate judicial review, the party seeking it must file one copy of a “Notice of Appeal” with the Agency Clerk. The party seeking judicial review must also file another copy of the “Notice of Appeal,” accompanied by the filing fee required by law, with the First District Court of Appeal in Tallahassee, Florida, or with the District Court of Appeal in the district where the party resides. Review proceedings shall be conducted in accordance with Florida Rules of Appellate Procedure. The Notices must be filed within thirty (30) days of the rendition of this final order.’ Information about some sources of possible legal assistance may be found at: http://apd.myflorida.com/customers/legal/resource-listing.htm. ‘The date of the “rendition” of this Order is the date that is stamped on its first page. The Notices of Appeal must be received on or before the thirtieth day after that date. APD-12-1978-FO | 2 Copies furnished to: Martez Whipple APD Area 15 Office Miracles House, Inc. address of record) Laurel Hopper, Esq. Claudia Llado, Clerk DCF, Legal Counsel Division of Administrative Hearings CERTIFICATE OF SERVICE | HEREBY CERTIFY that a copy of this Final Order was provided to the above- named individuals at the listed addresses, by U.S. Mail or electronic mail, this day of | h y , 2012. Percy A ihe Jr., Agency Clerk Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Fl 32399-0950 APD-12-1978-FO | 3
The Issue Whether Respondent properly secured the payment of workers' compensation insurance coverage, as delineated by Subsection 440.107(2), Florida Statutes (2005),1 and, if not, what penalty for such failure is warranted. Whether Respondent conducted business operations in violation of a stop-work order, and, if so, what is the correct penalty for such violation, pursuant to Subsection 440.107(7)(c), Florida Statutes.
Findings Of Fact Petitioner is the state agency responsible for enforcing the statutory requirement that employers secure the payment of workers' compensation for the benefit of their employees. § 440.107, Fla. Stat. Respondent is a corporation domiciled in Florida and engaged in the business of roofing, which is a construction activity. On December 21, 2004, Petitioner's investigator, Hector Vega, visited 951 North Park Avenue, Apopka, Florida, the site of a church, on a referral from his supervisor. Five men were observed engaged in roofing work. William Sims, Respondent's president, agreed to meet at the worksite. Sims, upon inquiry, informed Petitioner's investigator that he had not secured the payment of workers' compensation for the workers. However, Sims testified that for Respondent to re-roof the Apopka Church of God, Sims had to calculate the amount of roofing shingles needed, which proved to be difficult due to the architecture of the church's specialty roof. The amount of shingles needed for the job was overestimated in order to avoid running out of shingles during the job. As of December 21, 2004, the Apopka Church of God roofing job was done, so Respondent sold the extra, unused shingles to D&L Trucking, owned and operated by David Lorenzo, who was paying the five men found working on the roof on December 21, 2004. A check of Petitioner's Compliance and Coverage Automated System ("CCAS") database, which contains information on all workers' compensation insurance policy information from the carrier to an insured, determined that Respondent did not have a State of Florida workers' compensation insurance policy to provide workers' compensation coverage of the five workers. Chapter 440, Florida Statutes, allows an individual to apply for an election to be exempt from workers' compensation benefits. Only the named individual on the application is exempt from carrying workers' compensation insurance coverage. Petitioner, which maintains a database of all workers' compensation exemptions in the State of Florida, found a current, valid exemption only for William R. Sims in December 2004. On December 21, 2004, Petitioner issued and served on Respondent a stop-work order for failing to obtain coverage that meets the requirements of Chapter 440, Florida Statutes, and the Insurance Code. Also at that time, a Request for Production of Business Records was issued to Respondent. Employers employing workers on job sites in Florida are required to keep business records that enable Petitioner to determine whether the employer is in compliance with the workers' compensation law. At the time the Stop Work Order was issued, and pursuant to Subsection 440.107(5), Florida Statutes, Petitioner had in effect Florida Administrative Code Rule 69L-6.015, which requires employers to maintain certain business records. Respondent failed to comply with the Request for Production. Florida law requires that an employer who has employees engaged in work in Florida must obtain a Florida workers' compensation policy or endorsement for such employees which utilizes Florida class codes, rates, rules, and manuals that are in compliance with the provisions of Chapter 440, Florida Statutes, as well as the Florida Insurance Code. See § 440.10(1)(g), Fla. Stat. Florida Administrative Code Rule 69L-6.019(2) requires that in order for an employer to comply with Subsections 440.10(1)(g) and 440.38(7), Florida Statutes, any policy or endorsement used by an employer to prove the fact of workers' compensation coverage for employees engaged in Florida work must be issued by an insurer that holds a valid certificate of authority in the State of Florida. 