The Issue The issues are whether Petitioner has just cause to take adverse job action against Respondent for his involvement in an Oxycontin® diversion scheme and, if so, whether, under the principles of progressive discipline, Petitioner may terminate Respondent's employment.
Findings Of Fact Petitioner initially employed Respondent as a custodian in October 2000. He was promoted to lead custodian four and one-half years later, and he was promoted to head custodian one year after that. He has had no discipline previously imposed against him. By affidavits submitted during the course of the investigation, Respondent admitted that he obtained four prescriptions from Dr. Ronald Eugene Harris and submitted them to two different pharmacies for filling on October 29, 2003, November 28, 2003, January 29, 2004, and February 27, 2004. Each of the prescriptions was for 90, 80-mg Oxycontin® pills. In addition to these prescriptions, Dr. Harris gave Respondent prescriptions, on or about January 29, 2004, for 60, 2-mg Xanax with two refills and, on or about February 23, 2004, for 60, 2-mg Xanax. Respondent filled both of these prescriptions. In filling these prescriptions, Respondent submitted to the pharmacies his school health insurance to absorb most, if not all, of the cost of these medications. The bona fides of the Oxycontin® transactions are called into question by two facts. First, Respondent took an Oxycontin® from the first prescription, found it was too strong for him, and never took another pill from this or the subsequent prescriptions that he filled. He never explained why he filled the next three Oxycontin® prescriptions. Arrested on August 4, 2005, Dr. Harris later cooperated in the investigation of the Oxycontin® diversion scheme, of which he had been a part. He admitted essentially that, without an examination or medical determination of necessity, he issued Oxycontin® prescriptions in return for cash. Specifically in Respondent's case, Dr. Harris identified the four Oxycontin® prescriptions mentioned above and admitted that they were not for legitimate medical reasons, but were given in exchange for cash. At the time, the street value of one Oxycontin® in south Florida was $30-$40. Typically, Dr. Harris received $100-$150 for each prescription. At various times, Respondent tried to explain the prescriptions by claiming pain from an earlier injury. The problem is his admission that he did not take the Oxycontin® after taking one from the first prescription. The only reasonable inference is that he obtained the prescriptions for personal gain. Of relevance to this determination is the fact that his mother, with whom he was living at the time, was an unlawful broker of Oxycontin®, so Respondent had ready means to convert his unlawfully obtained Oxycontin® to cash. Over the course of this investigation into the diversion of Oxycontin®, federal and state law enforcement officers arrested 92 persons, including Respondent. Of the 20- plus persons to enter the pretrial diversion program, all but one, Respondent, admitted guilt as a precondition to participation in the program. For reasons that are unclear, Respondent was allowed to participate in the pretrial diversion program without admitting guilt. However, this fact is irrelevant because Respondent was guilty. Respondent completed the pretrial diversion program successfully, and the charges were dismissed in April 2010. However, two or three dozens of the persons participating in this Oxycontin® diversion scheme were Petitioner's employees, and the local media publicized this fact. Because of the involvement of school insurance, this diversion scheme cost Petitioner substantial sums of money. All of the other school employees, except Petitioner, were dismissed or allowed to retire. Article XI, Section I, Paragraph A of the collective bargaining agreement authorizes discipline for the violation of any rule or policy, but requires progressive discipline among the following measures, in ascending order: verbal warning, written warning, letter of reprimand, suspension/demotion, and dismissal. Paragraph C adds: "disciplinary action(s) . . . shall be consistent with the concept and practice of progressive or corrective discipline and . . . the degree of discipline shall be reasonably related to the seriousness of the offense and the employee's record." Offenses involving drugs, fraud, and financial harm are serious matters for school systems, but, if violence were added, this would nearly describe the universe of felonies. Respondent illegally obtained and sold four prescriptions for Oxycontin®, charging a substantial portion of the cost of these drugs to his school insurance. Without doubt he should be punished. But the question is what is the appropriate discipline. Petitioner's Office of Professional Standards witness was unable to distinguish this case from a case from an equally painful period in school district history--around 2006, the purchase of fraudulent academic credits by teachers and administrators seeking higher pay. In Miami-Dade County School Board v. Cook, DOAH Case No. 08-318 (final order issued on June 18, 2008), Petitioner sought (and obtained) only 30 days' unpaid suspension against a principal who submitted fraudulently obtained credentials that would have entitled him to a doctoral pay supplement of $2500 annually. Petitioner's witness initially focused in the present case on the monetary loss to the school district, but the monetary loss in the credentials case was at least as great. Petitioner's approach to the credential cases militates in favor of a lengthy suspension over dismissal in this case. However, as noted in the Conclusions of Law, a suspension of more than 30 days is not available. The proper measure of the harm posed by Respondent's conduct to the school system and its students, as well as the public at large, suggests that, if a substantial suspension of, say, one year is not available, then the appropriate discipline is dismissal.
Recommendation Based on the foregoing, it is RECOMMENDED that the Miami-Dade County School Board enter a final order finding Respondent guilty of violating rules 6Gx13- 4A-1.21 and 6Gx13-4A-1.213 and dismissing him. DONE AND ENTERED this 27th day of April, 2011, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of April, 2011. COPIES FURNISHED: Christopher J. La Piano, Esquire Miami-Dade County School Board 1450 Northeast Second Avenue Miami, Florida 33132 Jonathan Meltz, Esquire 1900 Southwest Third Avenue Miami, Florida 33129 Alberto M. Carvalho, Superintendent Miami-Dade County School Board 1450 Northeast Second Avenue Miami, Florida 33132-1308 Lois Tepper, Acting General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Dr. Eric J. Smith, Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue Whether the Respondent's licenses should be revoked, or whether lesser penalties should be imposed.
Findings Of Fact The following Stipulation of the parties was entered into evidence: The Petitioner and Respondent through their undersigned attorneys hereby stipulate to the introduction into evidence at the hearing to be held in this matter the attach ed copies of insurance policy applications referenced in the Administrative Complaint filed in this cause The Respondent further states that the applications were submitted to the respective insurers by Respondent, the Respondent signed the applications and received commissions on some of said appli cations. (Petitioner's Exhibit 4) An application was submitted to the Midwestern National Life Insurance Company by Respondent Owens in the name of Julia Lea Anderson, a witness for Petitioner, in September of 1977. In addition a form was submitted authorizing the automatic withdrawal of premium payments from Ms. Anderson's checking account. Ms. Anderson did not authorize, request or sign either the application for insurance or the check authorization withdrawal form. Respondent's testimony as to how he obtained the information he certified to be true and correct was contradictory and not worthy of belief. The Hearing Officer finds that Respondent submitted the application and check withdrawal form to Midwestern without the permission, knowledge or consent of Ms. Anderson in order to obtain a fee, commission or other benefit. An application for insurance was submitted to the Centennial Life Insurance Company together with an authorization form for said company to draw checks from a checking account of witness Roger Barone at the Dania Bank in Dania, Florida. Barone had never had an account at said bank and did not authorize or sign either the insurance application or the withdrawal form. Other applications not authorized or signed by Barone were submitted to the State Mutual Insurance Company and the Beneficial Standard Life Insurance Company. The application and the check withdrawal authorization were submitted by Respondent without the knowledge, consent or approval of Barone for the purpose of obtaining a fee, commission or other benefit. Applications for insurance were submitted to the Midwestern National Life Insurance Company by Respondent in the name of Chris E. Konopinski, John Scott Konopinski and Troy Allen Konopinski, all children of Carol Konopinski. Ms. Konopinski did not sign or request such applications, although she was listed as the applicant and beneficiary (Petitioner's Exhibit 5). The applications were made by Respondent Owens to secure a benefit for himself. Respondent filled out an application for insurance and check withdrawal form for Heather Gouvert without her signature or consent. Respondent admitted he thereafter sent a check dated November 13, 1976, to Ms. Gouvert in the amount of $24.25 marked "deposit only" to reimburse her for the amount the insurance company had drafted out of her account. Herman J. Zottie, a regional director of agencies for the Midwestern National Life Insurance Company, explained that his insurance company has a plan for new applications: When a premium is paid through a bank authorization (called a pre-authorization check plan), the company pays ninety (90) percent of two years' commission to the agent upon the payment of one month's premium. If the policy is thereafter cancelled, the unearned amount paid to the agent is charged back to the agent's account.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law the Hearing Officer recommends that all licenses and eligibility for licenses of the Respondent, Grady Harold Owens, be revoked. DONE and ORDERED this 6th day of May, 1980, in Tallahassee, Leon County, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Patrick F. Maroney, Esquire Legal Division Department of Insurance Room 428-A, Larson Building Tallahassee, Florida 32301 David R. Farbstein, Esquire 2610 West Oakland Park Boulevard Fort Lauderdale, Florida 33311
The Issue The issue presented for decision in this case is whether Petitioner’s claim of $10,000 in life insurance benefits should be paid or denied.
