The Issue The issue in this case is whether the Petitioner, Polish Mission Foundation, Inc., qualifies under Section 212.08(7)(o), Florida Statutes, for a consumer certificate of exemption as a "charitable institution," or as a "religious institution."
Findings Of Fact The Foundation is a recently organized not-for-profit corporation. It does not yet have any funds of its own. Having no funds, it has no history of expenditures. 1/ More specifically, the Foundation does not have a history of expending in excess of 50 percent of its operational expenditures towards "qualified charitable services," as defined in the Department's rules. The Foundation has not provided any such "qualified charitable services." The Foundation does not have an established physical place of worship where it regularly conducts religious services and activities. In the future, the Foundation plans to raise funds for the purpose of providing financial assistance to various activities of a church. Some of the activities to which the Foundation plans to provide financial assistance would be "qualified charitable services," others would not.
Recommendation Based on all of the foregoing, it is RECOMMENDED that the Department issue a final order in this case denying the Petitioner's application for a consumer certificate of exemption. DONE AND ENTERED this 21st day of January, 2000, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of January, 2000.
The Issue The issues in this cause concern whether disciplinary action should be taken against the Respondent's license to practice medicine, based upon alleged violations of Section 458.331(1)(b), Florida Statutes. Specifically, the disputed issue concerns whether his license to practice medicine was revoked, suspended or otherwise acted against by the licensing authority of another state.
Findings Of Fact The Respondent is and at all times material hereto, has been licensed as a physician in the State of Florida. He holds licensed number ME0028248 issued by the State of Florida, Board of Medical Examiners. Respondent is also licensed in the State of New York as a medical doctor. The Petitioner is an agency of the State of Florida charged with enforcing the medical practice standards contained in Chapter 458, Florida Statutes and related rules. Pertinent provisions of that chapter and Chapter 455, Florida statutes authorize the Petitioner to make investigations of physician's licenses in the State of Florida and, if probable cause exists to indicate that a physician has engaged in conduct proscribed by Chapter 458, to commence formal proceedings seeking disciplinary action against such physicians. The New York State Department of Education and its Board of Regents is the licensing authority for medical doctors for the State of New York, (Petitioner's Exhibit 3 is evidence.) On August 14, 1986, the Commissioner of Education of the State of New York, on behalf of the State Education Department and its Board of Regents entered an order wherein the Respondent'S license to practice medicine in the State of New York was suspended for one year. That suspension was stayed and the Respondent's license to practice medicine was placed in probationary status with the probation being subject to certain conditions. See Petitioner's Exhibit 3 in evidence. In that order, the Respondent, had been found guilty of professional misconduct by being convicted of committing crimes under the state law of New, York. Specifically, he was convicted of four counts of violations of Public Health Law 12.B(2), by being registered as a medicaid provider and leasing space for the practice of medicine at a dental office, a "shared health facility", the rental fee for which was calculated and paid as a percentage of the defendant's earnings for medical services rendered on the premises. The Respondent was also found guilty of falsely representing that he was certified by the American Board of Internal Medicine when in fact he was not so certified, and by the willful making and filing of a false report, which also constitutes unprofessional conduct within the meaning of the law of the State of New York, specifically 8NYCRR 29.1(b)(6), (1984), cited in Petitioner's Exhibit 3 in evidence.
Recommendation Accordingly, it is therefore RECOMMENDED that a Final Order be entered by the State of Florida, Board of Medical Examiners suspending the Respondent's license for one full year or until such time as the Respondent appears before the Board of Medicine and demonstrates that he is capable of practicing medicine with care, skill and safety to patients including a demonstration that his license to practice medicine in New York is reinstated and is unrestricted, whichever time period is less. DONE AND ENTERED this 3rd day of July, 1989, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF, 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 3rd day of July, 1989. COPIES FURNISHED: Jonathan King, Esquire Department of Professional Regulation Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0729 Vijay Sakhuja, M.D. 120 Secor Drive Port Washington, New York 11050 Vijay Sakhuja, M.D. 90-10 Sutphin Boulevard Jamaica, New York 11435 Dorothy Faircloth, Executive Director Board of Medicine Department of Professional Regulation Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0729 Kenneth Easley, General Counsel Department of Professional Regulation Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0729 ================================================================= DISTRICT COURT OPINION ================================================================= IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA VIJAY SAKHUJA, M.D., NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND Appellant, DISPOSITION THEREOF IF FILED. vs. CASE NO. 89-2296 DOAH CASE NO. 88-4658 DEPARTMENT OF PROFESSIONAL REGULATION, Appellee. / Opinion filed October 10, 1990. Appeal from an Order of the Department of Professional Regulation Walter D. Forehand, of Myers & Forehand, Tallahassee, for appellant. Lisa S. Nelson, Department of Professional Regulation, for appellee. WENTWORTH, J. Appellant seeks review of an administrative order by which appellee Department of Professional Regulation, through its Board of Medicine, suspended appellant's medical license. The duration of this suspension exceeds the penalty which the hearing officer had recommended. Although we find no error with regard to appellant's other contentions, we do find that the Board did not fully and adequately delineate the basis for increasing the recommended penalty. We therefore reverse the order appealed. Appellant was licensed to practice medicine in both Florida and New York, and the current proceeding ensued after disciplinary action was taken by the licensing authority in New York for violations which had occurred in that state. The New York licensing authority acted upon appellant's conviction for violating a public health law which prohibits calculating medical office rental fees on a percentage of earnings, and upon appellant's false reporting and false representation of a medical certification. The proceeding in Florida was based upon this New York action, as appellant was charged with violating section 458.331(1)(b), Florida Statutes, which specifies that disciplinary action may be taken in this state when a license has been "acted against" by the licensing authority of another jurisdiction. After an administrative hearing on this charge the hearing officer recommended that appellant's Florida license be suspended for one year or until such time as he satisfies certain conditions including the reinstatement of his New York license. The Board of Medicine adopted the hearing officer's recommended findings, but increased the penalty so as to suspend appellant's license in Florida for one year and until such time as the various other conditions are satisfied. The order increasing the recommended penalty recites that: Rule 21M-20.001(1)(b), F.A.C., provides for discipline for action taken in another jurisdiction to be the discipline which would have been imposed if the substantive violation had occurred in Florida. Although this explanation identifies a permissible basis for the Board's action, and it does not appear that the hearing officer considered the applicability of the cited rule, the order does not specify the asserted substantive Florida violation had appellant's conduct occurred in this state. While appellant's conduct in New York, as indicated by the substantive violations in that state, might be such as would also constitute substantive violations in Florida, the Board's failure to delineate a particular substantive Florida violation does not fully satisfy the Board's obligation, as mandated by section 120.57(1)(b)10, Florida Statutes, to provide a particularize statement of the reason for increasing the recommended penalty. Appellee concedes that the Board's order is deficient, but contends that it should be afforded the opportunity to enter a more thorough and explicit order on remand. Because the order now being appealed reflects a legally permissible basis for the challenged action, on remand the Board may address the matter with greater particularity should it again decide to increase the recommended penalty. See Van Ore v. Board of Medical Examiners, 489 So.2d 883 (Fla. 5th DCA 1986); see also, Pages v. Department of Professional Regulation, 542 So.2d 456 (Fla. 3d DCA 1989). The order appealed is reversed and the cause remanded. MINER and WOLF, JJ., CONCUR.
Findings Of Fact Petitioner is a non-profit corporation located in the State of Florida. Petitioner is dedicated to the training and education of persons who minister to law enforcement officers as police chaplains. The association is interfaith and interdenominational. It is not organizationally affiliated with any church and is not itself a church. It does not conduct worship services, nor require its members to conduct worship services. Moreover, Petitioner's member police chaplains are not necessarily required to be members of a religious organization. Petitioner does not control who may be selected by a law enforcement agency as a chaplain. In fact, persons acting as police chaplains can perform their duties without being a member of or consulting with Petitioner. Petitioner does not have a physical building or other structure which is used regularly for worship services or is used by any of its members to conduct regular worship services. Additionally, Petitioner did not offer or submit any competent evidence to show that it is within a larger church hierarchy or that there is some organizational nexus with various police departments or their chaplains. The association does have a voluntary ethical code for its members and does provide newsletters and documents about ethics to its members. The association also provides information to law enforcement agencies on operating a police chaplaincy and information related to selecting a police chaplain. However, no evidence was presented that Petitioner participates with or controls its members as they perform their daily duties as a chaplain. Likewise, Petitioner did not offer or submit any competent evidence to show that it "customarily" exercises any control over police chaplains or that it regularly participates in any of the "customary" activities of police chaplains. In short, Petitioner is a voluntary social organization whose various members have a common interest in the quality of ministering to law enforcement agencies. It is not an administrative office of a discreet religious hierarchy. Lacking such an affiliation, Petitioner is not entitled to a certificate of exemption.
Recommendation Based upon the findings of fact and the conclusions of law, it is, RECOMMENDED: That the Department of Revenue enter a Final Order denying Petitioner's application for a consumer's certificate of exemption as a religious institution. DONE and ENTERED this 14th day of November, 1996, in Tallahassee, Leon County, Florida. DIANNE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 14th day of November, 1996. COPIES FURNISHED: William B. Nickell, Esquire Department of Revenue Post Office Box 6668 Tallahassee, FL 32314-6668 David W. Derevere, Executive Director International Conference of Police Chaplains Post Office Box 5590 Destin, FL 32540-5590 Linda Lettera, Esquire Department of Revenue 204 Carlton Building Tallahassee, FL 32399-0100 Larry Fuchs, Executive Director Department of Revenue 104 Carlton Building Tallahassee, FL 32399-0100
Findings Of Fact Based upon the parties' factual stipulations, the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: On August 28, 1992, Petitioner submitted to the Department its application for licensure as a mortgage lender. 1/ On October 28, 1992, the Department sent Petitioner a letter announcing its intent to deny Petitioner's application for licensure as a mortgage lender. The text of the letter read as follows: This is to inform you that your Application for Licensure as a Mortgage Lender for Citifirst Mortgage Corp. is hereby denied. The denial is based on Section 494.0072(2)(k), Florida Statutes. Section 494.0072(2), Florida Statutes, "Each of the following acts constitutes a ground for which the disciplinary actions specified in subsection may be taken: . . . (k) Acting as a mortgage lender or correspondent mortgage lender without a current active license issued under ss. 494.006-494.0077." The Department's investigation revealed Citifirst Mortgage Corp. has acted as a mortgage lender without a current, active license. Please be advised that you may request a hearing concerning this denial to be conducted in accordance with the provisions of Section 120.57, Florida Statutes. Requests for such a hearing must comply with the provisions of Rule 3-7.002, Florida Administrative Code (attached hereto) and must be filed in duplicate with: Clerk Division of Finance Department of Banking and Finance The Capitol Tallahassee, Florida 32399-0350 (904) 487-2583 within twenty-one (21) days after receipt of this notice. Failure to respond within twenty-one days of receipt of this notice shall be deemed to be a waiver of all rights to a hearing. Should you request such a hearing, you are further advised that at such a hearing, you will have the right to be represented by counsel or other qualified representative; to offer testimony, either oral or written; to call and cross examine witnesses; and to have subpoenas and subpoenas duces tecum issued on your behalf. Petitioner timely requested a formal hearing on the proposed denial of its application. The matter was referred to the Division of Administrative Hearings, where it is still pending.