12. Subsections 440.107(3) and 440.107(7)(a), Florida Statutes, authorize Petitioner to issue stop-work orders to employers unable to provide proof of workers' compensation coverage. Failure to provide such proof is deemed "an immediate serious danger to public health, safety, or welfare " § 440.107(7)(a), Fla. Stat. Following the follow-up efforts by Sims that extended until February 2005, Respondent believed that the Stop Work Order had been lifted by February 2005. Later in 2005, after Sims understood the Stop Work Order to be lifted, he pulled some permits from Orange County. The permits were called "a permit to work" and this supported, in Sims' mind, the conclusion that the Stop Work Order had been lifted. On November 1, 2005, Petitioner received a referral to investigate Respondent. Petitioner's investigator visited Respondent's worksite on November 1, 2005, and observed six men engaged in roofing work. Sims, upon inquiry, informed the investigator that he secured the payment of workers' compensation coverage for the workers through Emerald Staffing Services, an employee leasing company. Chapter 468, Part XI, Florida Statutes, governs employee leasing companies. Respondent contracted with Emerald Staffing for its services in October 2005 and became the client company of Emerald Staffing. Respondent paid invoices for its employees, thus indicating that it was engaged in business activities in October 2005 and November 2005. On November 2, 2005, Petitioner issued a Request for Production of Business Records to Respondent. The request was for business records from December 21, 2004, through November 2, 2005. Respondent remained under the belief that the Stop Work Order had been lifted until Sims was approached by Petitioner's inspector, Robert Cerrone, on November 4 or 5, 2005, and was told by Cerrone that Respondent was still under the Stop Work Order. Respondent thereafter stopped working at Cerrone's request. Although Respondent asserts it did not know the Stop Work Order was in place between December 21, 2004, and December 19, 2005, and therefore Respondent believed it appropriate to continue working during that time, Sims testified there was a health problem in his immediate family that slowed down his business from working in 2005. His wife was diagnosed with cancer, and this made him very distracted from work. Although Sims pulled a few permits in 2005, he reviewed all those permits in his testimony, and it became clear to him that all those permits were for work previously done during the hectic clean-up from the hurricanes. This testimony is not credible. Respondent acknowledges the issuance and receipt of the Stop Work Order, but alleges in its petition that the Stop Work Order should never have been issued because the men at the worksite were not performing roofing work. On November 10, 2005, however, Sims provided a statement to Petitioner's investigator wherein he admitted to having employed four individuals on December 21, 2004, without securing the payment of workers' compensation for any of them. However, Respondent admitted, through its president, by letter, dated November 10, 2005, and signed in the presence of Cerrone that four of the persons observed on the Apopka Church of God work site on December 21, 2004, were Petitioner's employees and they were not covered by workers' compensation insurance. Sims' testimony that he was forced to sign the letter or that he was tricked or mislead into signing it, is not credible. From the evidence presented, the four identified men found on the roof of the Apopka Church of God on December 21, 2004, were the employees of Respondent, and Respondent had not complied with the requirements of the workers' compensation law. Therefore, the Stop Work Order was not erroneously issued against Respondent on December 21, 2004. After learning from Cerrone that the Stop Work Order was in place, Respondent worked with Petitioner to come into compliance and agreed to the Order of Conditional Release from Stop-Work Order that Cerrone signed on December 19, 2005, under it, Respondent has been making payments to Petitioner to satisfy the penalty Petitioner has levied against Respondent. On