Findings Of Fact The State of Florida Group Insurance Program (the Program) is a benefit available to State of Florida officers, employees, and retirees. At the time of his death, John W. Hirschfeld was a retired state employee with life insurance coverage through the Program. Mr. Hirschfeld died on January 6, 2007. James R. Hirschfeld is the Personal Representative of the estate of John W. Hirschfeld, his father. Prior to John Hirschfeld’s death, James Hirschfeld held a Power of Attorney for John Hirschfeld, although he did not notify DSGI of the Power of Attorney until his father’s death. Convergys Corporation (Convergys) is a private entity that administers the State of Florida human resources and personnel system. At all times material to this proceeding, Convergys has been responsible for providing notice to Program participants regarding the availability of benefits and changes. Sandi Wade is the benefits administrator for the Division of State Group Insurance (DSGI). According to Ms. Wade, DSGI supplemented the cost of retiree life insurance in the past, thereby reducing the premium charged to retirees. This supplement was reduced by the Florida Legislature effective January 1, 2007. Accordingly, premiums paid by retirees had to be increased due to that reduction in funds. This resulted in a change in the life insurance options available to retired employees. By letter dated July 31, 2006, DSGI informed retired state employees of this change in a letter which read in pertinent part: Dear Retiree: RE: State of Florida Life Insurance The upcoming annual open enrollment period will provide you with three (3) options regarding your life insurance coverage. You should carefully examine all options and the information provided in your Open Enrollment packet, which will be mailed prior to Open Enrollment, to decide which choice best suits your unique circumstances. Effective January 1, 2007, the three (3) life insurance options available will be: A $2,500 benefit for a monthly premium of $4.20 A $10,000 benefit for a monthly premium of $35.79 Terminate life insurance coverage (precludes participants from re-enrolling for the product in the future.) Consistent with our practice in previous years, should you not participate in the Open Enrollment process, or make no change to your life insurance election, you will continue to be enrolled with retiree life insurance coverage. Your default election will be the $2,500 benefit, with its associated premium. If there is a desire to modify your open enrollment life insurance election, requests for changes to your life insurance coverage enrollment will be accepted through Friday, January 19, 2007. * * * This notice in advance of open enrollment is being provided in order that you will have additional time to consider all options available to you. Life insurance choices are important decisions. DSGI contracted with Pitney Bowes Management Services to mail the July 31, 2006, letter to 29,392 retired state employees. DSGI provided Pitney Bowes with a computer disk containing the names and addresses of the retirees to whom the letter was to be sent. The disk included the name John W. Hirschfeld at 2509 W. Taffy Lane, Leesburg, Florida 34748-6421. Using a software program, the names of retirees were electronically printed on envelopes directly from the disk provided to Pitney Bowes by DSGI. As a means of quality control, Pitney Bowes utilized a procedure which periodically stopped the printing process and counted the number of envelopes printed as compared to the number on the list of the last name printed. Pitney Bowes batched and delivered the envelopes containing the letter dated July 31, 2006, to the post office where the postage was applied using the mailing permit of the Division. The return address on the envelopes was the address of DSGI. The letters were mailed by Pitney Bowes on August 6, 2007. Janice Lowe is employed by DSGI and has been for 28 years. Her duties include assisting retirees with insurance issues. According to Ms. Lowe, DSGI received numerous returned letters from Pitney Bowes. With each returned letter, DSGI accessed the Florida Retirement System (FRS) data base to determine whether there was another address for the retiree to whom the returned letter was addressed. Each time a name was accessed on the FRS system, DSGI printed that Retirement Benefit Information Screen and inserted it into a three-ring binder. The letter was re-mailed to the retiree when the FRS data provided an address which was different from that used by DSGI in the initial mailing. If the FRS data base did not provide a different address, or if the letter was returned a second time, DSGI personnel attempted to make telephone contact with the retiree and so noted in a log and/or on the returned envelope. At hearing, DSGI produced three voluminous binders containing the Retirement Benefit Information Screen for each retiree whose letter had been returned. According to Ms. Lowe, the binders did not contain a Retirement Benefit Information Screen for John W. Hirschfeld indicating that the screen had not been pulled-up because the letter to Mr. Hirschfeld had not been returned. Each year, DSGI holds an open enrollment period as required by Section 110.123(3)(h), Florida Statutes. Open enrollment is that period of time once a year, as identified by DSGI, during which participants in the state group insurance programs may change, add, or cancel participation in the insurance plans offered. Prior to open enrollment, information is mailed to all participants regarding availability of various plans, including description of benefits. Open enrollment is generally held during October for coverage during the next year. In preparation for open enrollment held during October 2006, Convergys mailed a package of materials to participants in the Program. Included in that package was a benefits statement that identifies the types of coverage carried by the participant. On September 3, 2006, Convergys mailed an open enrollment package to John Hirschfeld. Under the heading “Basic Term Life,” the statement showed the coverage of $2,500 at a monthly cost of $2.40 to the participant, and $10,000 coverage at a monthly cost of $35.79 to the participant. Next to the line explaining that coverage for $2,500 has a cost to the participant of $4.20, was the symbol “**”. At the bottom of the page, the following appears: “** Indicates Current Coverage and Default Election effective 01/01/2007.” Immediately below the explanation of premium costs for the two levels of coverage was the following sentence: “If you do not make an election change, your current life insurance premium will change to $2,500.” The 2006 Open Enrollment package for year 2007 also included a document entitled, “State Group Insurance Program- Information of Note” which reads in pertinent part: RETIREE LIFE INSURANCE For Plan Year 2007, those currently enrolled with retiree life insurance may elect to retain the current $4.20 premium for a benefit of $2,500, retain the current benefit of $10,000 for a premium of $35.79, or cancel coverage. If no change is made during open enrollment, participation will continue at the $4.20 premium level. Convergys mailed the 2006 open enrollment package to John W. Hirschfeld at 2509 W. Taffy Lane, Leesburg, Florida 34748-6421. John Hirschfeld became very ill in November 2005. After surgery in April 2006, a nurse was hired to go to John Hirschfeld’s home to assist him. James Hirschfeld took over his father’s affairs, including checking his father’s mail every two days. John Hirschfeld did maintain a key to the mailbox that was located in a bank of mailboxes, although he was in poor physical condition and most likely could not check his mail. It is unknown whether his nurse ever checked his mailbox. James Hirschfeld never saw any documents from the state regarding the change in life insurance options either when he picked up his father’s mail or after his father died when he cleaned out his father’s home to sell it. Prior to the benefits change effective January 1, 2007, John Hirschfeld paid a monthly premium of $4.20 for $10,000 in life insurance coverage. Had James Hirschfeld known, he would have submitted the necessary changes and paid the new higher premium on behalf of his father to maintain the $10,000 life insurance coverage. He is confident that had his father known of the change, he would have elected to pay the increased premium because they had discussed his father’s life insurance coverage of $10,000. At hearing, James Hirschfeld acknowledged that he is not disputing that the state sent the letter to his father. He asserts that the extra $7,500 of life insurance is justified because he or his father would have changed the coverage had either of them known. The preponderance of the evidence establishes that two notices of the change in life insurance options for state retirees, the July 31, 2006, letter and the open enrollment packet, were sent to John Hirschfeld at his actual address, and that the notices were not returned.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Management Services enter a Final Order denying Petitioner's request for the increase in life insurance benefits. DONE AND ENTERED this 26th day of December, 2007, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS 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 26th day of December, 2007. COPIES FURNISHED: James R. Hirschfeld, Personal Representative of the Estate of John W. Hirschfeld 9548 Mid Summer Lane Leesburg, Florida 34788 Sonia P. Matthews, Esquire Department of Management Services 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399-0950 Linda South, Secretary Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-0950 John Brenneis, General Counsel Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-0950
The Issue The ultimate issue in this case is whether Respondent's proposed Florida Administrative Code Rule 69O-149.022(3), which would incorporate by reference Form OIR-B2-2112, constitutes an invalid exercise of delegated legislative authority. Before that issue may be reached, however, it is necessary to determine whether Petitioners have standing to challenge the proposed rule.