The Issue The issue in this case is whether Petitioner is entitled to a consumer certificate of exemption as a religious or charitable institution.
Findings Of Fact Petitioner has submitted seven (7) exceptions to the Hearing Officer's Findings of Fact in the Recommended Order. Exceptions 1, and 3 through 6 filed by Petitioner are rejected. Exception 2 is accepted to the extent it states that Petitioner does not hold worship services. The remainder of this exception is rejected. Exception 7 is rejected, except for the first sentence which indicates that the date of purchase of the vehicle was 1995, not 1993. Petitioner's First Exception-- Finding of Fact No. 1: Petitioner's statements as to how Petitioner was advertised are not relevant and, therefore, are rejected. Petitioner's Second Exception-- Finding of Fact No. 2: Accepted that Petitioner does not have worship services. This determination has been made by the Hearing Officer's Findings of Fact. See Findings of Fact No. 2 and 3. The remainder of this exception is rejected as being irrelevant. Petitioner's Third Exceptions-- Finding of Fact No. 3: The Hearing Officer's Finding of Fact, Paragraph 3 of the Proposed Recommended Order, that Christian-Muslim Church of God (ALLAH) is not part of any established religion is supported by substantial competent evidence. Thus, Petitioner's exception to this finding is rejected. The statement that Petitioner's founder will write a "Consolidated Moral Bible" is not relevant, and is therefore rejected. The Hearing Officer's finding that Petitioner has generalized plans to establish regular religious services, but has not yet done so, is supported by substantial competent evidence. Therefore, Petitioner's exception to this finding is rejected. The statement as to how assemblies of the church will be organized by Petitioner in the future is not relevant, and is therefore rejected. Petitioner's Fourth Exceptions- Finding of Fact No. 4: Petitioner's statements as to where Petitioner's funds are deposited is not relevant, and therefore is rejected. Petitioner's statements as to the type of donations its founder, Mr. Savas, personally makes are not relevant and, therefore, are rejected. The Hearing Officer found that Petitioner does not qualify as a "religious institution" under s212.08(7)(o) 2.a., Florida Statutes. The Hearing Officer's finding is supported by substantial competent evidence. Thus, Petitioner's exception to this finding is rejected. Petitioner's statement as to why Petitioner needs the sales tax exemption is not relevant and, therefore, is rejected. Petitioner's Fifth Exceptions-- Finding of Fact No. 5: The Hearing Officer found that Petitioner is not registered as, or classified as, any type of legal entity. The Hearing Officer also found that the Petitioner is not a church or charitable institution as those terms are defined under s212.08(7), Florida Statutes for purposes of sales tax exemption. The Hearing Officer's findings are supported by the record and by substantial competent evidence. The remainder of Petitioner's exceptions are not material. Therefore, all of Petitioner's exceptions to Paragraph 5 are hereby rejected. Petitioner's Sixth Exception-- Finding of Fact No. 6: The Hearing Officer found that Petitioner is not registered as, or classified as, any type of legal entity and that Petitioner does not qualify as a "charitable institution" pursuant to s 212.08(7)(o)2.b., Florida Statutes. These findings are supported by substantial competent evidence. Therefore, Petitioner's exception to this paragraph is rejected. Petitioner's Seventh Exceptions-- Finding of Fact No. 7: Accepted that Petitioner's founder purchased his car in 1995, and applied for a consumer's certificate of exemption at that time. The statements as to the beliefs of Petitioner's founder are irrelevant or immaterial, and are rejected accordingly.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Revenue enter a final order denying a consumer certificate of tax exemption to Petitioner, the Christian-Muslim Church of God (Allah). DONE and ENTERED this 18th day of March, 1996, in Tallahassee, Florida. CAROLYN S. HOLIFIELD 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 18th day of March, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-4076 To comply with the requirements of Section 120.59(2), Florida Statutes (1995), the following rulings are made on the parties' proposed findings of fact: Respondent's Proposed Findings of Fact. 1. - 11. Accepted and incorporated to the extent not subordinate or unnecessary. COPIES FURNISHED: Ruth Ann Smith, Esquire Department of Revenue Post Office Box 6668 Tallahassee, Florida 32314-6668 John Savas 1416 Hill Drive Largo, Florida 34640 Linda Lettera, Esquire Department of Revenue 204 Carlton Building Tallahassee, Florida 32399-0100 Larry Fuchs Executive Director Department of Revenue 104 Carlton Building Tallahassee, Florida 32399-0100
The Issue The issue for determination in this case is whether the Petitioner is entitled to purchase a retirement service credit for approximately three and one-half years pursuant to Section 121.011(3)(e), Florida Statutes. The record in this cause consists of all documents filed in this cause either with the Hearing Officer or with the Division of Retirement, including all documents received in evidence at the hearing as exhibits. After review of the record in this case, the Division accepts all the findings of fact as set forth by the Hearing Officer in his recommended order. However, the Division is unable to accept all of the conclusions of law as set forth by the Hearing Officer in his recommended order.