November 16, 2005, Petitioner issued a Request for Production of Business Records for Penalty Assessment, in which Petitioner requested business records from Respondent for the period of December 21, 2001, through December 21, 2004. Respondent complied with the records requests and provided Petitioner with tax ledgers and documents for the years 2002 through 2004, along with permits. Subsection 440.107(7)(c), Florida Statutes, provides: "The department shall assess a penalty of $1,000 per day against an employer for each day that the employer conducts business operations that are in violation of a stop-work order." Documentation specifically showed Respondent was engaged in business activities after December 21, 2004. The Orange County building department records indicate that a number of roofing permits that had been pulled by Respondent after December 21, 2004, the date the Stop Work Order was issued. Sims also stated that he was aware of the need to pull permits as part of his job as a roofer in Orange County, Florida. He alluded at the hearing that Orange County should have informed him of the existing Stop Work Order. Darlene Elaine Talley, contractor certification coordinator with the Orange County building department, testified that Respondent, through Sims, pulled a number of permits after December 21, 2004. Some of the permits were pulled for work performed prior to December 21, 2004. Although Respondent alleges that much of the actual roofing work was done prior to pulling permits and, thus, prior to the issuance of the Stop Work Order, the act of pulling a permit is considered "conducting business operations," which is prohibited by Subsection 440.107(7)(c), Florida Statutes, when a stop-work order is in effect. A-1 Construction ("A-1"), a Georgia company, performed roofing services for Respondent in Orlando, Florida, from September 2004 to November 2004, and was paid remuneration for those services. Although Respondent sought to prove that A-1 had Florida workers' compensation coverage through its Georgia workers' compensation and should not be included in the penalty calculation, the credible evidence showed that Georgia workers' compensation coverage, with Key Risk, did not extend to Florida, nor did A-1 purchase extra Florida coverage. Subsection 440.10(1)(c), Florida Statutes, states, "A contractor shall require a subcontractor to provide evidence of workers' compensation insurance." Respondent did not request evidence of workers' compensation coverage from A-1, and Respondent was not aware whether A-1's Florida workers' compensation coverage was purchased or not. Under the Workers' Compensation Law in effect during the penalty period, a subcontractor becomes an "employee" if the subcontractor has not validly elected an exemption as permitted by Chapter 440, Florida Statutes, or has not otherwise secured the payment of compensation coverage as a subcontractor. § 440.02(15)(c)2., Fla. Stat. The entities listed on the Amended Order's penalty worksheet, including the employees of A-1, were Respondent's employees during the relevant period, all of whom Respondent paid, and all of whom had neither valid workers' compensation exemptions nor workers' compensation coverage. To determine the number of days that Respondent was in violation of the Stop Work Order, the payroll records for Respondent were obtained from Emerald Staffing, and the permits pulled by Respondent were gathered. The investigator further discussed the matter with Respondent to determine the number of days Respondent worked in violation of the Stop Work Order. It is determined that Respondent worked for 10 days in violation of the Stop Work Order. Utilizing the records provided, in evidence, the penalty is calculated for Respondent by assigning a class code to the type of work utilizing the SCOPES Manual, multiplying the class code's assigned approved manual rate with the wages paid to the employee per one hundred dollars, and then multiplying all by 1.5. The penalty for violation of the Stop Work Order is $1,000.00 per day for each day of violation, which for 10 days amounts to $10,000.00. The Amended Order, which assessed a penalty of $49,413.18, was personally served on Respondent on December 19, 2005. Sims was not personally calculated into the penalty because he had a current valid workers' compensation exemption. On December 19, 2005, Respondent entered into a Payment Agreement Schedule for Periodic Payment of Penalty and was issued an Order of Conditional Release from Stop-Work Order by Petitioner. Respondent made a down payment of 10 percent of the assessed penalty; provided proof of compliance with Chapter 440, Florida Statutes, by securing the payment of workers' compensation through Emerald Staffing; and agreed to pay the remaining penalty in 60 equal monthly payment installments.