Findings Of Fact The Financial Services Commission ("Commission") is a four-member collegial body consisting of the governor and cabinet. The Office of Insurance Regulation ("Office") is a structural unit of the Commission. Giving rise to this case, the Office initiated rulemaking and made recommendations to the Commission concerning an amendment to rule 69O-149.022, which would incorporate by reference Form OIR-B2-2112, titled "Consumer Notice [Regarding] The Impact of Federal Health Care Reform on Health Plan Costs" ("Form 2112"). Whenever the Commission or the Office engages in rulemaking, the members of the Commission serve as the agency head. The Commission thus has the ultimate responsibility for approving and adopting the proposed rule. CHAIN is a nonprofit corporation which operates solely within the state of Florida. CHAIN is subject to the oversight of a voluntary board of directors. As a health-care advocacy organization, CHAIN is exempt from taxation under section 501(c)(3) of the Internal Revenue Code and derives its income primarily from grants and contributions. CHAIN provides services to low- and moderate-income individuals who lack health insurance coverage or perceive their coverage to be unaffordable or inadequate. CHAIN provides health insurance purchased through Florida's small-group health insurance market to each of its five full-time employees. Greg Mellowe is a full-time employee of CHAIN who receives health insurance coverage through such employment. During the 2013 regular session, the Florida Legislature passed a bill, which the governor approved, enacting section 627.410(9), Florida Statutes. This section requires that insurers provide to policyholders of individual and small-group nongrandfathered plans a notice that describes the estimated impact of the federal Patient Protection and Affordable Care Act ("PPACA")——popularly and more commonly known as Obamacare——on monthly premiums.1/ An insurer that issues a nongrandfathered plan must give this notice one time——when the policy is issued or renewed on or after January 1, 2014——on a form established by rule of the Commission. (A "nongrandfathered" plan is a health insurance plan that must comply with all of Obamacare's requirements. For ease of reference, such plans will be referred to as "compliant plans.") Having been directed to act, the Office commenced rulemaking to establish the form of the notice to be sent to persons insured under compliant, individual and small-group plans, eventually proposing to adopt Form 2112. The Commission approved this form at a hearing on August 6, 2013. Form 2112 fills a single, one-sided page2/ and looks like this: CHAIN will receive the Obamacare notice when it renews its small-group health insurance plan, or purchases a new plan, on or after January 1, 2014.
The Issue The issue in this case is whether disciplinary action should be taken against the Respondent on the basis of her failure to timely comply with continuing education requirements established by Section 626.2815, Florida Statutes.
Findings Of Fact The Respondent is currently licensed by the Florida Department of Insurance ("Department") as a General Lines (2-20) Agent. During the period from August 1, 1995, through July 31, 1997, the Respondent was licensed as a General Lines (2-20) Agent and as a Life, Health, and Variable Annuity (2-15) Agent. At all times material to this case, insurance agents licensed in Florida have been required to complete continuing education courses every two years. Licensed insurance agents can meet their continuing education requirements by attending seminars, taking classroom courses, or taking self-study courses. During the period from August 1, 1995, through July 31, 1997, the Respondent was required to complete 28 hours of continuing education courses. /3 The required courses could be taken and completed at any time during that two-year period. At all times material, the Respondent has been aware of the continuing education requirements applicable to licensed insurance agents. The Respondent resides in Key Largo, Florida, and has lived at the same address for at least 10 years. Miami, Florida, is about 60 miles from Key Largo. Key West is about 100 miles from Key Largo. During the period from August 1, 1995, through July 31, 1997, there were 11 continuing education courses offered in Key largo. During that same period there were 73 continuing education courses offered in Monroe County. During that same period there were approximately 3,000 continuing education courses offered in Dade County. The Respondent waited until July 16, 1997, which was 15 days before the end of her two-year continuing education deadline, before taking any action to comply with the continuing education requirements. On that day she ordered two self-study courses from a course provider named Noble. If an insurance agent chooses a self-study course to fulfill the continuing education requirements, the course is not considered to be completed until the agent has taken a monitored examination on the course material and has achieved a score of at least 70 percent. The Respondent finished her study of the course materials she bought from Noble by the end of July 1997, but she did not take and pass the examinations on those materials until the end of August 1997, which was three or four weeks past the end of her compliance deadline. In July of 1997, the Respondent was nursing an infant child. Although Noble had a testing site in Miami, the Respondent did not want to go to Miami to take the examinations for her self-study courses, because a trip to Miami would interfere with nursing her child. The Respondent waited until the end of August, because by that time Noble had opened a testing site in Key Largo. All insurance agents who failed to comply with the continuing education requirements for the period ending July 31, 1997, were sent a Preliminary Notice of Non-Compliance. All agents who did not respond to the Preliminary Notice of Non- Compliance were sent a Final Notice of Non-compliance. Both preliminary and final notices were sent to the Respondent. The Department initiated disciplinary action against all insurance agents who were found to have failed to comply with the continuing education requirements. The Department offered each of the non-compliant agents an opportunity to settle the disciplinary actions by payment of an administrative fine in the amount of $250.00. Numerous insurance agents settled on those terms. In one case, such a disciplinary action was resolved by a stipulated six-month license suspension.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that the Department of Insurance issue a final order concluding that the Respondent is guilty of failing to comply with statutory and rule provisions regarding continuing education, and imposing a penalty consisting of a six-month suspension of the Respondent's license. DONE AND ENTERED this 8th day of October, 1999, 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 8th day of October, 1999.