Findings Of Fact As a teacher with the Orange County School Board (the School Board") since 1967, Petitioner is a member of the Florida Retirement System. Petitioner was so employed in 1978 and was a member of the Florida Retirement System at that time. In January, 1978, Petitioner was on approved personal leave for her wedding. Her husband lived in Arkansas. Petitioner requested and was granted a leave of absence to join her husband in Arkansas for the balance of the school year. Petitioner and her husband intended to return to Orlando, Florida before the beginning of the next school year. Petitioner's husband intended to accept a position with a veteran's clinic in the Orlando area. Petitioner intended to resume employment with the School Board. On January 16, 1978, Petitioner properly submitted a written request for a leave of absence. The leave requested was limited to the remaining term of the school year which ended in June, 1978. The request asked for a teaching assignment in the event the request was denied. On February 14, 1993, the School Board granted Petitioner's request for a leave of absence. The School Board's written authorization was issued on a standard approval form used by the School Board for such authorizations. The one page form consisted of standard boiler plate language except for three blanks in the first paragraph stating the date of approval, the reason for the leave, and the expiration date for the leave. The boiler plate language in the standard form included the following statement: . . . A teacher who desires to return to employment at the expiration of the leave period must notify the Superintendent in writing by March 1 of the school year for which the leave was granted. . . . Petitioner notified the Superintendent in writing of her desire to return to employment. Petitioner's written request on January 16, 1978, was addressed to the School Board. The relationship of the School Board and Superintendent is that of principal and agent. Petitioner's written request expressly provided that the leave period was limited to the remainder of the school year and that Petitioner wanted a teaching assignment if the request for leave of absence was denied. The requirement for notice prior to March 1, 1978, was based on the Master Agreement, Article IX, Section L, entered into by the School Board and the teacher's union. No similar requirement appears in Respondent's rules. Florida Administrative Code Rule 60S-2.006(1)(a) requires only that: . . . A leave of absence must be authorized in writing by a member's employer prior to or during the leave of absence. Petitioner's leave of absence was authorized in writing by Petitioner's employer during her personal leave. Early in February, 1978, Petitioner telephoned Mr. Royce B. Walden, Associate Superintendent of the School Board, and informed him that she desired to return to her employment at the beginning of the next school year; in the Fall of 1978. Mr. Walden did not indicate to Petitioner that she had failed to provide timely written notice of her intent to return to employment. Later in February, 1978, Petitioner traveled to Orlando. While in Orlando, Petitioner telephoned Mr. Walden and again stated her desire to return to employment at the beginning of the next school year. The Associate Superintendent did not indicate to Petitioner that she had failed to provide timely written notice of her desire to return to employment. In May, 1988, Petitioner moved back to Orlando. Petitioner again telephoned Mr. Walden. Petitioner was informed for the first time during that telephone conversation that there may not be a teaching position available for her at the beginning of the next school year. The reason stated by the Associate Superintendent was that Petitioner had failed to notify the Superintendent in writing by March 1, 1978, of her desire to return to employment. Petitioner immediately wrote a letter on May 25, 1978, restating her desire to return to employment at the beginning of the next school year. On the same day, Mr. Walden issued a letter to Petitioner stating that the School Board would not automatically assign Petitioner to an employment position for the 1978-1979 school year. The reason stated in Mr. Walden's letter was that Petitioner failed to comply with the requirement that she notify the Superintendent in writing by March 1, 1978, of her desire to return to employment. On July 11, 1978, Mr. Walden issued a letter to Petitioner purporting to terminate her as an employee of the School Board. The reason given for the purported termination was that Petitioner had failed to give written notice to the Superintendent by March 1, 1978, of her desire to return to employment. The letter purporting to terminate Petitioner contained no notice of Petitioner's rights to challenge the School Board's proposed action, including the right to a proceeding under Section 120.57, Florida Statutes. After informing Petitioner of the purported termination and the reason, the letter stated: . . . Should you wish to return as an employee with the School Board of Orange County, we invite you to communicate with us in the near future. Please accept our sincere appreciation for your contribution to the educational program for children in the Orange County Public School System. 1/ Shortly after July 11, 1978, the School Board sued Petitioner for repayment of funds allegedly advanced to Petitioner for a paid sabbatical in 1973. The litigation culminated in a settlement agreement and Petitioner's reinstatement to her employment for the 1981-1982 school year with credit for nine years of service. Petitioner has been continuously employed by the School Board since that time and has maintained her continuing contract status with no loss in seniority. The settlement agreement did not pay Petitioner any back compensation and did not address Petitioner's fringe benefits, including the right to purchase the retirement service credit for the period of January, 1978 through the date of her reinstatement. Petitioner must pay the total cost of providing the retirement credit into the Retirement System Trust Fund. The economic burden of the retirement service credit falls solely on Petitioner. Petitioner's purchase of the retirement service credit will not result in any adverse economic impact on the School Board, Respondent, or the State of Florida. The proposed purchase price for the retirement service credit is sound for actuarial purposes.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order allowing Petitioner to purchase the retirement service credit at the statutorily prescribed purchase price. RECOMMENDED this 26th day of July, 1993, in Tallahassee, Florida. DANIEL MANRY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of July, 1993.