Recommendation Based on the Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order that adopts the Stop Work Order and Order of Penalty Assessment and the Amended Order of Penalty Assessment; and that assesses a penalty of $49,413.18. DONE AND ENTERED this 30th day of November, 2006, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE 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 30th of November, 2006.
The Issue The issue for determination is whether Petitioner's claim is barred by Section 760.11(7), Florida Statutes (1999), because Petitioner filed a request for hearing more than 35 days after the time prescribed in Section 760.11(3) for a determination of reasonable cause by the Florida Commission on Human Relations (the "Commission"). (All statutory references are to Florida Statutes (1999) unless otherwise stated).
Findings Of Fact Respondent employed Petitioner until June 15, 1995. Petitioner filed a Charge of Discrimination with the Commission on July 10, 1995. The Charge of Discrimination alleges that Petitioner was forced to leave her position of employment because of Petitioner's religion. The Charge of Discrimination alleges, in relevant part, that Respondent terminated Petitioner's employment because she is Christian and "always trying to convert people." Time Limits The Charge of Discrimination was timely filed pursuant to Section 760.11(1). The filing date of July 10, 1995, fell within 365 days of June 15, 1995, which is the date of the alleged discrimination. Section 760.11(3) authorizes the Commission to issue a determination of reasonable cause within 180 days of July 10, 1995; the date Petitioner filed the Charge of Discrimination. Counting July 11, 1995, as the first day of the 180-day time limit, Section 760.11(3) authorized the Commission to determine reasonable cause no later than January 6, 1996. The Commission issued a Notice of Determination: No Cause on January 31, 2000. Section 760.11(7) required Petitioner to file a request for hearing within 35 days of January 6, 1996. Counting January 7, 1996, as the first day of the 35-day period, Section 760.11(7) required Petitioner to file a request for hearing no later than February 10, 1996. Petitioner did not timely file a request for hearing. Petitioner first requested a hearing in the Petition for Relief filed on February 18, 2000. Petitioner filed her request for hearing approximately 1,468 days late and 1,503 days after the expiration of the 180-day time limit prescribed in Section 760.11(3). Petitioner did not respond to the Order to Show Cause to explain why she filed the request for hearing late. Section 760.11(7) statutorily bars Petitioner's claim. Section 760.11(7) expressly provides, in relevant part: If the aggrieved person does not request an administrative hearing within the 35 days, the claim will be barred.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a final order dismissing this proceeding as barred by Section 760.11(7). DONE AND ENTERED this 6th day of June, 2000, in Tallahassee, Leon County, Florida. 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 6th day of June, 2000. COPIES FURNISHED: Sharon Moultry, Clerk Florida Commission on Human Relations 325 John Knox Road, Building F Tallahassee, Florida 32303-4149 Dana A. Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road, Building F Tallahassee, Florida 32303-4149 Maria J. Green 1800 Biscayne Drive, Apartment 4 Winter Park, Florida 32789 Stephen H. Price, Esquire Cramer and Price, P.A. 1420 Edgewater Drive Olando, Florida 32804 Don Reynolds, Director American Home Companions, Inc. Post Office Box 547062 Orlando, Florida 32854
The Issue Whether Respondent terminated Petitioner from her employment based on perceived handicap discrimination.