Findings Of Fact Donald A. Moyant, Petitioner, operates a contractors' exam school in Brandon, Florida, at which he preps builders to take the CILB exam for licensure as contractors. Petitioner took the exam given in June 1985 and received a score of 58.60. A score of 70.00 is required to pass this examination. The only answer that Petitioner questions is the answer he supplied to question No. 2, which related to the number of reinforcing bars required in a concrete slab of given dimensions and spacings of the bars. In Petitioner's solution to the problem he dropped the fractional bar that resulted from dividing the length of the slab by the spacing between bars. The correct solution requires the addition of a bar for this fractional spare. Petitioner's purpose in pursuing this proceeding is to obtain information to use in his Contractors Exam School, Inc. Since he would not have passed the examination even if his solution to question No. 2 had been marked correct, Petitioner is without standing to bring this action because he is doing so on behalf of the school he runs and not to allow him to receive a passing grade.
Appeal For This Case Unless expressly waived by a party, such as in a stipulation or in other similar forms of settlement, any party substantially affected by this final order may seek judicial review by filing an original Notice of Appeal with the Agency Clerk of the Department of Management Services, and a copy, accompanied by filing fees prescribed by law, with the Clerk of the appropriate District Court of Appeal. The Notice of Appeal must be filed within thirty (30) days of rendition of this order, in accordance with Rule 9.110, Fla. R. App. P., and section 120.68, Florida Statutes. Certificate of Clerk: Filed in the office of the Clerk of the Department of Management Services onthis ($7 day of January, 2014. LEZ Michael Sivitla, Agency Clerk
The Issue Whether Respondent committed the violations alleged in the First Amended Administrative Complaint; and If so, what disciplinary action should be taken against him.
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Respondent's Licensure Status Respondent is now, and has been at all times material to the instant case, a Florida-licensed life and health insurance agent. Counts I through VI At all times material to the instant case, Peter DeBello, Inc., d/b/a Emery Richardson Insurance (Corporation), a Florida corporation owned by Respondent's father, operated a general lines insurance agency (Emery Richardson Insurance) located in the state of Florida. The Corporation was formed to manage the assets of Emery Richardson, Inc., which assets Respondent's father had obtained through litigation. Respondent's father delegated to Respondent the authority to manage the affairs of the Corporation. The same day (in 1992) that the Corporation took possession of Emery Richardson, Inc.'s assets, it so notified the Department of Insurance (Department) by telephone. Shortly thereafter, Leo Joy, a Florida-licensed property and casualty insurance agent since 1961, was designated on a Department- provided form as the primary agent for Emery Richardson Insurance at its 240 Commercial Boulevard location in Lauderdale By The Sea, Florida, and the completed form was provided to the Department.3 At no time prior to the commencement of the instant administrative proceeding did Respondent himself personally notify the Department of the identity of Emery Richardson Insurance's primary agent. It was Mr. Joy who (in 1992) filled out the primary agent designation form and submitted it to the Department. Mr. Joy, however, did so on behalf of Respondent, who had verbally designated Mr. Joy as Emery Richardson Insurance's primary agent. Neither Respondent, Mr. Joy, nor any one else, has subsequently used the Department's primary agent designation form to advise the Department of Mr. Joy's continuing status as Emery Richardson Insurance's primary agent. In his capacity as president of the Corporation, Respondent, on behalf of the Corporation, in April of 1994, entered into an agreement (Agreement) with Ulico Casualty Company of Washington, D.C. (Ulico), which provided as follows: WHEREAS, the Applicant (Corporation), a licensed insurance agent and/or insurance broker, has heretofore obtained from the COMPANY (Ulico) or is desirous of obtaining from the COMPANY the placement of insurance for the Applicant's customers or principals, and WHEREAS, the COMPANY, using its facilities, has placed insurance for the Applicant or with whom Applicant has requested the placement of such insurance, NOW, THEREFORE, in consideration of the mutual promises herein contained, and for other good and valuable consideration, the receipt whereof is hereby acknowledged. It is mutually AGREED as follows: With reference to the placement of new insurance, Applicant shall submit to the COMPANY a separate application containing the name of each prospective insured, describing the risk to be considered for underwriting and binding. Applicant specifically understands and agrees that Applicant shall have no authority to authorize or write any insurance or bind any risk on behalf of the COMPANY without the prior written approval by a duly authorized representative of the COMPANY. With respect to any insurance heretofore placed with the COMPANY by the Applicant, and with respect to any insurance hereinafter placed by the Applicant, all premiums shall be payable to the COMPANY and such Applicant assumes and agrees to pay the COMPANY premiums on all the policies of insurance heretofore or hereinafter placed by Applicant with the COMPANY in accordance with the current statements rendered to the Applicant by the COMPANY, such payment to be made no later than 30 days after the month of issue of the insurance policy, or due date of any installment if issued on an installment basis, less any credits due to the Applicant for return premium, provided an appropriate credit memorandum therefor has previously been issued by the COMPANY to Applicant. In the absence of such credit memorandum, Applicant shall have no right of counterclaim or setoff with respect to any claimed credits due, but shall be required to establish entitlement to the same in a separate action. Applicant shall have the right, so long as Applicant is not indebted to the COMPANY, to deduct agreed upon commissions on each policy of insurance prior to remitting the remaining premium to the COMPANY. In the event that premiums on behalf of any insured party shall have been financed and refund of financed premiums are required from the COMPANY to the financing institution, Applicant shall forthwith refund and pay to the COMPANY all unearned commissions heretofore received with respect to such financed premiums. In the event that Applicant shall fail to make any payment to the COMPANY which is required to be made pursuant to this Agreement, within the time specified, the COMPANY shall have the right, at any time subsequent to the due date of payment, to cancel any policy on which the premium payments have not been remitted to the COMPANY, without prior notice to the Applicant, by sending notice of cancellation directly to the insured, except that Applicant shall continue to remain liable to the COMPANY for the payment of all premiums earned as of the date of cancellation which are collected by Applicant. Applicant represents that they are duly licensed as an insurance broker or agent for Casualty and Property Insurance as indicated in the States set forth below, and agrees that in the event that any license shall cease, terminate or be cancelled, that the Applicant will promptly notify the COMPANY