The Issue Whether the charges contained in the Petitioners' complaints constitute a basis for discipline against Respondent's Florida teacher's certificate pursuant to section 231.28, Florida Statutes (1984 supp.), and for the suspension or dismissal of Respondent from employment with the school Board pursuant to Section 231.36, Florida Statutes (1984 supp.)?
Findings Of Fact The Respondent is licensed as a teacher by the Florida Department of Department of Education. He holds Florida Education Certificate Number 486520 (this fact was admitted in the Pre-Hearing Stipulation). The Respondent is employed by the School Board pursuant to a continuing contract of employment (this fact was admitted in the Pre-Hearing Stipulation). The Respondent's Florida Teacher's Certificate qualifies him to teach "quantity food" at the Vocational-Technical level. Respondent was employed by the School Board to teach culinary arts at the Pinellas Vocational Technical Institute. The average age of students taught by Respondent was 25 to 30 years. During the 4 years the Respondent has been employed with the School Board he has received satisfactory and above satisfactory evaluations. The following facts have all be admitted in the Pre-Hearing Stipulation. In 1972, in the State of Vermont, the Respondent pled no contest to possession of 2.2 grams of hashish. In 1976, in the State of Pennsylvania, the Respondent was arrested for disorderly conduct. Adjudication is unknown. In 1976, in the State of Florida, the Respondent was arrested for possession of less than 4 grams of marijuana and driving while intoxicated. Respondent pled no contest. In 1977, in the State of Florida, the Respondent was arrested for possession of more than 4 grams of marijuana, resisting arrest with violence and assault on a police officer. Adjudication was withheld. Detective William Donal Gates, Jr., Tampa Police Department, participated in Respondent's arrest in 1977. Detective Gates identified the Respondent as the individual he arrested. Detective Gates also testified that the Respondent engaged in a physical altercation with one of the arresting officers. The record in these cases fully supports the facts admitted in the Pre- Hearing Stipulation. The record also supports the admission of the Respondent in the Pre-Hearing Stipulation that he did not disclose his criminal record when applying for a Florida Teacher's Certificate or employment with the School Board. In applying for a Florida Teacher's Certificate and employment with the School Board, the Respondent failed to disclose any of his convictions and arrests listed above except his arrest for DWI; the arrest for DWI was reported on a Personal Data Sheet Post Employment Information form. On September 11, 1980, the Respondent certified as true his response to questions he answered on an Application for Teacher's Certificate filed with the State of Florida. The Respondent acknowledged on the Application that he understood the following: Florida Statutes provide for the revocation of teacher's certificate if evidence and proof is established that the certificate has been obtained by fraudulent means. On the September 11, 1980 Application the Respondent answered "no" to the following question: Have you ever been convicted or had adjudication withheld in a criminal offense other than a minor traffic violation or are there any criminal charges now pending against you other than minor traffic violations? Despite the Respondent's acknowledgement on the Application, Respondent's answer to this question was clearly untrue. Respondent also untruthfully answered the same question on an Application for Teacher's Certificate and Reapplications for Temporary Certificate signed by the Respondent on May 13, 1981, April 13, 1982, and April 7, 1983. On each of these forms there was a statement to the effect that the Respondent, by signing his name thereto, acknowledged his answers were true and correct. There was also a statement on these forms that informed the Respondent that he could lose his teaching certificate if he obtained it through fraudulent means. The Respondent acknowledged this statement. On September 24, 1980, the Respondent signed an application for employment as a teacher with the School Board, and his signature appeared under the following language on the application form: [I]f employed by the School Board of Pinellas County, Florida [I] do hereby solemnly swear or affirm that I will support the Constitution of the United States and of the State of Florida. I further certify that all information given on this application is true to the best of my knowledge. Despite this statement, the Respondent answered "No" to the following question: Have you ever been convicted of a misdemeanor (other than minor traffic violations), a felony, or any other offense involving moral turpitude? The Respondent also answered this question negatively on an application for part-time employment filed with the School Board. Finally, on December 2, 1980, the Respondent was asked the following two questions on a Personal Data Sheet Post Employment Information form: Have you ever been arrested? YES( ) NO( ) If yes, please list all arrests by date, location, and charges. Have you ever been convicted? YES( ) NO( ) If yes, please list convictions by date, and location. In response to the first question, Respondent answered by placing an "X" after "YES and listed "D.W.I." Respondent also placed an "X" after "NO" in response to the second question. These