Findings Of Fact Petitioner was hired by Respondent on March 5, 1991, to work as a server at Respondent's restaurant, Bon Appetit. Shortly thereafter, on or about April 8, 1991, Petitioner was promoted to restaurant manager. During her tenure as restaurant manager, Petitioner was counselled about her appearance and personal hygiene. Additionally, Petitioner had problems with Respondent's performance including balancing the cash and credit card receipts collected during her shifts. Respondent required its managers to notify Respondent in advance of any absence due to a medical condition where possible. In all cases; however, managers were required to communicate with Respondent concerning their absence so that Respondent could schedule and plan for a manager's absence to avoid any disruption in its business and the scheduling of other employees. During her employment as restaurant manager, Petitioner was diagnosed as having "hammer toes". Petitioner was out of work for three weeks to have this condition surgically corrected. This absence was approved in advance by Respondent and Petitioner received full compensation for that medical leave. Following the scheduled three week absence for the surgery, there was an additional two to three week period during which Petitioner reported for work late or would leave early. Respondent considered those late arrivals and early departures to be unexcused absences. Following foot surgery, Petitioner returned to her position as manager with the same pay. Subsequently, during May 1992, Petitioner was out of work for surgery to have an ovarian cyst removed. This absence was approved by Respondent and Petitioner was out of work for five days. During this period of medical leave, Petitioner received her pay and returned to work following surgery. Following the cyst surgery, Petitioner complained of lower back pain which her gynecologist attributed to swelling from the cyst surgery. On May 30, 1992, Petitioner went to the emergency room at Morton Plant Hospital in Tampa suffering from lower back pain. Petitioner contacted restaurant manager, Leo Enciso, and told him of her visit to the hospital and "not to count on her reporting for work that day". Petitioner also informed Enciso that she would call as soon as she had been examined to give an update on her status. Subsequent to her initial phone call to Enciso on May 30, 1992, Petitioner did not speak with Enciso nor did he receive any messages from Petitioner concerning her status from May 30, 1992 to June 8, 1992. Following her treatment in the emergency room at Morton Plant, Petitioner sought treatment on that same date, May 30, 1992 from chiropractor Dr. Lynn Colucci. At that time, Petitioner knew she would be out of work until at least one more day. Petitioner did not communicate that information to Respondent or any of its management personnel. Petitioner's next consultation with her chiropractor to evaluate her condition was June 1, 1992. Following that session, Petitioner was advised that she would be out of work for at least two more days. Petitioner did not communicate this information to Respondent or any of its management staff. Petitioner again met with her chiropractor on June 3, 1992 and was told that she would be unable to return to work until June 8, 1992. Petitioner failed to communicate this information to any of Respondent's management or staff. Kailie Borzoni, Peter Kreuziger and Sharon Verhage, all managerial employees of Respondent, made several unsuccessful attempts to contact Petitioner by phone. Verhage left a message on Petitioner's answering machine but Petitioner did not return her phone call. Petitioner was released to return to work by her treating chiropractor on June 9, 1992. There were no restrictions placed on her when she was released for work and her physician related that Petitioner's back problem had "resolved itself". Petitioner was discharged by Respondent on June 9, 1992, when she reported for work. Peter Krueziger made an independent decision to discharge Petitioner based on what he considered to be poor performance, poor appearance, excessive absences and failing to truthfully advise of her work status and whereabouts from May 30, 1992 to June 8, 1992. When Petitioner was initially employed as a restaurant manager, Respondent's manager, Krueziger, noticed that Petitioner's dress apparel did not meet up to the standards of a "four star" restaurant that Respondent was operating. As a result, Respondent spoke with Petitioner about his expectations with regard to her dress and advised the controller to advance Petitioner some funds to purchase a wardrobe. Respondent sent one of its managerial employees to accompany Petitioner on a shopping trip to upgrade her wardrobe to reflect what Respondent considered to be appropriate dress for a restaurant manager. Respondent's managerial staff noted and complained to Petitioner on several occasions after she was given a new wardrobe, that her attire did not measure up to the standards that they expected of a manager. Negative comments were made about Respondent's stained clothing, her fingernails and her unkempt hair. Petitioner conceded that she had an exceptionally hard time balancing her cash and credit card accounts at the end of each shift. While some managers experience difficulty at the outset of their employment because an antiquated accounting system was being used, they soon became proficient in closing out the cash and credit card accounts following their shift. Respondent discharged Petitioner based on her failure to properly notify it of her absence from work during the period May 30, 1992 through June 8, 1992. Petitioner's medical condition, real or perceived, played no part in Respondent's decision to terminate her.