accordingly. Applicant agrees, where required, to file at Applicant's expense, all necessary affidavits and collect all State or local premium taxes and to pay the same promptly to the respective taxing authorities on all insurance placed with the COMPANY, in accordance with the laws applicable in the State of licensing. No changes or modification of this Agreement shall be valid unless such change or modification is subscribed, in writing, by the COMPANY and Applicant. Ulico is one of approximately 47 insurance companies that Emery Richardson Insurance represents. In the past five years, Emery Richardson Insurance has received from clients in excess of seven or eight million dollars in premium payments, which it has deposited in its various checking accounts and then paid over to these insurance companies. Ulico is the only one of these 47 insurance companies to have experienced "problems" in receiving from Emery Richardson Insurance monies due. These "problems" are detailed below. On June 13, 1994, the Corporation opened a checking account (account no. 458-902279-9, hereinafter referred to as the "Account") with Savings of America at the bank's Hollywood, Florida, branch. The Peter Debello described on the signature card for the Account was Respondent's father. Respondent's father, however, through execution of a power of attorney, had authorized Respondent to act on his behalf in connection with the Account. On August 20, 1996, Respondent drafted and signed four checks drawn on the Account, which were made payable to Ulico: check no. 804, in the amount of $1,729.15, for "Teamsters #769, Policy #BOU 907"; check no. 805, in the amount of $1,071.65, for "Sheet Metal Appr. #32, Policy #CLU 668"; check no. 806, in the amount of $700.00, for "Sheet Metal #32, Policy #CLU 682"; and check no. 807, in the amount of $96.05, for "Painters L.U. 160, Policy #CLU 451." (These policies will hereinafter be referred to as the "Subject Policies.") On January 24, 1997, Respondent drafted and signed a check (check no. 882) drawn on the Account, in the amount of $7,500.00, which was also made payable to Ulico. Check nos. 804, 805, 806, 807,4 and 882 were sent to Ulico as payment for monies the Corporation owed Ulico (pursuant to the Agreement) for insurance coverage obtained from Ulico by the Corporation for its clients (as reflected in invoices Ulico sent the Corporation, which hereinafter will be referred to as the "Subject Invoices").5 At the time that he drafted and signed these checks and submitted them to Ulico, Respondent assumed that there were sufficient funds in the Account to cover the amounts of the checks. In drafting and signing these checks and submitting them to Ulico, Respondent did not make any statements or representations that he knew to be false or misleading. All five checks were returned by Savings of America unpaid, with the explanation, "insufficient funds," stamped on each check.6 (These checks will hereinafter be referred to as the "Dishonored Checks.") Ulico's premium collection manager, Gayle Shuler, spoke with Respondent, as well as with Mr. Joy, "many times" concerning the monies the Corporation owed Ulico. At no time did either Respondent or Mr. Joy indicate that they disputed the Subject Invoices7 (although Respondent and Mr. Joy did contest other invoices that they received from Ulico). Although aware that the Dishonored Checks had been returned due to insufficient funds8 and knowing that Ulico desired payment, Respondent failed to act promptly to remedy the situation. It was not until early 1998, after the commencement of the instant administrative proceeding, that Respondent, on behalf of the Corporation, took steps to address the matter. At that time, using Fidelity Express money orders purchased between February 26, 1998, and March 1, 1998, (which Respondent dated August 26, 1996), Respondent paid Ulico a portion ($1,867.70) of the total amount of the Dishonored Checks. The money orders were sent to Ulico by certified mail, along with a cover letter from Respondent. Respondent "backdated" the money orders to reflect "when [the monies owed Ulico] should have been" paid. He did so without any intent to mislead or deceive. There is no clear and convincing evidence that anyone other than Ulico was injured by Respondent's failure to timely pay over to Ulico the monies Emery Richardson Insurance had received from its clients for the Subject Policies (which monies belonged to Ulico). Respondent's failure to timely make such payments, it appears, was the product of isolated instances of carelessness, neglect and inattention on Respondent's part,9 which, when considered in light of the totality of circumstances, including his problem-free dealings with the other insurance companies Emery Richardson Insurance represents, were not so serious as to demonstrate a lack of fitness, trustworthiness or competency to engage in transactions authorized by his license. Count VII In August of 1986, Respondent visited Gary Faske, Esquire, at Mr. Faske's office in Dade County, Florida. The purpose of the visit was to have Mr. Faske complete the paperwork necessary to add Mr. Faske to his new employer's group major medical insurance policy with Union Bankers Insurance Company. After the paperwork was completed, Respondent left Mr. Faske's office with the completed paperwork, as well as a check from Mr. Faske's employer to cover the cost of adding Mr. Faske to the group policy.10 It is unclear what Respondent did with the paperwork and check after he left Mr. Faske's office. In October of that same year (1986), Mr. Faske took ill and had to be hospitalized on an emergency basis. He assumed that he was covered by his employer's group major medical insurance policy, but he subsequently learned that he was wrong and had to pay between $50,000.00 to $60,000.00 in medical bills. The evidence does not clearly and convincingly establish that Respondent (as opposed to Union Bankers Insurance Company or some other party) was responsible for Mr. Faske not having such coverage. Mr. Faske thereafter filed suit against Respondent and Union Bankers Insurance Company in Dade County Circuit Court. He settled his claim against the insurance company, but was unable to reach an agreement with Respondent. Respondent's case therefore went to trial, following which, on August 12, 1997, a Final Judgment11 was entered against Respondent in the amount of $40,271.00.12 Count VIII By filing an Address Correction Request, dated January 29, 1992, Respondent notified the Department that his new mailing address was 40 Hendricks Isle, Fort Lauderdale, Florida. The Department subsequently sent a letter, dated April 14, 1995, to Respondent at this 40 Hendricks Isle address. Respondent, however, "had just moved from that address," and the letter was returned to the Department stamped, "forward expired." In May of 1995, Respondent advised the Department in writing of his new mailing address. It is unclear whether such written notification was given more than, or within, 30 days from the date Respondent had moved to his new address.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department issue a final order: (1) finding Respondent guilty of the violations noted in the Conclusions of Law of this Recommended Order; (2) penalizing Respondent for having committed these violations by suspending his license for 18 months; and (3) dismissing the remaining allegations of misconduct advanced in the First Amended Administrative Complaint. DONE AND ENTERED this 12th day of February, 1999, in Tallahassee, Leon County, Florida. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of February, 1999.