responses were certified as true by the Respondent. Respondent admitted in the Pre-Hearing Stipulation and at the hearing that he failed to report his arrests and convictions when he applied for a Teacher's Certificate and for employment with the School Board. At the final hearing, the Respondent indicated that he did not disclose his arrests and convictions because he believed that his criminal record had been sealed. According to the Respondent, the attorney who represented him when he was arrested in 1977 told him that he would arrange to have the Respondent's criminal record sealed if he would cooperate with the authorities. His attorney also told him that the authorities had agreed to drop the charges against him if he would cooperate. The Respondent did in fact cooperate and the charges against him were dropped. The Respondent indicated that he believed his record had been sealed since the charges were dropped. There is no evidence, however, that the Respondent's attorney told him that the authorities had agreed that they would have his records sealed or that they had in fact been sealed, only that his attorney said he would have them sealed. The Respondent, when first confronted with his prior arrests and convictions by Ms. Nancy Zambito, School Board Director of Personnel Services, in July of 1984, did not tell Ms. Zambito or Mr. Warren Laux, principal of Pinellas Vocational Technical Institute, who was also present, that he had not divulged his criminal record because he believed his record had been sealed. Instead, the Respondent gave other reasons for not answering the questions correctly including his concern that he would not be hired by the School Board if he told the truth. Based upon the foregoing, it is concluded that the Respondent intentionally misrepresented his criminal history because he believed he would not be employed by the School Board or granted a Florida Teacher's Certificate if he divulged his criminal record. Dr. Ronald Stone, the Executive Assistant Superintendent for Human Resources for the School Board, testified that, based upon the arrests and convictions of Respondent and his failure to disclose his record, the Respondent would not be granted a Florida Teacher's Certificate and should be dismissed from employment with the School Board. Dr. Stone also testified that the School Board's policy as to the treatment of persons who disclose criminal offenses on their applications is to determine whether the crime involved was serious enough to render an applicant unsuitable to teach. Based upon the nature of Respondent's offenses, Dr. Stone indicated that the Respondent was unsuitable for employment as a teacher. Ms. Zambito also testified that the appropriate sanction in these cases would be revocation of the Respondent's Florida Teacher's Certificate and dismissal from employment with the School Board. Both Dr. Stone and Ms. Zambito based their opinion on their conclusion that the Respondent's actions violated the public trust and because of the negative effect on students, regardless of their age, of a teacher with the Respondent's background.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Respondent be found not guilty of "immorality" under Section 231.36(4)(c), Florida Statutes (1984 Supp.), and "gross immorality" under Section 231.28(1)(c), Florida Statutes (1984 Supp.). It is further RECOMMENDED: That Respondent be found guilty of "misconduct in office" in violation of Section 231.36(36)(4)(c), Florida Statutes (1984) Supp.). It is further RECOMMENDED: That Respondent be found not guilty of being convicted of a crime involving moral turpitude in violation of Section 231.36(4)(c), Florida Statutes (1984 Supp.). It is further RECOMMENDED: That Respondent be found guilty of obtaining his teaching certificate by fraudulent means in violation of Section 231.28(1)(a), Florida Statutes (1984 Supp.). It is further RECOMMENDED: That Respondent be found not guilty of an act involving moral turpitude in violation of Section 231.28(1)(c), Florida Statutes (1984 Supp.). It is further RECOMMENDED: That Respondent be found not guilty of having been convicted of a crime in violation of Section 231.28(1)(e), Florida Statutes (1984) Supp.). It is further RECOMMENDED: That Respondent be found guilty of personal conduct which seriously reduces his effectiveness as an employee of the School Board in violation of Section 231.28(1)(a), Florida Statutes (1984 Supp.). It is further RECOMMENDED: That Respondent be found guilty of violating Section 231.28(1)(h), Florida Statutes (1984 Supp.). It is further RECOMMENDED: That Respondent be dismissed from his employment with the School Board and his continuing employment contract be cancelled. It is further RECOMMENDED: That Respondent's Florida Teacher's Certificate be permanently revoked. DONE and ENTERED this 6th day of May, 1985, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 6th day of May, 1985. COPIES FURNISHED: Usher Brown, Esquire Associate School Board Attorney 1960 E. Druid Road P.O. Box 6374 Clearwater, Florida 33513 Robert McKee, Esquire KELLY & McKEE, P.A. 401 S. Albany Avenue Tampa, Florida 33606 Mr. Donald L. Griesheimer Executive Director Department of Education Education Practices Commission Tallahassee, Florida 32301 =================================================================
The Issue Whether or not Respondent Employer committed an unlawful employment practice by discrimination against Petitioner on the basis of her religion.