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 Petitioner's petition for relief as she failed to establish that she was terminated from employment because of a perceived handicap. DONE AND ENTERED this 6th day of December, 1994, in Tallahassee, Florida. JAMES E. BRADWELL 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 6th day of December, 1994. APPENDIX Rulings on Petitioner's Proposed Findings of Fact Paragraph 3 adopted as modified, paragraph 2 recommended order. Paragraph 4 rejected, contrary to the greater weight of evidence, paragraph 5 recommended order. Paragraph 5, adopted as modified, paragraph 4 recommended order. Paragraph 7, adopted as modified, paragraphs 9 and 10 recommended order. Paragraph 8 rejected, irrelevant. Paragraphs 9 and 10 rejected, contrary to the greater weight of evidence, paragraph 15 recommended order. Paragraphs 11-16 rejected, contrary to the greater weight of evidence. Paragraph 17 rejected, irrelevant and unnecessary. Paragraphs 18 and 19 rejected, conclusionary. COPIES FURNISHED: C. A. Sullivan, Esquire 311 S. Missouri Avenue Clearwater, FL 34616 Charles A. Powell, IV, Esquire Peter W. Zinober, Esquire Zinober and McCrea, P.A. 201 E. Kennedy Blvd., Ste. 1750 Tampa, FL 33602 Sharon Moultry, Clerk Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, FL 32399-1570 Dana Baird, General Counsel Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, FL 32399-1570
The Issue The ultimate issues in this case are whether the Respondent has violated Section 458.331(1)(B), Florida Statutes, and the appropriate penalty to be assessed for said violation pursuant to Rule 21M-20.001, Florida Administrative Code.
Findings Of Fact The Department of Professional Regulation is the state agency responsible for regulating the licensure of physicians and the practice of medicine pursuant to Section 20.30, Florida Statutes, and Chapter 458, Florida Statutes. Vincent John Rodriguez, M.D., the Respondent, is and was at all times material to this case a licensed physician in the state of Florida holding licensing no. ME0053547. The Respondent was also licensed to practice medicine in Colorado on August 7, 1987. See Petitioner's Exhibit 1, page 3. It is uncontroverted that the Respondent has had a long history of abusing various substances. The Respondent has on more than one occasion sought professional assistance in rehabilitation for his addiction. On February 6, 1990, the Board of Medicine of the State of Florida served an emergency suspension order on the Respondent. This emergency suspension order was followed up by an administration complaint (DPR No. 89- 100890) on March 1, 1990, charging the Respondent with failure to comply with the conditions of a drug treatment program resulting in his inability to practice medicine with skill and safety by reason of use of drugs, especially cocaine; and prescribing, dispensing or administering cocaine, a schedule II controlled substance contrary to Section 458.331(1)(s) and (r), Florida Statutes. See Petitioner's Exhibit 4. The original administrative complaint in DPR Case No. 89-100890 alleged the Respondent had been arrested for the attempted purchase of 1/8 ounce of cocaine in Tallahassee, Florida, contrary to Section 458.331(1)(r), Florida Statutes. Subsequently, an amended administrative complaint was filed by the Board of Medicine of the State of Florida which dropped the factual allegations of purchasing 1/8 of an ounce of cocaine in Tallahassee, Florida. See the amended administrative complaint to DPR Case No. 89-100890 dated October 25, 1990 in Petitioner's Exhibit 4. On February 19, 1991, the Respondent entered into a stipulation with the Department of Professional Regulation of the State of Florida to settle DPR Case No. 89-10080 and to submit the stipulation to the Board of Medicine of the State of Florida. The Respondent and his counsel attended a meeting of the Board of Medicine of the State of Florida on April 13, 1991, in which the proposed stipulation was presented to the Board. At that meeting, the Respondent revealed and discussed his arrest in Tallahassee for attempting to purchase 1/8 of an ounce of cocaine and his arrest for possessing a concealed weapon in Tallahassee, Florida which occurred during the same period of time as the Respondent's arrest for attempting to purchase the cocaine. These arrests and the circumstances surrounding them were presented to the Board and were discussed and in their deliberations on whether the proposed stipulation settling DPR Case No. 89-10080 should be accepted. The Respondent did not