Findings Of Fact At all times relevant to this proceeding, Respondent, Carl Austin Jorgensen, was licensed by the Petitioner, Department of Insurance, as an ordinary-combination life including disability insurance agent and a solicitor for property, casualty, surety and miscellaneous lines insurance. He has held a license since 1956. During the time in which the alleged violations occurred, Respondent was employed by Simons and Rose Agency, an insurance firm located in Coconut Grove, Florida. Respondent wished to establish an insurance agency with his wife, Maren Jorgensen, who was licensed as a general lines agent. He discussed this with her on several occasions in 1977, but she would not agree. Her consent was necessary since agency applications must be submitted by a licensed general lines agent. On or about August 10, 1977, Respondent prepared and submitted an application for agency appointment to the Florida Joint Underwriters Association (FJUA) . The Association is the successor to the automobile assigned risk plan in Florida and was established to provide insurance coverage to those automobile drivers who are otherwise unable to obtain voluntary insurance coverage. The application was submitted under the name of All Lines Insurance Agency, 222 NorthEast 20th Street, Miami, Florida, and bore the name and signature of Maren Jorgensen, the Respondent's wife (Petitioner's Exhibit 2). The application was actually signed by Respondent, who had forged his wife's name (Petitioner's Exhibit 7). As a licensed general lines agent, Maren Jorgensen held a 2-20 license. This license was required in order to be qualified to sell insurance through the FJUA. Respondent held no such license, and as such, was unqualified to write policies. Upon receipt of the application, the FJUA reviewed it, and having determined that Maren Jorgensen held an appropriate license, assigned Nationwide Mutual Fire Insurance Company to write policies for All Lines' customers. Maren Jorgensen was unaware of the application being filed, and did not consent to the use of her name. At no time did she participate in or otherwise supervise the running of the business. Rather, Respondent himself operated the agency until early 1978, when it ceased to do business. On or about December 23, 1977, Respondent solicited and sold two automobile insurance policies to Lowell McLean, III, a long-time acquaintance. These policies were issued by Nationwide Mutual Fire Insurance Company and were numbered J58721 and J57869 (Petitioner's Exhibits 3 and 5) The applications bore the name and signature of his wife as producing agent. However, the applications were prepared and submitted by Respondent without her knowledge and consent. The Florida Department of Law Enforcement (FDLE) verified that Respondent had forged her signature (Petitioner's Exhibit 7) On or about November 26, 1977, Respondent solicited and sold an automobile insurance policy to Michael J. Halen. This policy was issued by Nationwide Mutual Fire Insurance Company and was numbered J56852 (Petitioner's Exhibit 4). It bore the name and signature of Respondent's wife as producing agent. However, the application was prepared and submitted without the knowledge and consent of Maren Jorgensen. Again, the FDLE verified that Respondent had actually signed her name (Petitioner's Exhibit 7). Two relatively small commission checks were sent by Nationwide to Maren Jorgensen as producing agent for the sale of the three policies. The checks were mailed to the address of All Lines, without the knowledge of the wife. Respondent appropriated one of the checks for his own personal use. His wife accidentally discovered the other in her husband's wallet and then cashed it herself. Respondent sold only three policies involving two customers during his association with All Lines. None of the three transactions resulted in harm or financial loss to either the customers or the insurance company. During the period when the aforesaid events occurred, Respondent and his wife, although living together, were experiencing marital difficulties. In fact, his wife characterized this time-frame as being a "rather stormy period". They are now separated. Respondent acknowledged the charges in the complaint, but attributed these indiscretions to his desire to rehabilitate the marriage by cultivating a successful insurance business with his wife.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent Carl Austin Jorgensen's ordinary-combination life including disability insurance license be suspended for a period of eighteen (18) months from the date of the final order entered in this proceeding for those violations of Chapter 626, Florida Statutes (1977) described herein above. DONE and ENTERED this 22nd day of April, 1981, in Tallahassee, Florida. DONALD R. ALEXANDER 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 22nd day of April, 1981. COPIES FURNISHED: Deborah A. Getzoff, Esquire Department of Insurance 428-A Larson Building Tallahassee, Florida 32301 William A. Meadows Jr., Esquire 6101 SW 76th Street South Miami, Florida 33143
The Issue Petitioner, a former employee of Respondent School Board, has alleged that the Respondent violated section 760.10, F.S., by discriminating against him based on his handicap. The basic issue is whether that violation occurred and if so, what relief is appropriate. However, in this protracted proceeding various ancillary issues have been raised and also require disposition. Those issues include: Whether Petitioner's claim of discrimination based on failure to hire was timely; whether Petitioner may also claim discrimination based on wrongful termination or is that claim time-barred; whether evidence of Petitioner's criminal history, acquired by Respondent during the pendency of the proceeding and after the alleged discrimination, is relevant in the proceeding and, if so, whether it is a bar to, or simple limitation on relief; and whether Petitioner's motion to proceed anonymously, filed after the evidentiary hearing, should be granted.
Findings Of Fact Petitioner (Sanford) was first hired as a bus driver by the school board on February 8, 1968, and became an operations administrative assistant on October 1, 1982. As bus driver, and in the early years as an administrative assistant, he received above average, outstanding or (after the evaluation form changed) satisfactory performance ratings. In 1986 Sanford was supervised by the operations chief, Geraldine Hanna. Ms. Hanna initially felt fortunate at having an administrative assistant, but after three or four weeks she had major concerns about his job performance. Sanford required excessive supervision to complete a task; there were errors, and the tasks were not being completed within deadlines. She observed his frustration and inappropriate language over the air and within the dispatch office. The school board had recently initiated an employee assistance program (EAP), and suspecting "something was wrong", Ms. Hanna referred Sanford to the program. Although she never smelled alcohol or observed the employee stumbling or staggering, Hanna felt Sanford had some type of substance abuse problem and told him that she suspected something was going on. The first EAP referral was made through Dave Wofford, Director of Transportation, to Scott Diebler, Senior Manager for the Orange County School Board's EAP. Wofford was considered a "hard-nosed" supervisor, but Scott Diebler felt that he went further with Sanford than normally because of Sanford's long prior excellent record of performance. Sanford was referred again to the EAP, directly by Hanna, in fall 1986 or spring 1987, as the performance problems persisted. These performance problems are detailed in a classified evaluation report dated 4/10/87 and signed by both Gary Sanford and Geraldine Hanna. A narrative attachment to the report cites examples and concludes: The recited examples give evidence of [Sanford's] inability to complete duties in a timely, effective and organized manner. He demonstrates no initiative in the performance of his duties and cannot work without supervision. His lack of proper documentation and follow-through have resulted in frustration on the part of the management staff. (Respondent's Ex. #8) Scott Diebler met with Sanford and his supervisors and arranged to have Sanford evaluated by outside professionals with whom the program contracted for services. At some point, Hanna and Sanford met together with a counsellor. Sanford's initial symptoms were typical of emotional and mental health problems; there were mood swings, hyperactivity and excitability. Shortly after several different professional opinions were obtained, Diebler determined that the primary presenting problem was chemical dependency (alcohol, marijuana and cocaine) and that there were secondary emotional problems. Sanford admits that in 1986 and 1987 he would go home after getting off work at 2:30 p.m. and would drink until he fell asleep. He denies ever drinking on the job. Beginning in September 1986 Sanford was treated by an EAP service provider, Psychological Service Associates, through Recovery Alternatives, Inc. (RAI). He completed Phase I of outpatient intensive group and individual therapy and was transferred to Phase II, which included Alcoholics Anonymous meetings. There is no evidence that Sanford successfully completed Phase II. The treatment he received temporarily alleviated, but in no way "cured" his addiction. According to competent expert witnesses, alcoholism as a disease is never cured. In a proper recovery program and with proper motivation, an individual may recover and arrest the disease. At times throughout his history at the EAP Sanford abstained and showed some progress toward recovery. He also experienced periods of relapse, with no