Findings Of Fact Petitioner is a practicing Christian. Her Christian denomination either is not of record or could be "Child of God." In any case, Petitioner believes that she is a child of God and that He resides within her as a life-changing force. She considers Jesus to be her Saviour; she does not consider herself a "religious person," but does consider herself to be a Christian. On June 26, 2000, Petitioner was hired by Respondent Surrey Place Nursing Home in Live Oak, Florida, as a Licensed Practical Nurse (L.P.N.) Her immediate superiors certainly knew that Petitioner was "strong in her faith" and would not violate what she perceived to be Christian doctrines in order to take the job. By inference, it is found that the Surrey Place chain of command also knew this as of Petitioner's date of hire. On the date of hire, Petitioner informed Respondent of specific accommodations that she would require if she were to accept employment with Respondent. At that time, her requested accommodations only involved scheduling. To the end of accommodating Petitioner's religious beliefs and her specific requests at the time of hire, Respondent gave Petitioner every Sunday and every Wednesday night off so that she could attend church services or activities. One other Christian employee was also not required to work on Sundays for religious reasons. On Friday, July 27, 2001, in Petitioner's presence, the Unit Director, Lucille Gwinn, informed a Staff Nurse, Theresa Croft, that Resident P.C. liked a toddy (in this case, a jigger of Jack Daniels whiskey) before she went to bed each night and again upon arising each morning, to "relax." P.C. is a 95-year-old female who, prior to admission to Surrey Place, had a drink of Jack Daniels in the morning and sometimes in the evening for several years. Respondent considers it a duty, pursuant to federal guidelines for long-term care nursing homes, to provide a "homelike environment" and provide, as closely as possible, the customary routines of its residents. On July 27, 2001, P.C. was Petitioner's patient, due to Petitioner's assignment to the East Wing of Surrey Place. Petitioner immediately informed the Unit Director that she did not give out alcohol under any circumstances because it violated her Godly beliefs. The Unit Director told Petitioner that if it were a doctor's order, Petitioner must give the Jack Daniels to her patient, "period." That night, the Unit Director instructed Ms. Croft to write the order for P.C.'s toddy. Ms. Croft did so. Upon check-out for her shift, that night, Petitioner explained her position to the Director of Nursing (DON). The DON told Petitioner that if it were a doctor's order, Petitioner must follow it "no matter what." Petitioner told the DON that, as a Christian, Petitioner could not administer drinking alcohol to another person and would not administer drinking alcohol to another person. A discussion then ensued wherein the DON stated that she was a Christian too, but that religion had to "stay out the door," and "Well, I guess that's your two weeks' resignation." Petitioner asked if she were to report for work the next day, Saturday, as scheduled. The DON stated that Petitioner should not report, because Petitioner had refused to follow the doctor's order and that constituted Petitioner's resignation. Later that Friday night, the DON telephoned Petitioner at home and told Petitioner that she had not asked for Petitioner's resignation and Petitioner was to report for work as scheduled the next day, Saturday. Petitioner agreed to report for her Saturday shift, but stated that she still refused to give the toddy on religious grounds. The DON had the last word in the telephone conversation, though, stating, "You must follow the physician's order." Petitioner reported to work on Saturday, as usual. At that time, Petitioner observed that beside the Staff Nurse's notes to administer the toddy to P.C., morning and night, the Unit Director had since written "for medicinal purposes." Petitioner does not, however, suggest that this was other than a valid physician's order, which had been received by telephone. It is therefore found that there was a valid physician's order in P.C.'s chart for "one-half ounce alcohol each morning and each evening." Later on the same Saturday, P.C.'s daughter delivered to the nursing station a bottle of Jack Daniels, wrapped in a paper towel with only the neck of the bottle and top exposed. This was placed in the refrigerator in the medications room. Petitioner testified, without refutation, that Lily Tillie Hass, her Saturday shift's Charge Nurse, agreed to give the toddy to P.C. that day. It is also unrefuted that this was not an unusual occurrence, because whenever there was a problem with the administration of a new medication or the performance of a new procedure, the several nurses on shift would tackle it as a "team approach." On Monday, July 30, 2001, the DON told Petitioner that she had contacted the Board of Nursing, which had told her to write up a complaint against Petitioner if Petitioner refused to follow a doctor's order. The DON stated that "for medicinal purposes" means that it is a doctor's order and that a resident's rights came before Petitioner's rights. Petitioner continued to refuse to administer the Jack Daniels to P.C. The DON requested that Petitioner give her reasons in writing for refusing to follow the doctor's order. On Tuesday, July 31, 2001, Petitioner did not have the requested written reasons finished and told the DON so. The DON loudly demanded that Petitioner give her something in writing that day. The women's conversation then attracted the attention of other staff members passing by. Petitioner said that she could not rush something so important and demanded to know if she would be written-up for this delay in providing her reasons for refusing to serve the toddy of Jack Daniels. The DON left the conversation in order to attend a Department Head Meeting. After the Department Head Meeting, the DON asked Petitioner to meet her in the solarium. On the way to the solarium, Petitioner asked the DON if the DON would help someone get an abortion, and the DON answered that she would not. Petitioner told the DON that Petitioner's refusal to personally administer Jack Daniels to P.C. was "the same thing with myself." In the solarium, Respondent's Administrator, DON, and Risk Management Coordinator met with Petitioner. They pointed out that when she was first hired, Petitioner had signed an agreement that her duties would include "medication administration as ordered by physician." Petitioner acknowledged that she had. Petitioner then stated to them that alcohol administration was against her religious beliefs and she would not offend her "Godly values," by administering Jack Daniels whiskey. At no time material did Petitioner object to the portion of her job description requiring her to give out or administer medications ordered by a physician. Petitioner, herself, uses cough syrups she knows contain alcohol, without regard to the percentage of alcohol contained in them. Petitioner has administered other medications containing alcohol to her patients in Respondent's facility, pursuant to a physician's order. Petitioner also does not object to rubbing alcohol externally on herself or her patients. Her complaint is that she believes a commercial alcoholic beverage, such as Jack Daniels whiskey, which is sold over the counter and which normally is used for recreational drinking, is forbidden by her personal moral beliefs arising out of her Christian denomination's interpretation of the Christian Bible. Without commenting on the "rightness" or "wrongness" of Petitioner's belief system, the undersigned is convinced that Petitioner is sincere in her beliefs. The discussion in the solarium on July 31, 2001, between Petitioner and Respondent's management team, started upon the premise that Petitioner was bound to follow any order of a doctor, but digressed into differing concepts of scriptural interpretation. The Administrator referred Petitioner to portions of the Christian Bible which he believed permit the giving and drinking of wine. The DON suggested angrily that no one was capable of persuading Petitioner. There was a retort by one or more of the three management representatives that Petitioner was not a better Christian than other Christians employed by Respondent who were willing to administer Jack Daniels to P.C. It was repeatedly suggested that if other Christians had to "leave their religion outside the door," so did Petitioner. Petitioner continued to refuse to administer the Jack Daniels based upon her personally selected Bible passages. Ultimately, the Administrator stated that by refusing to serve the Jack Daniels to P.C., Petitioner would be resigning. A dispute arose over the difference between involuntary and voluntary resignations. The management employees insisted that Petitioner was "voluntarily resigning" by her refusal to follow a doctor's order. Petitioner denied that she was resigning. Upon the Administrator's instructions, Petitioner completed only her immediate duties and signed out of the building. Petitioner considered herself involuntarily terminated as of July 31, 2001. Respondent's management team considered Petitioner voluntarily resigned as of July 31, 2001. Petitioner submitted the requested reasons for refusing to serve P.C. the Jack Daniels in a letter prepared August 19, 2001. In this letter, Petitioner cites multiple Bible quotations on the point of not getting drunk. Without commenting on the accuracy or inaccuracy of Petitioner's scriptural interpretation, it is found that Petitioner's interpretation is one possible interpretation of the scriptures cited. Respondent's Risk Management Coordinator filed a Complaint with the Agency for Health Care Administration. Petitioner responded, citing selected parts of the Christian Bible. The case was closed without a determination of probable cause, and a Letter of Guidance was issued which specifically indicated that it was not "discipline," under the Nurse Practice Act, Chapter 456, Florida Statutes. Petitioner sought unemployment compensation (UC) and was initially granted benefits on the basis that Petitioner had "voluntarily quit rather than perform a task which went against her religious beliefs. The Claimant has shown good cause for quitting." Respondent Surrey Place protested the initial UC ruling. Petitioner defended on the basis of The Civil Rights Act of 1964 or Title VII, and Habakkuk 2:15 (Old Testament Prophet) which reads: Woe unto him that giveth his neighbor drink, that puttest thy bottle to him, and makest him drunken also, that thou mayest look on their nakedness! Petitioner also advised the UC officials that: Although I did not give the alcohol to the resident, other nurses voluntarily gave it as ordered. Though other nurses give the alcohol willingly my superiors adamantly insisted it be given by the writer because I was assigned to that resident and that I must follow the doctor's order. I was also told that I have to leave my religion out the door. Ultimately, the UC Appeals Referee found that, pursuant to Chapter 443, Florida Statutes, Petitioner had committed "misconduct connected with work," constituting "a willful or wanton act or course of conduct in violation of the worker's duties and obligations to the employer." The initial UC Award was reversed. Petitioner testified that for a little while after July 31, 2001, she had attempted to find work as an L.P.N. However, she also testified that she has been employed as a babysitter for one or two small children since August 9, 2001. Accordingly, any back pay that Petitioner may be awarded after August 9, 2001, should be offset by the amount she has made in her employment as a babysitter. Because those respective amounts are not in evidence, no calculation can be made. Petitioner never specifically testified that she was one of 15 employees of Respondent. However, the undersigned has considered the evidence as a whole. It is unclear whether each "Wing" of Respondent's Live Oak facility also constituted a single "Unit." It is clear, however, that there was at least one Unit Director (Lucille Gwinn) on the East Wing, where Petitioner was assigned as of July 27, 2001, and that if there was an East Wing there had to be a West Wing, if not more wings in Respondent's facility. It is also clear that there were a minimum of three nurses (including Petitioner) per shift (a Charge Nurse and two Staff Nurses), per wing. Assuming eight hour shifts and three shifts per day, with at least an East and West Wing, plus an Administrator (Al Robbins), Risk Management Coordinator (Kelly Hensley), DON (Sherrill Hines), and other "Department Heads," it is found that Respondent, a Florida- licensed nursing home in Live Oak, Florida, with corporate offices in Palm Beach, Florida, employs in excess of 15 regular employees. Therefore, Respondent is an "employer," as defined in Chapter 760, Florida Statutes.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is