discuss with the Board his arrest in Texas for terrorist threats, a charge which was subsequently dismissed. From the Florida Board's deliberations, it is clear that they did not feel that the Respondent could practice medicine safely and that approval of the stipulation would halt his practice in Florida immediately. The Florida Medical Board accepted the stipulation settling DPR Case No. 89-100890 which alleged the Respondent could not practice with skill and safety by reason of his use of drugs, and suspended the Respondent's license until he demonstrated he was current in his medical knowledge and possessed the requisite skills to safely resume practice. By Order dated April 4, 1990, the Board of Medical Examiners of the State of Colorado summarily adjudicated the Respondent and suspended his license to practice medicine in the State of Colorado for violating 12-36-117(1)(s), C.R.S. A hearing on the Board's complaint was held on November 7 and 8, 1990. Although the Respondent received notice, he did not appear and was not represented at those proceedings. A copy of the Colorado administrative complaint was not introduced. A copy of the order entered by the Colorado Administrative Law Judge indicates that the charges against the Respondent were limited to 1) Respondent's alleged violation of Section 12-36-117(1)(f), C.R.S. (1985), by pleading nolo contendere to carrying a concealed firearm in contravention of Florida Statutes, and 2) the penalty to be assessed for violation of the aforestated statute and the summary judgment finding the Respondent guilty of 12-36-117(1)(s), C.R.S. See Page 1 of Preliminary Matters, Petitioner's Exhibit 4. The Respondent's arrest in Texas relating to purchasing controlled substances with a fraudulent prescription and his being charged with terrorists threats was dismissed by the Texas authorities; however, the Colorado Administrative Law Judge determined that consideration of the evidence of the arrests and acts of the Respondent in Texas was unnecessary because her recommendation was not affected by the Texas incident. The Colorado Administrative Law Judge discussed within her order the allegations that the Respondent was habitually intemperate. The Colorado Board had initially charged the Respondent with this violation, and had subsequently dismissed that charge only to request that the Administrative Law Judge find that the Respondent was habitually intemperate at the conclusion of the hearing. The Administrative Law Judge found the Board's request to discipline the Respondent on this charge "somewhat troublesome." The Administrative Law Judge concluded that she did not need to reach a legal conclusion regarding "habitual intemperance" because the evidence regarding alcohol use was sufficient to determine an appropriate discipline without categorizing the Respondent's use of alcohol in terms of habitual intemperance. Concerning the Respondent's plea of nolo contendere to the charge of carrying a concealed weapon in Florida, the State of Colorado specifically alleged that the Respondent engaged in unprofessional conduct by pleading nolo contendere to the charge. The Colorado Administrative Law Judge's discussion of the Colorado law reveals that the Colorado Supreme Court has ruled that a felony conviction alone is insufficient to warrant the denial or revocation of a license. Colorado requires that the circumstances be considered to determine whether the acts of the accused constitute unprofessional conduct. Discussing the circumstances, the Colorado Administrative Law Judge concluded that the Respondent had engaged in unprofessional conduct by pleading nolo contendere to the felony of carrying a concealed weapon. Based on the foregoing and her prior judgment on his emergency suspension that the Respondent had engaged in unprofessional conduct by excessive use of habit forming drugs, the Administrative Law Judge recommended to the Colorado Board that it revoke the Respondent's license. Petitioner's Exhibit 3, the final board order of the Colorado Board, reflects that the Colorado Board of Medicine adopted without change the findings of fact, conclusions of law and recommendation of the Administrative Law Judge. After the Colorado Board revoked the Respondent's license to practice in the State of Colorado, the Board of Medicine with the State of Florida brought this case to revoke the Respondent's Florida license on the basis that the Colorado Board had revoked or limited the Respondent's medical practice contrary to Section 458.331(1)(b), Florida Statutes.