progress. Sanford attended some AA meetings in 1987, but not enough to help. At that stage he was still in "denial" and tended to blame others for his problems. When the performance problems in the Department of Transportation did not improve and Sanford was headed for a "disciplinary scenario", as observed by Scott Diebler, the EAP helped Sanford find a transfer to another department. The idea was that if the performance problems were the result of a personality conflict, a transfer would resolve the conflict. Richard Staples was senior administrator for warehouse and distribution in 1988, when he agreed to accept Sanford for transfer to a courier position with the understanding that Sanford would follow through with his offered assistance through EAP. Sanford's performance improved for a time, and on March 11, 1988, Staples evaluated him as "satisfactory", with "excellent" ratings in dependability, adaptability and attitude. By May 1989, performance deteriorated, and primarily because of attendance problems, Staples referred Sanford back to Scott Diebler and the EAP. Diebler acknowledged the referral with a memo to Staples informing him that Sanford was referred to an outpatient program at Florida Psychiatric Associates. On July 10, 1989, Sanford was absent without authorization during assigned work hours despite having been warned in May that he was to notify Staples personally with regard to any need for absence from the worksite. Staples sent Sanford a written confirmation of their July 13, 1989 meeting regarding the absence, with a warning that reoccurrence would result in a one- week suspension without pay. Sanford admits that the July 10th absence was related to his drinking. He was drinking heavily daily after work and was using cocaine on weekends during this period. He does not know how much alcohol he consumed, but as before, he drank steadily from the time he came home from work until he passed out. On July 17, 1989, someone who identified herself as a parent of an Oak Hill Elementary School child telephoned the mailroom of the courier department and informed Richard Sanders, the relief courier driver helping the mail clerk, that an Orange County School Board courier was drunk and stumbling and falling into the truck. The message was given to Richard Staples. Oak Hill was on Sanford's route. Staples checked Sanford's route schedule and had his secretary call the next two schools to tell Sanford to stay where he was and call Staples' office. Staples then took a relief driver and another administrator, Steve Wind, and found Sanford at West Orange High School, waiting as instructed. While Sanford was waiting for Staples he called Staples' secretary twice, each time talking incoherently and very upset. She kept telling him he had to wait at the school for Staples. When Staples found him waiting at the school lobby, Sanford's demeanor was lethargic and he did not appear to have himself under control. Steve Wind observed Sanford's speech as slurred and his eyes were glassy. He was unsteady, but not staggering. Staples drove Sanford to his house, with Wind in the backseat, and the relief driver finished the route. Sanford asked Staples to take him to the warehouse so he could get his car, but Staples told him that he did not want him driving in his condition. Staples asked several times if Sanford wanted to stop by a clinic on the way home. Sanford said, no. Several times Sanford asked what was going to happen and was he going to be fired. Staples said he did not know, and was only concerned about Sanford getting home. Sanford cried. After taking Sanford home, Staples explained the incident to John Hawco, the school board's senior manager of employee relations. Staples also sent a letter to Sanford, dated July 18, 1989, informing him that he was relieved of duty with pay, pending an investigation into the events of July 17th, and notifying him that a meeting which could result in disciplinary action would be scheduled in the near future. The collective bargaining agreement which covered Sanford as a courier driver provides that an employee may be suspended without pay or dismissed for conviction of any crime involving moral turpitude, drunkenness, gross insubordination, immorality, misconduct in office, willful neglect of duty, or continued failure to satisfactorily meet performance standards for the job. The agreement provides for a pretermination meeting at which the employee may be represented and is given the opportunity to explain the facts and provide other witnesses or sources of information. The pretermination meeting was scheduled for July 20th, but was cancelled because Sanford overdosed on alcohol and cocaine and was temporarily hospitalized. The meeting was held on August 1, 1989. At the meeting, Sanford denied being under the influence on July 17th, but also apologized for what had happened. Sanford was accompanied by a union representative. Staples and Hawco discussed the options and rejected the possibility of moving Sanford to another position. They considered his history of chemical abuse and failure to comply with EAP recommendations. They told Sanford that he would be terminated and urged him to obtain treatment. Hawco advised Sanford that he could resign his position or seek retirement, if eligible, and gave him three days to come to a decision, at which time his employment would be terminated. On August 3, 1989, Hawco was contacted by a staff person in the EAP who advised that Sanford had entered a treatment program. Scott Diebler worked out an arrangement for Sanford's termination to be delayed briefly to give him the benefit of insurance during his detoxification and initial treatment. Hawco's decision to terminate Sanford was based on his determination that Sanford was operating a county vehicle while under the influence, which under the School Board's policy is a termination offense. This, coupled with Sanford's past performance, was the basis for the termination, and not his status as an alcoholic. The termination notice to Gary Sanford from John Hawco is dated August 18, 1989, and informs him that the effective date of termination was August 17, 1989. By this time, Sanford was in a 35-day inpatient treatment program at Cross Roads treatment center. His mother brought him the termination notice on her first visiting day in August, the Sunday after the notice arrived. Because he was not able to have contact with outside persons during the initial stage of his treatment, Sanford asked his mother to call Scott Diebler. She did, and he told her that they could discuss rehire after Gary Sanford was successfully treated, in about six months. No one from the school board informed Sanford or his treatment facility that Sanford had not been terminated or that Sanford would automatically be rehired upon completion of a treatment program. Before termination, Scott Diebler had argued for a "last chance" contract for Sanford, to give him one final chance to be successfully rehabilitated; but the request was denied with an explanation and apology that the job problems had been too severe and there had already been many opportunities to get help. After termination, Diebler got a report from the treatment center implying that Sanford was on a leave of absence. He attempted to assure that the center was properly informed, as there were insurance implications. That is, the first 30 days were covered through the EAP or board's insurance, but thereafter Sanford was responsible. Diebler also assured himself by checking with John Hawco and the union representative that Gary Sanford understood from the August 1st meeting that his employment was to be terminated. Diebler had some contact with Sanford during treatment at Cross Roads and assured him that he could reapply after six months. At some point, Diebler sent him an employment application. Sanford completed the intensive inpatient program and stayed on at Cross Roads for another six to eight months. After the thirty-five day program was completed, he resided in the half-way house and worked various jobs such as Texaco and a dinner cruise ship. He no longer drinks and he attends AA meetings regularly. He has remained employed. In February 1990, Sanford went to see John Hawco at the school board and said he had completed six months successful treatment. Sanford told Hawco that he understood he could get his job back; he also said he wanted payment for his accrued sick leave, which was approximately 1,176 hours at the time of his termination. Hawco reminded him that because he was involuntarily terminated, he was not entitled to accrued leave. Sanford did not specifically ask for his job back and said he wanted the terminal pay (approximately $12,000) in order to get a new start. The non-eligibility for terminal pay was reiterated in writing by John Hawco to Gary Sanford in a letter dated October 1, 1990, in response to a letter Sanford had sent to the assistant superintendent. Sanford never put in an application to be rehired by the school board, contrary to Diebler's earlier advice. Sanford initially contacted the Florida Commission on Human Relations in April 1990, with regard to filing a charge of handicap discrimination. He was advised that his charge was untimely, based apparently on his termination date of August 1989. He later recontacted the commission to complain and was permitted to file his charge on March 12, 1991, based on denial of rehiring, allegedly occurring on February 2, 1990. (Petitioner's Ex. #18) This is the charge which initiated this proceeding. At some point after the charge and petition for relief were filed, and before the formal hearing, the school board requested a criminal record background check on Gary Sanford and uncovered the following: a) On July 16, 1984, after a plea of guilty to driving