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED: That the Florida Board of Medicine take no action on the instant Administrative Complaint and maintain its suspension of the Respondent pursuant to the stipulated settlement of DPR Case No. 89-01180. DONE and ENTERED this 2nd day of April, 1993, in Tallahassee, Florida. STEPHEN F. DEAN 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 2nd day of April, 1993. APPENDIX A Both the Respondent and the Petitioner submitted proposed findings which were read and considered. The following states which of those findings were adopted, and which were rejected and why: Petitioner's Proposed Findings: Recommended Order Paragraphs 1-5 Paragraphs 1-3,5. Paragraphs 6a-6m Irrelevant as stated. Summarized in Paragraph 12-18. Unnumbered Paragraphs Treated as argument. Paragraph 7 et seq. unnumbered Paragraphs 5-11. Respondent's Proposed Findings: Recommended Order Paragraphs 1-7 Paragraphs 1-3,5-7 Paragraphs 8-12 Paragraphs 12-18. Paragraph 13 Irrelevant. Paragraph 14-20 Paragraph 7-11. COPIES FURNISHED: Barbara Whalin Makant, Esquire Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Dean R. LeBoeuf, Esquire Brooks & LeBoeuf, P. A. 863 East Park Avenue Tallahassee, FL 32301 Jack McRay, Esquire Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Dorothy Faircloth, Executive Director Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792
Findings Of Fact We find the Administrative Law Judge’s findings of fact to be supported by competent substantial evidence. We adopt the Administrative Law Judge’s findings of fact. Conclusions of Law We find the Administrative Law Judge’s application of the law to the facts to result in a correct disposition of the matter. We adopt the Administrative Law Judge’s conclusions of law. Exceptions Petitioner filed exceptions to the Administrative Law Judge’s Recommended Order in a document entitled, “My statement on the Recommended Order by Judge Robert S. Cohen,” along with some attachments. Petitioner’s exceptions take issue with facts found, and not found, by the Administrative Law Judge, and with the inferences drawn from the evidence presented at Recommended Order, 13, { 15, 20, and at various places in the Recommended Order in which the Administrative Law Judge makes reference to Respondent’s efforts to provide accommodation and find Petitioner a position. The Commission has stated, “It is well settled that it is the Administrative Law Judge’ s function ‘to consider all of the evidence presented and reach ultimate conclusions of fact based on competent substantial evidence by resolving conflicts, judging the credibility of witnesses and drawing permissible inferences therefrom. If the evidence presented supports two inconsistent findings, it is the Administrative Law Judge’s role to decide between them.’ Beckton v. Department of Children and Family Services, 21 F.ALR. 1735, at 1736 (FCHR 1998), citing Maggio v. Martin Marietta Aerospace, 9 F.ALR 2168, at 2171 (FCHR 1986).” Barr v. Columbia Ocala Regional Medical Center, 22 F.A.L.R. 1729, at 1730 (FCHR 1999). Further, there is no indication on Petitioner’s exception document that it was served on Respondent by Petitioner as is required by Fla. Admin. Code R. 28-106.110. Petitioner’s exceptions are rejected. Dismissal The Petition for Relief and Complaint of Discrimination are DISMISSED with prejudice. The parties have the right to seek judicial review of this Order. The Commission and the appropriate District Court of Appeal must receive notice of appeal within 30 days of the date this Order is filed with the Clerk of the Commission. Explanation of the right FCHR Order No. 05-039 Page 3 to appeal is found in Section 120.68, Florida Statutes, and in the Florida Rules of Appellate Procedure 9.110. DONE AND ORDERED this St day of [UW FOR THE FLORIDA COMMISSION ON HU Filed this a day olan eh 2005, in Tallahassee, Florida. Violet Crawford, Clerk 4 Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, FL 32301 (850) 488-7082 Copies furnished to: Eulalio Centeno 3275 South John Young Parkway, Suite 219 Kissimmee, FL 34746 Eulalio Centeno 794 Royal Palm Drive Orlando, FL 32743 Orange County, Florida Public Utilities c/o P. Andrea DeLoach, Esq. Assistant County Attorney 435 North Orange Avenue, Suite 300 Orlando, FL 32801 FCHR Order No. 05-039 Page 4 Robert §. Cohen, Administrative Law Judge, DOAH James Mallue, Legal Advisor for Commission Panel I HEREBY CERTIFY that a oe of the foregoing in been mailed to the above listed addressees this day of Cheri scot the ff he Florida Commission on Human Relations