under the influence (DUI), Sanford was adjudicated guilty, placed on probation, fined, and sentenced to 50 hours community service with a driver's license suspension of six months; b) On October 14, 1988, after a plea of guilty to exposure of sexual organs (in a booth in an adult entertainment center), Sanford's adjudication was withheld and he was placed on unsupervised probation for one year under the condition that he not return to an adult entertainment establishment; c) On August 28, 1990, after a plea of nolo contendere to the misdemeanor of lewdness (soliciting a police agent in a park restroom), Sanford was adjudicated guilty, and was placed on supervised probation with conditions that he participate in substance abuse counselling/screening and would not return to any Orange County park; and d) On August 28, 1991, after a plea of guilty of being in a park after hours, Sanford was adjudicated guilty and sentenced to time served only. (Respondent's composite Ex. #2) On 1/25/85, 1/28/86 and 3/16/87, Sanford filed his forms, "Florida Department of Education Application for License to Drive School Bus and Physical Examination for School Bus Driver Applicant". These were renewal applications as the form indicates that a license to drive a school bus is valid for no more than 12 months from issue date. On each of these forms, Sanford answered "no", and certified his answers to be correct, to questions of whether he had been convicted of a misdemeanor or felony in the last three years and whether his driver's license had been suspended or revoked during the last three years. (Respondent's composite Ex. #3) The Orange County School Board requires Florida Department of Law Enforcement (FDLE) and Federal Bureau of Investigation (FBI) fingerprints and screening of all employees, upon hire, including former employees with a greater than 90-day break in service (separation from employment). Since approximately 1991, the school board has notified law enforcement agencies to advise the board any time a student or employee is arrested for a felony or misdemeanor. Upon receipt of the screening report or arrest report, the employee is given an opportunity to provide court records and explanations surrounding the incident. Board staff, including representatives of personnel and employee relations and the equal employment opportunity office, review the information for recommendation to the Superintendent. These reviews are also conducted for applicants for employment. Any time an employee is found to have falsified an application with respect to criminal background, staff recommends termination. Any time an applicant for a position to drive a vehicle is found with a DUI, that applicant is not recommended for consideration to be employed. If Sanford had actually applied for rehire in 1990, his 1984 and 1988 offenses would have been revealed in the employment screening. The DUI, the "Pee-Wee Herman" offense, and the falsification of his school bus licensure applications would have made him ineligible for further employment under the board's policy. If he had not been terminated, those offenses, and the misdemeanor incidents in 1990 and 1991 would likely not have been discovered by the board, since they predated the notification arrangement the board now has with local law enforcement agencies. SUMMARY OF FINDINGS As an alcoholic and substance abuser, Sanford was handicapped. His drinking and substance abuse interfered with his proper performance of his job duties on occasion. He was referred to the EAP and received assistance; he had a dozen major contacts with the EAP, not including telephone calls and correspondence, from 1986 to 1989. Although he did not receive inpatient treatment until the time of his termination, such treatment was not requested by Sanford, nor is there any evidence that earlier inpatient treatment was recommended by the professionals who were under contract with the EAP and who had worked with Sanford since 1986. John Hawco's termination decision was based on Sanford's employment record and performance at work, rather than on his handicap. Sanford was informed of the decision in August 1989, in a meeting which he attended with his union representative, and later, in writing, when his mother brought him the termination letter. No one, not even Scott Diebler, his most partisan supporter, promised Sanford that he would be rehired. Sanford did not follow Diebler's advice about applying for re- employment. Instead, he contacted Hawco in February 1990, and was told that he would not be rehired by the school board at that time. (Respondent's exhibit #13) Even if he had formally applied for employment, Sanford's prior convictions and falsification of his application would have barred re- employment, according to established school board policy.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That a Final Order be entered dismissing Gary Lee Sanford's complaint and petition for relief. DONE AND RECOMMENDED this 19th day of April, 1994, in Tallahassee, Leon County, Florida. MARY CLARK 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 19th day of April, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-6332 The following constitute specific rulings on the findings of fact proposed by the parties. Petitioner's Proposed Findings of Fact 1. - 4. Adopted in substance in paragraph 1. 5. - 6. Adopted in substance in paragraph 2. Adopted in substance in paragraphs 3 and 4. Adopted in substance in paragraph 3. Rejected as unnecessary. Adopted by implication in paragraph 10. Adopted in paragraph 7. Rejected as contrary to the weight of evidence. On July 17th he was intoxicated on the job. Adopted in substance in paragraphs 8 and 9. Adopted in substance in part in paragraph 42; otherwise rejected as irrelevant and unnecessary. Adopted in paragraphs 12 and 13. 17. & 18. Adopted in substance in paragraph 13. Adopted in part in paragraph 14; otherwise rejected as unnecessary. Rejected as unnecessary. Adopted in part in paragraph 13; otherwise rejected as unnecessary. & 23. Adopted in paragraph 15. Rejected as unnecessary. The proposed findings are not inconsistent with the fact that Sanford was under the influence at some point on his route. Adopted in part in paragraph 17; otherwise rejected as immaterial and unnecessary. & 27. Rejected as unnecessary. 28. Adopted in part in paragraph 18; otherwise rejected as immaterial. 29.-31. Rejected as immaterial. Adopted in paragraph 18. Adopted in part in paragraph 19, otherwise rejected as contrary to the weight of evidence. Adopted in part in paragraph 20, otherwise rejected as contrary to the weight of evidence. Adopted in substance in paragraph 21. Adopted by implication in paragraph 21. Adopted in paragraphs 22 and 25. Adopted in paragraph 25. Adopted in substance in paragraph 30. Adopted in substance in paragraphs 24 and 28. Adopted in substance in paragraph 33. Rejected as unnecessary. Rejected as immaterial; see paragraph 42. Adopted in paragraph 33. Adopted in paragraph 34. Rejected as contrary to the weight of evidence (as to Diebler's changing his story). Adopted in substance in paragraph 34. & 49. Adopted in substance in paragraph 35. 50. Adopted in paragraph 33. Respondent's Proposed Findings Adopted in substance in paragraph 1. Adopted in substance in paragraph 2. Rejected as unnecessary. Adopted in paragraph 4. Rejected as unnecessary. Adopted in paragraph 6. - 9. Adopted in paragraph 8. 10.-11. Rejected as unnecessary. 12. & 13. Adopted in paragraph 5. 14.-16. Rejected as unnecessary or cumulative. Adopted in paragraph 7. Adopted in paragraph 11. Adopted in paragraph 13. & 21. Adopted in paragraph 15. Adopted in substance in paragraph 15. Adopted in paragraph 13. & 26. Rejected as unnecessary. Adopted in paragraph 9. Adopted in paragraph 16. Rejected as unnecessary. & 31. Adopted in paragraph 16. 32.-34. Adopted in paragraph 17. 35.-36. Rejected as unnecessary. Adopted in paragraph 18. Adopted in paragraph 19. 39.-41. Adopted in substance in paragraph 20. Adopted in substance in paragraph 21. Rejected as unnecessary. 44.-46. Adopted in substance in paragraph 21. 47. Adopted in paragraph 22. 48.-50. Rejected as unnecessary. 51. & 52. Adopted in paragraph 23. Adopted in paragraph 24. Adopted in part in paragraph 25, otherwise rejected as contrary to the evidence. (He denied being under the influence.) & 56. Adopted in substance in paragraphs 25 and 27. Adopted in paragraph 26. Adopted in paragraph 28. Rejected as unnecessary. Adopted in paragraph 30. Adopted in paragraph 32. 62.-65. Adopted in paragraph 34. Adopted in paragraph 38. Adopted by implication in paragraph 41. 68.-72. Rejected as unnecessary. 73.-75. Adopted in paragraph 36. Adopted in paragraph 37. Adopted in paragraph 36. Adopted by implication in paragraph 37. Adopted in paragraph 40. Adopted in paragraph 41. 81.-83 Rejected as unnecessary. 84. Rejected as unnecessary. Further, the hearing officer denied Respondent's request to take official recognition of the weather reports. That denial is based on failure to comply with notice requirement of Section 90.203, F.S. and the unreliability of the report in establishing the fact that Respondent was attempting to establish: that it did not rain in Orlando on a given day. 85.-88. Rejected as unnecessary. 89. Adopted in paragraph 42. 90.-91. Rejected as unnecessary; except that the ultimate fact of the reason for termination is adopted in paragraph 43. COPIES FURNISHED: Tobe Lev, Esquire Post Office Box 2231 Orlando, Florida 32802 Frank C. Kruppenbacher, Esquire 545 Delaney Avenue, Suite 8 Orlando, Florida 32801 Sharon Moultry, Clerk Human Relations Commission Building F, Suite 240 315 John Knox Road Tallahassee, Florida 32303-4149 Dana Baird, General Counsel Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149
